In 1979, after a decade of controversy and debate, contraception was legalised in the Republic of Ireland. For the first time since 1935 contraceptives could be imported, distributed and sold there.Footnote 1 This legislation was enacted at a time when many European states had introduced far reaching reforms on matters relating to sexual morality. By the end of the 1960s Britain had decriminalised homosexuality, legalised abortion and liberalised access by unmarried women to contraception.Footnote 2 This had radical consequences for women as, ‘reproduction could be treated as entirely separate from and irrelevant to female sexual pleasure’.Footnote 3 For Ireland, the changes in the Catholic world were of particular significance. France legalised contraception in 1967 and abortion in 1975 (‘loi Veil’). The Italian parliament and electorate endorsed divorce and abortion despite opposition from the Catholic Church and the dominant political party Christian Democracy (Democrazia Cristiana; DC) Party. Here, as in other predominantly Catholic societies, there is evidence for significant change in attitudes on complex moral issues.Footnote 4 In the Netherlands, a conservative moral order was overturned during the 1960s and replaced with a liberal and permissive consensus. Change was driven by de-confessionalisation and secularisation in previously homogeneous Catholic cultures. In Quebec and Flanders church going collapsed and the authority of the church was widely challenged, especially on contraception.Footnote 5
The Irish legislation was not part of this progressive wave of reform. It highlighted Ireland's distance from British and European liberal norms, reinforcing rather than weakening its distinctive moral code. The legislation was restrictive in intention and reflected the continuing influence of the Catholic Church on moral issues. It closely regulated access to all forms of contraceptives, especially condoms, making all devices more expensive.Footnote 6 It is arguable that without the 1973 Irish Supreme Court decision in the McGee case, contraceptives would have remained illegal.Footnote 7 The Minister for Health, Charles J. Haughey maintained that legislation on moral issues should reflect ‘our community, our beliefs, our traditions, our sense of values’. His aim was to set Ireland apart from the sexual revolution taking place in neighbouring states.Footnote 8
Academic discussion of this legislation emphasises the break with the past. Social scientist Chrsytel Hug concluded in her 1999 work on moral politics that ‘the 1979 law will remain, despite its limitations, the first in the socio-moral area to be detached at its basis from the teaching of the Catholic Church’. Even more forcibly, Aiden Beatty insisted in a more recent study that this was ‘the first time that an Irish government had successfully legislated for a more “liberal” vision of sexual practise’.Footnote 9 However, this misreads the legislation and its political outcome. Contraceptives were legalised, but it was not a major turning point in respect of Irish moral politics. The discussions by Hug and Beatty reflect a broader historiographical consensus that the period from the 1960s can be understood in a linear fashion. In these influential accounts the process of change begins in the 1960s, quickly achieves momentum and leads inexorably to the transformation of Irish society by the beginning of the new century. Diarmaid Ferriter argues that the Ireland of the conservative Archbishop of Dublin, John Charles McQuaid, ‘was dead and buried before he vacated his post’ in 1972.Footnote 10 This article maintains that the legislation should not be seen as a turning point or as a liberal point of departure for a progressive future.Footnote 11 On the contrary, not only was McQuaid's Ireland not ‘dead and buried’, its influence was so strong that it undermined successive attempts to introduce reform. When legislation was finally passed in 1979 it reflected the dominant conservative moral values in every way short of prohibition. Moreover, for over a decade after 1979, Ireland continued to diverge from its European neighbours on moral questions. Indeed, as Finola Kennedy has observed, by the end of the 1980s ‘it might even have seemed possible that there was a strengthening of attitudes which coincided with church teaching’.Footnote 12
The emphasis on change has been challenged recently. Elsewhere I have drawn attention to the strength and significance of continuity throughout these decades. Mary Daly has claimed ‘that much of the process of change and modernisation did not happen until the 1980s or perhaps the 1990s, and that as in other aspects of its history, Ireland pursued a sonderweg’.Footnote 13 This article provides additional support for the emphasis on continuity over change during the period from the 1960s to the 1990s. It recognises that change occurred but suggests that this takes place within a political and social context that constrains change in moral and constitutional issues. The campaign to legalise contraception provided an opportunity to assess the nature of change in a controversial policy area and to appreciate the limits and constraint on change. Change in Ireland should not be seen as a first instalment of liberalism or permissiveness but rather as a battlefield between a conservative majority and a liberal minority. Contraception was the most divisive issue in Irish politics during the 1970s. The issue polarised opinion because both sides invoked first principles, making it difficult to find middle ground.Footnote 14 While the consensus on moral issues that had prevailed since the 1920s broke down in acrimony, a new consensus was not established. In contrast with much of Western Europe, a conservative majority imposed its values democratically on the society. Despite this, the controversy also forced the government, electorate and the Catholic Church to reconfigure their relationship and expectations in this new and unstable environment.
