R (on the application of A and B) v Secretary of State for Health  UKSC 41
A slim majority of the UK Supreme Court has upheld the UK Secretary of State for Health’s decision not to provide free of charge abortion services to women travelling from Northern Ireland to England.
The court found that the Secretary was entitled to consider the Northern Ireland Assembly’s decision not to provide abortions and the devolved government model for providing health services. Further, that treating UK citizens who usually reside in Northern Ireland differently was justified in the circumstances.
The case raises a number of issues including devolved government, women’s access to health care, medical tourism and the differential treatment of women based on geographic location.
The case centres on a UK citizen, A, who lived in Northern Ireland when she became pregnant at the age of 15. A made the decision to terminate the pregnancy. However, in Northern Ireland abortion is only lawful in narrow circumstances. A travelled to England with her mother, B, and underwent an abortion at a private clinic in Manchester. The total cost for the procedure was 900 pounds.
At the time (the laws have since changed), the Secretary had the power to make a declaration that abortion services were to be provided to all citizens and residents of the UK. This would have enabled UK citizens residing in Northern Ireland to receive an abortion in England at no cost. The Secretary did not exercise this power.
The appellants, A and B, alleged that the Secretary’s failure to make the declaration was unlawful on two grounds:
- In not making the declaration the Secretary took into account the irrelevant consideration of the Northern Ireland Assembly’s decision not to provide abortion services. This was contrary to public law.
- In failing to make the declaration, the Secretary treated women who usually reside in Northern Ireland differently. This was contrary to human rights law. Specifically, the conduct violated articles 8 and 14 of the European Convention on Human Rights (ECHR) which provided for A and B’s right to respect for private and family life be secured without discrimination on the ground of usual residence.
A 3:2 majority of the UK Supreme Court dismissed the appeal, finding that the Secretary did not act unlawfully either on public law or human rights grounds. Lord Wilson handed down the lead judgment (with whom Lord Reed and Lord Hughes agreed).
The majority rejected the appellants’ public law arguments on the basis that:
- The Secretary was entitled to make a decision that was consistent with UK Parliament’s scheme for local decision-making. The scheme provided for the separate authorities in each of the four UK countries to provide free health services for people who usually resided there.
- The Secretary was entitled to respect the democratic decision of the Northern Ireland Assembly not to fund abortion services.
- The Secretary was entitled to take into account the ability of Northern Irish women to travel to England for lawful private abortion services.
The majority found that the Secretary had not violated the ECHR on the basis that:
- The Secretary’s decision to not provide free abortion services to a group of women fell within the scope of art 8.
- The Secretary did treat women who usually resided in Northern Ireland differently from women who usually resided in England. This difference of treatment fell within the scope of “other status” for the purpose of article 14.
- However, the Secretary’s decision struck a fair balance between the appellant’s rights and the interests of the entire UK community.
- And the Secretary could not have made a decision that was less intrusive upon the appellants’ rights under article 8.
Therefore, the difference in treatment was justified and accordingly, did not amount to discrimination.
Lord Kerr dissented from the majority, contending that he would have allowed the appeal on the basis that:
- The Secretary was under a duty to provide a UK citizen present (but not usually resident) in the UK with the same medical services under the National Health Service (NHS), free of charge, as he provided to those usually resident in England.
- The Secretary was wrong to believe that respecting the Northern Ireland Assembly necessarily required him to deny Northern Irish women the means of obtaining an abortion in England.
- The Secretary was wrong to believe that allowing Northern Irish women to access abortions on the NHS would compromise the scheme of local provision of medical services.
- There was no legitimate aim for the Secretary’s interference with article 8 of the EHRC, as neither democratic deference nor respect for the Northern Ireland Assembly would qualify as a legitimate aim.
Lady Hale agreed with Lord Kerr. She separately emphasised that a requirement for abortion services represents a special case. If the other requirements of abortion legislation are complied with, it is reasonable that the Secretary is required to provide a woman with the service, irrespective of where she comes from.
The UK Supreme Court ultimately found that deference to a system of devolved government responsibility for health care trumps the equal access to health care for female UK citizens.
In his judgment Lord Wilson expresses sympathy for to the “plight” of vulnerable women in A’s position of having an unwanted pregnancy and having to travel to England to terminate it.
However, Lord Wilson goes on to state that:
“the duty proposed to be cast upon the respondent by Lord Kerr and Lady Hale would, in my view, 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” .
It is evident that Lord Wilson was wary of finding in favour of the appellants, lest the floodgates be open to Northern Irish women seeking abortions.
And in reference to relevant international law materials, Lord Wilson took a restrictive approach, stating that the authority of UN treaty body recommendations is “slight”. Instead, he called for materials of “a far more vivid hue” to offset the Secretary’s decision to respect the devolved health system and the democracy of Northern Ireland.
Turning to Lord Kerr’s dissenting judgement, what is particularly interesting is his comparison between an abortion and an appendectomy and his discussion about choice.
He states that if a woman from Northern Ireland visits England and suffers an acute attack of appendicitis that will be removed in a NHS hospital for free. If the same woman travels to England for an abortion, she will have to pay. He refutes the suggestion that the difference is that the woman travelling to England for an abortion chooses to do. Instead, Lord Kerr contends that she has no true choice: “[s]he must travel away from her home and the support of her family and friends to obtain treatment of the most traumatic type in unfamiliar surroundings”.
In Australia, unlike in England, abortions are not provided free of charge. However, the fact that we have a similar system of devolved responsibility for health care and that abortion is regulated differently in each state and territory means that the issue of medical tourism is a live one.
And in advocating for abortion decriminalisation and better access to abortion around Australia, it is worth noting arguments which contend that fundamentally abortion should be viewed for what it is - a basic medical procedure - which should be accessed in the same way as any other.
The full text of the decision can be found here.
Ivy Keane is a secondee lawyer at the Human Rights Law Centre.