In 2012 a 15-year-old UK citizen (A) found herself unwillingly pregnant. Had she lived in England, Scotland, or Wales she could have contacted her GP or local sexual health clinic to arrange a termination. However, since this teenager lived in Northern Ireland (NI) she and her mother(B) were forced to scrimp and save to cover costs of travel to England for the abortion. Since women resident in NI are not entitled to NHS-funded abortions in England, they also had to pay for the procedure.
Like many in their situation they found themselves in an abortion financial spiral. The longer it took to save money for the procedure the further the pregnancy progressed; the further the pregnancy progressed the higher the cost of the procedure. B described the situation as “harrowing”. Finally, with the assistance of the Abortion Support Network (ASN) – a charity established in 2009 to provide Irish women with financial, logistical, and emotional support to access abortion care in England - they travelled to England to have the abortion in an independent sector clinic.
The Abortion Act 1967 does not extend to NI where abortion is still primarily regulated by an 1861 statute. This has been interpreted to permit abortions only in cases where continuance of pregnancy threatens the life of the pregnant woman or poses a ‘real and serious’ risk of ‘permanent or long-term’ harm to her physical or mental health. In 2013 only 51 cases met this threshold.
Believing it to be to be discriminatory, B challenged the legality of the policy that precluded her daughter from accessing an NHS-funded abortion in England. The details of the case are technical and beyond our scope here, but last week the High Court affirmed the position that Northern Irish women are not entitled to NHS-funded abortion care in England. It was accepted by all parties that the Secretary of State for Health had the power to make an exception to general funding arrangements which stipulate that only those ordinarily resident in a particular region are entitled to NHS funded non-urgent treatment there. However, the judge found that the reasons for his refusal to do so were neither ‘irrational’ nor ‘unreasonable’ (the threshold needed for B’s challenge to succeed). Abortion is categorised as non-urgent secondary care and the fact that A could not access this care where she was ordinarily resident did not change this. The ruling was criticised by Amnesty for treating Northern Irish women as “second-class citizens of the UK in terms of their right to access healthcare”.
Regional variation in access to UK abortion services is nothing new. When the 1967 Act was first introduced, women faced obstacles that were both institutional (bureaucracy) and personal (obstruction by medical personnel). This was described by some as “the NHS abortion hurdle race”, and to overcome these hurdles independent sector clinics like the Birmingham Pregnancy Advisory Service (now British Pregnancy Advisory Service) were established to plug gaps in NHS abortion care. Unfortunately, for many women in the United Kingdom these obstacles continue. For example, Scottish women who, due to lack of willing providers, often have to travel to England for abortion once they have reached 18-20 weeks gestation (Purcell et al) even though the the legal cut-off in their situation is 24 weeks.
Importantly, the particularly restricted legal grounds for abortion in NI don’t stop women having abortions; it just makes it more difficult. Approximately 1,000 women travel from NI to England annually to access abortion services. The average cost is £900. The financial burden to these women is compounded by the emotional burden, as they enter what Inhorn describes as ‘reproductive exile’. Furthermore, while abortion remains a safe and routine procedure, inevitably risks increase when it is performed later and with less access to follow up care. Naturally, these burdens mean that socially or economically disadvantaged women and girls are most vulnerable to the ongoing political failure to legislate for abortion in NI. The death of Savita Halappanavar in the Republic of Ireland in October 2012 rightly attracted widespread international condemnation of restricted abortion in that jurisdiction. It is too often overlooked that women in NI are similarly denied the right to make decisions about their reproductive futures available to their counterparts elsewhere in the UK.
Professor Marie Fox is Professor of Socio-legal Studies at Birmingham Law School. Dr Sheelagh McGuinness is a Birmingham Fellow based in the Centre for Health Law, Science & Policy, at Birmingham Law School
The above article is a comment on (A & Anor, R (on the application of) v Secretary of State for Health  EWHC 1364 (Admin)