The Catholic Moral Order and the Contraceptive Threat
The origins of this controversy can be located in the response of the independent Irish state and the Catholic Church in Ireland to the threat modernity posed to Irish identity, values and morality in the 1920s.Footnote 15 The Irish Free State was established in 1922. After a short and divisive civil war the new government embarked on a state building project that included the imposition of political order and the reinforcement of democratic governance. Political independence provided the opportunity and the means to promote a comprehensive moral order based on Catholic principles. This was justified on majoritarian grounds as the society was overwhelmingly Catholic. The evidence suggests that most Catholics were devout and enthusiastic about their religion.Footnote 16 Moreover, the relationship between church and people was intimate, providing political legitimacy for religious influence.Footnote 17 The aim of this campaign was to demarcate, as far as possible, Irish behaviour and values from those in Britain, which were often represented as ‘godless’ by Irish conservatives.Footnote 18 These included prostitution, sexual crime, censorship of literature (including information on contraception), the prohibition of contraception and divorce as well as severe controls over cinema, dance halls and public houses.Footnote 19
Proximity to Britain facilitated the circulation of newspapers and periodicals which carried advertisements for information on contraception. Individuals could also receive contraceptives from Britain by mail order.Footnote 20 Furthermore, Marie Stopes published Married Love in 1918 (subsequently banned by the Irish censor) and birth control clinics opened in England, Scotland and Wales during the 1920s. The British Ministry of Health issued a circular in 1930 which allowed married women to receive birth control advice on health grounds. While there was no likelihood that Stopes could open a clinic in the Irish Free State she did open one in Belfast in 1936.Footnote 21 There was also some demand for contraceptives and advice on birth control within Ireland, though it is difficult to quantify. The Carrigan Committee was set up in June 1930 to examine issues related to public morality and prostitution. In an unpublished report in 1931 the committee claimed there was widespread use of contraceptives, even in rural areas.Footnote 22 Furthermore, the Anglican Church overturned its opposition to contraception at the 1930 Lambeth Conference, adopting a more tolerant and supportive position for married couples who wished to regulate family size. The Church of Ireland bishops of Cork and Derry had been members of the committee that drafted the Lambeth Conference resolution on contraception. A positive article on the issue was published in the Church of Ireland Gazette.Footnote 23 Irish Protestant couples had 36 per cent fewer children than their Catholic counterparts after five to nine years of marriage, suggesting some regulation of births.Footnote 24
The Lambeth resolution was condemned by the Catholic Church. Pope Pius XI's encyclical Casti Connubi (of chaste wedlock) was a direct rejoinder to this major shift in the Anglican position. One Irish theologian asked if ‘the heads of Irish Protestantism are in harmony with the Catholic bishops’ on this issue, but feared they were not.Footnote 25 In 1931 the Carrigan Committee recommended a ban on contraceptives, ‘except in exceptional circumstances’. Subsequently an all-party committee chaired by the Fianna Fáil Minister for Justice James Geoghegan concluded that a universal ban would undermine patient–doctor confidentiality and interfere with individual conscience.Footnote 26 The Pharmaceutical Society was pressured to alter its rules in respect of contraceptives, declaring that their sale and supply would be unethical. Protestant members of the society quickly fell into line, fearing loss of business if the issue was publicised.Footnote 27
Fianna Fáil introduced legislation that prohibited contraceptives. It initially contained a conscience clause as proposed by the Geoghegan committee. However, the Vice-President of the Executive Council (deputy prime minister), Seán T. O'Kelly, insisted that there should be a universal ban on contraceptives, arguing that ‘no Catholic could permit what was intrinsically wrong no matter how much a person might say that they in their conscience saw no wrong in it’.Footnote 28 A cabinet majority upheld the view that individual conscience and minority rights could not be sustained in the legislative process. O'Kelly subsumed the notion of Catholic and Irish, asserting ‘the practise of contraception is contrary to Catholic doctrine and is abhorrent to the people of Saorstat Eireann’.Footnote 29 What this view and the legislation ignored was the change in Anglican opinion on the matter of contraception and in particular the objections voiced by a number of Protestant members of Dáil Eireann (the Irish parliament).Footnote 30
It is likely that a conscience clause would have been unacceptable to the Catholic Church and Fianna Fáil was anxious not to alienate the bishops. The Fianna Fáil leader Eamon de Valera was a devout Catholic but was not a clericalist. He made a judicious, if cynical, judgment that there was no political advantage to be gained by supporting minority rights in this case. De Valera justified denominational legislation on majoritarian grounds, making the personal judgment to adopt a universal ban. He took a similar position on divorce when drafting the 1937 Constitution, though on other matters he was not prepared to accept Catholic interpretations even when that risked alienating the Pope.Footnote 31 The Criminal Law Amendment Act of 1935 prohibited the importation, sale and distribution of contraceptives. The state vigorously applied the law to outlets within the state and to external sources of information and supply. At the League of Nations Ireland adopted the Vatican's position and actively opposed pro-contraception resolutions there. As late as 1951 the state threatened to withdraw from the World Health Organisation when it adopted a pro-contraception policy.Footnote 32
