Woman’s landmark case overturning ban on contraception started ‘social revolution’, says Supreme Court judge

A woman’s landmark case leading to the overturning of the ban on contraception was the “legal equivalent of the moon landing” and started “a social revolution” here, a Supreme Court judge has said.

Mary McGee was described by Mr Justice Gerard Hogan as a “brave” woman who displayed “fortitude and endurance” in succeeding in her Supreme Court case against “almost overwhelming odds”.

The December 1973 Supreme Court decision that the 1935 law banning importation and sale of contraceptives was unconstitutional is the court’s “single most important decision, in terms of its political and social consequences” in its near 100-year history, he said.

It started “a social revolution, the consequences of which are still being played out”.

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The judge was addressing a conference on Saturday, organised by the Trinity Centre for Constitutional Governance (TriCon), on the McGee case and its legacy.

Ms McGee, known as May, was present with her husband Seamus and other family members.

She was aged 27 and a mother of four, including twins, when the case was taken by the couple.

She had developed toxaemia in each of her three pregnancies, almost died during her second and was in a coma for four days after her third, when the twins were delivered. She was warned she faced risk of a stroke, or even death, from a further pregnancy.

Having ordered spermicide from the UK that never arrived, she was infuriated when told she could face prosecution if she tried to order again. She sought advice from Dr Jim Loughran, her local GP in Skerries, Co Dublin, and ultimately decided on legal action.

“Once I decided to take the case, there was no going back,” she told The Irish Times.

Mr Justice Hogan presented the Praeses Elit award, founded by former President Mary Robinson, a former auditor of Trinity College Law Society, to Ms McGee in recognition of her “immense contribution to Irish law and society”.

It was the first time the couple received any formal recognition of their contribution, Prof Aileen Kavanagh, professor of constitutional governance at TCD and director of TriCon, noted.

Ms McGee was “a warrior” who, in an interview with Ruadhán MacCormaic, now editor of The Irish Times, for his book The Supreme Court, had said she liked to think she had “helped women to stand up for themselves a little bit more”, Prof Kavanagh said.

Prof Linda Doyle, Trinity College provost, described the McGees as an “inspirational” couple.

The Dublin riots last week, and events in the United States and elsewhere, underline that rights “can never be taken for granted”, she said.

In his address to the conference, Mr Justice Hogan said empty alcoves in the Round Hall of the Four Courts should contain statues celebrating famous litigants and Mary McGee “should have pride of place”.

The legal ban on contraceptives in section 17 of the Criminal Law (Amendment) Act 1935 faced some opposition within the Oireachtas during the 1930s but was “rigidly enforced” once enacted, he said.

Despite some “change in the air” in the 1970s, section 17 was “Exhibit A to the charge that the State in its laws endorsed Catholic social teaching”.

The “momentous” McGee decision required “real judicial courage and insight” and represented the Supreme Court’s “finest hour”, he said. The decision helped many to appreciate the “real strengths” of the Constitution “and debunked, albeit perhaps not entirely, the myth that it was the product of reactionary Catholic teaching”.

Section 17 was found unconstitutional on foot of a derivative rights approach, involving the judges identifying rights which can be derived from the Constitution as a whole, he said.

The “strict ratio” of the decision appears to be the law was unconstitutional because it compromised the right to marital privacy but nearly all of the majority judgments were also “replete with references”, direct or indirect, to key constitutional principles of dignity, freedom of the individual, privacy/marital privacy, life, person, the inviolability of the dwelling and the autonomy of married couples.

[ Anniversary of family planning case brings a sense of déjà vu ]

The McGee decision “shows how one brave woman single-handedly changed the course of Irish social history and how we as a society learned ourselves how to effect change without having to depend on external sources”.

While not downplaying Europe’s importance in helping achieve “long overdue” changes in the status of women here, the importance of the Irish courts in this process of liberalisation “is in danger of being overlooked”, he said.

In her address, Professor Kavanagh, noting the conservative social context at the time, said the McGees displayed “immense courage” in bringing the case and the Supreme Court judges, in their own way, were also courageous.

The court’s judgment was a “superb example of judicial statecraft”, the judges could not announce an individual right to reproductive autonomy in 1973, but “did what they could”.

People looking back now might want to see “a radical decision that swept away decades of sexual repression” but Irish society was not ready for that in 1973, she said.

The judgment forced the government to introduce change, albeit six years later and in a very restrictive way, she said. It “broke the silence”, improved women’s lives, lifted many families out of abject poverty and enabled women to take control of the fertility and the size of their families.

In an address focusing on reproductive health and autonomy, Maeve Taylor, director of advocacy and communications with the Irish Family Planning Association, said the McGees and their GP Dr Loughran were “social heroes”.

She expressed concern that the incremental development of reproductive health law has resulted in laws that retain traces of “outdated norms” that had aimed to prevent women’s exercise of reproductive autonomy.

The resulting retention of “onerous bureaucratic requirements”, a legal right to conscientious objection, specific criminal offences regarding abortion, and age-related limitations on access to contraception “materially affect those who need access to reproductive healthcare services”, she said.

A long-time women’s rights activist, Máirín de Burca, thanked Ms McGee “for changing the Ireland we all have to live in”. “Imagine what she took on, it must have been hell on wheels but there is nothing that will stop an Irish woman who gets thick,” she said.