No NHS abortions for NI women, says High Court

Government rules that prevent women from Northern Ireland receiving free abortions on the NHS in England have been upheld by the High Court.

A test case was brought by a girl, referred to as “A”, unable to access services free of charge.

The law on abortion is stricter in Northern Ireland than in England and Wales, where the 1967 Abortion Act liberalised the position.

In Northern Ireland, termination of pregnancies generally remains unlawful unless carried out to preserve the life of the mother.

Mr Justice King, handing down judgment at London’s High Court, said the differences in the legal position had “not surprisingly led to a steady stream” of pregnant women from Northern Ireland to England to access abortion services not available to them at home.

But he ruled that the Health Secretary’s duty to promote a comprehensive health service in England “is a duty in relation to the physical and mental health of the people of England”, and that duty did not extend “to persons who are ordinarily resident in Northern Ireland”.

The judge said the latest Department of Health statistics, relating to 2011, showed over 1,000 women from Northern Ireland had abortions in England, the vast majority in fee-charging independent clinics.

Only five were provided free of charge on the NHS.

He said A was aged 15 when, in October 2012, she and her mother, who helped her bring her legal challenge, travelled to England to have a pregnancy terminated at the Marie Stopes clinic in Manchester.

The operation cost £600 plus travel costs of some £300, half of which was provided by the Abortion Network, a NI voluntary organisation.

The teenager had been denied a termination by the medical authorities in Northern Ireland.

The mother described “the whole experience and stress” of not knowing whether it was going to be possible for her daughter to have the procedure and raise the funds as “harrowing”.

She said in a statement to the court: “Had we known from the outset that we would be able to travel to the UK and that A could have the procedure free on the NHS, this would have significantly reduced the stress and trauma she experienced.”

The mother said she had taken legal advice in England and understood that publicly-funded health care services “are intended to be free at the point of use for all UK residents”.

She added: “I feel my daughter has been treated most unfairly, because when she required treatment in another part of the United Kingdom she did not get it, and was offered no assistance by the state health care system.”

If her daughter had had some other health condition which necessitated her travelling to another part of the UK for treatment “I believe that no obstacles would have been put in her way and that every effort would have been made to ensure that she was treated in an appropriate NHS facility and had assistance with travel costs”.

But the judge said the mother had misunderstood the legal position.

Unless it was an emergency case, services like abortion were not provided on the NHS in England to people who were not “not ordinarily – or usually – resident in England”.

The judge said the legal challenge was to the legislative framework under the 2006 NHS Act for the provision of medical and health care services “through the NHS in England”, as distinct from services provided in other parts of the UK.

The residence-based system reflected “the separation of powers between the health services in the four jurisdictions in the UK” – England, Wales, Scotland and Northern Ireland.

The judge rejected accusations that the Health Secretary had adopted an unlawful policy under the NHS Act, or that it was incompatible with anti-discrimination provisions of the European Convention on Human Rights.

The judge said the lack of abortion services in Northern Ireland was “a consequence of the devolution of powers and duties (within the UK) not only in relation to health care… but in relation to criminal law”.

However the judge highlighted the fact that new statutory arrangements for commissioning services under the NHS Act had come into force in April 1 2013.

He said the Health Secretary was still under a general duty to promote, in England, a comprehensive health service “for the people of England”.

But responsibility for actually providing secondary care services, including abortion, had been devolved to clinical commissioning groups (CCGs).

Under the new regime, said the judge, CCGs had “a discretion” to commission services, including abortions, “for the benefit of all potential patients, including patients ordinarily resident in Northern Ireland”. But this was only a discretion and not a duty.

Ann Furedi, chief executive of the British Pregnancy Advisory Service, which assists women from Northern Ireland, said: “We are saddened but not surprised by this decision that women from Northern Ireland are not entitled to NHS-funded abortion treatment in England.

“But let this ruling serve as a reminder of the appalling fact that women from Northern Ireland are forced to travel to England everyday to access a fundamental healthcare service that they should be able to obtain at home, or take their chances by illegally buying abortion medication online.

“Outlawing abortion does not prevent women having abortions, it simply increases the physical, financial and emotional burden of obtaining the care they need.

“If women from Northern Ireland cannot get NHS-funded abortion care in England then surely the time has come to ensure they can get that care at home.”