Friday, 13 March 2020

Longstanding Conscientious Refusal Assault to Undermine Swedish Abortion Policy Ended by European Court.

Ellinor Grimmark
Ellinor Grimmark, one of the midwifes
For a number of years, two openly pro-life Swedish midwifes have been fronting for radical conservative US activist Christian organization Alliance Defending Freedom (ADF), to run a legal case against Swedish County Councils (that run the publicly funded healthcare system) in order to invalidate the Swedish model for freedom of conscience and conscientious objection in healthcare. In particular, the assault has been focused on the strong pro choice abortion legislation in Sweden, as both cases have been about trying to establish health professionals' (here midwifes) legal right to refuse to perform tasks related to abortion (everything from informing women about their rights and options to assist in the actual performance of a procedure). Since having an abortion at a public hospital is a positive right in Sweden, a midwife or other obstetric professional working in the public healthcare system can always be assigned to such duties, and it would be impossible to run the system is this was not the case. Therefore, a legal right to conscientious refusal in this area could very well be strategically exploited by anti-abortion propaganda ventures to undermine Swedish abortion policy.Read more and learn how this assault has now been stopped, and how other European countries may profit from that.

I blogged about this push, as well as the general issue of conscientious refusal in healthcare, in 2015. That post led to invitations to contribute to two separate special ethics journal issues on the topic, one of which describes the Swedish solution to conscientious refusal and is linked above. The other one, authored with Danish colleague Morten Ebbe Juul Nielsen, presents a general argument against the notion of conscientious refusal as a legal right required by the generally embraced legal human right to freedom of conscience. Simple put, as long as employment and choice of profession is voluntary, the latter freedom does not require a right to refuse particular work tasks.

The midwifes have been fronting the ADF campaign by running legal procedures complaining about religious discrimination, or breach of their freedom of religion, against (potential) employers who have denied them a right to refuse any dealings with abortion care, or refused employment after a declaration of such a right as a condition to accept employment. The case have been run through the Swedish legal system, and then, with one of the midwifes, Ellinor Grimmark, on to the European Court of Human Rights. Since 2014, bankrolling and legal councel has come from ADF, confirmed by its representative Robert Clarke.  Two days ago, the court delivered its decision to rule the application for the court to try her case to be inadmissible. In short, this means that the court cannot see any indication of discrimination or restriction the right to religious freedom in Grimmark's (and ADF's) writ. This has also been my impression from day 1 – what ADF and Grimmark have been asking for is not equal rights to others, but for special privilege. But, please, don't let me be the judge, read the decision for yourselves!

The court decision's most important implication is, however, not that the Swedish solution to the phenomenon of conscientious objection has been vidicated, and that its abortion policy has been safeguarded against radical religious conspiracy. It also means that all European countries can safely adopt the Swedish solution to conscientious refusal in healthcare, without fear of legal damage.



  1. It seems important to the judgement that abortion has been part of the professional role since the individuals concerned trained to be midwives. This creates two problems. First, other countries that want to do away established rights to CO will have to do so via means of 'grandfathering' (pace Montgomery ). Second, there is scope for CO claims to be made as and when new interventions, such as VAD or MAiD, are introduced. Of course, a grandfather clause could be written into the CO rules at their inception, but nevertheless; it seems the court would likely support the establishment of a CO right in such cases as a matter of Article 9.

    Finally, this approach to CO creates problems if our moral attitudes to existing interventions change. For example, the notion that male circumcision is morally questionable is on the rise. At present it seems a healthcare professional who holds such a view could not Co to their involvement. This arguably decreases the potential to enact moral change in this area.