Supreme Court Split On Landmark Northern Ireland Abortion Rights Case
The Law Of… The Supreme Court
The Supreme Court has divided, three votes to two, over the question of whether women who live in Northern Ireland and travel to England to access abortion services should be entitled to free abortions provided by the NHS. All five Supreme Court judges have ruled that the current situation discriminates against women resident in Northern Ireland, but they have disagreed over whether that discrimination is justified.
The case was brought by a young woman and her mother, known only as A and B to protect their identities given the intensely private nature of the issues at stake.
In 2012, A, then aged 15 and resident in Northern Ireland, fell pregnant. Unable to access abortion services in Northern Ireland, she travelled to Manchester with her mother, B, and used the services of a private clinic, at a total cost of £900 (including travel). As a low income family, this was a huge sum to raise and they were only able to travel thanks to financial support from the charity Abortion Support Network. The abortion was delayed due to the need to raise money and make travel arrangements, meaning that A’s pregnancy had progressed further and the abortion was more physically invasive and distressing than it would have been when A first learned of her pregnancy and decided to have a termination.
The Secretary of State for Health accepts that it is within his power to arrange for abortion services to be provided to women from Northern Ireland through the NHS in England but he has refused to exercise that power. A and B brought proceedings for judicial review, claiming that his refusal was unlawful. The claim was dismissed by the High Court and the Court of Appeal dismissed the appeal. The Supreme Court has now upheld that outcome and refused A and B’s appeal, by the narrowest of margins.
Three Judges (Lord Wilson, Lord Reed and Lord Hughes) have ruled that, on balance, although there has been discrimination against A and B, the discrimination is justified within the scheme of devolved health services, with Northern Ireland, England, Scotland and Wales each being responsible for providing free health services within their own countries.
However Lord Kerr and Lady Hale, the two most senior members of the Court, have disagreed, giving powerful dissenting judgments. They have both ruled that it is the Secretary of State for Health’s duty to ensure that UK citizens present in England, but ordinarily resident in Northern Ireland, who require access to abortion services should be provided with such services free of charge through the NHS. They have found that the current policy unjustifiably breaches women’s rights under Article 14 (freedom from discrimination) and Article 8 (right to private and family life) of the European Convention on Human Rights (ECHR).
Lord Kerr said:
“A woman from Northern Ireland visiting England who suffers an acute attack of appendicitis will have, if it proves necessary, her appendix removed in a National Health Service hospital, without charge. The same woman, if she travels to England in order to obtain an abortion must pay for that procedure. How can this be right? The answer is that it cannot be, and is not, right.”
A and B wish to issue the following statement:
“We are really encouraged that two of the judges found in our favour and all of the judges were sympathetic to A’s situation. We have come this far and fought hard because the issues are so important for women in Northern Ireland. For this reason, we will do all that we can to take the fight further. We have instructed our legal team to file an application with the European Court of Human Rights in Strasbourg, to protect the human rights of the many other women who make the lonely journey to England every week because they are denied access to basic healthcare services in their own country.”
Angela Jackman, a partner at law firm Simpson Millar, and the solicitor who has represented A and B throughout, states:
“We have made significant strides since the Administrative Court’s decision 3 years ago which found that neither Article 8 nor Article 14 were engaged. The Court of Appeal confirmed that Article 8 is indeed engaged and all five of the judges concluded that my clients were discriminated against (on the basis of their status as UK citizens, present in England and usually resident in Northern Ireland) Whilst a slim majority decided the discrimination was justified, I am heartened that Lady Hale and Lord Kerr, the two most senior judges on the case, gave strong dissenting judgments and would have allowed the appeal in full. This provides A and B with a firm basis for taking their case forward to the European Court of Human Rights (EctHR).
I feel this case also demonstrates the importance of the EctHR, as our most senior judges are almost split down the middle on whether there has been a human rights breach or not on such a vital issue. The time is ripe to seek further redress for the women of Northern Ireland who have such limited reproductive rights.”
A and B will be exercising their right to take the case to the European Court of Human Rights, as soon as possible, now that the case has been heard by all the domestic courts. In addition A and B’s solicitors will be writing to the Secretary of State for Health, Jeremy Hunt, this week to ask him once more to reverse the discriminatory policy that prevents women from Northern Ireland obtaining an abortion on the NHS in England. Although the Supreme Court has split 3:2 on the question of whether he must take this step, they have unanimously recognised that he has a power to do so. That is a power which A and B now call on him to exercise, to stop other women - and in particular low income women – from Northern Ireland going through what A has gone through.