Janet Farrell and Caoilfhionn Gallagher QC consider three important challenges to the current abortion regime in Northern Ireland and its consequent effects on Northern Irish women travelling to Great Britain.
Northern Ireland was specifically excluded from the Abortion Act 1967, so the position there remains frozen in time.
This year marks the 50th anniversary of the Abortion Act 1967. Half a century on, women in Northern Ireland (NI) have next to no access to a safe and lawful abortion. They live in the UK, but uniquely in NI it is a criminal offence to terminate a pregnancy in circumstances where a termination has been widely available to women in England, Scotland and Wales for the past 50 years. It seems unjust, inequitable and anachronistic. It is.
The criminal penalties in NI are among the harshest in the world, with the maximum sentence being life imprisonment. They arise principally from the Offences Against the Person Act (OAPA) 1861 ss58 and 59. An unlawful abortion is one carried out absent the act being done in good faith for the purpose of preserving the life of the woman or where there is a risk she would become a ‘mental or physical wreck’ (R v Bourne
 1 KB 687). That has been interpreted to require a serious, permanent or long-term effect on her physical or mental health (Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety  NICA 37
). In practice, the number of lawful abortions in NI is tiny and diminishing.
The Abortion Act 1967 reformed the law in England, Scotland and Wales. By section 1, an abortion is lawful if carried out to avert a risk of physical or mental injury to the mother or foetus, subject to a number of conditions. Given that many doctors agree that continuing a pregnancy is always more dangerous to the physical welfare of a woman than an abortion, in practice this means abortion is widely available. But NI was specifically excluded from the Act, so the position there remains frozen in time, bound up with the language of backstreet abortions of the Victorian age.
The regime does not, however, prohibit women from travelling to Great Britain to access abortion services. The official statistics indicate that approximately 1,000 women travel from NI to England for this purpose every year (although the true figure may be as high as 2,000). They face the hurdle of paying for both services at private clinics and for travel. The impact on NI women is severe, and the hardship is exacerbated for low-income women and others with additional barriers to travel (such as domestic violence victims or immigrants). Their choices are stark: pay to travel, risk a criminal record or continue with an unwanted pregnancy. This is a situation long accepted by both the NI Assembly and central government.
This year, as we mark the 50th anniversary of the Abortion Act 1967, the anomalous position of NI women is being tackled in the courts in three important cases.
•R (A and B) v Secretary of State for Health
14 June 2017
A and B were a mother and daughter from NI. A was 15 when she became pregnant. Unable to access abortion services at home, she travelled with her mother, B, and used the services of a private clinic in England. Raising the money was stressful and difficult, and it delayed the procedure, rendering it more physically invasive than it would otherwise have been. They challenged the health secretary’s policy of refusing to provide abortion services on the NHS for NI women in England. It was common ground that the health secretary had a power to make such provision under the National Health Service Act 2006 and the relevant regulations, but he argued that he was entitled to refuse to exercise his discretion as to do so would undermine the devolved system of healthcare and, as NI had decided not to provide abortion services, to do so via the NHS in England could undermine the democratic will of the NI people.
The appellants argued that the failure to exercise the discretion was a breach of public law principles, and discriminatory, in breach of the appellants’ rights under articles 8 and 14 of the European Convention on Human Rights (ECHR). By the narrowest of margins, the court held, by a majority of three to two, that the policy was not unlawful. The court was united in its sympathy for NI women experiencing unwanted pregnancies, which Lord Wilson described in the lead judgment as ‘deeply unenviable’ (para 6). All the justices agreed that the position of women such as A and B engaged article 8 and that the failure to provide them with abortion services free on the NHS constituted prima facie discriminatory treatment: they were treated differently from those usually resident in England, as only those in the latter group had access to free NHS abortions.
But the claim failed on the question of justification. The majority held that the health secretary was entitled to stay loyal to the overall legislative scheme, which provides that the four territories of the UK have control over their own health services and to ‘afford respect to the democratic decision of the people of Northern Ireland’ (para 20). The public law challenge failed for similar reasons. An alternative finding, Lord Wilson said, would encourage health tourism and undermine ‘the edifice of devolved health services’ (para 36).
Lord Kerr and Lady Hale gave robust dissenting judgments that dismantled that reasoning. Lord Kerr considered the government failed at the first hurdle on justification, as there was no legitimate aim to the policy. There was no call on the health secretary’s loyalty to the overall scheme as posited by him and deference to NI’s democratic decision could not ‘possibly qualify as a legitimate aim’ (para 86). In any event, the status quo countenanced and permitted (private) abortions in England for NI women, by both the NI Assembly and central government, undermining the health secretary’s rationale. He differentiated A’s situation from ‘health tourism’: she was not ‘seeking … a better level of service’ but was instead ‘obliged to come to the only medical service of which she could avail’ (para 70).
Lady Hale considered that interpretation of the NHS Act 2006 should have regard to the ‘fundamental values underlying our legal system’ (para 93), including equality and autonomy, and she held that ‘a woman from Northern Ireland who is in Great Britain ought not to be denied, as a matter of policy, the same rights as other women here enjoy’ (para 95).
