FREEDOM OF CONSCIENCE
FREEDOM OF CONSCIENCE IS a human right laid down in several conventions, including the European Convention on Human Rights, Article 9. No one shall be deprived of his/her ability to work in his/her profession because that person by ethical, moral or religious reasons can not perform a task that extinguishes human life at its beginning or in the final stages. Restrictions on the right to freedom of conscience must be supported by law and be necessary in a democratic society.
THE CASE OF ELLINOR GRIMMARK
ELLINOR GRIMMARK has been denied work as a midwife at several hospitals in Region Jönköping because she, due to her conscience and her religious convictions, can not perform abortions or any act which extinguishes human life. She also received employment at a women’s clinic where she would be granted freedom of conscience, but this job was withdrawn before she assumed the position. Ellinor Grimmark has filed a lawsuit against Region Jönköping and claimed damages for violation of the European Convention on Human Rights and compensation for discrimination.
ELLINOR GRIMMARK sought employment to work with childbirth and postnatal care, not to work at a gynecological department. Abortion services are usually planned and are only a very limited part of the work at a women´s clinic. The late abortions, performed in the maternity ward, represent only one percent of all abortions and are always planned. According to the case law of the European Court of Human Rights, women’s Clinics have an obligation to organize health care so that the freedom of conscience of employees can be respected while women receive the care they have a legal right to. This question concerns the organization of work and exceptions are constantly made for individuals who, due to mental and physical barriers, can not perform different tasks. Ellinor Grimmark can perform all tasks surrounding the care of a woman, but does not want to participate in acts that extinguish human life. The arguments in support of Ellinor Grimmark include the following:
THE EUROPEAN CONVENTION ON HUMAN RIGHTS, WHICH IS SWEDISH LAW since 1995, Article 9 gives everyone the right to freedom of conscience and this article may be restricted only if it is supported by law and necessary in a democratic society.
Is there any support in Swedish law for restricting Ellinor Grimmark’s right to work within her profession in midwifery?
– The European Convention on Human Rights, which is Swedish law since 1995, Article 9 gives everyone the right to freedom of conscience and the European Court´s case law is directly applicable in the Swedish legal system.
– Resolution 1763 (2010) of the Council of Europe stipulates that medical personnel are entitled to freedom of conscience in matters relating to termination of human life. Resolutions are not binding upon member states but give guidance to the European Court when it is examining a case.
– The Abortion Act Section 5 (Prop.1974:70 s 76 ff) stipulates that only doctors
– The preparatory work of the Abortion Act (Prop.1974:70 s 76 ff) also stipulates that freedom of conscience shall be granted to healthcare professionals who can not participate in abortion for moral or religious reasons are authorized to perform abortions in Sweden.
– Labour law principles can not, in contravention to applicable law (see above) imply that a midwife must perform abortions.
Is it necessary in a democratic society to deprive Ellinor Grimmark her opportunity to work as a midwife in Sweden ?
There are other midwives who can perform the tasks Ellinor Grimmark can not perform. For the County (the employer) this is a question about division of work. By previous practice it appears that it is possible to divide the work in such a way, if there is any will to do so.
Since the adoption of the Abortion Act, Swedish hospitals have in different workplaces given individual doctors and midwives freedom of conscience. Three of them have testified in Ellinor Grimmark’s trial in the District Court of Jönköping. These testimonies show that it is possible to provide care that is proscribed by law while, at the same time, individuals are granted freedom of conscience .
Given the acute shortage of midwives in Sweden, the County should, to meet the requirements of good care and patient safety, hire Ellinor Grimmark as a midwife at the childbirth and maternity ward.
When it comes to abortions all EU countries and virtually all member states of the Council of Europe, including Norway and Denmark, have a general conscience clause and / or specific regulations regarding freedom of conscience for healthcare professionals. All countries that have laws on the right to euthanasia also have a conscience clause. This means that it is difficult for the County to state that it is necessary in a democratic society to deny Ellinor Grimmark work. Sweden’s margin of appreciation also decreases when there is consensus among the other European countries.
Pluralism and dissent on ethical issues is an asset in healthcare, as well as in society in general, and strengthens democracy. A corresponding proportion of patients, also taxpayers, in Swedish society share Ellinor Grimmark’s ethical and/or religious beliefs.
International medical codes of ethics establish the right to freedom of conscience, such as the International Code of Ethics for Midwives, documents from the WHO and the International Code for Gynecologists (FIGO).
TODAY ELLINOR GRIMARK is forced to commute to Norway, where midwives and doctors who wish to, are granted freedom of conscience. This is a waste of resources and a shortage in democracy.