These are appeals from a decision of the Supreme Court of Errors
of Connecticut affirming dismissals of complaints in three cases in
which the plaintiffs sued for declaratory judgments that certain
Connecticut statutes which prohibit the use of contraceptive
devices and the giving of medical advice on their use violate the
Fourteenth Amendment by depriving the plaintiffs of life and
property without due process of law. The complaints alleged that
two plaintiffs who were married women needed medical advice on the
use of such devices for the protection of their health, but that a
physician, who was the plaintiff in the third case, was deterred
from giving such advice because the State's Attorney intended to
prosecute offenses against the State's laws and he claimed that the
giving of such advice and the use of such devices were forbidden by
state statutes. However, it appeared that the statutes in question
had been enacted in 1879, and that no one ever had been prosecuted
thereunder except two doctors and a nurse, who were charged with
operating a birth control clinic, and that the information against
them had been dismissed after the State Supreme Court had sustained
the legislation in 1940 on an appeal from a demurrer to the
information.
Held: The appeals are dismissed, because the records in
these cases do not present controversies justifying the
adjudication of a constitutional issue. Pp.
367 U. S.
498-509.
147 Conn. 48,156 A.2d 508, appeal dismissed.
Page 367 U. S. 498
MR. JUSTICE FRANKFURTER announced the judgment of the Court and
an opinion in which THE CHIEF JUSTICE, MR. JUSTICE CLARK and MR.
JUSTICE WHITTAKER join.
These appeals challenge the constitutionality, under the
Fourteenth Amendment, of Connecticut statutes which, as
authoritatively construed by the Connecticut Supreme Court of
Errors, prohibit the use of contraceptive devices and the giving of
medical advice in the use of such devices. In proceedings seeking
declarations of law, not on review of convictions for violation of
the statutes, that court has ruled that these statutes would be
applicable in the case of married couples and even under claim that
conception would constitute a serious threat to the health or life
of the female spouse.
No. 60 combines two actions brought in a Connecticut Superior
Court for declaratory relief. The complaint in the first alleges
that the plaintiffs, Paul and Pauline Poe, [
Footnote 1] are a husband and wife, thirty and
twenty-six years old respectively, who live together and have no
children. Mrs. Poe has had three consecutive pregnancies
terminating in infants with multiple congenital abnormalities from
which each died shortly after birth. Plaintiffs have consulted Dr.
Buxton, an obstetrician and gynecologist of eminence, and it is Dr.
Buxton's opinion that the cause of the infants' abnormalities is
genetic, although the
Page 367 U. S. 499
underlying "mechanism" is unclear. In view of the great
emotional stress already suffered by plaintiffs, the probable
consequence of another pregnancy is psychological strain extremely
disturbing to the physical and mental health of both husband and
wife. Plaintiffs know that it is Dr. Buxton's opinion that the best
and safest medical treatment which could be prescribed for their
situation is advice in methods of preventing conception. Dr. Buxton
knows of drugs, medicinal articles, and instruments which can be
safely used to effect contraception. Medically, the use of these
devices is indicated as the best and safest preventive measure
necessary for the protection of plaintiffs' health. Plaintiffs,
however, have been unable to obtain this information for the sole
reason that its delivery and use may or will be claimed by the
defendant State's Attorney (appellee in this Court) to constitute
offenses against Connecticut law. The State's Attorney intends to
prosecute offenses against the State's laws, and claims that the
giving of contraceptive advice and the use of contraceptive devices
would be offenses forbidden by Conn.Gen.Stat.Rev.1958, §§ 53-32 and
54-196. [
Footnote 2]
Page 367 U. S. 500
Alleging irreparable injury and a substantial uncertainty of
legal relations (a local procedural requisite for a declaration),
plaintiffs ask a declaratory judgment that §§ 53-32 and 54-196 are
unconstitutional, in that they deprive the plaintiffs of life and
liberty without due process of law.
The second action in No. 60 is brought by Jane Doe, a
twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with
her husband; they have no children; Mrs. Doe recently underwent a
pregnancy which induced in her a critical physical illness -- two
weeks' unconsciousness and a total of nine weeks' acute sickness
which left her with partial paralysis, marked impairment of speech,
and emotional instability. Another pregnancy would be exceedingly
perilous to her life. She too has consulted Dr. Buxton, who
believes that the best and safest treatment for her is
contraceptive advice. The remaining allegations of Mrs. Doe's
complaint, and the relief sought, are similar to those in the case
of Mr. and Mrs. Poe.
In No. 61, also a declaratory judgment action, Dr. Buxton is the
plaintiff. Setting forth facts identical to those alleged by Jane
Doe, he asks that the Connecticut statutes prohibiting his giving
of contraceptive advice to Mrs. Doe be adjudged unconstitutional,
as depriving him of liberty and property without due process.
In all three actions, demurrers were advanced,
inter
alia, on the ground that the statutes attacked had been
previously construed and sustained by the Supreme Court of Errors
of Connecticut, and thus there did not exist the uncertainty of
legal relations requisite to maintain suits for declaratory
judgment. While the Connecticut Supreme Court of Errors, in
sustaining the demurrers, referred to this local procedural ground,
relying on
State v. Nelson, 126 Conn. 412, 11 A.2d 856,
and
Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582,
appeal dismissed, 318 U. S. 44, we
cannot say that its decision rested on it. 147 Conn.
Page 367 U. S. 501
48, 156 A.2d 508. We noted probable jurisdiction. 362 U.S.
987.
Appellants' complaints in these declaratory judgment proceedings
do not clearly, and certainly do not in terms, allege that appellee
Ullman threatens to prosecute them for use of, or for giving advice
concerning, contraceptive devices. The allegations are merely that,
in the course of his public duty, he intends to prosecute any
offenses against Connecticut law, and that he claims that use of
and advice concerning contraceptives would constitute offenses. The
lack of immediacy of the threat described by these allegations
might alone raise serious questions of nonjusticiability of
appellants' claims.
See United Public Workers v. Mitchell,
330 U. S. 75,
330 U.S. 88. But even were
we to read the allegations to convey a clear threat of imminent
prosecutions, we are not bound to accept as true all that is
alleged on the face of the complaint and admitted, technically, by
demurrer, any more than the Court is bound by stipulation of the
parties.
Swift & Co. v. Hocking Valley R. Co.,
243 U. S. 281,
243 U. S. 289.
Formal agreement between parties that collides with plausibility is
too fragile a foundation for indulging in constitutional
adjudication.
The Connecticut law prohibiting the use of contraceptives has
been on the State's books since 1879. Conn.Acts 1879, c. 78. During
the more than three-quarters of a century since its enactment, a
prosecution for its violation seems never to have been initiated,
save in
State v. Nelson, 126 Conn. 412, 11 A.2d 856. The
circumstances of that case, decided in 1940, only prove the
abstract character of what is before us. There, a test case was
brought to determine the constitutionality of the Act as applied
against two doctors and a nurse who had allegedly disseminated
contraceptive information. After the Supreme Court of Errors
sustained the legislation on appeal from a demurrer to the
information, the State
Page 367 U. S. 502
moved to dismiss the information. Neither counsel nor our own
researches have discovered any other attempt to enforce the
prohibition of distribution or use of contraceptive devices by
criminal process. [
Footnote 3]
The unreality of these law suits is illumined by another
circumstance. We were advised by counsel for appellants that
contraceptives are commonly and notoriously sold in Connecticut
drugstores. [
Footnote 4] Yet no
prosecutions are recorded, and certainly such ubiquitous, open,
public sales would mere quickly invite the attention of enforcement
officials than the conduct in which the present appellants wish to
engage -- the giving of private medical advice by a doctor to his
individual patients, and their private use of the devices
prescribed. The undeviating policy of nullification by Connecticut
of its anti-contraceptive laws throughout all the long years that
they have been on the statute books bespeaks more than
prosecutorial paralysis. What was said in another context is
relevant here. "Deeply embedded traditional ways of carrying out
state policy . . . " -- or not carrying it out -- "are often
tougher and truer law than the dead words of the written text."
Nashville, C. & St.L. R. Co. v. Browning, 310 U.
S. 362,
310 U. S.
369.
The restriction of our jurisdiction to cases and controversies
within the meaning of Article III of the Constitution,
see
Muskrat v. United States, 219 U. S. 346, is
not the sole limitation on the exercise of our appellate powers,
especially in cases raising constitutional questions.
Page 367 U. S. 503
The policy reflected in numerous cases and over a long period
was thus summarized in the oft-quoted statement of Mr. Justice
Brandeis:
"The Court [has] developed, for its own governance in the cases
confessedly within its jurisdiction, a series of rules under which
it has avoided passing upon a large part of all the constitutional
questions pressed upon it for decision."
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S. 341,
297 U. S. 346
(concurring opinion). In part, the rules summarized in the
Ashwander opinion have derived from the historically
defined, limited nature and function of courts and from the
recognition that, within the framework of our adversary system, the
adjudicatory process is most securely founded when it is exercised
under the impact of a lively conflict between antagonistic demands,
actively pressed, which make resolution of the controverted issue a
practical necessity.
See Little v. Bowers, 134 U.
S. 547,
134 U. S. 558;
California v. San Pablo & Tulare R. Co., 149 U.
S. 308,
149 U. S. 314;
United States v. Fruehauf, 365 U.
S. 146,
365 U. S. 157.
In part, they derive from the fundamental federal and tripartite
character of our National Government and from the role --
restricted by its very responsibility -- of the federal courts, and
particularly this Court, within that structure.
See the
Note to
Hayburn's Case,
2 Dall. 409;
Massachusetts v. Mellon, 262 U.
S. 447,
262 U. S.
488-489;
Watson v. Buck, 313 U.
S. 387,
313 U. S.
400-403;
Alabama State Federation of Labor v.
McAdory, 325 U. S. 450,
325 U. S.
471.
These considerations press with special urgency in cases
challenging legislative action or state judicial action as
repugnant to the Constitution.
"The best teaching of this Court's experience admonishes us not
to entertain constitutional questions in advance of the strictest
necessity."
Parker v. County of Los Angeles, 338 U.
S. 327,
338 U. S. 333.
See also Liverpool, N.Y. & P.S.S. Co. v.
Commissioners, 113 U. S. 33,
113 U. S. 39.
The various doctrines of "standing," [
Footnote 5]
Page 367 U. S. 504
"ripeness," [
Footnote 6] and
"mootness," [
Footnote 7] which
this Court has evolved with particular, though not exclusive,
reference to such cases are but several manifestations -- each
having its own "varied application" [
Footnote 8] -- of the primary conception that federal
judicial power is to be exercised to strike down legislation,
whether state or federal, only at the instance of one who is
himself immediately harmed, or immediately threatened with harm, by
the challenged action.
Stearns v. Wood, 236 U. S.
75;
Texas v. Interstate Commerce Comm'n,
258 U. S. 158;
United Public Workers v. Mitchell, 330 U. S.
75,
330 U.S.
89-90.
"This court can have no right to pronounce an abstract opinion
upon the constitutionality of a State law. Such law must be brought
into actual or threatened operation upon rights properly falling
under judicial cognizance, or a remedy is not to be had here."
Georgia v.
Stanton, 6 Wall. 50,
73 U. S. 75,
approvingly quoting Mr. Justice Thompson, dissenting, in
Cherokee Nation v.
Georgia, 5 Pet. 1,
30 U. S. 75; also
quoted in
New Jersey v. Sargent, 269 U.
S. 328,
269 U. S.
331.
"The party who invokes the power (to annul legislation on
grounds
Page 367 U. S. 505
of its unconstitutionality) must be able to show not only that
the statute is invalid, but that he has sustained or is immediately
in danger of sustaining some direct injury as the result of its
enforcement. . . ."
Massachusetts v. Mellon, 262 U.
S. 447,
262 U. S. 488.
[
Footnote 9]
This principle was given early application and has been
recurringly enforced in the Court's refusal to entertain cases
which disclosed a want of a truly adversary contest, of a collision
of actively asserted and differing claims.
See, e.g.,
66 U. S.
Chamberlain, 1 Black 419;
Wood-Paper Co. v.
Heft, 8 Wall. 333. Such cases may not be
"collusive" in the derogatory sense of
Lord v.
Veazie, 8 How. 251 -- in the sense of merely
colorable disputes got up to secure an advantageous ruling from the
Court.
See South Spring Hill Gold Mining Co. v. Amador Medean
Gold Mining Co., 145 U. S. 300,
145 U. S. 301.
The Court has found unfit for adjudication any cause that "is not
in any real sense adversary," that
"does not assume the 'honest and actual antagonistic assertion
of rights' to be adjudicated -- a safeguard essential to the
integrity of the judicial process, and one which we have held to be
indispensable to adjudication of constitutional questions by this
Court."
United States v. Johnson, 319 U.
S. 302,
319 U. S. 305.
The requirement for adversity was classically expounded in
Chicago & Grand Trunk R. Co. v. Wellman, 143 U.
