—Goran Selanec, Constitutional Court of Croatia
The recent decision in A.R. v Poland, published by the European Court of Human Rights (ECtHR) on November 13, 2025, emerges from a particularly significant context, where concerns about the erosion of the rule of law within the European Union (EU) are closely intertwined with the diminishing protection of fundamental rights, notably those of women.[1] This context is especially relevant in EU Member States governed by so-called illiberal regimes, which are actively engaged in dismantling the constitutional constraints that limit their majoritarian power.[2]
The contribution of the ECtHR in this case is twofold. First, the decision fortifies the resistance against increasing fundamentalist attempts to curtail established protections of women’s reproductive freedoms. It stands as a judicial barrier against efforts to undermine rights that have previously been recognised and protected within the EU framework. Second, the decision marks the latest development in a series of cases by the ECtHR that seek to offer a decisive response to the phenomenon of rule of law backsliding within the EU. By addressing both the weakening of women’s rights and the broader crisis of constitutional governance, the Court underscores the essential connection between the two, highlighting that safeguarding individual freedoms is inextricably linked to upholding the foundational principles of democratic society.
The origins of the A.R. v Poland case are rooted in the period of intense social unrest following the decision of the Polish Constitutional Court (case no. K 1/20). This decision found unconstitutional those provisions of the 1993 Polish law which had previously allowed legal abortion in cases of foetal abnormalities. The Court announced its decision publicly on 22 October 2020. However, owing to significant public outcry and widespread protests, the Polish Government delayed the official publication of the judgment in the official journal until 27 January 2021. During the intervening three months, uncertainty surrounded the legal status of abortion services. Although the 1993 Act technically remained in force, many healthcare institutions, aware of the likely impact of the Court’s ruling, began to pre-emptively deny access to medically assisted termination of pregnancy. This created confusion and inconsistency in the provision of services. Even before the Constitutional Court’s decision, access to abortion was often hindered by the possibility of conscientious objection by medical practitioners, which further restricted women’s access to legal abortion.
Against this backdrop of political and legal instability, and amid fears of an imminent and permanent loss of access to legal abortion, as well as the potential for border closures due to the COVID-19 pandemic, the applicant in the A.R. case took decisive action. Following a diagnosis of trisomy 18 in her foetus in November 2020, she travelled to the Netherlands in order to terminate her pregnancy. This decision was made out of concern that she would soon be unable to access the procedure in Poland. The applicant subsequently experienced significant psychological distress as a result of having to undergo the abortion abroad, separated from her family and support network. In addition to the emotional impact, she also faced practical difficulties in confirming her entitlement to a special, shortened period of maternity leave, since the termination had taken place outside Poland.
In response to these circumstances, the applicant brought a claim against the Polish State, alleging violations of her rights under the European Convention on Human Rights. She argued that she had been subjected to inhuman and degrading treatment (ECHR Article 3) and that her right to respect for private and family life under ECHR Article 8 had also been violated. The European Court of Human Rights ultimately found a violation of Article 8 but dismissed the claim under Article 3.
As previously mentioned, the decision reinforces opposition to the further restriction of abortion rights by antidemocratic political movements in Europe. This is not the first ruling of its kind. In L. M. v Poland (December 2023), the Court addressed, for the first time, the disruption resulting from the same abortion judgment rendered by the Polish Constitutional Court, finding that it violated the right to private and family life as protected by Article 8 ECHR.[3] Equally significant, the Court determined that the ruling was inconsistent with the rule of law due to the political capture of the Constitutional Court. The A.R. decision strongly reaffirms the principles established in L.M., underscoring the breadth and depth of its legal implications.
In both decisions, the ECtHR maintained its conservative stance, interpreting Art 8 ECHR as not obligating Member States to provide a general right to abortion.[4] The Court acknowledges that terminating a pregnancy is a key aspect of personal privacy and health, thus falling under Art 8, but allows states considerable power to regulate abortion. However, the Court has stated that denying medical assistance for abortion can, in certain cases, amount to inhuman treatment under Art 3. Therefore, Member States must legislate clear and transparent conditions for “necessary” abortions to ensure legal certainty, reflecting concerns about foreseeability in cases like L.M. and A.R.
