There is constant talk today in Ireland of vindicating the rights of women by striking out that controversial provision in Article 41.2 of Bunreacht na hÉireann (the Irish Constitution). S 2.1° of the article states that “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” while s 2.2° states that “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”.
Many people hold that this method of recognising women’s rights by tackling the provisions of the Constitution began (and succeeded) in the case of McGee v Attorney General – however, I argue that the true result of this case actually decelerated the cause for Irish women.
The landmark case of McGee v Attorney General  IR 284 illustrates an unprecedented breakthrough in the area of family planning in Ireland and tells the story of May McGee, a young wife in financial difficulty whose health was in danger after four pregnancies.
Mrs McGee’s doctor prescribed her contraception from London which she attempted to import but it was seized by customs officials, as it was illegal in Ireland at the time to sell, offer, advertise or import contraceptives. She sought a declaration that the Criminal Law (Amendment) Act 1935, (under which she had been threatened by the Revenue Commission) was unconstitutional. Mrs McGee claimed the law that prevented her from bringing contraceptives into the State infringed the implied right to privacy guaranteed to all citizens under Article 40. She also argued that under Article 41, the importation ban violated the “inalienable” rights of the family in attempting to frustrate a decision made by Mrs McGee and her husband for the benefit of the family as a whole. It was also disputed that the law violated her freedom of conscience, with all claims denied by the Attorney General. Judge O’Keefe dismissed her case, but when Mrs McGee took her appeal to the Supreme Court in November 1973, she won decisively by a 4-1 margin. Judges Walsh, Budd, Henchy and Griffin all found that the act breached her constitutional right to marital privacy.
This judgment divided the nation. On one side, the anti-contraception campaigner Desmond Broadberry deemed it a “sad day for Ireland” and Catholic bishops reiterated that contraception was “morally wrong”. On the other side, the Family Planning Clinic in Dublin saw it as a “big breakthrough”. The Supreme Court was decisively ahead of public opinion and politicians on contraception. However, only a decade later was the anti-abortion amendment added to the Constitution. How did this happen?
It is crucial to note that the majority of judges did not condemn the law banning the use of contraceptives – they simply based their decision on the right to marital privacy implied in the Constitution. Judge Walsh specifically referenced Article 41, detailed above, which is currently receiving some media coverage for its comments on the family and, in particular, the role of women within the family. This clause has come under criticism with many campaigning for a referendum to either change this wording or strike out the Article altogether for its disregard to women’s rights. In a similar vein, although referring most likely to S 3.1° (ie. the state’s pledge to guard the institution of marriage with special care and to protect it against attack) the Supreme Court again seems to only superficially support women’s rights (just as in S 2, which while appearing to consolidate women’s rights is instead incredibly limiting). May McGee won her court case, but not because she was in danger of dying, not because the Supreme Court found the ban on her importation of contraceptives unconstitutional, not because as a woman in Ireland she deserved her right to this healthcare. May McGee won her court case not because she was May McGee, but because she was Mrs McGee. In this way the court case was, according to Ivana Bacik, “a catalyst for the pro-life amendment campaign”.
May McGee’s case is the pinnacle of paradoxical finding and possibly the most important Supreme Court case in Ireland. Although it accelerated women’s rights in Ireland to a huge extent, it had a detrimental effect in setting them back too.
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