Response to interpellation 2023/24:660 on the Legal Council's role

Statsrådet Acko Ankarberg Johansson (KD)

Madam Speaker! Ulrika Westerlund has asked me whether I consider the Council on Legal Affairs to be the instance that should decide when and on what grounds women are allowed to have an abortion after the 18th week of pregnancy and whether I intend to take any initiatives to change this. She has also asked me whether I intend to take an initiative for the Council on Legal Affairs' methods of work and routines to be evaluated.

According to the Abortion Act of 1974 (1974:595), the National Board of Health and Welfare may grant an abortion after 18 weeks of pregnancy if there are special reasons, but not if the fetus is judged to be viable outside the uterus. At the National Board of Health and Welfare, these matters are handled by the National Board of Health and Welfare's Council for certain legal, social and medical issues, often called the Legal Council, which according to the Abortion Act among other things has the task of deciding on cases regarding permission for abortion and permission for termination of pregnancy.

From the Socialstyrelsen instruction, it appears that the Legal Council is a special decision-making body within the agency. The Council is responsible for its decisions and for its activities before the agency's management. The agency's management is responsible before the government that the Council's activities are conducted in accordance with the constitution and effectively and are reported in a reliable manner. When cases are handled, the Legal Council shall follow the provisions of the Administrative Procedure Act (2017:900) regarding, for example, documentation and justification of decisions.

The Council consists of a chairperson, two substitutes for the chairperson, and the number of members that the government determines. The chairperson and his or her substitutes shall have experience as a judge in legal matters. The Council's matters are decided in a committee. The Council has different compositions depending on the type of matter, and the members are experts in different fields depending on what the matter concerns. The Council includes doctors, forensic doctors, doctors with specialist competence in obstetrics and gynecology and forensic psychiatry, behavioral scientists, and representatives of the general public. The Council thus consists of a breadth of expert expertise, competencies, and experiences.

The National Board of Health and Welfare, in its annual report for 2023, makes the assessment that the Legal Council's cases have been handled in accordance with the requirements of the legislation and established routines and within the timeframe that the type of case requires, and against that background makes the assessment that there is nothing to indicate that the process would be legally insecure. The agency's board has, in turn, certified that the annual report provides a fair and true view of the operations.

The Government has no proposals to change the current order, and the Government follows the Council's work.

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Ulrika Westerlund (MP)

Madam Speaker! I thank the Minister for the answer. In the answer, the Minister has accounted for what is stated in the law and in the Socialstyrelsen instruction, and for how the Rättsliga rådet is structured and functions in a formal sense. But what prompted my question was, of course, not the formal criteria but a concern for how the council works in practice and the consequences this way of working can have for the women who need an abortion in the second trimester. This information is much more difficult to access, not to say non-existent. That was, therefore, the reason for the question.

I interpret the answer as that no measures are planned regarding the evaluation of either the Legal Council's procedures or the Council's mandate, that is, the more fundamental question of whether it is the Legal Council at all that should be the instance that decides when and on what grounds women are allowed to have an abortion after the 18th week of pregnancy. Therefore, I would like to begin the discussion by clarifying my concern and providing some in-depth examples of challenges linked to the Legal Council's working methods and design.

The proportion of rejections for abortions in the second trimester for social reasons has increased drastically; it has doubled since 2019. But there is no official explanation for this increase, and the Judicial Council itself has not been able to answer what it is due to. Obviously, the practice has changed, but there is no information on how this has occurred or in what the change consists. This drastic increase in rejections without the law or any other regulatory framework having been changed gives in itself reason to wonder about the legal certainty in the processing.

The situation is aggravated by the fact that the discussions in the Legal Council are not documented. Meeting minutes are missing. It is therefore impossible for persons outside the Council to follow the development of practice. What this means in concrete terms for a woman seeking an abortion is that she cannot foresee what decision the Legal Council will make in her case.

According to the Abortion Act, abortion after the 18th week of pregnancy shall be granted if special reasons exist. However, it does not appear from either the legal text, preparatory works, or any authority instruction what special reasons consist of. It is therefore practice that has come to give the concept of special reasons a content. But this practice is not documented. When practice changes, it is not particularly justified. The discussions in the council, where practice is developed, are not recorded.

The basis for a decision consists solely of a medical certificate and a counselor's certificate, that is, a medical and a psychosocial investigation. The Council never asks for supplementary information, even if the certificates are deficient in quality. The decisions are therefore entirely dependent on full-quality written certificates being presented, which is often not the case. Especially the counselor's certificates, which are completely central for an abortion for social reasons to be granted, are of very varying quality.

Decisions are prepared in advance and are not particularly justified. The woman who is denied her application does not receive a justification as to why her specific circumstances do not constitute special reasons. If she wishes to apply again, she therefore cannot, in her new application, address what formed the basis for the Legal Council's decision or argue that her specific circumstances should constitute special reasons.

A fundamental principle of the rule of law in a state governed by the rule of law is that an individual should be able to understand the law, the criteria for its application, and the consequences of their actions. I do not believe this principle is upheld in this matter.

