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'Liberal' barrister fought game changer case that overturned the ban on importing contraceptives

Former Supreme Court justice Donal Barrington died this week at the age of 89.

IT’S EASY TO forget just how draconian Irish law was in the 1970s, particularly for women. But we were reminded of it this week with the sad passing of former judge and barrister, Donal Barrington.

He played a significant role in helping Irish women access contraception. In 1973, along with former Irish President Mary Robinson (who was just a barrister at the time) he represented Mary McGee, whose case overturned the ban on importing contraceptives.

Tributes to Judge Donal Barrington, whose funeral takes place today, flooded in upon the news of his death earlier this week. He died on Wednesday, age 89.

He has been described as a “barrister for the underdog” a “progressive judge” “a known liberal, unusual among judges even to this day”.

Barrington also served as a Supreme Court judge, he was the first President of the Irish Human Rights Commission and was a founding member of the Irish Council for Civil Liberties (ICCL).

Expressing their deepest sympathy at his passing, its Executive Director Liam Herrick said that as a barrister, his advocacy for clients such as Mary McGee was just one of the highlights of the many groundbreaking constitutional cases he acted in.

“As a judge his reputation as a fierce and independent defender of the fundamental rights provisions of Bunreacht na hÉireann was well deserved,” added the statement.

McGee case 1973

But it is the McGee case in 1973 that was a game changer in women accessing contraception in Ireland.

Mary McGee was a 27-year-old mother of four at the time of the case. Her previous pregnancies had been complicated and she was advised by her doctor that there was a possibility that if she became pregnant again her life would be at risk.

In these circumstances she came to the conclusion, although at first reluctant to do so, that she should adopt some form of contraception in order to allow her to “lead a natural married life with her husband” according to the court’s judgement.

Having sought medical advice on the matter, she was advised by her doctor that a suitable contraceptive for her case would be an intra-uterine device to be used with a contraceptive spermicide jelly called “Staycept Jelly”.

She was advised to order some from England as it was not manufactured in Ireland at the time.

She ordered some from England but the products were impounded on arrival. She was supplied a letter stating that Section 17 of the Criminal Law Amendment Act, 1935 prohibited her from acquiring the products.

BARRISTER MARY ROBINSON IN LIBERTY HALL DUBLIN.14/10/80.PIC PHOTOCALL IRELAND Mary Robinson in 1980

Sponsored by the Irish Family Planning Association (IFPA), the case went to court, but was dismissed by the High Court. Barrington appealed McGee’s case to the Supreme Court.

The book, Northern / Irish Feminist Judgements, notes that at the time women did not sit on the Irish superior courts.

It states that her High Court case was dismissed out of hand, stating that McGee was sitting in the stalls of the Four Courts in Dublin writing a list of Christmas toys to buy her children, “as men deliberated on her rights”.

She explained to the court that she had written to the customs officers explaining why she needed the contraception. “They still didn’t want to know,” she said.

Appealing the case to the Supreme Court, her hus­band took to the stand and was asked whether he was happy to think of his wife using con­tra­cep­tion.

He said that he would rather have her use it than “put flowers on her grave”.

Marital privacy

The Supreme Court appeal was successful and estab­lished the right to mar­ital pri­vacy — in essence the right of mar­ried couples to use con­tra­cep­tion.

In his ruling, Judge Walsh stated it falls upon judges to interpret the Constitution and balance it with the rights of Irish citizens.

The essential facts of this case may be summarised as follows. The plaintiff, who is aged 29, lives in the restricted quarters of a mobile home with her husband, who is a fisherman earning about £20 per week, and their four children who were born in December, 1968, in January, 1970, and (the twins) in November, 1970.
Her medical history shows that during each pregnancy she suffered from toxaemia; that during her second pregnancy she developed a serious cerebral thrombosis from which she nearly died, and which left her temporarily paralysed on one side; and that during her last pregnancy she suffered from toxaemia which was complicated by hypertension.
She has been advised by her doctor that if she becomes pregnant again there will be a very great risk that she will suffer a further cerebral thrombosis, which is an illness that apparently has a mortality rate as high as 26% in married women of her age and which would be apt to cause her a disabling paralysis if it did not prove fatal.

