Two Swedish midwives, fully licensed and competent, are excluded from working in the Swedish health care system because the Swedish authorities, through the County Councils of Jönköping and Sörmland, refuse to allow freedom of conscience in their workplace. Two lawsuits have been filed by Scandinavian Human Rights Lawyers and Swedish courts now have to examine if the authorities have violated international law on human rights by denying these midwives work and withdrawing the jobs that had been agreed between the parties. The midwives want to take their case all the way to the European Court of Human Rights if necessary; they believe that their wish not to assist with abortions is a manifestation of their right to conscience and religion under Article 9 of the European Convention on Human Rights (ECHR).
The following article will give more insight in the background and legal arguments surrounding the cases.
3.3 Limitations of the right to freedom of conscience
The restrictions of the right of individuals to practice their rights under Article 9 ECHR must meet three prerequisites. The limitations shall:
(1) be prescribed by law;
(2) be necessary;
(3) be proportionate.
3.3.1 Are the limitations and restrictions set out by Swedish health care authorities regarding prescribed by law?
The Swedish Abortion Act (1974:595)17 came into force on 1 January 1975 and gives women so called “free” abortion until week 18 in its current wording. There is no need to for special authorization to have an abortion within this time limit. Between week 18 and 22, it is possible to have an abortion after authorization from the Swedish Health Board (Swe. Socialstyrelsen), a so-called late term abortion. Many such cases include children with disabilities. However, such abortions can also be authorized due to other reasons, such as social issues and the mother’s psychological health. It is even possible, in limited circumstances, to have an abortion later than week 22, but this has become more restricted in recent years.
The Abortion Act (para 5) states that only licensed physicians are allowed to perform abortions. But since the abortion pills were introduced in the 1990´s, midwives have been given the tasks in practice, in spite of the wording of and the lack of support in the Abortion Act. Regarding the right to freedom of conscience for health care workers, it is not explicitly confirmed in the law. However, in the preparatory works to the Act (which are of significant importance for the interpretation of the law and the purposes behind the law in the Swedish legal system) the right is confirmed and upheld:
”Regarding the issue of the obligation of medical professionals to assist in abortion, this has been mentioned by several of the consultative bodies which throughout their opinions highlight the importance of showing regard to health professional’s wishes not to assist in abortion related work. According to para 13-15 of the Medical Decree (Swe. Sjukvårdskungörelsen, 1972:676) the responsibility of the allocation of tasks primarily is assigned the clinical and department managers. When organizing the work between the staff they should, within health care just as well as in other parts of society, as far as possible have regard to the interest of the staff and their prerequisites in different aspects. One should therefore in the abortion related work avoid attaching staff that, because of moral or religious reasons, do not accept such work. This is, not the least, in the interest of the woman who is having an abortion. I want to remind you that what I now stated has also been expressed in the aforementioned circular (MF 1972: 59) from the Health Board with advice and instructions concerning early abortion. I don’t find it necessary with any specific provisions regarding this at the moment.18
This statement was later repeated in a committee report.19 The right to freedom of conscience has been respected in practice at some hospitals where individual health care workers have been provided solutions in their work place and managers have accepted their ethical or religious convictions. This, however, left many medical professionals in the hands of arbitrary decisions from their managers. At some point, during 2014, it was decided centrally within the Swedish Association of Local Authorities and Regions that no new midwives should be employed with right to exception from abortion care. The Union of Midwives and the Swedish Medical Association has also taken a stand against the right to conscientious objection.20
The conclusion therefore is that there is no legal support for restricting the freedom of conscience of the midwives Ellinor Grimmark or Linda Steen. The legal framework rather suggests the opposite; that freedom of conscience should be respected and that Ellinor Grimmark and Linda Steen had reasonable grounds to believe that their conscience would be respected. The European Convention, case law from the European Court, the preparatory works of the Abortion Act, as well as practice within the County Council, all show that there is only legal support to allow freedom of conscience for medical professionals in Sweden. The Abortion Act states that only licensed doctors are allowed to perform abortions, which makes it difficult to argue that employment obligations requires midwives to perform abortions.
