TO LIVE FREE WITHIN BORDERS

A Commentary on UKSC’s Decision on R v Secretary of State for Health, ex parte A and B [2017]

A law that is inclusive does not discriminate.

1. Introduction

As an act towards progression, a greater part of the world has been taking such bold steps to decriminalize and legalize—some, gradually and partially—abortion on grounds relating to the woman’s health and life, and social and economic factors, leaving only six countries that totally prohibit it (Vogelstein & Turkington, 2019). Nonetheless, the vagueness of abortion laws still vary by region and by country, and can somehow be a source of discrimination, a clear manifestation of backwardness.

SECTION III of the National Health Service Act 2006 (“the 2006 Act”), Part I states that the Secretary of State has an obligation to provide certain medical services such as dental, general health, ophthalmic, nursing, ambulance, maternity care, and other services and facilities for the well-being and health of the general public “throughout” England (National health Service Act 2006: Elizabeth II. chapter 41 2006). Though this should generally be the case, the role of a devolved government of the United Kingdom (UK) takes part in the power of the Secretary of State to direct the different health service bodies to have sovereignty and act on their own at the local levels. These devolved powers also give a separate legislature and executive to other countries that are part of the UK such as Scotland, Wales, and Northern Ireland; hence, their independence in law-making and –delivery (Rycroft & Barnes, 2015).

Such is the case in abortion. While bounded by national laws, countries in UK are still, say, independent in dealing with this issue. More liberal and progressive countries such as England, Scotland, and Wales have more permissive guidelines on abortion where it can be carried out as long as it is in the first 24 weeks of pregnancy, and as it would pose a greater risk to the health—physical and mental—of the woman (BBC News, 2019). The same could not be said of the Northern Ireland, where there are narrower circumstances that allow abortion, such that if only a woman’s life was at risk—which is intrinsically vague. Situations like rape, incest, and fatal fetal abnormality were not considered as legal grounds for abortion (BBC News, 2019) which sparks confusion in UK law.

In a research paper entitled “Cross-country abortion travel to England and Wales: results from a cross-sectional survey exploring people’s experiences crossing borders to obtain care,” Garnsey et. al. (2021) concluded that these circumstantial and geospatial barriers to abortion force women to travel outside of their home country to obtain legal abortion care. As mentioned, parts of Great Britain, particularly England and Wales, become the most common destinations for abortion in Europe. In fact, Garnsey et. al. (2021) found out that 95% of these foreign women who received abortion services in 2018 came from Northern Ireland. These women also face the consequences of financial difficulties; delays on abortion and hence, the risk in its safety; the inconvenience of traveling while in a maternal state; and the stigma that they would face when they go back to their community.

To be within the same region and not be able to receive the same health care services—that is the dilemma in these cases. Thus, this paper is written in response to the UKSC’s Decision on R v Secretary of State for Health, ex parte A and B [2017] which is technically an issue of human rights and procedural law.

2. The Case and Its Context

Centering on the case of A and B, whereas A was pregnant and B was her mother, and both of them resided in Northern Ireland, the R v Secretary of State for Health was about the lawfulness, or the lack thereof, of the inaction of the Secretary of State for Health to make provisions in the legal mandates of the National Health Service (NHS) in England specific to cases of non-residents of England per se, or particularly, residents of Northern Ireland who travel across boundaries to undergo the abortion process in England. Comes with the legalization is the provision of these services free of charge, with A and B arguing that more than the emotional distress, embarrassment, and stress is the financial difficulty that comes with having to cross countries to avail of such services.

Firstly, the issue of legalization of abortion in UK has long been justified and mandated by the Abortion Act 1967 (“the 1967 Act”) which provides the grounds for legal and safe abortion as including the time period of 24 weeks and the risk to woman’s health. As stated in the introduction of this paper, what makes this law confusing is the concept of a devolved government in UK, wherein the Northern Ireland, as a state, also has its right to create its own rules and regulations. This results in many cases like A and B’s, where a woman—a resident of Northern Ireland—comes to England to secure an abortion service.

Being the main issue, the effects of these circumstances include 1) having to pay for usually an expensive service for the whole travel and stay in England, whereas aside from the fee-paying clinics, the woman also has to pay for the overnight stay, accompaniment, and other travel costs; 2) the risk in the woman’s safety, since staying in England for a bit longer time—supposedly for rest after the termination of pregnancy—also costs more, so the woman will be forced to travel again immediately; 3) the total cost would usually require these women to borrow money from their friends and relatives, and the existing stigma in Northern Ireland regarding abortion would hinder them from being able to do so; and 4) the psychological stress of having to borrow money and thinking again how they will return it. On these evidences and effects, A and B asserted that the Secretary of State for Health should have just make the abortion laws in England inclusive even for Northern Ireland residents, making the services free of charge for them.