Ireland was a conservative society but it was also a stable democratic state with universal franchise (which was not the case with Belgium, France or Switzerland).The most appropriate focus for comparison is other democratic states rather than authoritarian or fascist ones. The 1937 Constitution was distinctive in its blend of Catholic, nationalist, liberal and democratic features, which provided the basis for institutionalising majoritarian values.Footnote 33 Mary Daly and Diarmaid Ferriter imply that the Irish prohibition on contraceptives does not depart significantly from the practice of other European democratic states. Senia Paŝeta notes these similarities but also draws attention to differences.Footnote 34 When Ireland is compared with other democratic states during the interwar period the differences on contraception and divorce are most notable. A direct comparison can be made with Belgium and France, but even here the laws were frequently evaded. Moreover, unlike Ireland, condoms were never illegal in France. In the Netherlands, legislation to prohibit contraceptives was opposed by liberals and socialists. Attempts to outlaw birth control movements also failed.Footnote 35 In the case of Sweden and Norway, the 1930s is a period when the laws on contraception are reformed and health considerations become the primary focus of legislation.Footnote 36
The contrast with Britain is particularly revealing. Knowledge of birth control methods was widespread during the interwar period, even though traditional methods such as withdrawal were most commonly used. There may have been low levels of attendance at birth control clinics, as noted by Mary Daly, yet the key point in Britain was that the clinics existed.Footnote 37 There was also political support for birth control advice and methods on health grounds. In Britain, as in Scandinavia, there was disapproval and at times harassment, but traditional objections to contraception were being countered by appeals to secular reasoning and health concerns.Footnote 38 Even in Northern Ireland, possibly the most conservative region of the United Kingdom, contraception was never illegal even if there was disapproval. A birth control movement existed before Stopes opened her clinic. This movement was predominantly Protestant and middle class yet it survived the closure of the Stopes's Mother's Clinic in 1947 and provided the basis for opening the Women's Welfare Clinic in Belfast in 1951. The movement expanded and some thirty-eight clinics were in operation two decades later.Footnote 39
Ireland's distinctive regulation of contraception was maintained into the 1960s. Irish policy and attitudes on this and other moral questions differs significantly from the reforming tendencies that strengthen in Europe and the United Kingdom. Public discussion of birth control remained taboo, and there was widespread self-censorship even among those critical of the censorship laws. Alexander Humphreys researched these issues between 1949 and 1951. He distinguished between spacing births (commonly by abstention) which was supported by those he interviewed and birthcontrol (involving contraception) which his sources assured him was not considered. Nor was the issue treated in any detail by the Commission on Emigration and other Population Problems.Footnote 40 This moral uniformity was not universal and individual couples sought advice and contraceptives from clinics in Belfast and London. The authorities told one author that they were not unduly intrusive in respect of mail from Britain that might contain contraceptives or information. There is also likely to have been some interest in the so-called safe period, particularly after Pope Pius XII endorsed this method in 1951. A survey in 1973 reported that a majority of women interviewed used the safe period as a form of birth control.Footnote 41
The Moral Consensus Unravels
Nor was this moral consensus disrupted by the economic and social crisis that Ireland experienced during the 1950s. The crisis led to a major change in economic policy and the decision to apply for membership of the European Economic Community in 1961. The moral and social teaching of the Catholic Church remained unchallenged and relations between church and state continued to rest on well-established principles. There was widespread support among the public for traditional Catholic teaching on contraception. A survey in Dublin reported that 57 per cent believed that child bearing was the only reason for engaging in sexual activity. Not only did significant majorities endorse church teaching on moral issues, they also expressed strong support for intolerant and theocratic attitudes.Footnote 42
Notwithstanding this continuity, the period after 1959 was different from the preceding period. New attitudes and behaviour appeared and began to be expressed in public more openly. After 1966 confrontation and disruption replaced consensus and uniformity. For the first time, contraception became a major political issue. Proximity to the United Kingdom, developments in the media and the emergence of a new women's movement challenged the consensus. By 1967 an estimated 12,000 Irish women were regularly using oral contraceptives, as German author Heinrich Böll noted with alarm. Irish women had also begun to avail of abortion services in England by the end of the decade.Footnote 43 However, it is possible to exaggerate the extent of change and the levels of support for progressive policies. For example, Fianna Fáil won a decisive victory at the 1969 general election on a defensive and conservative platform by emphasising the need for continuity and stability in the face of disruption and confrontation.
The importation and sale of contraceptives remained illegal throughout the 1960s. When a consignment was impounded in 1965 the company involved protested that doctors had prescribed them for ‘female functional disorders’.Footnote 44 A debate followed among the responsible government departments to determine ‘when is a contraceptive not a contraceptive’. It was agreed that there were circumstances when a contraceptive need not be treated as a contraceptive if prescribed by a doctor for medical reasons. In the course of these discussions the Revenue Commissioners, the government agency responsible for customs and excise, warned that the operation of the Criminal Law Amendment Act, ‘in so far as it relates to the importation of contraceptives, has become increasingly difficult’ to apply.Footnote 45 As a result of this decision, women were in a position to obtain prescriptions from a sympathetic doctor while engaging in the fiction that Ireland had the highest rate of menstrual disorder in the world.
