McGee v. A.G. & Anor

Factual and Procedural Background

The plaintiff, a 29-year-old married woman, experienced life-threatening medical complications during three successive pregnancies. Acting on medical advice, and with her husband's agreement, she decided to use a diaphragm in conjunction with a spermicidal jelly that is not manufactured domestically. When she attempted to import the product by post, Customs officers seized it pursuant to s.17(3) of the Criminal Law Amendment Act 1935 (“the 1935 Act”).

The plaintiff commenced High Court proceedings seeking (i) a declaration that s.17 of the 1935 Act was unconstitutional and therefore not preserved by Article 50 of the Constitution; and (ii) a declaration that the seizure was unlawful, together with damages. The President of the High Court dismissed the action. The plaintiff appealed to the Supreme Court.

Legal Issues Presented

1. Whether any or all parts of s.17 of the 1935 Act—particularly the absolute prohibition on importing contraceptives in s.17(3)—are inconsistent with the Constitution and therefore invalid.
2. Whether the statutory regime unjustifiably infringes the plaintiff’s constitutionally protected personal rights, including marital privacy, bodily integrity and family autonomy under Articles 40 and 41.
3. If the provision is unconstitutional, whether the Customs seizure of the contraception was consequently unlawful.

Arguments of the Parties

Plaintiff's Arguments

• s.17, by making contraceptives effectively unobtainable, violates her personal rights under Article 40.3, including the right to marital privacy and to safeguard her health and life.
• The prohibition undermines the inalienable rights of the family protected by Article 41, because decisions on child-bearing lie exclusively with husband and wife.
• The statutory scheme disproportionately interferes with her freedom of conscience and fails to respect principles of social policy in Article 45.
• Because the statute predates the Constitution, no presumption of constitutionality applies; any inconsistency prevents it being carried forward by Article 50.

Defendants' Arguments

• s.17 regulates the commercial market in contraceptives but does not criminalise use or manufacture; therefore it does not impede any constitutional right.
• The Constitution imposes no positive obligation on the State to make contraceptives available; any restriction is justified in the interests of public morality and the common good.
• The plaintiff could potentially obtain the product through non-commercial means, so her situation is not the inevitable result of the statute.
• Even if any portion of s.17 is problematic, it is severable and the balance of the section should survive.

Table of Precedents Cited

Court's Reasoning and Analysis

Four judges (Judge Walsh, Judge Budd, Judge Henchy and Judge Griffin) formed the majority; Judge Fitzgerald C.J. dissented.

Majority reasoning

1. The Court accepted that marital privacy is an unenumerated personal right protected by Article 40.3, and that family autonomy enjoys separate protection under Article 41.
2. Although the 1935 Act does not criminalise use of contraceptives, the combined prohibition on sale and, critically, on importation makes them practically unobtainable and therefore frustrates the exercise of that right.
3. The State failed to demonstrate any exigency of the common good—such as public health or demographic necessity—sufficient to justify so far-reaching an intrusion into the intimate decisions of married couples.
4. Because s.17(3) (the importation ban) is the linchpin of the statutory scheme, its removal eliminates the unconstitutional burden while leaving the balance of the section operable; thus it is severable.
5. Accordingly, s.17(3) is invalid; the Customs seizure, premised solely on that subsection, lacked legal authority.

Dissenting reasoning (Judge Fitzgerald C.J.)

1. The subsection regulates commerce, not private conduct; it neither bans manufacture nor use, so it does not interfere with marital privacy.
2. The plaintiff failed to show that contraceptives could not be lawfully obtained through other non-commercial channels.
3. No constitutional inequality arises because the ban applies uniformly to all citizens.
4. Articles 40–44 do not obligate the State to tailor laws to every individual medical condition; the Oireachtas may legitimately choose to suppress a market in contraceptives without violating constitutional rights.

Holding and Implications

HELD: By a 4–1 majority, s.17(3) of the Criminal Law Amendment Act 1935 is UNCONSTITUTIONAL. The impugned Customs seizure was therefore unlawful, and the plaintiff’s appeal succeeded to that extent.

Implications: The judgment recognises a constitutional right to marital privacy that includes reasonable access to contraceptives. While the ruling technically invalidates only the importation ban, it signals that any statutory measure which makes contraceptives unavailable to married couples is constitutionally suspect. The decision is now a leading authority on unenumerated personal rights and the limits of legislative power over intimate family life.