Northern Ireland (NI) has some of the most restrictive abortion laws in the world. NI was never included in the Abortion Act 1967. The last significant effort in Parliament to extend the Act occurred in 2008. To gain DUP support for detention without charge, the Labour government decided to shelve plans to amend the Act to include NI. Therefore, abortion is a crime in Northern Ireland following sections 58 and 59 of the Offences Against Persons Act 1861. An exception to this prohibition exists only in cases where the continuation of pregnancy poses a threat to the woman’s life or a serious permanent or long-term threat to her physical or mental health. The latest data available indicates that sixteen women could obtain an abortion by following these criteria from 1 April 2015 – 31 March 2016.
In NI, if a woman does not qualify for legal abortion and does not wish to carry on her pregnancy, abortion pills can be ordered online from WomenOnWeb and WomenHelp. While these pills are clinically effective and safe, ordering them carries the potential for prosecution with a maximum penalty of life imprisonment. A woman was prosecuted in 2016 for procuring abortion pills online and sentenced to 3 months imprisonment suspended for two years. In another case, a couple accepted cautions.
For those who do not wish to order pills online or cannot, the alternative is travelling elsewhere, usually to England, to have a termination. This can be a costly procedure because, as mentioned below, those doing so must pay for the procedure, travel, (potentially) accommodation, and subsistence.
The relevant statutory system
As amended by the Health and Social Care Act 2012, section 1 of the National Health Service Act 2006 sets out the duties imposed upon the Secretary of State for Health in relation to England (where the abortion was carried out). As a result, these provide for continuing the promotion of health service reforms and improved prevention, diagnosis, and treatment of illness in England.
The Act gives the clinical commissioning group responsible for providing ‘medical services’ and ‘any other facilities’ for the care of pregnant women as part of the care of women, but only to the extent required to meet the reasonable requirements of those for whom the groups have responsibility.
The legal challenge focused on whether the Secretary of State was under a duty under public law to direct primary care trusts to provide free abortion services to all persons permanently and temporarily resident in its area (as covered by section 3). That would include A. Article 14 of the European Convention on Human Rights violation was also raised as a human rights argument, as noted earlier. (ECHR) (freedom from discrimination) and Article 8 (respect for private and family life).
Budgeting for an abortion
Let’s first examine the costs associated with the Supreme Court decision. Lord Kerr noted in his dissenting decision that the financial costs involved are significant and that many women cannot afford an abortion.
As noted above, the Department of Health reported that, in 2016, there were 724 women from Northern Ireland living in England who had an abortion. These terminations took place at the following gestational stages:
- 3-9 Weeks: 532
- 10-12 weeks: 103
- 12-19 weeks: 68
- 20 weeks & over: 21
Based on this, we can estimate the potential costs to these women. These women paid the following for the procedure itself:
- 532 women paid approximately: (£280 – £425)
- 103 women paid between (£400 – £485)
- 68 women paid between £560 and £700.
- 21 women paid approximately: (£1400+)
As pregnancy progresses, abortion becomes more expensive. The more time it takes those with limited financial resources to save the necessary funds, the more costly the procedure will be. Besides the procedure itself, women may need to pay additional fees for a consultation (approx. £40) and a general anaesthetic (approx. £20).
In addition to medical expenses, they have to pay for travel. As opposed to the procedure cost, travel is usually more expensive the closer to the date it is booked. Depending on the procedure they choose and its timing, women, might also require accommodations. Finally, there is subsistence and (potentially) local transportation costs. Abortion providers have reduced fees for women travelling from Northern Ireland and the Republic of Ireland and offer perks, such as free local transportation, to counter these costs. Women, on the other hand, will still face an average cost of up to £2000. If she elects to bring a companion, family member, friend, or partner for support, those costs will increase. For A and B, the cost was between £900 (£300 for travel; £600 for the procedure). Their needs were met by an Abortion Support Network grant of £400, a charity that offers aid and support to women undergoing abortions. The average grant provided by ASN in 2016 was £307.
It was the Supreme Court Decision that
In the decision, the Supreme Court split 3:2:2. Lord Wilson and Lord Reed (with whom Lord Hughes concurred) wrote opinions reversing the decision. Lady Hale and Lord Kerr both wrote separate dissenting decisions.
The Public Law Claim
Lord Wilson dismissed this claim very briefly. The secretary of state could take the discretionary judgment that the 2006 Act provided for and believe the duty under section 1 to the people of England was nonviolent. Under this scheme, accessible health services could be provided to those ordinarily residing in England. In general, he stated:
“The respondent was entitled to afford respect to the democratic decision of the people of NI; was entitled to have in mind the undeniable ability of Northern Irish women lawfully to travel to England and to purchase private abortion services there, and was entitled to decide not further to alter the consequences of the democratic decision by making such services available to them free of charge under the public scheme in England for which he was responsible [Para 20].”
Under the North-Ireland Act of 1998, a matter of abortion law that falls within the penal law has been referred to as a “transferred matter.” Stormont and not Westminster regulate this field. Neither the Secretary of State nor Lord Wilson agreed that Stormont should interfere with its “deliberate decision” (para. 21) not to legislate to provide funding for a service provided illegally elsewhere in NI. This reticence to interfere with devolution arrangements had, of course, been influenced by the sensitive social and political context surrounding abortion in Northern Ireland.
Regardless, Lord Kerr disagreed. In his view, first, the provision of services under Section 3 of the 2006 Act should not be viewed with respect to whether they will improve the health of the people of England. Health care systems are responsible for continuously improving the prevention, diagnosis, and treatment of illnesses (noting that while pregnancy is not an illness, an unwanted pregnancy can risk physical and mental injury [Para 69]). The latter duty, which was the case in this case, was not owed to the population of England but was meant to extend the provision of free care (including abortion services) outside of England.
