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Supreme Court: NI residents must pay for abortions in England

Health secretary has a duty to prevent illness arising from an unwanted pregnancy, say dissenting judges

14 June 2017

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The decision taken by the NHS in England not to offer free abortion services to Northern Ireland residents was lawful and did not breach human rights, the Supreme Court has ruled by a majority of three to two in a ‘sharply divided’ decision.

Giving the lead majority judgment in R (A and B) v Secretary of State for Health (2017) UKSC 41, Lord Wilson, with which Lords Reed and Hughes agreed, held that each country in the UK should only provide free health services to those usually resident there.

Northern Ireland’s democratic decision not to fund abortion services should be respected, he added, while the ability of Northern Irish women to lawfully travel to England and purchase private abortion services should be taken into account.

Lord Wilson, who admitted that the five justices had been ‘sharply divided’ on the case, also concluded that there was no discrimination on the ground of usual residence under article 14 of the European Convention of Human Rights and no breach of the right to private and family life under article 8.

The decision not to provide abortion free of charge was rational in the context of the devolved scheme for health services, and it was a legitimate aim that justified the difference in treatment.

The appeal concerned a woman who resided in Northern Ireland but sought an abortion in England where the law around terminating pregnancy is less strict. Terminations in NI are only permitted if a woman’s life is at risk, or there is a serious risk to her mental or physical health.

She attended a private clinic in Manchester and underwent an abortion but refused to pay £900 for the service claiming that she was entitled to free treatment as a UK citizen.

Dissenting judge Lord Kerr, with whom Lady Hale agreed, said he would have allowed the appeal because the secretary of state has a duty under the National Health Service Act 2006 ‘in the prevention, diagnosis, and treatment of illness’.

‘Allowing an unwanted pregnancy to continue to term carries a risk of physical or mental injury. There can therefore be no question but that Englishwomen who seek an abortion in England are being treated “for the prevention … of illness” under sections 1(1)(b) and 3 of the 2006 Act.

‘Women from NI provided with abortion services in England are likewise being treated under these provisions. The single difference is that women from NI cannot avail of section 1(3) [free services], whereas women from England can.’

Lord Kerr rejected Lord Wilson’s reasoning that the respondent’s legitimate aim of staying ‘loyal’ to devolved health services in each country could justify a difference of treatment.

‘Permitting women who come from NI to have their abortions on the NHS involves no compromise on the scheme of having each of our four countries being responsible for local provision of medical services,’ he said.

Lord Kerr concluded that he would not have accepted the human rights claim on the basis that women from Northern Ireland were treated differently from women in England.

Lady Hale added: ‘The NHS can charge women from abroad to whom they provide abortion services. But they cannot charge women from the United Kingdom, however great their need.

‘This is to deny pregnant women from Northern Ireland the same right to choose what is done with their bodies as is enjoyed by all other pregnant citizens of the United Kingdom.

‘It is inconsistent with the principle of equal treatment which underlies so much of our law. This is not to say that the law in Northern Ireland has to be the same as the law in the rest of the United Kingdom.

‘That is not what this case is about. But it is to say that a woman from Northern Ireland who is in Great Britain ought not to be denied, as a matter of policy, the same rights as other women here enjoy.’

Matthew Rogers is a reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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