On the 11th of March, the European Court of Human Rights (the Court) issued its decisions in Grimmark v. Sweden and Steen v. Sweden, two cases casting light on the issue of refusal by healthcare professionals to participate in abortion procedures. The Court in these fairly straight-forward decisions rejected the Applicants’ complaints as manifestly ill-founded. Rather, the Court found the Swedish authorities’ decision to not employ midwives who refused to participate in abortion procedures complied with Article 9 of the European Convention on Human Rights (the Convention). These two cases are ground-breaking in that this is the first time that the Court decides on the issue of a purported right to refuse to carry out work duties in relation to abortion. Earlier cases relating to so-called conscientious objection have either related to other substantive issues, or been considered from the opposite perspective, that is, in relation to complaints that such refusal has impeded the possibilities to access legal abortion. Building on landmark cases such as R.R. v. Poland (2011) (blog posts here and here, P. and S. v. Poland (2012) (blog post here), Pichon and Sajous v. France (2001), Regner v. the Czech Republic (2017) (blog post here), Skugar and others v. Russia (2009), and Eweida and others v. the United Kingdom (2013) (blog posts here and here), the cases against Sweden follow the trajectory of previous case-law concerning abortion services, refusal to perform work duties, and the question whether there is a right to hold a certain work position. The Court also rejected the Applicants’ complaints under Articles 10 and 14 of the Convention, respectively. However, the focus of this comment will exclusively be on the decision under Article 9.
Both Applicants were employed as nurses within the Swedish healthcare system when they applied for, and were granted, leave of absence to study to become midwives. During these studies, the Applicants, respectively, informed their employers that they would not be able to assist in carrying out abortions. Both Applicants were subsequently informed that they could not take up positions at the respective workplaces’ women’s clinics if they refused to participate in abortion procedures. The Applicants refused and were consequently not employed as midwives. After exhausting domestic remedies, the Applicants turned to the Court, filing complaints under Article 9 of the Convention claiming that their rights to freedom of thought, conscience and religion had been violated.
The Court, referring to the Regner case, initially declared that there is no right under the Convention ‘to be promoted or to occupy a post in the civil service’. Consequently, there existed no right for either of the Applicants to obtain any of the vacant posts.
In relation to Article 9 of the Convention, the Court noted that religious freedom is primarily a matter of individual thought and conscience and that the right to hold or change any religious belief is absolute and unqualified. However, freedom of religion also includes the freedom to manifest one’s belief. In this regard, the Court found, without any elaboration, that the Applicants’ refusal to assist in abortions because of their religious conviction, constituted such a manifestation of religion that is protected under Article 9 of the Convention. However, since manifestations can have an impact on others, the Convention provides for the possibility to limit this freedom. Such limitations must fulfil the requirements stipulated under the second paragraph of Article 9 in order to be justified: it must be prescribed by law and be necessary in a democratic society for one of the legitimate aims listed. The Court found that this interference was justified for the following reasons: the interference was prescribed by law, since according to Swedish legislation ‘an employee is under a duty to perform all work duties given to him or her’. The interference also fulfilled the requirement of pursuing a legitimate aim in that it was aimed at protecting the health of women seeking abortion. Finally, the Court found that the interference was necessary in a democratic society and proportionate: Sweden provides nationwide abortion services, and inherent in this is a positive obligation to organise the healthcare system so that any potential exercise of freedom of conscience by healthcare professionals within the healthcare system ‘does not prevent the provision of such services’. Under Swedish law, an employer has the right to request that an employee fulfil all required duties inherent in a job position, and this is accepted by a prospective employee when signing a work contract. The Applicants knew what would be expected from them if taking up work positions as midwives, and if they were unwilling to fulfil the duties inherent in the work position, they were free to go back to their previous positions as nurses. Consequently, and in line with the Court’s reasoning in the Eweida case, a proper balance had been struck between the different conflicting interests.
Therefore, the Court found the complaint to be manifestly ill-founded and rejected it as inadmissible.
The following comment will relate to two aspects of these cases, first a formal analysis of the Court’s decisions, an analysis that is two-pronged – technical and practical, and subsequently a comment on how these cases have been framed publicly by certain stakeholders.
These cases follow the landmark Polish abortion cases of R.R. and P. and S. in how the Court reasons about the provision of healthcare services and the potential interference of the exercise of so-called conscientious objection. In the present case, the Court mirrors what was said in the earlier Polish cases concerning the relationship between legal healthcare services and any potential exercise of so-called conscientious objection: there is an obligation for the state to structure its healthcare system so that any potential exercise of ‘conscientious freedom’ does not interfere with the legal right to obtain healthcare by the patient. However, the key question in the present case was whether this kind of refusal was also a right inherent in Article 9 of the Convention, meaning that while the primary responsibility for the state is to secure healthcare according to the law, there would also be an obligation for the state to allow healthcare professional to refuse to provide certain healthcare services.
The Court found that there is no such obligation for the state, and consequently no corresponding right for healthcare practitioners to refuse. This observation is even clearer when one notes that the Court found that only a preliminary assessment of the case was required to declare the complaint manifestly ill-founded. This strongly indicates that the Court’s consideration that this specific manifestation of religious conviction could even come within the scope of Article 9 was quite weak. Let’s elaborate slightly more on this last comment. In both R.R. and P. and S. the Court noted that ‘not … each and every act or form of behaviour motivated or inspired by a religion or belief’ is protected under Article 9. The Eweida case additionally qualified what constitutes a ‘manifestation’ under Article 9, noting that ‘act or omissions … which are only remotely connected to a precept of faith fall outside the protection of Article 9’. Since the Court nonetheless found that the case came within the scope of what constitutes a manifestation under Article 9, however without any justification given, the fact that the Court found that the Swedish government’s interference (in essence, not allowing the applicants to remain midwives if they refused to perform abortions) to be justified following only a preliminary assessment of the merits of the case, significantly illustrates that these kinds of manifestations only just passed the threshold of the scope of Article 9.
