I move: "That the Bill be now read a Second Time."
The Criminal Law Amendment Act, 1935, section 17, provided that it was an offence to sell, import or advertise for sale any contraceptives. This piece of legislation was challenged as to its constitutionality and in a recent Supreme Court case of McGee against the Attorney General the Supreme Court in a majority judgment, held in effect that the provision of section 17 (3) of the 1935 Act prohibiting the importation of contraceptives was contrary to the Constitution and hence not part of our law. The Supreme Court did not make any finding on whether the prohibition contained in the 1935 Act against the sale of contraceptives was or was not constitutional.
As a result of the Supreme Court decision the position now is that any person may purchase abroad and import contraceptives into this country for his own use or may freely distribute them but they may not be sold in the State.
We now have a rather anomalous situation that there is no restriction whatever on the importation of contraceptives but there is an absolute prohibition on their sale.
The rationale of the Supreme Court judgment was to the effect that married couples are entitled not to have reasonable access to contraceptives denied to them and that the ban on importation was such a denial. The court did not go on to decide whether the ban on sale constituted such a denial but, having regard to what was said in some of the judgments, I would have little doubt that if a case were shown to the court that the total ban on sale meant that reasonable availability was not possible then that ban too would be found unconstitutional.
The legal position at the moment, therefore, is that importation without restriction as to quantity or type and by any person is quite legal; that the ban on sale which continues to subsist would appear to be liable to be challenged successfully.
I considered that this anomalous position had to be rectified because an anomaly itself is unsatisfactory but, in addition, I have had clear evidence that as a result of it a black market exists and is growing in the illegal sale of contraceptives in this country. They can be imported as I have said without let or hindrance and this is being done. Orders for contraceptives are being solicited by mail order firms from outside the State and these orders are being solicited indiscriminately. The firms concerned apparently are using street or telephone directories. It has been rather irately brought to my notice that one firm is enclosing a sample of its wares with the order form.
For these reasons it was quite clear to me that the position consequent on the McGee case required to be regularised and that the unfettered importation should be controlled but, at the same time, having regard to the obiter dicta of the Supreme Court in that case the prohibition on sale should be eased. The Bill now before the House, I submit, meets these two requirements in a reasonably satisfactory manner.
The right to import is restricted to persons who will be selling by retail in this country and it is suggested in the Bill that the proper outlet is through pharmaceutical chemists shops as this is a retail trade with high ethical standards and contraceptives do have a medical connotation. The right to purchase will be confined to married persons and this restriction is an acknowledgement of the finding by the Supreme Court that the constitutional right to have reasonable access to contraceptives is a right of married couples. There was no finding as to whether a single person has such a constitutional right. As I am concerned only with the legal position as I now find it, this Bill does not go beyond the finding in the McGee case.
Reasonable availability for married couples has to be maintained. I quite appreciate that in parts of the country pharmaceutical chemists may not wish, for conscientious reasons, to sell contraceptives and, accordingly, there is provision for a licence to be granted to persons other than pharmaceutical chemists or, indeed, to individual persons and thus reasonable availability will be assured. Again, of course, because this availability is the legal right of married couples only there is a restriction on the purchase by single persons. There has been considerable misunderstanding in regard to this, some of it deliberate on the part of people who want to ridicule the restriction on sale to married persons. It has been asked if purchasers will be obliged to produce marriage certificates or other proof of marital status. The answer is no. Likewise there will be on requirement or obligation whatever on the vendor to inquire as to the marital status of the purchaser. Such a requirement would be intrinsically objectionable and, in addition, it would impose such an obligation on the vendor that in effect no person would stock and sell contraceptives.
The provision in the Bill is quite simple and unambiguous; it makes it unlawful for an unmarried person to purchase a contraceptive. No doubt it will be urgued that this prohibition is unenforceable and like any law I have no doubt that it will be breached. This does not, nevertheless, take from the validity of having the prohibition because laws essentially are obeyed because people want to obey them not because they are afraid of the sanction behind them or the threat of being detected in breach of them. Enforcement of any law can be a problem and there are other areas, notably in the intoxicating liquor code and the road traffic code, where we have this problem and one would hardly argue that because there are breaches in these two areas there is, therefore, a justification for relaxing or abolishing the prohibition on under age drinking or dangerous driving. It is the aim of any criminal law to prohibit undesired conduct and that law is not futile even if it does no more than mark society's values in a particular area. I have no doubt that the vast majority in the State are in favour of a law restricting sales of contraceptives to married couples.
It is a well recognised principle of jurisprudence that to set out a prohibition in a statute is in itself a deterrent notwithstanding difficulties of enforcing it or of adducing proof to enable the sanction behind the prohibition to be imposed. I am satisfied that it is right to impose this prohibition in this Bill and that it is in accord with popular opinion.
Those who oppose the Bill because they see it endangering public morality while they have proved their capacity to write letters are, I suspect, not numerically strong. For they have one thing in common and have communicated it to some Deputies in this House and that is a failure to see that, as a result of the McGee case, it is not possible to prohibit the availability of contraceptives. Our law henceforth must maintain such availability and it is futile for people to demand that contraceptives be absolutely prohibited. Such a law would be unconstitutional.
Likewise, it is futile to oppose this Bill on the grounds that it makes contraceptives available. It does no such thing. They are available as a constitutional right. What this Bill does is to regulate their availability. Those who oppose this Bill are in effect in favour of the availability of contraceptives without let or hindrance to all ages and groups without distinction of sex or marital status. Yet these same people pose and hold themselves out as the protectors of the morals of the nation. Surely they must see the contradiction of their position. I suspect some of them do and this is what inspires the calls we have seen more and more recently for a referendum on the subject.
