From the Decision of the Supreme Court inMcGee v. the Attorney General and the Revenue Commissioners

19 December 1973

Mrs. Mary McGee ordered contraceptive materials that were impounded by the Irish customs service. Her appeal against this action was supported by the Irish Family Planning Association. The appeal was dismissed by the president of the High Court, but this decision was overturned by the Supreme Court in a far-reaching decision that made it legal to import contraceptives for private use.

SEE ALSO Divorce, Contraception, and Abortion; Family: Fertility, Marriage, and the Family since 1950; Women in Irish Society since 1800

The Act of 1935, as its long title shows, is not aimed at population control but at the suppression of vice and the amendment of the law relating to sexual offences. Section 17 follows immediately on a section directed against the practice of prostitution in public and immediately precedes a section making criminal certain acts which offend modesty or cause scandal or injure the morals of the community. The section creates a criminal prohibition in an area in which the legislature has thought fit to intervene in the interests of public morality. What it seeks to do, by means of the sanction of the criminal law, is to put an end, as far as it was possible to do so by legislation, to the use of contraceptives in the state. It does not in terms make the use of contraceptives a crime, but the totality of the prohibition aims at nothing less. Presumably because contraceptives are of differing kinds and vary in the ways, internal and external, they can be used, and because of the difficulty of proving their use in the intimacy of the sexual act, the section strikes at their availability. Sub-section 1 of s. 17 of the Act of 1935 makes it an offence to sell, or expose, offer, advertise, or keep for sale or to import or attempt to import for sale any contraceptives. In effect, this makes it legally impossible to sell or buy a contraceptive in the state. Had the prohibition stopped there, it would have left the loophole that contraceptives could be imported otherwise than for sale. That loophole, however, is sealed by sub-s. 3 of s. 17 which makes contraceptives prohibited articles under the customs code so that their importation for any purpose, if effected with the intention of evading the prohibition, is an offence. . . .

Because contraceptives are not manufactured in this state, the effect of s. 17 of the Act of 1935 as a whole is that, except for contraceptives that have been imported without the intention of evading the prohibition on importation, it is not legally possible to obtain a contraceptive in this state. It is doubtful if the legislature could have taken more effective steps by means of the criminal law to put an end to their use in the state.

The dominant feature of the plaintiff's dilemma is that she is a young married woman who is living, with a slender income, in the cramped quarters of a mobile home with her husband and four infant children, and that she is faced with a considerable risk of death or crippling paralysis if she becomes pregnant. The net question is whether it is constitutionally permissible in the circumstances for the law to deny her access to the contraceptive method chosen for her by her doctor and which she and her husband wish to adopt. In other words, is the prohibition effected by s. 17 of the Act of 1935 an interference with the rights which the state guarantees in its laws to respect, as stated in sub-s. 1 of s. 3 of Article 40?

The answer lies primarily in the fact that the plaintiff is a wife and a mother. It is the informed and conscientious wish of the plaintiff and her husband to maintain full marital relations without incurring the risk of a pregnancy that may well result in her death or a crippling paralysis. Section 17 of the Act of 1935 frustrates that wish. It goes further; it brings the implementation of the wish within the range of the criminal law. Its effect, therefore, is to condemn the plaintiff and her husband to a way of life which, at best, will be fraught with worry, tension and uncertainty that cannot but adversely affect their lives and, at worst, will result in an unwanted pregnancy causing death or serious illness with the obvious tragic consequences to the lives of her husband and young children. And this in the context of a constitution which in its preamble proclaims as one of its aims the dignity and freedom of the individual; which in sub-s. 2 of s. 3 of Article 40 casts on the state a duty to protect as best it may from unjust attack and, in the case of injustice done, to vindicate the life and person of every citizen; which in Article 41 after recognising the family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law guarantees to protect it in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the state; and which also in article 41, pledges the state to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.

Section 17, in my judgment, so far from respecting the plaintiff's personal rights, violates them. If she observes this prohibition (which in practice she can scarcely avoid doing and which in law she is bound under penalty of fine and imprisonment to do), she will endanger the security and happiness of her marriage, she will imperil her health to the point of hazarding her life, and she will subject her family to the risk of distress and disruption. These are intrusions which she is entitled to say are incompatible with the safety of her life, the preservation of her health, her responsibility to her conscience, and the security and well-being of her marriage and family. If she fails to obey the prohibition in s. 17, the law, by prosecuting her, will reach into the privacy of her marital life in seeking to prove her guilt. . . .

If the plaintiff were prosecuted for an offence arising under or by virtue of s. 17 of the Act of 1935 . . . there would necessarily be a violation of intimate aspects of her marital life which, in deference to her standing as a wife and mother, ought not to be brought out and condemned as criminal under a glare of publicity in a courtroom. Furthermore, if she were found guilty of such an offence, in order to have the penalty mitigated to fit the circumstances of her case, she would have to disclose particulars of her marital dilemma which she ought not to have to reveal.

