‘On the Perimeter of the Lawful’: Enduring Illegality in the Irish Family Planning Movement, 1972–1985

AuthorEmilie Cloatre,Máiréad Enright
Publication Date01 Dec 2017
DOIhttp://doi.org/10.1111/jols.12055
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 4, DECEMBER 2017
ISSN: 0263-323X, pp. 471±500
`On the Perimeter of the Lawful': Enduring Illegality
in the Irish Family Planning Movement, 1972±1985
Emilie Cloatre* and Ma
¨ire
¨ad Enright**
Between 1935 and 1985, Irish law criminalized the sale and importa-
tion of condoms. Activists established illegal markets to challenge the
law and alleviate its social consequences. They distributed condoms
through postal services, shops, stalls, clinics, and machines. Though
they largely operated in the open, their activities attracted little direct
punishment from the state, and they were able to build a stable network
of medical and commercial family planning services. We use 30 inter-
views conducted with former activists to explore this history. In doing
so, we also examine the limits of `illegality' in describing acts of
everyday resistance to law, arguing that the boundaries between legal
and illegal, in the discourses and practices of those who sought to
challenge the state, were shifting and uncertain. In turn, we revisit
`illegality', characterizing it as an assemblage of varying selectively-
performed political practices, shaped by complex choreographies of
negotiation between state and non-state actors.
Between 1935 and 1985, Irish law
1
criminalized the sale and importation of
condoms and other contraceptives. This prohibition was introduced by the
471
*Kent Law School, University of Kent, Canterbury, Kent CT2 7NZ, England
E.Cloatre@kent.ac.uk
** Birmingham Law School, University of Birmingham, Edgbaston,
Birmingham B15 2TT, England
M.Enright@bham.ac.uk
We wish to thank our informants, and those who assisted us in contacting them, and
securing access to archives. We acknowledge funding received from Kent Law School
and the Faculty of Social Sciences, University of Kent. We are grateful to colleagues for
feedback, and to the anonymous reviewers. The title quotation is from speech by DF
(clinic doctor, Dublin) speaking at the opening of a new illegal clinic. This article is
dedicated to the late Dr. John Waldron, formerly of the Galway Family Planning Clinic.
1 In this article, `Irish' and `Ireland' refer to the Republic of Ireland.
This is an open access article under the terms of the Creative Commons Attribution License, which permits use,
distribution and reproduction in any medium, provided the original work is properly cited.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
Criminal Law Amendment Act
2
and reflected an effort on the part of the
fledgling Irish state to enforce Catholic social mores.
3
In the 1970s, activists
began to attack the 1935 ban on sale and importation of contraception. From
1971, liberal lawmakers had been proposing law reform bills in Parliament
with little success.
4
In 1973, in McGee v. AG,
5
a married woman challenged
the seizure of contraceptives which she had imported from England by post,
in violation of the 1935 Act. The Supreme Court accepted that the
prohibition on importation violated the constitutional right to marital
privacy; in the process, it recognized a limited constitutional right to access
contraception, for married couples.
6
However, conservative parliamentarians
ensured that legislation to give effect to this right was slow in coming. This
story of difficult institutional law reform has been told before.
7
However, in
focusing on that story, others are often marginalized. At a time when formal
mechanisms of law reform had either stalled, or were only accessible to
conservative official actors, a network of activists organized to circumvent
the law. Family Planning Services Ltd. (FPS), local family planning clinics,
the Irish Family Planning Association (IFPA), and Well Woman established
illegal markets to challenge the contraceptive ban and alleviate its social
consequences. They imported condoms in bulk, initially distributing them
through postal services and later through shops, stalls, clinics, and machines.
This article tells the story of those networks, and their endurance in
conditions of illegality. As well as contributing to existing scholarship on the
history of contraceptive movements both within and beyond Ireland, it draws
on activists' stories to provide a rich sense of how those working to resist a
law they oppose may experience the `illegality' of their cherished projects.
472
2 Criminal Law Amendment Act 1935, s. 17. The advertising of contraceptives was
also caught by censorship laws; see ss. 16(1) of the Censorship Act 1929 and s. 7
and s. 9(1) of the Censorship of Publications Act 1946. These sections were repealed
by the Health (Family Planning) Act 1979.
3 See, further, U. Crowley and R. Kitchin, `Producing Decent Girls' (2008) 15
Gender, Place and Culture 355; S. McAvoy, `Regulation of Sexuality in the Irish
Free State' in Medicine, Disease and the State in Ireland, 1650±1940, eds. G. Jones
and E. Malcolm (1999) 254; S. McAvoy, `A Perpetual Nightmare: Women, Fertility
Control, the Irish State and the 1935 Ban on Contraceptives' in Gender and
Medicine in Ireland, 1700±1950, ed. M.H. Preston (2012) 197.
4 Mary Robinson and colleagues made seven attempts to introduce a family planning
bill: D. Ferriter, Occasions of Sin: Sex and Society in Modern Ireland (2009) 410.
5McGee v. AG [1974] IR 284. For more detailed commentary on McGee, and
subsequent legislative debates, see M. Enright and E. Cloatre, `Commentary on
McGee and AG' in Northern/Irish Feminist Judgments, eds. M. Enright et. al. (2017)
95.
6McGee struck down s. 17(3) of the legislation, prohibiting importation. However, in
the intervening six years, no law was passed to clarify the position on mass
distribution of contraceptives.
7 See, for example, A. Beatty, `Irish Modernity and the Politics of Contraception,
1979±1993' (2013) 17(3) New Hibernia Rev. 100.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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