S. 339,
143 U. S.
344-345:
". . . The theory upon which, apparently, this suit was brought
is that parties have an appeal from the
Page 367 U. S. 506
legislature to the courts; and that the latter are given an
immediate and general supervision of the constitutionality of the
acts of the former. Such is not true. Whenever, in pursuance of an
honest and actual antagonistic assertion of rights by one
individual against another, there is presented a question involving
the validity of any act of any legislature, State or Federal, and
the decision necessarily rests on the competency of the legislature
to so enact, the court must, in the exercise of its solemn duties,
determine whether the act be constitutional or not; but such an
exercise of power is the ultimate and supreme function of courts.
It is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the
courts an inquiry as to the constitutionality of the legislative
act."
What was said in the
Wellman case found ready
application in proceedings brought under modern declaratory
judgment procedures. For just as the declaratory judgment device
does not "purport to alter the character of the controversies which
are the subject of the judicial power under the Constitution,"
United States v. West Virginia, 295 U.
S. 463,
295 U. S. 475,
it does not permit litigants to invoke the power of this Court to
obtain constitutional rulings in advance of necessity.
Electric
Bond & Share Co. v. Securities and Exchange Comm.,
303 U. S. 419,
303 U. S. 443.
The Court has been on the alert against use of the declaratory
judgment device for avoiding the rigorous insistence on exigent
adversity as a condition for evoking Court adjudication. This is as
true of state court suits for declaratory judgments as of federal.
By exercising their jurisdiction, state courts cannot determine the
jurisdiction to be exercised by this Court.
Tyler
Page 367 U. S. 507
v. Judges of the Court of Registration, 179 U.
S. 405;
Doremus v. Board of Education,
342 U. S. 429.
Although we have held that a state declaratory judgment suit may
constitute a case or controversy within our appellate jurisdiction,
it is to be reviewed here only
"so long as the case retains the essentials of an adversary
proceeding, involving a real, not a hypothetical, controversy,
which is finally determined by the judgment below."
Nashville, C. & St.L. R. Co. v. Wallace,
288 U. S. 249,
288 U. S. 264.
It was with respect to a state-originating declaratory judgment
proceeding that we said, in
Alabama State Federation of Labor
v. McAdory, 325 U. S. 450,
325 U. S. 471,
that
"[t]he extent to which the declaratory judgment procedure may be
used in the federal courts to control state action lies in the
sound discretion of the Court. . . ."
Indeed, we have recognized, in such cases, that
". . . the discretionary element characteristic of declaratory
jurisdiction, and imported perhaps from equity jurisdiction and
practice without the remedial phase, offers a convenient instrument
for making . . . effective. . . ."
the policy against premature constitutional decision.
Rescue
Army v. Municipal Court, 331 U. S. 549,
331 U. S. 573,
note 41.
Insofar as appellants seek to justify the exercise of our
declaratory power by the threat of prosecution, facts which they
can no more negative by complaint and demurrer than they could by
stipulation preclude our determining their appeals on the merits.
Cf. 85 U. S. Iowa,
18 Wall. 129,
85 U. S.
134-135. It is clear that the mere existence of a state
penal statute would constitute insufficient grounds to support a
federal court's adjudication of its constitutionality in
proceedings brought against the State's prosecuting officials if
real threat of enforcement is wanting.
See Ex parte La
Prade, 289 U. S. 444,
289 U. S. 458.
If the prosecutor expressly agrees not to prosecute, a suit against
him for declaratory and injunctive relief is not such an adversary
case as will be reviewed here.
C.I.O.
Page 367 U. S. 508
v. McAdory, 325 U. S. 472,
325 U. S. 475.
Eighty years of Connecticut history demonstrate a similar, albeit
tacit, agreement. The fact that Connecticut has not chosen to press
the enforcement of this statute deprives these controversies of the
immediacy which is an indispensable condition of constitutional
adjudication. This Court cannot be umpire to debates concerning
harmless, empty shadows. To find it necessary to pass on these
statutes now, in order to protect appellants from the hazards of
prosecution, would be to close our eyes to reality.
Nor does the allegation by the Poes and Doe that they are unable
to obtain information concerning contraceptive devices from Dr.
Buxton,
"for the sole reason that the delivery and use of such
information and advice may or will be claimed by the defendant
State's Attorney to constitute offenses,"
disclose a necessity for present constitutional decision. It is
true that this Court has several times passed upon criminal
statutes challenged by persons who claimed that the effects of the
statutes were to deter others from maintaining profitable or
advantageous relations with the complainants.
See, e.g., Truax
v. Raich, 239 U. S. 33;
Pierce v. Society of Sisters, 268 U.
S. 510. But, in these cases, the deterrent effect
complained of was one which was grounded in a realistic fear of
prosecution. We cannot agree that, if Dr. Buxton's compliance with
these statutes is uncoerced by the risk of their enforcement, his
patients are entitled to a declaratory judgment concerning the
statutes; validity. And, with due regard to Dr. Buxton's standing
as a physician and to his personal sensitiveness, we cannot accept,
as the basis of constitutional adjudication, other than as
chimerical the fear of enforcement of provisions that have during
so many years gone uniformly and without exception unenforced.
Justiciability is, of course, not a legal concept with a fixed
content or susceptible of scientific verification. Its utilization
is the resultant of many subtle pressures,
Page 367 U. S. 509
including the appropriateness of the issues for decision by this
Court and the actual hardship to the litigants of denying them the
relief sought. Both these factors justify withholding adjudication
of the constitutional issue raised under the circumstances and in
the manner in which they are now before the Court.
Dismissed.
MR. JUSTICE BLACK dissents because he believes that the
constitutional questions should be reached and decided.
* Together with No. 61.
Buxton v. Ullman, State's
Attorney, also on appeal from the same Court.
[
Footnote 1]
Plaintiffs in the two cases composing No. 60 sue under
fictitious names. The Supreme Court of Errors of Connecticut
approved this procedure in the special circumstances of the
cases.
[
Footnote 2]
As a matter of specific legislation, Connecticut outlaws only
the use of contraceptive materials. Conn.Gen.Stat.Rev.1958, § 53-32
provides:
"
Use of drugs or instruments to prevent conception. Any
person who uses any drug, medicinal article or instrument for the
purpose of preventing conception shall be fined not less than fifty
dollars or imprisoned not less than sixty days nor more than one
year or be both fined and imprisoned."
There are no substantive provisions dealing with the sale or
distribution of such devices, nor with the giving of information
concerning their use. These activities are deemed to be involved in
law solely because of the general criminal accessory enactment of
Connecticut. This is Conn.Gen.Stat.Rev.1958, § 54-196:
"
Accessories. Any person who assists, abets, counsels,
causes, hires or commands another to commit any offense may be
prosecuted and punished as if he were the principal offender."
[
Footnote 3]
The assumption of prosecution of spouses for use of
contraceptives is not only inherently bizarre, as was admitted by
counsel, but is underscored in its implausibility by the disability
of spouses, under Connecticut law, from being compelled to testify
against one another.
[
Footnote 4]
It is also worthy of note that the Supreme Court of Errors has
held that contraceptive devices could not be seized and destroyed
as nuisances under the State's seizure statutes.
See State v.
Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 803,
decided on the same day as the
Nelson case.
[
Footnote 5]
See, e.g., Braxton County Court v. West Virginia,
208 U. S. 192;
Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar
Co., 226 U. S. 217;
Fairchild v. Hughes, 258 U. S. 126;
Tileston v. Ullman, 318 U. S. 44;
United States v. Raines, 362 U. S. 17.
Cf. 9 U. S. Norwood's
Lessee, 5 Cranch 344.
[
Footnote 6]
See, e.g. New Jersey v. Sargent, 269 U.
S. 328;
Arizona v. California, 283 U.
S. 423;
International Longshoremen's Union v.
Boyd, 347 U. S. 222.
Cf. Coffman v. Breeze Corporations, 323 U.
S. 316.
[
Footnote 7]
See, e.g., San Mateo County v. Southern Pacific R. Co.,
116 U. S. 138;
Singer Mfg. Co. v. Wright, 141 U.
S. 696;
Mills v. Green, 159 U.
S. 651;
Kimball v. Kimball, 174 U.
S. 158;
Tennessee v. Condon, 189 U. S.
64;
American Book Co. v. Kansas, 193 U. S.
49;
Jones v. Montague, 194 U.
S. 147;
Security Mutual Life Ins. Co. v.
Prewitt, 200 U. S. 446;
Richardson v. McChesney, 218 U. S. 487;
Berry v. Davis, 242 U. S. 468;
Atherton Mills v. Johnston, 259 U. S.
13.
[
Footnote 8]
Mr. Justice Brandeis, concurring, in
Ashwander v. Tennessee
Valley Authority, 297 U. S. 288,
297 U. S. 341,
297 U. S.
347.
[
Footnote 9]
The
Mellon cases involved what is technically
designated as the problem of "standing," but the concern which they
exemplify that constitutional issues be determined only at the suit
of a person immediately injured has equal application here. It
makes little sense to insist that only the parties themselves whom
legislation immediately threatens may sue to strike it down and, at
the same time, permit such suit when there is not even a remote
likelihood that the threat to them will in fact materialize.
MR. JUSTICE BRENNAN, concurring in the judgment.
I agree that this appeal must be dismissed for failure to
present a real and substantial controversy which unequivocally
calls for adjudication of the rights claimed in advance of any
attempt by the State to curtail them by criminal prosecution. I am
not convinced, on this skimpy record, that these appellants as
individuals are truly caught in an inescapable dilemma. The true
controversy in this case is over the opening of birth control
clinics on a large scale; it is that which the State has prevented
in the past, not the use of contraceptives by isolated and
individual married couples. It will be time enough to decide the
constitutional questions urged upon us when, if ever, that real
controversy flares up again. Until it does, or until the State
makes a definite and concrete threat to enforce these laws against
individual married couples -- a threat which it has never made in
the past except under the provocation of litigation -- this Court
may not be compelled to exercise its most delicate power of
constitutional adjudication.
MR. JUSTICE DOUGLAS, dissenting.
I
These cases are dismissed because a majority of the members of
this Court conclude, for varying reasons, that
Page 367 U. S. 510
this controversy does not present a justiciable question. That
conclusion is too transparent to require an extended reply. The
device of the declaratory judgment is an honored one. Its use in
the federal system is restricted to "cases" or "controversies"
within the meaning of Article III. The question must be
"appropriate for judicial determination," not hypothetical,
abstract, academic or moot.
Aetna Life Ins. Co. v.
Haworth, 300 U. S. 227,
300 U. S. 240.
It must touch "the legal relations of parties having adverse legal
interests."
Id., 300 U. S.
240-241. It must be "real and substantial" and admit of
"specific relief through a decree of a conclusive character."
Id., 300 U. S. 241.
The fact that damages are not awarded or an injunction does not
issue, the fact that there are no allegations of irreparable injury
are irrelevant.
Id., 300 U. S. 241.
This is hornbook law. The need for this remedy in the federal field
was summarized in a Senate Report as follows:
". . . it is often necessary, in the absence of the declaratory
judgment procedure, to violate or purport to violate a statute in
order to obtain a judicial determination of its meaning or
validity."
S.Rep. No. 1005, 73d Cong., 2d Sess., pp. 2-3.
If there is a case where the need for this remedy in the shadow
of a criminal prosecution is shown, it is this one, as MR. JUSTICE
HARLAN demonstrates. Plaintiffs in No. 60 are two sets of husband
and wife. One wife is pathetically ill, having delivered a
stillborn fetus. If she becomes pregnant again, her life will be
gravely jeopardized. This couple have been unable to get medical
advice concerning the "best and safest" means to avoid pregnancy
from their physician, plaintiff in No. 61, because, if he gave it,
he would commit a crime. The use of contraceptive devices would
also constitute a crime. And it is alleged -- and admitted by the
State -- that the State's Attorney intends to enforce the law by
prosecuting offenses under the laws.
Page 367 U. S. 511
A public clinic dispensing birth control information has indeed
been closed by the State. Doctors and a nurse working in that
clinic were arrested by the police and charged with advising
married women on the use of contraceptives. That litigation
produced
State v. Nelson, 126 Conn. 412, 11 A.2d 856,
which upheld these statutes. That same police raid on the clinic
resulted in the seizure of a quantity of the clinic's contraception
literature and medical equipment and supplies. The legality of that
seizure was in question in
State v. Certain Contraceptive
Materials, 126 Conn. 428, 11 A.2d 863.
The Court refers to the
Nelson prosecution as a "test
case," and implies that it had little impact. Yet its impact was
described differently by a contemporary observer who concluded his
comment with this sentence:
"This serious setback to the birth control movement (the
Nelson case) led to the closing of all the clinics in the
state, just as they had been previously closed in the state of
Massachusetts. [
Footnote 2/1]"
At oral argument, counsel for appellants confirmed that the
clinics are still closed. In response to a question from the bench,
he affirmed that "no public or private clinic" has dared give birth
control advice since the decision in the
Nelson case.
