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

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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37 Comments

Not Amused

I hate decisions like this as much as anyone. But we do need to live in a country in which the people decide these matters via elections and a democratically elected parliament.

That is a better country to live in even if it doesn’t feel like that all of the time.

(16)(6)
Sleepy lawyer

I don’t think they would be changing the law in NI by allowing this appeal, simply stating that a NI women is entitle to the same health care in England as an English women.

It would be quiet possible to say that it only applies to people from within the U.K. And it’s crown protectorates as it would not be proportionate to allow health tourism on a larger scale.

Then again I favour a new activist approach in such cases, I much concede the bench makes a persuasive alternative case.

(0)(0)
Anonymous

Premise 1 – All innocent human beings have a right to live

Premise 2 – The unborn are innocent human beings

Conclusion – Killing the unborn is morally wrong.

This is my view on abortion. Can someone explain why I am wrong (without the ludicrous claim that the unborn are somehow not human beings)?

(9)(15)
Anonymous

Legally, the unborn are not human beings.

While I’m sure that we all find the subject disturbing in some way, even those campaigning for abortion rights, at the same time the government has decided that it is reasonable to allow abortions. At a minimum, most people agree that a woman should not be forced to carry a child conceived through rape, or where the child will either be severely disabled or will not live long beyond birth (if born alive). Once you get to that stage, then it is just a matter of argument as to what is an acceptable reason to terminate, and up to what stage (of gestation) terminations are allowed.

In this case I can see the UKSC’s point that allowing NI women to come to England would undermine the purpose of devolving powers. However there is a much bigger issue here, and it doesn’t seem justifiable on this issue to have different jurisdictions in diferent regions of the UK.

The UKSC should have allowed the appeal, and the English NHS should be allowed to charge the NI NHS for the service. Or, the UK government should set up a separate fund for exactly these kinds of cases, and deduct the money from funding for the NI NHS.

(5)(1)
Not Amused

So instead of merely revoking, without any democratic mandate to do so, one of NI’s devolved laws, you would ask the UKSC to simply revoke devolution completely?

It is not the roll of the courts to achieve political ends. No matter how much I might want that to happen. If you do not have a democracy then you have tyranny and a tyrant is a monster no matter the good they may do.

(0)(6)
Anonymous

My proposals do not revoke devolution, they merely try to address the issue that having different laws in different regions of the UK, on fundamental issues, doesn’t make a lot of sense.

Devolution should be about how the NI NHS spends its money, not what services it provides because of the political agenda of a bunch of wingnuts. What you have to recognise is that the democratic process in NI isn’t entirely rational – they vote along tribal/religious lines. That doesn’t mean that the electorate endorses 100% of the policies of any particular party, it just means that they cannot embrace the ‘other side’. And i really is about sides.

One of the things that feeds into this problem is the segregation that still exists in schools in NI. The UK government should have put an end to that a long time ago. If it had done so we probably would not have cases like this at all, and the extremists on both sides would have virtualy disappeared.

You also have to recognise on what level democracy happens. There is a fundamental clash between NI voters choosing an MP for Westminster, in a UK parliament, and the same voters choosing a member of the Stormont assembly. Which of these takes precedence in their minds, which are they happy with!?

Thrown into the mix is the obvious fact that there is no devolution for England – there are no English or regional assemblies, and the rump Westminster parliament of English MPs is not a devolved parliament or assembly.

(3)(2)
Anonymous

Premise 3- it is a crime for a human being to physically contact another human being without the second human being’s consent.

Conclusion: a foetus is committing battery, and the victim of that battery is entitled to use reasonable force to bring that battery to an end. That the foetus will necessarily die if the battery ceases is incidental, as it would be if, say, a person were only able to live by sucking blood from my neck.

Hey look I can come up with absurdly oversimplified arguments too!

(8)(6)
Anonymous

Sorry, but the above poster’s premises and conclusion are not ‘absurdly oversimplified’ and your attempted reductio ad absurdum was whack

(4)(3)
Anonymous

It wasn’t an attempted reductio an absurdem. It was pointing out the ridiculousness of trying to answer a genuinely complicated moral and political question with 2 premises.

Of course it was absurdly oversimplified. The devil is in the above poster’s premise 2: “the unborn are innocent human beings.” At what point? At fertilisation? I don’t think many sensible people would conclude that a fertilised egg is a human. So we know that at some point between fertilisation and birth egg becomes human. At what point? That’s the question.

(4)(0)
Anonymous

Sorry, but you clearly have no knowledge of how philosophical arguments are made. Complex ideas are reduced to simple premises + conclusion, and it is then the opponent’s task to disprove one or more of them.

The above argument’s conclusion is valid. Most advocates of abortion attack premise 2, either by saying that the unborn are not human beings, which scientifically speaking is tosh, or that the unborn are not innocent, which is almost as difficult to argue.

Or they deny that all innocent beings have a right to life, which is an unpalatable view for a supposedly enlightened society.

(0)(1)
Joe

Lol, your second sentence completely contradicts your first. Aristotle you ain’t!

(0)(0)
Pantman

Isn’t it hilarious that the anti-abortion party of NI is the DUP, the props for the Tory Treaty of Tragedy.

(2)(0)
Anonymous

A fitting coda for the effect of the yoof vote on the election; give me free stuff or I’ll scream and scream, all the way to Strasbourg. And please spare us the use of the ghastly weasel expression “she fell pregnant”; the act that led to becoming pregnant was a conscious one and the risk of becoming pregnant consciously assumed.