In my opinion, s. 17 of the Act of 1935 violates the guarantee in sub-s. 1 of s. 3 of article 40 by the state to protect the plaintiff's personal rights by its laws; it does so not only by violating her personal right to privacy in regard to her marital relations but, in a wider way, by frustrating and making criminal any efforts by her to effectuate the decision of her husband and herself, made responsibly, conscientiously and on medical advice, to avail themselves of a particular contraceptive method so as to ensure her life and health as well as the integrity, security and well-being of her marriage and her family. (Justice Henchy)

I shall deal first with the submission made in relation to the provisions of Article 41 of the constitution which deals with the family. On the particular facts of this case, I think this is the most important submission because the plaintiff's claim is based upon her status as a married woman and is made in relation to the conduct of her sexual life with her husband within that marriage. For the purpose of this article I am of the opinion that the state of the plaintiff's health is immaterial to the consideration of the rights she claims are infringed in relation to Article 41. In this article the state, while recognising the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law, guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the state. The article recognises the special position of woman, meaning the wife, within that unit; the article also offers special protection for mothers in that they shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. The article also recognises the institution of marriage as the foundation of the family and undertakes to protect it against attack. By this and the following article, the state recognises the parents as the natural guardians of the children of the family and as those in whom the authority of the family is vested and those who shall have the right to determine how the family life shall be conducted, having due regard to the rights of the children not merely as members of that family but as individuals.

It is a matter exclusively for the husband and wife to decide how many children they wish to have; it would be quite outside the competence of the state to dictate or prescribe the number of children which they might have or should have. In my view, the husband and wife have a correlative right to agree to have no children. This is not to say that the state, when the common good requires it, may not actively encourage married couples either to have larger families or smaller families. If it is a question of having smaller families then, whether it be a decision of the husband and wife or the intervention of the state, the means employed to achieve this objective would have to be examined. What may be permissible to the husband and wife is not necessarily permissible to the state. For example, the husband and wife may mutually agree to practise either total or partial abstinence in their sexual relations. If the state were to attempt to intervene to compel such abstinence, it would be an intolerable and unjustifiable intrusion into the privacy of the matrimonial bedroom. On the other hand, any action on the part of either the husband and wife or of the state to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.

The sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. If the husband and wife decide to limit their family or to avoid having children by use of contraceptives it is a matter peculiarly within the joint decision of the husband and wife and one into which the state cannot intrude unless its intrusion can be justified by the exigencies of the common good. The question of whether the use of contraceptives by married couples within their marriage is or is not contrary to the moral code or codes to which they profess to subscribe, or is or is not regarded by them as being against their conscience, could not justify state intervention. Similarly the fact that the use of contraceptives may offend against the moral code of the majority of the citizens of the state would not per se justify an intervention by the state to prohibit their use within marriage. The private morality of its citizens does not justify intervention by the state into the activities of those citizens unless and until the common good requires it. Counsel for the attorney general did not seek to argue that the state would have any right to seek to prevent the use of contraceptives within marriage. He did argue, however, that it did not follow from this that the state was under any obligation to make contraceptives available to married couples. Counsel for the [Revenue Commissioners] put the matter somewhat further by stating that, if she had a right to use contraceptives within the privacy of her marriage, it was a matter for the plaintiff to prove from whence the right sprang. In effect he was saying that, if she was appealing to a right anterior to positive law, the burden was on her to show the source of that right. At first sight this may appear to be a reasonable and logical proposition. However, it does appear to ignore a fundamental point, namely, that the rights of a married couple to decide how many children, if any, they will have are matters outside the reach of positive law where the means employed to implement such decisions do not impinge upon the common good or destroy of endanger human life. It is undoubtedly true that among those persons who are subject to a particular moral code no one has a right to be in breach of that moral code. But when this is a code governing private morality and where the breach of it is not one which injures the common good then it is not the state's business to intervene. It is outside the authority of the state to endeavour to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon that husband and wife which they do not desire.

In my view, Article 41 of the constitution guarantees the husband and wife against such invasion of their privacy by the state. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the constitution. If this right cannot be directly invaded by the state it follows that it cannot be frustrated by the state taking measures to ensure that the exercise of that right is rendered impossible. I do not exclude the possibility of the state being justified where the public good requires it (as, for example, in the case of a dangerous fall in population threatening the life or the essential welfare of the state) in taking such steps to ensure that in general, even if married couples could not be compelled to have children, they could at least be hindered in their endeavours to avoid having them where the common good required the maintenance or increase of the population. That, however, is not the present case and there is no evidence whatever in the case to justify state intervention on that ground. Similarly it is not impossible to envisage a situation where the availability of contraceptives to married people for use within marriage could be demonstrated to have led or would probably lead to such an adverse effect on public morality so subversive of the common good as to justify state intervention by restricting or prohibiting the availability of contraceptives for use within marriage or at all. In such a case it would have to be demonstrated that all the other resources of the state had proved or were likely to prove incapable to avoid this subversion of the common good while contraceptives remained available for use within marriage.

In my opinion, s. 17 of the Act of 1935, in so far as it unreasonably restricts the availability of contraceptives for use within marriage, is inconsistent with the provisions of Article 41 of the constitution for being an unjustified invasion of the privacy of husband and wife in their sexual relations with one another. The fundamental restriction is contained in the provisions of sub-s. 3 of s. 17 of the Act of 1935 which lists contraceptives among the prohibited articles which may not be imported for any purposes whatever. On the present state of facts, I am of the opinion that this provision is inconsistent with the constitution and is no longer in force. (Justice Walsh)

Reprinted in The Field Day Anthology of Irish Writing, vol. 5, Irish Women's Writing and Traditions(2002), pp. 335–338.