Confronted with that dire prospect, the judge said she had to decide between sexual abstinence or to use of a contraceptive.

Denying her access

The judgement went on to say that the plaintiff’s “dilemma” is that she is 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 that she is faced with a considerable risk of death or crippling paralysis if she becomes pregnant.

“The net question is whether it is constitutionally permissible in the circumstances for the law to deny her access to the contraceptive method chosen for her by her doctor and which she and her husband wish to adopt. In other words, is the prohibition affected by Section 17 of the Act of 1935 an interference with the rights which the State guarantees in its laws to respect…

The answer lies primarily in the fact that the plaintiff is a wife and a mother. It is the informed and conscientious wish of the plaintiff and her husband to maintain full marital relations without incurring the risk of a pregnancy that may very well result in her death or in a crippling paralysis. Section 17 of the Act of 1935 frustrates that wish.

Judge Walsh went further and the law goes further.

“It brings the implementation of the wish within the range of the criminal law,” he said, adding, that the effect of the law in this case is to condemn the plaintiff and her husband to a way of life “which, at best, will be fraught with worry, tension and uncertainty that cannot but adversely affect their lives and, at worst, will result in an unwanted pregnancy causing death or serious illness with the obvious tragic consequences to the lives of her husband and young children”.

The case was one of the first hard fought battles by women for reproductive rights in Ireland.

Though the McGee case established the right of couples to make decisions, the implications of the 1973 Supreme Court judgement was limited, as it did not mean that contraceptives could be sold or advertised in the Republic.

Judge Walsh made particular reference to this in his judgement, stating:

I wish to emphasise that I have given no consideration whatsoever to the question of the constitutionality or otherwise of laws which would withhold or restrict the availability of contraceptives for use outside of marriage; nothing in this judgment is intended to offer any opinion on that matter.

The publication, Northern / Irish Feminist Judgements, references an interview with McGee after the judgement in which she said she was shocked at how difficult it was to bring such a case before the Irish courts.

This also speaks to how unusual it was at the time for both Barrington and Robinson to take on such a case in the 1970s. The first of its kind.

“I really couldn’t believe that you had to do so much fighting to get there and be heard. It was like they didn’t want to listen, the rule was made and that was it,” said McGee.

In the interview, she outlines that had she lost the Supreme Court case she would have gone to the European court in Strasbourg, and that she was also willing to go to jail, if necessary.

Family planning 

The case in which Barrington represented McGee had a big impact on the early family planning movement in Ireland.

Chief Executive Niall Behan of IFPA told TheJournal.ie the McGee case was the “starting point” for the fight for reproductive rights in Ireland.

“Certainly, people like Donal Barrington and Mary Robinson and the McGee case set the direction,” he said, adding that anyone looking to research contraception rights in Ireland begins with the McGee case.

The case did not result in immediate legislation. Fine Gael’s Control of Importation, Sale and Manufacture of Contraceptives Bill 1974 did not pass. However, Fianna Fáil’s Health (Family Planning) Act, introduced by the then Health Minister Charles Haughey, passed in 1979.

Before the legislation came into effect, family planning clinics in Ireland used interpretations of the McGee judgement to import condoms into the country, with some citing the judgement at customs and police checkpoints.

However, it would be twenty years from the ruling that the sale of contraceptives was actually permitted in Ireland.

00001542_1542 Contraception being sold illegally in Dublin's Dandelion Market in 1980

It was not until 1993 that the rules were properly relaxed – as business magnate Richard Branson, who faced court proceedings after allowing the Irish Family Planning Association to sell condoms in his Dublin Virgin Megastore in 1990.

The Taoiseach expressed his condolences to Judge Barrington’s family this week, stating that he leaves behind an admirable and honourable legacy, in particular for his work in the field of civil liberties.

“I know that Judge Barrington’s legacy will continue to inspire young lawyers now and in the future,” said Leo Varadkar.

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