UK Supreme Court rules narrowly against free abortions in England for Northern Ireland women. But in Scotland?

Support for abortion reform in Northern Ireland becomes all the more relevant after the decision of the Supreme Court last Wednesday narrowly to reject the appeal against  Jeremy Hunt the Health Secretary for England,  refusing to exercise his discretion to allow  women from Northern Ireland to have abortions free of charge on the NHS  in England. A triumph of democracy, opponents would say.

From the Guardian report  

The judges were ruling on the case of a woman identified only as A, who was 15 and resident in Northern Ireland when she became pregnant in 2012. Unable to access abortion services in Northern Ireland, she travelled to Manchester with her mother, and used the services of a private clinic, at a total cost of £900 including travel.

This was a large sum for the family to find, and they were only able to afford treatment because of financial support from the charity Abortion Support Network.

Although the Health Secretary (for England)  has accepted that it is within his power to arrange for abortion services to be provided to women from Northern Ireland through the NHS in England, he has refused to exercise that power, the daughter’s lawyer Angela Jackman, of law firm Simpson Millar, said. 

But campaigners were encouraged by divisions between the five judges on the panel. Lord Kerr and Lady Hale, the two most senior members of the court, found that the current policy unjustifiably breaches women’s rights under article 14 (freedom from discrimination) and article 8 (right to private and family life) of the European convention on human rights.

Brenda Hale, deputy President,  is  the sole woman on the  court, while Brian Kerr is a former Lord Chief Justice of Northern Ireland,  (and a Catholic).

Delivering the majority decision Lord Wilson said.)

Parliament’s scheme is that separate authorities in each of the four countries united within the kingdom should provide free health services to those usually resident there. The respondent (Jeremy Hunt the Heath Secretary for England)     was entitled to make a decision in line with this scheme for local decision-making and in accordance with the target reflective of it which was imposed on him by statute. But the respondent has taken his argument a stage further. In response to the letter before action sent on behalf of the appellants, he stated that it was “the policy of the Government … that, in general, the NHS should not fund services for residents of Northern Ireland which the Northern Ireland Assembly has deliberately decided not to legislate to provide, and which would be unlawful if provided in Northern Ireland.”

 This is the consideration which the appellants submit to have been irrelevant. It was, so they argue, the assembly’s decision which created the need and it could hardly also represent a reason for refusing to meet it. I disagree.

The respondent  was entitled to afford respect to the democratic decision of the people of Northern Ireland; 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…

On any view the dissenting judgments of Lord Kerr and Lady Hale command considerable respect. Lord Kerr concludes that it was the duty of the Secretary of State (and is the duty of the groups) to provide for a UK citizen present but not usually resident in England the same medical services, free of charge, under the NHS as he provided (and as they provide) for those usually resident in England.

 Lady Hale agrees with him but also stresses that a requirement for abortion services represents a special case. It is, however, easy to think of other people suffering a grave medical condition who could mount an equally convincing special case. Lady Hale also suggests that the duty of the NHS in England to provide abortion services extends even to foreign citizens present in England; but its entitlement to charge such citizens, which Lady Hale recognises, might not negate the effect of the suggested extension on the functioning of the service.

Irrespective, however, of its precise extent, 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. In the end, for the reasons given above, I find myself unable to agree either that sections 1 and 3 of the 2006 Act or that the human rights of UK citizens generate the suggested duty. I would dismiss the appeal.

So what about Scotland? Any developments?

Nicola Sturgeon has told the Scottish parliament that the devolved government would explore the possibility of giving women from Northern Ireland access to abortions in Scotland’s health service free of charge.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London