Federation of Catholic Families in Europe v. Sweden

Complaint No. 99/2013
Download Judgment: English

The complainant, Federation of Catholic Families in Europe (FAFCE), had alleged violation of Article 11 of the European Social Charter(hereinafter Charter) on the ground that the government of Sweden (hereinafter respondent) had failed to enact legislation or insufficient/poorly implement legislation governing the practice of conscientious objection by health care providers, which had led to discrimination faced by women under art.E of the Charter. The practice of conscientious observation means that the health care providers can refuse to participate in the abortion practice owing to their religious or personal beliefs, furthermore it would preserve a patients’ access to health care by enabling them to be treated by like-minded health care workers. The respondent rejected the complainants’ arguments and pleaded before the committee to declare the complaint unfounded.
There were 3 major issues before the Committee to consider:
1. Alleged violation of art.11 and of art.E of the Charter on the grounds that there is no right to conscientious objection for health workers
2. Alleged violation of art.11 of the Charter on the grounds of the abortion of viable fetuses, sex-selective abortions, and eugenic abortions
3. Alleged violation of art.11 of the Charter on the grounds of the alleged high number of abortions

The Committee on the first issue took note of the complainants’ anxiety on Sweden’s failure to enact a legal framework governing the practice of conscientious objection by healthcare providers. It considered that under art. 11 there isn’t any positive obligation on the state to provide a right to conscientious objection for health care workers. The main concern for art.11 is to guarantee access to adequate health care, which makes pregnant women its primary beneficiary. It held that art.11 is not applicable in this case as it does confer the right to the conscientious obligation on the health workers, hence no discrimination under art.E can occur. On the second issue, it held that it is not called upon to address issues of a medical or ethical nature but to interpret the provisions of the Charter from the legal standpoint and the complainant had tried to expand the personal scope of the Charter by applying it to the unborn, which it can’t deal with. It held that there is no violation of art.11 by the respondents as they have struck a balance between the rights of women and the rights of the health of the fetuses through the legislation. On the third issue, the Committee considered that complainant had not proved that the number of abortions in Sweden is manifestly high and that these abortions are the result of a lack of access to contraception and to insufficient sexual and reproductive health education, therefore there is no violation of art.11

“The Committee finds that…States Parties enjoy a wide margin of appreciation in deciding when life begins and it is therefore for each State Party to determine, within this margin of appreciation, the extent to which a fetus has a right to health.” (Para 60)

“The Committee finds that it cannot be ruled out that, in a State Party to the Charter, a particularly high number of abortions may be directly attributed to the failure of the competent authorities to make contraception accessible and/or to consider other measures to prevent unwanted pregnancies which could legitimately raise problems with regard to the State Party’s compliance with its obligation, under art.11(2) of the Charter, to develop a sense of individual responsibility in health matters.” (Para 64)

• Article 11 of European Social Charter, 1961 – The right to protection of health Part I: "Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable". Part II: “With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organizations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-health; …” • Article 9 of the European Convention of Human Rights – Freedom of thought, conscience, and religion “1.Everyonehastherighttofreedomofthought, conscience, and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, worship, teaching, practice, and observance. 2.Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
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