The following article will give more insight in the background and legal arguments surrounding the cases.
1.2 Legal actions taken by Ellinor Grimmark
In the beginning of 2014 Ellinor Grimmark filed a complaint to the Swedish Discrimination Ombudsman for discrimination by the County Council of Jönköping (Swe. Region Jönköping) because of
her religion.6 Grimmark stated that the terms of employment required every midwife to perform abortions in fact indirectly discriminated against her because of her religion. On April 10, 2014, the Ombudsman announced the decision to close the case. The Ombudsman found that Ellinor Grimmark’s statement, that she did not wish to assist in abortions, was in fact a manifestation of religious faith that is protected by article 9 in the European Convention of Human Rights, but found that the limitations from the County Council had been proportionate and necessary in light of women’s right to abortion.
Ellinor Grimmark filed a lawsuit against the County Council of Jönköping on 21 May, 2014, claiming damages for a violation of her right to freedom of conscience and freedom of religion guaranteed in Article 9 of the European Convention of Human Rights (ECHR). She also claimed damages for discrimination (Swe. diskrimineringsersättning) based on the Discrimination Act. The European Convention on Human Rights has been incorporated into the Swedish legal system since 1995, but there is no legal provision to enable individuals to receive punitive damages directly based on the European Convention. However, the Supreme Court of Sweden has through its case law developed the doctrine that if there is no effective domestic remedy when a Convention right has been violated, damages can be awarded directly pursuant to the Convention right without any specific legal provision apart from the law on compensation for damages.7 This doctrine was the foundation for Ellinor Grimmark’s claim for damages based on the European Convention. The District Court of Jönköping however ruled against Grimmark and found that the Discrimination Act provided an effective domestic remedy regarding the claims about violations against article 9 of the ECHR, and never examined the case law of the European Court. Grimmark was ordered to pay the legal costs of the defendant, the County Council, which was in total more than 109 000 USD. Ellinor Grimmark has now appealed the ruling and the case is now to be examined by the Swedish Labor Court, which is the last instance of appeal in Sweden.
2. Case of midwife Linda Steen
2.1 Circumstances of the case
Linda Steen is a trained nurse, but in the years 2014-2015 she started specializing in midwifery at the University of Linköping. She was approved in all required aspects and
received her license to practice as a midwife on July 14, 2015. In January 2014, Linda Steen was called to a job interview where she told the person interviewing her that she wished to work as a midwife at the maternity ward. The midwife who interviewed her confirmed that the clinic were in great need of midwives on the maternity ward. There were no discussions about work in the gynecological department, and abortion was never any subject of discussion during the interview.
On February 3, 2014 Linda Steen obtained a contract of employment8 at the Women’s clinic in Nyköping from the County Council. Because of the great shortage on midwives, the County Council paid a student salary during the studies and training. In return Steen undertook to work for two years at the Women’s Clinic in Nyköping after completing her studies.
Linda Steen is of the conviction that life begins at conception and that every life is worth protecting. Her conviction is founded on her own conscience and her religious (Christian) faith.
In Sweden, approximately one percent of all abortions are late term abortions, performed after week 18. These abortions, where a child is delivered prematurely and left to die, are normally performed by midwives at the maternity ward.
At the time of the interview, Linda Steen was unaware that late abortions were performed at the maternity ward in Sweden, and therefore believed that if she could work in the maternity ward she would avoid work related to abortions. During her studies, however, Steen learned that late-term abortions, which represent one percent of all abortions in Sweden, were performed at the maternity ward. Because these abortions were always planned, she still thought that she would be able to avoid them. She also had the impression from statements of the Swedish Minister of Health that issues concerning freedom of conscience in the medical field would be resolved at the work Place.