Moreover, the appellants argued in two grounds: 1) First, that the inaction of the Secretary of State for Health in this matter is unlawful in public law; and 2) is a conflict in the pursuit of human rights. In the matter of public law, the Secretary of State for Health has asserted that it is not within his duty to provide a service for a citizen of a country that does not legalize the said service. The appellants then argued that both of them are generally citizens of UK, and hence, a UK tax-payer. Thus, they should also enjoy the same rights that others enjoy, particularly when it comes to their health. Secondly, it was argued as a breach in their human rights in accordance with article 14 of the European Convention on Human Rights which states that:

The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (“the Convention”)

By this premise, they argue that the varying laws between countries within the UK border discriminates them because of their status. This argument was grounded on the idea that the UK law treats women who reside in Northern Ireland different from those who reside in England. While this cannot be considered as discrimination based on race, the appellants argued that it can be included in “other status.”

Finally, both the Supreme Court and the Court of Appeals decided to dismiss the appeal. Firstly, they stood on the right of the Secretary of State for Health to respect to the democratic decision of the devolved administration in Northern Ireland, which means that the national laws of UK are not superior to that of the state’s. On the ground of discrimination, the Court concluded that human rights were not breached, and if so, it was justified. This was still in line with the idea of respecting the legislations of the devolved administrations. Thus, it was concluded that the restriction or the availability of abortion services are within the discretion of each devolved administration, regardless of the UK laws.

3. Issues and Themes From the Case

Devolution

Among the many issues in this case, I would like to prioritize the issue of a devolved government, which has been one of the key concepts utilized in the second part of this paper. The concept of devolution was implemented in UK in 1998, which resulted in four distinct health systems—in England, Scotland, Wales, and Northern Ireland (Greer, 2016). More specifically, it refers to the creation of “autonomous, elected governments” for the said states, wherein these governments would have their own, separate legislative systems. In this regard, it is also important to note that the UK laws have considerably been applied to and adapted by England only, with the reason that it makes up 85% of the UK population. Thus, the main purpose of devolution is so that the other three states can avoid the laws mainly conferred to England that are not actually applicable to their states and citizens. This resulted in Northern Ireland, Scotland, and Wales having similar policies while being very different from England.

One factor of devolution is its adherence to democracy. By having the autonomy to decide for its own laws, the state attains the chance to be more attentive and responsive to the particular needs of its citizens. Hence, the laws are mostly shaped by public opinion, and are, thus, flexible. Looking at this, it can be assumed that a devolved government has all but negative effects. However, it is also inevitable that these states with a devolved government become stagnant and unprogressive without the pressure that comes from the English government.

This is very evident in the health sector. Even if UK has long developed the National Health Service policy, there has also been a ‘devolved model’ of it that exists in the three other states, particularly Northern Ireland. A specific example of this is the case of abortion. As stated in the introduction of this paper, Northern Ireland has far narrower circumstances that allow the provision of abortion services; hence, the like of A and B’s cases. The heart of the said case lies on the spatial factor of residency and the laws that govern it. In this light, the problem with a devolved government is that it sparks confusion and creates a room for discrimination. While it is said to empower people and governments because of its people-centered approach, the lack of unity among the central and devolved governments can also create diverse outcomes which may contribute to the widening uncertainties among the individuals.

To make it simpler, in the event where a UK law clashes with a Northern Ireland law, where shall the citizen stand? And how shall the central government handle it?

This has been the dilemma in the R v Secretary of State for Health, ex parte A and B [2017] UKSC 41 case. As a UK-Northern Ireland citizen, A felt like she is missing on something that she should be entitled to. On the other hand, on the part of the Secretary of State for Health, he is also faced with the dilemma of upholding this right as a universal right or respecting the autonomy of the devolved government.

There is nothing wrong with devolution if it is for democracy and state sovereignty, but it is high time that the central and devolved governments would at least stand in unison in critical issues. Respecting one’s autonomy does not necessarily mean the central government shall lose its authority, not to mention that the case did not even occur in the spatial jurisdiction of Northern Ireland. It could be that the Secretary of State for Health would have made the provisions with the limitations of it being implemented only in England. The appellants A and B were not even asking that the Northern Ireland state government totally legalize abortion—or at least widen the legal scope of it—but that the central government would acknowledge it in its jurisdiction and see past the issue of residency.

