Section 6811(8) of the New York Education Law makes it a crime
(1) for any person to sell or distribute any contraceptive of any
kind to a minor under 16; (2) for anyone other than a licensed
pharmacist to distribute contraceptives to persons 16 or over; and
(3) for anyone, including licensed pharmacists, to advertise or
display contraceptives. In appellees' action against appellant
state officials challenging the constitutionality of $ 6811(8), a
three-judge District Court declared the statute unconstitutional in
its entirety under the First and Fourteenth Amendments insofar as
it applies to nonprescription contraceptives, and enjoined its
enforcement as so applied.
Held: The judgment is affirmed. Pp.
431 U. S.
682-703;
431 U. S.
707-708;
431 U. S.
713-716.
398 F.
Supp. 321, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court with
respect to Parts I, II, III, and V, finding that:
1. Appellee Population Planning Associates (PPA), a corporation
that makes mail-order sales of nonmedical contraceptive devices
from its North Carolina offices and regularly advertises its
products in New York periodicals and fills mail orders from New
York residents without limiting availability of the products to
persons of any particular age, has the requisite standing to
maintain the action not only in its own right but also on behalf of
its potential customers,
Craig v. Boren, 429 U.
S. 190, and therefore there is no occasion to decide the
standing of the other appellees. Pp.
431 U. S.
682-684.
2. Regulations imposing a burden on a decision as fundamental as
whether to bear or beget a child may be justified only by
compelling state interests, and must be narrowly drawn to express
only those interests. Pp.
431 U. S.
684-686.
3. The provision prohibiting distribution of nonmedical
contraceptives to persons 16 or over except through licensed
pharmacists clearly burdens the right of such individuals to use
contraceptives if they so desire, and the provision serves no
compelling state interests. It cannot be justified by an interest
in protecting health insofar as it applies
Page 431 U. S. 679
to nonhazardous contraceptives or in protecting potential life,
nor can it be justified by a concern that young people not sell
contraceptives, or as being designed to serve as a quality control
device or as facilitating enforcement of the other provisions of
the statute. Pp.
431 U. S.
686-691.
4. The prohibition of any advertisement or display of
contraceptives that seeks to suppress completely any information
about the availability and price of contraceptives cannot be
justified on the ground that advertisements of contraceptive
products would offend and embarrass those exposed to them, and that
permitting them would legitimize sexual activity of young people.
These are classically not justifications validating suppression of
expression protected by the First Amendment, and here the
advertisements in question merely state the availability of
products that are not only entirely legal, but constitutionally
protected. Pp.
431 U. S.
700-702.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE STEWART, MR. JUSTICE
MARSHALL, and MR. JUSTICE BLACKMUN, concluded in Part IV that the
provision prohibiting distribution of contraceptives to persons
under 16, as applied to nonprescription contraceptives, cannot be
justified as a permissible regulation of minors' morality in
furtherance of the State's policy against promiscuous sexual
intercourse among the young. Pp.
431 U. S.
691-699.
(a) The right to privacy in connection with decisions affecting
procreation extends to minors as well as to adults, and since a
State may not impose a blanket prohibition, or even a blanket
requirement of parental consent, on the choice of a minor to
terminate her pregnancy,
Planned Parenthood of Missouri v.
Danforth, 428 U. S. 52, the
constitutionality of a blanket prohibition of the distribution of
contraceptives to minors is
a fortiori foreclosed. Pp.
431 U. S.
693-694.
(b) The argument that sexual activity may be deterred by
increasing the hazards attendant on it has been rejected by the
Court as a justification for restrictions on the freedom to choose
whether to bear or beget a child.
Eisenstadt v. Baird,
405 U. S. 438,
405 U. S. 448;
Roe v. Wade, 410 U. S. 113,
410 U. S. 148.
Moreover, there is substantial doubt whether limiting access to
contraceptives will, in fact, substantially discourage early sexual
behavior. When a State, as here, burdens the exercise of a
fundamental right, its attempt to justify that burden as a rational
means for the accomplishment of some state policy requires more
than the unsupported assertion (appellants here having conceded
that there is no evidence that teenage extramarital sexual activity
increases in proportion to the availability of contraceptives) that
the burden is connected to such a policy. Pp.
431 U. S.
694-696.
Page 431 U. S. 680
(c) That, under another provision of the statute, a minor under
16 may be supplied with a contraceptive by a physician does not
save the challenged provision, especially where appellants asserted
no medical necessity for imposing a limitation on the distribution
of nonprescription contraceptives to minors. Pp.
431 U. S.
697-699.
MR. JUSTICE WHITE concluded that the prohibition against
distribution of contraceptives to persons under 16 cannot be
justified primarily because the State has not demonstrated that
such prohibition measurably contributes to the deterrent purposes
that the State advances as justification. Pp.
431 U. S.
702-703.
MR. JUSTICE POWELL concluded that the prohibition against
distribution of contraceptives to persons under 16 is defective
both because it infringes the privacy interests of married females
between the ages of 14 and 16 and because it prohibits parents from
distributing contraceptives to their children, thus unjustifiably
interfering with parental interests in rearing children. Pp.
431 U. S.
707-708.
MR. JUSTICE STEVENS concluded that the prohibition against
distribution of contraceptives to persons under 16 denies such
persons and their parents a choice which, if available, would
reduce exposure to venereal disease or unwanted pregnancy, and that
the prohibition cannot be justified as a means of discouraging
sexual activity by minors. Pp.
431 U. S.
713-716.
BRENNAN, J., announced the Court's judgment and delivered an
opinion of the Court (Parts I, II, III, and V), in which STEWART,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined; in all but Part II of
which WHITE, J., joined; and in Part I of which POWELL, J., joined;
and an opinion (Part IV), in which STEWART, MARSHALL, and BLACKMUN,
JJ., joined. WHITE, J.,
post, p.
431 U. S. 702,
POWELL, J.,
post, p.
431 U. S. 703,
and STEVENS, J.,
post, p.
431 U. S. 712,
filed opinions concurring in part and concurring in the judgment.
BURGER, C.J., dissented. REHNQUIST, J., filed a dissenting opinion,
post, p.
431 U. S.
717.
Page 431 U. S. 681
MR. JUSTICE BRENNAN delivered the opinion of the Court (Parts I,
II, III, and V), together with an opinion (Part IV), in which MR.
JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN
Joined.
Under New York Educ. Law $ 6811(8) (McKinney 1972), it is a
crime (1) for any person to sell or distribute any contraceptive of
any kind to a minor under the age of 16 years; (2) for anyone other
than a licensed pharmacist to distribute contraceptives to persons
16 or over; and (3) for anyone, including licensed pharmacists, to
advertise or display contraceptives. [
Footnote 1] A three-judge District Court for the Southern
District of New York declared $ 6811(8) unconstitutional in its
entirety under the First and Fourteenth Amendments of the
Page 431 U. S. 682
Federal Constitution insofar as it applies to nonprescription
contraceptives, and enjoined its enforcement as so applied.
398 F.
Supp. 321 (1975). We noted probable jurisdiction, 426 U.S. 918
(1976). We affirm.
I
We must address a preliminary question of the standing of the
various appellees to maintain the action. We conclude that appellee
Population Planning Associates, Inc. (PPA) has the requisite
standing, and therefore have no occasion to decide the standing of
the other appellees. [
Footnote
2]
PPA is a corporation primarily engaged in the mail-order retail
sale of nonmedical contraceptive devices from its offices in North
Carolina. PPA regularly advertises its products in periodicals
published or circulated in New York, accepts orders from New York
residents, and fills orders by mailing contraceptives to New York
purchasers. Neither the advertisements nor the order forms
accompanying them limit availability of PPA's products to persons
of any particular age.
Various New York officials have advised PPA that its activities
violate New York law. A letter of December 1, 1971, notified PPA
that a PPA advertisement in a New York college newspaper violated $
6811(8), citing each of the three challenged provisions, and
requested "future compliance" with the
Page 431 U. S. 683
law. A second letter, dated February 23, 1973, notifying PPA
that PPA's magazine advertisements of contraceptives violated the
statute, referred particularly to the provisions prohibiting sales
to minors and sales by nonpharmacists, and threatened: "In the
event you fail to comply, the matter will be referred to our
Attorney General for legal action." Finally, PPA was served with a
copy of a report of inspectors of the State Board of Pharmacy,
dated September 4, 1974, which recorded that PPA advertised male
contraceptives, and had been advised to cease selling
contraceptives in violation of the state law.
That PPA has standing to challenge $ 6811(8) not only in its own
right, but also on behalf of its potential customers, is settled by
Craig v. Boren, 429 U. S. 190,
429 U. S.
192-197 (1976).