[
Footnote 2/2]
These, then, are the circumstances in which the Court feels that
it can, contrary to every principle of American or English common
law, [
Footnote 2/3] go outside the
record to conclude
Page 367 U. S. 512
that there exists a "tacit agreement" that these statutes will
not be enforced. No lawyer, I think, would advise his clients to
rely on that "tacit agreement." No police official, I think, would
feel himself bound by that "tacit agreement." After our national
experience during the prohibition era, it would be absurd to
pretend that all criminal statutes are adequately enforced. But
that does not mean that bootlegging was the less a crime.
Cf.
Costello v. United States, 365 U. S. 265. In
fact, an arbitrary administrative pattern of nonenforcement may
increase the hardships of those subject to the law.
See J.
Goldstein, Police Discretion Not to Invoke the Criminal Process, 69
Yale L.J. 543.
When the Court goes outside the record to determine that
Connecticut has adopted "The undeviating policy of nullification .
. . of its anti-contraceptive laws," it selects a particularly poor
case in which to exercise such a novel power. This is not a law
which is a dead letter. Twice since 1940, Connecticut has reenacted
these laws as part of general statutory revisions. Consistently,
bills to remove the statutes from the books have been rejected by
the legislature. In short, the statutes -- far from being the
accidental left-overs of another era -- are the center of a
continuing controversy in the State.
See, e.g., The New
Republic, May 19, 1947, p. 8.
Again, the Court relies on the inability of counsel to show any
attempts, other than the
Nelson case, "to enforce the
prohibition of distribution or use of contraceptive devices by
criminal process." Yet, on oral argument, counsel for the appellee
stated on his own knowledge
Page 367 U. S. 513
that several proprietors had been prosecuted in the "minor
police courts of Connecticut" after they had been "picked up" for
selling contraceptives. The enforcement of criminal laws in minor
courts has just as much impact as in those cases where appellate
courts are resorted to. The need of the protection of
constitutional guarantees, and the right to them, are not less
because the matter is small or the court lowly.
See Thompson v.
City of Louisville, 362 U. S. 199;
Tumey v. Ohio, 273 U. S. 510. Nor
is the need lacking because the dispensing of birth control
information is by a single doctor, rather than by birth control
clinics. The nature of the controversy would not be changed one
iota had a dozen doctors, representing a dozen birth control
clinics, sued for remedial relief.
What are these people -- doctor and patients -- to do? Flout the
law and go to prison? Violate the law surreptitiously and hope they
will not get caught? By today's decision, we leave them no other
alternatives. It is not the choice they need have under the regime
of the declaratory judgment and our constitutional system. It is
not the choice worthy of a civilized society. A sick wife, a
concerned husband, a conscientious doctor seek a dignified,
discrete, orderly answer to the critical problem confronting them.
We should not turn them away and make them flout the law and get
arrested to have their constitutional rights determined.
See
Railway Mail Assn. v. Corsi, 326 U. S. 88. They
are entitled to an answer to their predicament here and now.
II
The right of the doctor to advise his patients according to his
best lights seems so obviously within First Amendment rights as to
need no extended discussion. The leading cases on freedom of
expression are generally framed
Page 367 U. S. 514
with reference to public debate and discourse. But, as Chafee
said,
"the First Amendment and other parts of the law erect a fence
inside which men can talk. The lawmakers, legislators, and
officials stay on the outside of that fence. But what the men
inside the fence say when they are let alone is no concern of the
law."
The Blessings of Liberty (1956), p. 108.
The teacher (
Sweezy v. New Hampshire, 354 U.
S. 234) as well as the public speaker (
Thomas v.
Collins, 323 U. S. 516) is
included. The actor on stage or screen, the artist whose creation
is in oil or clay or marble, the poet whose reading public may be
practically nonexistent, the musician and his musical scores, the
counselor whether priest, parent or teacher no matter how small his
audience -- these too are beneficiaries of freedom of expression.
The remark by President James A. Garfield that his ideal of a
college was a log in the woods with a student at one end and Mark
Hopkins at another (9 Dict.Am.Biog., p. 216) puts the present
problem in proper First Amendment dimensions. Of course a physician
can talk freely and fully with his patient without threat of
retaliation by the State. The contrary thought -- the one endorsed
sub silentio by the courts below -- has the cast of
regimentation about it, a cast at war with the philosophy and
presuppositions of this free society.
We should say with Kant that
"It is absurd to expect to be enlightened by Reason, and at the
same time to prescribe to her what side of the question she must
adopt. [
Footnote 2/4]"
Leveling the discourse of medical men to the morality of a
particular community is a deadening influence. Mill spoke of the
pressures of intolerant groups that produce "either mere conformers
to commonplace, or time-servers for truth." [
Footnote 2/5] We witness in this case a sealing of the
lips of a doctor because he desires to observe
Page 367 U. S. 515
the law, obnoxious as the law may be. The State has no power to
put any sanctions of any kind on him for any views or beliefs that
he has or for any advice he renders. These are his professional
domains, into which the State may not intrude. The chronicles are
filled with sad attempts of government to stomp out ideas, to ban
thoughts because they are heretical or obnoxious. As Mill
stated,
"Our merely social intolerance kills no one, roots out no
opinions, but induces men to disguise them, or to abstain from any
active effort for their diffusion. [
Footnote 2/6]"
When that happens society suffers. Freedom working underground,
freedom bootlegged around the law is freedom crippled. A society
that tells its doctors under pain of criminal penalty what they may
not tell their patients is not a free society. Only free exchange
of views and information is consistent with "a civilization of the
dialogue," to borrow a phrase from Dr. Robert M. Hutchins.
See
Wieman v. Updegraff, 344 U. S. 183,
344 U. S. 197
(concurring opinion).
III
I am also clear that this Connecticut law, as applied to this
married couple, deprives them of "liberty" without due process of
law, as that concept is used in the Fourteenth Amendment.
The first eight Amendments to the Constitution have been made
applicable to the States only in part. My view has been that, when
the Fourteenth Amendment was adopted, its Due Process Clause
incorporated all of those Amendments.
See Adamson v.
California, 332 U. S. 46,
332 U. S. 68
(dissenting opinion). Although the history of the Fourteenth
Amendment may not be conclusive, the words "due process" acquired
specific meaning from Anglo-American experience. [
Footnote 2/7] As MR. JUSTICE BRENNAN recently
Page 367 U. S. 516
stated,
"The Bill of Rights is the primary source of expressed
information as to what is meant by constitutional liberty. The
safeguards enshrined in it are deeply etched in the foundations of
America's freedoms."
The Bill of Rights and the States (1961), 36 N.Y.U.L.Rev. 761,
776. When the Framers wrote the Bill of Rights, they enshrined in
the form of constitutional guarantees those rights -- in part
substantive, in part procedural -- which experience indicated were
indispensable to a free society. Some would disagree as to their
importance; the debate concerning them did indeed start before
their adoption and has continued to this day. Yet the
constitutional conception of "due process" must, in my view,
include them all until and unless there are amendments that remove
them. That has indeed been the view of a full court of nine
Justices, though the members who make up that court unfortunately
did not sit at the same time. [
Footnote
2/8]
Though I believe that "due process," as used in the Fourteenth
Amendment, includes all of the first eight Amendments, I do not
think it is restricted and confined to them. We recently held that
the undefined "liberty" in the Due Process Clause of the Fifth
Amendment includes freedom to travel.
Kent v. Dulles,
357 U. S. 116,
357 U. S.
125-127.
Cf. Edwards v. California,
314 U. S. 160,
Page 367 U. S. 517
314 U. S. 177,
314 U. S. 178
(concurring opinion). The right "to marry, establish a home and
bring up children" was said in
Meyer v. Nebraska,
262 U. S. 390,
262 U. S. 399,
to come within the "liberty" of the person protected by the Due
Process Clause of the Fourteenth Amendment. As I indicated in my
dissent in
Public Utilities Commission v. Pollak,
343 U. S. 451,
343 U. S. 467,
"liberty" within the purview of the Fifth Amendment includes the
right of "privacy," a right I thought infringed in that case
because a member of a "captive audience" was forced to listen to a
government-sponsored radio program. "Liberty" is a conception that
sometimes gains content from the emanations of other specific
guarantees (
NAACP v. Alabama, 357 U.
S. 449,
357 U. S. 460)
or from experience with the requirements of a free society.
For years, the Court struck down social legislation when a
particular law did not fit the notions of a majority of Justices as
to legislation appropriate for a free enterprise system. Mr.
Justice Holmes, dissenting, rightly said that
"a constitution is not intended to embody a particular economic
theory, whether of paternalism and the organic relation of the
citizen to the State or of
laissez faire. It is made for
people of fundamentally differing views, and the accident of our
finding certain opinions natural and familiar or novel and even
shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of
the United States."
Lochner v. New York, 198 U. S. 45,
198 U. S.
75-76.
The error of the old Court, as I see it, was not in entertaining
inquiries concerning the constitutionality of social legislation,
but in applying the standards that it did.
See Tot v. United
States, 319 U. S. 463;
Giboney v. Empire Storage & Ice Co., 336 U.
S. 490. Social legislation dealing with business and
economic matters touches no particularized prohibition of the
Constitution, unless it be
Page 367 U. S. 518
the provision of the Fifth Amendment that private property
should not be taken for public use without just compensation. If it
is free of the latter guarantee, it has a wide scope for
application. Some go so far as to suggest that whatever the
majority in the legislature says goes (
cf. United States v.
Chandler-Dunbar Water Power Co., 229 U. S.
53,
229 U. S. 64),
that there is no other standard of constitutionality. That reduces
the legislative power to sheer voting strength, and the judicial
function to a matter of statistics. As Robert M. Hutchins has
said,
"It is obviously impossible to raise questions of freedom and
justice if the sole duty of the court is to decide whether the case
at bar falls within the scope of the duly issued command of a duly
constituted sovereign."
Two Faces of Federalism (1960), p. 18. While the legislative
judgment on economic and business matters is "well-nigh conclusive"
(
Berman v. Parker, 348 U. S. 26,
348 U. S. 32),
it is not beyond judicial inquiry.
Cf. United States v.
Oregon, 366 U. S. 643,
366 U. S. 649
(dissenting opinion).
The regime of a free society needs room for vast
experimentation. Crises, emergencies, experience at the individual
and community levels produce new insights; problems emerge in new
dimensions; needs, once never imagined, appear. To stop
experimentation and the testing of new decrees and controls is to
deprive society of a needed versatility. Yet to say that a
legislature may do anything not within a specific guarantee of the
Constitution may be as crippling to a free society as to allow it
to override specific guarantees so long as what it does fails to
shock the sensibilities of a majority of the Court. [
Footnote 2/9]
Page 367 U. S. 519
The present legislation is an excellent example. If a State
banned completely the sale of contraceptives in drug stores, the
case would be quite different. It might seem to some or to all
judges an unreasonable restriction. Yet it might not be irrational
to conclude that a better way of dispensing those articles is
through physicians. The same might be said of a state law banning
the manufacture of contraceptives. Health, religious, and moral
arguments might be marshalled pro and con. Yet it is not for judges
to weigh the evidence. Where either the sale or the manufacture is
put under regulation, the strictures are on business and commercial
dealings that have had a long history with the police power of the
States.
The present law, however, deals not with sale, not with
manufacture, but with use. It provides:
"Any person who uses any drug, medicinal article or instrument
for the purpose of preventing conception shall be fined not less
than fifty dollars or imprisoned not less than sixty days nor more
than one year or be both fined and imprisoned."
Conn.Gen.Stat.1958, § 53-32.
The regulation, as applied in this case, touches the
relationship between man and wife. It reaches into the intimacies
of the marriage relationship. If we imagine a regime of full
enforcement of the law in the manner of
Page 367 U. S. 520
an Anthony Comstock, [
Footnote
2/10] we would reach the point where search warrants issued and
officers appeared in bedrooms to find out what went on. [
Footnote 2/11] It is said that this is
not that case. And so it is not. But when the State makes "use" a
crime, and applies the criminal sanction to man
Page 367 U. S. 521
and wife, the State has entered the innermost sanctum of the
home. If it can make this law, it can enforce it. And proof of its
violation necessarily involves an inquiry into the relations
between man and wife.
That is an invasion of the privacy that is implicit in a free
society. A noted theologian who conceives of the use of a
contraceptive as a "sin" nonetheless admits that a "use" statute
such as this enters a forbidden domain.
". . . the Connecticut statute confuses the moral and legal, in
that it transposes without further ado a private sin into a public
crime. The criminal act here is the private use of contraceptives.
The real area where the coercions of law might, and ought to, be
applied, at least to control an evil -- namely, the contraceptive
industry -- is quite overlooked. As it stands, the statute is, of
course, unenforceable without police invasion of the bedroom, and
is therefore indefensible as a piece of legal draughtsmanship."
Murray, We Hold These Truths (1960), pp. 157-158.
This notion of privacy is not drawn from the blue. [
Footnote 2/12] It emanates from the
totality of the constitutional scheme under which we live.