Further, he argued that Stormont had not expressed a stance on the difficulty of Northern Irish women travelling from NI to England to obtain abortions, which NI is well aware of. As long as the Abortion Act of 1967 was observed, women from Northern Ireland were legally entitled to abortions, and “democratic decision-making in Northern Ireland doesn’t interfere with women’s exercise of their rights in England” [Para 76].
The Human Rights Claim
An allegation was made that the decision to not fund abortions violated article 8 right to family and private life of A and B. For our consideration, we will defer to Lord Wilson’s contention that “B’s asserted right is a parasitic one that is inextricable from the right of A” [Para 21].
The respondent in the lower courts contested the question of whether abortion funding fell within the scope of A’s article 8 rights. At the Supreme Court, however, the respondent accepted that A’s article 8 rights were engaged. This is in line with established jurisprudence in the European Court of Human Rights (ECtHR), which holds that prohibitions of abortion fall within the scope of article 8 and must accordingly be justified. Although this does not necessarily mean that there is a substantive right to an abortion, any restrictions on abortion must be proportional, and where abortion is legal, it must also be accessible.
According to A, her article 8 rights were engaged such that they provide grounds for a claim under article 14 when read alongside article 8. An integral part of Article 14 is:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The conditions for proving a breach of article 14 must be twofold: 1) The claimant suffered discrimination based on personal characteristics or status; 2) that the discrimination was not justified.
Differential treatment based on status was unanimously agreed upon. Disagreements between the majority and dissenting decisions were focused on the question of justification. According to Lord Wilson, Lady Hale encapsulated the four well-known questions, which must be answered positively to show discrimination is justified:
- do the measures have a legitimate goal that justifies restraints on fundamental rights;
- measures that aim rationally;
- could a less intrusive method have been used; and,
- has a fair balance been struck between a person’s rights and the interests of the community while considering the severity of the consequences, the importance of the goal, and the degree to which the measure contributes to that goal?
Among A and B, Lord Wilson found the differential treatment justified. His statement was:
“In my view, an affirmative answer clearly falls to be given to the first three of them: for the aim of the respondent’s decision in relation to women who were UK citizens but usually resident in NI, to which the decision was rationally connected, was to stay loyal to a legitimate scheme for health services to be devolved in the interests of securing local provision to residents in each of our four countries. Nor, with that aim, could he have reached any decision less intrusive upon the rights of such women to respect for their personal life. The issue surrounds the fourth question: did his decision strike a fair balance between their rights and the interests of the UK community as a whole?” [Para 32].
In paragraphs 34 and 35, Lord Wilson discussed the balance briefly. As for the respondent’s contention that it must be demonstrated that his decision is manifestly unreasonable, he accepted it. A fair or unfair assessment must be made based on the evidence put forward, notably by the interveners, of the importance of abortion in international human rights documents. Lord Wilson wasn’t convinced:
“In my view, however, the appellants need the material of a far more vivid hue to put into the balance against the respondent’s resolve to stay loyal to the overall scheme for the separate provision of free health services within each of our four countries and to the democratic decision reached in NI in relation to abortion services” [Para 35].
Lord Kerr strongly rejected this approach. According to him, the respondent’s decision was not a legitimate one. It was also noted that he rejected the argument that the funding decision had to be made to keep health care services within the UK within the regulatory framework, considering that “the provision of medical services in Northern Ireland relies on the NI Assembly’s continued responsibility for the provision of medical services in Northern Ireland.” [Para 84]. Therefore, since: “there is no justification for impeding the rights of the appellants under article 8 and 14 combined” [para 87], the entire justification crumbles.
These decisions demonstrate that the right to access abortion care should be understood in different ways. Each party agrees that an exception can be made to fund abortion services. Arguments between Lords Wilson and Kerr and Lady Hale differ on whether abortion should be understood as a medical treatment of exceptional merit.
According to Lord Wilson, abortion is not an exceptional option, and the NHS should not fund it.
Although Lord Kerr and Lady Hale see abortion differently, it is clear that neither considers it a form of medical care. Lord Kerr explicitly and implicitly equated abortion with emergency medical treatment:
“A woman from Northern Ireland visiting England who suffers an acute attack of appendicitis will have if it proves necessary, her appendix removed in a National Health Service hospital, without charge. If she travels to England to obtain an abortion, the same woman must pay for that procedure. How can this be right? The answer is that it cannot be, and is not, right “[Para 50].
In his opinion, women in Northern Ireland have little “choice” regarding the decision to receive treatment in England, noting that A was not in effect demanding treatment in England rather than NI due to her perceptions of a better level of care in England. As a result, she had to go to the only medical facility that could help her” [Para 70].
Despite statutory interpretations, it is almost unclear what the nature of abortion is. It seems that Lord Kerr’s distinction between improved public health and the provision of healthcare might have some merit from a literalist perspective. However, it is unclear whether it holds a functional meaning in the 2006 Act, especially given that it seems to create an artificial divide between public health and healthcare. Having worked for NI as its representative on the Supreme Court, it is hard to avoid the conclusion that the judge might have been seeking a legal resolution to achieve a particular outcome.
However, Lady Hale went further, saying she was also making a significant contribution to the law of reproduction based on her research. Lady Hale said that pregnancy is a particular case [Para 96]. Not only does she not use access to medical care as the basis for her argument, but also what Drucilla Cornell describes as ‘constitutional fundamentals’. Hale argues that the wrong decision not to fund abortion is to deprive women of their fundamental rights of autonomy and bodily integrity and deny them equal treatment [Para 95]. According to Lady Hale, it is essential to restore her autonomy [Para 96] and protect her dignity by obtaining access to lawful abortion.