In Poland, abortion is only legal if the pregnancy endangers the woman’s life or health, or if it results from a criminal act such as rape or incest. In two recent cases, A.R. v. POLAND (2025) and M.L. v. POLAND (2023) the European Court of Human Rights (the “Court”), has taken a cautious approach to advancing substantive protection for abortion rights under the Convention with deference for the margin of appreciation, while still affirming that state discretion is not unlimited. However, one of the most interesting and rights-protecting aspects of these rulings has been the Court’s consideration of temporal effects on the lived realities of complainants.

In M.L. v. POLAND, the Court examined an abortion rights case from a procedural standpoint, emphasizing the rule of law shortcomings of the state, since there was an improper/irregular election of three of the Constitutional Court judges. The Court at that time avoided a substantive analysis of the abortion ban, declining to find that the Article 8 right to family and private life protects a universal right to abortion. I would also argue that that in M.L. v. POLAND, the Court did not fully consider the applicant’s vulnerability by rejecting the application of Article 3 prohibition on torture and inhuman or degrading treatment (§73; 80), resulting in decreased scrutiny of Polish authorities. This approach is regrettable insofar as it clearly demonstrates the Court’s tendency to address access to abortion primarily within the framework of Article 8.

In A. R. v. Poland, there was a significant deviation from the ordinary temporal regime due to a three-month gap between when the Constitutional Court ruled that a right to abortion in the case of fetal abnormality is unconstitutional and when that ruling would be published and formally take effect. This gap raised doubts about the predictability of a ruling by a constitutional court, especially since the “law” in question is a decision of a constitutional tribunal to invalidate a legislative provision.

The European Court’s reasoning explored the temporal effects of constitutional court decisions and sheds light on the applicant’s three-month uncertainty between the adoption of the operative part of the Constitutional Court’s decision and the publication of its reasoning. Specifically, the Court analyzed the applicant’s complaint that the uncertainty created by the publication of the Constitutional Court’s judgment before her scheduled appointment for an abortion prevented her from obtaining an abortion due to fetal anomaly (§115).

The Helsinki Foundation for Human Rights confirmed that the Constitutional Court’s ruling of 22 October 2020 had already affected access to legal abortion in Poland even before its publication in the Official Gazette (§101). This data allowed the Court to examine how the postponement of the publication of a constitutional ruling can infringe upon the rights of individuals guaranteed by the Convention, even prior to it taking formal effect.

According to the Court, “it was expected that the judgment would be published at any time after it was delivered” (§ 118). The Court recognized that the delayed publication of constitutional judgments was an integral part of established Polish practice, but it also emphasized how the “unpublished” judgment affected the applicant and other patients in similar situations in Poland, effectively restricting their ability to obtain an abortion (§ 119), thus setting aside the formal legal effect and focusing on the practical context. Indeed, the applicant “found herself in a situation of ambiguity regarding her right to a legal abortion due to fetal anomalies” (§ 119).

Following the pronouncement of the judgment, but before its publication, some hospitals had already refused to perform abortions in cases of fetal malformation (§ 118). The factual context allows the Court to be flexible in its assessment of the temporal evolution of Constitutional Court judgments in future cases. Indeed, the fact that the hospitals concerned by the A.R. judgment reacted restrictively even before its formal publication demonstrates the public perception of this judgment and its concrete infringement of individual rights. In other words, in the future, when the Court is faced with an unjustified delay in implementing a Constitutional Court judgment expanding rights, it could infer the actual impact on individual rights from the behaviour of public institutions and private actors after the judgment was pronounced but before its “official” publication or entry into force.

The Court found that the ambiguity created by the adoption of an unpublished decision forced the applicant to travel abroad to obtain an abortion, which “undoubtedly caused her significant additional stress” (§ 119).

The examination of the modulation of the temporal effects of the Constitutional Court’s decision in the case of A.R. v. Poland could serve as a reference for the future. Potential applicants who face situations where the constitutional courts of their State make decisions directly affecting their rights can clearly claim that manipulating the temporal effects of these decisions also restricts the rights of individuals in an unpredictable or abusive manner. In such cases, rights delayed are truly rights denied.