The Netherlands

On behalf of the team

On 6 October 2021, the District Court of The Hague rendered judgment in the case of Clara Wichmann et al. v. the State regarding the provision of contraception free of charge.[1] Clara Wichmann et al. and the individual claimants in this case sought to have the District Court issue a declaratory judgment to the effect that the State was acting unlawfully by not reimbursing contraception for women over the age of 18. By extension, they demanded that the State reimburse contraception for these women going forward. They asserted that, as a part of sexual and reproductive rights, the right to access to contraception enjoys extensive protection and is embedded in human rights treaties, declarations and legislation. By not reimbursing contraception, women’s access to contraception is impeded in the Netherlands. In so far as access to contraception is in fact currently sufficient, this access is discriminatory in nature, as the financial burden is borne exclusively by women. This results in inequality between men and women, which is a violation of rules of a higher magnitude. The State disputed this, asserting that it was a political matter that called for a restrained assessment by the court.

The District Court held that the right of women to be free in making their sexual and reproductive choices merely implies that the government must make contraception accessible and affordable. It does not however imply that it must be provided free of charge. The same goes for Article 8 ECHR, Article 12 ICESCR and Article 12 of the UN Convention on the Elimination of all Forms of Discrimination Against Women. In addition, the District Court stated that although the current situation could result in inequality between men and women, this does not mean that such inequality is due to the State not reimbursing contraception. Finally, the District Court concluded that it was up to the legislature to respond to Clara Wichmann et al.’s and the individual claimants’ call to action.

[1]District Court of The Hague, 6 October 2021, ECLI:NL:RBDHA:2021:10737