(7)(30)
Anonymous

The girl was 15. Put your head on straight before you post again.

(3)(2)
Micky O Hooligan

Didn’t I tell youse uns from the beginning. Norn Irn law says abortion is a crime, period, termination, O whatever, so Jeremy Hunt is not a c**t .

(0)(2)
Tadhg McSorely

Up their holes with a big jam roll, do da, do da.
Up their holes with a big jam roll
Do da, do da day
Nrn Irn – Traditional

(0)(2)
Anonymous

Haha v funny – using taig names to take the piss out of Norn Irn. But it’s the DUP that is against abortion over here.

(4)(0)
Tadhg McSorely, Tadhg Furlong, Tadhg Beirne etc etc etc

158. Tadhg is a name. It means a poet.
It’s good to see LC have stopped censoring Irish names.

(0)(0)
Anonymous

I meant ‘taig’ as in the derogatory term for a catholic in the north, but maithú nevertheless.

(2)(1)
The Boc an Aires.

353. Taig is the Anglisation of Tadgh. The Sassenachs deem it derogatory, whereas the Irish deem it noble.
In the same way Sassenachs deem Paki derogatory, whereas Pakistanis deem it noble, even so far as to name their country after it.
Sassenach imperial propaganda?

Maithú is not normally spoken , but we understand it. Normally we would say “Soul man yer da”.

The DUP are in some respects more Irish than the Irish.

A united Irish referendum is in the offing 🙂

(0)(0)
Not Amused

As you appear ignorant, I should inform you that Sassenach is also a racist and sectarian phrase.

(0)(2)
Anonymous

Hahaha not a chance. A UI will never happen. Cannot see a Talebanesque DUP hardliner ever being tempted by Dublin rule.

(1)(0)
Anonymous

No woman should be forced to do something against her will. To force her to incubate a group of cells that have potential to become a child that isn’t wanted is not the right of Northern Ireland. And to deny those women the right to come to England for abortions is treating them as second class citizens. Every acorn does not an oak tree make. To force someone who has been raped to carry a reminder of that and be linked to it forever is disgusting and whoever thinks it’s OK should be ashamed.

(3)(1)
Ciaran Goggins

This post has been removed because it breached Legal Cheek’s comments policy.

(0)(0)
Anonymous

OF:

Premise 1 – All innocent human beings have a right to live

Premise 2 – The unborn are innocent human beings

Conclusion – Killing the unborn is morally wrong.

This is my view on abortion. Can someone explain why I am wrong (without the ludicrous claim that the unborn are somehow not human beings)?

You are not wrong, in my opinion, but the alternative view is grounded within an economic sphere, not on a humanitarian one.

1 To survive in an economy I need money, a steady home, a steady job, partner, friends and family in support

2 To have a child is beyond mere survival, and all those things must be in place

3 If they are not in place, the child will be born, and my life will continue and we are both likely to suffer from a reality based depression in a world which is rather unforgiving

4 Faced with the prospect of 3, and not having the luxury of the morals of a flourishing human being, I make the daunting decision to have the baby terminated by a service industry whose capital and staff await the arrival of me and thousands like me

5 I do do this act en masse, but the knowledge I have done it to myself and my baby stays with me for the rest of my life and it maintains an influence over my psyche. It is likely also to do this for a man. Counsellors and Pfizer, via our GP, are on hand awaiting a likely inability to cope

6 While the world is unforgiving and while the economy has no morals, while there is no meaningful global movement for pacifist environmental communism, most individuals in the world do not have any moral high ground over me. Those who might do, realize that but for them having a higher economic worth than me, given the numbers who do so, they probably would have done the same in my position.

7 You may be so comfortable and so inexperienced in understanding the breadth of the unforgiving nature of the world, that you had never thought of the economic sphere of influence, and its power over humanitarianism.

(1)(0)
Anonymous

Killing the unborn is morally wrong. I struggle to see why this opinion is so often disrespected.

Although an unborn child is not a legal person in law, this does not justify abortion from a moral standpoint.

The morality of abortion is a question of weight – do you value the potential life of an unborn child more than a woman’s right over her body? The outcome depends on the circumstances.

If a woman did consent, then an unborn child should not be terminated. The natural result of sex is reproduction. If a person chooses to have sex, then they ought to be aware of the consequences. A child conceived as a result of choice should not be terminated. This is a moral argument, justified on the basis that a unborn life is more important to protect than the right of a person to do what they like with their body.

The obvious exception is rape. This would justify abortion on the basis that she did not consent to having a child.

Life has it’s consequences, and when two values clash it is a question of which value you hold higher. Society’s more promiscuous attitude towards sex has its consequences. The debate on abortion is an emotive one. There is no easy answer, and one should always recognise this as a delicate subject. There is not a ‘right answer’. Whether an answer is right depends on your own moral beliefs. However, I find it hard to see why advocating the preservation of an unborn’s life is an abhorrent view, and why this view is disrespected.

(4)(0)
Anonymous

It is not an abhorrent view, but it is also not the only view.

(0)(0)
Anonymous

The worrying thing is that pro-life stance is generally perceived as ‘wrong’, particularly by the media. Abortion is too complex an issue to take such an aggressive and binary stance.

(1)(0)
Anonymous

Well, generally, the aggressive and binary are the pro-lifers. And by the law of the UK, they are wrong – ie there is an abortion law.

I think most people are pragmatic about it – no one likes the basic premise, but it is a necessary evil.

(0)(0)

Comments are closed.