Northern Ireland abortion refugees: Supreme Court

14 June 2017 by Rosalind English

 R (o.t.a A and B) v. Department of Health [2017] UKSC 41, 14 June 2017 – judgment here. 

Sometimes The Law comes to the rescue. And by this I do not mean constitutional law versus populism or the rule of law versus raw-knuckled fighting.  It just happens that, occasionally, litigation drawn from ordinary life encapsulates more political debating points than a week’s worth of press analysis.

If you want to hear the real deal about devolved government, Northern Ireland, sexual assault, the meaning of “England”, abortion, federalism, the power of the state, healthcare, medical tourism, women’s rights, discrimination, nationality, social security or the NHS, you need do no more than read this case. As for the majority judgments and the two dissenters, pay close attention to the language because within the phrasing other truths emerge.

Travel between countries not at war with each other is not (yet) illegal. But what the law prohibits here, may be legal there: see my post here on surrogacy arrangements in the US. Reproductive technology, unlike most medicine, creates a jurisdictional problem, largely because the result is not the end of the legal problem, but a child.

The claim can be put simply. Women in Northern Ireland have such restricted access to abortion that they have to come to England to seek out the services of private clinics such as Marie Stopes. This is because the Northern Ireland Assembly, which has responsibility for health services, only allows for termination in the case of pregnancies that threaten long-term psychiatric or physical harm to the carrier, something that few NI doctors are willing to sign off. The cost of the clinic and travel fees, along with the stigma, is enough to discourage some – victims of sexual assault or those carrying abnormal foetuses – from undertaking such a journey. The result is a very high proportion of NI women obtaining terminations in England, on the one hand, and on the other, children born to families ill-equipped to deal with their care and upbringing.

Free care under the NHS is only available to non-residents who are suffering from a pressing medical condition, such as appendicitis. A pregnant woman  is not considered to be within this category, so she cannot seek a termination under the English healthcare system.

This case raised, in essence, two questions:

• Is it unlawful for the Secretary of State to refuse free abortion to Northern Irish residents?
• Is residence of another country in the United Kingdom a personal characteristic, which makes discrimination on grounds of residence unlawful?

The Supreme Court dismissed the women’s appeal by a narrow majority (3-2). An analysis of the judgments – all very interesting – will follow shortly.