IN what could prove to be an uncomfortable coincidence for Theresa May’s fledgling government, the Supreme Court is set to rule this week on abortion being available free on the NHS in England to women from Northern Ireland.
May is currently attempting to negotiate some sort of confidence and supply deal or agreement with the Democratic Unionist Party (DUP) to help prop up her government.
In return for as yet unknown commitments, the DUP’s leader Arlene Foster will have her 10 MPs whipped to back the Tories.
Last year Foster vowed to prevent the 1967 Abortion Act being extended to Northern Ireland, and has promised to oppose to any reform of its notoriously strict abortion laws.
Over the weekend, Owen Paterson, who was Northern Ireland secretary under David Cameron, suggested the DUP might even seek to have the legal abortion time limit reduced as part of their deal with May.
Abortion is currently illegal in Northern Ireland, unless continued pregnancy poses serious medical risk to the mother. Only 23 were carried out in 2013-14.
Women and girls seeking abortions have to travel to England or Wales and pay to obtain them on the NHS, or they can procure pills online illegally that induce a termination if they are less than nine weeks pregnant.
The case at the centre of the hearing was brought in 2014 by a young woman, A, and her mother, B. The young woman was 15 when she and her mother travelled to Manchester where she had an abortion at a reported cost of £900. They have brought a legal challenge contesting that women from Northern Ireland should be allowed access to NHS-funded abortion care in England.
According to the British Pregnancy Advisory Service (BPAS), last year 833 women were recorded as having travelled from Northern Ireland to England and Wales for abortion care.
If A succeeds, it could open the way for women from Northern Ireland to be permitted abortions on the NHS in England. She argues that the Secretary of State for Health failed to discharge his duty under section three of the NHS Act 2006 to “meet all reasonable requirements” in England for services, including abortion.
A also argues that her rights under Article 8 and Article 12 of European Convention of Human Rights, have been breached and she has been discriminated against – by reason of being treated differently from other women in England.
However, the fact that abortion is illegal in Northern Ireland – other than in exceptional circumstances – remains a major obstacle.
The challenge against a ruling that prevents women from Northern Ireland having free NHS abortions in England was unsuccessful at the High Court and the Court of Appeal, but the mother and daughter were granted permission to appeal to the Supreme Court. Dr Mary Neal, a senior lecturer and medical lawyer at Strathclyde University said it was a “politically tricky” situation for the government. She said: “If the Supreme Court did find in favour of the appellant and therefore created pressure on the government to change their policy, there would be contrary pressure coming at them from the DUP not to change it, I would imagine.
“Obviously if the policy was changed in respect of women from Northern Ireland, it would allow those women a way of circumventing the law in their own jurisdiction.
“The Northern Ireland Assembly, has decided not to change the law, so it would be politically difficult for the government if the Supreme Court was to find for the appellant. It would leave them caught between that decision and the political pressure I’d imagine the DUP might bring to bear.”
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