My question is again: Does the Minister mean that the situation is not problematic?

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Statsrådet Acko Ankarberg Johansson (KD)

Madam Speaker! I thank the member for the question. I will nevertheless take the time to step back slightly. It is very important that we have an abortion law and the possibility of abortion care that allows the woman herself to decide up to the end of the 18th week of pregnancy. The majority of all abortions, however, occur much earlier than that and are medical abortions. This means that, in my assessment, we have good abortion care, because so many are given the opportunity to have an abortion at an early stage. Information is available regarding when one needs to make their decision. It is therefore a very small proportion that goes as far as the 18th week.

According to the decision in the Swedish Riksdag, it is up to the 18th week that we have free abortion. After that, we have a safety valve, and I think that is wise. I would have thought so regardless of which week limit we had. One needs a safety valve for the time thereafter to be able to handle certain cases that fall right in between. It is important that we have a safety valve that creates this possibility to review the situation and make a different assessment when the statutory time for free abortion has expired, that is, after the 18th week of pregnancy.

The government has, as stated, no intention of changing the law. We stand by the current abortion legislation. It is the National Board of Health and Welfare that handles this and which, according to instructions, shall handle it in a sensible manner. The certificates we receive regarding how this has been done confirm that it has been handled well. Kjell Asplund, who is the chairman of the board responsible for the National Board of Health and Welfare, has certified that it has been performed in a proper manner and that the Administrative Procedure Act is being followed.

It concerns relatively few people, and patient confidentiality is absolute in Sweden. It is difficult to be able to make large assessments in terms of research with such a small basis. If we want to be able to follow the development for research purposes, it is often difficult when it concerns a smaller population. But all of this is handled and decided by Socialstyrelsen. That is the administrative order we have in Sweden.

I do, however, think it feels necessary that precisely the Legal Council has the heavy staffing that it has. It is two different committees: a special committee that handles abortion issues and another committee that handles other issues that may come to the Legal Council. They are experienced and legally trained judges, which is supposed to guarantee that one upholds the principles of the rule of law. It is such a person who is the chairperson and is to safeguard the principles of the rule of law, chair the meetings and ensure that it functions well. But even the other competencies are extremely necessary, both those that are directly medical and those that behavioral scientists and social workers provide.

It is also the case that the public has insight. The parties' representatives are present. In total, it is 20 people who alternate at the Legal Council's committee meetings. Not everyone is needed every time, but it rotates; the council has many cases and needs to meet often. Therefore, there are a total of 20 people involved. But it is of course also necessary that this committee has a practice that is consistent. Both the board and the Social Services Agency's management have certified that the existing order is followed.

I do not think the question can be pursued any further right now. As always, it is important to follow the developments and see what can be done to ensure that we follow the principles of the rule of law and ensure that it is predictable. Then it is the case that the woman always has the opportunity to apply again, just as the member mentioned. That opportunity and that valve exists, if time permits. But it is not always the case that it works that way for individuals, because there is a time pressure for the person who ends up in this situation.

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Ulrika Westerlund (MP)

Madam Speaker! I thank the Minister again for the answer. I would, of course, like to continue a little with my detailed account of the challenges with the Judicial Council's work regarding abortions. I do not doubt for a second that we agree that the abortion legislation is good with the limits that exist. It is important with free abortion until week 18. I do not doubt either that the National Board of Health and Welfare follows the order. I am completely sure of that. The question is well just whether the order is good. Is this really a reasonable order to continue for 50 years after free abortion was introduced in Sweden?

The Legal Council consists, as the Minister said, of judges, doctors, specialist doctors, experts, social workers, and lay representatives, which means mostly Members of Parliament. Of these people, however, it is only certain ones—specialist doctors in obstetrics and gynecology, social workers, and certain experts—who have expertise specifically in the abortion issue and experience in meeting the target group. But everyone's voices in the Council weigh equally. It can, for example, I believe, be questioned why the political representatives have the right to vote. That the judge, a person without clinical expertise, has the casting vote, I also consider problematic. The layperson's place in the Legal Council means, in practice, that a politician who perhaps opposes fundamental abortion rights has a right to vote in individual cases.

No follow-up is being done on the rejections and how it goes for the women and for the children who are eventually born. There is therefore a lack of empirical data regarding what effect the legislation and its implementation actually have. There is also a lack of statistics on how many women have their application granted the second time after being rejected the first time.

Abortions are therefore free up to and including week 18. Then we have the discussion on what can be granted up to and including week 21 plus six days if special reasons exist, up until viability, that is, life viability. The limit for viability is currently 22 full weeks of pregnancy, but it can change through medical development.

Conferences are held every term with the members of the council who participate in the abortion decisions. Here, an overall practice for the council is discussed and created, but no minutes are kept. If minutes were kept, they would become public documents. That might be helpful, of course with anonymization of individual cases. But here is again an example of how it lacks in documentation and predictability.

During these conferences, the time limits can be adjusted for how one in Sweden shall define viability, which constitutes the outer limit for abortion according to the Abortion Act. But this is done without transparency and without the arguments being recorded in the minutes.

