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Northern Irish abortion challenge fails in UK Supreme Court

14 June 2017

A teenage girl from Northern Ireland has failed in an appeal to the UK Supreme Court, where she sought a ruling that Health Secretary Jeremy Hunt had wrongly failed to facilitate the availability of abortions in England for people from Northern Ireland.

The girl, referred to as A, had become pregnant at the age of 15 but was unable to obtain an abortion under the province's strict abortion laws. Her mother assisted her to travel to a private clinic in Manchester for an abortion at a cost of £900. She argued that the Secretary of State's duties under the NHS legislation in England, to promote a comprehensive health service required him to direct that abortion services in England be provided by primary care trusts for the benefit of all persons present in their area who were citizens and residents of the UK rather than only for those “usually resident in” their area, and that he had irrationally and unlawfully taken into account the Northern Ireland Assembly’s decision not to provide abortion services. His failure to make a direction also violated article 14 of the European Convention on Human Rights, taken in conjunction with article 8, because her right to respect for private and family life was not secured without discrimination on the ground of usual residence.

By a three-two majority the judges dismissed her appeal. Lord Wilson, with whom Lords Reed and Hughes agreed, expresses sympathy with “the deeply unenviable position” of those in A's situation, but said that Parliament’s scheme was that separate authorities in each of the four countries in the United Kingdom should provide free health services to those usually resident there, and the Secretary of State was entitled to make a decision in line with this scheme for local decision-making.

Further, he was entitled to afford respect to the democratic decision of the people of Northern Ireland not to fund abortion services, and to take into account the ability of Northern Irish women to lawfully travel to England and purchase private abortion services there. The human rights challenge also failed as, while the decision as to whether to provide abortion services to a group of women free of charge fell within the scope of article 8, the difference in treatment was justified. In staying loyal to the devolved scheme for health services and the democratic process in Northern Ireland, he could not have reached any decision less intrusive on A's article 8 rights. His decision struck a fair balance between the appellants’ rights and the interests of the UK community as a whole and, accordingly, was justified.

Lord Kerr and Lady Hale would have allowed the appeal. The Northern Ireland Assembly had expressed no view about the ability of Northern Irish women to travel to England to obtain abortions, and allowing these to take place on the NHS would not alter its democratic decision. Further, no legitimate aim existed for the interference with article 8. Allowing Northern Irish women abortions on the NHS would not compromise the scheme of local provision of medical services, and neither democratic deference to the Northern Ireland Assembly nor cost could qualify as legitimate aims.

Click here to access the judgments.


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