The headline is rhetorical; the European Convention on Human Rights was incorporated with Swedish law in the mid 90s and Sweden has been bound by the convention since 1995.
Recently there has been a lot of debate in Swedish news media about the court case of Ellinor Grimmark – the midwife who lost her work because she refused to participate in abortion-related activities at her work place. Prior to starting her work, she had an agreement with her employer (Region Jönköping) that she would not have to participate in abortion-related work duties, but after speaking out publicly about her personal views of abortion, she was fired from her job before she had even had the time to start it. (The employer, Region Jönköping, claim that they dropped out of an ongoing recruitment process, while Grimmark claims that she was hired, and then fired, because of her personal views on abortion.)
Refusing to try whether Grimmark’s human right to freedom of conscience, in accordance with Article 9 of the European Convention on Human Rights, had been breached, the District Court of Jönköping (Jönköpings tingsrätt) ruled in favour of Region Jönköping in this highly publicised case.
Grimmark appealed the verdict to the higher court, in this case the Swedish Labor Court, which, due to political pressure and pressure from the Swedish news media and mainstream public opinion, is likely to come to the same conclusion as the District Court of Jönköping.
However, putting Swedish public opinion and political correctness aside, there are several legal problems with a projected ruling against Grimmark, and in favour of Region Jönköping.
- Labor law perspective. Must all midwifes in Sweden participate in abortion-related activities or is there room for individual negotiation between the employer and the prospective employee? Grimmark had reached an agreement with Region Jönköping that was not honoured after Grimmark went public with her views on abortion. This in turn leads us to the next point:
- Freedom of expression/opinion perspective. Are employees within Sweden’s public sector forbidden to openly share or argue for their personal convictions in such a (at least internationally) widely debated moral issue as abortion? The problem that led to that Grimmark lost her job was not that she did not want to participate in abortion-related work duties. She already had an agreement with her employer regarding that part. What made her loose her job was that she shared her personal opinions about abortion openly – in an interview in the local newspaper where she expressed gratitude for having been hired, but also made clear that she would not have to participate in abortions. Does Swedish law allow the government to fire employees who openly express “wrong” political or religious views? Not at all! The right to freedom of expression/opinion is protected in Swedish constitutional law, as well as in the European Convention on Human Rights.
- Freedom of conscience perspective. Article 9 of the European Convention on Human Rights is part of Swedish law – Swedish courts are obligated to adhere to it. As explained above, the District Court of Jönköping did not even try whether Grimmark had been discriminated against based on her human right to freedom of conscience. The District Court conveniently argued that Grimmark’s opposition to abortions comes from her deep religious (Christian) faith and found – based on the Swedish anti-discrimmination legislation – that her right to religious freedom had not been breached. It is hard to interpret the verdict otherwise than that the District Court of Jönköping says that deeply religious people don’t enjoy the same right to freedom of conscience as all the others do. That in itself is very problematic since Article 14 of the European Convention on Human Rights says that the “enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion…”
The judges of the Swedish Labor Court, whose verdict can only be appealed to the European Court of Human Rights, consists of a mix of professional judges as well as representatives from Swedish labor unions and employers’ organisations. As stated above, I believe it is very unlikely that they would rule in favour of Grimmark, due to political pressure and the present mainstream public opinon. My guess is that Grimmark, after loosing, appeals to the European Court of Human Rights, and there, finally, wins.