Discussion on controversial issues in the media and on television was widespread. Many believed that the Catholic Church was about to change its position on the issue. In 1967 the Catholic National Maternity Hospital began to prescribe the pill to women whose conscience permitted it. However, this facility was withdrawn after the publication of Humanae Vitae (Of Human Life) in 1968. A 1967 survey of students (lay and clerical) and adult workers attending night classes reported strong support for a reassessment of the church's position on family planning. Moreover, the sample embraced liberal positions on many questions in respect of the church.Footnote 46 The Irish Labour Party passed a motion in favour of legalising contraceptives. This was condemned by one conservative politician as a ‘brazen defiance of Catholic teaching’ and a ‘slap in the teeth’ for the Pope.Footnote 47 The first family planning clinic was opened in Dublin in 1969 by contraceptive activists and a review of the situation in early 1970 concluded that the pill was now widely available on prescription despite the law.Footnote 48
How are these changes to be explained? A small but increasingly liberal movement emerged during the 1950s and increasingly challenged authoritarian and intolerant aspects of Irish society. Furthermore, those born after 1945 held decidedly more liberal views than those born before that date. This tendency is reinforced by education and by place of residence.Footnote 49 The Taoiseach Seán Lemass was deeply influenced by the discussions on religious freedom during the Second Vatican Council, 1962–1965. He established an all-party committee on the constitution to explore the possibility of change. The committee was particularly concerned with the rights of minorities within predominantly Catholic societies, recommending a radical change in divorce legislation based on these assumptions. While the Committee's report was rejected by the Catholic bishops, it marked an important shift away from the majoritarianism that had previously characterised public opinion. The civil rights movement in Northern Ireland drew attention to the rights of minorities within dominant ethno-religious regions and Irish liberals applied these arguments to contraception, divorce and education in the south.Footnote 50
Many Catholics were disappointed with the condemnation of artificial contraceptives by Pope Paul VI in the encyclical Humanae Vitae in July 1968. In Ireland, the Catholic bishops highlighted the authoritative nature of the decision, emphasising that there could be no ‘compromise on principle’. This issue undermined for the first time the moral uniformity that had characterised Ireland since independence. The question became a touchstone for many Catholics who would not accept the church's authority uncritically, favouring a more open and pluralistic society.Footnote 51 While conservatives welcomed Humanae Vitae as an opportunity to reassert traditional teaching, they also recognised that the Second Vatican Council had provided legitimacy for liberalism among Irish Catholics. Cardinal William Conway identified Garret FitzGerald as a key figure among these liberal Catholics.Footnote 52 An even more threatening figure was Mary Robinson (née Bourke) who was the first Catholic elected to the Irish Senate by the graduates of Trinity College Dublin. Robinson expressed strong liberal and feminist views, arguing that ‘the law should not be used to uphold or enforce beliefs of any particular Church in a democratic society’. She also became the public face of contraception when, along with fellow senators John Horgan and Trevor West, she introduced a bill to amend the legislation prohibiting contraception. Vital support for Robinson's initiative was provided by the General Synod of the Church of Ireland which unanimously supported a motion to amend the legislation.Footnote 53
Contraception Becomes a Divisive Issue
The bill placed the government on the defensive. The Taoiseach Jack Lynch, (leader of Fianna Fáil) was never prepared to act decisively on this issue. He acknowledged ‘that while the matter was important in its own right, it was not the most pressing problem to be considered’.Footnote 54 The Taoiseach's office denied in 1972 that its attitude to divorce or contraception was ‘determined by the official teaching of any religion’.Footnote 55 This claim may have been true in the sense that Ireland was not and never had been a theocracy. However, such a claim ignores the powerful and subtle influence of Catholicism on government and the political parties.