Craig held that a vendor of
3.2% beer had standing to challenge in its own right and as
advocate for the rights of third persons, the gender-based
discrimination in a state statute that prohibited sale of the beer
to men, but not to women, between the ages of 18 and 21. In this
case, as did the statute in
Craig, § 6811(8) inflicts on
the vendor PPA "injury in fact" that satisfies Art. III's case or
controversy requirement, since
"[t]he legal duties created by the statutory sections under
challenge are addressed directly to vendors such as [PPA. It] is
obliged either to heed the statutory [prohibition], thereby
incurring a direct economic injury through the constriction of
[its] market, or to disobey the statutory command and suffer"
legal sanctions. 429 U.S. at
429 U. S. 194.
[
Footnote 3] Therefore,
Page 431 U. S. 684
PPA is among the
"vendors and those in like positions [who] have been uniformly
permitted to resist efforts at restricting their operations by
acting as advocates for the rights of third parties who seek access
to their market or function."
Id. at
429 U. S. 195.
See also Eisenstadt v. Baird, 405 U.
S. 438,
405 U. S.
443-446 (1972);
Sullivan v. Little Hunting
Park, 396 U. S. 229,
396 U. S. 237
(1969);
Barrows v. Jackson, 346 U.
S. 249,
346 U. S.
257-260 (1953). As such, PPA "is entitled to assert
those concomitant rights of third parties that would be
diluted
or adversely affected' should [its] constitutional challenge fail."
Craig v. Boren, supra at 429 U. S. 195,
quoting Griswold v. Connecticut, 381 U.
S. 479, 381 U. S. 481
(1965). [Footnote 4]
II
Although "[t]he Constitution does not explicitly mention any
right of privacy," the Court has recognized that one aspect of the
"liberty" protected by the Due Process Clause of the Fourteenth
Amendment is "a right of personal privacy, or a guarantee of
certain areas or zones of privacy."
Roe v. Wade,
410 U. S. 113,
410 U. S. 152
(1973). This right of personal privacy includes "the interest in
independence in making certain kinds of important decisions."
Whalen v. Roe, 429 U. S. 589,
50 U. S.
599-600 (1977). While the outer limits of this aspect of
privacy have not been marked by the Court, it is clear that
among
Page 431 U. S. 685
the decisions that an individual may make without unjustified
government interference are personal decisions
"relating to marriage,
Loving v. Virginia, 388 U. S. 1,
388 U. S. 12 (967);
procreation,
Skinner v. Oklahoma ex rel. Williamson,
316 U. S.
535,
316 U. S. 541-542 (1942);
contraception,
Eisenstadt v. Baird, 405 U.S. at
405 U. S. 453-454;
id. at
405 U. S. 460,
405 U. S.
463-465 (WHITE, J., concurring in result); family
relationships,
Prince v. Massachusetts, 321 U. S.
158,
321 U. S. 166 (1944); and
childrearing and education,
Pierce v. Society of Sisters,
268 U. S.
510,
268 U. S. 535 (1925);
Meyer
v. Nebraska, [
262 U.S.
390,
262 U. S. 399 (1923)]."
Roe v. Wade, supra at
410 U. S. 152,
410 U. S.
152-153.
See also Cleveland Board of Education v.
LaFleur, 414 U. S. 632,
414 U. S.
639-640 (1974).
The decision whether or not to beget or bear a child is at the
very heart of this cluster of constitutionally protected choices.
That decision holds a particularly important place in the history
of the right of privacy, a right first explicitly recognized in an
opinion holding unconstitutional a statute prohibiting the use of
contraceptives,
Griswold v. Connecticut, supra, and most
prominently vindicated in recent years in the contexts of
contraception,
Griswold v. Connecticut, supra; Eisenstadt v.
Baird, supra; and abortion, Roe v. Wade, supra; Doe v. Bolton,
410 U. S. 179
(1973);
Planned Parenthood of Central Missouri v.
Danforth, 428 U. S. 52
(1976). This is understandable, for in a field that, by definition,
concerns the most intimate of human activities and relationships,
decisions whether to accomplish or to prevent conception are among
the most private and sensitive.
"If the right of privacy means anything, it is the right of the
individual, married or single, to be free of unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child."
Eisenstadt v. Baird, supra at
405 U. S. 453.
(Emphasis omitted.)
That the constitutionally protected right of privacy extends to
an individual's liberty to make choices regarding contraception
does not, however, automatically invalidate every state
Page 431 U. S. 686
regulation in this area. The business of manufacturing and
selling contraceptives may be regulated in ways that do not
infringe protected individual choices. And even a burdensome
regulation may be validated by a sufficiently compelling state
interest. In
Roe v. Wade, for example, after determining
that the "right of privacy . . . encompass[es] a woman's decision
whether or not to terminate her pregnancy," 410 U.S. at
410 U. S. 153,
we cautioned that the right is not absolute, and that certain state
interests (in that case, "interests in safeguarding health, in
maintaining medical standards, and in protecting potential life")
may at some point "become sufficiently compelling to sustain
regulation of the factors that govern the abortion decision."
Id. at
410 U. S. 154.
"Compelling" is of course the key word; where a decision as
fundamental as that whether to bear or beget a child is involved,
regulations imposing a burden on it may be justified only by
compelling state interests, and must be narrowly drawn to express
only those interests.
Id. at
410 U. S.
155-156, and cases there cited.
With these principles in mind, we turn to the question whether
the District Court was correct in holding invalid the provisions of
§ 6811(8) as applied to the distribution of nonprescription
contraceptives.
III
We consider first the wider restriction on access to
contraceptives created by § 6811(8)'s prohibition of the
distribution of nonmedical contraceptives to adults except through
licensed pharmacists.
Appellants argue that this Court has not accorded a "right of
access to contraceptives" the status of a fundamental aspect of
personal liberty. They emphasize that
Griswold v.
Connecticut struck down a state prohibition of the use of
contraceptives, and so had no occasion to discuss laws "regulating
their manufacture or sale." 381 U.S. at
381 U. S. 485.
Eisenstadt v. Bard was decided under the Equal Protection
Clause, holding that "whatever the rights of the individual to
access to contraceptives
Page 431 U. S. 687
may be, the rights must be the same for the unmarried and the
married alike." 405 U.S. at
405 U. S. 453.
Thus appellants argue that neither case should be treated as
reflecting upon the State's power to limit or prohibit distribution
of contraceptives to any persons, married or unmarried.
But see
id. at
405 U. S.
463-464 (WHITE, J., concurring in result).
The fatal fallacy in this argument is that it overlooks the
underlying premise of those decisions that the Constitution
protects
"the right of the individual . . . to be free from unwarranted
governmental intrusion into . . . the decision whether to bear or
beget a child."
Id. at
405 U. S. 453.
Griswold did state that, by "forbidding the use of
contraceptives, rather than regulating their manufacture or sale,"
the Connecticut statute there had "a maximum destructive impact" on
privacy rights. 381 U.S. at
381 U. S. 485.
This intrusion into "the sacred precincts of marital bedrooms" made
that statute particularly "repulsive."
Id. at
381 U. S.
485-486. But subsequent decisions have made clear that
the constitutional protection of individual autonomy in matters of
childbearing is not dependent on that element.
Eisenstadt v.
Baird, holding that the protection is not limited to married
couples, characterized the protected right as the
"
decision whether to bear or beget a child." 405 U.S. at
405 U. S. 453
(emphasis added). Similarly,
Roe v. Wade held that the
Constitution protects "a woman's
decision whether or not
to terminate her pregnancy." 410 U.S. at
410 U. S. 153
(emphasis added).
See also Whalen v. Roe, supra at
429 U. S.
599-600, and n. 26. These decisions put
Griswold in proper perspective.
Griswold may no
longer be read as holding only that a State may not prohibit a
married couple's use of contraceptives. Read in light of its
progeny, the teaching of
Griswold is that the Constitution
protects individual decisions in matters of childbearing from
unjustified intrusion by the State.
Restrictions on the distribution of contraceptives clearly
burden the freedom to make such decisions. A total prohibition
against sale of contraceptives, for example, would intrude
Page 431 U. S. 688
upon individual decisions in matters of procreation and
contraception as harshly as a direct ban on their use. Indeed, in
practice, a prohibition against all sales, since more easily and
less offensively enforced, might have an even more devastating
effect upon the freedom to choose contraception.
Cf. Poe v.
Ullman, 367 U. S. 497
(1961).
An instructive analogy is found in decisions after
Roe v.
Wade, supra, that held unconstitutional statutes that did not
prohibit abortions outright but limited in a variety of ways a
woman's access to them.
Doe v. Bolton, 410 U.
S. 179 (1973);
Planned Parenthood of Central
Missouri v. Danforth, 428 U. S. 52
(1976).
See also Bigelow v. Virginia, 421 U.
S. 809 (1975). The significance of these cases is that
they establish that the same test must be applied to state
regulations that burden an individual's right to decide to prevent
conception or terminate pregnancy by substantially limiting access
to the means of effectuating that decision as is applied to state
statutes that prohibit the decision entirely. Both types of
regulation
"may be justified only by a 'compelling state interest' . . . ,
and . . . must be narrowly drawn to express only the legitimate
state interests at stake."
Roe v. Wade, supra at
410 U. S. 155.
[
Footnote 5]
See also
Eisentadt v. Baird, 405 U.S. at
405 U. S. 463
(WHITE, J., concurring in result). This is so not because there is
an independent fundamental "right of access to contraceptives," but
because such access is essential to exercise of the
constitutionally protected right of decision in matters of
childbearing that is the
Page 431 U. S. 689
underlying foundation of the holdings in
Griswold,
Eisenstadt v. Baird, and
Roe v. Wade.
