Supreme Court dismisses case challenging lack of free abortions for Northern Irish women on NHS

By a majority of 3-2 the Supreme Court has today dismissed the appeals of A and B, who challenged the legality of the Secretary of State for Health’s failure to provide abortion services to women from Northern Ireland free on the NHS in England. Humanists UK intervened in the appeal in support of the appellants, and has expressed its disappointment at the outcome.

The law governing abortion in Northern Ireland is one of the most restrictive in Europe such that abortion is unlawful in all but the most extreme cases. The criminal sanctions imposed in Northern Ireland are amongst the harshest in the world, with the maximum sentence being life imprisonment. The law does not however prohibit women resident in Northern Ireland from travelling to Britain to access abortion services. It is estimated that approximately 2,000 women do so every year – a situation countenanced and permitted by both the Northern Irish Assembly and central government – but they must pay up to £900 for those services privately.

In its submissions in the case Humanists UK focused on the impact of the Secretary of State for Health’s policy on women in Northern Ireland who do not wish to continue with a pregnancy and who are faced with the limited options of obtaining an unlawful and/or unsafe abortion in Northern Ireland, continuing to carry their foetus to full-term or accessing the unanticipated expense of a paid abortion in England or another country, with the attendant practical and financial problems, stress and trauma involved. Lord Wilson, providing a summary of the factual background to the appeal with which all the Justices agreed described the plight of women in this position as ‘deeply unenviable’.

Notwithstanding their ultimate dismissal of the appeal, the majority (Lord Wilson, with whom Lord Reed and Lord Hughes agreed) accepted that the Secretary of State had treated women who are usually resident in England differently from those usually resident in Northern Ireland, as only those in the former group had access to free NHS abortions in England; and that this was something which the Secretary of State had to ‘justify’. Further, as the appellants and interveners, including Humanists UK, had argued that the discrimination had to be justified in this context, the court would need to be satisfied for itself that a fair balance had been struck between the rights of the appellants and the rights of the UK community as a whole – this was not an economic or social measure which could attract a higher level of deference to the Secretary of State.

The judgment was not unanimous, with two of the five judges – Lord Kerr and Lady Hale – finding that the discriminatory treatment could not be justified and was unlawful.

Andrew Copson, Humanists UK Chief Executive, said: ‘We are hugely disappointed at today’s decision, which leaves thousands of Northern Irish women every year having to pay up to £900 to access abortion services that would be free, if they were resident elsewhere in the UK. On top of travel and accommodation costs this is a huge amount of money that many simply cannot afford. We very much hope the decision is appealed to the European Court of Human Rights.’

Janet Farrell, solicitor at Bhatt Murphy representing Humanists UK said: ‘This is a disappointing judgment for the women of Northern Ireland who need to access lawful and safe abortions which are available to women resident elsewhere in the UK. They are subject to an extremely restrictive regime at home and by virtue of the Secretary of State for Health’s policy unable to access the free health services elsewhere in the UK. This case engages a woman’s basic right to choose what she does with her own body which as Lady Hale states “restores her autonomy and respects her dignity” (para 96). Despite the deference afforded to the Secretary of State for Health by the majority judgment, the dissenting judgments of Lord Kerr and Lady Hale are robust and heartening in their recognition not only of the double standards at play but of the core underlying values at stake, including the requirement for equal treatment, autonomy and dignity for women.’

Notes

For further comment or information, please contact Humanists UK Director of Public Affairs and Policy Richy Thompson on richy@humanism.org.uk or 0781 55 89 636, or Northern Ireland Humanists Coordinator Boyd Sleator on boyd.sleator@nihumanists.org or on 07470 395090.

Context of the case

Read more about the case on the Supreme Court’s website: https://www.supremecourt.uk/cases/uksc-2015-0220.html

The case was heard before five Supreme Court judges: Lord Wilson, Lord Hughes, Lord Reed, Lord Kerr and Lady Hale.

Humanists UK was represented by Janet Farrell (Bhatt Murphy), Heather Williams QC and Kate Beattie (Doughty Street Chambers).

A group of five other organisations also intervened in the appeal: Alliance for Choice, British Pregnancy Advisory Service, Birthrights, Family Planning Association and Abortion Support Network.

A termination in Northern Ireland is only lawful when it constitutes a threat to a woman’s life or a serious, permanent or long term effect on her physical or mental health (Family Planning Association of Northern Ireland v Minister of Health and Social Services and Public Safety [2004] NICA 37 (paragraph 12)). The Northern Ireland courts are currently considering a challenge to the failure to provide exceptions to the law prohibiting abortion in respect of (i) fatal foetal abnormality at any time and (ii) pregnancies due to sexual crime up to the date when a foetus became capable of an existence independent of its mother: In the matter of an application by the Northern Ireland Human Rights Commission for judicial review [2015] NIQB 96; [2015] NIQB 102 (currently on appeal, judgment awaited).

Humanists UK’s policies and approach to abortion are informed by its ethical position which supports a woman’s right to dignity and personal autonomy and accordingly to access a safe and lawful abortion with appropriate secular counselling and after-care should she choose to do so. Humanists UK has successfully campaigned to oppose changes to the law in England and Wales that seek to restrict access to abortion. It is a member of the Voice for Choice coalition, the We Trust Women campaign, and the Back Off campaign. Its section Northern Ireland Humanists is a member of the Trust Women coalition, coordinated by Alliance for Choice.

Read more about Humanists UK’s campaigns work on abortion: https://humanism.org.uk/campaigns/public-ethical-issues/sexual-and-reproductive-rights/

At Humanists UK, we advance free thinking and promote humanism to create a tolerant society where rational thinking and kindness prevail. Our work brings non-religious people together to develop their own views, helping people be happier and more fulfilled in the one life we have. Through our ceremonies, education services, and community and campaigning work, we strive to create a fair and equal society for all.

Humanists UK recently changed its name from the British Humanist Association: https://humanism.org.uk/2017/05/22/bha-becomes-humanists-uk/

Northern Ireland Humanists is a part of Humanists UK, working with the Humanist Association of Ireland.