The Robinson bill exposed the difficulties that a government in a predominantly Catholic state faced when demands for change were made in respect of moral questions. The Irish hierarchy argued that legislation should reflect the wishes of the electorate and ‘the Bishops confidently hope that the legislators themselves will respect this important principle’. Moreover, appeals to pluralism and civil liberties were rejected as elitist. Cardinal Conway argued that recent moral changes in Britain had been driven by unrepresentative elites. He hoped that this would not happen in Ireland.Footnote 56 However, events moved rapidly over the course of 1971. The main opposition party, Fine Gael, agreed to support a moderate reform that would take ‘account of the requirements of public morality’, while many Labour Party TDs actively promoted a change in the law. More dramatically, members of the Irish Women's Liberation Movement defied the law by bringing contractive into the state on the train from Belfast.Footnote 57 At the same time, Senator Robinson represented Mrs Mary McGee in a legal challenge against the Revenue Commissioners, who had confiscated spermicidal jelly she was importing.Footnote 58
Lynch's caution was certainly warranted. Members of the public writing to his department expressed anger and dismay at the prospect of change. He also led a party that was conservative on moral and constitutional questions. Lynch was surprised by the extent of opposition within the parliamentary party following the Bishops’ March statement.Footnote 59 A 1971 survey reported that a clear majority opposed changing the law. Support for legalisation came from middle class men and those living in Dublin, while most other categories opposed change. Half of those surveyed believed that if contraceptives were sold in Ireland, the condition of family life would deteriorate. Furthermore, nearly three quarters would vote against any proposal to make divorce available in Ireland.Footnote 60 In contrast with Western European trends, Ireland remained a religious and conservative society during the 1970s. In 1971 over 98 per cent said they were religious and at the 1981 census, just 1 per cent reported having no religion. Churchgoing remained remarkably high with over 90 per cent of Catholics attending mass at least once a week in 1974; by 1990 the figure was still 85 per cent.Footnote 61 A survey in 1981 reported that it was the least permissive among the nine Western European states studied, especially in respect of abortion and divorce.Footnote 62 These features of Irish society help to explain why Robinson's reform bill was overwhelmingly defeated in a hostile Senate.Footnote 63
The Minister for Justice, Desmond O'Malley, initially hoped to avoid controversy by appointing a specialist committee to make recommendations. He recognised that this would not be acceptable to either side of what had become an acrimonious public debate. O'Malley then considered introducing legislation which would be moderate and a ‘reasonable compromise’.Footnote 64 His departmental secretary Andy Ward questioned whether policy should be changed, when the majority opposed such a move. After further consideration O'Malley conceded that he could not devise a suitable legal framework that would not lead to the permissive society. His main concern was to prevent contraceptives becoming available to young unmarried persons. He feared that even the most limited change would lead inexorably to widespread availability and permissiveness. The issue remained a moral and a legal question rather than a health matter. O'Malley's thinking was influenced by the bishops’ March 1971 statement and the longest section of his memorandum for government in April 1971 is a detailed and sympathetic engagement with their position. Nor were these considerations prompted by direct representations from individual bishops or the Catholic hierarchy. Departmental officials explicitly denied that such representations were made by the bishops between 1969 and 1973.Footnote 65
The evidence from the departmental files of the Ministry of Justice suggests that the policy options were constructed within a Catholic natural law framework. O'Malley and his officials explicitly drew on Catholic natural law theory in evaluating the issue. O'Malley was critical of those promoting contraception, arguing that they did not appreciate the consequences of such a change for state and society. The ‘real issue’ for him was whether ‘the availability of contraceptives would lead to a significant increase in immorality, i.e. immorality which would not occur were contraceptives not available’. He believed that Ireland was becoming increasingly immoral and permissive and that such developments posed ‘a grave danger of either a moral breakdown or serious damage to mental health’. This pessimism led him to reject change on grounds of individual conscience. Invoking natural law and the Irish constitution, he drew a distinction between the freedom to practise a religion and the right to act in a specific way based on conscientious considerations. He warned his colleagues that if a human rights perspective was adopted then pornography, the use of addictive drugs and divorce would have to be accepted. While recognising that a case could be made for married couples to have access to contraceptives, he was not prepared to do so because of the consequences for the young and unmarried. The cabinet agreed with O'Malley that no action be taken and the government opposed Robinson's bill in the Seanad.Footnote 66
When O'Malley returned to the question in 1972, Ward suggested that it would be difficult to legislate if the High Court concluded that ‘there was nothing in the Constitution requiring the change to be made’. However, O'Malley seems to have changed his mind. He now grappled with the issue of regulation and control, concluding that all contraceptives should be available on prescription only. This would provide the state with legal authority to determine under what circumstances contraceptives would be available. Despite this, O'Malley remained doubtful that such a change would be acceptable to public opinion.Footnote 67 The High Court rejected McGee's case in July 1972 and she appealed to the Supreme Court. Surprisingly, O'Malley continued to draft legislation, suggesting that he, at least, was prepared to bring proposals to the cabinet. There was some support among his colleagues for reform, but it is questionable if the political conditions existed in the party or the electorate for such a change.Footnote 68
Fianna Fáil lost the general election in February 1972 and was replaced by a Fine Gael–Labour Party coalition government led by Liam Cosgrave. The new government was committed to social reform but contraception was not a priority. This government was more liberal on social matters than its predecessor and Garret FitzGerald the Minister for Foreign Affairs was committed to reforming the laws on divorce, contraception and education to make the Republic more attractive to unionists in Northern Ireland. He approached the Vatican hoping to receive their ‘constructive co-operation’, which was not forthcoming.Footnote 69
The Devil is in the Detail: Continuing Obstacles to Legislation
Despite the presence of liberals in the government, it is unlikely that action would have been taken without the Supreme Court's decision in late 1973 that Mrs McGee's right to privacy had been infringed. Though the decision continued to reflect natural law theory as the basis of constitutional interpretation, it challenged the government's reluctance to legislate.Footnote 70 The balance of opinion within the government remained conservative but, unlike Fianna Fáil, open to change. The cabinet agreed that any legislation should restrict access to married couples.Footnote 71 The Catholic bishops issued a critical statement in November 1973 but entered the important caveat that legislators’ could, in conscience, vote for a law opposed by the church. This was a complex but subtle shift by the bishops, but not significantly different from views expressed by Catholic bishops in Belgium, the Netherlands or Quebec. They continued to oppose legalisation, warning that the consequences would be negative. What was not clear was how politicians would vote if the church remained opposed to legalisation.
