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UNREPORTED IRISH CASES
Law prohibiting the sale or importation of contra-
ceptives held constitutional.
The plaintiff is a young married woman whose husband
is a fisherman. They were married in 1968 and had four
children. The plaintiff's doctor has advised her that if
she had any more children her life would be in danger
with cerebral thrombosis. The plaintiff decided to re-
sort to artificial methods of prevention of conception.
The use of the pill in her case would be dangerous,
and the doctor prescribed for her other remedies, which
she ordered from England. When the medicine was
sent through the post, it was seized by the Customs
authorities on the ground that the importation of con-
traceptives is prohibited. As the Revenue Commissioners
would not release the medicine, the plaintiff brought an
action for a declaration that Section 17 of the Criminal
Law Amendment Act, 1935, which prohibits the sale or
importation of contraceptives, is unconstitutional, and
consequently null and void.
Each of the following articles of the Constitution was
relied upon to uphold the contention that the relevant
section was unconstitutional.
(1) Article 45—
Directive Principles of Social Policy.
It is to be noted that the beginning of this Article in
the prevalent Irish version differs from the English ver-
sion and appears to exclude from the cognisance of the
Courts only questions as to the attempts of the Oireach-
tas to have regard to the principles laid down in fram-
ing legislation or
actes préparatoires.
It would seem,
therefore, possible to argue that it does not preclude
the consideration of the directive by the Courts when an
enacted Statute of the Oireachtas is under review.
However, the fact that in Article 45 (4) (1) the State
pledges itself to safeguard the weaker interests of the
community does not make it relevant in this case.
(2) Article 44—
Freedom of conscience.
The fact that
in Article 44 (2) (1) freedom of conscience and the free
practice of religion are, subject to public order and
morality, guaranteed to every citizen, is not relevant in
this case. The contention that freedom of conscience
means freedom to decide what is best in the interests of
one's husband and family and to act accordingly is
unsustainable because freedom of conscience in this
Article means freedom to choose a religion and to act in
accordance with its precepts, and not freedom to arrive
at decisions on matters of one's own private welfare and
to act accordingly.
(3) Article 41—
The Family.
The fact that in Article
41 (1) (2) the State 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 of the State is not relevant in considering
the constitutionality of Section 17 of the 1935 Act.
(4) Article 40—
Privacy.
It was contended that
amongst the unenumerated rights guaranteed to citizens
under Article 40 was the right to privacy and that the
Section impugned was inconsistent with that right. In
support of the contention, the American case of
Grim-
wold v Connecticut
was cited, in which a majority of
the American Supreme Court held that one of the
fundamental rights guaranteed by the United States
Constitution was the right to privacy and that legisla-
tion making it illegal to use contraceptives was an
infringement of that right. In considering this factor
O'Keeffe P. thought that the state of public opinion—
which is a variable factor—was to be determined with
reference to the time of the adoption of the Constitution
in 1937. Accordingly the fact that the impugned Sec-
tion was adopted in the Dail without a division does
not reflect a public opinion in favour of the right of
privacy.
Accordingly O'Keeffe P. held that the impugned
Section 17 of the Criminal Law Amendment Act, 1935,
is not inconsistent with the Constitution.
[Mary McGee v Attorney-General and the Revenue
Commissioners; O'Keeffe P.; unreported; 31st July
1972.]
Defendant workman who delays in defending pleadings
not entitled to picket; plaintiff company entitled
to a perpetual injunction restraining picketing.
(1) The defendant was employed by the plaintiff
company as a lorry driver in 1960.
(2) In May 1960 the defendant was suspended for
refusing to drive a particular lorry. After a conciliation
conference by the Labour Court, a settlement was
reached whereby he was to be re-employed on a proba-
tionary basis for six months.
(3) The defendant resumed working on a probationary
basis from the company's bulk plant in Cork in Sept.
1966 but the company soon decided he was unsatis-
factory, and that he could not be continued after six
months. The grounds given by the manager of the Cork
plant were (a) that he had demanded preferential treat-
ment for shift work, and (b) that he had failed to co-
operate in the company's pension scheme. He was
finally dismissed in March 1967 on the further grounds
of (c) poor timekeeping and (d) trying to influence
fellow drivers not to help in the company's sales promo-
tion campaign.
(4) The defendant's trade union contended that the
company had unjustly dismissed him, and the matter
was referred to the Labour Court. This Court issued its
recommendations on 15h July 1967 to the effect that
the defendant had not been victimised, and that it was
entirely due to his own fault that his services had been
terminated.
(5) The defendant was dissatisfied with this recom-
mendation, but his fellow-employees in Cork refused to
support him in a proposed strike.
(6) In 1967-68, litigation took place between the
defendant and his union, the Irish Transport and
General Workers Union.
(7) Private efforts to reinstate the defendant were
unsuccessful and suddenly, at the end of January 1968,
the defendant and some others picketed plaintiff com-
pany's bulk plant and oil installations in Cork.
(8) At this time, plaintiff company started plenary
proceedings claiming an injunction to restrain the defen-
dant from watching, besetting or picketing the com-
pany's premises in Cork; the injunction was not con-
tinued after 5th February 1968 when the defendant
undertook not to picket pending the hearing of the
action.
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