Abortion Lawfare and the Margin of Appreciation in the ECtHR Jurisprudence on Poland

Abstract This article examines the legal device known as the margin of appreciation at the European Court of Human Rights (ECtHR). To critically evaluate its modus operandi, we first explore scholarly literature on its functioning to then analyse the margin’s application in abortion-related jurisprudence. By relying on the framework of reproductive justice, we present three objections to the doctrine. First, spurious incrementalism addresses individualised burdens of standardised human rights procedures, which place disproportionate procedural and evidentiary constraints onto applicants and reinforce prevailing injustices. Second, politicised presentism explores the normative prioritisation of state representatives, which entrenches static abortion attitudes, even in the face of evolving societal views or the rights of minority groups. Third, the watershed of injustices interrogates the possibility of justifying restrictive jurisdictions through market logics, which displaces access to human rights across borders, compelling citizens to engage in a form of absurd forum-shopping for reproductive health care.