Having won the case in court – just – the government went on to lose it in parliament and the media. The timely reminder from the Supreme Court of the existence of the health secretary’s power, combined with a hung parliament and an unprecedented spotlight on civil liberties issues in NI given the Conservative/Democratic Unionist Party deal, was the backdrop to an amendment to the Queen’s speech tabled by Labour MP Stella Creasy, requiring the health secretary to provide abortion services to NI women in England. It quickly gained wide cross-party support and on 29 June 2017 the government announced a reversal of its earlier position, only a fortnight after the Supreme Court’s ruling. Abortion services would be provided free of charge to women from NI, with the new policy being implemented by the minister for women and equalities. The practicalities are being explored but this is undoubtedly a very significant victory in an otherwise bleak situation.
A and B are proceeding to the European Court of Human Rights. The government spent years defending this policy right up to the most senior court in the land, only to reverse it in an afternoon for reasons of political expediency (and without any consultation with the NI Assembly, which is not currently functioning). As welcome as that U-turn may be, it reveals a fickle and unprincipled approach to these critically important rights, and A and B remain without a remedy.
•Attorney General for Northern Ireland and Department of Justice v Northern Ireland Human Rights Commission
29 June 2017
Hours before the government’s U-turn on the travel issue, the NI Court of Appeal dealt a blow to those campaigning for changes to abortion access in NI. The Northern Ireland Human Rights Commission (NIHRC) brought judicial review proceedings seeking a declaration that the abortion regime in NI is incompatible with ECHR articles 3, 8 and 14 in three categories of case: (i) fatal foetal abnormality pregnancies (FFA) (where the foetus will not survive birth); (ii) pregnancies arising from rape and incest; and (iii) serious malformation of the foetus cases.
It partly succeeded in the High Court ( NIQB 96
): in November 2015, Horner J found that for cases involving FFA and rape/incest the legal position breached article 8 and he made a declaration of incompatibility. The articles 3 and 14 argument was rejected, as was the third exception. The attorney general for NI and the Department of Justice appealed, and the NIHRC cross-appealed. In the interim, the NI Assembly voted against reforming the law in respect of these exceptions.
However, on 29 June 2017, the Court of Appeal of NI quashed the declaration of incompatibility by a majority of two to one (and all three judges dismissed the article 3 claim, finding that the threshold had not been reached). Three separate judgments set out very different approaches but deference to the legislature featured heavily in each. For example, Gillen LJ held that ‘the issue of abortion is a classic instance of the type of highly controversial issue touching on social, moral and religious policies … Such an issue requires parliament to be allowed a wide margin of judgment’ (para 105).
The lord chief justice, Sir Declan Morgan, considered that the Bourne definition of a lawful abortion should be revisited in the modern day context. The position of women has ‘altered beyond all recognition’ (para 78) since the 1930s and the values of that time should not constrain considerations of ‘what is reasonably tolerable in today’s society’ (para 79). Applying this modernised test, he held that the NIHRC’s evidence regarding FFA and rape/incest indicates that these categories should fall within the Bourne exception, and thus a lawful abortion should have been open to these women. Gillen and Weatherup LJJ were robust in their views that this constituted judicial overreach and was institutionally inappropriate.
The Court of Appeal gave permission to appeal and the case has been expedited, to be heard before the Supreme Court in late October 2017.
High Court of Northern Ireland
With the availability of abortifacient medication online in recent years – a significantly cheaper and easier option than paying for travel and clinic costs – prosecutions in NI under the OAPA 1861 started hitting the headlines. Three prosecutions have been brought since 2015, two of which have been successful. The third is under challenge in proceedings known as JR76 in the NI High Court. This is a challenge to the decision to prosecute the mother of a 15-year-old girl in NI who fell pregnant while in an abusive relationship with an older teenager and who wanted a termination (notably, the father has been neither investigated nor prosecuted). Her mother sourced the pills online via a charity called Women on Web, which assists women in countries around the world with restrictive abortion regimes. Following the termination, she brought her daughter to the GP and was completely candid in that appointment. Referrals resulting from that appointment led to the police being alerted. The girl’s confidential medical notes form the basis of the prosecution’s evidential case.
The applicants’ primary argument is that the decision to prosecute and to rely on the child’s confidential medical records in so doing is a breach of ECHR article 8. Further, they argue that the findings made by Horner J in the NIHRC case (see above) (good law at time of issue of the proceedings) should include situations of sexual crime that fall outside the strict definitions of rape or incest, such as the instant case where there has been sexual activity with a child, contrary to Sexual Offences (Northern Ireland) Order 2008 SI No 1769 (NI 2) article 16. They also argue that the decision to prosecute is a breach of ECHR article 3, and that the public interest test was not met for a number of reasons, including the chilling effect on access to healthcare advice, especially relevant to vulnerable groups such as teenagers with unwanted pregnancies and victims of abuse.
A hearing was initially listed for May 2017, but that was adjourned for the pending judgment in the NIHRC case and it seems likely it will be adjourned further until the Supreme Court has had its say.