Limiting the distribution of nonprescription contraceptives to
licensed pharmacists clearly imposes a significant burden on the
right of the individuals to use contraceptives if they choose to do
so.
Eisenstadt v. Baird, supra at
405 U. S.
461-464 (WHITE, J., concurring in result). The burden
is, of course, not as great as that under a total ban on
distribution. Nevertheless, the restriction of distribution
channels to a small fraction of the total number of possible retail
outlets renders contraceptive devices considerably less accessible
to the public, reduces the opportunity for privacy of selection and
purchase, [
Footnote 6] and
lessens the possibility of price competition. [
Footnote 7]
Cf. Griswold v. Connecticut,
381 U.S. at
381 U. S. 503
(WHITE, J., concurring in judgment). Of particular relevance here
is
Doe v. Bolton, supra, in which the Court struck down,
as unconstitutionally burdening the right of a woman to choose
abortion, a statute requiring that abortions be performed only in
accredited hospitals, in the absence of proof that the requirement
was substantially related to the State's interest in protecting the
patient's health. 410 U.S. at
410 U. S.
193-195. The same infirmity infuses the limitation in §
6811(8).
"Just as in
Griswold, where the right of married
persons to use contraceptives was 'diluted or adversely affected'
by permitting a
Page 431 U. S. 690
conviction for giving advice as to its exercise, . . . so here,
to sanction a medical restriction upon distribution of a
contraceptive not proved hazardous to health would impair the
exercise of the constitutional right."
Eisenstadt v. Baird, 405 U.S. at
405 U. S. 464
(WHITE, J., concurring in result).
There remains the inquiry whether the provision serves a
compelling state interest. Clearly, "interests . . . in maintaining
medical standards, and in protecting potential life,"
Roe v.
Wade, 410 U.S. at
410 U. S. 154,
cannot be invoked to justify this statute. Insofar as § 6811(8)
applies to nonhazardous contraceptives, [
Footnote 8] it bears no relation to the State's
interest in protecting health.
Eisenstadt v. Baird, supra
at
450 U. S.
450-452;
450 U. S.
463-464 (WHITE, J., concurring in result). [
Footnote 9] Nor is the interest in
protecting potential life implicated in state regulation of
contraceptives.
Roe v. Wade, supra at
410 U. S.
163-164.
Appellants therefore suggest that § 6811(8) furthers other state
interests. But none of them is comparable to those the Court has
heretofore recognized as compelling. Appellants argue that the
limitation of retail sales of nonmedical contraceptives to
pharmacists (1) expresses "a proper concern that young people not
sell contraceptives"; (2) "allows purchasers to inquire as to the
relative qualities of the varying products and prevents anyone from
tampering with them"; and (3) facilitates enforcement of the other
provisions of the statute. Brief for Appellants 14. The first
hardly can justify the statute's incursion into constitutionally
protected rights, and,
Page 431 U. S. 691
in any event, the statute is obviously not substantially related
to any goal of preventing young people from selling contraceptives.
[
Footnote 10] Nor is the
statute designed to serve as a quality control device. Nothing in
the record suggests that pharmacists are particularly qualified to
give advice on the merits of different nonmedical contraceptives,
or that such advice is more necessary to the purchaser of
contraceptive products than to consumers of other nonprescription
items. Why pharmacists are better able or more inclined than other
retailers to prevent tampering with prepackaged products, or, if
they are, why contraceptives are singled out for this special
protection, is also unexplained. [
Footnote 11] As to ease of enforcement, the prospect of
additional administrative inconvenience has not been thought to
justify invasion of fundamental constitutional rights.
See,
e.g., Morrssey v. Brewer, 408 U. S. 471
(1972);
Gloldberg v. Kelly, 397 U.
S. 254 (1970).
IV
[
Footnote 12]
A
The District Court also held unconstitutional, as applied to
nonprescription contraceptives, the provision of § 6811(8)
prohibiting the distribution of contraceptives to those under
Page 431 U. S. 692
16 years of age. [
Footnote
13] Appellants contend that this provision of the statute is
constitutionally permissible as a regulation of the morality of
minors, in furtherance of the State's policy against promiscuous
sexual intercourse among the young.
The question of the extent of state power to regulate conduct of
minors not constitutionally regulable when committed by adults is a
vexing one, perhaps not susceptible of precise answer. We have been
reluctant to attempt to define "the totality of the relationship of
the juvenile and the state."
In re Gault, 387 U. S.
1,
387 U. S. 13
(1967). Certain principles, however, have been recognized. "Minors,
as well as adults, are protected by the Constitution, and possess
constitutional rights."
Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. at
428 U. S. 74.
"[W]hatever may be their precise impact, neither the Fourteenth
Amendment nor the Bill of Rights is for adults alone."
In re
Gault, supra at
387 U. S. 13.
[
Footnote 14] On the other
hand, we have held in a variety of contexts that "the power of the
state to control the conduct of children reaches beyond the scope
of its authority over adults."
Prince v. Massachusetts,
321 U. S. 158,
321 U. S. 170
(1944).
See Ginsberg v. New York, 390 U.
S. 629 (1968).
See also McKeiver v.
Pennsylvania, 403 U. S. 528
(1971).
Page 431 U. S. 693
Of particular significance to the decision of this case, the
right to privacy in connection with decisions affecting procreation
extends to minors, as well as to adults.
Planned Parenthood of
Central Missouri v. Danforth, supra, held that a State
"may not impose a blanket provision . . . requiring the consent
of a parent or person
in loco parentis as a condition for
abortion of an unmarried minor during the first 12 weeks of her
pregnancy."
428 U.S. at
428 U. S. 74. As
in the case of the spousal consent requirement struck down in the
same case,
id. at
428 U. S. 67-72, "the State does not have the
constitutional authority to give a third party an absolute, and
possibly arbitrary, veto,"
id. at
428 U. S. 74,
"
which the state itself is absolutely and totally prohibited
from exercising.'" Id. at 428 U. S. 69.
State restrictions inhibiting privacy rights of minors are valid
only if they serve "any significant state interest . . . that is
not present in the case of an adult." Id. at 428 U. S. 75.
[Footnote 15] Planned
Parenthood found that no such interest justified a state
requirement of parental consent. [Footnote 16]
Page 431 U. S. 694
Since the State may not impose a blanket prohibition, or even a
blanket requirement of parental consent, on the choice of a minor
to terminate her pregnancy, the constitutionality of a blanket
prohibition of the distribution of contraceptives to minors is
a fortiori foreclosed. The State's interests in protection
of the mental and physical health of the pregnant minor, and in
protection of potential life are clearly more implicated by the
abortion decision than by the decision to use a nonhazardous
contraceptive.
Appellants argue, however, that significant state interests are
served by restricting minors' access to contraceptives, because
free availability to minors of contraceptives would lead to
increased sexual activity among the young, in violation of the
policy of New York to discourage such behavior. [
Footnote 17] The argument is that minors'
sexual activity may be deterred by increasing the hazards attendant
on it. The same argument, however, would support a ban on abortions
for minors, or indeed support a prohibition on abortions, or access
to contraceptives, for the unmarried, whose sexual activity is also
against the public policy of many State. Yet, in each of these
areas, the Court has rejected the argument, noting in
Roe v.
Wade that "no court or commentator has taken the argument
seriously." 410
Page 431 U. S. 695
U.S. at
410 U. S. 148.
The reason for this unanimous rejection was stated in
Eisenstadt v. Baird:
"It would be plainly unreasonable to assume that [the State] has
prescribed pregnancy and the birth of an unwanted child [or the
physical and psychological dangers of an abortion] as punishment
for fornication."
405 U.S. at
405 U. S. 448.
We remain reluctant to attribute any such "scheme of values" to the
State. [
Footnote 18]
Moreover, there is substantial reason for doubt whether limiting
access to contraceptives will, in fact, substantially discourage
early sexual behavior. Appellants themselves conceded in the
District Court that "there is no evidence that teenage extramarital
sexual activity increases in proportion to the availability of
contraceptives," 398 F. Supp. at 332, and n. 10, and accordingly
offered none, in the District Court or here. Appellees, on the
other hand, cite a considerable body of evidence and opinion
indicating that there is no such deterrent effect. [
Footnote 19] Although we take judicial
notice, as did the
Page 431 U. S. 696
District Court,
id. at 331-333, that with or without
access to contraceptives, the incidence of sexual activity among
minors is high, [
Footnote
20] and the consequence of such activity are frequently
devastating, [
Footnote 21]
the studies cited by appellees play no part in our decision. It is
enough that we again confirm the principle that, when a State, as
here, burdens the exercise of a fundamental right, its attempt to
justify that burden as a rational means for the accomplishment of
some significant state policy requires more than a bare assertion,
based on a conceded complete absence of supporting evidence, that
the burden is connected to such a policy. [
Footnote 22]
Page 431 U. S. 697
B
Appellants argue that New York does not totally prohibit
distribution of contraceptives to minors under 16, and that,
accordingly, § 611(8) cannot be held unconstitutional. Although §
6811(8), on its face, is a flat unqualified prohibition, Educ.Law §
6807(b) (McKinney, Supp. 1976 1977),
see nn.
