Law over mind, and body? A study of the debate and aftermath of the abortion travels to Poland in 1965 and the case of a midwife invoking her conscience in 2017

Abstract: This thesis orbits around the changes in the Swedish abortion laws during the last century, and the relation to religion. The aim is to make visible the values enshrined in the first abortion law, and those in the current abortion law, as the legislation made a volte-face in the 1970’s. Today, abortion is a right and the state is the duty-bearer. This construction collides with the conscience of religious health care personnel. By the examination of two events and the debates in relation to them, the changes and the collisions are highlighted. In addition, the material is examined by the help of the theory critical positivism. Critical positivism divides the law into three levels. This division makes visible how the law serves to produce and reproduce itself – and the values therein. Then, exactly what has changed? What values can we see in the laws and what has been put forward in each respective debate? As the issues pertain to human rights, what does the ECHR framework set forth? In 1965, Swedish women travelled to Poland to obtain abortion. At the time, the Swedish penal law had ceased to be applied, but remained in force. Nevertheless, the Prosecutor General wanted to prosecute the persons involved, for the purpose of preserving Swedish morals; a purpose that cause indignation in the debate. Subsequently, abolition was employed. In the affair’s immediate aftermath, the investigation that lead to the new abortion law was commissioned. At the time of writing, a midwife has lost her case before the Labour Court, where she claimed her right to conscientious objection to abortion. To uphold a criterion for employment that requires every employee to participate in all parts of work, even though a part of the work is not compatible with the conscience of the one seeking the position, does not amount to discrimination. By also studying the preparatory works to both the abortion legislation and the provision on freedom of religion, the breaking of ties between abortion and religion, and the state and religious morals, is made even more visible. It is also revealed that the constitutional protection of religious exercise is not as strong as it seems – freedom of religion cannot impede social reforms or interfere with the principle of majority. As a result of the comparison and the analysis, the thesis highlights the development and finds that the value promoted today, access to abortion, is upheld by the Labour Court’s judgment in relation to conscientious objection, and in a Swedish context, also by the ECtHR.