On 14th June 2017, the Supreme Court ruled that the Secretary of State for Health in England was not acting unlawfully by failing to provide NHS funding to women who travel from Northern Ireland to England to access abortions
Presently, women from Northern Ireland, except for in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers.
This point of law was challenged in R (A and B) v Secretary of State for Health). The case involved a 15-year-old girl, A, who became pregnant in 2012. A did not want to continue with the pregnancy and so with the support of her mother, B, she arranged to have a termination in England.
A and B were surprised to learn that as A was resident in Northern Ireland, she would have to pay privately for the termination in England. B commenced proceedings on behalf of her daughter to challenge the lawfulness of this policy.
A and B submitted that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions. They further argued that women in NI were being discriminated against as compared to other women in the UK
A and B were unsuccessful in the High Court and in the Court of Appeal and the matter was then referred to the Supreme Court.
The Supreme Court held, by a 3-2 majority, that the Secretary of State was not obligated to provide abortion services to UK citizens usually resident in Northern Ireland, and was instead entitled to respect the “democratic decision” of the devolved administration in Northern Ireland and acknowledge the ability to purchase private abortions. This position was not agreed upon by dissenting Judges Lord Kerr and Lady Hale. Lady Hale noted ;-
“The difference in treatment by the NHS in England between women from England and women from Northern Ireland cannot be justified by respect for the democratic decisions made in Northern Ireland as to what will be provided by the NHS there”.
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