Public opinion had shifted since 1971. A 1974 survey reported that 42 per cent supported legalising contraceptives for married couples only. A further 16 per cent favoured no restrictions. Fully a third opposed legalisation on any grounds. Opposition was stronger in rural areas, among older age groups and in farming communities. Support was considerably stronger among those who were not Catholics and representatives of various non-Catholic denominations provided public support for a change in the law.Footnote 72 Fianna Fáil opposed the legislation, imposing the party whip. The government permitted a free vote, but Minister for Posts and Telegraphs, Conor Cruise O'Brien, warned the Taoiseach that divisions on the issue would undermine confidence in the government.Footnote 73
His fears were realised when the Taoiseach, the Minister for Education and five other Fine Gael members of Irish parliament (Teachtai Dála; TDs) voted against the government's legislation ensuring its defeat. One British diplomat condescendingly wrote to London:
By acting more like a loyal Catholic peasant than the Prime Minister of a Government which claims to be secular, Mr Cosgrave has flown in the face of colleagues who had hoped, by passing the Bill, to add some real substance to the removal from the Constitution of the special position of the Catholic Church.
This report failed to fully appreciate the complex nature of the decision. Cruise O'Brien defended Cosgrave on the grounds that if he had revealed his position in advance many other TDs might have voted against the legislation.Footnote 74 It also failed to understand the continuing robust identification with Catholic moral values on the part of leading politicians. Cosgrave was prepared to put the stability of his government in jeopardy because of his religious beliefs. What is more significant is the number of practising Catholics who voted in favour of changing the law despite intensive lobbying from anti-contraceptive activists in their constituencies. Furthermore, a majority of Fine Gael and Labour TDs continued to support reform in the area. However, Fianna Fáil refused to consider any compromise during the life of the coalition government.Footnote 75
Consequently, the main obstacle to reform was Fianna Fáil and its conservative electorate. Members of the party were often fearful of clerical criticism. However, a more important obstacle was principled opposition to legalisation on moral grounds. The Supreme Court decision in the McGee case effectively undermined the existing regulatory regime and contraceptives were widely available.Footnote 76 The Taoiseach Jack Lynch informed correspondents that legislation was necessary to restrict access to contraceptives so that young unmarried people could not obtain them.Footnote 77 The policy choices available to Fianna Fáil were not significantly different from those they unanimously opposed in 1974. Nor had public opinion changed appreciably between 1974 and 1977. Approximately 43 per cent supported access to contraceptives for marrieds only, but fully a third continued to oppose legalisation.Footnote 78 Lynch insisted that the court's decision could not be set aside and legislation was necessary to regulate an unsatisfactory and ‘permissive’ situation.Footnote 79 Support also came from an unlikely source when the Catholic hierarchy acknowledged that ‘the present legal situation is unsatisfactory’ and ‘minimum amending legislation was required’. Though the bishops had not changed their opposition to contraception, they were not prepared to challenge the constitutional basis of the court's decision.Footnote 80
In an important change, responsibility for the issue was transferred from Justice to the Department of Health.Footnote 81 The new Minister Charles J. Haughey identified family planning as a health issue, while emphasising that family planning services could be supplied without ‘providing facilities for certain ways of preventing births’. Policy, however, remained focused on control and regulation rather than health considerations. Sensitive to the conservative mood in his party, Haughey rejected a situation which ‘would mean that there would be no control on the sales of condoms to the public’, arguing that this would be politically unacceptable. He proposed that ‘the restriction of the supply of all forms of contraceptives to pharmacists and health boards would limit the availability of these devices and would be desirable on general grounds of public morality’. From the outset Haughey set himself against a liberal policy, seeking to restrict availability and limit access.Footnote 82
Though conservative, Haughey was committed to legislation. He showed little patience with traditionalist Catholic interest groups who demanded a return to the status quo ante. His meeting with the Irish Family Planning Association (IFPA) was far more positive. While the IFPA wanted a liberal regime, the Minister welcomed their input and discussed alternatives with them.Footnote 83 His strategy was to consult widely before introducing legislation. By way of contrast, there is no record that the Department of Justice engaged in consultation when it formulated contraceptive policy. He received conditional support for change from the Church of Ireland, while the Presbyterian and Methodist churches also recommended change. The Irish Chief Rabbi advanced an even more liberal position on contraception and abortion. The Irish Council of Churches advocated change on pluralist grounds.Footnote 84
The Irish Medical Association provided support for change but told the Minister that doctors ‘would not accept the role as arbiters of moral conscience’.Footnote 85 The Irish Nurses Organisation, however, wanted very restrictive legislation, urging the Minister to pursue an active policy of support for family planning methods acceptable to the Catholic Church. Haughey informed one delegation that, ‘his general approach would be that natural methods should have at least as much prominence as artificial methods and he was prepared to assist financially’.Footnote 86 Haughey also met representatives of the Health Boards to discuss the thorny question of their future role in the area of family planning. There was no common ground among the boards and though all were prepared to provide some form of family planning not all of them were in favour of including contraceptives under that remit. While most were cautious, two boards favoured providing a comprehensive service that would include contraceptives.Footnote 87