1 7 and
13 supra, provides
that nothing in Education Law §§ 6800-6826 shall be construed to
prevent "[a]ny physician . . . from supplying his patients with
such drugs as [he] . . . deems proper in connection with his
practice." This narrow exception, however, does not save the
statute. As we have held above as to limitations upon distribution
to adults, less than total restrictions on access to contraceptives
that significantly burden the right to decide whether to bear
children must also pass constitutional scrutiny. Appellants assert
no medical necessity for imposing a medical limitation on the
distribution of nonprescription contraceptives to minors. Rather,
they argue that such a restriction serves to emphasize to young
people the seriousness with which the State views the decision to
engage in sexual intercourse at an early age. [
Footnote 23] But this is only another form of
the
Page 431 U. S. 698
argument that juvenile sexual conduct will be deterred by making
contraceptives more difficult to obtain. Moreover, that argument is
particularly poorly suited to the restriction
Page 431 U. S. 699
appellants are attempting to justify, which on appellants'
construction delegates the State's authority to disapprove of
minors' sexual behavior to physicians, who may exercise it
arbitrarily, [
Footnote 24]
either to deny contraceptives to young people, or to undermine the
State's policy of discouraging illicit early sexual behavior. This
the State may not do.
Cf. Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. at
428 U. S. 69,
428 U. S. 74.
[
Footnote 25]
Page 431 U. S. 700
V
The District Court's holding that the prohibition of any
"advertisement or display" of contraceptives is unconstitutional
was clearly correct. Only last Term,
Virginia Pharmacy Bd. v.
Virginia Citizens Consumer Council, 425 U.
S. 748 (1976), held that a State may not "completely
suppress the dissemination of concededly truthful information about
entirely lawful activity," even when that information could be
categorized as "commercial speech."
Id. at
425 U. S. 773.
Just as in that case, the statute challenged here seeks to suppress
completely any information about the availability and price of
contraceptives. [
Footnote
26] Nor does the case present any question left open in
Virginia Pharmacy Bd.; here, as there, there can be no
contention that the regulation is "a mere time, place, and manner
restriction,"
id. at
425 U. S. 771,
or that it prohibits only misleading or deceptive advertisements,
ibid., or
"that the transactions proposed in the forbidden advertisements
are themselves illegal in any way.
Cf. 413 U. S. v.
Human Relations Comm'n, [
413 U.S.
376 (1973)]."
Id. at
425 U. S.
772-773. Moreover, in addition to the "substantial
individual and societal interests" in the free flow of commercial
information enumerated in
Virginia Pharmacy Bd., supra at
425 U. S.
763-766, the
Page 431 U. S. 701
information suppressed by this statute "related to activity with
which, at least in some respects, the State could not interfere."
425 U.S. at
425 U. S. 760.
Cf. Bigelow v. Virginia, 421 U. S. 809
(1975).
Appellants contend that advertisements of contraceptive products
would be offensive and embarrassing to those exposed to them, and
that permitting them would legitimize sexual activity of young
people. But these are classically not justifications validating the
suppression of expression protected by the First Amendment. At
least where obscenity is not involved, we have consistently held
that the fact that protected speech may be offensive to some does
not justify its suppression.
See, e.g., Cohen v.
California, 403 U. S. 15
(1971). [
Footnote 27] As for
the possible "legitimation" of illicit sexual behavior, whatever
might be the case if the advertisements directly incited illicit
sexual activity among the young, none of the advertisements in this
record can even remotely be characterized as "directed to inciting
or producing imminent lawless action and . . . likely to incite or
produce such action."
Brandenburg v. Ohio, 395 U.
S. 444,
395 U. S. 447
(1969). They merely state the availability of products and services
that are not only entirely legal,
cf. Pittsburgh Press Co. v.
Human Relations Comm'n, 413 U. S. 376
(1973), but constitutionally protected.
Cf. Bigelow v.
Virginia, supra. [
Footnote
28] These arguments
Page 431 U. S. 702
therefore do not justify the total suppression of advertising
concerning contraceptives. [
Footnote 29]
Affirmed.
THE CHIEF JUSTICE dissents.
[
Footnote 1]
Section 6811(8) provides:
"It shall-be a class A misdemeanor for:"
"
* * * *"
"8. Any person to sell or distribute any instrument or article,
or any recipe, drug or medicine for the prevention of contraception
to a minor under the age of sixteen years; the sale or distribution
of such to a person other than a minor under the age of sixteen
years is authorized only by a licensed pharmacist but the
advertisement or display of said articles, within or without the
premises of such pharmacy, is hereby prohibited."
After some dispute in the District Court the parties apparently
now agree that Education Law $ 6807(b) (McKinney 1972) constitutes
an exception to the distribution prohibitions of 6811(8). Section
6807(b) provides:
"This article shall not be construed to affect or prevent:"
"
* * * *"
"(b) Any physician . . . who is not the owner of a pharmacy, or
registered store, or who is not in the employ of such owner, from
supplying his patients with such drugs as the physician . . . deems
proper in connection with his practice. . . ."
The definition of "drugs" in Education Law $ 6802(7) (McKinney
1972) apparently includes any contraceptive drug or device.
See nn.
7 13 and
23 and text,
infra at
431 U. S.
697-699.
See also 398 F.
Supp. 321, 329-330, and n. 8.
[
Footnote 2]
In addition to PPA, the plaintiffs in the District Court,
appellees here, are Population Services International, a nonprofit
corporation disseminating birth control information and services;
Rev. James B. Hagen, a minister and director of a venereal disease
prevention program that distributes contraceptive devices; three
physicians specializing in family planning, pediatrics, and
obstetrics-gynecology; and an adult New York resident who alleges
that the statute inhibits his access to contraceptive devices and
information, and his freedom to distribute the same to his minor
children. The District Court held that PPA and Hagen had standing,
and therefore found it unnecessary to decide the standing of the
other plaintiffs.
Id. at 327-330.
The appellants here, defendants in the District Court, are state
officials responsible for the enforcement of the Education Law
provisions.
[
Footnote 3]
Appellants contend that PPA has not suffered "injury in fact"
because it has not shown that prosecution under $ 6811(8) is
imminent.
Steffel v. Thompson, 415 U.
S. 452,
415 U. S.
459-460 (1974), is dispositive of this argument. PPA
alleges that it has violated the challenged statute in the past,
and continues to violate it in the regular course of its business;
that it has been advised by the authorities responsible for
enforcing the statute that it is in violation; and that, on at
least one occasion, it has been threatened with prosecution. The
threat is not, as in
Poe v. Ullman, 367 U.
S. 497,
367 U. S. 508
(1961) (plurality opinion), "chimerical." In that case, the
challenged state law had fallen into virtual desuetude through lack
of prosecution over some 80 years, and plaintiffs alleged no
explicit threat of prosecution. Here, PPA has been threatened with
legal action, and prosecutions have been brought under the
predecessor of $ 6811(8) as recently as 1965.
See, e.g., People
v. Baird, 47 Misc.2d 478, 262 N.Y.S.2d 947 (1965).
[
Footnote 4]
Indeed, the case for the vendor's standing to assert the rights
of potential purchasers of his product is even more compelling here
than in
Craig, because the rights involved fall within the
sensitive area of personal privacy. In such a case, potential
purchasers "may be chilled from . . . assertion [of their own
rights] by a desire to protect the very privacy [they seek to
vindicate] from the publicity of a court suit."
Singleton v.
Wulff, 428 U. S. 106,
428 U. S. 117
(1976).
[
Footnote 5]
Contrary to the suggestion advanced in MR. JUSTICE POWELL's
opinion, we do not hold that state regulation must meet this
standard "whenever it implicates sexual freedom,"
post at
431 U. S. 705,
or "affect[s] adult sexual relations,"
post at
431 U. S. 703,
but only when it
"burden[s] an individual's right to decide to prevent conception
or terminate pregnancy by substantially limiting access to the
means of effectuating that decision."
Supra, this page. As we observe below,
"the Court has not definitively answered the difficult question
whether and to what extent the Constitution prohibits state
statutes regulating [private consensual sexual] behavior among
adults,"
n 17,
infra and
we do not purport to answer that question now.
[
Footnote 6]
As MR. JUSTICE POWELL notes,
post at
431 U. S. 711,
the prohibition of mail-order sales of contraceptives, as practiced
by PPA, is a particularly "significant invasion of the
constitutionally protected privacy in decisions concerning sexual
relations."
[
Footnote 7]
The narrow exception to § 6811(8) arguably provided by New York
Educ. Law § 6807(b) (McKinney, Supp. 1976-1977),
see
n 1,
supra, which
permits a physician "who is not the owner of a pharmacy, or
registered store" to supply his patients with "such drugs as [he] .
