A comment on R (on the application of A and B) v Secretary of State for Health  UKSC 41.
By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).
The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties. On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.
In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].
A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2.
Abortion Law in Northern Ireland
Abortion laws in NI are amongst the most restrictive in the world. The Abortion Act 1967 was never extended to NI. The last significant attempt in Parliament to extend the Act took place in 2008. These efforts were thwarted when, in exchange for DUP support for detention without charge, the Labour government agreed to drop plans to introduce an amendment to extend the Act to NI.
As a consequence, abortion is a crime in NI in accordance with sections 58 and 59 of the Offences Against the Person Act 1861. An exception to this prohibition exists only in cases where continuation of pregnancy poses a threat to the woman’s life or a serious permanent or long-term threat to her physical or mental health. From 1st April 2015 – 31st March 2016, the most recent period for which figures are available, 16 women were able to have an abortion in accordance with these criteria.
For those who do not qualify for a legal abortion in NI and do not want to continue with their pregnancy, it is possible to order abortion pills online from organisations such as WomenHelp and WomenOnWeb. Although this has been shown to be clinically effective and safe, ordering these pills carries with it the potential for prosecution with a potential maximum sentence of life imprisonment. In 2016, a woman was prosecuted for procuring abortion pills online and sentenced to three months imprisonment suspended for 2 years. In another case a couple accepted cautions. Currently a mother is appealing a decision to prosecute her for procuring pills for her teenage daughter.
For those who do not wish to, or cannot, order pills online, the alternative is travelling elsewhere, usually to England, to have a termination. This can be a very costly process because, as discussed below, those doing so must pay for the procedure, travel, (potentially) accommodation, and subsistence.
The relevant statutory structure
The fundamental legal duties imposed upon the Secretary of State for Health in respect of England (where the abortion took place) are contained in section 1 of the National Health Service Act 2006, as amended by the Health and Social Care Act 2012. These require the minister to continue the promotion in England of a comprehensive health service designed to secure improvement (a) in the physical and mental health of the people of England and (b) in the prevention, diagnosis and treatment of illness. In practice, these duties are discharged through arrangement by clinical commissioning groups (although, at the time of the events occurring in this case, primary care trusts) for provision of services listed in section 3(1) of the Act, including ‘medical services’ and ‘such other services and facilities for the care of pregnant women as the group considers appropriate as part of the health service’, but only to the extent considered ‘necessary to meet the reasonable requirements’ of those for whom the groups have responsibility.
The legal challenge turned upon whether the Secretary of State was under a duty, enforceable as a matter of public law, to direct primary care trusts to provide free abortion services (as covered by section 3) for the benefit of all persons present in their area – whether permanently or temporarily – who were citizens and residents of the UK, which would include A. As noted above, a human rights argument was also raised – that failure to make such a direction violated article 14 of the European Convention on Human Rights (ECHR) (freedom from discrimination), when read alongside article 8 (respect for private and family life).
Budgeting for an abortion
Before discussing the Supreme Court decision in detail, it is worth considering the cost implications for women who travel. As noted by Lord Kerr in his dissenting decision, the financial costs are considerable and, in effect, put abortion beyond the reach of many.
The Department of Health statistics, mentioned above, show that in 2016, 724 women who had terminations in England were residents of NI. As noted by Lord Kerr, this is likely to be a considerable underestimation [Para 53]. The gestational stage at which these terminations took place is broken down as follows:
- 3-9 Weeks: 532
- 10-12 weeks: 103
- 12-19 weeks: 68
- 20 weeks & over: 21
This gives us a starting point for estimating the potential costs that these women face. For the procedure itself these women paid:
- 532 women paid approximately: (£280 – £425)
- 103 women paid approximately: (£400 – £485)
- 68 women paid approximately: (£560 – £700)
- 21 women paid approximately: (£1400+)
Abortions are more expensive as pregnancy progresses. This means that those with limited financial resources are in a very difficult position – the longer it takes them to save the necessary funds, the more expensive the procedure will be. In addition to the procedure itself, women may have to pay extra for a consultation (approx. £40) and a general anaesthetic (approx. £20).
In addition to medical costs, they have to pay for travel. In contrast to the cost of the procedure, travel is usually more expensive the nearer in time it is booked. Women may also need accommodation depending on the procedure they choose and its timing. Finally, there is subsistence and (potentially) local transportation costs. In order to militate against these costs several abortion providers have reduced fees for women travelling from NI and the Republic and include ‘perks’ such as free local transportation. However, women on average will still face costs somewhere in the region of about £400 – £2000. These are the costs for the woman herself, obviously they will increase if she wishes to bring a partner, friend, or family member for support. For A and B the cost was approximately £900 (£300 for travel; £600 for the procedure). They were assisted by a grant of £400 from the Abortion Support Network (ASN), a charity established to provide support to women who have to travel. In 2016 the average grant that ASN provided was £307.