In the A.R. case, the ECtHR confronted the coordinated actions of the Polish Constitutional Court and Government, which had the effect of reducing abortion rights. Rather than determining that the reduction in abortion rights itself amounted to a violation of Article 8 of the European Convention on Human Rights (ECHR), the Court adhered to its established approach by focusing on the vital rule of law prerequisites. The ECtHR emphasised that any legal changes resulting in the reduction of existing rights—specifically those interfering with women’s personal autonomy protected by Article 8 ECHR—must be accompanied by robust safeguards to prevent arbitrary actions. The Court made clear that such a reduction must be genuinely “based on law,” which entails being duly enacted and published through proper legal procedures conducted by a competent legal authority.
Furthermore, the Court highlighted that the law must contain explicit safeguards to ensure that any discretionary power granted to the executive branch is exercised lawfully and without any abuse. This includes the implementation of necessary transitional measures to protect those affected by the change. Of particular importance are the implications for women who are pregnant at the time the reduction in abortion rights occurs, or who have already commenced the process. The ECtHR stressed that all consequences of such a reduction must be foreseeable, enabling affected individuals to manage their actions with certainty and appropriate urgency, especially given the objective time constraints that pregnancy imposes. Legal ambiguity surrounding the position of these women, caused by the reduction in abortion rights, was found to constitute a violation of their fundamental rights to private life and health under Article 8 ECHR. In summary, the absence of clear and precise legal frameworks in the reduction of abortion rights represents arbitrary state action, which undermines the rule of law and fails to protect those most vulnerable to the changes.
In this context, insufficient legal precision and ambiguity in the limitation of established rights represent an arbitrary exercise of state authority that is incompatible with the principles of the rule of law in a democratic society, and do not meet the Convention’s stipulation of being “based on law”.
In applying the foreseeability doctrine to the facts of the case, the determination of an Article 8 violation was appropriately supported. The Court did not need to proceed beyond this foundational analysis and therefore refrained from doing so. Although some may view this approach as cautious,[5] the strict application of the foreseeability criterion operates as an important safeguard against potential restrictions on women’s reproductive and health rights—frequently advocated by political movements that challenge constitutional limitations on majoritarian authority. This method is particularly effective in addressing such circumstances. In this context, supporting women’s personal autonomy is consistent with the fundamental principles that underpin modern constitutional democracy.
The A.R. decision primarily demonstrates the extent to which this approach may be effective if applied rigorously. This was particularly evident regarding the issue of victim status in the context of ECHR Article 8 rights. At the time, the Polish Government contended that the applicant should not qualify as a victim, as she had not attempted to access the relevant medical services within the national healthcare system. The Government asserted that there was no evidence to suggest she would have been denied such services, especially since the 1993 Act remained in force. However, the claim was rejected. The Court reasoned that, given the possibility that the decision of the Polish Constitutional Court could have been published at any moment, it was understandable that the applicant decided to seek medical services outside Poland. Yet, it was precisely her “voluntary” decision to obtain these services abroad that resulted in suffering, thereby establishing her victim status. Such reasoning is not intuitive and arguably incomplete, as it does not address questions such as whether the outcome would differ if the Constitutional Court’s judgment had been published prior to the applicant’s departure for the Netherlands. It seems improbable that the Court was unaware of such potential deficiencies, which may indicate its determination to ensure the effectiveness of Article 8 protections in this unique context.
There is another noteworthy aspect of this approach: the underlying presence of the EU legal order, which facilitated ECHR protection for the applicant. It is easy to overlook that the applicant obtained the medical service “away from home” by relying on the free movement rights conferred by her EU citizenship. This demonstrates that the foreseeability standard applied by the ECtHR could potentially acquire additional strength through EU law. Both the absence of a right to terminate a pregnancy where the woman’s health is at risk, and the reduction of existing rights, foreseeably affect women’s ability to exercise and fully benefit from EU free movement rights. This relegates women to a diminished status as EU citizens, threatening their health, family life, and career opportunities, even as they move freely within the EU. Consequently, once incorporated into the equivalent guarantees provided by the EU Charter, the standards developed by the ECtHR would gain broader applicability and effectiveness, owing to the direct effect and primacy of EU law over national law.
This is linked to another significant aspect of the A.R. decision. As in the L.M. case, the Court in A.R. underscored concerns regarding the political influence exerted upon the Constitutional Court. The Court highlighted not only the illegal appointment of three justices, as well as the appointment of the President of the Constitutional Court but also noted that one justice was actively involved in politically organized efforts to contest the 1993 Act before the Court.[6] Consequently, the ECtHR readily concluded that the Polish Constitutional Court did not meet the requisite standard of being an “independent and impartial judicial body.” Accordingly, the contested judgment failed to satisfy fundamental rule of law requirements. This would further suggest that any implications the disputed judgment would have for fundamental rights of women in Poland would be assumed in violation of the ECHR. It is a clear message that any strategy of reducing effectiveness of fundamental rights guarantees through politically captured courts ought to be decisively met with resolve at Europe’s highest judicial levels. In this regard, the ruling further underscores the imperative for a robust supranational response to the rule-of-law challenges posed by anti-democratic actions in certain EU Member States, notably Poland and Hungary.
