NI Abortion Refugees: further thoughts
15 June 2017
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).
Background law and facts
The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS.
The claim was brought by A, a 15 year old who became pregnant in 2012, and her mother, B, who supported her when she sought a termination of her pregnancy in England. The total cost of the procedure and travel was about £900. They argued that the SoS’s failure to provide for A so that she would have been able to undergo an abortion free of charge in England was unlawful. Section 1(1) of the National Health Service Act 2006 places a duty on the SoS to “continue the promotion in England of a comprehensive health service designed to secure the improvement –
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.
The SoS also had the power to direct for the provision of abortion services under section 7(1) of the 2006 Act and regulation 3(7) of the 2002 NHS Regulations providing that the function of providing abortion services 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 its area”.
The appellants argued that in failing to make such a direction the Secretary of State had acted irrationally, and therefore unlawfully. Further, they contended that the respondent’s failure to make a direction for the provision of abortion services discriminated against them on grounds of “usual residence”, thus violating Article 14 of the European Convention on Human Rights taken in conjunction with their rights to respect for private and family life under Article 8.
The Supreme Court dismissed their appeal by a majority of 3 -2.
Reasoning behind the Court’s decision
The majority view was that the SoS was entitled to act in accordance with Parliament’s scheme for devolved authorities within the United Kingdom for free health services. 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.
Was there were a difference of treatment on grounds of personal status under Article 14 ECHR? Strasbourg law is not clear as to whether residence constitutes such a personal characteristic as a prohibited ground of discrimination – see on the one hand Carson v United Kingdom (2010), which suggests that it is, whereas Magee v United Kingdom (2000) specifically rules out residence within different parts of the UK as a personal characteristic.
After reviewing these and other judgments of the Strasbourg, Court Lords Wilson and Reed concluded that differential treatment of citizens in different parts of the UK probably did fall within Article 14, although the treatment in question was justified. The SoS’s decision struck a fair balance between the appellants’ rights and the interests of the UK community as a whole. As such, the majority said that the difference in treatment did not amount to discrimination:
the duty proposed to be cast upon the respondent by Lord Kerr and Lady Hale would, in my view, precipitate both a substantial level of health tourism into England from within the UK and from abroad and a near collapse of the edifice of devolved health services.
Those dissenters, Lord Kerr and Lady Hale, refer to the appellants in quite a different way. Instead of using the somewhat longwinded circumlocution “UK women usually resident in Northern Ireland” they preferred “women from Northern Ireland” receiving different treatment to “women from England” (e.g. Lord Kerr at para 69). This is no doubt to drive home the point that the phrase “people of England” in the NHS Act has no more specific meaning than “people in England”, thus entailing a duty on the Secretary of State to provide for the improvement of the health of people who happen to be in England at the time. The important point to focus on was that the responsibility was one discharged on a “geographical basis.” As the minority put it:
The English Secretary of State is responsible for providing proper medical services in England. The Northern Irish Minister for Health is responsible for providing such services in NI. If an Englishwoman is treated in NI on the NHS for a condition suffered during a visit to that country, no interference with the scheme for the four countries arises. Likewise, no interference would arise if NI women who are in England were permitted to have abortions on the NHS. If the avowed aim is that articulated by Lord Wilson, therefore, I cannot accept that this is legitimate. It cannot feature in any assessment of justification for the differential treatment. [para 85]
As I observed in my introductory post, this case contains more issues than you can shake a stick at. But the salient ones are the following.
- To what extent does residence constitute a personal characteristic, or “identifiable characteristic” as the Strasbourg Court prefers to call it now (since the former are argued to be innate and immutable) for the purposes of Article 14?
- Why is pregnancy considered a medical condition?
- If policy is behind all this, we have to weigh medical tourism against the costs to the state of caring for the unwanted child. Why is this not articulated anywhere in the judgment?
- People travel legally to make babies (surrogacy, etc) and to prevent their birth. Without extra-jurisdictional effect, how can the law dictate the legality or otherwise of these procedures?
I will take each of these points in turn.
- Residence and “other status” under Article 14 of the Convention
This question seems to be set about with confusion and contradiction. As Lord Wilson noted, the appellants were careful not to set their argument under 14 so high that it got knocked out for ambition. They were not seeking to claim that the SoS visited a significant difference of treatment upon women resident not in England but in Northern Ireland in which they have no general entitlement to undergo an abortion. This argument could logically extend to women resident not in Northern Ireland but in other countries, for example Ireland, and indeed any other Convention countries in which they too have no general entitlement to undergo an abortion. To avoid this interpretation the appellants limited their Article 14 definition of status as “women who are UK citizens, present in England and usually resident in Northern Ireland”.
