B Explanatory memorandum
by Ms Margreet De Boer, rapporteur
1 Introduction
1. In many Council of Europe member
States, people who are committed to protecting women’s access to free
and safe abortions are subject to intimidation and violence by anti-choice
activists. Some cases are particularly visible, as they concern
public personalities such as politicians and well-known activists.
In the United Kingdom, for instance, Stella Creasy, a parliamentarian
who led a successful campaign to extend legal abortion to Northern
Ireland, was targeted by a smear campaign which included the display
of large posters featuring the image of her face next to that of
a dead foetus. German doctor Kristina Hänel, who was sentenced for
“advertising” abortion after she spread information about the procedure
on a website, has become the victim of online hate speech and intimidation.
In Poland, organisations including Polish Women’s Strike, the Abortion Dream
Team, Federation for Women and Family Planning (Federa), Feminoteka,
Fundacja FOR, Helsinki Foundation for Human Rights and the Women’s
Rights Centre (Centrum Praw Kobiet) have been targeted by severe
form of intimidation including bomb threats and death threats, originating
from criminals that have not yet been identified.
2. In addition to these and other cases that made headlines and
are known to the general public, it is seriously concerning that
thousands of people seeking abortion face intimidation, harassment
and other forms of psychological pressure. These include anti-choice
activities held at or near medical facilities providing abortion
care, including dissuasion attempts, verbal abuse, biased counselling
and the spreading of inaccurate information, including online. According
to the “European Abortion Policies Atlas” published jointly by international
non-governmental organisations, European Parliamentary Foundation
for Sexual and Reproductive Rights (EPF) and International Planned
Parenthood Federation European Network (IPPF EN), in September 2021,
19 European countries force people seeking abortion to endure medically
unnecessary requirements to access abortion care, including compulsory
counselling (which, as already mentioned, may be biased) and forced
waiting periods. In 18 countries, the authorities do not provide
the general public with clear and accurate information about abortion
care.
3. These phenomena have an impact that should not be underestimated.
The harassment and intimidation of individuals violates their human
rights, notably the right to freedom of expression, and often the
right to liberty and security. At a broader level, the proliferation
of these forms of pressure progressively erodes the right to abortion,
stipulated in the legislation of most Council of Europe member States.
Countering such attempts to make law ineffective and ensuring that
the rights that are legally granted may actually be enjoyed is necessary to
protect the certainty of the law, which in turn is an important
element of the rule of law that public authorities have a duty to
protect. From a political and ideological point of view, the surreptitious
attempts to undermine the right to abort may be considered as part
of the broader attack on women’s rights that is affecting most countries,
including well-functioning democracies, in Europe and beyond.
4. This report takes stock of the current situation in Council
of Europe member States, while presenting several examples of measures
that have proven successful in some contexts and may inspire legislators
and policy makers in other countries.
2 Preparation of the report
5. The preparation of this report
was based on desk research, extensive consultations with civil society organisations,
exchanges with experts and human rights defenders, as well as fact-finding
visits to two Council of Europe member States. I had the opportunity
to discuss with fellow members of the Committee on Equality and
Non-Discrimination the main findings of each step of the preparation.
6. In January 2021 I sent out a questionnaire to civil society
organisations working on sexual and reproductive health and rights
in Council of Europe member States.
7. The questionnaire aimed to collect information on the extent
and different kinds of harassment, violence or intimidation allegedly
committed in Council of Europe member States against pro-choice
activists, healthcare professionals, and people in need of abortion
care. Additionally, the questionnaire aimed to identify best practices.
8. The replies to the questionnaire (from sixteen organisations
in different member States) give a clear overview of the various
forms of harassment taking place in connection with abortion rights.
They show that abortion rights defenders and pro-choice healthcare
providers are targeted for their work, and people seeking or using
abortion care are regularly misled or put under pressure to change
their decision. The questionnaire results also indicate that, even
when provided by law, abortion care is not always accessible in
some member States. Some countries may appear more often in the
findings, as certain respondents provided more detailed input. This
does not imply that harassment is more prevalent in those countries.
9. In addition to an overview of the types of harassment found,
the information provided by civil society organisations included
a few examples of the preventive policy and legislative measures
in place in member States.
10. I presented a compilation of the replies at the meeting of
the Committee on Equality and Non-Discrimination of 15 March 2021.
On the same occasion, a hearing was held with the participation
of three speakers. The aim of the hearing was to complement the
information gathered through the questionnaire with additional elements.
It was also an opportunity for me as rapporteur and for the entire
committee to discuss this matter with persons that are directly
involved: Ms Vanessa Mendoza Cortés, from Andorra, and Ms Marta Lempart,
from Poland, shared testimonies on the forms of pressure or harassment
they had personally faced. Ms Rebecca Gomperts, from the Netherlands,
gave an overview of the situation in Council of Europe member States,
which integrated the information previously collected.
11. Based on references to conscientious objection to abortion
care made in the replies to the questionnaire, and on comments from
the experts who took part in the hearing, I deemed it necessary
to collect additional information on this specific issue.
12. In the final phase of the preparation of the report I conducted
fact-finding visits to two Council of Europe member States, namely
France and Poland, respectively in October and November 2021.
3 Main
findings of the questionnaire
3.1 Harassment
of medical providers and defenders of the right to abortion
13. According to the information
collected, one of the ways in which pro-choice activists and health
care providers are targeted for their work is through various types
of reporting and official procedures. Anti-abortion groups report
pro-choice organisations or doctors to the police, denounce doctors
to medical councils or start legal proceedings against them for
disseminating information about abortion, speaking out against anti-choice actions
or practising abortions. This is perceived by the persons targeted
as a form of harassment and may rightly be considered as such.