This issue of devolved governments does not only cause confusion in the case of abortion, but in other political and medical issues such as the current COVID-19 pandemic. Furthermore, it can also hamper the nation-building of the entire UK, with uncertainties and possibly ignorance on the ideologies that we uphold as a nation. It does not stop with legalizing abortion; the circumstances should also be clear. Legalizing it with such reservations, just like in Northern Ireland, would damage the public stance in the whole issue per se. How does that make our beloved UK?

Medical Tourism and Women’s Access to Health Care

Similarly, this is an issue of women’s health and their access to health care. As it has been repeatedly stated, England and Northern Ireland both legalize abortion—though with varying qualifications—but the question lies on its accessibility and availability. Is it accessible to the public? Is it affordable for the women? Is it convenient and available? The fact that women from the Northern Ireland still have to travel into a different community with unfamiliar surroundings just to avail of these services is a clear manifestation of its lack of accessibility. While other countries such as the United States of America deem medical tourism as a “very safe and cost effective” alternative (Finch, n.d.), the same could not be said when it comes to the issue of abortion.

As a very risky process, abortion should be handled very carefully. Traveling to another country to avail it just makes the process riskier, as there may be complications with regard to the facility, the quality of care, and the need for continuity of care. Northern Ireland’s strict provision of legal and safe abortion does not stop women—even those who do not qualify in their guidelines—from doing it; it just forces them to travel and go through medical tourism. In that case, upholding these regulations set by the devolved administration of Northern Ireland only puts women into difficult situations as they face financial challenges along the way, and does not actually preserve the very purpose of its strict stance on abortion.

It was also well-emphasized and highlighted by the R v Secretary of State for Health, ex parte A and B [2017] UKSC 41 case the issue of an expensive cost for medical tourism in light of abortion. As the appellants argued, the total cost of abortion to be availed at a private, fee-paying clinics in England, including the travel fee, overnight stay and the accompaniment fee would be really high, especially for a woman who, in the first place, may not have the economic capability of raising a child. This problem results in more problems such as having to borrow money from friends despite the stigma of abortion in Northern Ireland, and having psychological troubles while thinking of ways to overcome these financial challenges.

What makes this more problematic is that some of these women may be teenagers, victims of rape, sexual harassment, incest, and other violent cases that resulted in unwanted pregnancies. This is because the said cases are not considered grounds for legal abortion by the Northern Ireland abortion law. These people are vulnerable, often traumatized, and may not have employment, and yet they are forced to spend thousands for a right that they should have been entitled to, in the first place. They are just forced to travel across countries, hide their identity and residency, undergo a very risky process in an unfamiliar environment, and pay fees. It is like they are obliged to pay to live and to have a normal life again. That said, how can we say that health care is accessible?

It is not accessible if one needs to cross borders just to obtain it. It is equally not accessible if one needs to struggle in paying just to avail it. Women’s health care is not accessible if they even need to fight for it in the Court, in front of dominant male leaders who know little about abortion. It is not accessible if it is treated as something that would impede democracy and a state’s autonomy. It is not accessible if it chooses people by their area of residence.

It may be accessible for some, but not for all. Therefore, it is generally not accessible.

Differential Treatment of Women

Equality has been a major issue with regards to the enjoyment of human rights. More specifically, this issue has always been linked with gender, whereas men and women both assert their rights to exercise an equal distribution of power and influence, have equal financial opportunities, and have equal access to social services as well such as education, medical care, and the like. In this patriarchal society where men were traditionally seen as stronger, more powerful and superior than women, this gender inequality issue is a given and is very understandable. However, this case raises an issue different from that norm; it does not tackle the inequality between these two genders but merely among women per se.

In particular, the right to termination of pregnancy should be given to women as it will affect their whole personal and family life. Given that this is already mandated by the law even in Northern Ireland, the nature of its implementation begs the question: Do women residents of Northern Ireland really have access to this right? The right of a woman to have autonomy in making decisions with regards her private life, own body, physical, and psychological matters shall not be dependent on her geographical location of area of residence. More than that, the right of a woman to avail of these services should be able to pass through these borders.

These rights are part of human rights and are, therefore, accorded at birth (United Nations Human Rights Special Procedures, 2017). This paper does not argue for the importance of the rights of the unborn but of the women whose lives would be at stake if their pregnancy would not be terminated. In countries with strict implementation of abortion laws like the Northern Ireland, abortion is not a right for victims of rape, incest, and sexual harassment. On the other hand, in countries with wider qualifications of abortion for residents but not for non-residents such as England, abortion is a privilege that only the residents or the rich would have access to. Where do these women go if their rights would need to be paid for in exchange for their recognition? Where do their rights go when they vanish the moment they cross borders, not to mention that they are still in the same region?

