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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.
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 :
1 Article 40, Section 1.
2
Article 40, Section 3.
G) Article 41.
j) Article 42.
7) Article 44 (Section 2.
"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
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