[
Footnote 2/13]
"One of the earmarks of the totalitarian understanding of
society is that it seeks to make all
Page 367 U. S. 522
subcommunities -- family, school, business, press, church --
completely subject to control by the State. The State then is not
one vital institution among others: a policeman, a referee, and a
source of initiative for the common good. Instead, it seeks to be
coextensive with family and school, press, business community, and
the Church, so that all of these component interest groups are, in
principle, reduced to organs and agencies of the State. In a
democratic political order, this megatherian concept is expressly
rejected as out of accord with the democratic understanding of
social good, and with the actual makeup of the human community.
[
Footnote 2/14]"
Can there be any doubt that a Bill of Rights that, in time of
peace, bars soldiers from being quartered in a home "without the
consent of the Owner" [
Footnote
2/15] should also bar the police from investigating the
intimacies of the marriage relation? The idea of allowing the State
that leeway is congenial only to a totalitarian regime.
I dissent from a dismissal of these cases and our refusal to
strike down this law.
[
Footnote 2/1]
Himes, A Decade of Progress in Birth Control, 212 Annals
Am.Acad.Pol. & Soc.Sci. 88, 94 (1940).
[
Footnote 2/2]
It may be, as some suggest, that these bizarre laws are kept on
the books solely to insure that traffic in contraceptives will be
furtive, or will be limited to those who, by the accident of their
education, travels, or wealth, need not rely on local public
clinics for instruction and supply. Yet these laws -- as the
decision below shows -- are not limited to such situations.
[
Footnote 2/3]
"On the continent there was some speculation during the middle
ages as to whether a law could become inoperative through
long-continued desuetude. In England, however, the idea of
prescription and the acquisition or loss of rights merely by the
lapse of a particular length of time found little favour. . . .
There was consequently no room for any theory that statutes might
become obsolete."
Plucknett, A Concise History of the Common Law (1956), pp.
337-338.
[
Footnote 2/4]
The Critique of Pure Reason, 42 Great Books, p. 221.
[
Footnote 2/5]
On Liberty of Thought and Discussion, 43 Great Books, p.
282.
[
Footnote 2/6]
Ibid.
[
Footnote 2/7]
See Konvitz, Fundamental Liberties of a Free People
(1957), pp. 37-39; Green, The Bill of Rights, the Fourteenth
Amendment and the Supreme Court, 46 Mich.L.Rev. 869, 904
et
seq. (1948); Holmes, The Fourteenth Amendment and the Bill of
Rights, 7 S.C.L.Q.Rev. 596 (1955).
And see Mr. Justice Rutledge (concurring) in
In re
Oliver, 333 U. S. 257,
333 U. S.
280-281.
[
Footnote 2/8]
I start with Justices Bradley, Swayne, Field, Clifford and
Harlan. To this number, Mr. Justice Brewer can probably be joined
on the basis of his agreement "in the main" with Mr. Justice Harlan
in
O'Neil v. Vermont, 144 U. S. 323,
144 U. S. 371.
See the Appendix to MR. JUSTICE BLACK's dissent in
Adamson v. California, supra, 332 U. S.
120-123. To these I add MR. JUSTICE BLACK, Mr. Justice
Murphy, Mr. Justice Rutledge and myself (
Adamson v. California,
supra, 332 U. S. 68,
332 U. S.
123).
[
Footnote 2/9]
"The due process clause is said to exact from the states all
that is 'implicit in the concept of ordered liberty.' It is further
said that the concept is a living one, that it guarantees basic
rights not because they have become petrified as of any one time,
but because due process follows the advancing standards of a free
society as to what is deemed reasonable and right. It is to be
applied, according to this view, to facts and circumstances as they
arise, the cases falling on one side of the line or the other as a
majority of nine justices appraise conduct as either implicit in
the concept of ordered liberty or as lying without the confines of
that vague concept. Of course, in this view, the due process clause
of the Fifth Amendment, which confessedly must be construed like
that of the Fourteenth, may be repetitious of many of the other
guaranties of the first eight amendments, and may render many of
their provisions superfluous."
Roberts, The Court and the Constitution (1951), p. 80.
[
Footnote 2/10]
Anthony Comstock (1844-1915) -- the Congregationalist who
inspired the foundation of the New York Society for the Suppression
of Vice in 1873 and the Watch and Ward Society of Boston in 1876,
and who inspired George Bernard Shaw to use the opprobrious word
"comstockery" in Mrs. Warren's Profession -- was responsible for
the passage in 1879 of this Connecticut law.
"Anthony Comstock had moral earnestness, and it can't be faked.
His concern was with Puritan theology, rather than Puritan ethics.
Righteousness seemed to him less important than salvation, and
consequently tricks which seemed shabby to neutrals left him
without shame. A man who fights for the safety of his immortal soul
can hardly be expected to live up to the best Queensberry
traditions in the clinches. To grant the major premises of
Comstock's religious and social philosophy is to acquit him of any
lack of logic. Obscenity was to Anthony poison to soul and body,
and anything remotely touching upon sex was, to his mind, obscene.
He seems to have believed implicitly in medical theories which
have, since his time, been discarded. Even in his day, beliefs were
changing, but Comstock was loyal to the old-line ideas. It was his
notion that idiocy, epilepsy and locomotor ataxia were among the
ailments for which auto-eroticism was responsible. Since death and
damnation might be, according to his belief, the portion of the
girl or boy who read a ribald story, it is easy to understand why
he was so impatient with those who advanced the claims of art. Even
those who love beauty would hardly be prepared to burn in hell
forever in its service. Comstock's decision was even easier, for he
did not know, understand or care anything about beauty."
Broun and Leech, Anthony Comstock (1927), pp. 265-266.
[
Footnote 2/11]
Those warrants would, I think, go beyond anything so far known
in our law. The law has long known the writ
de ventre
inspiciendo authorizing matrons to inspect the body of a woman
to determine if she is pregnant. This writ was issued to determine
before a hanging whether a convicted female was pregnant, or to
ascertain whether rightful succession of property was to be
defeated by assertion of a suppositions heir.
See 1
Blackstone Commentaries (Jones ed. 1915), p. 651.
[
Footnote 2/12]
The right "to be let alone" had many common law overtones.
See Cooley, Torts (2d ed. 1888), p. 29; Warren and
Brandeis, Right To Privacy, 4 Harv.L.Rev. 192.
Cf. Ohio
Rev.Code, § 2905.34, which makes criminal knowing "possession" of
"a drug, medicine, article, or thing intended for the prevention of
conception," doctors and druggists being excepted. § 2905.37.
[
Footnote 2/13]
Mr. Justice Murphy dissenting in
Adamson v. California,
332 U. S. 46,
said:
"I agree that the specific guarantees of the Bill of Rights
should be carried over intact into the first section of the
Fourteenth Amendment. But I am not prepared to say that the latter
is entirely and necessarily limited by the Bill of Rights.
Occasions may arise where a proceeding falls so far short of
conforming to fundamental standards of procedure as to warrant
constitutional condemnation in terms of a lack of due process
despite the absence of a specific provision in the Bill of
Rights."
[
Footnote 2/14]
Calhoun, Democracy and Natural Law, 5 Nat.Law Forum, 31, 36
(1960).
[
Footnote 2/15]
The Third Amendment provides:
"No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law."
MR. JUSTICE HARLAN, dissenting.
I am compelled, with all respect, to dissent from the dismissal
of these appeals. In my view, the course which the Court has taken
does violence to established concepts
Page 367 U. S. 523
of "justiciability," and unjustifiably leaves these appellants
under the threat of unconstitutional prosecution. Regrettably, an
adequate exposition of my views calls for a dissenting opinion of
unusual length.
Between them these suits seek declaratory relief against the
threatened enforcement of Connecticut's anti-birth control laws
making criminal the use of contraceptives, insofar as such laws
relate to the use of contraceptives by married persons and the
giving of advice to married persons in their use. [
Footnote 3/1] The appellants, a married couple, a
married woman, and a doctor, ask that it be adjudged, contrary to
what the Connecticut courts have held, that such laws, as
threatened to be applied to them in circumstances described in the
opinion announcing the judgment of the Court (
ante, pp.
367 U. S.
498-500), violate the Fourteenth Amendment, in that they
deprive appellants of life, liberty, or property without due
process.
The plurality opinion of the Court gives, as the basis for
dismissing the appeals, the reason that, as to the two married
appellants, the lack of demonstrated enforcement of the Connecticut
statute bespeaks an absence of exigent adversity which is posited
as the condition for evoking adjudication from us, and, as to the
doctor, that his compliance with the state statute is uncoerced by
any "realistic fear of prosecution," giving due recognition to his
"standing as a physician and to his personal sensitiveness." With
these reasons it appears that the concurring opinion agrees.
In
Alabama State Federation of Labor v. McAdory,
325 U. S. 450,
325 U. S. 462,
it was said that
"declaratory judgment procedure may be resorted to only in the
sound discretion of the Court and where the interests of justice
will be
Page 367 U. S. 524
advanced and an adequate and effective judgment may be
rendered."
In my view of these cases, a present determination of the
constitutional issues is the only course which will advance
justice, and I can find no sound reason born of considerations as
to the possible inadequacy or ineffectiveness of the judgment that
might be rendered which justifies the Court's contrary disposition.
While ordinarily I would not deem it appropriate to deal, in
dissent, with constitutional issues which the Court has not
reached, I shall do so here because such issues, as I see things,
are entangled with the Court's conclusion as to the
nonjusticiability of these appeals.
PART ONE
Justiciability
There can be no quarrel with the plurality opinion's statement
that "Justiciability is, of course, not a legal concept with a
fixed content or susceptible of scientific verification," but, with
deference, the fact that justiciability is not precisely definable
does not make it ineffable. Although a large number of cases are
brought to bear on the conclusion that is reached, I think it is
fairly demonstrable that the authorities fall far short of
compelling dismissal of these appeals. [
Footnote 3/2] Even so, it is suggested that the
cases
Page 367 U. S. 525
do point the way to a "rigorous insistence on exigent adversity"
and a "policy against premature constitutional decision," which,
properly understood, does indeed demand that result.
The policy referred to is one to which I unreservedly subscribe.
Without undertaking to be definitive, I would suppose it is a
policy the wisdom of which is woven of several strands: (1) due
regard for the fact that the source of the Court's power lies
ultimately in its duty to decide, in conformity with the
Constitution, the particular controversies which come to it, and
does not arise from some generalized power of supervision over
state and national legislatures; (2) therefore it should insist
that litigants bring to the Court interests and rights which
require present recognition and controversies demanding immediate
resolution; (3) also it follows that the controversy must be one
which is in truth and fact the litigant's own, so that the clash of
adversary contest which is needed to sharpen and illuminate issues
is present and gives that aid on which our adjudicatory system has
come to rely; (4) finally, it is required that other means of
redress for the particular right claimed be unavailable, so that
the process of the Court may not become overburdened and conflicts
with other courts or departments of government may not needlessly
be created, which might come about if either those truly affected
are not the ones demanding relief, or if the relief we can give is
not truly needed.
In particularization of this composite policy, the Court, in the
course of its decisions on matters of justiciability, has developed
and given expression to a number of important limitations on the
exercise of its jurisdiction, the
Page 367 U. S. 526
presence or absence of which here should determine the
justiciability of these appeals. Since all of them are referred to
here in one way or another, it is well to proceed to a disclosure
of those which are not involved in the present appeals, thereby
focusing attention on the one factor on which reliance appears to
be placed by both the plurality and concurring opinions in this
instance.
First: it should by now be abundantly clear that the
fact that only constitutional claims are presented in proceedings
seeking anticipatory relief against state criminal statutes does
not, for that reason alone, make the claims premature.
See,
e.g., Terrace v. Thompson, 263 U. S. 197;
Pierce v. Society of Sisters, 268 U.
S. 510;
Euclid, Ohio v. Ambler Realty Co.,
272 U. S. 365.
Whatever general pronouncements may be found to the contrary must,
in context, be seen to refer to considerations quite different from
anything present in these cases.
Thus, in
Alabama State Federation of Labor v. McAdory,
supra, anticipatory relief was withheld for the precise reason
that, normally, this Court ought not to consider the
constitutionality of a state statute in the absence of a
controlling interpretation of its meaning and effect by the state
courts. To the same effect,
see Parker v. Los Angeles
County, 338 U. S. 327;
Watson v. Buck, 313 U. S. 387;
Beal v. Missouri Pacific R. Co., 312 U. S.
45. Indeed, without belaboring the point, the principle
that anticipatory relief against state criminal statutes is not
unavailable as a general matter may best be illustrated by several
cases recently decided in this Court. In
Harrison v.