This is outright discrimination of women on the basis of geographical location. Moreover, the inaction of the Secretary of State for Health in securing the legal protection of the appellants A and B and the provision of these services for free is failure to adhere to the international standard of providing women access to medical care. Do his authority and power stop the moment he learns that the woman is not within the residence of England?

At this rate, I have to agree with the appellants that it is a violation of article 14 of the European Convention on Human Rights. It is an inhuman violation of the woman’s right to life and a contribution to the growing discrimination among women.

4. Conclusion

A law that is inclusive does not discriminate. But what if a law that is supposed to be inclusive does discriminate?

All the arguments stated above point to one thing: abortion is political, as part of the public arena and of the private life—since everything, even the personal, is political. As a political thing, it is also subject to political changes affected by political processes and factors. These include the issue of governments, traditions, cultures, laws and interpretation of it, and such. The main issue of the R v Secretary of State for Health, ex parte A and B [2017] UKSC 41 case is the lawfulness of the inaction of the Secretary of State for Health to provide the same safeguarding abortion rights of England residents to non-residents. What makes this political is the vagueness or the absence of the neutral factor—the law—that should decide for whether a non-resident should acquire the same rights as the residents. In fact, this decision—making process was given to the Secretary of State for Health, whose awareness of the issue may be incomplete or narrow. Thus, I argue that this case should have been an issue of legislation, which accounts for more stringent and rigorous process of decision-making within the central and devolved governments of the United Kingdom of Great Britain and Northern Ireland.

Apart from these facts, conditions, and existing laws, this is also an issue of human rights which requires more compassion and empathy. The bravery and guts that the woman has to have in order to carry out a dangerous process such as abortion—not to mention that it has to happen in an environment that is unfamiliar to her—does not compare to the preservation of laws that the Secretary of State for Health aimed to exercise. All the women were asking for is a legal right that would provide them with the financial protection that they need in as much as the challenges of abortion to them could somehow be relieved.

Then again, the bottom line of all this is how the issue of abortion is seen in a progressive region such as the UK. But this case of abortion sheds light on a very general issue that UK citizens struggle with every day—that is, to live free within borders, unbounded by the restricting laws of devolved governments that do not go in unison with those of the central government. I believe that the main problem here is not the conservative thinking of the Northern Ireland but the permissive authority that the central government of UK gives it. Why do we allow these dilemmas to happen among our citizens? It is high time that we build a nation where our ideologies would be clear, precise, and actually inclusive to all.

A law that is inclusive should not, in any way, discriminate. Free from discrimination means conventionally legal and safe. Let us make abortion inclusive.

5. Bibliography

2006 (National Health Service Act 2006: Elizabeth II chapter 41)

“Abortion Act 1967” (Legislation.gov.uk July 31, 1979) <https://www.legislation.gov.uk/ukpga/1967/87/contents>accessed August 14, 2021

“Article 14: Protection from Discrimination” (Article 14: Protection from discrimination | Equality and Human Rights Commission June 3, 2021) <https://www.equalityhumanrights.com/en/human-rights-act/article-14-protection-discrimination#:~:text=The%20enjoyment%20of%20the%20rights,association%20with%20a%20national%20minority%2C> accessed August 14, 2021

BBC News “What Are the UK’s Laws on Abortion?” (BBC October 22, 2019) <https://www.bbc.com/news/health-19856314> accessed August 14, 2021

Finch S, “Safety Precautions for Medical Tourists” (Medical Tourism Magazine) <https://www.magazine.medicaltourism.com/article/safety-precautions-medical-tourists> accessed August 14, 2021

Garnsey C and others, “Cross-Country Abortion Travel to England and Wales: Results from a Cross-Sectional Survey Exploring People’s Experiences Crossing Borders to OBTAIN CARE” (2021) 18 Reproductive Health

Greer SL, “Devolution and Health in the UK: Policy and Its Lessons since 1998” (2016) 118 British Medical Bulletin 16

R v Secretary of State for Health, ex parte A and B [2017] UKSC 41 1 (UKSC), p.2.

Rycroft P and Barnes R, “Devolution: Factsheet”

United Nations Human Rights Special Procedures, “Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends” (2017)

Vogelstein R and Turkington R, “Abortion Law: Global Comparisons” (Council on Foreign Relations October 28, 2019) <https://www.cfr.org/article/abortion-law-global-comparisons>accessed August 14, 2021