I should like to preface my remarks by thanking Senator Robinson for moving this Bill and also for her comprehensive and quite brilliant contribution in opening the debate. I find myself in the somewhat unusual position of agreeing with Senator Lenihan, the Leader of the Opposition, in saying that her opening statement was ill served by some of the contributions that followed.
I want to deal specifically with the Bill before the House and I will leave contributions on a Government Bill to a later date. I am in favour of the Bill before the House and if it is put to a vote I will vote for it. Naturally, I will vote for any other similar measure brought before the House by the Government or by any other Senators as a Private Members' Bill. Family planning is a matter of a civil right. The denial of that civil right constitutes a serious transgression of the personal freedom of many of our citizens in the most private domain of life, the marital relations between husband and wife. For that reason I will vote for the central principle of this Bill if given the opportunity, or for any other similar Bill.
I do not believe that the State has any right—still less an obligation—to intrude into the intimate relations between husband and wife or to enshrine the moral code of any particular religious persuasion in the law of this land. These are fundamental beliefs of mine and I am sure they are fundamental beliefs for many other Senators here. I regard these as the basic principles upon which our democracy is founded and upon which our Constitution rests.
Section 17 of the Criminal Law (Amendment) Act, 1935, is, in my view, in direct conflict with these basic principles and should be removed by the Oireachtas subject to certain conditions. If we fail in our duty to do that we can be assured that the Supreme Court will do it for us. This Bill is for me and for many other Labour Senators a matter on which our party has pronounced clearly and uniquivocally. Our annual conference in 1972 called for a reform of the law dealing with the availability of contraceptives by the deletion of section 17 of the Criminal Law (Amendment) Act. As this Bill corresponds with the intent of my party's decision, I will of course support it.
In so doing I do not intend to seek refuge behind my party's conference decision or to claim that it precludes me from my right or that of any other Labour Senator to exercise freely his personal judgment on this sensitive matter. I believe that on this and on many other important political matters, particularly in the field of political rights, my party have taken the correct political stand.
This Bill also has great relevance to Northern Ireland. Its passage or that of any similar provision would help to create those conditions which would lead to the ultimate reconciliation of the peoples of this island. It would demonstrate a respect by the Oireachtas for the rights of a minority, however composed. It would signify that questions of private morality are determined legislatively here on their merits and not at the dictate of a church or of a powerful denomination. It would signify that Article 44 of the Constitution as it now stands means what it says, and that in my view is a precondition for reconciliation on this island. These constitute the political and party reasons for supporting the Second Reading of this Bill. In addition, there is an urgent and compelling necessity to enact some such legislation in the aftermath of the Supreme Court's decision in the McGee case.
The Oireachtas does not now have the luxury of opting to change the law. The Supreme Court have already done half of that job by declaring subsection (3) of section 17 to be repugnant to the Constitution, and clearly would, on a reading of Mr. Justice Walsh's judgment, declare subsection (1) of the same section to be repugnant to the Constitution if a case were pressed. Regrettably in one sense, the Seanad, despite what it has heard previously, is not being asked to examine the law ab initio. It would be a preferable situation from the point of estimating the support for reforming legislation on the basis of a civil right, if this debate were taking place in vaccuo as far as the Supreme Court are concerned. But preferences do not enter into it. As ever in politics, reality determines decisions, and the reality of this debate is that on 20th December last our national newspapers carried reports of the Supreme Court judgment that the law on the import of contraceptives is unconstitutional.
Thus this House does not have to decide—regrettably for some; gratefully for others—whether the importation of contraceptives should be permitted. The Supreme Court have decided. The issue therefore hinges around one key decision: do we propose to permit the sale of contraceptives before the High Court or the Supreme Court have decided it for us? Do we intend to abnegnate our solemn responsibility to defend what the Supreme Court identified as a central civil right or do we intend to leave it to some private citizen to contest the constitutionality of the prohibition of the sale of contraceptives and thereby have it removed for us?
I accept this is not an argument launched from the high plateau of the defence of democratic freedoms and I should accept the charge that it is a politician's approach, which some might describe as sordid, given the great import of this debate.
But, as a politician, I am concerned not with great moral gestures doomed to failure, however self-ennobling, but with practical changes in the law. That is why I want to concentrate on the central fact that the law has been changed for us and can be changed further and that in reality we are not locked in a great moral debate between two diametrically opposed viewpoints. In some cases I wish we were. But we are not.
The bulk of what the proposers of the amendment had to say is irrelevant. In reality those who are opposed to the public availability of contraceptives and those who are in support are paradoxically forced into a common approach of having to change the law. The legitimate differences that remain revolve around the nature of the restrictions, if any, which should be placed on their side, and here indeed there is room for genuine debate, and in the specific instance of this Bill, for amendments relating to the conditions governing their sale.
