“A woman from Northern Ireland (NI) 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.” Lord Kerr, (dissenting), R (on the application of A and B) (Appellants) v Secretary of State for Health (Respondent); 14 June 2017
The UK Supreme Court has upheld the ban on women from Northern Ireland receiving NHS-funded abortion services in England. In dismissing the appeal brought by a mother and daughter known only as A and B, the judges referred to “the democratic decision reached in Northern Ireland in relation to abortion services”. The matter is known to have divided the five judges involved, however the appeal was dismissed by a majority of three-to-two.
Abortion is “unlawful” in Northern Ireland, and although there are exceptions, strict criteria will be applied in each case[ii]. The termination of a pregnancy can be allowed if the life of the mother will be threatened if it were to continue. It may also be permitted if continuing with the pregnancy would adversely affect the mother’s mental or physical health, although this risk must be “real and serious,” as well as “permanent and long term”, and matters will be decided on a case-by-case basis. However, in every instance, in order for treatment to take place in Northern Ireland, the period of gestation must be less than nine weeks and four days. Beyond this, patients must travel to England to undergo a termination.[iii] According to figures published by the UK Department of Health, an average of two women per day travelled to England from Northern Ireland seeking abortion services during 2016.
In this case, a mother and daughter known only as A and B, had appealed to the Supreme Court, the highest court in the UK, against an earlier decision of the High Court in 2014, in which her exclusion from entitlement to free services was held to be lawful, a ruling which was subsequently upheld by the Court of Appeal in 2015.[iv]
In 2012, when the 20-year-old woman known as A was aged 15, she travelled to England from Northern Ireland with her mother who is known as B, to undergo a termination, which was carried out at the Marie Stopes International Clinic in Manchester. Although the patient A was a UK citizen, she was not entitled to free NHS services because she was normally resident in Northern Ireland. They therefore had to pay the costs of her treatment to the degree of around £900, £400 of which came from the Abortion Support Network (an intervener in this case), with the remainder having to be borrowed from friends.[v] This meant that in addition to the emotional stress of realising that A was pregnant and making the decision to travel to England for a termination, they were also faced with having to raise these funds as a matter of urgency.[vi]
In delivering the verdict, Lord Wilson submitted that the five senior judges had been “sharply divided” over the case, which was eventually decided on the verdict of the majority. Although it was acknowledged that the views of the two dissenting judges commanded “considerable respect,[vii]” the appeal was dismissed. In delivering his judgement, Lord Wilson concluded that the exclusion of the woman known as A from free abortion services was not unlawful in this case. In 2012 when the facts of the case arose, it was presumed that the Secretary of State for Health did have a power to enable citizens of Northern Ireland to undergo free services in England, however this power was not exercised, posing the question to the court as to whether this failure was unlawful[viii]. It was held that it was not. In his summing up, Judge Wilson concluded that the Secretary of State was entitled “to afford respect to the democratic decision of the people of Northern Ireland; was entitled to have in mind the undeniable ability of Northern Irish women lawfully to travel to England and to purchase private abortion services there…”
Ann Furedi, chief of the British Pregnancy Advisory Service, said: “We are of course disappointed with the overall verdict of the Supreme Court. However, this ruling confirms it is in Jeremy Hunt’s power to grant NHS-funded abortion care to women resident in Northern Ireland and his refusal to do so is political. It is not based on cost.
“NHS-funded abortion care may not have been declared a legal right for Northern Irish women today, but it is morally right to provide it. 724 women travelled from Northern Ireland to England for abortion care in 2016. They deserve the same care and compassion as all other UK citizens.”[ix]