14. Furthermore, pro-choice organisations and doctors face several
types of direct harassment, both online and offline, which can be
divided into three categories: intimidation, defamation, and pressure
on medical personnel.
15. Intimidation may be physical, for example through attacks
on or protests at abortion care centres. The Croatian respondent
specifically mentions vigil actions continuing for up to 40 days.
Often, however, intimidation takes place online, on websites or
on social media accounts. It can range from generally intimidating
messages to creating and sharing posts targeting individual activists,
and death threats. Additionally, hate speech takes place in both
physical and online settings.
16. A second and related type of harassment of pro-choice organisations
and doctors is defamation. Anti-choice actors try to discredit and
delegitimate them and their work, framing them as threats to society
or national interests, or as murderers. An example from Malta: “[Abortion
opponents] create posts with our faces, publishing our names calling
us murderers, baby-killers and the like.” According to the Croatian
respondent, the messaging and tactics employed by far-right groups
“stoke pre-existing fears present in society, including those regarding
loss of national identity and culture.”
17. A third type of harassment, specifically experienced by pro-choice
healthcare providers, is sustained pressure to stop providing abortion
care. Among the respondent countries, this is mainly evident in
Croatia, where “medical professionals are being threatened, pressured,
stigmatised into not providing abortion care [, and] especially
young doctors are (…) [at] risk of not being promoted or they are
being deprived of some opportunities for professional development.”
3.2 Harassment,
violence or intimidation against pregnant people in need of abortion
care and people who have undergone an abortion
18. Pregnant people in need of
abortion care may face harassment at abortion clinics, as described
above. Additionally, some pregnant people are personally harassed
if they are open about having an abortion. They may also face more
specific types of harassment, which will be described below.
19. One often-mentioned problem is a lack of evidence-based information
about abortion and a parallel surge of misinformation. Respondents
from several countries indicated the existence of “incognito anti-choice organisations”.
These organisations provide helplines, often profiling themselves
as information points about abortion and purposefully operating
in physical vicinity of official abortion information centres (Austria)
or through phone lines or websites that look similar to the official
ones (France and Malta). When contacted, however, they confront
the person seeking advice with biased, untrue and shocking information
about abortion, and try to dissuade them from undergoing the procedure.
On one of these websites, “rather than offering information on where
to go, it shows a graphic video of a termination procedure, warning
that the possible side effects include breast cancer, sexual dysfunctions
and even alcoholism”. Concerning the phone lines, the French respondents
indicate that “people listening and answering questions call women
and girls back on their phone to dissuade them for having an abortion,
even when they are in the waiting room”.
20. Additionally, the questionnaire respondents stated that pregnant
people seeking abortion care may experience pressure from health
care professionals. In the responses to the questionnaire, this
was indicated to take place in three ways. Firstly, increasing numbers
of doctors are ‘conscientiously objecting’ to providing abortion
care. Overuse of this argument (59% of gynaecologists in public
hospitals in Georgia and the majority of practitioners from public
centres in Spain refuse to carry out an abortion procedure, and
the Serbian and Croatian respondents point out high and rising numbers
of objectors) can lead to a lack of availability of abortion care,
as well as inherent pressure on the patient to change their decision.
Secondly, some health care providers try to dissuade people seeking
an abortion from doing so. This is done through (unrequested) conversations
with the patient, moral lectures, stressing religious arguments
against abortion, or forcing patients to listen to the embryo’s
cardiac activity or look at the ultrasound scan. A victim recounts:
“They would tell you: ‘here is your baby, don’t you want to look
at it?’ What you can see is a shapeless black spot, but still, it
hurts.” In Austria, pregnant women may be given a ‘mother-child-passport’
(a document about medical tests) in a very early stage of their
pregnancy. Thirdly, several instances of medical mistreatment are
addressed in the responses. A Croatian campaign uncovered instances
of women being denied access to pain relief or being tied to medical
equipment during painful procedures. In Georgia, research indicated
a serious violation of confidentiality rights and a complete lack
of privacy during abortive procedures.
21. A further significant problem for women in need of abortion
care is that, even when abortion is legally provided for, there
are substantial barriers to accessing this care. These barriers
range from societal constraints, such as stigma, to financial or
administrative barriers. The respondents from Spain indicate that these
barriers render the right to abortion ineffective. Although the
lack of availability or accessibility of abortion care is strongly
problematic, it does not in itself constitute harassment. However,
it can be connected to certain types of harassment. The widespread
stigmatisation of abortion, for example, may cause pressure on pregnant people
not to have an abortion and thus limit the access to it. Additionally,
the conscientious objection of health care professionals – one of
the causes for the limited availability of abortion care – can lead
to negative pressure on people seeking abortion care. At the hearing
on 15 March, guest speaker Rebecca Gomperts highlighted that this
kind of barrier could be observed in member States including Germany,
Hungary, Italy, the Netherlands and the United Kingdom. If used
in excess, conscientious objection may ultimately have an effect that
is comparable to harassment.
