Supreme Court narrowly rejects Northern Ireland free abortions appeal

The UK’s highest court has narrowly rejected an appeal by a mother and daughter in their legal battle for women from Northern Ireland to receive free abortions on the NHS in England.

Supreme Court justices announced their three to two majority decision in London on Wednesday.

The 20-year-old woman at the centre of the appeal was 15 in October 2012 when she and her mother travelled from Northern Ireland to Manchester and was told she had to pay hundreds of pounds for a private termination because she was excluded from free abortion services.

They originally lost their action in the High Court in London in May 2014 when a judge ruled that the exclusion was lawful.

The judge concluded that the Health Secretary was entitled to adopt a residence-based system so that women resident in Northern Ireland are not entitled to benefit from NHS abortion services in England, even though they are UK citizens.

The mother and daughter, who cannot be named for legal reasons, suffered a further defeat at the Court of Appeal in 2015.

The Supreme Court’s deputy president Lady Hale and Lord Kerr said they would have allowed the challenge against that earlier decision.

Announcing the Supreme Court’s decision, Lord Wilson said the justices had been “sharply divided” about the outcome.

The majority however had concluded that the Health Secretary was entitled to reach the decision he did.

He said it was not for the court to “address the ethical considerations which underlie the difference” in the law regarding abortion in Northern Ireland and England.

Lord Wilson added: “But the fact is that the law in Northern Ireland puts most women in unwanted pregnancy there in a deeply unenviable position.”

During the proceedings last year lawyers for the mother and daughter said women and girls from Northern Ireland were being treated as “second class citizens”.

The young woman, who is referred to as A and her mother as B, have now vowed to take their case to Europe.

They said in a statement: “We are really encouraged that two of the judges found in our favour and all of the judges were sympathetic to A’s situation.

“We have come this far and fought hard because the issues are so important for women in Northern Ireland.

“For this reason, we will do all that we can to take the fight further. We have instructed our legal team to file an application with the European Court of Human Rights in Strasbourg, to protect the human rights of the many other women who make the lonely journey to England every week because they are denied access to basic healthcare services in their own country.”

Angela Jackman, a partner at law firm Simpson Millar, and the solicitor who has represented A and B throughout the legal process, said they had made “significant strides” since the High Court’s decision in the case.

She said: “I am heartened that Lady Hale and Lord Kerr, the two most senior judges on the case, gave strong dissenting judgments and would have allowed the appeal in full.

“This provides A and B with a firm basis for taking their case forward to the European Court of Human Rights (EctHR).

“I feel this case also demonstrates the importance of the EctHR, as our most senior judges are almost split down the middle on whether there has been a human rights breach or not on such a vital issue.

“The time is ripe to seek further redress for the women of Northern Ireland who have such limited rights.”

During the Supreme Court proceedings in November, Stephen Cragg QC, for the mother and daughter, said abortion had remained unlawful in Northern Ireland “in all but a tiny number of extreme cases”.

Contesting the challenge, Jason Coppel QC, for the Government, submitted that it was not irrational for the provision of non-emergency healthcare to be divided between the different countries of the UK according to the place of residence of the patient.

Lord Wilson said: “Each year, denied termination under the Northern Irish NHS, at least 100 of them travel in order to undergo one.

“But, unless it is an emergency, they are not currently entitled to a termination free of charge under the English NHS because they are not usually resident in England.

“So they have somehow to raise the money, often up to £1,000 and sometimes even £2,000, to pay for one to be performed in a private clinic in England.

“Thus, piled on top of the stress inherent in their situation, are set the difficulty and often the embarrassment attendant upon their needing urgently to raise the money.”

Ann Furedi, chief executive of the British Pregnancy Advisory Service (bpas), said: “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.”

Martha Spurrier, director of Liberty, said: “The UK Government can and must take a stand against laws which criminalise abortion.

“Will ministers continue to turn a blind eye to the suffering caused by these antiquated laws – or will they challenge their DUP partners and push for a change supported by the majority of Northern Ireland’s population?”

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