Will Sweden Eventually Protect Conscientious Objection?

The Special Rapporteur on Freedom of Religion or Belief appointed by the Human Rights Council of the United Nations (UN), Ms Nazila Ghanea, will visit Sweden in the last quarter of 2023. As an NGO holding a special consultative status with the United Nations (ECOSOC), the ECLJ received an e-mail from the Human Rights Council stating: “We would be grateful to receive written submissions related to issues falling under the scope of the mandate” of the Special Rapporteur. We responded positively in order to help Ms. Ghanea prepare for her visit to Sweden.

This UN expert has a mandate to present recommendations for overcoming obstacles to the exercise of freedom of conscience and religion in this country. In its written submission, the ECLJ has chosen to focus on one of these obstacles: the absence of a right of conscientious objection for healthcare professionals to abortion. Unlike other European countries, Swedish healthcare professionals are bound to performing abortions up to the legal limit of 18 weeks of pregnancy. This obligation is without exception or loophole for those who disapprove of abortion and would like to practice their profession alone: providing care.

Read our written submission to the UN request on conscientious objection (in French only).

Our written submission demonstrates that forcing health care providers to perform abortions constitutes a violation of the right to freedom of conscience and religion, as well as discrimination based on belief or religion. This demonstration is based on international law, in particular the 1966 International Covenant on Civil and Political Rights (Covenant II).

International protection of conscientious objection

In international law, conscientious objection was first recognized as a duty, enshrined in Principle IV of the Nuremberg Accords (1950): “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

It is also a right, as an integral part of freedom of conscience and religion, enshrined in article 18 of Covenant II. The Human Rights Committee, whose task it is to interpret Covenant II, considers that: “while the right to manifest one’s religion or belief does not as such imply the right to refuse all obligations imposed by law, it provides certain protection [...] against being forced to act against genuinely-held religious belief.[1]”

In Europe, the most recent general human rights instrument, the Charter of Fundamental Rights of the European Union (2000), expressly recognizes the right to conscientious objection (Article 10.2).

Conscientious objection in the medical field

The right of conscientious objection applies in particular when the reprobated act consists of killing a human being. According to the Human Rights Committee, in its General Comment No. 22 (1993) on article 18: “a right of conscientious objection . . . can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.”

The chairman of the drafting group for General Comment No. 22 pointed out that the conscientious objection in question “is not an objection to military service as such, but an objection to the idea of killing other human beings.[2]”

In principle, there should be no reason for conscientious objection in the medical field: the aim of medicine is to treat patient, and no doctor can, in good conscience, refuse to treat a patient. However, the scope of medical activity has changed in recent decades, first with contraception, then with other non-therapeutic activities, such as cosmetic surgery or sterilization.

For conscientious objectors, the purpose of medicine has even been reversed with practices such as abortion and euthanasia. Because of these practices, the medical field has become the place where the question of conscientious objection is most acutely raised. The importance of conscientious objection in the medical field has been highlighted by two resolutions of the Parliamentary Assembly of the Council of Europe (PACE).[3]

The position of Heiner Bielefeldt, former UN Special Rapporteur

On March 8, 2016, Ms. Nazila Ghanea’s colleague and predecessor as UN Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, spoke strongly in favor of the right of medical personnel to refuse to participate in an abortion, at a conference organized by ECLJ at UN headquarters in Geneva.[4] In particular, he cited the case of Sweden, where a midwife severely convicted of refusing to take part in an abortion was forced into “professional exile.”

The former Special Rapporteur considered that this right, based on freedom of conscience, should benefit medical personnel directly involved in the act in question, provided that their objection is based on a strong and profound conviction. Heiner Bielefeldt pointed out that the right to conscientious objection is based not only on the right to freedom of conscience, but also on Article 1 of the Universal Declaration of Human Rights, which recognizes that every human being is “endowed with reason and conscience.”