But where does this get us? We have to accept a priori that residence – whether in England or Northern Ireland – is a personal characteristic that cannot be used as a basis for differential treatment. But nowhere in UK or Convention law is there any indicator that the particular geographical location where a person finds him or herself at any given time is such a characteristic. Strasbourg jurisprudence on this point is stretched between the ideals of the global village where nobody should be discriminated against on the basis of usual residence, and the need to respect the diversity of internal legislation within federal states (such as Germany) or devolved governments (such as the United Kingdom). This, as Lord Wilson noted, has also been accepted by the CJEU, which preferred to stay its hand in a case where “the constitutional system of a member states, …the mere adoption by these administrations of different …standards … does not constitute discrimination contrary to Community law” (R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs (Case C-428/07)  ECR I-6355).
2. Why is pregnancy considered a medical condition?
This is not a question at large, but located in the particular difficulties of this case. The round peg of pregnancy has to be slotted into the square hole of medical treatment under the NHS Act. As a result, there are some odd differences of opinion in the judgement and they do not relate to law at all. Lord Wilson for example at one point equates pregnant women to people suffering from a “grave medical condition” as presenting a “convincing special case” so as to require the disbursement of NHS money on non UK residents. This is why he is uncomfortable with the extension of free abortion services to Northern Irish women; it would open the floodgates to medical tourism. But being pregnant in a situation where it is critical not to continue to delivery is not the same as requiring the extraction of an infected appendix. The latter, if not attended to, almost certainly results in death. The former, if there is no intervention, results in new life, which may well fall on the state to support.
This, to be fair, was an analogy drawn by Lord Kerr, but he fails to go so far as to depict the outcome of the treatment (or non treatment) in the case of not providing the appendectomy or abortion. Like the confusion of legal outcomes surrounding surrogacy arrangements (see my post here) no one wants to admit the existence of the inconvenient child. Lord Kerr also makes the observation that a woman in search of a termination in the circumstances of the appellants “must travel … to obtain treatment of the most traumatic type”. Termination is not traumatic, let alone more traumatic than any other modern medical intervention. The anxiety surround the procedure may lead to trauma, but that is an entirely different matter. It is not necessary to up the ante on abortion procedures in order to make the entirely sensible point that the law has decided to recognise that Englishwomen who seek an abortion are being treated under the NHS Act “for the prevention of … illness”; because otherwise there would be no way of fitting termination of normal pregnancies within the law.
Lady Hale puts in a plea for consideration of pregnancy as a different matter altogether because it is inseparable from the autonomy of the woman who, for whatever reason, needs to end that pregnancy. The Abortion Act 1967 requires the signature of two doctors to attest that the continuation of a pregnancy will cause psychological harm to the woman concerned. These endorsements are provided on her say so; abortions are a routine, and normal part of life where mistakes are made in contraception, women are raped, or discover or even worry that the foetus may not be viable. It is their business, and not anybody else’s, to decide whether to carry the foetus to term. As long as the law does not recognise the foetus as a separate person, it is within the carrier’s rights (under a certain number of weeks’ gestation) to decide what to do about it as she can decide what to do about any other part of her body.
3. The cost to the state of supporting children born where the mother could not seek termination
This is a very sensitive subject and the law does not recognise claims for wrongful life; all life is good life, and of course parents of babies who are born cannot sue the hospitals which may have caused their disabilities in the name of the child because public policy does not allow it. But it seems contradictory, to say the least, to protect the taxpayer against the consequences of the NHS paying for Northern Irish abortions thus leaving the same taxpayer to provide for the (much more expensive) support of the subsequent children, sometimes long into their adult lives. If this is a purely policy reason for one outcome of this argument rather than another, then let us admit the policy reasons behind every part of this litigation. The NHS and its regulations are merely a template for the promotion of a welfare state and its protection from health tourism. It does not provide equally even across England, let alone across the four countries in the United Kingdom and their devolved systems of healthcare. But each country has to look after children whose parents cannot, on grounds of disability, poverty or any other reason that might have caused them to seek termination in the first place.
4. Travel is not illegal to beget or get rid of babies
This final point gets detailed consideration in my post on arranged surrogacy here. Lady Hale finishes her dissent with the observation that there is nothing in Northern Irish criminal law which prohibits “women from travelling to England to have an abortion which is perfectly lawful here.”
It cannot therefore constitute a good reason for a policy of denying them health services which are lawful here.
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