University of Cambridge
Should women from Northern Ireland have access to free National Health Service (NHS)-funded abortions in England? This was the issue addressed by the Supreme Court in R (on the application of A and B) v Secretary of State for Health. This decision raises important constitutional and human rights issues concerning the nature of devolution and the equality of women. In a disappointing decision, the Court found that the Secretary of State was not compelled by statute to exercise his discretion to fund women from Northern Ireland who seek abortion services in England.
A clear condition of any meaningful reproductive freedom requires state funding and provision. Funding of abortion services has been a highly contentious issue in other jurisdictions, especially the USA. Although abortion rights have been recognised by the US Supreme Court in Roe v Wade 1973, many individual states have been chipping away at this constitutional right, making abortion more difficult both financially and practically. In contrast, apart from Northern Ireland, abortion is reliably accessible in Britain provided that the conditions of the Abortion Act 1967 are met. Unfortunately this recent decision permits inequality in treatment of women from Northern Ireland.
Following the Supreme Court judgment, and after threats of a defeat in the House of Commons vote on the Queen’s Speech at the June 2017 opening of Parliament, the UK Government agreed to change its policy on this funding issue. Lacking an overall majority, the Conservative Party was willing to compromise in order to avoid an embarrassing defeat. Nevertheless, the appellants still plan to take the decision to the European Court of Human Rights. In this post, I explain the context of abortion regulation in the UK, examine the judgment and provide some concluding remarks.
Abortion Law in the UK: the Context
Women in Northern Ireland do not enjoy the same access to abortion as their United Kingdom counterparts. The Abortion Act 1967 decriminalises abortion in certain defined circumstances in England, Wales and Scotland. Due to the liberal interpretation of the statutory exceptions to the criminal law by the medical profession, a permissive abortion practice has evolved. The vast majority of legal abortions are funded through the NHS. In contrast, the criminal law in Northern Ireland remains the same as the law which existed in the United Kingdom, prior to the Abortion Act 1967. As part of the devolution arrangements, abortion law is a ‘transferred matter’ and within the legislative competence of the Northern Irish Assembly. Abortions are only permitted in Northern Ireland on highly restricted grounds. Guidance to medical practitioners provides: “The law… does not allow interventions that have as their sole purpose the ending of the life of the fetus…. Any intervention… that is potentially harmful to the fetus must only be carried out with the intention of protecting the woman against physical or mental health issues that are ‘real and serious’ and ‘permanent or long term’.” Ordering the abortion pill online also carries the risk of a criminal law prosecution.
Lacking alternative options in Northern Ireland, women frequently travel to other parts of the United Kingdom in order to access safe and lawful terminations of pregnancy. Statistics suggest that approximately 1,000 women a year travel to England to secure abortions and, as some women conceal their Northern Irish residency, the figure is probably higher.
The financial and emotional costs to pregnant and often-vulnerable women are significant. The compatibility with human rights of the current restrictive abortion law in Northern Ireland is the subject of separate court proceedings.
The Case Before the UK Supreme Court
The appellants were a 15 year old girl (A) who had travelled to England, accompanied by her mother (B), for an abortion at a private clinic in Manchester. Both A and B were UK citizens and usually resident in Northern Ireland. The costs of travel and the termination at the clinic amounted to about £900, of which £400 was contributed by a charity and £500 was borrowed from friends. Lord Wilson, who wrote the lead majority judgment, acknowledged sympathetically that “adding significantly to the emotional strain on both A and B …[was] the embarrassment, difficulty and uncertainty attendant on the urgent need to raise the necessary funds.”
The Supreme Court had to address two issues. First, whether the Secretary of State had acted unlawfully by failing to exercise his powers under the National Health Service Act 2006 to provide abortion services for A under the NHS in England (the public law claim). Secondly, whether this failure, constituted a discriminatory interference, contrary to Article 14 of the European Convention on Human Rights (ECHR), in conjunction with the appellants’ right to private life under Article 8 ECHR (the human rights claim). The Supreme Court split three to two on both issues.
