This article comments on the Supreme Court case of R (A) v Secretary of State for Health where the Court divided 3:2 as to whether the refusal of the health secretary to provide abortion services on the National Health Service in England to women from Northern Ireland was unlawful in public law terms and/or a breach of arts.8 and 14 of the European Convention on Human Rights. This article explores the role of international instruments in domestic cases, comparative law on “intersectionality”, and explores the various approaches of the Supreme Court justices to the “respect” owed to devolved governments, before looking at post-judgment events and future further litigation in the European Court of Human Rights.
When the Abortion Act 1967 was passed, it applied to England, Wales and Scotland, but not to Northern Ireland.1 As a consequence of that, abortion is available in Northern Ireland in far narrower circumstances than in the rest of the United Kingdom. In Northern Ireland, a termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long term.2 Therefore, it may be surprising that it took 50 years from the passing of the 1967 Act for a claim to reach the Supreme Court which complained about the disparity of treatment under the National Health Service (NHS) for those women who live in Northern Ireland and want to access abortion services in the rest of the United Kingdom. Northern Ireland criminal law prevents women there accessing abortion services in all but the most extreme circumstances. But when Northern Ireland women travel to another part of the United Kingdom — part of their own country — the NHS makes no provision for them and says it will not provide an abortion service.