Abort after week 18 for medical reasons is approved according to practice almost always. It is mostly about fetal damage that is discovered during the later part of the pregnancy. If the woman, on the other hand, wants to undergo an abortion for what is called social reasons, what we are discussing here today and which is linked to her life situation and her assessment that she, for various reasons, cannot take care of a child, she is increasingly being denied.

This is a vulnerable group. It could involve women who are homeless, are trapped in substance abuse, live in a context of honor, or live in a violent relationship and only in week 19 get the opportunity to seek an abortion for an unwanted pregnancy. In that case, the risk is all the greater that these doctors and politicians and the judge whom the woman has never met think that she must carry, give birth to, and raise a child, even though it could involve a woman in difficult life circumstances.

I am still interested in hearing a bit more about what the Minister considers regarding the situation.

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Statsrådet Acko Ankarberg Johansson (KD)

Madam Speaker! I thank the member for the supplementary statement. I am becoming a bit unsure whether the member, despite the initial words, still wants to change the abortion law so that the limit is higher. If the woman is to have full right of decision until 21 weeks and six days, that is a different abortion law. The Government stands behind the current abortion law, which means free abortion until the end of the 18th week of pregnancy; then it is the woman who has complete control over the decision. But what the member speaks more in favor of is that there should be a higher limit.

As I said, I believe it is wise that one has this valve where there is an assessment part and that we have not just stopped at the 18th week of pregnancy as the sharp limit without adding a couple of weeks where there is a possibility to make an assessment. I believe it is a wise arrangement to have such a valve after the 18th week of pregnancy. It is not the government's view that we should change the parts that exist in the law.

I am also a bit surprised if the member believes that the public should not have insight. It has been a rather recurring principle in many legal parts that we want the public's voice included in some way, also in the parts where decisions are made about something that one sometimes is not even allowed to talk about. So that is the case regarding many things. Some assessments are security-related. It can also be about patient confidentiality. Then you are not even allowed to talk about it. But you are the public's voice in because we have judged that it is wise for democracy to have such an arrangement, and the parties nominate members.

If the member's party does not want the public involved in such legal contexts, we must, of course, consider the issue in the future—if one means that it is completely wrong and that it should be only the profession that decides. I still believe that there is great value in us having the public's voice included in different ways.

I still want to say that the member expresses that one is not following what one should follow. The information I have received, and which has been certified by the authority's board which sits with full mandate, is that it is considered that both the Socialstyrelsen management and the Legal Council have followed the provisions that exist in law, the Administrative Procedure Act, and other parts, and I have no reason to make any other assessment.

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Ulrika Westerlund (MP)

Madam Speaker! I thank the Minister again for the answer. I may have to clarify myself. This is not about whether the abortion legislation should be changed. What I am looking for is rather whether the Legal Council is the correct body for these decisions, or whether these decisions instead should be able to be made by the responsible physician without them having to pass through the Legal Council.

I also think that the balance we have made in the legislation with free abortion up to the 18th week of pregnancy and then, in exceptional circumstances, a possibility for an extension is a good arrangement. The question is only where the assessment of whether exceptional circumstances exist should lie. There I must maintain that I do not consider it to be laypeople who have not met the person concerned who are those best suited to make this decision. It could be made by other people, such as doctors and people who have met the person concerned. I maintain then that there are principled objections to this arrangement that the Judicial Council is involved in this type of decision. I also think there is reason to believe that there are problems regarding how the Judicial Council operates, if we read the report in Ottar that I raised in my interpellation - that practice has changed over time without it being possible for outsiders to analyze why.

Furthermore, there is no follow-up on how it goes for the women who are denied abortions for social reasons. What happens for these women when their application is rejected, and how does it go for the children who are eventually born? There is no information whatsoever about this.

Given all this, I do not believe that Socialstyrelsen is breaking the current order. It is more the order itself that I question. I absolutely believe that they are working correctly and as intended.

Much has happened in the view on women's right to self-determination over their lives and their bodies and where decisions should be made. The question then is whether it is reasonable that we have an organ consisting of judges and politicians who make life-altering decisions about women's bodies with an almost total lack of oversight and transparency.

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Statsrådet Acko Ankarberg Johansson (KD)

Madam Speaker! I thank the member for the supplementary information. I hope I do not drag this out too long, but I perceive that the member still considers that the law needs to be changed because it is stated that it is Socialstyrelsen that has to make this assessment during the time that this valve exists, and that the member's possible thought is that it should be the responsible doctor, the one who today writes the certificate, who should instead make the decision.

I do not know if it would result in a more legally secure assessment. Different assessments will be made by all the doctors who exist in Sweden. Maintaining a practice will be quite difficult if it is the individual doctor who meets women in these situations who is to maintain a national practice. I see difficulties in this.

But it is clear that if the member writes a motion to the Riksdag, I welcome it, so we will see what support there is for thinking in a different way. But the government does not intend to change the current abortion law.

The interpellations debate was hereby concluded.

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