The Bishops and the Minister Agree
The main obstacle to legislation remained the Catholic hierarchy. Haughey recognised that any legislation had to disarm opposition within his own party and prevent an open breach with the bishops. The bishops issued another statement in March 1978, which maintained their principled opposition to contraception. They questioned whether contraception should be a ‘normal part of the health services’ as no health problem was involved. However, the bishops added a significant clarification: ‘we do not hold that the moral laws of the Church, merely because they are the laws of the Church, should be enforced by the State’. Some officials considered that this involved a change of tactics, but it was an important one. Politically, the sentence provided a defence for politicians who feared public criticism by the church if they voted in favour of change.Footnote 88
The Catholic hierarchy recognised that the government would legislate, while maintaining that there was no widespread demand for change. They insisted that legislation should be kept to ‘a minimum and above all of a restrictive kind’. The bishops asked politicians who were Catholic to consider ‘whether a change in the present legal position with regard to contraceptives can be expected to improve the present position, or on the contrary worsen it’. Yet, Bishop Cahal Daly told Haughey that, ‘it is not within the competence of the Bishops to decide whether there should be legislation or what it should contain’. Nevertheless, the bishops emphasised the need to privilege ‘natural family planning’ and provide financial support for this method. Health Boards should not provide a comprehensive contraceptive service as this would legitimise usage in ‘provincial areas, where there has been no demand for them in public opinion’. The bishops sought assurances that intrauterine devices would not be available and that advertising and sterilisation would be strictly controlled. They expressed concern that the legislation would undermine the official support provided for the family in Article 41 of the Constitution. The bishops were equally concerned that a clear distinction be drawn in the legislation between married and unmarried persons, acknowledging that ‘the social consequences of contraception within marriage are at least less immediate and less obvious than its consequences outside of marriage and for young people’.Footnote 89
Haughey might be forgiven for concluding that the bishops gave him relatively little room to manoeuvre, though he told them that he had read their statements with ‘great care and respect’. He assured them that legislation would not ease the existing ‘general condemnation of abortion contained in the present law’. He quickly conceded that ‘apart from moral issues, it is my conviction that natural methods are far preferable from the point of view of the individual and the individual's health than artificial methods’. Haughey likewise was impressed by the bishops’ position on advertising and would prohibit advertising in public or through the post. However, the major stumbling block was how restrictive the legislation would be. The minister recognised that restricting access to married couples might be best but that any legislation might be unenforceable, commenting ‘I am not sure that, from your point of view, a provision on this aspect of the matter which encouraged deceit by purveyors or purchasers of contraceptives might not find acceptance’. He added that his mind was not made up and he would listen carefully to the suggestions made in the discussion.
Bishop Cathal Daly reiterated that the bishops were concerned with the social consequences of legislation on the ‘moral environment’. Their emphasis was on the restrictive nature of the outlets available for contraceptives and Bishop Daly wanted all personnel involved in family planning to be trained in natural methods. The bishops argued that natural family planning was suitable for married couples and those in long term relationships, but not for young people and those involved in casual contacts. When asked by the minister if it would be preferable for a woman who had decided to pursue ‘a certain lifestyle’ to have access to contraceptives and avoid having an abortion if she became pregnant, Bishop Daly replied that they were opposed in principle to single people having access to contraceptives. He insisted that restrictions were necessary for symbolic reasons, ‘the incorporation of restrictions in legislation is not pointless. It indicates the legislative intent and the State's commitment’. The bishops rejected Haughey's suggestion that an age limit be imposed rather than restricting access to married couples. This remained the main point of disagreement between them. They were critical of the IFPA, suggesting that its views were at odds with those of the majority of Irish people whether Catholic or Protestant. The bishops left Haughey and his staff in little doubt that only minimalist legislation to give effect to the Supreme Court decision would be acceptable to them.Footnote 90
By August 1978 Haughey was confident that he could legislate successfully and subsequently circulated a memorandum to the government.Footnote 91 Haughey told his colleagues that his proposals reflected the majority view among those consulted that ‘any legislation to be introduced should provide for a more restrictive situation in relation to the availability of contraceptives than that which exists at present’. Diarmaid Ferriter has suggested that Haughey was not ‘in the pocket of the bishops’ and while this is persuasive it does not do justice to the complexity of the situation. Haughey actively adopted the bishops’ position and the legislation closely reflected their position.Footnote 92 He addressed their concerns in relation to the young and unmarried, advertising and on prescribing condoms. He also provided state finance for research and training in natural family planning. In only one case was Haughey unable to include a recommendation from the bishops. While an early draft restricted access ‘primarily to married couples’, married was subsequently replaced by the term ‘bona fide’ couples. Haughey explained to critics that the inclusion of the term marriage in the legislation raised a ‘difficult legal problem’ that could not be easily addressed. The use of ‘bona-fide’ was an effort to resolve this difficulty.Footnote 93