. . deems proper in connection with his practice" obviously does
not significantly expand the number of regularly available, easily
accessible retail outlets for nonprescription contraceptives, and
so has little relevance to our analysis of this aspect of §
6811(8).
[
Footnote 8]
We have taken judicial notice that "not all contraceptives are
potentially dangerous."
Eisenstadt v. Baird, 405 U.
S. 438,
405 U. S. 451,
and n. 9 (1972).
See also id. at
405 U. S.
463-464 (WHITE, J., concurring in result).
[
Footnote 9]
Indeed, in light of other provisions of both federal and state
law that comprehensively regulate hazardous drugs and devices,
see, e.g., 21 U.S.C. §§ 351-360, especially § 353(b);
N.Y.Educ.Law §§ 6800-6826 (McKinney 1972 and Supp. 1976-1977),
especially § 6810, it is unclear what health-related interest the
State could have in nonprescription contraceptives.
Eisenstadt
v. Baird, supra at
405 U. S.
452.
[
Footnote 10]
Nothing in New York law limits the employment of minors who work
as sales clerks in pharmacies. To the extent that minors employed
in other retail stores selling contraceptive products might be
exposed "to undesirable comments and gestures," Brief for
Appellants 3, or otherwise corrupted by exposure to such products,
minors working as sales clerks in pharmacies are exposed to the
same hazards.
[
Footnote 11]
As the District Court pointed out, while these interests are
insufficient to justify limiting the distribution of nonhazardous
contraceptives to pharmacists, other restrictions may well be
reasonably related to the objective of quality control. We
therefore express no opinion on, for example, restrictions on the
distribution of contraceptives through vending machines, which are
not before us in this case.
See 398 F. Supp. at 336.
[
Footnote 12]
This part of the opinion expresses the views of JUSTICES
BRENNAN, STEWART, MARSHALL, and BLACKMUN.
[
Footnote 13]
Subject to an apparent exception for distribution by physicians
in the course of their practice.
See n 1,
supra, and
infra at
431 U. S.
697-699, and n. 23.
[
Footnote 14]
Thus, minors are entitled to constitutional protection for
freedom of speech,
Tinker v. Des Moines School Dist.,
393 U. S. 503
(1969);
West Virginia Bd. of Education v. Barnette,
319 U. S. 624
(1943); equal protection against racial discrimination,
Brown
v. Board of Education, 347 U. S. 483
(1954); due process in civil contexts,
Goss v. Lopez,
419 U. S. 565
(1975); and a variety of rights of defendants in criminal
proceedings including the requirement of proof beyond a reasonable
doubt,
In re Winship, 397 U. S. 358
(1970), the prohibition of double jeopardy,
Breed v.
Jones, 421 U. S. 519
(1975), the rights to notice, counsel, confrontation, and
cross-examination, and not to incriminate oneself,
In re
Gault, 387 U. S. 1 (1967),
and the protection against coerced confessions,
Gallegos v.
Colorado, 370 U. S. 49
(1962);
Haley v. Ohio, 332 U. S. 596
(1948).
[
Footnote 15]
This test is apparently less rigorous than the "compelling state
interest" test applied to restrictions on the privacy rights of
adults.
See, e.g., n 16,
infra. Such lesser scrutiny is appropriate
both because of the States' greater latitude to regulate the
conduct of children,
Prince v. Massachusetts, 321 U.
S. 158 (1944);
Ginsberg v. New York,
390 U. S. 629
(1968), and because the right of privacy implicated here is "the
interest in independence in making certain kinds of important
decisions,"
Whalen v. Roe, 429 U.
S. 589,
429 U. S.
599-600 (1977), and the law has generally regarded
minors as having a lesser capability for making important
decisions.
See, e.g., Planned Parenthood, 428 U.S. at
428 U. S. 102
(STEVENS, J., concurring in part and dissenting in part).
[
Footnote 16]
Planned Parenthood, however,
"does not suggest that every minor, regardless of age or
maturity, may give effective consent for termination of her
pregnancy.
See Bellotti v. Baird,
[
428 U.S.
132 (1976)]. The fault of [the particular statute considered in
Planned Parenthood] is that it imposes a special consent
provision, exercisable by a person other than the woman and her
physician, as a prerequisite to a minor's termination of her
pregnancy . . . without a sufficient justification for the
restriction."
Id. at
428 U. S.
75.
[
Footnote 17]
Appellees argue that the State's policy to discourage sexual
activity of minors is itself unconstitutional, for the reason that
the right to privacy comprehends a right of minors as well as
adults to engage in private consensual sexual behavior. We observe
that the Court has not definitively answered the difficult question
whether and to what extent the Constitution prohibits state
statutes regulating such behavior among adults.
See
generally Note, On Privacy: Constitutional Protection for
Personal Liberty, 48 N.Y.U.L.Rev. 670, 719-738 (1973). But whatever
the answer to that question,
Ginsberg v. New York, supra,
indicates that, in the area of sexual mores, as in other areas, the
scope of permissible state regulation is broader as to minors than
as to adults. In any event, it is unnecessary to pass upon this
contention of appellees, and our decision proceeds on the
assumption that the Constitution does not bar state regulation of
the sexual behavior of minors.
[
Footnote 18]
We note, moreover, that other provisions of New York law argue
strongly against any conclusion that the deterrence of illegal
sexual conduct among minors was an objective of § 6811(8). First, a
girl in New York may marry as young as 14, with the consent of her
parents and a family court judge. N.Y.Dom.Rel.Law §§15-a, 15(2),
15(3) (McKinney 1964 and Supp. 1976-1977). Yet, although sexual
intercourse by a married woman of that age violates no state law, §
6811(8) prohibits distribution of contraceptives to her. Second,
New York requires that birth control information and services be
provided to recipients of certain welfare programs, provided only
that they are "of childbearing age, including children who can be
considered sexually active." N.Y.Soc.Serv.Law §350(1)(e) (McKinney
1976);
cf. 42 U.S.C. § 602(a)(15)(A) (1970 ed., Supp. V).
See also N.Y.Soc.Serv.Law § 365-a(3)(c) (McKinney 1976);
cf. 42 U.S.C. §1396d(a) (vii)(4)(C) (1970 ed., Supp. V).
Although extramarital intercourse is presumably as contrary to
state policy among minors covered by those programs as among
others, state law requires distribution of contraceptives to them
and prohibits their distribution to all others.
[
Footnote 19]
See, e.g., Settlage, Baroff, & Cooper, Sexual
Experience of Younger Teenage Girls Seeking Contraceptive
Assistance for the First Time, Family Planning Perspectives 223
(fall 1973); Pilpel & Wechsler, Birth Control, Teenagers and
the Law: A New Look 1971, Family Planning Perspectives 37 (July
1971); Stein, Furnishing Information and Medical Treatment to
Minors for Prevention, Termination and Treatment of Pregnancy,
Clearinghouse Review 131, 132 (July 1971); Reiss, Contraceptive
Information and Sexual Morality, Journal of Sex Research 51
(Apr.1966).
See also Note, Parental Consent Requirements
and Privacy Rights of Minors: The Contraceptive Controversy, 88
Harv.L.Rev. 1001, 1010, and n. 67 (1975); Jordan, A Minor's Right
to Contraceptives, 7 U.Calif.Davis L.Rev. 270, 272-273 (1974).
[
Footnote 20]
See, e.g., id. at 271-273; Kanter & Zelnick, Sexual
Experience of Young Unmarried Women in the United States, Family
Planning Perspectives 9 (Oct.1972).
[
Footnote 21]
Although this is not the occasion for a full examination of
these problems, the following data sketchily indicate their extent.
According to New York City Department of Health statistics, filed
with the Court by the American Civil Liberties Union as
amicus
curiae, in New York City alone, there were over 6,000 live
births to girls under the age of 17 in 1975, as well as nearly
11,000 abortions. Moreover,
"[t]eenage motherhood involves a host of problems, including
adverse physical and psychological effects upon the minor and her
baby, the continuous stigma associated with unwed motherhood, the
need to drop out of school with the accompanying impairment of
educational opportunities, and other dislocations [including]
forced marriage of immature couples and the often acute anxieties
involved in deciding whether to secure an abortion."
Note, Parental Consent Requirements and Privacy Rights of
Minors: The Contraceptive Controversy, 88 Harv.L.Rev. 1001, 1010
(1975) (footnotes omitted).
See also Jordan,
supra, n19, at
273-275.
[
Footnote 22]
Appellants argue that the statement in
Ginsberg v. New
York, 390 U.S. at
390 U. S. 641,
that "it was not irrational for the legislature to find that
exposure to material condemned by the statute is harmful to
minors," is authority that the burden is appellees' to prove that
there is no connection between the statute and the asserted state
policy. But
Ginsberg concerned a statute prohibiting
dissemination of obscene material that it held was not
constitutionally protected. In contrast, § 6811(8) concerns
distribution of material access to which is essential to exercise
of a fundamental right.
[
Footnote 23]
There is considerable doubt that appellants accurately identify
the legislative purposes in enacting Educ.Law §§ 6807(b) and
6811(8). Section 6811(8) (formerly Educ.Law § 6804-b and before
that Penal Law §1142(2)) was first enacted in 1965 as a
modification, apparently in response to
Griswold v.