3.3.2 Are the limitations set out by Swedish authorities necessary in a democratic society and proportionate?
Freedom of conscience is a more or less accepted practice within the medical profession across Europe. Sweden is the only country within the EU which does not have either a general conscience provision or specific laws protecting medical staff. A country close to Sweden is Norway, which has provided freedom of conscience for midwives and doctors ever since its own Abortion Act was passed.
In the light of this, it is interesting that the Swedish Counties which have denied midwives Grimmark and Steen their right to freedom of conscience argue that it is impossible to do so because abortions are such an “integrated part” of all the women’s clinics. Considering there are many democratic countries in Europe who are able to provide freedom of conscience, this position has no support in practice.
The opposing interests that the County Council has presented in the Swedish midwife cases are mainly attributable to scheduling, workforce management, staff access and allocation of tasks. Adjusting schedules to meet the individual needs of health care workers is done on a regular basis and for different reasons. Any claim that the patient’s rights would be curtailed if Swedish midwives were granted freedom of conscience is purely hypothetical and abstract. Considering that the majority of Council of Europe member states manage to balance the patient’s right to health care and health care workers right to freedom of conscience in an adequate manner, it is highly likely that also Swedish health care can also be organized in such a way that these rights can be exercised simultaneously. This is all the more likely considering the fact that managers at different County hospitals in Sweden have allowed medical professionals conscientious objection in their work place until recent years. According to the European Court and the Parliamentary Assembly of the Council of Europe, it is in fact the duty of member states to organize their health care in such a way that these interests can be balanced.21
Many Counties in Sweden suffer from a great shortage of midwives, and there is therefore a real threat to patient safety in maternity care in Sweden, which is an important fact to be considered in evaluating the proportionality of the Swedish position. Ellinor Grimmark and Linda Steen argue that the County Councils’ violations of their right to freedom of conscience threatens patient safety in maternity care. The exclusion of qualified midwives, such as Ellinor Grimmark and Linda Steen, constitutes a restriction of the patients’ right to safe and adequate health care. It also constitutes a restriction of the rights of other staff in maternity care. Denying Grimmark and Steen opportunity to work with maternity care inevitably means that other individuals, with beliefs that prevent them from participating in abortion, will be excluded from training as midwives. The violation therefore systematically affects both current and future conditions for persons who work or want to work as midwives.
In an Italian case that was examined by the European Committee of Social Rights (ECSR), IPPF-EN against Italy22, the Committee concluded that the State is responsible for providing organizational access to legally established services in the health sector and to take appropriate measures to ensure that citizens have access to doctors and other health professionals. However, in the complaint FAFCE and others v. Sweden,23 the Committee found that, contrary to the situation in Italy, for Article 11 (which protects the right to health and health care) to be applicable, it must be shown that women’s right to health and health care was affected in the same way as in the case IPPF-EN v. Italy. In other words, there is nothing to indicate that Sweden is anywhere near having difficulties in providing health care because of conscience-related issues. The factual situation suggests otherwise- Swedish health care authorities are having difficulty providing safe maternity care because they are excluding midwifes that invoke freedom of conscience. The conclusion is therefore that the limitations set out by Swedish authorities are neither necessary in a democratic society, nor are they proportionate.
18 Prop. 1974:70 p 76 ff, see also SoU 1974:20 p 40
19 Committee report of the Social Council (Swe. Socialutskottets betänkande) 1983/84:SoU3 concerning certain abortion issues, aktbilaga 26-28
20 See article ”The Right to Abortion is threatened by freedom of conscience” (Swe. Aborträtten hotas av samvetsfrihet), Aftonbladet, 12 Nov. 2015, signed by respresentatives of the Association of Midwives, the Medical Association, the Association of Doctors and others.
21 P and S v Poland, ECtHR, case 57375/08, 30 Oct. 2012, RR v Poland, ECtHR, case 27617/04, 28 Nov 2011 and PACE resolution 1763 (2010).
22 ECSR, IPPF-EN v. Italy, 87/2012, 10 Sept, 2013.
23 ECSR, FAFCE and others v. Sweden 99/2013 17 March 2015.
Ruth Nordström, General Councel and Chairman for Scandinavian Human Rights Lawyers