NAACP, 360 U. S. 167, the
premise of our action was that anticipatory relief should be
obtained, if possible -- with review here on certiorari or appeal
-- in a state court which could then authoritatively construe a new
and ambiguous state statute; only if such relief were unavailable
should a Federal District Court exercise its
Page 367 U. S. 527
statutory jurisdiction. And in our recent decisions upholding
the constitutionality of state Sunday closing laws,
366 U. S. 366 U.S.
420
et seq., not one of the opinions paused even slightly
over the appropriateness of anticipatory relief, although, in one
case, that issue was argued,
Gallagher v. Crown Kosher Super
Market, 366 U. S. 617.
Hence, any language in the cases where the Court has abstained
from exercising its jurisdiction to the effect that we should not
"entertain constitutional questions in advance of the strictest
necessity,"
Parker v. Los Angeles County, supra, at
338 U. S. 333,
is not at all apposite in the present cases. For these appeals come
to us from the highest court of Connecticut, thus affording us --
in company with previous state interpretations of the same statute
-- a clear construction of the scope of the statute, thereby in
effect assuring that our review constitutes no greater interference
with state administration than the state procedures themselves
allow.
Second: I do not think these appeals may be dismissed
for want of "ripeness" as that concept has been understood in its
"varied applications." [
Footnote
3/3] There is no lack of "ripeness" in the sense that is
exemplified by cases such as
Stearns v. Wood, 236 U. S.
75;
Electric Bond & Share Co. v. Securities
& Exchange Comm'n, 303 U. S. 419;
United Public Workers v. Mitchell, 330 U. S.
75;
International
Page 367 U. S. 528
Longshoremen's Union v. Boyd, 347 U.
S. 222; and perhaps again
Parker v. Los Angeles
County, supra. In all of those cases, the lack of ripeness
inhered in the fact that the need for some further procedure, some
further contingency of application or interpretation, whether
judicial, administrative or executive, or some further
clarification of the intentions of the claimant, served to make
remote the issue which was sought to be presented to the Court.
Certainly the appellants have stated in their pleadings fully and
unequivocally what it is that they intend to do; no clarifying or
resolving contingency stands in their way before they may embark on
that conduct. Thus there is no circumstance, besides that of
detection or prosecution, to make remote the particular
controversy. And it is clear beyond cavil that the mere fact that a
controversy such as this is rendered still more unavoidable by an
actual prosecution is not
alone sufficient to make the
case too remote, not ideally enough "ripe" for adjudication, at the
prior stage of anticipatory relief.
Moreover, it follows from what has already been said that there
is no such want of ripeness as was presented in
Rescue Army v.
Municipal Court, 331 U. S. 549, or
in our recent decisions dismissing the appeals in
Atlanta
Newspapers, Inc. v. Grimes, 364 U. S. 290, and
United States v. Fruehauf, 365 U.
S. 146, where the records presented for adjudication a
controversy so artificially truncated as to make the cases not
susceptible to intelligent decision. I cannot see what further
elaboration is required to enable us to decide the appellants'
claims, and indeed neither the plurality opinion nor the concurring
opinion -- notwithstanding the latter's characterization of this
record as "skimpy" -- suggests what mere grist is needed before the
judicial mill could turn.
Third: This is not a feigned, hypothetical, friendly or
colorable suit such as discloses "a want of a truly adversary
Page 367 U. S. 529
contest." Clearly, these cases are not analogous to
Wood-Paper Co. v.
Heft, 8 Wall. 333, or
South Spring Hill Gold
Mining Co. v. Amador Medean Gold Mining Co., 145 U.
S. 300, where, prior to consideration, the controversy
in effect became moot by the merger of the two contesting
interests. Nor is there any question of collusion, as in
Lord v.
Veazie, 8 How. 251, or in
United States v.
Johnson, 319 U. S. 302. And
there is nothing to suggest that the parties, by their conduct of
this litigation, have cooperated to force an adjudication of a
constitutional issue which -- were the parties interested solely in
winning their cases, rather than obtaining a constitutional
decision -- might not arise in an arm's-length contested
proceeding. Such was the situation in
Chicago & Grand Trunk
R. Co. v. Wellman, 143 U. S. 339,
where the parties sought a ruling as to whether a particular
passenger rate was unconstitutionally confiscatory, having
stipulated all the debatable and contingent facts which otherwise
might have rendered a constitutional decision unnecessary.
In the present appeals, no more is alleged or conceded than is
consistent with undisputed facts and with ordinary practice in
deciding a case for anticipatory relief on demurrer. I think it is
unjustifiably stretching things to assume that appellants are not
deterred by the threat of prosecution from engaging in the conduct
in which they assert a right to engage, or to assume that
appellee's demurrer to the proposition that he asserts the right to
enforce the statute against appellants at any time he chooses is
anything but a candid one.
Indeed, as will be developed below, I think both the plurality
and concurring opinions confuse on this score the predictive
likelihood that, had they not brought themselves to appellee's
attention, he would not enforce the statute against them, with some
entirely suppositious "tacit agreement" not to prosecute, thereby
ignoring the
Page 367 U. S. 530
prosecutor's claim, asserted in these very proceedings, of a
right, at his unbounded prosecutorial discretion, to enforce the
statute.
Fourth: The doctrine of the cases dealing with a
litigant's lack of standing to raise a constitutional claim is said
to justify the dismissal of these appeals. The precedents put
forward as examples of this doctrine,
see the plurality
opinion,
note 5 as well as
cases such as
Frothingham v. Mellon and
Massachusetts
v. Mellon, 262 U. S. 447, and
Texas v. Interstate Commerce Comm'n, 258 U.
S. 158, do indeed stand for the proposition that a legal
claim will not be considered at the instance of one who has no real
and concrete interest in its vindication. This is well in accord
with the grounds for declining jurisdiction suggested above. But
this doctrine, in turn, needs further particularization, lest it
become a catchall for an unarticulated discretion on the part of
this Court to decline to adjudicate appeals involving
constitutional issues.
There is no question but that appellants here are asserting
rights which are peculiarly their own, and which, if they are to be
raised at all, may be raised most appropriately by them.
Cf.
Tileston v. Ullman, 318 U. S. 44;
Texas v. Interstate Commerce Comm'n, supra; Yazoo &
Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.
S. 217;
Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S. 341
(concurring opinion). Nor do I understand the argument to be that
this is the sort of claim which is too remote ever to be pressed by
anyone, because no one is ever sufficiently involved.
Cf.
Massachusetts v. Mellon, Frothingham v. Mellon, supra. Thus,
in truth, it is not the parties pressing this claim, but the
occasion chosen for pressing it, which is objected to. But, as has
been shown, the fact that it is anticipatory relief which is asked
cannot, of itself, make the occasion objectionable.
Page 367 U. S. 531
We are brought, then, to the precise failing in these
proceedings which is said to justify refusal to exercise our
mandatory appellate jurisdiction: that there has been but one
recorded Connecticut case dealing with a prosecution under the
statute. [
Footnote 3/4] The
significance of this lack of recorded evidence of prosecutions is
said to make the presentation of appellants' rights too remote, too
contingent, too hypothetical for adjudication in the light of the
policies already considered.
See pp.
367 U. S.
526-530,
supra. In my view, it is only as a
result of misconceptions both about the purport of the record
before us and about the nature of the rights appellants put forward
that this conclusion can be reached.
As far as the record is concerned, I think it is pure
conjecture, and indeed conjecture which to me seems contrary to
realities, that an open violation of the statute by a doctor (or
more obviously still by a birth control clinic) would not result in
a substantial threat of prosecution. Crucial to the opposite
conclusion is the description of the 1940 prosecution instituted in
State v. Nelson, 126 Conn. 412, 11 A.2d 856, as a "test
case" which, as it is viewed, scarcely even punctuates the uniform
state practice of nonenforcement of this statute. I read the
history of Connecticut enforcement in a very different light. The
Nelson case, as appears from the state court's opinion,
was a prosecution of two doctors and a nurse for aiding and
abetting violations of this statute by married women in prescribing
and advising the use of contraceptive materials by them. It is true
that there is
Page 367 U. S. 532
evidence of a customary unwillingness to enforce the statute
prior to
Nelson, for, in that case, the prosecutor stated
to the trial court, in a later motion to discontinue the
prosecutions, that,
"When this Waterbury clinic [operated by the defendants] was
opened, there were in open operation elsewhere in the State at
least eight other contraceptive clinics which had been in existence
for a long period of time, and no questions as to their right to
operate had been raised. . . . [
Footnote 3/5]"
What must also be noted is that the prosecutor followed this
statement with an explanation that the primary purpose of the
prosecution was to provide clear warning to all those who, like
Nelson, might rely on this practice of nonenforcement. He stated
that the purpose of the prosecution was:
"the establishment of the constitutional validity and efficacy
of the statutes under which these accused are informed against.
Henceforth any person, whether a physician or layman, who violates
the provisions of these statutes must expect to be prosecuted and
punished in accordance with the literal provisions of the law.
[
Footnote 3/6] "
Page 367 U. S. 533
Thus, the respect in which
Nelson was a test case is
only that it was brought for the purpose of making entirely clear
the State's power and willingness to enforce against "
any
person, whether a physician or layman" (emphasis supplied), the
statute and to eliminate from future cases the very doubt about the
existence of these elements which had resulted in eight open birth
control clinics, and which would have made unfair the conviction of
Nelson.
The plurality opinion now finds, and the concurring opinion must
assume, that the only explanation of the absence of recorded
prosecutions subsequent to the
Nelson case is that
Connecticut has renounced that intention to prosecute and punish
"
any person . . . in accordance with the literal
provisions of the law" which it announced in
Nelson. But
if renunciation of the purposes of the
Nelson prosecution
is consistent with a lack of subsequent prosecutions, success of
that purpose is no less consistent with this lack. I find it
difficult to believe that doctors generally -- and not just those
operating specialized clinics -- would continue openly to
disseminate advice about contraceptives after
Nelson in
reliance on the State's supposed unwillingness to prosecute, or to
consider that high-minded members of the profession would, in
consequence of such inaction, deem themselves warranted in
disrespecting this law so long as it is on the books. Nor can I
regard as "chimerical" the fear of enforcement of these provisions
that seems to have caused the disappearance of at least nine birth
control clinics. [
Footnote 3/7] In
short, I fear that the Court has indulged in a bit of sleight of
hand to be rid of this case. It has treated the significance of the
absence of prosecutions during the twenty years since
Nelson as identical with that of the absence of
prosecutions during the years before
Page 367 U. S. 534
Nelson. It has ignored the fact that the very purpose
of the
Nelson prosecution was to change defiance into
compliance. It has ignored the very possibility that this purpose
may have been successful. [
Footnote
3/8] The result is to postulate
Page 367 U. S. 535
a security from prosecution for open defiance of the statute
which I do not believe the record supports. [
Footnote 3/9]
These considerations alone serve to bring appellants so squarely
within the rule of
Pierce v. Society of Sisters,
268 U. S. 510, and
Traux v. Raich, 239 U. S. 33, that
further demonstration would be pointless.
But even if Dr. Buxton were not in the litigation and
appellants, the Poes and Doe, were seeking simply to use
contraceptives without any need of consulting a physician
beforehand -- which is not the case we have, although it is the
case which the plurality opinion of the Court is primarily
concerned to discuss -- even then, I think that it misconceives the
concept of justiciability and the nature of these appellants'
rights to say that the failure of the State to carry through any
criminal prosecution requires dismissal of their appeals.
The Court's disposition assumes that to decide the case now, in
the absence of any consummated prosecutions, is unwise, because it
forces a difficult decision in advance of any exigent necessity
therefor. Of course, it is abundantly clear that this requisite
necessity can exist prior to any actual prosecution, for that is
the theory of anticipatory relief, and is, by now, familiar law.
What must be relied on, therefore, is that the historical absence
of prosecutions in some way leaves these appellants free to violate
the statute without fear of prosecution, whether or not the law is
constitutional, and thus absolves us from the duty of deciding if
it is. Despite the suggestion
Page 367 U. S. 536
of a "tougher and truer law" of immunity from criminal
prosecution, and despite speculation as to a "tacit agreement" that
this law will not be enforced, there is, of course, no suggestion
of an estoppel against the State if it should attempt to prosecute
appellants. Neither the plurality nor the concurring opinion
suggests that appellants have some legally cognizable right not to
be prosecuted if the statute is constitutional. What is meant is
simply that the appellants are more or less free to act without
fear of prosecution because the prosecuting authorities of the
State, in their discretion and at their whim, are, as a matter of
prediction, unlikely to decide to prosecute.