Connecticut, 381 U. S. 479
(1965), of former Penal Law §1142, titled "Indecent articles." 1965
N.Y.Laws, c. 637. This statute, which dated back at least to § 318
of the Penal Code of 1881, 1881 N.Y.Laws, c. 676, had made it a
misdemeanor for any person to distribute or advertise "any
instrument or article, or any drug or medicine, for the prevention
of conception." Section 6807(b), on the other hand, general excepts
the distribution of drugs by a physician in the course of his
practice from all the licensing requirements and restrictions
imposed on the practice of pharmacy by Education Law §§ 6800-6826
(subject to certain provisos not here relevant). Such a provision,
in one form or another and bearing several different numbers, has
been included in the article concerning the practice of pharmacy
since that article was first incorporated in the Education Law in
1927,
see former Education Law §1361, 1927 N.Y.Laws, c.
85, and before that a similar provision was included in the
statutes regulating pharmacy in the Public Health Law.
See,
e.g., Public Health Law of 1893, §187, 1893 N.Y.Laws, c. 661.
Thus, § 6807(b) and its predecessors long predate the inclusion of
§ 6811(8) in the Education Law.
Even more significantly, when §6811(8) was first enacted as
Penal Law §1142(2), it was not subject to the physicians' exception
of § 6807(b). Rather, it was apparently subject to a different
physicians' exception, former Penal Law §1145 (§321 of the Penal
Code of 1881), which provided:
"An article or instrument, used or applied by physicians
lawfully practicing, or by their direction or prescription, for the
cure or prevention of disease, is not an article of indecent or
immoral nature or use within this chapter. The supplying of such
articles to such physicians or by their direction or prescription
is not an offense under this chapter."
This was interpreted by the New York Court of Appeals to permit
a physician "in good faith" to use contraceptives to treat "a
married person to cure or prevent disease," but not to permit
"promiscuous advice to patients irrespective of their condition."
People v. Sanger, 222 N.Y. 192, 194-195, 118 N.E. 637,
637-638 (1918),
appeal dismissed for lack of jurisdiction,
251 U.S. 537 (1919) (per curiam).
See also People v.
Byrne, 99 Misc. 1, 163 N.Y.S. 682 (1917);
People v.
Baird, 47 Misc.2d 478, 262 N.Y.S.2d 947 (1965).
In light of this history, it appears that, insofar as the
legislature had § 6807(b) in mind at all when it transferred the
prohibition of distribution of contraceptives to those under 16
from the Penal Law to the Education Law, it thought of that section
as at most a narrow exception, analogous to § 1145, permitting
physicians, "in connection with [their] practice," to treat or
prevent disease, rather than, as appellants assert, intending that
§§ 6807(b) and 6811(8) be read together as establishing a scheme
under which contraceptives would be freely available to those under
16, but limiting the distribution function to physicians. The
legislative history of attempts in 1972 and 1974 to modify §
6811(8), to which appellants refer, supports this construction. The
legislators debating those bills seem to have thought of § 6811(8)
as a flat prohibition of the distribution of contraceptives to
minors, and made no reference to § 6807(b).
[
Footnote 24]
In
Doe v. Bolton, 410 U. S. 179,
410 U. S. 196
(1973), we doubted that physicians would allow their moral
"predilections on extramarital sex" to interfere with their medical
judgments concerning abortions. Here, however, no medical judgment
is involved at all; the State purport to commission physicians to
engage in moral counseling that can reflect little other than their
private views on the morality of premarital sex among the young. It
seems evident that many physicians are likely to have views on this
subject to a significant degree more permissive or more restrictive
than those of the State, the minor, or the minor's parents.
Moreover, nothing in § 6807(b) suggests that the role of the
physician is limited to such "counseling." The statute does nothing
more than to permit the physician to provide his patients with such
drugs or devices as he "deems proper." Such "absolute, and possibly
arbitrary" discretion over the privacy rights of minors is
precisely what
Planned Parenthood condemned. 428 U.S. at
428 U. S.
74.
[
Footnote 25]
In cases involving abortions, we have emphasized that the
decision to terminate a pregnancy is properly made by a woman in
consultation with her physician.
See, e.g., Roe v. Wade,
410 U. S. 113,
410 U. S. 153,
164 (1973);
Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. at
428 U. S. 75. No such suggestion, however, has been made
concerning the right to obtain or use contraceptives.
See
Griswold v. Connecticut, supra; Eisenstadt v. Baird,
405 U. S. 438
(1972). The reason, of course, is that the abortion decision
necessarily involves a medical judgment,
Roe v. Wade,
supra at
410 U. S. 164,
while the decision to use a nonhazardous contraceptive does not.
Eisenstadt v. Baird, supra at
405 U. S.
463-464 (WHITE, J., concurring in result).
See
also n 24,
supra.
[
Footnote 26]
The prohibition of advertising and display of contraceptives is
invalid as to prescription as well as nonprescription
contraceptives, at least when the advertising is by persons who are
licensed to sell such products.
Virginia Pharmacy Bd. v.
Virginia Citizens Consumer Council, 425 U.
S. 748 (1976).
[
Footnote 27]
Indeed, as the Court recognized in
Virginia Pharmacy
Bd., much advertising is "tasteless and excessive," and no
doubt offends many. 425 U.S. at
425 U. S.
765.
[
Footnote 28]
Appellants suggest no distinction between commercial and
noncommercial speech that would render these discredited arguments
meritorious when offered to justify prohibitions on commercial
speech. On the contrary, such arguments are clearly directed not at
any commercial aspect of the prohibited advertising but at the
ideas conveyed and form of expression -- the core of First
Amendment values.
Cf. Linmark Associates, Inc. v. Willingboro,
ante at
431 U. S.
96-97.
[
Footnote 29]
We do not have before us, and therefore express no views on,
state regulation of the time, place, or manner of such commercial
advertising based on these or other state interests.
MR. JUSTICE WHITE, concurring in part and concurring in the
result.
I join Parts I, III, and V of the Court's opinion and concur in
the result with respect to Part IV.
*
Although I saw no reason in
Eisenstadt v. Baird,
405 U. S. 438
(1972), to reach "the novel constitutional question whether a State
may restrict or forbid the distribution of contraceptives to the
unmarried,"
id. at
405 U. S. 465
(concurring in result), four of the seven Justices participating in
that case held that, in this respect, the rights of unmarried
persons were equal to those of the married. Given
Eisenstadt and given the decision of the Court in the
abortion case,
Roe v. Wade, 410 U.
S. 113 (1973), the result reached by the Court in Part
III of its opinion appears warranted. I do not regard the opinion,
however, as declaring unconstitutional any state law forbidding
extramarital sexual relations. On this assumption I join Part
III.
I concur in the result in Part IV primarily because the State
has not demonstrated that the prohibition against distribution of
contraceptives to minors measurably contributes to the deterrent
purposes which the State advances as justification for the
restriction. Again, however, the legality of state laws forbidding
premarital intercourse is not at issue here; and, with MR. JUSTICE
STEVENS,
"I would describe as
Page 431 U. S. 703
'frivolous' appellees' argument that a minor has the
constitutional right to put contraceptives to their intended use,
notwithstanding the combined objection of both parents and the
State,"
post at
431 U. S.
713.
In joining Part V of the Court's opinion, I should also say that
I agree with the views of MR. JUSTICE STEVENS expressed in Part II
of his separate opinion.
* There is no need for present purposes to agree or disagree
with the Court's summary of the law expressed in Part II.
MR. JUSTICE POWELL, concurring in part and concurring in the
judgment.
I agree that Population Planning Associates has standing to
maintain this action, and therefore join Part I of the Court's
opinion. Although I concur in the judgment of the Court, I am not
persuaded that the Constitution requires the severe constraints
that the Court's opinion places upon legislative efforts to
regulate the distribution of contraceptives, particularly to the
young.
I
The Court apparently would subject all state regulation
affecting adult sexual relations to the strictest standard of
judicial review. Under today's decision, such regulation "may be
justified only by compelling state interests, and must be narrowly
drawn to express only those interests."
Ante at
431 U. S. 686.
Even regulation restricting only the sexual activity of the young
must now be justified by a "significant state interest," a standard
that is "apparently less rigorous" than the standard the Court
would otherwise apply.
Ante at
431 U. S. 693
n. 15. In my view, the extraordinary protection the Court would
give to all personal decisions in matters of sex is neither
required by the Constitution nor supported by our prior
decisions.
A
The cases on which the Court relies for its "compelling
interest" standard do not support the sweeping principle it adopts
today. Those cases generally involved direct and substantial
Page 431 U. S. 704
interference with constitutionally protected rights. In
Griswold v. Connecticut, 381 U. S. 479
(1965), the Court invalidated a state statute prohibiting the use
of contraceptives and making it illegal for physicians to give
advice to married persons regarding contraception. The statute was
viewed as one "operat[ing] directly on an intimate relation of
husband and wife and their physician's role in one aspect of that
relation,"
id. at
381 U. S. 482, and "seek[ing] to achieve its goals by
means having a maximum destructive impact upon that relationship,"
id. at
381 U. S. 485.
In
Roe v. Wade, 410 U. S. 113
(1973), the Court reviewed a Texas statute imposing severe criminal
sanctions on physicians and other medical personnel who performed
nontherapeutic abortions, thus effectively foreclosing the
availability and safety of this desired service. And just last
Term, in
Planned Parenthood of Central Missouri v.
