The Gazette 1974

UNREPORTED IRISH CASES McGee v. Attorney General—Section 17 (3) of the Criminal Law Amendment Act 1935. Which re- stricts the importation of contraceptives is uncon- stitutional.

State has the positive obligation to ensure by its law that there would be available to married women in the plaintiff's state of health the means, whereby concep- tion which was likely to put her life in jeopardy, might be avoided, when it is an extraordinary risk. It would in the nature of things be much more difficult to justify refusal to do this on the grounds of the common good than in the case of married couples generally. Per Henchy J. It is the totality and absoluteness of the prohibition effected by S.I7 that is impugned as allegedly infringing her constitutionally guaranteed rights as a citizen. The unspecified personal rights guaranteed by Article 40, Section 3, are not confined to those specified in the Constitution. It is for the Courts to decide in a particular case whether the right relied on comes within the Constitutional guar- antee. To do so, it must be shown that it is a right that inheres. The lack of precision in this case is reduced when this Article is read in the light of what the Constitution deem- to be fundamental to the personal standing of the individual. The dominating feature of the plaintiff's dilemma is that she is a young married women, living in cramped quarters of a mobile home with her husband and four infant children on a slender income, who is faced with considerable risk of health or of crippling paralysis if she becomes pregnant. The net question is, is it Con- stitutionally permissible in the circumstances for the law to deny her access to the contraception methods chosen by her, and which she and her husband wish to adopt? The answer lies primarily in the fact that Mrs. McGee is a wife and mother. It is the informed and conscien- tious wish of herself and her husband to maintain full marital relations, but without incurring the risk of a pregnancy that may very well result in her death or in a crippling paralysis. S.I7 frustrates that wish. It goes further, it brings implementation of it 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 pregnancv causing death or serious illness. And this in a Constitu- tion which, in its preamble, proclaims as one of its aims the dignity and freedom of the individual, and which in Art. 40, Section 3(2) 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. S.I7, so far from respecting the plaintiff's personal rights, violates them. If the plaintiff observes this pro- hibition (which in practice she can scarcely avoid doing) she will endanger the security and happiness of her marriage, she will imperil her health to the point fo hazarding her life, and she will subject her family to the risk of distress and disruption. If, on the other hand, she fails to obey the prohibition in Section 17, the law, by prosecuting her, will reach into the privacy of her marital life, in seeking to prove her guilt. In my opinion, S.I7 violates the guarantee by the State in Article 40, Section 3(1) by its laws to protect her personal right:—not only by violating her personal right

Facts: Plai ntiff Catholic married woman and Irish Citizen, a §ed 27, lives with fisherman husband and four young children, including twin girls in Loughshinny, Co. Dublin. The parties were married in June 1968. The Plaintiff claims that pregnancies led to serious attacks Cerebral Thrombosis, Paralysis and toxaemia. She contacted her doctor, and he advised her, in view of n e r health, to order some contraceptive jelly which ^ould not induce pregnancy, if ordinary sexual rela- tions were to be continued. The Customs authorities e Y e ntually seized the contraceptive jelly under S.47 the Customs Consolidation Act 1876 on the ground l hat S.I7 of the Criminal Law Amendment Act 1935 Absolutely prohibited the sale and importation of Con- ra ceptives. The plaintiff seeks a declaration that the S.I7 is unconstitutional, as being inconsistent with be following Articles of the Constitution : "J Article 45 of the Constitution. J 7 ) The Preamble and Article 6. G) Article 40, Section 1 of the Constitution "er Walsh J. It is claimed that Section 17 discrimin- at es unfairly against the plaintiff and fails to hold her as a human person equal before the law, in that it fails to a v e due regard to her physical capacity, her moral Ca pacity and her social function, in the situation as re gards her health in which she now finds herself. I he provisions of Article 40, Section 1, would permit c State to discriminate between married persons and , s ' n the sense that where conception could more a n ordinarily endanger the life of a particular person t 0 - n n o r m a l state, the law could have regard 0 this difference in physical capacity and make special x emptions in favour of such persons, rer Fitzgerald C.J. (dissenting). In considering tticle 40, Section 1, the plaintiff has personal charac- a er J st >cs not common to all citizens, insofar as (1) she is ..emale, (2) she is a married woman, (3) she is of Idbearing a K e > a n d (4) a further pregnancy would Pose her to dangerous risks on account of her health, hich is the real basis of her claim. Nevertheless this ..5.ti°b does not create any inequality affecting plain- . ti s right, and therefore Section 17 does not contravene ( 2 ) Article 40(3) of the Constitution Per Walsh J. An exemption on the ground of health °uld be justified under Article 40, Section 3, on the ^ °unds that one of the personal rights of a woman in e plaintiff's state of health would be assisted in her ° r ts to avoid putting her life in jeopardy. Hence the 1 Article 40, Section 1. 2 Article 40, Section 3. G) Article 41. j) Article 42. 7) Article 44 (Section 2.