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
3.3.3 Council of Europe resolutions
The Council of Europe Parliamentary Assembly adopted Resolution 1763, “The right to conscientious objection in lawful medical care,” in 2010 which states the following:
1. No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.
2. The Parliamentary Assembly emphasises the need to affirm the right of conscientious objection together with the responsibility of the state to ensure that patients are able to access lawful medical care in a timely manner. The Assembly is concerned that the unregulated use of conscientious objection may disproportionately affect women, notably those having low incomes or living in rural areas.
3. In the vast majority of Council of Europe member states, the practice of conscientious objection is adequately regulated. There is a comprehensive and clear legal and policy framework governing the practice of conscientious objection by healthcare providers ensuring that the interests and rights of individuals seeking legal medical services are respected, protected and fulfilled.
4. In view of member states’ obligation to ensure access to lawful medical care and to protect the right to health, as well as the obligation to ensure respect for the right of freedom of thought, conscience and religion of healthcare providers, the Assembly invites Council of Europe member states to develop comprehensive and clear regulations that define and regulate conscientious objection with regard to health and medical services, which:
4.1. guarantee the right to conscientious objection in relation to participation in the procedure in question;
4.2. ensure that patients are informed of any objection in a timely manner and referred to another healthcare provider;
4.3. ensure that patients receive appropriate treatment, in particular in cases of emergency.
This resolution was signed by Swedish representatives at the Parliamentary Assembly, but later it was stated in a Foreign Affairs Committee report that Sweden should make efforts to “change” the resolution.24
Later, in 2013, the Parliamentary Assembly adopted Resolution 1928 (Safeguarding human rights in relation to religion and belief, and protecting religious communities from violence) which states that (para 4) “The Assembly has consistently drawn attention to the importance of upholding freedom of conscience and of religion, which can only be subject to the limitations that are necessary in a democratic society” and further (para 9.10) that the states should “ensure the right to well-defined conscientious objection in relation to morally sensitive matters, such as military service or other services related to health care and education, in line also with various recommendations already adopted by the Assembly, provided that the rights of others to be free from discrimination are respected and that the access to lawful services is guaranteed”.
In 2015, the Parliamentary Assembly also adopted Resolution 2036; Tackling intolerance and discrimination in Europe with a special focus on Christians. In this resolution, the Assembly calls on the Council of Europe member States to:
(6.2) promote reasonable accommodation within the principle of indirect discrimination so as to:[…] 6.2.2. uphold freedom of conscience in the workplace while ensuring that access to services provided by law is maintained and the right of others to be free from discrimination is protected.
These Resolutions are not directly binding upon the member states of the Council of Europe, but indirectly binding because the European Court regularly refers to the Parliamentary Assembly’s resolutions and recommendations in its case law, particularly in finding evidence of consensus between member states.25 In Von Hannover v. Germany (nr 2), the European Court referred to European consensus which was illustrated by a Parliamentary Assembly Resolution from 1998.26 In the case Yumak and Sadak v. Turkey, the European Court cited both a resolutions and a recommendation from the Parliamentary Assembly, as well as stating that the Court attaches importance to the views expressed by the organs of the Council of Europe.27
24 The Foreign Affairs Committee report (Swe. Utrikesutskottet betänkande) 2010/11:UU12 p 11.
25 E.g. Baykara vs. Turkey, ECtHR, GC case 34503/97 , 12 Nov 2008, para 74, 85.
26 Von Hannover v. Germany (no 2) ECtHR, GC cases 40660/08 and 60641/08, 7 Feb 2012, para 89.
27 Yumak and Sadak v Turkey, ECtHR, GC case 10226/03, 8 July 2008, para 130.
Ruth Nordström, General Councel and Chairman for Scandinavian Human Rights Lawyers