On the Family Planning Bill

20 February 1974

Mary Robinson

Section 17 of the 1935 Criminal Law Amendment Act prohibited the sale and importation of contraceptives. By the late 1960s the restrictions on access to contraception were being challenged by the contraceptive pill, which was not covered by the 1935 act, and by the emergence of family planning clinics which supplied contraceptives in return for "voluntary" donations. In 1970 Mary Robinson, a senator elected by graduates of Trinity College Dublin, and a future president of Ireland, together with Senators Trevor West and John Horgan, elected by graduates of Trinity College and the National University of Ireland, attempted to introduce a bill to permit the import and sale of contraceptives, but it failed to get a first reading. They reintroduced this bill in the autumn of 1973, and on this occasion they secured a second reading, prompting a statement from the Catholic Church, which condemned contraception but rejected the suggestion that the state was obliged in its legislation to defend the moral teaching of the Catholic Church. Although this bill was defeated, it can be seen as the first attempt to provide a legislative framework for access to contraception; the matter was finally resolved in 1985. (See also excerpts from the decision of the Supreme Court in McGee v. the Attorney General and the Revenue Commissioners, 1973.)

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

This bill provides the first opportunity for a full debate in either house of the Oireachtas on the subject of family planning. It allows the Seanad to discuss the general principles involved in any changes in the law and it also allows the Seanad to consider the specific framework which Senators Horgan, West and I have put forward in this bill for such amendment. I should like to appeal to my fellow Senators: let us approach this subject with compassion rather than dogmatism and with open-minded concern rather than bigotry. Family planning involves the most intimate relationship between a man and a woman. It is a subject matter which has been discussed very broadly outside parliament in recent times. It is also a subject which was taboo for discussion for a very long time. It is now to be debated inside parliament.

It is worth noting that family planning is now supported positively by all the Christian churches. This includes the Catholic Church which is in favour of responsible parenthood, in favour of family planning. The difference between them relates only to choice of means. This bill would create the possibility of a wider choice of means of family planning and the possibility of getting full information on the subject. It is in other words an enabling bill. . . . It would not compel any person to use contraceptives, or any doctor to prescribe contraceptives, or any chemist to stock contraceptives. It would facilitate family planning by allowing choice to the individual citizens concerned.

When an attempt was made by Senators Horgan, West and me to introduce a similar bill in 1970, four years ago now, there was a significant resistance both in the Oireachtas and in the general public to any change in the law. In the intervening period no government bill was introduced either by the previous government or by this government. When we tabled this family planning bill there was a similar resistance to any change. Meanwhile however the Supreme Court has acted on one section of the law, that is subsection (3) of section 17 of the Criminal Law (Amendment) Act, 1935, and has deemed that section to be repugnant to the constitution. This was one section which we had repealed in the framework of our bill, which certain bigoted, unthinking people opposed, in a blanket form—opposed in many cases without having read the bill because they opposed any change in the law. . . .

Let us turn then to an examination of the present state of the law. As the law now stands, any person, married, or unmarried, and with no age limit, can use contraceptives, manufacture contraceptives, distribute contraceptives, and, since the judgment of the Supreme Court in the McGee case, import contraceptives. Also the pill is regarded not as a contraceptive but as a cycle regulator and therefore does not come within the legislation prohibiting the sale of contraceptives. More than 38,000 Irish women, be they married or unmarried, use the pill under a prescription every month, however none of these people can inform herself fully on the subject. As the law now stands, they cannot acquire responsible literature describing the various forms of contraceptives, warning them of the potential danger of the contraceptives which they are importing from abroad, warning them of the conditions which make it unsafe for them to use the pill and generally advising them in a full manner of the whole question of family planning and of the choices open, if the person wishes to exercise choice, in the methods of family planning. . . .

The argument is very strong that the law in so far as it regulates or controls the whole subject of family planning is not satisfactory, is no longer a coherent structure and has very real dangers built into it. I would hope that the members of the Seanad in the course of this debate, and also members of the other house, in examining either this bill or a government bill, when that is forthcoming, will have the courage to face up to this situation, because they have the advantage over their constituents. The average Irish person is not faced in the same way with the opportunity to examine the present state of the law and to consider a proposal for change. The average person may very well be confused, is obviously concerned, and rightly so, and may in consequence be resisting change. This is a very good example of where there must be leadership from the representatives of the people, and not a rather cowardly fear of the grassroots opinion and fear of change, lest it might translate into a turning away either from a particular politician or from a party.

Therefore I would submit that we ought to take this subject matter out of the realm of party politics by agreeing to the consensus view that there is a need for a law to be regularised in the public interest. We can differ perhaps on the degree to which there might be liberalisation or the degree to which there might be restrictions and controls built in. But on the fundamental proposition of need for regularisation of the position through an act of this Oireachtas, I would submit that no senator or deputy examining the position can dissent from that in good faith. . . .

There is one possible way in which the law in relation to family planning in this country could continue to be changed. We could continue to have people bringing individual cases before the High Court and Supreme Court and testing the constitutionality of the prohibition on sale of contraceptives and the constitutionality of the prohibition on being able to read about family planning in the relevant provisions of the censorship acts. We could have over a period of a number of years—because law suits take a length of time—a series of decisions which chipped away in a piecemeal fashion at our law, leaving an unregulated and unco-ordinated situation and one which gradually liberalised—probably more than many legislators would wish—the law relating to family planning.

I would submit that this would be a very sad state of the law if legislators abdicated their responsibility and left it to the courts; so that we would be dependent on individual plaintiffs bringing their single problems before the court, to gradually chip away at the existing law. We must face up to our responsibilities as members of this parliament. We must restore the balance by providing a properly planned and properly considered framework within which we regulate the whole subject matter of family planning.

Action by the Oireachtas is necessary for two reasons: first, because of the nature of the subject matter. If it becomes necessary for individuals to bring actions in the courts the results will be pragmatic, piecemeal, unco-ordinated and will result in a bad overall situation; secondly, because political scientists observe it as a weakness in the system if one leaves the legislating to the judges. It is not the function of the judiciary to legislate. It is the function of parliament. We must not abdicate to the judiciary the function of gradually finding our laws unconstitutional and, therefore, in effect legislating. We must take upon ourselves the primary responsibility. We must exercise the function of legislating without fear of the grassroots, without fear of misunderstanding and with a compassion and a concern for the human beings who are affected in their daily lives—in their intimate relationships—by the law which we pass.

This is the first task before the Oireachtas; to regularise the unacceptable nature of the existing law. The second task I believe goes further. It is to consider the objective of the proposers of this family planning bill. We seek to amend, for positive reasons, the law relating to family planning and to protect and sustain the right of individuals to use contraceptives and to plan their families and also to ensure that they have the proper access to information in this regard.

Seanad Debates, vol. 77, cols. 205–212, 20 February 1974, available at www.oireachtas-debates.gov.ie.