Here is the core of my disagreement with the present
disposition. As I will develop later in this opinion, the most
substantial claim which these married persons press is their right
to enjoy the privacy of their marital relations, free of the
enquiry of the criminal law, whether it be in a prosecution of them
or of a doctor whom they have consulted. And I cannot agreed that
their enjoyment of this privacy is not substantially impinged upon
when they are told that if they use contraceptives, indeed whether
they do so or not, the only thing which stands between them and
being forced to render criminal account of their marital privacy is
the whim of the prosecutor. [
Footnote
3/10] Connecticut's highest court has told us in the clearest
terms that, given proof, the prosecutor will succeed if he decides
to bring a proceeding against one of the appellants for taking
Page 367 U. S. 537
the precise actions appellants have announced they intend to
take. The State Court does not agree that there has come into play
a "tougher and truer law than the dead words of the written text,"
and, in the light of twelve unsuccessful attempts since 1943 to
change this legislation,
Poe v. Ullman, 147 Conn. 48, 56,
note 2, 156 A.2d 508, 513, this position is not difficult to
understand. Prosecution and conviction for the clearly spelled-out
actions the appellants wish to take is not made unlikely by any
fortuitous factor outside the control of the parties, nor is it
made uncertain by possible variations in the actions appellants
actually take from those the state courts have already passed upon.
All that stands between the appellants and jail is the legally
unfettered whim of the prosecutor and the constitutional issue this
Court today refuses to decide.
If we revert again to the reasons underlying our reluctance to
exercise a jurisdiction which technically we possess, and the
concrete expression of those underlying reasons in our cases,
see pp.
367 U. S.
526-531,
supra, then I think it must become
clear that there is no justification for failing to decide these
married persons' appeals. The controversy awaits nothing but an
actual prosecution, and, as will be shown, the substantial damage
against which these appellants, Mrs. Doe and the Poes, are entitled
to protection will be accomplished by such a prosecution, whatever
its outcome in the state courts or here. By the present decision,
although, as a general matter, the parties would be entitled to our
review in an anticipatory proceeding which the State allowed to be
instituted in its courts, these appellants are made to await actual
prosecution before we will hear them. Indeed, it appears that,
whereas appellants would surely have been entitled to review were
this a new statute,
see Harrison v. NAACP, supra, the
State here is enabled to maintain at least some substantial measure
of compliance with
Page 367 U. S. 538
this statute and still obviate any review in this Court, by the
device of purely discretionary prosecutorial inactivity. It seems
to me to destroy the whole purpose of anticipatory relief to
consider the prosecutor's discretion, once all legal and
administrative channels have been cleared, as in any way analogous
to those other contingencies which make remote a controversy
presenting constitutional claims.
In this light, it is not surprising that the Court's position is
without support in the precedents. [
Footnote 3/11] Indeed, it seems to me that
Pierce
v. Society of Sisters, 268 U. S. 510,
provides very clear authority contrary to the position of the Court
in this case, for there, a Court which included Justices Holmes,
Brandeis, and Stone rejected a claim of prematureness and then
passed upon and held unconstitutional a state statute whose
sanctions were not even to become effective for more than seventeen
months after the time the case was argued to this Court. The Court
found allegations of present loss of business, caused by the threat
of the statute's future enforcement against the Society's
clientele, sufficient to make the injury to the Society "present
and very real." 268 U.S. at
268 U. S. 536. I
cannot regard as less present, or less real, the tendency to
discourage the exercise of the liberties of these appellants,
caused by reluctance to submit their freedoms from prosecution
Page 367 U. S. 539
and conviction to the discretion of the Connecticut prosecuting
authorities. I therefore think it incumbent on us to consider the
merits of appellants' constitutional claims.
PART TWO
Constitutionality
I consider that this Connecticut legislation, as construed to
apply to these appellants, violates the Fourteenth Amendment. I
believe that a statute making it a criminal offense for married
couples to use contraceptives is an intolerable and unjustifiable
invasion of privacy in the conduct of the most intimate concerns of
an individual's personal life. I reach this conclusion even though
I find it difficult and unnecessary at this juncture to accept
appellants' other argument that the judgment of policy behind the
statute, so applied, is so arbitrary and unreasonable as to render
the enactment invalid for that reason alone. Since both the
contentions draw their basis from no explicit language of the
Constitution, and have yet to find expression in any decision of
this Court, I feel it desirable at the outset to state the
framework of constitutional principles in which I think the issue
must be judged.
I
In reviewing state legislation, whether considered to be in the
exercise of the State's police powers or in provision for the
health, safety, morals or welfare of its people, it is clear that
what is concerned are "the powers of government inherent in every
sovereignty."
The License
Cases, 5 How. 504,
46 U. S. 583.
Only to the extent that the Constitution so requires may this Court
interfere with the exercise of this plenary power of government.
Barron v. Mayor of City of
Baltimore, 7 Pet. 243. But precisely because it is
the Constitution alone which warrants judicial interference in
sovereign operations of the State,
Page 367 U. S. 540
the basis of judgment as to the constitutionality of state
action must be a rational one, approaching the text which is the
only commission for our power not in a literalistic way, as if we
had a tax statute before us, but as the basic charter of our
society, setting out in spare but meaningful terms the principles
of government.
M'Culloch v.
Maryland, 4 Wheat. 316. But as inescapable as is
the rational process in constitutional adjudication in general,
nowhere is it more so than in giving meaning to the prohibitions of
the Fourteenth Amendment, and, where the Federal Government is
involved, the Fifth Amendment, against the deprivation of life,
liberty or property without due process of law.
It is but a truism to say that this provision of both Amendments
is not self-explanatory. As to the Fourteenth, which is involved
here, the history of the Amendment also sheds little light on the
meaning of the provision. Fairman, Does the Fourteenth Amendment
Incorporate the Bill of Rights, 2 Stan.L.Rev. 15. It is important
to note, however, that two views of the Amendment have not been
accepted by this Court as delineating its scope. One view, which
was ably and insistently argued in response to what were felt to be
abuses by this Court of its reviewing power, sought to limit the
provision to a guarantee of procedural fairness.
See Davidson
v. City of New Orleans, 96 U. S. 97,
96 U. S. 105;
Brandeis, J., in
Whitney v. California, 274 U.
S. 357, at
274 U. S. 373;
Warren, The New "Liberty" under the 14th Amendment, 39 Harv.L.Rev.
431; Reeder, The Due Process Clauses and "The Substance of
Individual Rights," 58 U.Pa.L.Rev. 191; Shattuck, The True Meaning
of the Term "Liberty" in Those Clauses in the Federal and State
Constitutions Which Protect "Life, Liberty, and Property," 4
Harv.L.Rev. 365. The other view which has been rejected would have
it that the Fourteenth Amendment, whether by way of the Privileges
and Immunities Clause or the Due
Page 367 U. S. 541
Process Clause, applied against the States only and precisely
those restraints which had, prior to the Amendment, been applicable
merely to federal action. However, "due process," in the consistent
view of this Court, has even been a broader concept than the first
view, and more flexible than the second.
Were due process merely a procedural safeguard, it would fail to
reach those situations where the deprivation of life, liberty or
property was accomplished by legislation which by operating in the
future could, given even the fairest possible procedure in
application to individuals, nevertheless destroy the enjoyment of
all three.
Compare, e.g., Selective Draft Law Cases,
245 U. S. 366;
Butler v. Perry, 240 U. S. 328;
Korematsu v. United States, 323 U.
S. 214. Thus the guaranties of due process, though
having their roots in Magna Carta's "
per legem terrae" and
considered as procedural safeguards "against executive usurpation
and tyranny," have in this country "become bulwarks also against
arbitrary legislation."
Hurtado v. California,
110 U. S. 516, at
110 U. S.
532.
However, it is not the particular enumeration of rights in the
first eight Amendments which spells out the reach of Fourteenth
Amendment due process, but rather, as was suggested in another
context long before the adoption of that Amendment, those concepts
which are considered to embrace those rights "which are . . .
fundamental; which belong . . . to the citizens of all free
governments,"
Corfield v. Coryell, 4 Wash.C.C. 371, 380,
for "the purposes (of securing) which men enter into society,"
Calder v. Bull,
3 Dall. 386,
3 U. S. 388.
Again and again, this Court has resisted the notion that the
Fourteenth Amendment is no more than a shorthand reference to what
is explicitly set out elsewhere in the Bill of Rights.
The Slaughter-House
Cases, 16 Wall. 36;
Walker v. Sauvinet,
92 U. S. 90;
Hurtado v. California, 110 U. S. 516;
Presser v. Illinois, 116 U. S. 252;
In re Kemmler, 136 U. S. 436;
Page 367 U. S. 542
Twining v. New Jersey, 211 U. S.
78;
Palko v. Connecticut, 302 U.
S. 319. Indeed, the fact that an identical provision
limiting federal action is found among the first eight Amendments,
applying to the Federal Government, suggests that due process is a
discrete concept which subsists as an independent guaranty of
liberty and procedural fairness, more general and inclusive than
the specific prohibitions.
See Mormon Church v. United
States, 136 U. S. 1;
Downes v. Bidwell, 182 U. S. 244;
Hawaii v. Mankichi, 190 U. S. 197;
Balzac v. Porto Rico, 258 U. S. 298;
Farrington v. Tokushige, 273 U. S. 284;
Bolling v. Sharpe, 347 U. S. 497.
Due process has not been reduced to any formula; its content
cannot be determined by reference to any code. The best that can be
said is that, through the course of this Court's decisions, it has
represented the balance which our Nation, built upon postulates of
respect for the liberty of the individual, has struck between that
liberty and the demands of organized society. If the supplying of
content to this constitutional concept has of necessity been a
rational process, it certainly has not been one where judges have
felt free to roam where unguided speculation might take them. The
balance of which I speak is the balance struck by this country,
having regard to what history teaches are the traditions from which
it developed as well as the traditions from which it broke. That
tradition is a living thing. A decision of this Court which
radically departs from it could not long survive, while a decision
which builds on what has survived is likely to be sound. No formula
could serve as a substitute, in this area, for judgment and
restraint.
It is this outlook which has led the Court continuingly to
perceive distinctions in the imperative character of constitutional
provisions, since that character must be discerned from a
particular provision's larger context. And inasmuch as this context
is one not of words, but of
Page 367 U. S. 543
history and purposes, the full scope of the liberty guaranteed
by the Due Process Clause cannot be found in or limited by the
precise terms of the specific guarantees elsewhere provided in the
Constitution. This "liberty" is not a series of isolated points
pricked out in terms of the taking of property; the freedom of
speech, press, and religion; the right to keep and bear arms; the
freedom from unreasonable searches and seizures; and so on. It is a
rational continuum which, broadly speaking, includes a freedom from
all substantial arbitrary impositions and purposeless restraints,
see Allgeyer v. Louisiana, 165 U.
S. 578;
Holden v. Hardy, 169 U.
S. 366;
Booth v. Illinois, 184 U.
S. 425;
Nebbia v. New York, 291 U.
S. 502;
Skinner v. Oklahoma, 316 U.
S. 535, 544 (concurring opinion);
Schware v. Board
of Bar Examiners, 353 U. S. 232, and
which also recognizes, what a reasonable and sensitive judgment
must, that certain interests require particularly careful scrutiny
of the state needs asserted to justify their abridgment.
Cf.
Skinner v. Oklahoma, supra; Bolling v. Sharpe, supra.
As was said in
Meyer v. Nebraska, 262 U.
S. 390,
262 U. S.
399,
"this court has not attempted to define with exactness the
liberty thus guaranteed. . . . Without doubt, it denotes, not
merely freedom from bodily restraint. . . ."
Thus, for instance, when, in that case and in
Pierce v.
Society of Sisters, 268 U. S. 510, the
Court struck down laws which sought not to require what children
must learn in schools, but to prescribe, in the first case, what
they must
not learn, and in the second,
where
they must acquire their learning, I do not think it was wrong to
put those decisions on "the right of the individual to . . .
establish a home and bring up children,"
Meyer v. Nebraska,
ibid., or on the basis that
"The fundamental theory of liberty upon which all governments in
this Union repose excludes any general power of the State to
standardize its children by forcing them to accept instruction
Page 367 U. S. 544
from public teachers only,"
Pierce v. Society of Sisters, 268 U.S. at
268 U. S. 535.
I consider this so even though today those decisions would probably
have gone by reference to the concepts of freedom of expression and
conscience assured against state action by the Fourteenth
Amendment, concepts that are derived from the explicit guarantees
of the First Amendment against federal encroachment upon freedom of
speech and belief.
See West Virginia State Board of Education
v. Barnette, 319 U. S. 624 and
319 U. S. 656
(dissenting opinion);
Prince v. Massachusetts,
321 U. S. 158,
321 U. S. 166.
For it is the purposes of those guarantees and not their text, the
reasons for their statement by the Framers and not the statement
itself,
see Palko v. Connecticut, 302 U.
S. 319,
302 U. S.
324-327;
United States v. Carolene Products
Co., 304 U. S. 144,
304 U. S.
152-153, which have led to their present status in the
compendious notion of "liberty" embraced in the Fourteenth
Amendment.
Each new claim to constitutional protection must be considered
against a background of constitutional purposes, as they have been
rationally perceived and historically developed. Though we exercise
limited and sharply restrained judgment, yet there is no
"mechanical yard-stick," no "mechanical answer." The decision of an
apparently novel claim must depend on grounds which follow closely
on well accepted principles and criteria. The new decision must
take "its place in relation to what went before and further [cut] a
channel for what is to come."
