A and B, R (on the application of) v Secretary of State for Health

Factual and Procedural Background

The Appellants (“A” and “B”) are United Kingdom citizens who are usually resident in Northern Ireland. In 2012, “A”, then aged 15, travelled to England with her mother (“B”) to obtain a termination of pregnancy at a private clinic because the procedure is lawful only in very limited circumstances in Northern Ireland and is not funded there by the health service. They paid approximately £900, much of it borrowed or obtained from a charity.

They sought judicial review of the Respondent (“Defendant”), the Secretary of State for Health, arguing that he should have exercised his statutory power to direct National Health Service (“NHS”) bodies in England to provide free abortions to UK citizens resident in Northern Ireland. The High Court rejected the claim in May 2014; the Court of Appeal dismissed the appeal in July 2015. The present judgment concerns the further appeal to the Supreme Court of the United Kingdom.

Legal Issues Presented

1. Whether, as a matter of public law, the Defendant acted unlawfully by failing to exercise his power under the National Health Service Act 2006 (“the 2006 Act”) to enable women resident in Northern Ireland to obtain free abortions under the NHS in England.
2. Whether that failure breached Article 14 (non-discrimination) read with Article 8 (private and family life) of the European Convention on Human Rights.

Arguments of the Parties

Appellants’ Arguments

• The statutory scheme, properly construed, imposed a duty—not a mere power—on the Defendant to meet the “reasonable requirements” of UK citizens present in England, irrespective of their usual residence.
• Denying free abortions to women resident in Northern Ireland, while providing them to women resident in England, is irrational and contrary to the principle of equal treatment.
• The policy discriminates on the ground of “other status” (place of usual residence) and cannot be justified under Articles 8 and 14.

Defendant’s Arguments

• The 2006 Act confers only a discretionary power; the duty to provide services is directed to improving the health of “the people of England.”
• Respect for the democratic choice of the Northern Ireland Assembly—whose criminal law makes abortion largely unavailable—was a relevant and legitimate consideration.
• Any differential treatment is justified: health services are devolved, and resources in England should prioritise residents of England.

Table of Precedents Cited

Court's Reasoning and Analysis

Public-law ground: The majority (Judges Wilson, Reed and Hughes) held that sections 1 and 3 of the 2006 Act impose target duties aimed at improving the health of “the people of England.” Those duties leave a broad area of discretionary judgment to the Defendant. It was therefore lawful to focus NHS resources on residents of England and to respect the devolved decision of the Northern Ireland Assembly not to liberalise abortion law. The Defendant’s reliance on that democratic choice was a relevant consideration and not irrational.

Human-rights ground: The Court accepted that the policy fell within the scope of Article 8 and that place of usual residence constitutes “other status” under Article 14. Applying a structured proportionality test, the majority found a legitimate aim—maintaining the devolved, residence-based funding model—and held that the differential treatment struck a fair balance. Economic implications and the availability of private abortions were factors supporting justification.

Dissenting opinions: Judge Kerr (with whom Judge Hale agreed) considered the statutory scheme to require the NHS in England to meet reasonable clinical needs of any UK citizen present in England. They viewed the refusal as arbitrary, discriminatory, and unsupported by any legitimate aim. Judge Hale emphasised autonomy, equality, and dignity of pregnant women.

Holding and Implications

Appeal Dismissed.

The Supreme Court (by majority) upheld the policy that women resident in Northern Ireland must pay for abortions obtained in England. The decision affirms the residence-based funding structure of the NHS and underscores judicial deference to devolved legislative choices. No new precedent was established requiring cross-border NHS funding; however, the extensive dissents highlight continuing legal and ethical debate over reproductive healthcare within the United Kingdom.