Danforth, 428 U. S. 52
(1976), we invalidated Missouri's requirement of spousal consent as
a state-imposed "absolute obstacle to a woman's decision that Roe
held to be constitutionally protected from such interference."
Id. at
428 U. S. 71 n.
11. The Court relies on
Planned Parenthood, supra, and
Doe v. Bolton, 410 U. S. 179
(1973), for the proposition that
"the same test must be applied to state regulations that burden
an individual's right to decide to prevent conception or terminate
pregnancy by substantially limiting access to the means of
effectuating that. decision as is applied to state statutes that
prohibit the decision entirely."
Ante at
431 U. S. 688.
But neither of those cases refers to the "compelling state
interest" test. In
Bolton, the Court invalidated
procedural requirements of the Georgia abortion statute that were
found not "reasonably related" to the asserted legislative purposes
or to the "patient's needs." 410 U.S. at
410 U. S. 194,
199. Planned Parenthood involved -- in addition to the "absolute
obstacle" referred to above -- the Missouri requirement of prior
written consent by the pregnant woman. Despite the fact that
Missouri normally did not require written consent for other
surgical procedures, the Court
Page 431 U. S. 705
sustained this regulation without requiring any demonstration of
compelling state interests. The Court recognized that the decision
to abort "is an important, and often a stressful one," and the
State thus constitutionally could assure that the woman was aware
of the significance of the decision. 428 U.S. at
428 U. S.
67.
In sum, the Court quite unnecessarily extends the reach of cases
like
Griswold and
Roe. Neither our precedents nor
sound principles of constitutional analysis require state
legislation to meet the exacting "compelling state interest"
standard whenever it implicates sexual freedom. In my view, those
cases make clear that that standard has been invoked only when the
state regulation entirely frustrates or heavily burdens the
exercise of constitutional rights in this area.
See Bellotti v.
Baird, 428 U. S. 132,
428 U. S. 147
(1976). This is not to say that other state regulation is free from
judicial review. But a test so severe that legislation rarely can
meet it should be imposed by courts with deliberate restraint in
view of the respect that properly should be accorded legislative
judgments.
B
There is also no justification for subjecting restrictions on
the sexual activity of the young to heightened judicial review.
Under our prior cases, the States have broad latitude to legislate
with respect to adolescents. The principle is well settled that
"a State may permissibly determine that, at least in some
precisely delineated areas, a child . . . is not possessed of that
full capacity for individual choice"
which is essential to the exercise of various constitutionally
protected interests.
Ginsberg v. New York, 390 U.
S. 629,
390 U. S.
649-650 (1968) (STEWART, J., concurring in result). This
principle is the premise of our prior decisions, ostensibly
reaffirmed by the plurality,
ante at
431 U. S. 692,
holding that "the power of the state to control the conduct of
children reaches beyond the scope of its authority over adults."
Prince v. Massachusetts, 321 U. S. 158,
321 U. S. 170
(1944).
Page 431 U. S. 706
Restraints on the freedom of minors may be justified "even
though comparable restraints on adults would be constitutionally
impermissible."
Planned Parenthood of Central Missouri v.
Danforth, supra at
428 U. S. 102
(STEVENS, J., concurring in part and dissenting in part). [
Footnote 2/1]
New York has exercised its responsibility over minors in areas
falling within the "cluster of constitutionally protected choices"
relating to sex and marriage.
Ante at
431 U. S. 685.
It has set an age limitation below which persons cannot marry
without parental consent, N.Y.Dom.Rel.Law §§15, 15-a (McKinney 194
and Supp. 1976-1977), and has established by statute the age at
which a minor is legally recognized as having the capacity to
consent to sexual activity, Penal Law §130.05(3)(a) (McKinney
1975).
See also Penal Law §§130.25, 130.30, 130.35
(McKinney 1975). These provisions highlight the State's concern
that its juvenile citizens generally lack the maturity and
understanding necessary to make decisions concerning marriage and
sexual relationships.
Until today, I would not have thought it was even arguably
necessary to review state regulation of this sort under a standard
that, for all practical purposes, approaches the "compelling state
interest" standard. At issue in
Ginsberg v. New York,
supra, for example, was the question of the constitutionality
on its face of a New York criminal obscenity statute which
prohibited the sale to minors of material defined to be obscene on
the basis of its appeal to them whether or not it would be obscene
to adults. The Court recognized that
"the State has
Page 431 U. S. 707
an interest 'to protect the welfare of children' and to see that
they are 'safeguarded from abuses' which might prevent their
'growth into free and independent well developed men and
citizens.'"
390 U.S. at
390 U. S.
640-641, quoting
Prince v. Massachusetts, supra
at
321 U. S. 165.
Consequently, the "only question remaining" in that case was
"whether the New York Legislature might rationally conclude, as
it has, that exposure to the materials proscribed by [the statute]
constitutes such an 'abuse.'"
390 U.S. at
390 U. S. 641.
Similarly, the relevant question in any case where state laws
impinge on the freedom of action of young people in sexual matters
is whether the restriction rationally serves valid state
interests.
II
With these considerations in mind, I turn to the specific
provisions of the New York statute limiting the distribution of
contraceptives.
A
New York has made it a crime for anyone other than a physician
to sell or distribute contraceptives to minors under the age of 16
years. Educ.Law § 6811(8) (McKinney 1972). This element of New
York's program of regulation for the protection of its minor
citizens is said to evidence the State's judgment that the health
and wellbeing of minors would be better assured if they are not
encouraged to engage in sexual intercourse without guidance.
Although I have no doubt that properly framed legislation serving
this purpose would meet constitutional standards, the New York
provision is defective in two respects. First, it infringes the
privacy interests of married females between the ages of 14 and 16,
see ante at
431 U. S. 695
n. 18, in that it prohibits the distribution of contraceptives to
such females except by a physician. In authorizing marriage at that
age, the State also sanctions sexual intercourse between the
partners and expressly recognizes that once the marriage
relationship exists the husband and
Page 431 U. S. 708
wife are presumed to possess the requisite understanding and
maturity to make decisions concerning sex and procreation.
Consequently, the state interest that justifies a requirement of
prior counseling with respect to minors in general simply is
inapplicable with respect to minors for whom the State has
affirmatively approved marriage.
Second, this provision prohibits parents from distributing
contraceptives to their children, a restriction that unjustifiably
interferes with parental interests in rearing their children.
Cf. Ginsberg v. New York, 390 U.S. at
390 U. S. 639
and n. 7.
"[C]onstitutional interpretation has consistently recognized
that the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of
our society. 'It is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the state
can neither supply nor hinder.'"
Ibid., quoting
Prince v. Massachusetts, supra
at
321 U. S. 166.
See Wisconsin v. Yoder, 406 U. S. 205,
406 U. S.
231-233 (1972);
Pierce v. Society of Sisters,
268 U. S. 510,
268 U. S.
534-535 (1925);
Meyer v. Nebraska, 262 U.
S. 390,
262 U. S.
399-401 (1923). Moreover, this statute would allow the
State "to enquire into, prove, and punish,"
Poe v. Ullman,
367 U. S. 497,
367 U. S. 548
(1961) (Harlan, J., dissenting), the exercise of this parental
responsibility. The State points to no interest of sufficient
magnitude to justify this direct interference with the parental
guidance that is especially appropriate in this sensitive area of
child development. [
Footnote
2/2]
Page 431 U. S. 709
But, in my view, there is considerably more room for state
regulation in this area than would be permissible under the
plurality's opinion. It seems clear to me, for example, that the
State would further a constitutionally permissible end if it
encouraged adolescents to seek the advice and guidance of their
parents before deciding whether to engage in sexual intercourse.
Planned Parenthood, 428 U.S. at
428 U. S. 91
(STEWART, J., concurring). The State justifiably may take note of
the psychological pressures that might influence children at a time
in their lives when they generally do not possess the maturity
necessary to understand and control their responses. Participation
in sexual intercourse at an early age may have both physical and
psychological consequences. These include the risks of venereal
disease and pregnancy, and the less obvious mental and emotional
problems that may result from sexual activity by children.
Moreover, society has long adhered to the view that sexual
intercourse should not be engaged in promiscuously, a judgment that
an adolescent may be less likely to heed than an adult.
Requiring minors to seek parental guidance would be consistent
with our prior cases. In
Planned Parenthood, we considered
whether there was "any significant state interest in conditioning
[a minor's] abortion [decision] on the consent of a parent or
person
in loco parentis that is not present in the case of
an adult." 428 U.S. at
428 U. S. 75.
Observing that the minor necessarily would be consulting with a
physician on all aspects of the abortion decision, we concluded
that the Missouri requirement was invalid because it imposed
Page 431 U. S. 710
"a special consent provision, exercisable by a person other than
the woman and her physician, as a prerequisite to a minor's
termination of her pregnancy, and [did] so without a sufficient
justification for the restriction."
