McGee v Attorney General

Judgment Date19 December 1974
CourtSupreme Court
Docket Number[1971 No. 2314 P]
Date19 December 1974

Supreme Court

[1971 No. 2314 P]
McGee v. Attorney General

Constitution - Statute - Validity - Contraception - Personal rights - Privacy - Importation of contraceptives prohibited - Customs Consolidation Act, 1876 (39 & 40 Vict., c. 36),ss. 42, 186 - Criminal Law Amendment Act, 1935 (No. 6),s. 17 - Constitution of Ireland, 1937, Articles 40-45.

Plenary Summons.

The facts have been summarised in the head-note and they are described in the judgments, post. The plaintiff was born on the 25th May, 1944, and her husband was born on the 24th October, 1943. The plaintiff married her husband in the year 1968 and they had four children. The first son was born on the 15th December, 1968; the second son was born on the 2nd January, 1970; and the two (twin) daughters were born on the 15th November, 1970. The defendants did not allege that the plaintiff had committed any offence by attempting to import the contraceptive jelly; it appeared that the packet containing the jelly was marked by a label which indicated to the Customs officials that inspection of the contents was required.

Section 17 of the Criminal Law Amendment Act, 1935, provides as follows:—

"(1) It shall not be lawful for any person to sell, or expose, offer, advertise, or keep for sale or to import or attempt to import into Saorstát Éireann éireann [Ireland] for sale, any contraceptive.

(2) Any person who acts in contravention of the foregoing sub-section of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment and, in any case to forfeiture of any contraceptive in respect of which such offence was committed.

(3) Contraceptives shall be deemed to be included among the goods enumerated and described in the Table of Prohibitions and Restrictions Inwards contained in section 42 of the Customs Consolidation Act, 1876, and the provisions of that Act (as amended or extended by subsequent Acts) relating to the importation of prohibited goods shall apply accordingly.

(4) In this section the word 'contraceptive' means any appliance, instrument, drug, preparation or thing, designed, prepared, or intended to prevent pregnancy resulting from sexual intercourse between human beings."

Sections 1 and 3 of Article 40 of the Constitution provide:—

"1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

"3. 1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

  • 2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

Section 6 of Article 40 guarantees, subject to public order and morality, liberty for the exercise of the following rights-the right of citizens to express freely their convictions and opinions, the right of citizens to assemble peaceably and without arms, and the right of citizens to form associations and unions.

Article 41 of the Constitution provides:—

"1. 1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

  • 2 The State, therefore, 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 the State.

    • 2. 1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

      • 2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

    • 3. 1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

      • 2 No law shall be enacted providing for the grant of a dissolution of marriage.

      • 3 No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved."

Article 42, ss. 1 and 2, of the Constitution provides:—

"1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State."

Article 44, s. 2, of the Constitution provides:—

"2. 1 Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

  • 2 The State guarantees not to endow any religion.

  • 3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status."

Article 45 of the Constitution provides:—

"The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.

1. 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 the institutions of the national life . . .

  • 4. 1 The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged.

    • 2 The State shall endeavour to ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength."

Article 50, sub-s. 1, of the Constitution provides:—"1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court. At the request of the Supreme Court the plaintiff lodged, with her books of appeal, a written summary of the submissions on the constitutional issue to be made at the hearing of the appeal.

The summary was in the following terms:—

"1. The Criminal Law Amendment Act, 1935, is a pre-Constitution statute and therefore enjoys no presumtion of constitutionality: The State (Sheerin) v. Kennedy.13

2. Section 17 of the Criminal Law Amendment Act, 1935, was carried forward on the 29th December, 1937, only if not inconsistent with the Constitution or with any provision thereof.

3. In deciding whether a piece of legislation is or is

not consistent with the Constitution one looks—not to the State of public opinion in 1937—but to the Constitution and to the principles enshrined in it. The interpretation of the Constitution is a matter for the Courts: O'Byrne v. Minister for Finance14; Exham v.Beamish.15

4. In the present case the plaintiff and her husband, being faced with a cruel problem, made what they considered to be the best decision in the interest of their family. The learned President accepted that the plaintiff considered fully the courses open to her and that her decision was what she considered to be the best decision open to her in the circumstances. Her husband agreed with it.

5. The plaintiff and her husband were the appropriate persons to make this decision on behalf of the family. They did make it.

6. The State in Article 41 of the Constitution guarantees to protect the family in its constitution and authority. Section 17 of the Criminal Law Amendment Act, 1935, by deliberately frustrating a decision made by the appropriate authority in the family on behalf of the family and touching a matter of vital importance to the family, attacks the family in its constitution and authority. The attack is all the more serious as the section purports to impose criminal penalties.

7. The family possesses inalienable and imprescriptible rights antecedent and superior to positive law. While those rights are not specified in the Constitution they must include the right to make the kind of decision in the interests of the family which the plaintiff and her husband made in the present case: Ryan v. The Attorney General.16

8. Among the unspecified rights guaranteed to the individual by Article 40, s. 3, of the Constitution is the right to marry: Ryan v. The Attorney General.16

9. The right to marry necessarily implies the right of the spouses to each other's society and to order their family and rear their children in a responsible way. These are


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