The majority (Lords Wilson, Hughes and Reed) concluded that the UK Parliament’s health scheme was that separate authorities in each of the four countries within the UK should provide free health services to those usually resident there. “The Secretary of State for Health was entitled to make a decision in line with this scheme for local decision-making.”  In deciding what, if any, provision to make, it was relevant for him to respect the democratic decision of the Northern Ireland Assembly which had decided not to fund abortion services.
On the human rights issue, all members of the court accepted that access to abortion was within the ambit of the autonomy and dignity rights protected by Article 8 ECHR. In addition, all members of the Supreme Court agreed that there was discrimination on the ground of usual residence but the majority found that the difference in treatment was justified. The Secretary of State was entitled to respect the different policy choices of the devolved legislatures concerning abortion, and not to interpret the law in England in a way that might impinge on those choices.
Lord Kerr delivered a powerful dissenting judgment. On the public law challenge, he considered that it was the statutory duty of the Secretary of State to cover NHS abortion services for Northern Ireland women in England. In his view, this conclusion does not show any disrespect to the Northern Ireland Assembly: “The democratic decision-making in Northern Ireland simply does not impinge on the exercise by Northern Ireland women of their rights in England.” 
In relation to the human rights challenge, Lord Kerr contends that medical services are discharged on a geographical basis, thus: “If an Englishwoman is treated in Northern Ireland on the NHS for a condition suffered during a visit to that country, no interference with the scheme for the four countries arises. Likewise, no interference would arise if Northern Ireland women who are in England were permitted to have abortions on the NHS.” In his view, residency cannot provide a legitimate aim on which to base a difference in treatment. Nor can a decision by the Assembly not to provide the medical service of terminating pregnancy constitute a legitimate aim. There is no assertion that the law in Northern Ireland and England should be the same, rather it is that “when women from Northern Ireland are in England, they are entitled to be treated in the same way as Englishwomen in the provision of abortion services.” 
Baroness Hale agrees with the reasoning of Lord Kerr. In addition, her dissent was influenced by the fundamental common law values underlying the legal system, including “autonomy and equality, both of which are aspects of an even more fundamental value, which is respect for human dignity.”  Denying Northern Ireland women the same rights and choices over their bodies, as is enjoyed by all other pregnant citizens of the United Kingdom, is inconsistent with the principle of equal treatment underlying our law. Moreover she argues that pregnancy should be viewed as a special case, linking it directly to the principles of autonomy and dignity of women.
Abortion law is a combination of private choices, policy and legal regulation. Underlying these positions are strongly- held moral convictions. A positive feature of this decision is the unanimous agreement that abortion services impinge upon the autonomy and dignity rights of women and that the difference in treatment constituted discrimination. However the decision of the majority would not have assisted the women of Northern Ireland and left them at a grave disadvantage compared to every other woman resident in the UK. In the view of the majority, the NHS funding of abortions in England may undermine the democratic choices made in Northern Ireland. As the minority judges pointed out, however, funding Northern Ireland women in England would have (and, following the UK government’s change of policy, has had) no effect on the criminal law of abortion in Northern Ireland. Although the decision was not directly about the policy choices of the Northern Ireland Assembly, its moral position underpinned the decision of the majority.
It was only Baroness Hale who specifically highlighted the private aspect of the abortion decision and linked it to state responsibility. Pregnant women have won the right “to exercise autonomy in relation to treatment and care.” Provided the legal and procedural requirements of the Abortion Act 1967 are complied with in England, “it is the woman’s choice whether or not to have that abortion.”
If this judgment had stood, legal regulation would have continued to make the lives of Northern Ireland women with unwanted pregnancies much harder than necessary. Ultimately it was the publicity generated by this judgment that led Stella Creasy (MP), to lead a successful campaign to change the law on funding.
By Dr Stephanie Palmer, University Senior Law Lecturer at the University of Cambridge and a Fellow and Director of Studies at Girton College, Cambridge. Dr Palmer teaches a range of courses in public law and human rights to undergraduates and postgraduates at the University of Cambridge. Her research interests include human rights, public health law and feminist theory. She is a barrister at Blackstone Chambers, the leading public law and human rights set in London.