Testing the Margin of Appreciation: Therapeutic Abortion, Reproductive ‘Rights’ and the Intriguing Case of Tysiąc v. Poland

Abstract:

In Tysiąc v. Poland (2007) the Strasbourg Court ruled in favour of the applicant (who had been denied access to a lawful therapeutic abortion), finding that Poland had failed to comply with its positive obligations to safeguard the applicant's right to effective respect for her private life under Article 8.

Exploring this controversial judgment, the author assesses the claim that Tysiąc marks a 'radical shift' on the part of the Court in creating a 'right to abortion'. The author argues that while Tysiąc makes an important addition to abortion jurisprudence, the notion it founds such a 'right' greatly overstates the legal significance of this case.