3.3 Government-initiated
harassment
22. Several questionnaire respondents
point out that abortion rights defenders face harassment from their country’s
public authorities. Andorran respondents stated that an abortion
rights defender faced government intimidation by means of a criminal
suit and a police investigation. In Poland, the respondents reported
police prosecution and police violence against activists. After
one activist tried to purchase Arthrotec with a prescription, the
pharmacy she went to reported her to the police, who “searched her
house and confiscated her computer and phone. She was taken to the
police station and had to spend a night in the police cell.” Rebecca
Gomperts added that she herself had been questioned by the judiciary
in the Netherlands on two occasions in this respect, at the request
of the Polish authorities. The responses include mentions of other government-initiated
actions, such as the blocking of the Women on Waves website in Spain
by the national medicine agency, which Ms Gomperts characterised
as censorship.
4 Causes
of harassment and how to address them
23. When describing the phenomenon
of harassment, respondents point out several causes and sources. A
recurring underlying theme in the causes is the existence in society
of widespread and strong patriarchal and traditional beliefs, often
related to religion. This leads to the stigmatisation of abortion,
which in turn may serve as a breeding ground for, or justification
of, harassment. The harassment itself comes from different types
of actors. In some cases, as previously mentioned, this is the government
of the relevant country. In other cases, anti-choice organisations
are frequently mentioned as the authors of the harassment. They
are stated to have connections with extreme-right political parties
and religious organisations, which may also initiate harassment. Two
respondents signal foreign roots or funding of anti-choice organisations,
especially related to the United States (for example the “40 Days
for Life” movement). Next to these groups, some medical personnel
is stated to harass women trying to access abortion care. These
findings, along with the recommendations of best practices collected
in the questionnaire, can guide the exploration of what measures
to adopt.
24. Most respondents state that their country has legislation
on abortion, anti-discrimination, and/or certain types of harassment
such as hate speech, unlawful threats, or defamation. Several countries
have legislation that can be used to stop protests near abortion
clinics, and in Austria and France this legislation has diminished physical
harassment in those spaces. In France, obstructing the voluntary
termination of pregnancy, including the disruption of establishments
practising abortions or of access to information on abortion, is
outlawed. However, many steps are still to be taken. The problem
of incognito anti-choice organisations posing as abortion information
centres and providing biased and unscientific information or “help”,
for example, is difficult to solve. The French “obstruction” ban
has been extended to include such organisations, but the French respondents
state that there is a lack of complaints due to difficulties in
proving the allegations. The same is stated by different respondents
for cases of verbal harassment or hate speech. These problems can
be used as a starting point for the recommendations that I will
formulate in my report.
25. The suggestions provided by the respondents on how to improve
the response to harassment are mainly general. A first important
point is to speak out and support abortion rights defenders. As
stated by one of the respondents, “absence of public condemnation
of threats and intimidation […] sends an indirect message to the
public that such behaviour is approved of and thus (…) [fails] to
send a clear message that violence is unacceptable.” Financial and
symbolic support of pro-choice organisations are additional suggested
measures. Furthermore, more attention to sexual education in school
curricula and the dissemination of accurate information could help
make the population more resistant to widespread misinformation
and regressive social norms.
5 Main
findings of the hearing of 15 March 2021
26. The various forms of pressure,
which may in some cases be considered as forms of harassment, perpetrated
by public authorities targeting persons speaking out for the right
to abortion were not covered by the motion from which this report
stems and emerged from the analysis of the replies to the questionnaire.
I deemed it appropriate to invite two activists who may give a testimony
on this form of harassment, namely Vanessa Mendoza Cortés from Andorra
and Marta Lempart from Poland, to take part in the hearing held
by the Committee on Equality and Non-Discrimination on 15 March
2021. As previously mentioned, Rebecca Gomperts, founder and leader
of the organisation Women on Waves, provided a general overview
of the situation in Council of Europe member States, with examples
of various forms of harassment that I used when analysing and presenting
the findings of the civil society survey.
27. As previously mentioned, Stop Violéncies, the non-governmental
organisation that replied to the questionnaire and provided information
on Andorra, indicated that its president Vanessa Mendoza had been targeted
by criminal procedures initiated by the government.
28. At the hearing, Ms Mendoza explained that she was indicted
with defamation against the government, defamation against the co-princes
and crimes against the institutions and faced up to four years in
prison, for reporting violations of human rights allegedly perpetrated
by the Andorran authorities, at the United Nations Universal Periodic
Review in October 2019. She considered that the criminal procedures
initiated against her are politically motivated, as her activism
on sexual and reproductive health and rights runs counter to the government’s
policies in this area and more generally to the political climate
of her country. Andorra’s institutional system still has two Co-princes,
the President of the French Republic and the Bishop of Urgell, as head
of State. The presence of a high-ranking member of the Catholic
clergy at the top of the constitutional system makes abortion a
particularly divisive matter and promoting sexual and reproductive
health and rights may appear to be disruptive of the institutions.
Ms Mendoza added that the authorities pressure Stop Violéncies to
disclose the names of women that have sought assistance, which the
organisation cannot share for deontological reasons.
29. The hearing was an opportunity to give voice to different
points of view, including that of members of the Andorran delegation
representing the governing majority. Ms López considered that the
human rights violations reported by Ms Mendoza to the United Nations
Human Rights Councils were ungrounded. She rightly underlined that
the charges pending against Ms Mendoza were related to defamation
and not to the criminalisation of abortion. Since the aim of this
report, as previously clarified, is not to promote the right to abort,
but rather to protect those who speak in favour of it from harassment,
the case of Ms Mendoza is strictly relevant to this work. A wide
range of international actors see the criminal proceedings against
her as a threat to freedom of expression. The Government of the
Netherlands highlighted that the case of Vanessa Mendoza Cortéz
was a particularly worrisome case of reprisal against, and intimidation
of, human rights defenders, and the Government of Luxembourg invited
the Andorran authorities to consider addressing defamation in civil rather
than criminal law”.