In addition to this technical analysis of the Court’s reasoning, in relation to the scope of Article 9 in matters concerning so-called conscientious objection to reproductive matters in this case, there is also a more practical analysis to be made. This analysis will show that there is a strong case to be made from the case-law of the Court, that the kind of manifestations taking place in the current cases should not be allowed to be imposed on other people, for practical reasons, especially not in such a significant and precarious context as reproductive healthcare.
The Eweida case also refers to the Skugar case, wherein the Court explores the boundary of what constitutes a manifestation under Article 9. A vast number of cases are listed as examples of what kind of manifestations fall within or outside of the scope of Article 9. In this list there is a reference to the Pichon and Sajous case. In that case, the Court found that the refusal by two pharmacists to sell contraceptives was not covered by the scope of what constitutes a manifestation under Article 9. The motivation for this was that since contraceptives were legal and could only be bought with a prescription in pharmacies, the applicants in that case could not impose their religious beliefs on others. This indicates that the Court disregarded the formal question of whether the pharmacists’ practices technically constituted a manifestation within the meaning and scope of Article 9. Instead, the Court took a practical approach and found that the fact that certain reproductive services, the provision of contraceptives, was exclusively provided by one kind of healthcare actor, pharmacists, removed the entire situation away from the scope of Article 9. The Court further justified this practical necessity reasoning, by noting that the pharmacists should ‘not be allowed to give precedence to their religious beliefs and impose them on others as justification for their refusal … since they can manifest those beliefs in many ways outside the professional sphere’. While the lack of reasoning in the Grimmark and Steen cases is unfortunate, a comparison between these cases and Pichon and Sajous indicates that the Court just as well could, and maybe should, have taken the same practical approach in the former: abortion is legal in Sweden, and only available through authorised healthcare institutions, providing a clear analogy to the Court’s reasoning in Pichon and Sajous. However, the Court’s finding that the complaints in the current cases was manifestly ill-founded nonetheless further strengthens the observation that the refusal by healthcare professionals to carry out healthcare services, including abortion services, is not a human right.
As a final note, I feel obligated to say something about another issue that has been observed after these cases were decided: how anti-abortion actors have framed them. US-based C-Fam has asserted that ‘the court refused to take up [the midwives’] case’. Likewise, US-based but with an office in Vienna, ADF International has purported that the ‘Court refuses to take up conscientious objection cases’. This organisation, with questionable working methods, supported the two cases both financially and with legal advice. Scandinavian Human Rights Lawyers, the organisation that represented the two Swedish women in their cases, and which has ties to ADF International, plainly stated that the clients’ complaints had been declared inadmissible. However, in the original text – which is in Swedish – the organisation alleged that ‘the complaint was not taken up for assessment’. These comments highlight either a conscious strategy by these, and other, organisations, or a fundamental flaw in their understanding of how the Convention system works. Framing the outcomes of these cases as a plain unsubstantiated rejection by the Court implies that no examination and assessment of the merits of the case took place. Solely highlighting that the cases were found inadmissible suggests that the Court found them to not fulfil all formal requirements, the consequence likewise being that the merits of the case had not been considered. Such framing leads to the possibility to portray the specific issue in these cases – whether or not there is a right for healthcare professionals to refuse to participate in/provide healthcare services in the form of abortion – as a matter that is still open for the Court to consider at a later stage. This is however not the case.* In this regard it is important to understand what the internal order is of how the Court discusses the cases. That is, what are the steps that one sees in the Court’s discussion, which ultimately lead to a decision, and furthermore what are the external consequences of such a decision. The above-mentioned organisations (and others) alleged that these cases went to the Court, the Court declared them inadmissible without elaborating on why, and therefore the issue remains unresolved. However, what actually took place – which should be apparent for anyone who reads the cases (and possibly has at least a basic understanding of how the Court works) – was that, the cases went to the Court, and based on a preliminary examination of the merits, or grounds, of the cases, the Court considered that there was a clear or apparent absence of a violation, therefore declared the complaints manifestly ill-founded, and hence rejected the applications as inadmissible (Grimmark §§ 22-28, Steen §§17-23). Consequently, the case has been ‘taken up’ by the Court to the extent that the Court considered that this issue needed attention. As far as vocabulary is concerned, the focus should be on ‘manifestly ill-founded’ rather than ‘inadmissible’ in cases such as these, since the latter term is commonly understood as relating to procedural or jurisdictional flaws in a case. However, the flaws in these cases related exclusively to the grounds of the applications, which were deemed manifestly ill-founded, meaning that they did not even come close to being recognised as constituting a right under the Convention.**
Accordingly, while these decisions from the Court complement already existing case-law – further clarifying that there is no right under the Convention for healthcare providers to refuse to participate in abortion services – reproductive rights advocates need to remain vigilant regarding how (also) this issue is framed in anti-abortion propaganda aimed at the public. Quite technical aspects of a case might otherwise be used to misrepresent what is and what is not protected under the Convention, even in a case as clear-cut as this.
*Sure, another individual who has been denied a job in a similar situation could bring a complaint to the Court, but unless the circumstances were significantly different, chances are such a complaint would most-likely be rejected by the Court, in line with Article 35 (2)(b).
** For a quite pedagogical guide on preliminary assessments of the merits of a case in relation to the terms “manifestly ill-founded” and “inadmissible”, see the Court’s guide on admissibility, especially p. 61 ff https://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf)