Abortion, Autonomy And The Deep Blue Sea: The Supreme Court’s Decision In R (On The Application Of A And B) v Secretary Of State For Health
The question in this case was whether the Secretary of State, who had power to make provision for the functioning of the NHS in England, was legally obliged to make directions enabling women who were citizens of the UK, but who were usually resident in Northern Ireland, to terminate a pregnancy in England under the NHS, and free of charge. By a 3-2 majority (Lords Wilson, Reed and Hughes, with Lord Kerr and Baroness Hale dissenting), the Supreme Court has decided today that he was not.
The judgments contain many interesting observations on devolution issues and democratic respect, on the impact of international law on domestic law, on common-law rights adjudication and on ‘margins of appreciation’: legal issues which lawyers and scholars will consider over time. They also concern an acute political controversy which may come to the forefront of debate right now.
When, on 7th June 2016, the Court announced that a decision would be handed down on Wednesday 14th, the Supreme Court Justices will have been aware that it would be legally controversial, involving as it does, abortion, rights-based adjudication, and the relationship between the legal systems of the devolved nations of the United Kingdom. But unless the judges had greater predictive powers than those of any psephologist, they will not have anticipated the result of the 8th June general election or the way the decision may influence discussions between the new minority Conservative administration and the Democratic Unionist Party of Northern Ireland.
Although this case might be characterized as the Northern Irish Roe v Wade, there was almost no media coverage of the hearing in November 2016. In the post-Miller environment, where there is increased awareness of the overlap between legal and political controversy, the judgment may attract more public attention.
The Appellants were a girl who had become pregnant at 15 and her mother, who had had to travel to the UK to obtain a privately funded abortion, in traumatic and expensive circumstances.
The Abortion Act 1967 does not extend to Northern Ireland, and abortion in Northern Ireland is available only in far narrower circumstances than elsewhere in the United Kingdom. Women in Northern Ireland can be, and indeed are, prosecuted for obtaining abortions in circumstances which would be lawful throughout the rest of the United Kingdom. The result is that a steady stream of women who are usually resident in Northern Ireland are obliged to make the journey to England in order to secure abortions. Nor can they obtain an abortion under the English NHS (except in an emergency) so they are obliged to attend private feepaying clinics. Lord Wilson, setting out the facts in the majority judgment, observed with sympathetic but laconic understatement that “the plight of women [in Northern Ireland] who find themselves in unwanted pregnancy there is deeply unenviable”.
However, the majority of the Supreme Court found that the duty under section 3 of the National Health Service Act 2006 to provide medical services “to such extent as he considers necessary to meet all reasonable requirements”, and his power to make directions as to what those might be, did not compel the Secretary of State (before 2013) or Trusts (after that date) to provide abortion services to UK citizens usually resident in Northern Ireland. Nor was the majority persuaded that such a reading of the legislation breached the Appellants’ rights under Articles 8 and 14 of the European Convention on Human Rights, even when these were read in the light of more specialist international legal instruments like CEDAW.
The majority accepted that access to abortion was within the ambit of the autonomy and dignity rights protected by Article 8, and that there was discrimination as between UK citizens in England on grounds of usual residence, but that this was justified. It held that the Secretary of State was entitled to exercise his discretion in such a way as to afford respect to the different legislative choices of the devolved legislatures as to the availability of abortion in their respective jurisdictions, and not to interpret the law in England in a way which might impinge on those choices.
However, Lord Kerr and Baroness Hale gave powerful dissenting judgments, which may hold sway if the case goes to Strasbourg. As Lord Kerr put it (see paras 84-85 and 91), no one in this case was arguing about what the law should be in Northern Ireland; they were arguing about the treatment that Northern Irish women should be entitled to receive, without discrimination, under the law of England, when they were in England. This did not impinge upon democratic respect for the decisions of the Northern Ireland Assembly about availability of abortion in Northern Ireland.
Baroness Hale agreed with Lord Kerr. She based her reasoning on the “fundamental” common law values of autonomy and equality and especially of human dignity. Reviewing the caselaw, she said (at para 93), that “the right of pregnant women to exercise autonomy in relation to treatment and care has been hard won but it has been won”. Though not, at least not yet, in relation to the women of Northern Ireland.