The Gazette 1974

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cannot intrude. However the fact that the use of con-
traceptives may offend against the moral code of a
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 activi-
ties of those citizens unless and until the common good
requires it.
1 he rights of a married couple to decide how many
children, if any, they will have, are matters outside
Positive law. It is outside the authority of the State
jo endeavour to intrude into the privacy of the hus-
band and wife relationship for the sake of imposing a
code of private morality upon that husband and wife
which they do not desire. Article 41 guarantees the
husband and wife against any such invasion of their
Privacy by the State. It follows that the use of contra-
ceptives by them within that marital privacy is equally
guaranteed against such invasion, and, as such,
assumes the status o fa right guaranteed by the Consti-
tution. Section 17, insofar as it unreasonably restricts
fhe availability of contraceptives for use within marriage
Is inconsistent with Article 41 for being an unjustified
mvasion of the privacy of husband and wife in their
sexual relations with one another. This declaration
! ought should only go in respect of Subsection 3 of
Section 17 which bans the importation of contracep-
hves. That does not necessarily mean that the provisions
to sale of contraceptives in Section 17(1) cannot be
jmpugned. If the prohibition on sale had the effect of
'eaving a position where contraceptives were not
reas°nably available for use within marriage, then that
Prohibition must also fail.
Per Fitzgerald C .J. (dissenting). It was submitted on
behalf of the plaintiff that, in addition to the rights of
herself and her husband, based on their married state
that in some way the four infant children of the mar-
n a g e were entitled to be considered by the law as being
entitled to protection as having an interest in seeing
that the family was not further enlarged. This conten-
tion appears to me to be completely untenable. It
aPpears to me to be fundamental to the married state
that the husband and wife and they alone shall decide
whether they wish to have children, and the number of
children they wish to have.
Article 42
Per Walsh J. The plaintiff has also invoked the pro-
t o n s of Article 42(1) of the Constitution by relating
her decision to practise contraception as being partly
tbotivated by their desire to provide for the better
e ducation of their existing children, and that S.17
at tempts to frustrate that decision.
In a pluralist society such as ours, the Courts cannot,
j*8 a matter of Constitutional Law, be asked to choose
between the defining views, where they exist, of experts
°n the interpretation by different religious denomina-
t e s of either the nature or extent of these Natural
ijtights as they are to be found in the Natural Law.
f he same considerations apply also to the question of
ascertaining the nature and extent of the duties, which
now from the Natural Law. Indeed the Constitution
•tself speaks of these duties when referring to the in-
ahenable duty of parents to provide, acco-ding to their
hteam, for the religious, moral, intellíh íal, physical
and social education of their children.
Per Fitzgerald C.J. (dissenting). I set * othing in S.17
which is in any way inconsistent with Article 42 of the
Constitution. Th at Article is only concerned with the
duties and rights of parents and the duty of the State in
relation to the education of children. While Art. 42(3)
provide., that parents shall not be obliged, in violation
of their conscience, to send their children to a State
school or to any particular type of school, it is quite
unjustifiable to take the word "conscience" out of
its context and seek to apply it to the wish of the
parents as to whether they would have children or not.
Article 44(2)
Per Walsh J. Article 44(2) of the Constitution guar-
antees freedom of conscience and the free profession
and practice of religion, subject to public order and
morality, to every citizen. The plaintiff claims that
S.17 prevents her from leading her private life in
accordance with dictates of her own conscience. The
plaintiff states that so far as her conscience is concerned,
the use of contraceptives by her is in accordance with
her conscience, and that, in using them, she does not
feel that she is acting against her conscience.
What Article 44(2) (1) means is that no person
shall directly or indirectly be coerced or compelled to
act contrary to his conscience in so far as the practice
of religion is concerned, and, subject to public order
and morality, is free to profess and practice the religion
of his choice in accordance with his conscience. Cor-
relatively, he is free to have no religious beliefs, or to
abstain from the practice and profession of any
religion. It does not follow that because a person feels
free, or even obliged in conscience to pursue some
particular activity not in itself a religious practice,
that such activity is guaranteed protection by Article
44. What the Article guarantees is the right not to be
compelled or coerced into a way which is contrary to
one's conscience, so far as the exercise, pracitce or pro-
fession of religion is concerned. Religiously speaking,
the society we live in is a pluralist one. As stated in the
Quinn's Supermarket case (1972) I.R. 15, guarantees
of religious freedom and freedom of conscience are not
confined to the different denomination of the Christian
Religion, but extended also to other religious denom-
ination^.
Per Fitzgerald C.J. (dissenting). In my opinion the
freedom of conscience referred to in Article 44(2), re-
lates exclusively to the choice and profession of a reli-
gion. Hence the word "conscience" cannot be taken out
of context, and applied to the decision of the plaintiff
and her husband, or any other named, as to whether
they should have children or not.
Article 45
Per Fitzgerald C.J. (dissenting). Article 45 refers to
principles of social policy intended for the general guid-
ance of the Oireachtas in its making of laws, which
are declared to be exclusively its province, and not
cognizable by any Court. In my opinion, the interven-
tion by this or any other Court with the functions of
the Oireachtas under the Article is expressly prohibited.
To hold otherwise would be an invalid usurpation of
legislative authority*
Per Walsh J. The plaintiff has claimed that Article
45(1) is applicable. This states that the State shall
strive to promote the welfare of the whole people by
securing and protecting as effectively as it may a social
order in which Justice and Charity shall inform all
institutions of the national life. (This claim is subse-
quently rejected.)
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