The ECtHR was clearly cognizant of the concurrent proceedings before the Court of Justice of the European Union (CJEU) in case C-448/23, Commission v Poland. This case originates from a series of judgments delivered by the Polish Constitutional Court in 2021 (P 7/20 on 14 July 2021 and K 3/21 on 7 October 2021), which invoked the concept of “national constitutional identity” to contest the primacy of EU law within the Polish legal framework and consequently the authority of the CJEU. The European Commission submitted its application against Poland to the CJEU in July 2003. The matter remains unresolved, with keen anticipation regarding the outcome, as the proceedings present a critical test of the binding nature of EU law amid overt opposition from some national constitutional courts.[7] However, in March 2025, Advocate General Spielmann, former President of the ECtHR (2012–2015), issued a detailed Opinion concluding that the Polish Constitutional Court fails to meet the criteria of an independent and impartial tribunal established by law, as stipulated by Article 19(1) TEU and Article 47 of the Charter.[8] This finding is based on irregularities in judicial appointments.[9] The A.R. decision in significant ways reiterates the reasoning articulated by Advocate General Spielmann. However, it also demonstrates the tangible, real-life effects that undermining constitutional separation of powers has on actual individuals one can relate to. The A.R. decision thus also implicitly prompts consideration of the potential consequences that invoking “national constitutional identity” in certain EU Member States could have on established standards for fundamental rights protection, especially with regard to women’s rights.
Suggested citation: Goran Selanec, The Significance of A.R. v Poland: Protecting Women’s Rights and Upholding the Rule of Law, Int’l J. Const. L. Blog, Dec. 3, 2025, at: http://www.iconnectblog.com/the-significance-of-ar-v-poland-protecting-womens-rights-and-upholding-the-rule-of-law
[1] See A.R. v. Poland (Application no. 6030/21) at https://hudoc.echr.coe.int/eng?i=001-245820
[2] See, e.g., Pech, Laurent: 7 Years Later: Poland as a Legal Black Hole, VerfBlog, 2023/1/17, https://verfassungsblog.de/7-years-later-poland-as-a-legal-black-hole/, DOI: 10.17176/20230118-001918-0.
[3] M.L. v. Poland [GC], no. 40119/21, ECHR 2023 at https://hudoc.echr.coe.int/eng?i=002-14264
[4] See Noa Vreven, M.L. v. Poland: potential to liberalise women’s abortion rights? Strasbourg Observers, Apr. 19 2024, at https://strasbourgobservers.com/2024/04/19/m-l-v-poland-potential-to-liberalise-womens-abortion-rights/.
[5] See, e.g., Sissy Katsoni, How to Maneuver Around Acknowledging the Right to Access Abortion: Some Thoughts on the ECtHR’s judgment in M.L. v Poland, EJIL Talk, Jan. 11, 2024, at https://www.ejiltalk.org/how-to-maneuver-around-acknowledging-the-right-to-access-abortion-some-thoughts-on-the-ecthrs-judgment-in-m-l-v-poland/#:~:text=The%20application%20concerned%20the%20alleged%20violation%20of,manoeuvring%20around%20the%20explicit%20acknowledgement%20and%20stronger
[6] On the ECtHR caselaw concerning the independence of the Polish Constitutional Court see Szwed, Marcin: What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal, VerfBlog, 2021/5/09, https://verfassungsblog.de/what-should-and-what-will-happen-after-xero-flor/, DOI: 10.17176/20210509-210914-0.
[7] See Natália Racková, „Constitutional Pluralism in Times of the Rule of Law Crisis: Susceptible to Abuse?“ at https://www.europeanlawblog.eu/pub/st2hcwbv/release/1?readingCollection=e6e5719e.
[8] The Opinion can be found at https://curia.europa.eu/juris/document/document.jsf;jsessionid=43119D4093ECBDF4DBD5E9F36CA74742?text=&docid=296431&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10822384
[9] See Di Federico, Giacomo: In the Name of Primacy: Opinion C-448/23 and the EU’s Existential Principle of Primacy, VerfBlog, 2025/4/22, https://verfassungsblog.de/in-the-name-of-primacy/, DOI: 10.59704/27eb47c0c3937101.