Note Amnesty International,
Note the International Federation for Human
Rights (FIDH),
Note and the International Service for Human
Rights (ISHR)
Note have called on Andorran authorities to
drop the defamation charges. The case is being followed closely
by the Council of Europe Commissioner for Human Rights.
30. In the aftermath of the hearing, I had the opportunity to
exchange with the Andorran delegation, in writing and through a
remote meeting, and since then I have continued to follow the case
of Ms Mendoza. The delegation also provided additional replies to
the questionnaire that I had previously distributed. In a letter
of 19 March 2021, Ms López expressed the Andorran authorities’ commitment
to promoting gender equality and illustrated the peculiarities of
Andorra’s constitutional system. She also clarified that the criminal
proceeding against Ms Mendoza was not initiated by the national
government, but rather by the General Prosecutor. Later, I was informed
by Ms López that the General Prosecutor’s office had decided to
drop all charges except that of defamation, which does not carry
imprisonment, and that Ms Mendoza only risked incurring in a fine.
Sexual and reproductive health and rights are a sensitive matter
in Andorra and abortion in particular is intertwined with international
relations and national sovereignty. However, this issue lies at
the intersection of women’s empowerment and human rights, and it
is crucial for the authorities to guarantee freedom of expression
to all those who contribute to the conversation in this area. This
freedom should not be curtailed by criminal proceeding or any other
form of pressure. I trust that the Andorran authorities will take
all the necessary steps to avoid this risk in the future, if necessary
by amending the Criminal Code, as recommended by some human rights
groups, which is part of the mandate of legislators. I appreciated
the co-operative attitude of the Andorran delegation and of its
Chairperson, and the commitment they declared to the cause of fundamental
freedoms.
31. The testimony of Marta Lempart, founder and leader of the
organisation All-Poland Women's Strike, described the situation
of Poland in the wake of the ruling of the Constitutional Court
that effectively banned abortion, in a context of progressive erosion
of the space of civil society in public life. Women’s rights are particularly
threatened, with, among other things, a parliamentary initiative
under way that might lead to the country’s withdrawal from the Council
of Europe Convention on Preventing and combating violence against women
and domestic violence (CETS No. 210, Istanbul Convention). The National
Women’s Strike is a network of organisations present in over 600
Polish cities and towns and is active in the area of democracy and human
rights and more specifically of gender equality. In the past months,
members of the organisation have received threats, including death
threats. Forms of intimidation included bomb alerts and other actions
that on some occasions were co-ordinated so as to happen at the
same time in different placed, multiplying the targets and also
the psychological impact.
32. According to Ms Lempart, police forces claim that they cannot
intervene to protect the activists. In reality, they do intervene
against them, gassing, beating and arresting them at public protests.
In addition, criminal proceedings were initiated against members
of All-Poland Women's Strike and other organisations. The inactivity
of law enforcement officers encourage impunity, including among
neo-Nazi extremists that are believed to be behind some of the intimidation
and violence. State-controlled media, particularly television, contribute
to the climate of hostility towards civil society and liberal forces:
in Ms Lempart’s view, the murder of Pawel Adamowicz, Mayor of Gdansk,
in 2019, was the result of a smear campaign in the media and of
online hate-speech.
6 Conscientious
objection to abortion care – the case of Italy
33. It is estimated that 95% of
European women live in countries where abortion is legal. In most
Council of Europe member States, legislation on abortion also sets
forth a right to conscientious objection for healthcare professionals.
This refers to a right to opt out of providing abortion care and
is limited to medical staff participating in the abortion procedure.
According to these laws, access to abortion care must nevertheless
be ensured for those seeking it.
34. Regulations on conscientious objection differ across Council
of Europe member States. A comparative multiple-case study, based
on various sources including interviews with key stakeholders, was
carried out in England, Italy, Norway and Portugal and published
in 2017.
Note The researchers explain
that they “embarked on this exploratory multiple-case study of four
countries whose abortion laws contain conscientious objection clauses
in order to assess the efficacy and acceptability of national policies
that regulate objection to abortion”. The main question the study
sought to answer was whether regulations effectively permit conscientious objection
while ensuring women’s access to abortion.
35. The study identified the principal elements of a functional
health system which ensure both access to abortion care and the
right to opt out for personal reasons: clarity (on who has the right
to object, and to which components of care), ready access, and a
well-functioning abortion service. The researchers also found that social
attitudes on abortion and conscientious objection contributed to
the level of implementation of objection policies. The study concluded
that “England, Norway and Portugal illustrate that it is possible
to accommodate individuals who object to providing abortion while
still assuring that women have access to legal health care services”.
36. Absent from this conclusion is Italy, where approximately
70% of doctors claim conscientious objection and the availability
of abortion care is unevenly distributed across the country’s regions.
The high percentage of health professionals who claim conscientious
objection, and their potentially unsympathetic attitude, mean that
pregnant people seeking abortion care in the country often face
harsh practical and psychological hurdles. In some cases, these
may amount to a form of harassment.
37. Ms Laura Fiore, an Italian artist who underwent medical termination
of pregnancy in 2008, published a book,
Abortire
tra gli obiettori. La moderna inquisizione,
Note (Aborting among objectors. The modern Inquisition) to
share what she describes as a horrific experience. After labour
was medically induced, she was left unattended on her hospital bed
and had to expel the foetus alone. While not a full-time activist,
Fiore felt compelled to inform the public of the challenges faced
by those who seek an abortion and she launched the blog “Aborto
terapeutico e spontaneo”.
