Introduction
In 2020, two Swedish women denied job as midwifes for expressing their religious objections to terminating pregnancies grabbed the headlines after losing their legal actions against Sweden before the European Court of Human Rights (hereinafter: ECtHR). What bears note is that the ECtHR did not support its decisions with a thorough balancing exercise, as it swiftly dismissed the twin cases of Grimmark v Sweden and Steen v Sweden as inadmissible without further elaborating. Phrased it differently, the ECtHR neglected a comprehensive assessment of the applicants’ right not to be discriminated against in the workplace vis-à-vis the positive obligation of Swedish authorities (and hospital-employers) to provide nationwide abortion services. For that reason, the Court faced burning criticism from both academia and civil society actors (including the midwives’ legal representatives, Scandinavian Human Rights Lawyers, a Christian law firm tied to the US-based conservative advocacy group Alliance Defending Freedom).
The facts
As already anticipated, Ms Ellinor Grimmark and Ms Linda Steen are two Christian ‘pro-life’ advocates who were turned down for midwifery jobs at local clinics in Sweden after explaining that they would not assist in performing abortions on religious grounds. Because of her conscientious objection to the work she might have to do, three hospitals rescinded Ms Grimmark’s job offer: the Högland and Ryhov clinics and the Värnamo hospital. Particularly noteworthy is that the Värnamo hospital’s refusal to employ Ms Grimmark was also due to the fact that she had publicly expressed her conscientious objections to abortions in the media. More than this, the recruiters at Värnamo withdrew their job offer also as soon as they found out about the woman’s pending complaints against the Högland and Ryhov clinics before the local Discrimination Ombudsman. At the time Ms Grimmark had in fact brought proceedings alleging that the hospital-employers discriminated against her on religious grounds when rescinding the offers. The ombudsman however did not find in her favour.
As to Ms Steen, the factual background of her case was similar. Upon explaining that she would not assist in performing abortion because of her Christian faith, two prospective employers withdrew their job offers: he Nyköping and Mälar hospitals. More than this, because of Ms Steen’s ‘pro-life’ views, the Human Resources Department of the County finally transferred the woman (against her wishes) to her previous post as a nurse at the healthcare centre in Malmköping.
Proceedings at domestic level
As can be inferred from the previous paragraphs, the cases of Grimmark and Steen did not properly concern the midwives’ right to religious freedom, since the hospital-employers had not coerced the women into practicing abortions against their religious beliefs (strictly speaking, at least). As an aside, and to state the obvious, applying for a job as a midwife is nothing more than a voluntary choice.
Hence, with the support of Scandinavian Human Rights Lawyers, the applicants established their civil case as a matter of freedom from employment discrimination on religious grounds, rather than one about freedom of religion per se. The fact that both cases were transferred from the Court of Appeal to the Swedish Labour Court for a final judgment provides evidence of this legal strategy.
In brief summary, in Grimmark the Court conceded that the applicant’s religious belief was protected under Article 9 ECHR. This notwithstanding, it found that Ms Grimmark had not been discriminated either directly or indirectly. As to direct discrimination, Ms Grimmark was not directly targeted on the grounds of her convictions, the Court held, since all the defendant-hospitals have a policy of not hiring staff refusing to carry out their duties for whatever reason (be it religiously-motivated or not). Consequently, since such workplace rules apply ‘neutrally’ to all employees, there was no indirect discrimination either, so it was felt by the Court.
While in Steen, the Labour Court treated as irrelevant any instance of direct or indirect discrimination, as it simply refused the applicant’s leave to appeal.
Proceedings at ECtHR level
The matter was then heard by the ECtHR on 20 February 2020, with judgments delivered on the same day: Grimmark v Sweden and Steen v Sweden. At issue was whether by not letting the applicants work as midwifes because of their ‘pro-life’ views, the domestic authorities had discriminated them on religious grounds (Article 9 taken up in conjunction with Article 14 ECHR) and violated their freedom of expression (Article 10 ECHR).
Having regard to the controversial issues raised, it is worrying to notice how the ECtHR simply dismissed both cases as inadmissible under Article 35 ECHR, thus frivolously underestimating the need to put the competing rights at stake into balance. Hence the lack of a comprehensive proportionality assessment in the ECtHR’s reasoning. Because there is no right “to be promoted or to occupy a post in the civil service” under the ECHR, the Court held, this assessment was in fact deemed to sufficiently explain why the applicant-midwives could not rely on their Convention rights on that occasion.
This notwithstanding, the ECtHR however conceded that the defendant-hospitals’ policies had interfered with the midwifes’ right to religious freedom (Article 9 ECHR) in their attempt to enter the healthcare labour market. At any rate, the Court went further to consider that, since abortion laws in Sweden respond to a “pressing social need”, the requirement that all midwives perform all duties inherent to their tasks was ‘proportionate’ and ‘necessary’ in a democratic society. Thus no violation of the applicants’ Article 9 and 14 ECHR had occurred.
Equivalent conclusions were also reached with regard to the midwifes’ Article 10 ECHR rights.
The Court essentially followed in the footsteps of the domestic courts, reiterating that the refusal to employ the women was not due to their personal views on abortion, but simply because of their refusal to terminate pregnancies. Access to abortion, in turn, corresponds to a ‘social pressing need’ over which domestic authorities enjoy a wide margin of appreciation: hence no violation of the applicants’ Article 10 rights had occurred either.
A final word on Article 14 ECHR: in Grimmark, the ECtHR was required to consider the applicant’s submission that the defendant-hospitals policies had disproportionately disadvantaged her in comparison with other midwifes that have no sincerely-held religious beliefs. On this argument, the ECtHR however held that the ‘comparator group’ invoked by Ms Grimmark was not sufficiently similar to her situation, as she compared herself to midwives that, unlike her, “were willing to perform all duties inherent to the vacant posts, including abortions.”
While in Steen, the Court hastily dismissed the ‘comparator’ issue as it held that to be admissible, the matter should have been first raised explicitly or in substance before the national courts according to the doctrine of ‘exhaustion of domestic remedies’.
Conclusions
When it comes to religious freedom disputes at ECtHR level, once again the so-called ‘margin of appreciation’ doctrine proved to be the big elephant in the room of the Convention subsidiary machinery. As shown in the latter paragraph, under this principle the ECtHR gives a certain level of judicial deference to national tribunals and their principled criteria for determining the ‘democratic necessity’ to restrict or not a particular right at stake. Seen it from this perspective, however, the Grimmark and Steen judicial sagas seem to be a real outlier when compared to an emerging European consensus supporting conscientious objections in healthcare at national level. For instance, resolution 1763 adopted in 2010 by the Parliamentary Assembly of the Council of Europe states that:
No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human fetus or embryo, for any reason.
But more than this, both the domestic courts and the ECtHR seemed to have completely overlooked that, in the cases at hand, the midwives’ objections only amounted to a ‘declaration of intent’ and therefore were not as harmful as a strong refusal of terminating pregnancy in real-life emergency situations. Phrased it differently, in the impossibility of quantifying tangible harm to prospective abortion-seeking women, the midwives’ conscience claims de facto were not ‘right-infringing’. It is on these grounds that perhaps the hospitals’ refusal to hire Ms Grimmark and Ms Steen could have been faulted.