State obligations regarding abortion

The International Convention on the Rights of the Child (1989) recognizes that “the child, by reason of his physical and mental immaturity, needs . . . appropriate legal protection, before as well as after birth.” The human embryo and foetus are recognized by the European Court of Human Rights (ECHR) as living beings which “belongs to the human race.[5]” Human life is a continuum from the moment of fertilization, as the Court of Justice of the European Union (CJEU) recalled in Oliver Brüstle v. Greenpeace e.V.[6]

As a consequence of the very nature of abortion, which kills a child before birth, this act is not protected by fundamental rights. Indeed, it is impossible to have any freedom or right over the existence of a being belonging to the human race. This is why the ECHR refuses to protect abortion as a human right.[7]

The United Nations Committees and the ECHR have developed an approach to abortion that obliges States legalizing abortion to reconcile the effective exercise of conscientious objection by health professionals with women's access to the practice, without giving precedence to either of these considerations.[8]

With regard to freedom of conscience, the ECHR has ruled that the possibility of changing jobs is not sufficient to effectively protect the right to freedom of conscience.[9] There must be a very serious reason, such as a serious infringement of the rights of others, to justify depriving someone of his or her job. A so-called right to abortion, which has no existence in international law, cannot prevail over one of the most fundamental human rights, namely freedom of conscience.

Prohibition of discrimination based on religion or belief

Covenant II prohibits discrimination based on “religion,” “opinion,” or “other status” (article 26).[10] Under international law, discrimination is said to be “direct” when “an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground,” such as his or her religion.[11] Indirect discrimination “refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination,” such as religion.[12] Discrimination can be identified on the basis of its purpose or its effect on the victim, irrespective of the perpetrator’s motivations.[13]

The Council of Europe and the European Union have set the common objective of non-discrimination law as “allow[ing] all individuals an equal and fair prospect to access opportunities available in a society.[14]” The United Nations Committee on Economic, Social and Cultural Rights gives as an example of discrimination “when persons belonging to a religious minority are denied equal access to universities, employment, or health services on the basis of their religion.[15]”

In the medical field, it is only through the protection of a right to conscientious objection to abortion that people with a moral or religious conviction on this topic have access to employment on an equal footing with people who do not share this conviction.

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[1] Human Rights Committee, Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea, communications n^os 1321/2004 and 1322/2004, CCPR/C/88/D/1321-1322/2004, November 3, 2006, § 8.3.

[2] Human Rights Committee, Summary record of the 1237^e meeting, held at the Palais des Nations, Geneva, on Tuesday 13 July 1993, CCPR/C/SR.1237, 1^er December 1993, § 45 (traduction libre).

[3] See Resolution 1763 of October 7, 2010 (§ 1) and Resolution 1928 of April 24, 2013 (§ 9.10).

[4] Videos of the conference are available on ECLJ's YouTube channel and can be found in this article: https://eclj.org/conscientious-objection/the-un-special-rapporteur-on-freedom-of-religion-or-belief-in-favor-of-a-right-to-conscientious-objection-in-the-context-of-abortion-and-euthanasia?lng=fr

[5] ECHR, Vo v. France, no. 53924/00, July 8, 2004, § 84.

[6] CJEU, Oliver Brüstle v. Greenpeace e.V, C-34/10, October 18, 2011, § 35.

[7] Commission EDH (Plénière), Brüggemann and Scheuten v. Federal Republic of Germany (dec.), no. 6959/75, May 19, 1976; ECHR, Boso v. Italy (dec.), no. 50490/99, September 5, 2002; A. B. C., v. Ireland [GC], no. 25579/05, December 16, 2010, § 214; P. and S. v. Poland, no. 57375/08, October 30, 2012, § 96.

[8] See: Heiner Bielefeldt, Nazila Ghanea, Michael Wiener, Freedom of Religion or Belief: An International Law Commentary, Oxford University Press, January 21, 2016, pp. 298-301. See also: ECHR, R. R. v. Poland, no. 27617/04, May 26, 2011, § 206; P. and S. v. Poland, no. 57375/08, October 30, 2012, § 106.

[9] ECHR, Eweida and others v. the United Kingdom, no. 48420/10, January 15, 2013, § 83.

[10] See Heiner Bielefeldt, Nazila Ghanea, Michael Wiener, Freedom of Religion or Belief, op. cit. pp. 311 and 323.

[11] Committee on Economic, Social and Cultural Rights, General Comment No. 20, Article 2-2 of the International Covenant on Economic, Social and Cultural Rights, adopted at its forty-second session, E/C.12/GC/20, July 2, 2009, § 10-a.

[12] Ibid, § 10-b.

[13] Heiner Bielefeldt, Nazila Ghanea, Michael Wiener, Freedom of Religion or Belief, op. cit. p. 314.

[14] European Union Agency for Fundamental Rights, Council of Europe, Handbook of European non-discrimination law, February 2018, p. 48.

[15] Committee on Economic, Social and Cultural Rights, General Comment no. 20, op. cit., § 22.