Note In it, a note invites readers to
share their testimony and asks anti-choice activists to refrain
from contacting her: “I have already faced a special treatment from
objectors, and I have the right to be left in peace”. The story
of another woman who was left unattended by medical staff is told in
an article published in 2017 by Open Democracy.
Note In the same year, a 41-year-old
woman from Padua told local papers that 23 hospitals from several
Italian regions had refused to provide her with an abortion procedure,
saying either they had no available appointments, or did not have
any non-objecting doctors, or that those who were not objectors
were on holiday.
38. Objection to abortion care is not necessarily motivated by
moral or religious beliefs. According to a study published by Silvia
De Zordo, an anthropologist of the University of Barcelona,
Note who interviewed professionals in
four hospitals in Milan and Rome, the motivations may also be linked
to convenience and career progression. It is important to note that
one of the reasons mentioned by participants was the feared or actual
discrimination and stigmatisation faced by non-objectors in their
professional environment. An area of particular concern highlighted
by the study is that difficult access to legal abortion has led
to a spike in unsafe, illegal abortions in the country.
Note
39. In 2012, the International Planned Parenthood Federation European
Network (IPPF EN) lodged a collective complaint against Italy with
the European Committee of Social Rights (ECSR),
Note claiming that
the inadequate protection of the right of access to abortion care
implied a violation of women’s right to health and self-determination.
In addition, it claimed that the implementation of regulations on
abortion was discriminatory from an economic and a geographic point
of view, as women based in areas where abortion care was not available
were obliged to travel. A second complaint was lodged by the Italian
trade union Confederazione Generale Italiana del Lavoro.
40. The ECSR issued judgments finding a violation of the right
to health because of the lack of abortion providers due to widespread
conscientious objection, and a violation of the right to non-discrimination
for women who were forced to travel to obtain abortion care. In
its follow-up review published in March 2021, the ECSR confirmed
that the violation of these rights persisted.
41. The Italian authorities should intervene in this area and
ensure the real enforcement of the right to abortion as stipulated
in national legislation. They should, in particular, prevent and
sanction surreptitious attempts to limit access to this right by
discriminating against, intimidating or harassing people seeking
abortion or the healthcare professionals providing it. This is a
matter of women’s rights, of equality among citizens and of legal
certainty. These recommendations apply to all countries that have
legalised abortion.
7 Fact-finding
visit to Paris, 5-6 October 2021
42. I conducted a fact-finding
visit to France on 5-6 October 2021 and I would like to thank the
French delegation for its support. My gratitude also goes to the
organisation Planning Familial, which provided information on relevant
interlocutors and hosted part of the meetings.
43. During the visit, I had exchanges with several civil society
representatives, some of which whom were both medical doctors and
pro-choice activists. They provided information on access to abortion
care in France and on the forms of harassment that occur in relation
to it.
44. It appears that doctors are not the main targets of such harassment.
Some of my interlocutors had never faced direct attacks or threats.
They were aware that some of their colleagues had been targeted,
but they did not consider the situation to be seriously concerning.
In the past, anti-choice militants staged protests in the premises
of medical structures providing abortion care and at time even disrupted
their medical activities. This had an impact both on healthcare
staff and on people seeking abortion care and it was addressed in
1993 by sanctioning the obstruction of abortion through a specific
criminal offence (“délit d’entrave à l’IVG”).
45. Today, people seeking abortion care are the main target group
of anti-choice harassment. Thanks to the provisions criminalising
the obstruction of abortion, this no longer occurs in the form of
violent intimidation on the premises of abortion care providers.
However, it still happens in more subtle forms, namely by providing incorrect
and misleading information on access to pregnancy interruption and
on its supposed negative effects. Anti-choice groups, my interlocutors
explained, set up websites and telephone information services that present
themselves as neutral, while in fact aiming to dissuade pregnant
people seeking their help in order to have their pregnancy interrupted.
Arguments used include a supposed negative impact on mental and
physical health, including depression and sterility, but also social
and personal consequences (with personal testimonies of women who,
for instance, faced the end of their marriage or relationship as
a result of their choice to terminate their pregnancy).
46. In 2017, the law on obstruction of abortion was expanded with
the view of targeting such activities. The criminalisation clause
now includes prevention of or an attempt to prevent practising or
obtaining information on interruption of pregnancy by any means,
including electronically or online, either by (physically) disrupting access
to relevant establishments or by exerting moral and psychological
pressure, threats or intimidation. To the knowledge of my interlocutors,
there have not been any judgments on the obstruction “electronically
or online” yet. My interlocutors indicated that this might be due
to the fact that it is extremely difficult to prove. For online
or electronic acts of anti-choice groups to fall within the scope
of the law, psychological pressure would need to have been exerted.
47. Moreover, a narrowing interpretation of the Constitutional
Council added the requirements that the pressure is individual,
that information (and not an opinion) is sought and that the person
giving the information claims to have competence in the matter.
Anti-choice groups circumvent these rules by phrasing their information
carefully, and ensuring that they do not present themselves as experts.
This situation is difficult to navigate as it touches upon freedom
of expression.