This difficult financial planning must be undertaken at an already stressful time. B gave evidence in the High Court that:
the whole experience and stress of not knowing whether it was going to be possible to have the procedure and raise the funds was harrowing and had a serious impact on (A) and myself. Had we known from the outset that we would be able to travel to the UK and that (A) could have the procedure free on the NHS, this would have significantly reduced the stress and trauma she experienced. [Para 11]
Lord Kerr was deeply concerned about the significant impact these costs might have. He noted also that in addition to the financial costs, there are emotional costs, as women will often be forced to travel in secrecy and without the support of friends and family to an unfamiliar place [Para 51].
The Supreme Court Decision
The decision split the Supreme Court 3:2. Lords Wilson and Lord Reed (with whom Lord Hughes concurred) wrote decisions in the majority. Lord Kerr and Lady Hale wrote separate dissenting decisions.
The Public Law Claim
Lord Wilson dismissed this claim quite briefly. Pointing to the extent of discretionary judgment permitted by the statutory reference to what was necessary to meet reasonable requirements and the fact that the duty under section 1 of the 2006 Act was owed to the people of England, he concluded that it was lawful for the Secretary of State (the respondent) to act in accordance with a ‘scheme for local decision-making’ which left it to authorities in the four countries of the UK to provide free health services for those ordinarily resident there. More broadly, he stated:
The respondent was entitled to afford respect to the democratic decision of the people of NI; was entitled to have in mind the undeniable ability of Northern Irish women lawfully to travel to England and to purchase private abortion services there; and was entitled to decide not further to alter the consequences of the democratic decision by making such services available to them free of charge under the public scheme in England for which he was responsible [Para 20].
Abortion law, falling as it does within the sphere of criminal law, is a “transferred matter” within the meaning of section 4(1) of the Northern Ireland Act 1998. Stormont, not Westminster, regulates this field. The Secretary of State was concerned, and Lord Wilson agreed, that there should be no interference with Stormont’s “deliberate decision” (para. 21) not to legislate to provide funding for access to a service elsewhere which would be unlawful if provided in NI. Of course, the sensitive sociopolitical context of abortion in NI underpinned this reluctance to interfere with the devolution arrangements.
Lord Kerr disagreed. He considered, first, that provision of services under section 3 of the 2006 Act should not be viewed “through the lens of whether the services provided would improve the health of the people of England” [Para 65], since section 1 distinguished between a (largely public health-based) duty to secure improvement in the physical and mental health of the people of England; and a (primarily health systems/healthcare-based) duty to secure improvement in the prevention, diagnosis, and treatment of illness (noting that while pregnancy was not an illness, allowing an unwanted pregnancy to continue risked physical and mental injury [Para 69]). This latter duty, which applied here, was owed not to the population of England, but required services to be provided in England, thus extending the provision of free care (including abortion services) to those from elsewhere in the UK.
Secondly, he reasoned that, while the Secretary of State was ‘bound’ to show respect for the “democratic decision of the people of Northern Ireland” [Para 74], Stormont had in fact expressed no view on the legality of women travelling from NI to travel to England to obtain abortions, a phenomenon of which it was well aware. Provided that there was compliance with the Abortion Act 1967, such women were legally entitled to abortions, and “democratic decision-making in NI simply does not impinge on the exercise by NI women of their rights in England” [Para 76].
The Human Rights Claim
It was alleged that the decision not to fund abortions was an infringement of A and B’s article 8 right to private and family life. In our consideration we will follow Lord Wilson’s approach that “B’s asserted right is parasitic on that of A so, in what follows, it will be convenient to refer only to the latter” [Para 21].
In the lower courts, the question of whether the funding of abortions fell within the ambit of A’s article 8 rights was contested by the respondent. However, by the time the case reached the Supreme Court the respondent accepted that A’s article 8 rights were engaged. This is in accordance with established jurisprudence in the European Court of Human Rights (ECtHR), that prohibitions of abortion fall within the scope of article 8 and as such must be justified. This is not to say that there is a substantive right to an abortion, but rather that any restrictions on abortion must be proportionate and, further, where abortion is legal it must also be accessible.
A claimed that her article 8 rights were engaged such as to provide the basis of a claim under article 14, when read alongside article 8. Article 14, which is not a ‘standalone’ right, states:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
In order to be successful in a claim for breach of article 14, two things must be shown (i) that there was differential treatment based on a personal characteristic or status; (ii) that this differential treatment cannot be justified.