I believe that even a casual perusal of Mr. Justice Walsh's judgment in the McGee case forced this conclusion on even the most committed opponent of any change in this law. The Supreme Court argued that Article 41 of the Constitution guarantees married couples the right to plan their families and from that concluded that the State could not frustrate that right. In the McGee case, the complaint was that the ban on the importation of contraceptives frustrated her right and hence it was declared unconstitutional. The prohibition on sale was not contested, but Mr. Justice Walsh commented that if the restriction on sale also frustrated the right to use contraceptives then that particular prohibition must also fall. The key passages in the judgment are:
It is outside the authority of the State to endeavour to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon that husband and wife which they do not desire. In my view, Article 41 of the Constitution guarantees the husband and wife against such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and as such assumes the status of a right so guaranteed by the Constitution.
So we are talking about a right guaranteed by the Constitution. And in the second key passage he said:
If in the result notwithstanding the deletion of the subsection, the prohibition on sale had the effect of leaving a position where contraceptives were not reasonably available for use within marriage then that particular prohibition must also fall.
One does not have to be a constitutional lawyer to deduce from this clearly written statement that the prohibition on sale will be set aside as soon as it is contested by some married person whose guaranteed constitutional right to use contraceptives is being frustrated because they are not reasonably available due to the ban on sales.
I do not then see any merit in the amendment which has been tabled by the Leader of the House in a private capacity and by two other Senators. If we suspend judgment on Senator Robinson's Bill because its proposals have not been submitted by referendum to the decision of the people or if we do not pass a Government Bill, then we merely invite some citizen to test the constitutionality of subsection (1) of section 17 and we will wind up with a free for all situation that will be infinitely worse to the minds of those who submitted the amendment than the controlled conditions which Senator Robinson seeks to create or which the Government might seek to create in its own Bill.
To my untutored mind the proposers of the amendment, if they were successful, which I hope they will not be, would only succeed in maintaining the present restrictions on sales for a short time at the expense of unleashing a totally uncontrolled sale situation when some person brought that particular section to the Supreme Court and the Supreme Court or High Court inevitably set it aside. Therefore, the benefit to be derived from this short-term gain would not be commensurate with the damage, as they would see it, that will be inflicted when all controls are lifted consequent on the deletion of subsection (1).
The rational thing to do is to accept that the use of contraceptives by married couples has assumed "the status of a right guaranteed by the Constitution", and this situation cannot be reversed however much the proposers of the amendment might wish. They and their supporters must also accept that the only way they can now deny that right to married couples is to carry a referendum that expressly removes from Articles 40 and 41 those sections on which the Supreme Court judgment rested in the McGee case. But if they do that they will sweep away in addition many other, if not all, of the personal freedoms which are guaranteed in the Constitution and which, in one sense, are its crowning glory. These personal freedoms are indivisible and one cannot pick and choose, saying "I like this one and I oppose that one". They hang together because they derive from the nature of man and flow from man's personality in an inexorable fashion. Thus I contend that the logic of the present constitutional position is this: since we cannot, because we would not wish to, change the Constitution by diminishing our personal freedoms, then we must alter the law by enlarging the exercise of one of the freedoms.
The law can be altered in the manner proposed here with some modifications to which I will refer later. To pass this amendment is to fly in the face of reality and to behave in an illogical and inconsistent manner. It would be in the last analysis for those who support the thinking behind this amendment, the very contradiction of what they had hoped to achieve because the law will not stand still on the contraception issue. If the Seanad defeats the Family Planning Bill it will be no more than a legislative Canute which will be unable to sweep back the incoming tide of reform swelling in from the Supreme Court.
It is not surprising that the Supreme Court should have acted as they have when one considers the legal setting of the provisions governing a matter which has assumed the status of a right guaranteed by the Constitution. The Criminal Law (Amendment) Act of 1935 is entitled
An Act to make further and better provision for the protection of young girls and the suppression of brothels and prostitution, and for those and other purposes to amend the law relating to sexual offences.
Section 17, which contains four subsections, deal with the prohibition of the sale and importation of contraceptives. It is sandwiched between section 16 which deals with the suppression of prostitution and section 18 which deals with public indecency. It might be argued that the mentality which positioned access to contraceptives by married people in the middle of an Act dealing with sexual offences, some of them of a most heinous character, was defensible and excusable given the attitudes that prevailed in the mid-thirties. But it is neither defensible nor excusable, I submit, for us in the mid-seventies to defend a situation which makes the sale of a contraceptive to a married couple a contravention of a criminal law which also deals with the offences of keeping brothels and the defilement of young girls.
