Challenge to bar on NHS abortion services for NI women to continue

The Court of Appeal has handed down judgment this morning in this important case concerning the position of hundreds of pregnant women forced to travel to England each year and pay hundreds of pounds for a termination as they cannot obtain abortion services on the NHS in England.  Currently, lawful abortions are only available in rare, highly exceptional circumstances in Northern Ireland (not including, for example, rape, incest or severe foetal abnormality).  This means that many women travel every year between two different parts of the UK in order to access abortion services, from Northern Ireland to England.  However abortion services are not available as part of the NHS in England and so these women must pay privately in order to access abortion services. 

 

The appeal was brought by a young woman and her mother, known only as ‘A & B’ . In 2012, when A was aged 15, she was pregnant and did not wish to continue in the pregnancy, a choice supported by her mother. They were informed at a local hospital that the only way to have a termination would be to travel to England and have it privately. As they are from a low income family securing the funds was difficult and only made possible with the assistance of a charity.  When the funds had been raised, A and B travelled to England.  The operation cost £600 on top of travel costs of £300.   The delay and uncertainty whilst they were attempting to raise the funds caused both women additional distress and anxiety.  A and B challenge the Secretary of State for Health’s policy of excluding provision as part of the NHS in England for women such as A who are resident in Northern Ireland and seek abortion services in England.

 

The Court of Appeal has dismissed A and B’s appeal, but it disagreed with the Secretary of State for Health’s position on the applicability of  human rights legislation and confirmed  the relevance of Article 8(1) ( right to private and family life) in this area of law. Lord Justice Elias stated:

 

“I consider that the denial of the right to a free abortion, thereby putting stress and pressure on women and sometimes their relatives who cannot afford to pay for an abortion, is treatment which engages Article 8 (1)…..once a state has agreed to fund abortions for some women, as the Secretary of State in England has done, I have no doubt that it is conferring a right falling within the ambit of Article 8 since it bears directly on personal autonomy. This is particularly so given that for some women, as for this appellant and her mother, additional stress may result from concerns about finding the money necessary to enable her to have access  to a private abortion. The rules determining who should receive the free service and who should be excluded may therefore engage the discrimination principle in Article 14. “ 

 

A and B are now seeking permission to appeal to the Supreme Court.

 

A and B are represented by Caoilfhionn Gallagher, led by Steve Cragg QC; they are instructed by Angela Jackman, Maxwell Gillott Solicitors.

 

Jude Bunting acted for the NGO Alliance for Choice which intervened in the appeal.  He is instructed by Richard Stein, Leigh Day.

 

More information is available in the Maxwell Gillott press release.

 

Coverage of the appeal can be found in the Belfast Telegraph.

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