There was unanimity on the question of differential treatment based on status. The disagreement between the majority and dissenting decisions focused on the question of justification. Lord Wilson followed Lady Hale’s summary in R (Tigere) v Secretary of State for Business, Innovation and Skills of the four well-known questions that must be answered positively to show that discrimination is justified:
- does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right;
- is the measure rationally connected to that aim;
- could a less intrusive measure have been used; and
- bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?
Lord Wilson found that in the situation of A and B the differential treatment was justified. He stated:
In my view an affirmative answer clearly falls to be given to the first three of them: for the aim of the respondent’s decision in relation to women who were UK citizens but usually resident in NI, to which the decision was rationally connected, was to stay loyal to a legitimate scheme for health services to be devolved in the interests of securing local provision to residents in each of our four countries. Nor, with that aim, could he have reached any decision less intrusive upon the rights of such women to respect for their personal life. The issue surrounds the fourth question: did his decision strike a fair balance between their rights and the interests of the UK community as a whole? [Para 32].
Lord Wilson considered the balance briefly in paragraphs 34 and 35. He accepted the respondent’s contention that it must be shown that his decision is ‘manifestly unreasonable’. He then considered the evidence presented, particularly by the interveners, that an assessment of fairness or unfairness must be made in light of the trends that exist in international human rights documents of the importance of access to abortion. Lord Wilson was not convinced:
In my view, however, the appellants need material of a far more vivid hue to put into the balance against the respondent’s resolve to stay loyal to the overall scheme for separate provision of free health services within each of our four countries and to the democratic decision reached in NI in relation to abortion services [Para 35].
Lord Kerr sharply rejected this approach. He disagreed that the respondent’s decision is pursuant to a legitimate aim. As noted above, he rejected the argument that the funding decision is necessary to maintain loyalty to the regulatory structure for funding health care services in the constituent parts of the UK, considering that “Allowing NI women to have abortions on the NHS in England does not impinge on the NI Assembly’s continuing responsibility for the provision of medical services in NI”. [Para 84]. For him, therefore, since: “no legitimate aim exists for the interference with the appellants’ article 8 rights, when read with article 14, the entire edifice of justification crumbles” [para 87].
The decision in A and B raises interesting questions about how access to abortion care should be understood. It is accepted by all parties that a decision could be made exceptionally to fund abortion services. Whether abortion should be understood as exceptional medical treatment is a point of disagreement in the decisions of Lords Wilson and Kerr and Lady Hale.
For Lord Wilson, abortion is not exceptional and funding it through the NHS would “precipitate… a substantial level of health tourism” [Para 36].
Although Lord Kerr and Lady Hale view abortion differently it is clear that neither thinks it is like other medical care. Lord Kerr explicitly and implicitly framed abortion as akin to emergency medical treatment:
A woman from Northern Ireland visiting England who suffers an acute attack of appendicitis will have, if it proves necessary, her appendix removed in a National Health Service hospital, without charge. The same woman, if she travels to England in order to obtain an abortion, must pay for that procedure. How can this be right? The answer is that it cannot be, and is not, right [Para 50].
He went on to reject the comparison between abortion and ‘elective’ treatment and emphasise that women in NI have “no true choice” in the decision to obtain treatment in England, noting that A was not in effect demanding treatment in England rather than NI: “This is not an instance of her seeking what she regarded as a better level of service in England. It was a case of her being obliged to come to the only medical service of which she could avail” [Para 70].
These wider issues concerning the nature of abortion lie somewhat hidden beneath the cover of statutory interpretation. While Lord Kerr’s distinction between improvement of the health of the people of England and provision of services in England might have some merit from a literalist perspective, it is less clear that it fits a purposive approach to the 2006 Act, the more so as it seems to draw an artificial divide between matters of public health and healthcare. It is difficult to resist the conclusion that the judge, the NI representative on the Supreme Court, may have sought to fashion a legal solution to achieve a particular outcome.
Lady Hale concurred with Lord Kerr’s opinion, but went further, continuing with the significant contribution she is making to the law on reproduction. Lady Hale stated simply: “pregnancy is a special case” [Para 96]. She views the decision not to fund abortion not by reference to access to medical care, but to what Drucilla Cornell, writing in this area, describes as ‘constitutional fundamentals’. For Lady Hale, the wrong of the decision not to fund abortion is the denial to women of basic rights of autonomy and bodily integrity and a rejection of equal treatment [Para 95]. Access to lawful abortion, for Lady Hale is necessary, to “restore[s] her autonomy and respect[s] her dignity” [Para 96].
A and B have confirmed they will pursue their claim in the ECtHR.