Via a tweet from @RTEHistoryShow comes a reminder that on December 19, 1973, the Supreme Court established the constitutional right to marital privacy in McGee v. AG. Mary McGee was “a young married woman who is living, with a slender income, in the cramped quarters of a mobile home with her husband and four infant children, and . . . is faced with a considerable risk of death or crippling paralysis if she becomes pregnant.” The Court held that the right had been infringed by the state in confiscating spermicidal jelly which she had ordered from England on medical advice. Mary McGee’s barrister was Mary Robinson and her action was sponsored by the IFPA. The judgment is the first in a long and difficult chain of  ‘Irish problems’ leading finally – over a decade later – to the legalisation of the general sale of contraception without prescription.  The case was the subject of one of Diarmaid Ferriter’s excellent “What If?” documentaries on RTE Radio One – you can listen again here – and the Case Stated radio documentary here.

In his judgment in McGee, Walsh J. wrote:

In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law…. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.

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Written by Máiréad Enright

Máiréad Enright lectures at Kent Law School. She is also a PhD candidate in the Centre for Criminal Justice and Human Rights, University College Cork. Her research interests are in gender and the law, law and religion, citizenship and the political dimensions of private law. You can contact her at M.Enright[at]kent.ac.uk or (+44) 1227 827996.