Ellinor Grimmark is a midwife. In November 2013 she was offered a job by Höglandssjukhuset women’s clinic; but when she explained that she could not perform abortions because of her conscientious objection and her Christian faith, the clinic withdrew the job offer – and she later filed a complaint. A few months later, she was refused employment with Ryhovs women’s clinic for the same reason. In January, Värnamo Hospital women’s clinic offered her a job but then withdrew the offer because of the complaint she had filed against Höglandssjukhuset. Last Thursday, in Ellinor Grimmark v Region Jönköpings lan 2015-11-12 nr T 1781-14, Jönköping District Court [Tingsrätt] dismissed with costs her complaint of discrimination.
Specifically in relation to Article 9 ECHR, the Court noted that the national authorities and courts had the primary responsibility for the implementation of Convention rights. It was clear that, under Article 9, both freedom of thought and conscience and freedom of religion were protected. Ms Grimmark had explained that the reason for her refusal to participate in abortions was her strong religious views and beliefs. The Court assumed that there were people who, for reasons other than religion or belief, might refuse to participate in abortion; but it was clear that what Ms Grimmark termed her “philosophical and conscientious objections” had such a strong connection with her religious faith that they should be regarded as an expression of her belief. Therefore, one could not distinguish between her right to freedom of religion and her right to freedom of conscience; and there was no reason specifically to consider whether or not Ms Grimmark’s conscience had been violated. As to Article 13, she had had access to an effective remedy under the Discrimination Act [Diskrimineringslagens] (2008:567) for the alleged violation.
The senior counsel at Scandinavian Human Rights Lawyers, Ruth Nordström, commented that the court had only examined whether or not Ms Grimmark had been discriminated against because of her religious beliefs and had not examined the relevant Article 9 case law of the ECHR: moreover, according to Council of Europe Resolution 1763 (2010), health care professionals should not be coerced or discriminated against because of refusal to perform, or assist in, any act that could end a human life at its beginning or end.
Readers in the UK may recall the Supreme Court’s judgment in Greater Glasgow Health Board v Doogan & Anor  UKSC 68, in which the question before it was the scope of the conscientious objection provision in s 4 of the Abortion Act 1967. The petitioners, Mary Doogan and Connie Wood, were ward coordinators at the Southern General Hospital and their duties involved delegation, supervision and support of other staff providing care to patients undergoing terminations rather than direct participation themselves.
In Doogan no arguments were put forward specifically under Article 9. Lady Hale pointed out that the Article 9 right was in any case qualified by “such limitations as are prescribed by law and necessary in a democratic society”: moreover,
“There would remain difficult questions of whether the restrictions placed by the employers upon the exercise of that right were a proportionate means of pursuing a legitimate aim. The answers would be context specific and would not necessarily point to either a wide or a narrow reading of section 4 of the 1967 Act” .
Whether or not those considerations apply in Ellinor Grimmark remains to be seen: in her case, the issue is not one of support but of direct involvement. But perhaps the more profound question is this: in such circumstances can “conscience” be distinguished from “faith”?
It an interesting question. ’…can “conscience” be distinguished from “faith”? and the answer has been established by at least two UK court rulings following the same logic. One as mentioned in Glasgow (above) the two Nurses refusing to administer NHS abortion on grounds of Faith and then another state run corporation – the BBC argued and won an employment tribunal case by proposing that it was very much ‘like-a-Church’- regarding employment with ‘ethos’ (not under review). The BBC Catholic journalist was dismissed (not on abortions – but by questioning its anti-Catholic bias in news reporting) he lost the case unsurprisingly. How can one argue that your conscience and faith is being abused when state run corporations (BBC or NHS) lay claim that they the right to ‘faith’ solely in themslelves. This directly rules against Catholics in ‘questions of faith’ as the term is being abused in court. It is also clear within the EU legislature that any notion of ‘conscience’ is now subservient ‘collective’ to a political narrative (Sweden it seems is the only societal model to follow by the EU). As in all EU court rulings, there is no appeal and the law (once enacted) can not be repealed (as it would in the UK courts prior to Lisbon Treaty). Sweden is hardly the model I would wish to follow and yet increasingly we have no choice. Conscience will (inevitably) be banned in the EU and ‘Faith’ has already been abused by the BBC (‘A question of faith’ is largely misleading in its programming output). There is no faith (in the EU) and there is only the politiucal ‘collective’ conscious that we cannot change democratically. This is the new Europe and I wish it were not so.
There is no ruling yet by the EU courts on the issue of freedom of religion (ie religious non-discrimination) in employment, so the argument made in the previous comment is entirely invalid.
I didn’t understand it either…
Great question about whether conscience can be distinguished from faith. If so, the next question would then be, it seems to me, what level of protection should be offered to conscience? Surely under Article 9, freedom of conscience is an absolute right, and therefore, shouldn’t be subjected to the same qualifications as freedom of religon. I’d like to hear your thoughts on this Frank.
It’s an interesting point.
To save people having to look it up, Article 9 (Freedom of thought, conscience and religion) reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
It all depends how you read 9 §2. The meaning of ‘Freedom to manifest one’s religion’ is obvious; but I’ve always assumed that ‘Freedom to manifest one’s beliefs‘ was about beliefs other than religious beliefs (otherwise, what would be the point of the distinction?) and, equally, I’ve also assumed that its purpose was to cover non-religious matters of conscience. (As to freedom of thought, that presumably is a matter for the forum internum.)
If I’m right, then matters of conscience are a qualified right in the same way as matters of religion. An example would be the conscientious exemption in the Abortion Act 1967. S 4(1) provides the conscientious exemption (albeit with the burden of proof falling on the person claiming the exemption); but s 4(2) states that the exemption in 4(1) shall not “affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman”.
So the right of conscientious (not religious) objection under the Act is a qualified right: presumably (if those who drafted the Act thought about the point at all) for “the protection of the rights and freedoms of others” – in this case the right to life under Article 2. And notwithstanding the abolition of the death penalty under Protocol 6 Article 1, not even the right to life is unqualified, since Article 2 §2 provides exceptions for killing in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, or in action lawfully taken for the purpose of quelling a riot or insurrection.
What do you think?
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