48. Pro-choice militants and women’s rights defenders also face
intimidation and pressures. As they had previously indicated through
their replies to the questionnaire, Planning Familial among others
faced attacks against their offices with the degradation of the
premises, the putting up of anti-choice posters and the harassment
of persons. As the physical obstruction offence only concerns the
premises where abortion care is provided, civil society organisations
are not protected by it. Anti-choice individuals and organisations
also use legal proceedings against pro-choice activists. The Jerôme
Lejeune Foundation for instance sued Danielle Gaudry, a gynaecologist
and feminist activist that I met during the visit, for defamation,
as she had criticised an anti-choice booklet that was distributed
among French schools. Ms Gaudry was eventually cleared of the accusations.
49. The doctors I have met stated that they had not faced pressure
or harassment in relation to their work in abortion care. However,
they all seemed to agree that this area is viewed as “special” and
different from all other healthcare areas, and not in a positive
sense: training in medical school is insufficient, if offered at
all, operating in this sector does not help to achieve career progress,
abortion provision is viewed as unimportant and uninteresting, or
even “dirty”, as one of my interlocutors stated and, crucially,
remuneration is lower compared to other specialties. This special
nature of this discipline is confirmed by the double conscientious objection
clause (“clause de conscience”) granted to doctors, midwives and
nurses. In addition to the general clause allowing these medical
providers to refuse to perform a medical act they deem contrary
to their personal convictions, a specific clause on conscientious
objection to abortion was introduced by the 1975 law that legalised
the voluntary interruption of pregnancy. This double clause is criticised
by many as unnecessary and problematic, as it stresses the different
nature of abortion care while having little legal purpose. My interlocutors indicated
that frequent use of the conscience clause may disturb access to
abortion care, and that encountering (several) conscientious objectors
may cause pregnant people to lose essential time in finding care.
50. Pro-choice politicians and activists face verbal abuse and
actual hate speech, particularly online on special media and through
direct messages, with cases of severe intimidation, including death
threats. The activists I met highlighted that the harassment and
the other forms of pressure against them come from individuals and
movements that aim not only to hinder access to abortion care, but
also more generally to undermine the progress achieved over the
last decades in women’s rights and gender equality, including the rights
of LGBTI people. They highlighted that the attacks are often carefully
orchestrated: one of the militants I met mentioned that 8 000 hostile
comments had been posted on her social media account over a period
of 15 minutes. Several interlocutors indicated that the follow-up
on the case by the police was inconclusive or insufficient, and
that the organised nature of the attacks is not sufficiently acknowledged
in investigations.
51. Ms Albane Gaillot, a former member of the Committee on Equality
and Non-Discrimination and a current member of France’s National
Assembly, indicated that she is the target of sustained harassment,
including an online death threat that was considered serious by
the police. Ms Gaillot is the main promoter of a bill that would improve
access to abortion, in particular by extending the time limit from
12 to 14 weeks. This is meant to take into account the delays that
pregnant people face in access to sexual and reproductive healthcare,
particularly in rural areas or other geographic areas where infrastructure
is scarce, which in some cases jeopardise their right to make a
free choice. The bill faced strong parliamentary obstruction (in
February 2021 it was withdrawn from the agenda due to the 500 amendments
tabled, which made the debate incompatible with the parliamentary
calendar).
8 Fact-finding
visit to Warsaw, 17-18 November 2021
52. On 17 and 18 November 2021
I conducted a fact-finding visit to Poland. I would like to thank
the Polish delegation to the Assembly for their support, all the
more so as several other visits from international organisations
and monitoring bodies were being planned or held, due to the on-going
crisis at the border with Belarus.
53. The situation of people speaking out for the right to abort
in Poland is dire, against a backdrop of increasingly tight restrictions
of access to abortion care. A ruling of the Polish Constitutional
Court of 22 October 2020 stated that the part of the abortion law
of 1993 permitting terminations in case of likely irreversible impairment
of the foetus or of an incurable illness threatening its life is
unconstitutional. Only two grounds making abortion permissible remain,
namely when the pregnancy results from a crime, such as rape, and
when it constitutes a threat to the woman’s life or health. As severe
malformation of the foetus was the cause of almost all interruptions
of pregnancy in Poland before the Court ruling, the latter was viewed
by many as a
de facto ban
to abortion. On 11 November 2021, hardly one week before my visit,
the European Parliament voted on
Resolution
2021/2925(RSP), tellingly titled “The first anniversary of the de facto
abortion ban in Poland”, which denounces the negative impact of
the ruling of the Supreme Court. The resolution indicates among
other things that “the constitutionality of Polish laws can no longer
be effectively guaranteed in Poland” due to several legislative
changes on the functioning of the Supreme Court adopted in 2015
and 2016 “and thus the legality of the ruling of 22 October 2020
is questionable”.
54. The ruling triggered large protests, with rallies in Warsaw
and most other Polish cities and towns, which, according to civil
society and independent media sources, led to a variety of forms
of pressure and abuses. Protesters faced disproportionate reactions
from police forces, often amounting to actual violence, and a large number
of them were detained. In most cases they were charged of petty
crimes and then released. However, Marta Lempart, an activist who
took part in a hearing with our committee in February 2021, was
charged with organising demonstrations in breach of Covid-related
restrictions and faces up to eight years in prison. In a public
statement issued on 20 November 2020, Amnesty International detailed
a range of human rights violations that reportedly took place during
or in the aftermath of the protests, calling on the Polish authorities “to
uphold the right to freedom of peaceful assembly and put an end
to human rights violations”
Note.
55. According to several of my interlocutors – both parliamentarians
and civil society representatives – young people faced particular
forms of pressure: they were kept in detention for hours, often
overnight, without the possibility of reaching out to their families,
or they were arrested during demonstrations and driven away from
their town or city and left somewhere far from home. In addition,
pressure was exerted on students not to show support for pro-choice
demonstrations at school (some were asked to remove their facemasks
with the symbol of the Women’s Strike and were threatened with suspension
or expulsion from their educational establishment if they did not
comply). Cases of teachers who faced retaliation for expressing
their support for the protests were also mentioned.
