On 17 September 2015, the ECLJ has submitted an amicus curiae brief to the District Court of Jönköping (Sweden) in a case between a midwife and the health administration (Jönköpings Tingsrätt (District Court of Jönköping), Ellinor Grimmark ./. Region Jönköpings län (Regionen), Case nr T 1781-14). This midwife lost her job because she refused to participate in abortions. Conscientious objection of medical staff is not recognised in Sweden. Therefore, doctors and midwives are compelled to perform abortions until 18 weeks, whatever the reason, even if the only motive is the sex of the child.
The ECLJ recalled that international treaties and case-law put freedom of conscience and religion at the very core of human rights. The right to conscientious objection, that is to say the right no to be compelled to act against the dictates of one’s conscience, is a necessary corollary of the effective exercise of the right to freedom of conscience. The United Nations Human Rights Committee repeatedly affirmed that the right to conscientious objection is inherent in the right to freedom of conscience. Even if it firstly aimed at objection to military service, there is no doubt that it applies in the medical area when human life is at stake, especially in cases of abortion and euthanasia.
The European Court of Human Rights never impugns the right to conscientious objection in the medical area and requires States to establish mechanisms allowing to ensure effective respect of the right to freedom of conscience and access to legal medical services. The Court calls for reconciliation between concurring rights and interests. The Parliamentary Assembly of the Council of Europe has strongly asserted the right of medical staff to conscientious objection and the importance of accepting people of various beliefs without discrimination in the workplace. The PACE recommends accommodations allowing everybody to serve society while respecting their own convictions. European Union law also prohibits discriminations in employment based on religion or belief.
The ECLJ underlines that, even if some States may include abortion in legal medical care, there is no internationally recognised right to abortion. Abortion is not a constituent part of the profession of midwife. Moreover, both the code of ethics of the International Confederation of Midwifes and that of the International Federation of Obstetricians and Gynaecologists recognise the right to conscientious objection.
Therefore, the ECLJ considers that the sanctions inflicted on Swedish midwives and doctors who refuse to perform abortions constitute a breach of their right to freedom of conscience and discrimination based on religion or belief. Moreover they are disproportionate since simple organisation measures would reconcile respect for the fundamental right to freedom of conscience with the functioning of services.