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Northern Ireland abortion campaigners vow to fight on despite court ruling

Published 22/07/2015

The case was rejected by three judges in London following a hearing last month
The case was rejected by three judges in London following a hearing last month

A young woman and her mother have vowed to continue their legal fight for women from Northern Ireland to receive free abortions on the NHS in England.

Their lawyer announced that they "do not intend to give up" after their case was rejected by three judges at the Court of Appeal in London.

Lord Justice Moore-Bick, Lord Justice Elias and Lord Justice McCombe had heard that the case was of considerable importance as an estimated 2,000 women and girls from Northern Ireland - where abortion is illegal apart from in exceptional circumstances - come to England for terminations every year.

The 18-year-old applicant was aged 15 when she made the journey in October 2012 with her mother and was told she had to pay hundreds of pounds for a private termination because she was excluded from free abortion services.

Referred to in court as A to protect her identity, she and her mother challenged a decision made by Mr Justice King at the High Court in May last year that the exclusion was lawful.

The women's solicitor Angela Jackman, a partner at law firm Simpson Millar, said after the decision was announced: " We have achieved some success in that the Court of Appeal has confirmed the significance of human rights legislation for this important issue.

"My clients did not give up last year and do not intend to give up now."

She said they would be seeking to take the "landmark" case to the Supreme Court and if necessary apply to the European Court of Human Rights in Strasbourg in the light of "favourable rulings" made today on human rights issues.

Ms Jackman said appeal moves would be made "as the inability of women from Northern Ireland to receive free NHS abortions in England, despite being UK citizens, remains of such huge significance".

She said that currently abortion in Northern Ireland "is only legal in exceptional circumstances if the life or long-term health of a pregnant woman is at risk".

The case was brought by A and her mother, referred to as B, who travelled from Northern Ireland to Manchester for A's abortion. The operation cost £600 on top of travel costs of £300.

When the case was before the High Court, Mr Justice King ruled that the Health Secretary was entitled to adopt a residence-based system so that women resident in Northern Ireland are not entitled to benefit from NHS abortion services in England, even thought they are UK citizens.

He declared 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.

Ms Jackman said today that although the appeal was dismissed, the Court of Appeal "disagreed with the Secretary of State for Health's position on the applicability of human rights legislation and confirmed the relevance" of Articles 8 and 14 "in this area of law".

During the appeal proceedings, the judges heard from Stephen Cragg QC, for the teenager and her mother, that the situation was causing desperation and stress for women and girls.

Lawful abortions were only available in rare, highly exceptional circumstances in Northern Ireland, which did not include, for example, rape, incest or foetal abnormality.

The case was backed by the Alliance For Choice organisation, which campaigns to extend legal abortion in Northern Ireland.

Lord Justice Elias said official statistics suggest that about 1000 women a year come to take advantage of the "more liberal legal regime" in England, although the Alliance For Choice, "believe that the true figure is probably double that number".

The judge said it was argued by Mr Cragg that women from Northern Ireland "constitute a special case both because abortion is (save exceptionally) illegal where they live, and because they are denied the right to free abortion as citizens of the UK, notwithstanding that other women throughout the UK can obtain those services".

The Secretary of State "should therefore have used his powers to place these women in precisely the same situation as women from England and indeed all other parts of the UK" and "should have provided the service which the Northern Ireland government was not prepared to provide, and indeed could not legally provide".

Lord Justice Elias said: "I do not accept this argument. 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."

The judge added that it "could not conceivably be said that the Secretary of State is obliged to exercise his discretion so as to extend free abortion services to such women".

He said: "It is not irrational to take the view that English taxpayers should not have to bear the cost of providing abortion services to women from Northern Ireland."

The fact that Northern Ireland "does not provide these services because it still considers that abortion should, in most circumstances, be illegal does not compel the Secretary of State to take a different approach to women from that area".

Lord Justice Elias said: "It cannot be irrational for the Secretary of State, with responsibility for the health service in England, to consider that it is not his duty to seek to remedy what some might consider to be the harsh consequences of the law adopted by the devolved legislature in Northern Ireland."

Amnesty International's campaign manager Grainne Teggart said: " The ruling today and the policy of the UK Health Secretary only adds to the barriers women in Northern Ireland face when trying to access abortion services.

"Up to 2,000 women per year leave Northern Ireland to access abortion services because of our highly restrictive laws and because no pathway into the NHS exists as the Department of Health is yet to publish termination of pregnancy guidance.

"Northern Ireland's highly restrictive abortion laws are in significant breach of the UK's international human rights obligations and force women pregnant as a result of rape and incest and whose pregnancies have been given a fatal foetal diagnosis to continue with those pregnancies or pay privately for service provision to which they should be entitled."

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