No free abortions for Northern Irish women in England: UK Supreme Court

Supreme Court of United Kingdom: The Supreme Court has held by a 3-2 majority that the Secretary of State for Health’s failure to enable Northern Irish women to access free abortion services under the English National Health Service was not unlawful. The Court observed that the Secretary of State was entitled to respect the democratic decision of Northern Ireland not to fund abortion services, and to take into account the ability of Northern Irish women to purchase private abortion services in England.

Appellant, a resident of Northern Ireland, had undergone an abortion in a private clinic in Manchester. The appellant argued that the respondent’s failure to make a direction so as to provide Northern Irish women free abortion services under the English NHS was unlawful, since, Section 3(1) of the National Health Service Act required him to make such direction. Moreover, the respondent had acted irrationally and unlawfully while taking into account the Northern Ireland Assembly’s decision not to provide abortion services. The appellant also contended that the respondent’s failure to make a direction violated Article 14 of the European Convention on Human Rights taken in conjunction with article 8 because her right to respect for private and family life was not secured without discrimination on the ground of usual residence.

Lord Wilson (with whom Lord Reed and Lord Hughes agreed) noted that under the scheme of Parliament separate authorities in each of the four countries in the United Kingdom had to provide free health services to those usually resident there. The respondent was, thus, entitled to make a decision in line with this scheme for local decision-making. Further, the human rights challenge failed as the difference of treatment between UK citizens present in England on the grounds of usual residence fell within the scope of “other status” for the purposes of Article 14.

The Court noted that the respondent’s decision not to make the direction sought by the appellant was rationally connected to his respect for the devolved scheme for health services and the democratic decision reached in Northern Ireland, and he could not have reached any decision less intrusive upon the Article 8 rights of the appellant. The Court concluded that the respondent had struck a fair balance between the appellant’s rights and the interests of the UK community as a whole and, accordingly, was justified. [R v. Secretary of State for Health, [2017] UKSC 41, decided on June 14, 2017]

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