Samvetsfrihet som rättsligt begrepp – En rättsvetenskaplig analys av samvetsfrihetens självständiga betydelse

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The judgment of the Swedish Labour Court AD 2017 no 32 concerned a Christian midwife who wanted employment at three women’s clinics on the condition that she could not participate in abortion activities. In that regard, she claimed that the freedom of conscience should be distinguished from the freedom of religion under Article 9 in the European Convention on Human Rights. The Court denied her claim. The ruling caused a major debate on the importance of the freedom of conscience in Sweden. The thesis is based on a rational natural law theory, which means that the conscience of the individual is somewhat congenital. Furthermore, the conscience of the individual should be distinguished from his or her religion. In light of the foregoing, the thesis aims to examine whether and if so, to what extent, the freedom of conscience has or should have an independent legal significance. In domestic legislation there is a right due to inter alia moral concerns to avoid carrying out military service with weapons. However, there is no right in domestic legislation for healthcare professionals not to participate in abortion. Instead, the legislator calls on the employer to organise his activities so that adequate consideration is taken to conscientious objection in reproductive healthcare. Later case law from the European Court of Human Rights states that Article 9 of the European Convention on Human Rights provides for a right to conscientious objection to military service. However, healthcare professionals are not given such a right. The Parliamentary Assembly of the Council of Europe have recently however adopted two resolutions inviting Council of Europe member states to develop comprehensive and clear regulations that define and regulate conscientious objection with regard to health and medical services. The thesis’s conclusions are that the freedom of conscience has a particularly limited legal meaning. This is supported by the fact that the freedom of conscience only fulfils an actual function for conscripts. In the light of the rational natural law theory, the freedom of conscience is therefore quite ineffective for healthcare professionals. Their freedom of conscience must coincide with a belief or religion recognized by the European Convention on Human Rights to fulfil an actual function. Thus, new assessment criteria for the freedom of conscience are proposed. In this regard, it is proposed that the individual employee in certain circumstances should have the right to conscientious objection when he or she has not been able to take a stand in advance on subsequent work tasks.

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