56. Parliamentarians from the opposition and civil society representatives
highlighted that police officers were clearly employing double standards:
manifestations such as those held on Poland’s Independence Day (11
November) with a large share of far-right and nationalist participants
and which often featured violence and vandalism, were met with impunity.
57. Politicians from the opposition face sustained forms of pressure,
intimidation, and harassment, including threats mainly delivered
online and attacks on their offices. Authorities do not protect
them adequately and when they report cases of intimidation to the
police it is usually to no avail (they are told that it is impossible
to find out the culprits). Because of this, most of them even stopped
reporting cases, but some are now considering starting to do so
again.
58. Barbara Nowacka, a fellow member of the Committee on Equality
and Non-Discrimination, shared her experience of being attacked
by the police with tear gas. While she reported the incident to
the authorities, the case has, so far, not been successfully investigated.
A recurring testimony from the people I met was that reporting criminal
offences appears to be useless for pro-choice protesters, as no
effective follow-up is given by police and law enforcement authorities.
59. Additional psychological pressure is put on the Polish population
by large format banners with graphic images of dismembered foetuses
and anti-abortion slogans, often placed in the proximity of hospitals
and schools, or carried by trucks driving around cities. Other banners
carry the image of pro-choice activists, which is highly intimidating
towards them. Students have in some cases reacted to this form of
harassment by placing mocking slogans on the banners (for instance
covering the original writing “abortion kills” with a label reading “smoking
kills”). Younger children, however, should be protected from the
exposure to shocking images and political manipulation. The same
applies to people seeking abortion care. Moreover, Poland’s draconian abortion
law impose prison sentences on those assisting women who terminate
their pregnancy, including doctors, partners and family members,
as a commentary published by the Heinrich Böll Foundation indicates, adding
that “there is already a case of a woman’s boyfriend being sentenced
to six months in prison for having driven his girlfriend to hospital
after she started bleeding heavily from taking an abortion pill
at home”.
Note
60. Members of the Law and Justice Party told me that they also
faced harassment and intimidation by political opponents and that
protesters taking part in pro-choice rallies used offensive and
obscene language. They did not report these cases, they explained,
as they did not mean to exacerbate the situation. Ms Anna Milchanowska,
of the Law and Justice Party, told me that she did not report the
protests being held in front of her home. However, she decided to
report to the police the trespassing of the cemetery where her parents
rest, as she found that a line had been crossed. I can only agree
with Ms Milchanowska that political controversy should never translate
into violence and personal attacks, much less on the family of a
politician, and I hope that the incident will be investigated.
61. The tragic case of a 30-year-old woman, identified in the
press by her first name, Izabela, who died due to the failure of
doctors to intervene surgically in spite of the severe complications
of her pregnancy, is particularly alarming. In her messages from
the hospital, Izabela wrote that, due to the new regulations on abortion,
doctors waited for the foetus to die. In addition to a tragic loss
that could probably have been avoided, this situation shows that
doctors are now exposed to the risk of criminal pursuit both in
cases where they perform an interruption of pregnancy, as this might
not be considered justified under the current framework, and in
cases where they do not intervene, if this leads to the pregnant
woman’s death. The unexpected, highly problematic consequences of
this situation is that some doctors refuse to assist pregnant persons,
for fear of the legal risks that a difficult pregnancy would imply,
and that some people, knowing that they may be left without assistance
and in severe danger, avoid becoming pregnant.
62. It is disheartening to observe how the attacks on the Rule
of Law often decried in the last years by international bodies and
other observers have a real impact on the lives of citizens and
their enjoyment of their fundamental rights. In January 2020, the
Assembly voted by an overwhelming majority to open a monitoring procedure
for Poland over the functioning of its democratic institutions and
the rule of law. The adopted resolution states that recent reforms
of the justice systems have severely damaged the independence of
the judiciary and the rule of law. It is worth noting that two of
the judges of the Constitutional Court who voted in favour of the
ruling of 22 October 2020 on the abortion law were former members
of parliament for the ruling Law and Justice Party.
63. An additional source of pressure on human rights defenders,
particularly those who promote access to sexual and reproductive
rights, is the activity of organisations presenting themselves as
legal think-tanks, such as the “Foundation Ordo Iuris Institute
for Legal Culture”, which heavily interfere with sexual and reproductive rights
issues in Poland. In its Intelligence briefing of 24 March 2021,
international NGO European Parliamentary Foundation for Sexual and
Reproductive Rights (EPF) refers to Ordo Iuris as “the organisation
that stands behind the latest de-facto abortion ban in Poland”.
The briefing indicates that Ordo Iuris lawyers also drafted the
text of the 2016 bill to ban abortion, along with a bill aiming
to criminalise comprehensive sexuality education and another that
restricted in-vitro fertilisation; in addition, they provided arguments
for leaving the Istanbul Convention and prepared a charter that
created Poland’s “LGBT-free zones”. Besides this activism, which
promotes a progressive erosion of women’s rights in Poland and in
some cases supports blatant violations of human rights standards,
such as the aforementioned LGBT-free zones, Ordo Iuris attacks human rights
defenders and members of civil society organisations directly, by
reporting alleged criminal offenses. This is the case with Agata
Bzdyń of the Abortion Dream Team, whom I met in Warsaw, who was
sued by Ordo Iuris, and EPF staff member Remigiusz Bak, who was
reported for defamation for a tweet criticising the foundation.
