On June 12th 1972, the Government authorised the then Minister for Justice, Mr Desmond O'Malley, to have proposals prepared for legislation, "which would take power to control the importation, sale and distribution of contraceptives".
They were required in the event of a High Court case being decided in favour of the plaintiff. The memorandum was written in anticipation of a court decision in a case being taken by a 27-year-old mother of four, Mrs Mary McGee, against the Attorney General and the Revenue Commissioners. This followed the seizure of a contraceptive device by the Customs, while in transit through the post.
Mrs McGee had sought a declaration from the court that Section 17 of the 1935 Act, which forbade the importation and sale of contraceptives, was invalid and contrary to the Constitution. The authorisation for drawing up proposals was conveyed in a note from the Government Secretary, Dr N.S. Ó Nualláin, and referred to the contents of a memorandum for the Government, dated May 30th, 1972.
There was a history of toxaemia in each of Mrs McGee's four pregnancies, the court was told. During the second, she had suffered a cerebral thrombosis and she and her husband had determined not to have any more children. Mrs McGee had felt it would be unfair to her husband and herself to cease to have sexual intercourse - and they decided on artificial means of contraception.
The president of the High Court, Mr Justice O'Keeffe, in a reserved judgment, dismissed Mrs McGee's case. He awarded costs against her but allowed her a stay of execution in the event of an appeal to the Supreme Court.
His judgement was that Section 17 of the Act did not outlaw the use of contraceptives. It did, however, forbid their sale and importation - and nothing more. "It must, however, be made clear that this does not involve any declaration that legislation cannot be enacted by the Oireachtas, which would have the effect of repealing the section impugned," he noted.
The 1972 "Memorandum for Government" noted in the light of the ongoing litigation: "The Minister for Justice is of the opinion that the Government should now consider the matter again with a view to (a) deciding whether and, if so, how, the law on contraceptives should be changed and (b) announcing their decision."
It added: "He thinks it desirable that an announcement should be made before the High Court has passed judgment in the case currently before it in which the constitutionality of the present law in the matter is being challenged."
On the constitutionality of the section, it said, "the position seems to be more doubtful" and the Minister would consider it prudent to assume that the action would fail. If it failed, the Government would still be free to introduce some amending legislation.
It then made reference to an earlier memorandum, dated April 19th 1971, which recommended a temporising "fall-back" position. This recommended not that a legal right to import contraceptives should be provided, but rather, "there shall be no duty to seize contraceptives if the examining officer of Customs and Excise is of opinion . . . that they are being imported otherwise than for sale or distribution".
That memorandum also agonised over the position of the contraceptive pill, then available in the Republic as a menstrual cycle regulator, but not as a contraceptive.
Prof Joe Lee notes in Ireland: 1912-1985, "some semblance of attempt at legislation" was forced on the Cosgrave-led coalition that took office in 1973 by a Supreme Court ruling in the McGee case in December that year. This declared the ban on the importation of contraceptives under the 1935 Act to be unconstitutional.