On March 16, 2015 Linda Steen sent an email to the manager of the maternity ward in Nyköping, and explained her position that she could not assist in ending a human life. On March 17, Linda Steen received a first reply via email from the manager stating: ”This was a precarious matter. I’ll take your letter to the leadership meeting today. As you know, or have noticed, we don’t have any clause regarding abortion, but we believe that a midwife should have the knowledge to help all women in pregnancy, desired or undesired. The causes of pregnancy, we should not judge about, but the woman’s choice is primary.“
Later the same day, Linda Steen received another e-mail from the manager stating that they had discussed her letter in the management team meeting and that ”it is not our policy or our approach to leave any opening for a conscience clause. We neither have the ability or intention to work with this exception. It is very sad that you have almost completed your midwifery training without coming to this insight. As you wrote, the outcome in court is that we do not have any clause which by law can restrict your work to avoid abortions”. And the manager further stated: ”I’m sorry, but unless you’re willing to work under these conditions, we cannot hire you.” The County Council said that she would have to work in the gynecological department, which was linked to the maternity ward.
Linda Steen appealed to the management via e-mail to reconsider but was told that ”we simply have no place for you in our organization”. Steen was told to contact the staff officer of the County Council so that they could work out how they should handle her employment contract. The officer said that the situation was Steen’s own fault, and that it was she who had violated the contract, while Linda Steen claimed the opposite. The staff officer asked why Steen had pursued the education at all. As Steen was worried that she might be required to repay her student salary, and because she wanted to fulfill her part of the contract, she sent an email to the manager of the Women’s Clinic at Mälarsjukhuset, in Eskilstuna, to ask if they needed a midwife who only wanted to work in the maternity ward. Steen’s plan was that she might be able to fulfill her part of the contract of employment since the hospitals were in the same county.
Initially she received a positive response from the manager in Eskilstuna, even after making clear that she did not want to work with abortions but in the maternity ward. However, when the first officer in Nyköping heard of this, she stated on the phone with Linda Steen: ”No, that’s not true! The Local County Council cannot recruit midwives who cannot work with abortion care.” After this, the first officer in Nyköping contacted her colleagues in Eskilstuna, which led to the cancelation of the interview that Linda Steen been called to on 10 April, and stating that the County Council had a “common policy of not hiring midwives who could not perform abortions”.
Later on, Steen got hold of a new staff officer, who let Linda Steen finish her education peacefully and granted early summer vacation, and then parental leave until September 30, 2015 so she would have time to think. However, on May 5, 2015 she was transferred back to her former contract as a nurse at the health center in Malmköping without her consent and in breach of the contract of employment she had obtained in February of 2014. On the same day, Steen got an email from the manager of the maternity ward at the Women’s Clinic in Nyköping who wrote: ”we were pleased to receive you, but since you expressed views that we cannot support we cannot employ you. Good luck!” During a meeting in August 2015, the staff officer told Linda Steen that the issue of freedom of conscience had been up for debate in the Swedish Association of Local Authorities and Regions (Swe. Sveriges kommuner och landsting, SKL), and that it was decided centrally that no one would be able to work with conscientious objections.
On August 25, Steen once more sent an email to the manager where she asked if there was any opportunity for her to work at the Women’s Clinic in Nyköping without having to perform abortions. The manager confirmed that it was not possible, and stated: ”unfortunately, there are no changed circumstances to prepare you to work at our clinic as required. Our approach to the conscience clause remains. We can offer you work but you must work with all midwifery tasks assigned to you within the clinic without exception. ”
2.2 Legal actions taken by Linda Steen
Linda Steen filed a lawsuit against the County Council of Sörmland (Swe. Sörmlands landsting) on 4 September 2015. She claims damages from the County Council for violating her right to freedom of religion and freedom of conscience under Article 9 of the ECHR. The fact that her employment as midwife requires her to perform abortions violates her rights under Article 9.
6 Swedish Discrimination Ombudsman (www.do.se), cases 2014/12, 2014/226 and 2014/227, 10 April 2014.
7 See case law from the Swedish Supreme Court e.g. NJA 2007 s 295 and NJA 2009 s 463.
8 The County Council has so far denied that it was an employment contract in the legal proceedings.
Ruth Nordström, Senior Legal Counsel for Scandinavian Human Rights Lawyers