Many thanks to Bernard M. Dickens, Professor Emeritus of Health Law and Policy at the University of Toronto’s Faculty of Law, for abstracting the main issue decided by the European Court of Human Rights.
Grimmark v. Sweden, App. No. 43726/17, European Court of Human Rights. (2020) Decision of March 12, 2020. Backup copy.
This decision on conscientious objection addressed a complaint against Sweden by Elinor Grimmark, a woman who had qualified as a midwife, but was denied employment as such. Because of her religious convictions, she refused to perform medical (i.e. non-surgical) abortions, but was willing to care for women requesting the procedure. In seeking employment, she disclosed her objection, which she claimed had resulted in positions being withheld or withdrawn from her, in violation of her right to freedom of thought, conscience and religion under Article 9(1) of the European Convention on Human Rights. Article 9(2) of this Convention sets limits on manifestation of religion or belief when necessary for the protection, among other interests, of the rights and freedoms of others.
Employment laws may require employers’ reasonable accommodation of employees’ conscientious objection, but Swedish law allows employers to require employees to perform all tasks naturally falling within the scope of their employment. This includes requiring midwives to perform medical abortions. Exemption for one midwife would unfairly burden another. The Court noted that Sweden provides nationwide accessible abortion services.
The Court’s task was to determine whether measures taken in Sweden, by its Discrimination Ombudsman and its Labour Court, both of which had found no violation of the complainant’s Article 9 rights, were proportionate to the interests at stake. The Court echoed its previous language on abortion services, in R.R. v. Poland (2011), that a state is obliged “to organize its health system in a way as to ensure that the effective exercise of freedom of conscience by health professionals in the professional context does not prevent the provision of such services” (para.26). The Court accordingly found that any infringement of the complainant’s freedom of religion did not violate Article 9 of the European Convention on Human Rights.
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The European Court’s 9-page decision is online here:
Decision of March 12, 2020. Backup copy.
Related Resources:
“The Right to Conscience,” by Bernard M. Dickens, in: Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014) pp. 210-238, 425-429n. Abstract online. About the book in English y en español.
Conscientious Objection / The Right to Conscience – annotated bibliography, updated March 17, 2020.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca. See Program website for our Publications, Information resources, and Reprohealthlaw Commentaries Series. TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.
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