Samvetsfrihet och barnmorska – en (o)möjlig ekvation? - En arbetsrättslig utredning

Sammanfattning: The right to freedom of religion and freedom of conscience are both human rights that are stipulated in Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The purpose of this thesis is from a labour law perspective examine both national and international law and the legal issues that can arise in a conflict between midwives and their employers, in a situation where a midwife refuses to perform abortions according to their freedom of religion - and conscience. This situation has arisen in two Swedish cases, in year 2015 and 2016. The cases concerned two midwives who claimed to have been subject to discrimination related to religion, when they were denied earlier promised employments, when it came to the employer’s attention that the midwives because of their conscience, could not participate in abortion care - a task which is a part of a licensed midwife competence description. The premiss of this thesis is the several opposing interests that are in a continual balance: midwives right to freedom of religion and conscience and to not be discriminated vs. the managerial prerogative and the patient's right to good health and care. Article 9 of the ECHR protects the right to freedom of religion and conscience. The article however has a relative layout, which means that restrictions can be made. The Swedish law is unlike the ECHR designed to impose an absolute right to freedom of religion, but there is no explicit regulation on freedom of conscience. In the Swedish Parliament, there have been discussions whether Sweden should legislate the freedom of conscience, a so-called conscience clause. Whether or not Sweden is obliged to introduce a conscience clause to fulfil their obligations to the ECHR remains to be seen. Recently the Labour Court in Sweden delivered a judgment (12th of April 2017) in one of the midwives’ cases. Now the complainant has exhausted all domestic remedies and the way lays open to take the case further to the European Court of Human Rights. The question to be answered is whether freedom of conscience and being a midwife is a possible equation. This thesis shows that the possibilities for a midwife to refuse to perform abortions in Sweden today are very few, since the employer has no obligation to meet a midwife religious desire to be relieved of certain tasks. The thesis also shows that the question at issue to some extent may depend on local conditions, such as work organization and size of the workplace. In our multicultural society, there are people with different cultural and religious backgrounds, and with that in consideration, it is even more important to discuss and treat the issue of freedom of conscience. A judgement from the European Court of the Human Rights would therefore be welcomed for the sake of bringing clarity on the issue. Until then, midwives that does not want to perform abortions, should apply for jobs, where abortions are not included in the obligations or workplaces where the employer is pragmatic and shows great willingness to compromise.