Supreme Court rejects appeal that women in Northern Ireland should be entitled to free abortions under the NHS

Today, the Supreme Court rejected an appeal that claimed Jeremy Hunt, as health secretary, had unlawfully failed to make provisions for women in Northern Ireland to come to England in order to access free NHS abortions.

The Law

Whilst abortion is still a crime in England, under the Abortion Act 1967, there are circumstances when abortion is legal. Such circumstances include where there is a risk to the life, or risk to the physical or mental health, of the mother. Where there is a risk to the woman’s physical or mental health, the pregnancy cannot have exceeded its 24th week and two doctors need to sign to agree that there is such a risk.  In reality, however, this hurdle is not a difficult one to pass and for many terminations carried out in England, it is under this provision.

However, the Abortion Act 1967 was never extended to Northern Ireland. The legal regulation of abortions, therefore, is much more strict; only where there is a risk to the life of the woman can it be permitted, in accordance with the Infant Life (Preservation) Act 1945.  As a result, even where pregnancy arises as a result of rape, or where there are fatal abnormalities to the foetus, abortion is not legal.  Whilst it is not a crime for a woman to travel to England for the purposes of a termination, for many it is not a financially viable option to pay for a private clinic, travel and accommodation.

abortion debate
The abortion debate

Abortion is a highly evocative and controversial issue which tends to see a conflict between pro-life (those supporting the rights of the foetus) and pro-choice (supporting the right of autonomy of the women). This is something that Level 6 students look at in detail during the Medical Law and Ethics module.

Why is this at the Supreme Court?

The case that the Supreme Court ruled on today involved a 15-year-old girl who travelled to England for a termination at a private clinic. They argued that the health Secretary, Hunt, had the power to make provisions in relation to free NHS abortions and had acted illegally in not doing so.

This appeal was rejected by a 3:2 majority. The reasoning centred on the devolved powers of Northern Ireland – each devolved area is responsible for determining the health care available to those resident there.  Hunt, in refusing to allow women from Northern Ireland to access free terminations on the NHS in England, did so in order to respect the democratic decision of Northern Ireland and their assembly.

Despite the judgment of the Supreme Court today, the case will continue. Lady Hale and Lord Kerr, the two dissenting judges, would have allowed the appeal and Lord Wilson, delivering the main judgment, showed sympathy for women in Northern Ireland with no choice for a termination. There has already been confirmation that there will be an appeal to the European Court of Human Rights – it will be the second case this week that has referred medical legal issues to the court in Strasbourg.  The European Court of Human Rights are also considering submissions in relation to life-preserving treatment for a terminally ill infant, Charlie Gard.

Click here for more information and an access link to the judgment:

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