Mr Bak was cleared by a Polish court and awarded compensation, which
he donated to a Polish civil society organisation.
64. It is worth adding that in the wake of the Constitutional
Court verdict of October 2020, the Ordo Iuris Foundation sent a
memorandum to Polish hospitals on how to interpret and apply the
ruling. Such interference was apparently not countered by the Ministry
of Health, which did not publish information on the interpretation of
the judicial ruling. The representative of the Ministry whom I met
in Poland stated that she was not aware of the Ordo Iuris memorandum.
65. Meeting with civil society organisations and independent legal
experts, I was told that human rights defenders are being silenced
through constant threats to their safety, their future and their
career. Lawyers are vulnerable to aggressive tax controls that may
be conducted as a means of intimidation. Even access to the legal
profession is at stake, as it is subject to the control of the Ministry
of Justice. All those who defend women’s rights are constantly put
under pressure, attacked by politicians and by state-owned media.
They face mental health consequences and are at risk of burn-out.
One of the persons I met with was going to take a pause from her
current occupation and move abroad for these reasons. I wish to
pay tribute to the courage of these persons, who pay a considerable
personal cost for their commitment to human rights and the help
they provide to Polish women. I am convinced that the international
community should step up efforts to support these individuals and
organisations.
66. The European Parliament resolution on “The first anniversary
of the de facto abortion ban in Poland”, which deals first and foremost
with women’s access to abortion care, also contains timely and important provisions
on human right defenders that are relevant to this report. The text
“condemns the increasingly hostile and violent environment for WHRDs
[women human rights defenders] in Poland, and calls on the Polish authorities
to guarantee [their] right to express themselves publicly, including
when they oppose government policy, without fear of repercussions
or threats; calls on the Polish authorities to urgently protect
the WHRDs who have been targeted, to investigate the threats against
them and to hold those responsible to account; urges the Polish
Government to counter the abusive misinformation campaigns targeting
WHRDs; stresses that many WHRDs in Poland are now facing criminal
charges for their role in the protests against the bill as a result
of the COVID-19 restrictions imposed at that time; urges the Polish
Government to refrain from bringing politically motivated criminal
charges against WHRDs;”. The text then “strongly condemns the excessive
and disproportionate use of force and violence against protesters,
including activists and women’s rights organisations, by the law
enforcement authorities and by non-state actors such as far-right
nationalist groups; calls on the Polish authorities to ensure that
those who attack protesters are held accountable for their actions;”.
The resolution also “condemns the hostile rhetoric used by Polish
government officials against WHRDs and other critics of government
policies, and urges the Commission to address this and support the activists
both politically and financially”. I cannot but share the principles
and aims of this adopted text. The present report conveys similar
indications and I trust the Assembly will also support them, by
adopting the draft resolution stemming from it.
9 Conclusions
67. This report originated from
a concern over various forms of harassment and pressure faced by
human rights defenders, healthcare professionals and pregnant people
in relation to abortion care. Throughout the preparation of the
report, such concern proved well founded, with civil society organisations
and independent experts sharing information on cases of harassment
in a large number of Council of Europe member States, mostly perpetrated
by anti-choice individuals and organisations. It emerged that intimidation
and abuse were in some cases particularly serious and included death
threats, attacks on the offices of non-governmental organisations
and smear campaigns both on- and offline.
68. In addition, human rights violations allegedly took place
at the hand of public authorities, in the form of police violence,
arbitrary arrests of protestors and criminal proceedings that were
deemed by many to be disproportionate. Victims of intimidation included
additional groups such as students supporting the protests, for
instance in Poland. While not all of these allegations are confirmed,
they remain concerning and call for adequate scrutiny at national
and international levels.
69. It also appeared that anti-choice pressure is practiced in
more subtle ways, such as spreading inaccurate information on pregnancy
and abortion or promoting conscientious objection to abortion by
hindering the career progress of non-objector healthcare professionals.
Abusive or stigmatising rhetoric used by politicians and other public
figures is also part of this picture.
70. Harassment of individuals, whether human rights defenders,
politicians, healthcare professionals or people seeking abortion,
may be considered as part of a wider attack on women’s rights that
has affected our legal systems and societies for years and should
be countered. It is crucial to protect the individuals I referred to
from harassment. It is equally important to ensure that pregnant
people have access to abortion wherever the law stipulates this
right. This is both relevant to protecting human rights, and protecting
the certainty of law, which is one of the main elements of the rule
of law.
71. It is therefore necessary on one hand to investigate and prosecute
individual cases of harassment, and on the other hand to adopt effective
legislation and policies to counter the broader issue. These include
“buffer zones”, where anti-choice protests and awareness-raising
activities are not allowed, mainly in and around healthcare facilities,
which have been enforced in several Council of Europe member States,
and a general prohibition of activities aiming to obstruct the access
to abortion rights.
72. With this report, and the draft resolution attached, I endeavoured
to raise awareness and to show ways forward in protecting and consolidating
women’s rights, which are the target of consistent attacks by regressive, even
anti-democratic forces across Europe.
73. Against this backdrop, I believe that much work remains to
be done in the area of sexual and reproductive health and rights.
I am also convinced, based on the findings of this report, that
the Assembly should work further on the protection of human rights
defenders from online hate speech. This matter is highly topical,
and the Assembly is best placed to tackle it from a human rights
perspective and safeguarding freedom of expression.
