Divorce, Contraception, and Abortion

In the socially conservative climate of Ireland in the 1920s and 1930s the issues of divorce, contraception, and abortion were settled with little controversy and were not to become major issues again until the late 1960s and early 1970s. Abortion was outlawed in Ireland under the Offences against the Persons Act (1861). Legal abortion was introduced in Great Britain in 1967 but was not extended to Northern Ireland owing to the united opposition of church leaders. Under the Criminal Justice (Northern Ireland) Act (1945) anyone attempting to destroy a fetus capable of being born alive was deemed to have committed an offense, but abortion was permitted to save the life of the mother. The advocacy and sale of birth control devices were outlawed in the Irish Free State under the Censorship of Publications Act (1929), and the remaining loopholes regarding the importation of contraceptives were closed under the Criminal Law Amendment Act (1935). Divorce by civil process was available in England from 1857, but extension of this process to Ireland was strongly opposed by both Catholic and Protestant clergy. In the early years of the Irish Free State the introduction of private divorce bills in Dáil Éireann caused alarm and led to the official banning of divorce in 1925. To solidify this position the 1937 Constitution of Ireland included an unequivocal ban on divorce. Northern Ireland continued to receive divorce bills after partition and legislation for divorce was introduced in 1939. Under the Matrimonial Causes (N.I.) Act (1939) divorce was permissible on the grounds of desertion, cruelty, and incurable insanity. It was not until the Matrimonial Causes (N.I.) Order (1978) that the grounds for divorce ceased to be solely offense based.

In Southern Ireland the papal encyclical Casti connubii (On Christian marriage), issued on 31 December 1931, was regarded as the ultimate Catholic guide to the sanctity of marriage and the immorality of birth control. In a state with an overwhelming Roman Catholic majority there was little room for dissent, and in the prevailing social climate people were generally satisfied with the legal restrictions on divorce, contraception, and abortion. Whereas the Irish state's legal position on civil divorce and abortion remained relatively uncontroversial until the early 1980s, the issue of family planning reared its head considerably earlier primarily because of concerns regarding maternal health. In 1963 the pharmaceutical companies were able to introduce the Pill as a "cycle regulator," but it was not advertised as a contraceptive. Nonetheless, it was at a grassroots level that change gradually began, involving key members of the medical profession and concerned volunteers. There was a general sense of optimism among Catholic liberals that the spirit of the Second Vatican Council would translate into some kind of a tacit acceptance of Catholics' right to limit their families by artificial means. The papal encyclical Humane vitae (On human life), which was issued in 1968, was therefore considered a major setback as it reiterated the Roman Catholic Church's opposition to contraception. The archbishop of Dublin, John Charles McQuaid, used the encyclical to institute a ban on contraceptive advice being issued in the Dublin hospitals under his control.

The tide of change, however, was not stemmed. Women began to give sex education talks in some Protestant schools, and the Fertility Guidance Company set up a family-planning clinic in Dublin in 1969. The group of medical volunteers behind this company issued free advice and free contraceptives, circumventing the law by not selling the contraceptives. On 22 May 1971, the Irish Women's Liberation Movement traveled to Belfast on what became known as the "contraceptive train" in order to bring back contraceptives across the border to the Irish Republic, thereby raising public awareness. Meanwhile, a young Catholic lawyer, Senator Mary Robinson (née Bourke) drafted a bill to legalize contraceptives and placed her Criminal Law Amendment Bill before the Senate in March 1971. Both of Robinson's attempts to have her bill ratified failed. In 1973 the Supreme Court's decision to reverse the High Court decision on the McGee case was considered a watershed in the contraception debate. Mrs. McGee claimed that she had attempted to import contraceptives via the post for personal use and her package had been intercepted by customs. She had taken a case against the attorney general, claiming that the Criminal Law Amendment Act (1935) was inconsistent with the section of the 1937 Constitution that vowed to respect the rights of citizens. The Supreme Court's ruling that Mrs. McGee's rights had been interfered with opened the way for Irish citizens to import contraceptives for their own use.

On 13 December 1978 Charles Haughey, the minister for Health in the Fianna Fáil government, introduced a Health (Family Planning) Bill, which allowed contraceptives on prescription to be available to married couples and legalized the importation of contraceptives for sale in chemist shops. This law became operative in 1980, though it remained illegal until 1985 to sell contraceptives to anyone without a medical prescription. Although the attitude to the distribution of condoms became more relaxed in the 1980s because of growing anxiety regarding HIV and AIDS, the Irish Family Planning Association was still fined in 1990 for selling condoms in the Virgin Megastore in Dublin. Department of Health figures released in 1992 revealed that 108 Irish people had died from AIDS. It was the concern regarding sexually transmitted diseases, more than any other issue, that helped to liberalize the access to barrier methods of contraception and contraceptive information.

In Southern Ireland abortion and divorce remained contentious issues well into the 1980s and 1990s. The abortion debate began in earnest in 1981 when antiabortionists, concerned that Europe might impose an abortion law on Ireland, requested a referendum to insert an antiabortion clause in the Irish constitution. Despite an acrimonious national debate the eighth amendment to the constitution was passed by 66.9 percent, with an electoral turnout of only 54.6 percent. In 1989 the Supreme Court ruled in favor of an injunction preventing the publication of phone numbers and addresses of British abortion clinics in student-welfare clinics in Ireland. The official figure for Irish women traveling to Britain for abortion services was 4,000 in 1990, rising to an estimated 6,000 in 1999. The so-called X case brought the issue of Irish women seeking abortions abroad to a head and generated considerable national debate. In 1992 the High Court prevented a pregnant fourteen-year-old girl, the victim of an alleged rape, from traveling to England for an abortion. The Supreme Court overturned the ruling by a four-to-one margin and accepted that abortion was legal in limited cases where there was a real danger that the pregnant woman was suicidal. As a direct result of the X case a referendum was held on 25 November 1992, in which the Irish people voted on the right to abortion information and the right to travel. The voting public affirmed the right to information and travel but rejected the wording for a new amendment allowing abortion in cases of maternal ill health.

In 1997 another case, the C case, once again brought the issue of abortion to the fore. The C case involved a thirteen-year-old girl pregnant as a result of rape. The High Court ruled in this case that, by virtue of the Supreme Court judgment in the 1992 X case, a girl who was suicidal was entitled to an abortion within the Irish state. In September 1999 the Irish government published a Green Paper on abortion. An all-party Oireachtas Committee on the constitution was invited to collect written submissions regarding abortion. On 6 March 2002 the Irish people narrowly defeated a third abortion referendum. The situation remains unresolved.

The issue of civil divorce became increasingly pressing in the 1980s, with mounting statistics of marital breakdown in the Republic of Ireland and growing concerns regarding the legal injustices imposed on the children of subsequent unions. In 1986 there was a referendum to permit divorce in restricted cases, which was rejected by the voters. As a result the Judicial Separation and Family Law Reform Act (1989) was introduced to permit permanent judicial orders of separation and to formalize a custody and property-settlement process for those experiencing marital breakdown. In November 1995 the Irish electorate voted in favor of legal divorce.

SEE ALSO Family: Fertility, Marriage, and the Family since 1950; Gaelic Catholic State, Making of; Secularization; Primary Documents: From the Decision of the Supreme Court in McGee v. the Attorney General and the Revenue Commissioners (1973); On the Family Planning Bill (20 February 1974)

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Lindsey Earner-Byrne