I do not believe in all fairness that those who wish to maintain the status quo, however impossible that might be now, wish to clarify as a criminal offence the sale and purchase of contraceptives by married couples. It would be more fitting and more in keeping with the spirit of our times that this intimate matter should be taken out of the field of criminal law and placed where it belongs in the arena of the law relating to the family. This Bill gives us the opportunity to do just that and accordingly should be supported even by those who find the use of contraceptives repugnant to their own private moral code, although another approach would be to repeal section 17 in its entirety and submit a Bill which regulated the importation and sale of contraceptives.
It is critically important in this debate that the Seanad should not support the proposition that the moral code of the majority should prevail to the extent that the law should remain unchanged. It is important that personal freedoms should be permitted expression, even though the exercises of some of them conflicts with, or is believed to conflict with, the moral teaching of the majority church. Intervention by the State cannot be justified on the grounds that a piece of legislation reflects the religious viewpoint of the majority because such is not the function of the State and we as legislators should not permit our private religious convictions to influence us in our determination of what is a matter of law. Mr. Justice Walsh put it on record in the McGee judgment and it is there for us all to study.
The fact that the use of contraceptives may offend against the moral code of the majority of citizens of the State would not per se justify an intervention by the State to prohibit their use within marriage. The private morality of the citizens does not justify intervention by the State into the activities of those citizens unless and until the common good requires it.
It is outside the authority of the State to endeavour to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon the husband and wife which they do not desire.
It would be intolerable if this Assembly irrespective of some of the private views publicly expressed of some of the Members, could be accused of defending in legislative form the moral teaching of an individual church simply because it was the teaching of that church. It had been my intention to berate an unfortunate delegate at the Fianna Fáil Ard Fheis last week for expressing in rather crude terms the belief that, because 90 per cent of the population of the Republic was Catholic, any change in the law would be against the moral teaching of the vast majority of the people and, therefore, the law should not be changed. Unfortunately, since she uttered those words more eminent people have expressed that argument. I believe this is in its crudest form the attitude that motivates most of the opposition outside of the Oireachtas to this Bill and, regrettably now, is present within it to some extent. I did not expect, I must confess, to hear it repeated in the House in a form just as crude as that expressed at the Fianna Fáil Ard-Fheis despite the philosophical gloss we heard this morning. The case put forward by the proposers of the amendment cannot be an argument which would find any merit with any Member of this House with a clear and precise idea of his function as a legislator and it is not an argument that should be given expression here in a serious debate, particularly, subsequent to the Supreme Court decision.
We were addressed collectively, as legislators, on November 25th last by the Roman Catholic Hierarchy on the subject matter here before us. Senator Quinlan read the address into the record of this House. Since I was amongst those addressed by the Bishops I think it only courteous to reply.
I was glad to be assured that "there are many things which the Catholic Church holds to be morally wrong and no one has ever suggested, least of all the Church herself, that they should be prohibited by the State".
That was comforting. The statement went on to say that those who insist on seeing the issues purely in terms of the State enforcing, or not enforcing, Catholic moral teaching, are, therefore, missing the point. If that be the case, and I accept the Bishops' presentation of their own position, I wish those many individuals who have written to me, some anonymously, enjoining me to vote against this Bill because it affronted Catholic moral teaching would have read with care and accuracy this explicit statement by the Bishops. I do not like being addressed as a heretic by people, however simplistic in their approach to Church/State matters and I wish the Bishops had been a little more trenchant in their exposition indicating the clear and definite separation of Church matters and State law.
They are not blameless in this because their statement did not go far enough in driving home the distinction between Church and State. They put it clearly enough but too softly when they said without further amplification or emphasis and I quote from their statement:
We emphasise that it is not a matter for bishops to decide whether the law should be changed or not. This is a matter for the legislators, after a conscientious consideration of all the factors involved.
This I contend is a little too ingenuous. I am convinced that a substantial block of the Bishops' faithful interpreted this statement as a directive and not as just another opinion which legislators would routinely consider before they came to a final decision.
It is necessary then, in this controversial area to put on the record what the Bishops said of themselves so that no one can either shelter behind a supposed directive or criticise an imaginary one. Whatever people decide is, in the ultimate, their own personal decision and that includes, in the Bishops' own words, those members of the Oireachtas who accept their guidance in spiritual matters.
In this House we deal with the law and not with theology. Although from what we have heard over the last few hours one could be pardoned for thinking otherwise.
In the course of their statement their Lordships made one political judgment with which I am in total disagreement and they must expect that when they stray into the arena of politics they will be subjected by legislators to the same impartial scrutiny as would be any other interest group. I disagree with them on the so-called abortion link which was also referred to by Senators O'Higgins and Quinlan. The bishops say that "the link between legislation on contraception and abortion is also significant; that there seems to be a chain reaction in these matters by which the first piece of legislation tends to set in motion a process of change which no one can control".