Haughey successfully piloted the legislation through the Dáil. However, there was considerable unease within Fianna Fáil. The Minister for Agriculture, Jim Gibbons, threatened to resign when the legislation was discussed in cabinet. The Taoiseach agreed to permit Gibbons and two other deputies to abstain on the legislation. Lynch ‘decided not to insist that he should vote for the bill’, an unprecedented decision for such a tightly disciplined party.Footnote 94 Politically, Haughey probably got the balance right and successfully opposed attempts to amend the legislation. He maintained that his commitment to natural methods was based on the recognition that ‘a very large sector, probably a majority wanted natural family planning’. In notes prepared for a parliamentary response to Dr Noël Browne, the most persistent critic of the legislation, he maintained ‘it was necessary to oppose Dr Browne's amendments to this section. It is because of the importance of this provision for all of those who feel they must rely on natural methods of family planning that it is imperative to retain the relevant section’.Footnote 95
Nor were these commitments cosmetic. Haughey continued to maintain the importance of natural family planning after becoming Taoiseach in 1979. The Irish delegation to the World Health Assembly in Geneva in 1980 provided strong support for natural methods.Footnote 96 Despite this, the Department of Health retained a good working relationship with the IFPA notwithstanding clerical hostility.Footnote 97 The legislation came into operation on 1 November 1980. Officials noted that ‘the demand from pharmacists for contraceptives was greatly in excess of the requirements they had indicated some six weeks before the Act was brought into operation’.Footnote 98
Conclusion
Though contraceptives were legalised in Ireland in 1979, this was not a turning point in respect of change on moral issues. In a comparative European context, Ireland changed least when measured in terms of progressive policy making or permissive attitudes between the 1960s and early 1990s. I argue that the policy options available in Ireland remained conservative in respect of moral and constitutional issues despite this legislation. There was little support in government or in the Department of Health for policies that empowered the young or unmarried in developing a sexuality based on individual need rather than reproduction. While sexual behaviour changed during the 1960s and 1970s, this was not recognised in legislation until the 1990s. What did change was that the traditional consensus on moral questions broke down and these issues became politically controversial.Footnote 99
The legislation is best explained as a conservative attempt to contain the unwelcome consequences of a Supreme Court decision which could not be overturned. John Whyte concluded that the issue was resolved ‘without a confrontation between church and state’.Footnote 100 While this is true, Whyte misses its significance. The records of negotiations between Haughey and the hierarchy confirm that he conceded every demand made by the bishops. The only exception to this was the proposal to restrict availability to married couples, but this was due to legal and constitutional constraints rather than disagreement with the bishops. Moreover, while Haughey consulted widely, the legislation only included suggestions from individuals and groups that shared the bishops’ position. The hierarchy proved to be far more aggressive in confronting successive governments during the 1980s when their position was not taken into account. The hierarchy's legitimacy remained intact into the 1990s and the Catholic Church continued to exercise power and influence to maintain is denominational position.Footnote 101
This controversy also revealed a new division in Irish politics. Fianna Fáil now occupied the conservative end of the spectrum and its supporters provided crucial opposition to liberal reform throughout the 1980s. Liberals were concentrated in the Labour Party and in other small left-wing parties. Fine Gael straddled the centre ground and its supporters divided fairly equally between liberalism and conservatism. This political division on moral and constitutional issues had not existed in 1966. This conservative majority was composed of Fianna Fáil supporters, the urban working class, rural inhabitants and women, dominating debates on moral issues throughout the 1980s. The legislation generated a Catholic grassroots movement to oppose further liberalisation and to defend traditional Catholic values. The organisers of this movement were motivated by a fear that parliament or the courts would defy majority opinion on moral issues.Footnote 102 Their greatest success was the ratification of an anti-abortion constitutional amendment in 1983 and the defeat of a proposal to remove the constitutional prohibition on divorce in 1986. In both cases two thirds of those who voted supported the conservative option.Footnote 103 This group maintained the superiority of Catholic values over liberal and pluralist ones. The latter were dismissed as unrepresentative if not foreign. Cultural defence was central to this campaign and their ideology continued to reflect what Paŝeta has described as ‘a form of citizenship in which active endorsement of, and adherence to, Catholic doctrine was implied’.Footnote 104
However, the conservative majority was not a monolith. In certain circumstances a moderate liberal majority could be mobilised. Consensus was achieved on reforming the legal position of children born outside of marriage. A Fine Gael–Labour coalition government amended the Haughey bill in 1985 in the face of fierce opposition from Fianna Fáil, the Catholic Church and lay activists. In contrast to Haughey, Barry Desmond, the Minister for Health, did not consult with the bishops when drawing up the legislation.Footnote 105 A case can be made that this was the first turning point in respect of moral issues and sexuality, but it was an isolated one. Liberal influence remained weak on issues such as abortion, divorce and homosexuality. It would take another Supreme Court decision in the ‘X’ case in 1992 to provide the political means to challenge the conservative majority on moral issues.
