End of the conscience clause? - Steen v. Sweden and Grimmark v. Sweden

Abstract

The gloss concerns the decisions issued by the European Court of Human Rights in February 2020. The cases concerned midwives who were denied employment because they refused to participate in abortion procedures. The women accused potential employers - hospitals - of violation of religious freedom and discrimination. The European Court of Human Rights decided that there was a restriction of the midwives' freedom of thought, conscience and religion, but this was justified by Swedish law, which clearly states that the employee must perform all the duties specified by the employer. The interference with the nurses' freedom of religion was also justified by the protection of the health of women wishing to undergo termination of pregnancy. The Court held that there was also no discrimination against midwives. The author is of the opinion that the decision and its justification deserve approval. Taking into account the circumstances of the case and Swedish regulations, which are liberal concerning abortion law and does not provide the possibility for nurses and midwives to invoke the conscientious objection clause, the decision should be positively assesses. However, the Court's decision cannot be read as a breakthrough, because if the case concerned a different state of affairs, e.g. from Poland, the outcome might be completely different. It was emphasised that the situation in Poland after the judgment of the Constitutional Tribunal in 2015 concerning the doctors' conscience clause introduced legal confusion and unclear situation of nurses and midwives, who were not affected by this judgment.