Irvine v. California,
347 U. S. 128,
347 U. S. 147
(dissenting opinion). The matter was well put in
Rochin v.
California, 342 U. S. 165,
342 U. S.
170-171:
"The vague contours of the Due Process Clause do not leave
judges at large. We may not draw on our merely personal and private
notions and disregard the limits that bind judges in their judicial
function. Even though the concept of due process of law is not
final and fixed, these limits are derived from considerations
Page 367 U. S. 545
that are fused in the whole nature of our judicial process. . .
. These are considerations deeply rooted in reason and in the
compelling traditions of the legal profession."
On these premises, I turn to the particular constitutional claim
in this case.
II
Appellants contend that the Connecticut statute deprives them,
as it unquestionably does, of a substantial measure of liberty in
carrying on the most intimate of all personal relationships, and
that it does so arbitrarily and without any rational, justifying
purpose. The State, on the other hand, asserts that it is acting to
protect the moral welfare of its citizenry, both directly, in that
it considers the practice of contraception immoral in itself, and
instrumentally, in that the availability of contraceptive materials
tends to minimize "the disastrous consequence of dissolute action,"
that is fornication and adultery.
It is argued by appellants that the judgment, implicit in this
statute -- that the use of contraceptives by married couples is
immoral -- is an irrational one, that, in effect, it subjects them
in a very important matter to the arbitrary whim of the
legislature, and that it does so for no good purpose. Where, as
here, we are dealing with what must be considered "a basic
liberty,"
cf. Skinner v. Oklahoma, supra, at
316 U. S. 541,
"[t]here are limits to the extent to which the presumption of
constitutionality can be pressed,"
id., at
316 U. S. 544
(concurring opinion), and the mere assertion that the action of the
State finds justification in the controversial realm of morals
cannot justify alone any and every restriction it imposes.
See
Alberts v. California, 354 U. S. 476.
Yet the very inclusion of the category of morality among state
concerns indicates that society is not limited in its objects only
to the physical wellbeing of the community,
Page 367 U. S. 546
but has traditionally concerned itself with the moral soundness
of its people as well. Indeed, to attempt a line between public
behavior and that which is purely consensual or solitary would be
to withdraw from community concern a range of subjects with which
every society in civilized times has found it necessary to deal.
The laws regarding marriage which provide both when the sexual
powers may be used and the legal and societal context in which
children are born and brought up, as well as laws forbidding
adultery, fornication and homosexual practices which express the
negative of the proposition, confining sexuality to lawful
marriage, form a pattern so deeply pressed into the substance of
our social life that any constitutional doctrine in this area must
build upon that basis.
Compare McGowan v. Maryland,
366 U. S. 420.
It is in this area of sexual morality, which contains many
proscriptions of consensual behavior having little or no direct
impact on others, that the Connecticut has expressed its moral
judgment that all use of contraceptives is improper. Appellants
cite an impressive list of authorities who, from a great variety of
points of view, commend the considered use of contraceptives by
married couples. What they do not emphasize is that, not too long
ago, the current of opinion was very probably quite the opposite,
[
Footnote 3/12] and that, even
today, the issue is not
Page 367 U. S. 547
free of controversy. Certainly, Connecticut's judgment is no
more demonstrably correct or incorrect than are the varieties of
judgment, expressed in law, on marriage and divorce, on adult
consensual homosexuality, abortion, and sterilization, or
euthanasia and suicide. If we had a case before us which required
us to decide simply, and in abstraction, whether the moral judgment
implicit in the application of the present statute to married
couples was a sound one, the very controversial nature of these
questions would, I think, require us to hesitate long before
concluding that the Constitution precluded Connecticut from
choosing as it has among these various views.
Cf. Alberts v.
California, 354 U. S. 476,
354 U. S.
500-503 (concurring opinion).
But, as might be expected, we are not presented simply with this
moral judgment to be passed on as an abstract proposition. The
secular state is not an examiner of consciences: it must operate in
the realm of behavior, of overt actions, and where it does so
operate, not only the underlying, moral purpose of its operations,
but also the choice of means becomes relevant to any constitutional
judgment on what is done. The moral presupposition on which
appellants ask us to pass judgment could form the basis of a
variety of legal rules and administrative choices, each presenting
a different issue for adjudication. For example, one practical
expression of the moral view propounded here might be the rule that
a marriage in which
Page 367 U. S. 548
only contraceptive relations had taken place had never been
consummated, and could be annulled.
Compare, e.g., 2
Bouscaren, Canon Law Digest, 307-313. Again, the use of
contraceptives might be made a ground for divorce, or perhaps tax
benefits and subsidies could be provided for large families. Other
examples also readily suggest themselves.
III
Precisely what is involved here is this: the State is asserting
the right to enforce its moral judgment by intruding upon the most
intimate details of the marital relation with the full power of the
criminal law. Potentially, this could allow the deployment of all
the incidental machinery of the criminal law, arrests, searches and
seizures; inevitably, it must mean, at the very least, the lodging
of criminal charges, a public trial, and testimony as to the
corpus delicti. Nor could any imaginable elaboration of
presumptions, testimonial privileges, or other safeguards,
alleviate the necessity for testimony as to the mode and manner of
the married couples' sexual relations, or at least the opportunity
for the accused to make denial of the charges. In sum, the statute
allows the State to enquire into, prove and punish married people
for the private use of their marital intimacy.
This, then, is the precise character of the enactment whose
constitutional measure we must take. The statute must pass a more
rigorous constitutional test than that going merely to the
plausibility of its underlying rationale.
See pp.
367 U. S.
542-545,
supra. This enactment involves what,
by common understanding throughout the English-speaking world, must
be granted to be a most fundamental aspect of "liberty," the
privacy of the home in its most basic sense, and it is this which
requires that the statute be subjected to "strict scrutiny."
Skinner v. Oklahoma, supra, at
316 U. S.
541.
Page 367 U. S. 549
That aspect of liberty which embraces the concept of the privacy
of the home receives explicit constitutional protection at two
places only. These are the Third Amendment, relating to the
quartering of soldiers, [
Footnote
3/13] and the Fourth Amendment, prohibiting unreasonable
searches and seizures. [
Footnote
3/14] While these Amendments reach only the Federal Government,
this Court has held in the strongest terms, and today again
confirms, that the concept of "privacy" embodied in the Fourth
Amendment is part of the "ordered liberty" assured against state
action by the Fourteenth Amendment.
See Wolf v. Colorado,
338 U. S. 25;
Mapp v. Ohio, 367 U. S. 643.
It is clear, of course, that this Connecticut statute does not
invade the privacy of the home in the usual sense, since the
invasion involved here may, and doubtless usually would, be
accomplished without any physical intrusion whatever into the home.
What the statute undertakes to do, however, is to create a crime
which is grossly offensive to this privacy, while the Constitution
refers only to methods of ferreting out substantive wrongs, and the
procedure it requires presupposes that substantive offenses may be
committed and sought out in the privacy of the home. But such an
analysis forecloses any claim to constitutional protection against
this form of deprivation of privacy, only if due process in this
respect is limited to what is explicitly provided in the
Constitution, divorced from the rational purposes, historical
roots, and subsequent developments of the relevant provisions.
Page 367 U. S. 550
Perhaps the most comprehensive statement of the principle of
liberty underlying these aspects of the Constitution was given by
Mr. Justice Brandeis, dissenting in
Olmstead v. United
States, 277 U. S. 438, at
277 U. S.
478:
"The protection guaranteed by the [Fourth and Fifth] Amendments
is much broader in scope. The makers of our Constitution undertook
to secure conditions favorable to the pursuit of happiness. They
recognized the significance of man's spiritual nature, of his
feelings and of his intellect. They knew that only a part of the
pain, pleasure and satisfactions of life are to be found in
material things. They sought to protect Americans in their beliefs,
their thoughts, their emotions and their sensations. They
conferred, as against the government, the right to be let alone --
the most comprehensive of rights and the right most valued by
civilized men. To protect that right, every unjustifiable intrusion
by the government upon the privacy of the individual, whatever the
means employed, must be deemed a violation of the Fourth Amendment.
. . ."
I think the sweep of the Court's decisions, under both the
Fourth and Fourteenth Amendments amply shows that the Constitution
protects the privacy of the home against all unreasonable intrusion
of whatever character.
"[These] principles . . . affect the very essence of
constitutional liberty and security. They reach farther than [a]
concrete form of the case . . . before the court, with its
adventitious circumstances; they apply to all invasions on the part
of the government and its employees of the sanctity of a man's home
and the privacies of life. . . ."
Boyd v. United States, 116 U.
S. 616,
116 U. S.
630.
"The security of one's privacy against arbitrary intrusion by
the police -- which is at the core of the Fourth Amendment -- is
basic to a free society."
Wolf v. Colorado, supra, at
338 U. S. 27. In
addition,
see, e.g., Davis v. United States, 328 U.
S. 582,
328 U. S.
587;
Page 367 U. S. 551
Oklahoma Press Pub. Co. v. Walling, 327 U.
S. 186,
327 U. S.
202-203;
Frank v. Maryland, 359 U.
S. 360,
359 U. S.
365-366;
Silverman v. United States,
365 U. S. 505,
365 U. S.
511.
It would surely be an extreme instance of sacrificing substance
to form were it to be held that the constitutional principle of
privacy against arbitrary official intrusion comprehends only
physical invasions by the police. To be sure, the times presented
the Framers with two particular threats to that principle, the
general warrant,
see Boyd v. United States, supra, and the
quartering of soldiers in private homes. But though
"[l]egislation, both statutory and constitutional, is enacted .
. . from an experience of evils . . . , its general language should
not, therefore, be necessarily confined to the form that evil had
theretofore taken. . . . [A] principle, to be vital, must be
capable of wider application than the mischief which gave it
birth."
Weems v. United States, 217 U.
S. 349,
217 U. S.
373.
Although the form of intrusion here -- the enactment of a
substantive offense -- does not, in my opinion, preclude the making
of a claim based on the right of privacy embraced in the "liberty"
of the Due Process Clause, it must be acknowledged that there is
another sense in which it could be argued that this intrusion on
privacy differs from what the Fourth Amendment, and the similar
concept of the Fourteenth, were intended to protect: here, we have
not an intrusion into the home so much as on the life which
characteristically has its place in the home. But, to my mind, such
a distinction is so insubstantial as to be captious: if the
physical curtilage of the home is protected, it is surely as a
result of solicitude to protect the privacies of the life within.
Certainly the safeguarding of the home does not follow merely from
the sanctity of property rights. The home derives its preeminence
as the seat of family life. And the integrity of that life is
something so fundamental that it has been found to draw
Page 367 U. S. 552
to its protection the principles of more than one explicitly
granted constitutional right. Thus, Mr. Justice Brandeis, writing
of a statute which made "it punishable to teach [pacifism] in any
place [to] a single person . . . , no matter what the relation of
the parties may be," found such a
"statute invades the privacy and freedom of the home. Father and
mother may not follow the promptings of religious belief, of
conscience or of conviction, and teach son or daughter the doctrine
of pacifism. If they do, any police officer may summarily arrest
them."
Gilbert v. Minnesota, 254 U. S. 325,
254 U. S.
335-336 (dissenting opinion). This same principle is
expressed in the
Pierce and
Meyer cases,
supra. These decisions, as was said in
Prince v.
Massachusetts, 321 U. S. 158, at
321 U. S. 166,
"have respected the private realm of family life which the state
cannot enter."
Of this whole "private realm of family life," it is difficult to
imagine what is more private or more intimate than a husband and
wife's marital relations. We would indeed be straining at a gnat
and swallowing a camel were we to show concern for the niceties of
property law involved in our recent decision, under the Fourth
Amendment, in
Chapman v. United States, 365 U.
S. 610, and yet fail at least to see any substantial
claim here.
Of course, just as the requirement of a warrant is not
inflexible in carrying out searches and seizures,
see Abel v.
United States, 362 U. S. 217;
United States v. Rabinowitz, 339 U. S.
56, so there are countervailing considerations at this
more fundamental aspect of the right involved. "[T]he family . . .
is not beyond regulation,"
Prince v. Massachusetts, supra,
and it would be an absurdity to suggest either that offenses may
not be committed in the bosom of the family or that the home can be
made a sanctuary for crime. The right of privacy most manifestly is
not an absolute. Thus, I would not suggest that adultery,
homosexuality, fornication, and incest are immune from criminal
enquiry, however privately practiced. So much
Page 367 U. S. 553
has been explicitly recognized in acknowledging the State's
rightful concern for its people's moral welfare.
See pp.
367 U. S.
545-548,
supra. But not to discriminate between
what is involved in this case and either the traditional offenses
against good morals or crimes which, though they may be committed
anywhere, happen to have been committed or concealed in the home
would entirely misconceive the argument that is being made.
