Northern Irish women NOT entitled to abortions on NHS, Supreme Court rules

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By Katie King on

Landmark case decided by majority of 3:2

A legal dream team of Monckton Chambers and Doughty Street Chambers lawyers has failed to convince the Supreme Court that women living in Northern Ireland should be entitled to abortions on the NHS in England — but only just.

Lord Wilson, giving the judgment of the court this morning, explained that the circumstances in which Northern Irish women can obtain free abortions is “far narrower” than for English women. A, a Northern Irish women and the appellant in this landmark judicial review case, discovered this first-hand when she fell pregnant aged 15.

In last year’s hearing, Lady Hale, Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes heard A — who was supported by her mother, B, in this case — was one of at least 1,000 women to travel from Northern Ireland to England every year for a privately funded abortion. These can run into the thousands of pounds.

Though Wilson appeared sympathetic to A’s “unenviable” experience, he made clear this morning that it’s “not for the court to address the ethical considerations” of Northern Ireland’s position, and that it must consider the legal implications instead.

Counsel for A, Monckton’s Stephen Cragg QC and Doughty Street’s Caoilfhionn Gallagher QC, argued their now 20-year-old client’s case on two grounds. The first was that the Secretary of State for Health, Jeremy Hunt, had failed to discharge his s3 National Health Service Act 2006 duty by not requiring abortion services to be provided to Northern Irish women in England. The statute states Hunt must “take such steps as he considers necessary to meet all reasonable requirements” for NHS services.

Lord Wilson (L) giving the judgment of the court, sat next to Lord Clarke and Lord Hughes

Secondly, Cragg and Gallagher said England’s failing to provide these abortion services amounts to an infringement of article 8 (family life) and article 14 (no discrimination) of the European Convention on Human Rights.

Despite Cragg and Gallagher’s fierce advocacy skills and brainpower, it was 11KBW’s Jason Coppel QC and Katherine Eddy, for the government, who came out on top. The judicial review was unsuccessful both at first instance and in the Court of Appeal, and today the Supreme Court continued this pattern when it ruled Hunt was “entitled” to restrict English abortions to women usually resident in that country. Wilson, who gave the lead judgment, stated a ruling otherwise would “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.”

However, Wilson recognised the bench was “sharply divided” on this. While Lords Wilson, Reed and Hughes dismissed the appeal, Lady Hale and Lord Kerr would have allowed it.

Given the tiny majority and the contentious, deeply personal subject matter, this case seems ripe for an appeal to Strasbourg. Indeed, the appellants have today stated:

[W]e 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.

Read the judgment in full below:

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