This charge was repeated here this morning. There is no such tendency in this country and to suggest that one exists is to make a serious error of judgment and, additionally, to make an argument founded on a false premise. Practically every one of the supporters of this or a similar Bill with whom I have spoken have indicated without equivocation that they abhor abortion, regard it as murder and would oppose it if introduced into the Houses of the Oireachtas. I personally oppose abortion and for my part do not intend my support for this Bill as a surreptitious method of preparing the ground for legislation on abortion.
I resent the categorisation of my attitude and the attitude of other Senators of like mind as a tendency that could set in motion a process of change that no one can control. The process can be and will be controlled because most if not all of those who support this Bill would also, in my view, oppose abortion on the grounds that it was murder.
In any event, the Supreme Court in its judgment in the McGee case has given us sufficient indication to prophesy that legislation to introduce abortion on demand would be unconstitutional as it would constitute a violation of the right to life. It said:
Any action on the part of either the husband or wife or the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good, but also against the guaranteed personal rights of the human life in question.
I think this should put an end to the insidious argument that we are preparing the ground for abortion by taking this step on contraception. I hope that the debate will at least have the beneficial effect of stopping the flow of revolting literature to Senators luridly describing the horrors of abortion and on that account asking us to oppose Senator Robinson's Bill.
So far as the sociological argument against the abortion link is concerned I shall leave that to the professional sociologist on this side of the House who is far more skilled to comment on a few statistics adduced to demonstrate a spurious causal relationship between contraception and abortion.
Towards the end of this statement their Lordships ask us to make a realistic assessment as to whether a change in the law would have any significant effect at the present time on attitudes towards the reunification of our country. It is a good question. I welcome the request. Of course, the change would have a significant effect because those who are directly involved in Northern politics, particularly within the SDLP, have assured us that such change would have a significant long-term impact on attitudes towards unification. The SDLP annual conference passed resolutions to that effect, including those at their last annual conference at the end of 1973. My friend, Gerry Fitt, has spoken publicly of the necessity for making a change as proposed here so that the proper attitudes are inculcated both North and South towards unification.
In summary, then, we can conclude that the use of contraceptives by married persons has assumed the status of a constitutional right. The Supreme Court has already altered the law and is likely to do so again in the foreseeable future. There is no so-called abortion link between contraception and abortion and the passage of this legislation would have a significant impact for the better in the north.
This being so, we can address ourselves in Committee as to the restrictions if any, which might govern the sale of contraceptives. For my part I see two deficiencies in the present Bill and I hope that they will be remedied.
First, this Bill continues the free-for-all situation as regards the importation of contraceptives. Any 14-year-old can import such devices provided they have the address of an exporter and the money to pay for them. If provision is made for the sale of contraceptives then there will be no need for private individuals except in exceptional circumstances to import them and I would suggest that a new subsection be added to make their importation a matter upon which the Minister could make regulations. Such regulations would not be unconstitutional since there would be, in most cases, reasonable access to contraceptives through public sale. If reasonable access did not exist then importation could be permitted to the individual.
I believe this restriction to be desirable and an immediate necessity in view of the sales campaigns which have already been publicised by certain foreign distributors. At the moment there are no restrictions on mail orders or analogous methods of supply and distribution. They can be acquired by any person through importation, irrespective of age or marital status. To accept the amendment to this Bill would simply be to continue that free-for-all situation. However, if this Bill were passed, the importation could be regularised by confining it to licensed importers and specified individuals.
Secondly, I believe, however unpopular this proposition might be in some quarters, that a Family Planning Bill should logically confine the access to devices for family planning to those who constitute a family, in other words to the husband and wife.
It was on their rights as enshrined in Article 41 that the Supreme Court grounded its decision in the McGee case and Mr. Justice Walsh specifically indicated that his judgment offered no opinion on the availability of contraceptives outside marriage. Here I must disagree with Senator Robinson who quoted Chief Justice Fitzgerald.
The case was argued and won on the rights of the husband and wife as guaranteed by Article 41 protecting their marital privacy against invasion by the State. The present Bill does not, although described as a Family Planning Bill, pretend to confine the public sale of contraceptives to those who wish simply to plan their families. It provides for public sale to any person. In so doing I believe it goes against the reasoning and spirit behind the Supreme Court decision and leaves the Bill open to unnecessary criticism which in the last analysis might prove decisive when it comes to the determination of the matter. The Bill is in essence a Criminal Law Amendment Bill and is a misnomer. I have no hesitation, therefore, in asking the proposers to consider, on Committee Stage, incorporating a restriction along the lines suggested. An argument that it is administratively difficult is no argument against the principle and I personally would not entertain such an argument.
I hope the Second Stage of this Bill is passed if put to a vote. I shall vote for it and so shall all those Senators who value the civil freedoms enshrined in the Constitution and so also, shall all those Senators who, whatever their opinion on the private morality of using contraceptives, nonetheless respect the Constitution and accept their responsibility to safeguard and defend it. We cannot do less.
