Women and girls in need of abortion services in Northern Ireland are being treated as “second-class citizens”, the UK’s highest court has heard.
Supreme court justices were told of their “healthcare plight” at the start of the latest round of a legal battle by a teenager and her mother for those resident in Northern Ireland to receive free abortions on the National Health Service (NHS) in England.
Stephen Cragg QC, for the mother and daughter, said at a hearing in London on Wednesday: “Women and girls in need of abortion services in Northern Ireland are in an anomalous position. They live in the UK, but – unlike all other women and girls in the UK – they are at risk of the most serious criminal penalty if they procure an abortion in their own area.”
He said that, "unlike all other women and girls in the UK", they "cannot access abortion services through the NHS free of charge. In terms of reproductive rights, they are second-class citizens. "
He said abortion had remained unlawful in Northern Ireland “in all but a tiny number of extreme cases”.
Private termination
The young woman at the centre of the case was 15 in October 2012 when she and her mother travelled from Northern Ireland to Manchester where was told she had to pay hundreds of pounds for a private termination because she was excluded from free abortion services.
The teenager and her mother, who cannot be named for legal reasons and are referred to as A and B, originally lost their action in the high court in London in May 2014 when a judge ruled that the exclusion was lawful.
He said the health secretary was entitled to adopt a residence-based system so that women resident in Northern Ireland were not entitled to benefit from NHS abortion services in England, even though they were UK citizens.
The high court judge declared that A had no right under article 8 (right to privacy and family life) of the European Convention on Human Rights to a state-funded abortion, and there was no breach of anti-discrimination laws under article 14.
The teenager, now 19, and her mother, then suffered a further defeat at the court of appeal last year.
Lord Justice Elias, announcing the court of appeal’s decision, said: “There was nothing irrational in the approach of the secretary of state. It is entirely logical to provide a range of NHS services throughout the UK on the basis of local residence requirements.”
International norms
The supreme court’s deputy president Lady Hale and four other justices are being asked to rule on a challenge against the court of appeal’s decision.
Mr Cragg argued that the stance of the health secretary – that abortion services should not be made available for women from Northern Ireland – was “unreasonable and at odds with international norms requiring the UK as a whole to ensure access to safe abortion and post-abortion care services”.
The “healthcare plight of a section of the UK population” was being ignored, he said, arguing that the court of appeal “erred” in its conclusions.
Contesting the challenge at the supreme court, Jason Coppel QC, for the government, said it was not irrational for the provision of non-emergency healthcare to be divided between the different countries of the UK according to the place of residence of the patient.
Before the proceedings began, Angela Jackman, a partner at law firm Simpson Millar, who has been representing the girl and her mother throughout the legal process, said: “For women in Northern Ireland who are pregnant and seek a termination, the status quo is almost unbearable.
“I believe the legal arguments of the secretary of state are perverse and contrary to its international obligations.
“Many women face the choice between an unlawful termination using dangerous and illegal pills, with the prospect of prosecution to follow, or a costly journey to England where they must pay privately for an abortion. For many women, those costs are prohibitive.”
At the completion of the legal argument the justices reserved their decision to be given at a later date.
– Press Association