The Third Section ECtHR has held that the complaints of two Swedish midwives who were unable to practise because of their objections to taking part in termination or pregnancy were inadmissible.

Background

Ellinor Grimmark had been offered jobs as a midwife by two women’s clinics, but when she explained that she could not perform abortions because of her conscientious objection and her Christian faith, both clinics withdrew their offers and Jönköping District Court dismissed her complaint of discrimination. The Equality Ombudsman also ruled against her, on the grounds that under the relevant legislation employers had the right to request an employee to perform all the tasks which naturally fell within the scope of the work in question. The requirement to take part in abortions was thus “prescribed by law” and pursued the legitimate aim of protecting health guaranteeing effective access to abortions [10]. The interference with her freedom of religion was proportionate and there had been no violation of Article 9 ECHR.  A third clinic having turned her down for a vacancy, she subsequently appealed to a Labour Tribunal and in April 2017 it was announced that she had lost: the Tribunal concluded that there had been no violation either of the terms of the Discrimination Act or of her Convention rights.

Linda Steen had a contract with Nyköping Hospital women’s clinic under which the hospital had agreed that she was to work within the clinic for two years after the end of her midwifery studies. However, Sörmland County cancelled her contract when she told them that she was unable to perform abortions on grounds of her faith and conscience: subsequently, she began commuting to Norway in order to work. Nyköping District Court held that there had been no violation of her Convention rights, either under Article 9 or under Article 10 [8] and in 2017 the Labour Court refused her leave to appeal [11].

The complaints

Ms Grimmark and Ms Steen filed complaints against Sweden at Strasbourg, arguing violations of their rights to manifest their religious beliefs under Article 9 ECHR and their right to freedom of expression under Article 10 and that they had been discriminated against contrary to Article 14.

The judgments

In Grimmark v Sweden [2020] (No 43726/17) and Steen v Sweden [2020] (No 62309/17), a Committee of the Third Section (Serghides, Wennerström and Schembri Orland JJ) held in very similar judgments that their complaints were inadmissible.

In the case of Ms Grimmark, the Court accepted that her conscientious refusal to assist in abortions was protected under Article 9, but the interference had a sufficient basis in Swedish law: it was prescribed by law and pursued the legitimate aim of protecting the health of women seeking abortion [25]. Further, it was necessary in a democratic society and proportionate. had voluntarily chosen to become a midwife and apply for vacant posts while knowing that this would mean assisting also in abortion cases. Moreover, as a result of the refusals, the applicant was not left unemployed but was able to continue to work as a nurse at Högland Hospital, where she had a post and where she worked until March 2016 [26]. The domestic courts had struck a careful balance between competing rights had given detailed conclusions based on sufficient and relevant reasoning [27].

Likewise, the Court dismissed her complaint under Article 10 of the violation of her freedom of expression for having expressed her opinion in the media [29-37]. Nor had she been discriminated against when compared with midwives who were willing to perform all the duties inherent to the vacant posts, including abortions [43].

The Court applied the same reasoning to the case of Ms Steen in respect of Article 9 and came to the same conclusions. As to her claim under Article 10 that her freedom of expression had been violated “for having a different opinion from that of the hospital, clinic and County concerned” [24], the District Court had established that the reason why she had not been employed “was not her opinion as such but solely her refusal to perform all duties inherent to the vacant posts, including abortions” [30]. There had therefore been no separate interference with her freedom of expression under Article 10: “It has not even been alleged that the applicant’s opinion produced any adverse effects on the applicant, other than the loss of the job opportunity at the women’s clinic in Nyköping” [31]. Finally, she had not raised any issue under Article 14 before the domestic courts, and that complaint had, therefore, to be rejected for non-exhaustion of domestic remedies [36].

The Court declared both applications inadmissible.