Adultery, homosexuality, and the like are sexual intimacies
which the State forbids altogether, but the intimacy of husband and
wife is necessarily an essential and accepted feature of the
institution of marriage, an institution which the State not only
must allow, but which, always and in every age, it has fostered and
protected. It is one thing when the State exerts its power either
to forbid extramarital sexuality altogether, or to say who may
marry, but it is quite another when, having acknowledged a marriage
and the intimacies inherent in it, it undertakes to regulate by
means of the criminal law the details of that intimacy.
In sum, even though the State has determined that the use of
contraceptives is as iniquitous as any act of extramarital sexual
immorality, the intrusion of the whole machinery of the criminal
law into the very heart of marital privacy, requiring husband and
wife to render account before a criminal tribunal of their uses of
that intimacy, is surely a very different thing indeed from
punishing those who establish intimacies which the law has always
forbidden and which can have no claim to social protection.
In my view, the appellants have presented a very pressing claim
for constitutional protection. Such difficulty as the claim
presents lies only in evaluating it against the State's
countervailing contention that it be allowed to enforce, by
whatever means it deems appropriate, its judgment of the immorality
of the practice this law condemns.
Page 367 U. S. 554
In resolving this conflict, a number of factors compel me to
conclude that the decision here must most emphatically be for the
appellants. Since, as it appears to me, the statute marks an
abridgment of important fundamental liberties protected by the
Fourteenth Amendment, it will not do to urge in justification of
that abridgment simply that the statute is rationally related to
the effectuation of a proper state purpose. A closer scrutiny and
stronger justification than that are required.
See pp.
367 U. S.
542-545,
supra.
Though the State has argued the constitutional permissibility of
the moral judgment underlying this statute, neither its brief, nor
its argument, nor anything in any of the opinions of its highest
court in these or other cases even remotely suggests a
justification for the obnoxiously intrusive means it has chosen to
effectuate that policy. To me, the very circumstance that
Connecticut has not chosen to press the enforcement of this statute
against individual users, while it nevertheless persists in
asserting its right to do so at any time -- in effect, a right to
hold this statute as an imminent threat to the privacy of the
households of the State -- conduces to the inference either that it
does not consider the policy of the statute a very important one or
that it does not regard the means it has chosen for its
effectuation as appropriate or necessary.
But conclusive, in my view, is the utter novelty of this
enactment. Although the Federal Government and many States have at
one time or other had on their books statutes forbidding or
regulating the distribution of contraceptives, none, so far as I
can find, has made the use of contraceptives a crime. [
Footnote 3/15] Indeed, a diligent search
has
Page 367 U. S. 555
revealed that no nation, including several which quite evidently
share Connecticut's moral policy, [
Footnote 3/16] has seen fit to effectuate that policy
by the means presented here.
Though undoubtedly the States are and should be left free to
reflect a wide variety of policies, and should be allowed broad
scope in experimenting with various means of promoting those
policies, I must agree with Mr. Justice Jackson that
"There are limits to the extent to which a legislatively
represented majority may conduct . . . experiments at the expense
of the dignity and personality"
of the individual.
Skinner v. Oklahoma, supra. In this
instance, these limits are, in my view, reached and passed.
I would adjudicate these appeals and hold this statute
unconstitutional insofar as it purports to make criminal the
conduct contemplated by these married women. It follows that if
their conduct cannot be a crime, appellant Buxton cannot be an
accomplice thereto. I would reverse the judgment in each of these
cases.
MR. JUSTICE STEWART, dissenting.
For the reasons so convincingly advanced by both MR. JUSTICE
DOUGLAS and MR. JUSTICE HARLAN, I join them in dissenting from the
dismissal of these appeals. Since the appeals are nonetheless
dismissed, my dissent need go no further. However, in refraining
from a discussion of the constitutional issues, I in no way imply
that the ultimate result I would reach on the merits of these
controversies would differ from the conclusions of my dissenting
Brothers.
[
Footnote 3/1]
These statutes, Conn.Gen.Stat.Rev.1958, § 53-32 (forbidding the
use of contraceptives), and Conn.Gen.Stat.Rev.1958, § 54-196 (the
general accessory law), are set forth in note 2 of the plurality
opinion,
ante, 367 U. S.
499.
[
Footnote 3/2]
Only two cases are squarely relied on,
CIO v. McAdory,
325 U. S. 472, a
companion case to
Alabama State Federation of Labor v. McAdory,
supra, discussed at pp.
367 U. S.
526-527,
infra, and tendering the same issues,
and
Ex parte La Prade, 289 U. S. 444. The
appeal in the principal
McAdory case was dismissed because
the state statute there challenged had not yet been construed by
the state courts, and it was thought that state construction might
remove some constitutional doubts. In the companion
McAdory case, the appeal was likewise dismissed, the State
having
"agreed not to enforce § 7 of the Act (there challenged) until
the final decision as to the section's validity by this Court in
Alabama State Federation of Labor v. McAdory. . . ."
Id.,. at
325 U. S. 475.
In the present appeals, there is no agreement not to prosecute, no
companion case awaiting disposition, and no uncertainty about state
law due to lack of state construction.
As to
Ex parte La Prade, supra, see 367
U.S. 497fn3/11|>note 11,
infra.
[
Footnote 3/3]
Manifestly, the type of ripeness found wanting in cases such as
Massachusetts v. Mellon, 262 U. S. 447;
Texas v. Interstate Commerce Comm'n, 258 U.
S. 158;
New Jersey v. Sargent, 269 U.
S. 328, and
Arizona v. California, 283 U.
S. 423, is not lacking in the cases before us. For the
recurrent theme of those cases, all of which challenge federal
action as an encroachment on state sovereignty, is the fact that
the mere existence of state sovereign powers and prerogatives which
may bear generally upon individual rights raises no such concrete
and practical issues as courts are accustomed to consider, so that
adjudication upon their validity in such circumstances would take
place in the most abstract kind of setting.
[
Footnote 3/4]
Some support is sought to be drawn for the supposition of state
acquiescence in violation of the statute from the case of
State
v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d
863. But that case held no more than that contraceptive materials
could not be seized under the authority of a statute interpreted to
deal with the seizure of gambling paraphernalia.
[
Footnote 3/5]
The "circumstances" of the
Nelson case may best be
gathered from the remarks of the State's prosecuting attorney, Mr.
Fitzgerald, seeking the approval of the trial judge for a
nolle
prosequi in that case after the decision of the State Supreme
Court. In an affidavit accompanying a transcript of the proceedings
on the State's motion, the attorney for the defendants stated
that
"said criminal prosecutions were prosecutions instituted by the
State upon complaint of a citizen and were instituted in no sense
with the prior knowledge or approval of the accused and there was
no pretrial acquiescence by the accused that said actions would be
instituted to test the constitutionality of the statutes in
question."
[
Footnote 3/6]
This statement was made in the same proceedings referred to in
367
U.S. 497fn3/5|>note 5,
supra.
[
Footnote 3/7]
See Brief of Planned Parenthood Federation of America,
Inc., as
amicus curiae, p. 4, and Appendix f.
[
Footnote 3/8]
The concurring opinion concludes, apparently on the basis of the
Nelson episode, that the "true controversy in this case is
over the opening of birth control clinics on a large scale. . . ."
It should be said at once that, as to
these appeals, this
is an entirely unwarranted assumption. The
amicus curiae
in this case, the Planned Parenthood Federation of America, Inc.,
is indeed interested in such clinics,
see 367
U.S. 497fn3/9|>note 7,
supra, but as to the actual
parties here, there is not one word in the record or their briefs
to suggest that their interest is anything other than they say it
is. The
Nelson prosecution, it is true, involved a doctor
and nurses at a birth control clinic, but there is nothing about
these statutes, as they have been authoritatively construed in this
and previous cases, that limits their application to advice given
by a doctor in a clinic of that sort, as opposed to advice given by
a doctor in some less specialized clinic, a hospital or in his own
office.
The only conceivable sense in which "[t]he true controversy in
this case is over the opening of birth control clinics" must lie in
the circumstance that, since the notorious and avowed purpose of
such a clinic is the violation of these statutes, there would not
be the same problem of detection or proof of violations as might
otherwise present itself. The relevance, in turn, of this
circumstance must be that, in the view of the concurring opinion,
there is a present threat of enforcement against any such clinic --
which I too believe -- but coupled with a further assumption -- one
shared by the plurality opinion, though lacking any factual warrant
whatever -- that these statutes do not also deter members of the
medical profession in general from violating these statutes.
Furthermore, both opinions must share the assumption that the
appellants may be required to hold what may be their constitutional
rights at the whim and pleasure of the prosecutor. In sum, the
strong implication of the concurring opinion that a suit for
anticipatory relief brought by a birth control clinic (though it
would raise no different issues and present a record no less
"skimpy") would succeed in invoking our jurisdiction where these
suits fail, exposes the fallacy underlying the Court's disposition:
the unprecedented doctrine that a suit for anticipatory relief will
be entertained at the instance of one who is forced to violate a
statute flagrantly, but not at the urging of one who may violate it
surreptitiously with a high probability of avoiding detection.
[
Footnote 3/9]
In this regard, it is worth comparing the record of the Federal
Communications Commission in enforcing its regulations by means of
a threat of revocation of station licenses. The Commission has not,
as is generally known, used this sanction much more readily than
Connecticut has invoked criminal penalties to enforce the laws here
in question, but no one would discount entirely the efficacy of the
threat, or suggest that open defiance of Commission regulations is
without substantial risks.
[
Footnote 3/10]
It is suggested that prosecution is unlikely because of an
interspousal testimonial privilege in Connecticut. Assuming that
such a privilege exists and is applicable here, the testimony of
either spouse is not necessary to a conviction. Furthermore, as
will be argued, the real incursion here inheres in the institution
of a prosecution in this matter at all, with the consequent need of
an opportunity for the parties -- guilty or innocent -- to defend
themselves against the charges.
See p.
367 U. S. 548,
infra.
[
Footnote 3/11]
There is a much discredited dictum in
Ex parte La
Prade, 289 U. S. 444,
that, in an injunction action, there must be an allegation of
threatened immediate enforcement of the statute.
See 50
Yale L.J. 1278; Borchard, Challenging "Penal" Statutes by
Declaratory Action, 52 Yale L.J. 445; 62 Harv.L.Rev. 870-871. But
against this dictum (which, even in its context, was justified only
as a natural consequence of the rule of
Ex parte Young,
209 U. S. 123,
involving suits against state officers) one can array numerous
cases in which proof of any such immediate threat was considered
unnecessary, and the Court proceeded to a determination of the
merits.
See, e.g., Pennsylvania v. West Virginia,
262 U. S. 553;
Euclid, Ohio v. Ambler Realty Co., 272 U.
S. 365;
Carter v. Carter Coal Co., 298 U.
S. 238;
Currin v. Wallace, 306 U. S.
1.
[
Footnote 3/12]
The so-called Comstock Law, 17 Stat. 598, may be regarded as
characteristic of the attitude of a large segment of public opinion
on this matter through the end of the last century. It was only by
judicial interpretation at a later date that the absolute
prohibitions of the law were qualified to exclude professional
medical use.
Youngs Rubber Corp. v. C. I. Lee & Co.,
45 F.2d 103;
Davis v. United States, 62 F.2d 473;
United States v. One Package, 86 F.2d 737; 50 Harv.L.Rev.
1312. However, the Comstock Law, in its original form, "started a
fashion," and many States enacted similar legislation, some of
which is still on the books.
See Stone and Pilpel, The
Social and Legal Status of Contraception, 22 N.C.L.Rev. 212;
Legislation Note, 45 Harv.L.Rev. 723; Note, 6 U. of Chi.L.Rev. 260;
Murray, America's Four Conspiracies, at 32-33, in Religion in
America (Cogley ed.). Indeed the criticism of these measures assume
that they represented general public opinion, though of a bygone
day.
See, e.g., Knopf, Various Aspects of Birth Control;
Birth Control Clinical Research Bureau, Laws Relating to Birth
Control in the United States and its Territories, foreword and
introduction; Stone and Pilpel,
supra; Hearings on H.R.
11082, 72d Cong., 1st Sess.
See generally Broun and Leech,
Anthony Comstock; Dennett, Birth Control Laws.
[
Footnote 3/13]
"No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law."
[
Footnote 3/14]
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized."
[
Footnote 3/15]
See tabulation of statutes in Birth Control
Legislation, 9 Cleveland-Marshall Law Review, 245 (1960);
Legislation Note, 45 Harv.L.Rev. 723 (1932); Birth Control Clinical
Research Bureau, Laws Relating to Birth Control in the United
States and its Territories (1938).
[
Footnote 3/16]
Unqualified disapproval of contraception is implicit in the laws
of Belgium, Droit Penal, § 383; France, Code Penal, Art. 317;
Ireland, Censorship of Publications Act of 1929, §§ 16, 17,
Criminal Law Amendment Act of 1935, § 17; Italy, Codice Penale,
Arts. 553, 555; and Spain, Codigo Penal, Art. 416.
Compare
the more permissive legislation in Canada, Criminal Code, § 150;
Germany, Strafgesetzbuch, § 184; Switzerland, Code Penal, Art.
211.