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”?