Supreme Court split on landmark Northern Ireland abortion rights case

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, who are UK citizens who live in Northern Ireland.  In 2012, A, then aged 15, 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, but their reasoning is very different to the lower courts.  

 

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) when considered with Article 8 (right to private and family life) of the European Convention on Human Rights (ECHR).

 

Lord Kerr said (at paragraph 50):

 

“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.”

 

Four Doughty Street barristers acted in this landmark case.  Caoilfhionn Gallagher QC acts for the Appellants A and B, along with Stephen Cragg QC (Monckton Chambers), instructed by Angela Jackman and Hannah Manson, Simpson Millar.  Jude Bunting, along with Helen Mountfield QC (Matrix Chambers) and instructed by Richard Stein, Leigh Day, acts for five specialist NGOs who intervened in the case: Alliance for Choice, British Pregnancy Advisory Service, Birthrights, Family Planning Association, Abortion Support Network.  Heather Williams QC and Kate Beattie, instructed by Janet Farrell, Bhatt Murphy, acted for the British Humanist Association (now known as Humanists UK).

 

The Appellants’ solicitor, Angela Jackman, has confirmed that A and B now plan to exercise 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 and the interveners 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.
 

The Supreme Court judgment is available here and the Supreme Court Press Summary is available here.

The Appellants’ solicitors have issued a press release, available here Other press releases from British Pregnancy Advisory ServiceHumanists UK and Birthrights 

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