The rights of an individual citizen in this country are given to him by the Constitution and guaranteed to him under it and our Supreme Court has the duty under that Constitution of defining what those rights may be from time to time. In this case the Supreme Court has found that a married person has a right to have reasonable access to contraceptives and those who call for a referendum, in effect want to take that right away from that individual. I cannot accept that this is a valid point of view and is, indeed, a dangerous doctrine. There will be no referendum on this issue. In any event, but this does not go to the merits of the argument, it would be impossible in practical terms to devise a suitable question to put to the people. Most people on conscientious grounds would not practise artificial contraception but at the same time would not deny to any person whose conscience permits him so to do, the right to so practise. The question, therefore, for Deputies is, do they want unfettered availability of contraceptives or do they want the supply regulated as is proposed in the Bill.
Those who oppose the Bill because it is too illiberal do so mainly on the ground that it seeks to restrict sales of contraceptives to married couples. They seek to argue that it is impractical to do so and any attempt to do so will bring the law into disrepute. I have already dealt with this argument when speaking of this restriction on sales to married persons only and the enforcing of it. They also argue however, that there is a right, a natural right in favour of single people to have access to contraceptives. I do not accept that there is any such right because that implies a right to fornicate and in my opinion there is no such natural right. I am well satisfied that the principle of restricting contraceptives to married persons is the proper one.
I will now deal with some of the particular proposals in the Bill. Section 2 provides that, subject to section 3, it shall be an offence to import contraceptives except under licence issued by the Minister under this section and, subject to section 4, it confines the right to sell contraceptives to persons who are licensed under this section to import them. A licence under this section may be subject to such conditions and may relate to such class or classes of contraceptives as may be specified therein. In general, licences may be issued only to chemists who are lawfully keeping open shop for dispensing medical prescriptions. Where, however, the Minister is satisfied that contraceptives are not reasonably available to married persons in any place because it is not within a reasonable distance of the premises of a licensed chemist, he may issue a licence under this section to some other person or persons carrying on a business in or near that place. The holder of a licence under this section may sell contraceptives only in or from his place of business and may not sell contraceptives for resale. The licence may be revoked by the Minister where the holder is in breach of a condition thereof and may be declared forfeit by the court where the holder is convicted on indictment of an offence under the section.
Section 3 provides that the Minister may issue a licence, subject to specified conditions, to a married person to import contraceptives where the Minister is satisfied that contraceptives are not reasonably available to the person by reason of the distance of the place in which he lives from the premises of a person licensed to sell them.
Section 4 makes it an offence to manufacture contraceptives except under licence granted by the Minister. The licence may contain such conditions as the Minister considers necessary to ensure that contraceptives are supplied for sale within the State only to persons licensed under section 2 to import them. A licence under this section may be revoked where the holder is in breach of a condition thereof.
Section 5 provides that it shall be an offence for a person who is unmarried to purchase a contraceptive. Section 6 provides that it shall be an offence to display contraceptives for sale. Section 7 provides that the Minister may appoint a committee of five persons, which shall include persons with medical qualifications, to advise him on whether a device or product is an abortifacient, whether or not the device or product is also a contraceptive, and it provides that he may not grant a licence for the importation or manufacture of a contraceptive which, in the opinion of the committee, is also an abortifacient.
Section 8 makes it an offence to sell or to display publicly any advertisement or any document containing an advertisement for contraceptives. It also provides that unsolicited advertisements and written material advocating the use of contraceptives may not be sent through the post or otherwise delivered to any premises. An exception is made for the display of a notice of availability of contraceptives for sale in premises in which contraceptives may lawfully be sold. An exception is also made in relation to the advertising of contraceptives in newspapers and periodical publications which does not extend beyond advertising the trade-name and type of contraceptives and indicating the premises from which they may be purchased. A further exception is made in respect of advertising in publications intended solely or mainly for chemists or doctors. The Minister may make regulations specifying the manner of the two latter kinds of advertising.
Section 9 provides that it shall be an offence to manufacture, import, sell, offer for sale or advertise an abortifacient.
Subsection (1) of section 10 provides that when a person is charged with an offence under section 9, which relates to abortifacients, and it is proved that the subject matter of the charge is a contraceptive, he may be convicted of any offence under the Act of which he is guilty by reason of the fact that the subject matter of the charge is a contraceptive. Subsection (2) has a similar provision to cover the case where the charge is in respect of a contraceptive but the subject matter thereof is proved to be an abortifacient.
Subsection (3) provides for the case where, irrespective of whether the charge is in respect of a contraceptive or an abortifacient, it is proved that the subject matter of the charge is either an abortifacient or a contraceptive, but it is not proved which it is: in such a case the person charged may be convicted of any offence under the Act of which he could be convicted if it were proved that the subject matter of the charge was, in fact, a contraceptive.
Section 11 provides that any person entitled to appeal against a prohibition order under the Censorship of Publications Acts may apply to the Censorship Board for a review of a decision, taken before the passing of the Bill, to ban a book or periodical on the ground that it advocated contraception or abortion. The section provides that the Board shall revoke the ban where satisfied that the book or periodical does not advocate abortion.
Section 15 provides that the Bill does not apply to contraceptives which may lawfully be supplied only on a doctor's prescription.
Sections 12, 13, 14 and 16 provide for repeals and expenses.
This then is the Bill. I look forward to the debate which I hope will take account of the realities of the legal situation consequent on the McGee case. I anticipate criticism of the Bill and will be interested in the views of Deputies who are critical as to how they would improve it. It is a subject which for many imposes conscientious difficulty. All I ask is that Deputies approach it from this point of view and not motivated by political expediency, looking over their shoulders wondering what the constituency will think.