Ibid. But we explicitly suggested that a materially
different constitutional issue would be presented with respect to a
statute assuring in most instances consultation between the parent
and child.
Ibid., citing
Bellotti v. Baird,
428 U. S. 132
(1976).
See Planned Parenthood, supra at
428 U. S. 90-91
(STEWART, J., concurring).
A requirement of prior parental consultation is merely one
illustration of permissible regulation in this area. As long as
parental distribution is permitted, a State should have substantial
latitude in regulating the distribution of contraceptives to
minors. [
Footnote 2/3]
B
New York also makes it a crime for anyone other than a licensed
pharmacist to sell or distribute contraceptives to adults and to
minors aged 16 or over. The only serious justification offered by
the State for this prohibition is that it is necessary to
facilitate enforcement of the limitation on distribution to
children under 16 years of age. Since the Court invalidates that
limitation today, the pharmacy restriction lacks any rational
justification. I therefore agree with the Court that § 6811(8)'s
limitation on the distribution of nonprescription contraceptives
cannot be sustained.
But even if New York were to enact constitutionally permissible
limitations on access for children, I doubt that it could justify
the present pharmacy restriction as an enforcement measure.
Restricting the kinds of retail outlets that may distribute
Page 431 U. S. 711
contraceptives may well be justified, [
Footnote 2/4] but the present statute even prohibits
distribution by mail to adults. In this respect, the statute works
a significant invasion of the constitutionally protected privacy in
decisions concerning sexual relations. By requiring individuals to
buy contraceptives over the counter, the statute heavily burdens
constitutionally protected freedom. [
Footnote 2/5]
III
I also agree with the Court that New York cannot lawfully
prohibit all "advertisement or display" of contraceptives. But it
seems to me that the Court's opinion may be read too broadly. It
flatly dismisses, as justifications "classically irrelevant," the
State's contentions that the indiscriminate advertisement of
contraceptive products in some settings could be unduly offensive
and could be viewed by the young as legitimation of sexual
promiscuity. I agree that these justifications
Page 431 U. S. 712
cannot support a complete ban on advertising, but I see no
reason to cast any doubt on the authority of the State to impose
carefully tailored restrictions designed to serve legitimate
governmental concerns as to the effect of commercial advertising on
the young. [
Footnote 2/6]
[
Footnote 2/1]
MR. JUSTICE STEVENS recently provided the following example,
deeply rooted in our traditions and law:
"Because he may not foresee the consequences of his decision, a
minor may not make an enforceable bargain. He may not lawfully word
or travel where he pleases, or even attend exhibitions of
constitutionally protected adult motion pictures. Persons below a
certain age may not marry without parental consent. Indeed, such
consent is essential even when the young woman is already
pregnant."
428 U.S. at
428 U. S.
102.
[
Footnote 2/2]
The particular provision at issue makes it a crime for
"[a]ny person to sell or distribute any instrument or article,
or any recipe, drug or medicine for the prevention of contraception
to a minor under the age of sixteen years. . . ."
Educ.Law § 6811(8) (McKinney 1972). For the reasons stated in
the text, this provision unjustifiably infringes the
constitutionally protected interests of parents and married female
minors, and it is invalid in those two respects. Although the
prohibition on distribution might be sustained as to other
individuals if the restrictions on parental distribution and
distribution to married female minors could be treated as
severable, the result "would be to create a program quite different
from the one the legislature actually adopted."
Sloan v.
Lemon, 413 U. S. 825,
413 U. S. 834
(1973). I therefore agree with the Court that the entire provision
must be invalidated.
See Dorchy v. Kansas, 264 U.
S. 286,
264 U. S. 291
(1924);
Dollar Co. v. Canadian C. & F. Co., 220 N.Y.
270, 279, 115 N.E. 711, 713 (1917).
[
Footnote 2/3]
As long as access is available through parents, I perceive no
constitutional obstacle to state regulation that authorizes other
designated adults -- such as physicians -- to provide relevant
counseling.
[
Footnote 2/4]
Absent some evidence that a restriction of outlets to registered
pharmacists heavily burdens the constitutional interests of adults,
there would be no basis for applying the standard of review
articulated in
Griswold and
Roe. See
431 U. S.
supra. Indeed, in the absence of such evidence there would
be no reason to set aside a legislative judgment that enforcement
of constitutionally permissible limitations on access for minors,
see 431 U. S.
supra, warrants a reasonable limitation on the means for
marketing contraceptives. Without some limitations on the number
and type of retail outlets it would be difficult -- if not
impossible -- to effectuate the state interest in assuring that
minors are counseled before purchasing contraceptive devices. As
pharmacists are licensed professionals, the State may be justified
in relying on them to act responsibly in observing regulations
applicable to minors.
[
Footnote 2/5]
It is not a satisfactory answer that an individual may preserve
anonymity as one of a number of customers in a retail outlet.
However impersonal the marketplace may be, it does not approach the
privacy of the home. There may be some risk that mail distribution
will occasionally permit circumvention of permissible restrictions
with respect to children, but this does not justify the concomitant
burden on the constitutional rights of adults.
[
Footnote 2/6]
The State argues that unregulated commercial advertisement of
contraceptive products would be viewed by the young as
"legitimation" of -- if not an open invitation to -- sexual
promiscuity. The Court simply finds on the basis of the
advertisements in the record before us that this interest does not
justify total suppression of advertising concerning contraceptives.
The Court does leave open the question whether this or other state
interests would justify regulation of the time, place, or manner of
such commercial advertising.
Ante at
431 U. S. 702
n. 29. In my view, such carefully tailored restrictions may be
especially appropriate when advertising is accomplished by means of
the electronic media. As Judge Leventhal recently observed in that
context:
"[T]here is a distinction between the all-out prohibition of a
censor, and regulation of time and place of speaking out, which
still leaves access to a substantial part of the mature audience.
What is entitled to First Amendment protection is not necessarily
entitled to First Amendment protection in all places.
Young v.
American Mini Theatres, Inc., 427 U. S. 50
. . . (1976). Nor is it necessarily entitled to such protection at
all times."
Pacifica Foundation v. FCC, 181 U.S.App.D.C. 132, 157,
556 F.2d 9, 34 (1977) (dissenting opinion).
MR. JUSTICE STEVENS, concurring in part and concurring in the
judgment.
For the reasons stated in Parts I, II, and III of the opinion of
the Court, which I join, I agree that Population Planning
Associates, Inc., has standing to challenge the New York statute
and that the grant to licensed pharmacists of a monopoly in the
distribution of nonmedical contraceptives is unconstitutional. I
also agree with the conclusion that New York's prohibition against
the distribution of contraceptives to persons under 16 years of age
is unconstitutional, and with the Court's conclusion that the total
suppression of advertising or display of contraceptives is invalid,
but my reasons differ from those set forth in Part IV of MR.
JUSTICE BRENNAN's
Page 431 U. S. 713
opinion and I wish to add emphasis to the limitation on the
Court's holding in
431 U. S.
I
There are two reasons why I do not join
431 U.
S. First, the holding in
Planned Parenthood of
Missouri v. Danforth, 428 U. S. 52,
428 U. S. 72-75,
that a minor's decision to abort her pregnancy may not be
conditioned on parental consent, is not dispositive here. The
options available to the already pregnant minor are fundamentally
different from those available to nonpregnant minors. The former
must bear a child unless she aborts; but persons in the latter
category can and generally will avoid childbearing by abstention.
Consequently, even if I had joined that part of
Planned
Parenthood, I could not agree that the Constitution provides
the same measure of protection to the minor's right to use
contraceptives as to the pregnant female's right to abort.
Second, I would not leave open the question whether there is a
significant state interest in discouraging sexual activity among
unmarried persons under 16 years of age. Indeed, I would describe
as "frivolous" appellees' argument that a minor has the
constitutional right to put contraceptives to their intended use,
notwithstanding the combined objection of both parents and the
State.
For the reasons explained by MR. JUSTICE POWELL, I agree that
the statute may not be applied to married females between the ages
of 14 and 16, or to distribution by parents. I am not persuaded,
however, that these glaring defects alone justify an injunction
against other applications of the statute. Only one of the three
plaintiffs in this case is a parent who wishes to give
contraceptives to his children. The others are an Episcopal
minister who sponsors a program against venereal disease, and a
mail-order firm, which presumably has no way to determine the age
of its customers. I am satisfied, for the reasons that follow, that
the statute is also invalid as applied to them.
Page 431 U. S. 714
The State's important interest in the welfare of its young
citizens justifies a number of protective measures.
See Planned
Parenthood of Central Missouri v Danforth, supra at
428 U. S. 102
(STEVENS, J., concurring in part and dissenting in part). Such
special legislation is premised on the fact that young persons
frequently make unwise choices with harmful consequences; the State
may properly ameliorate those consequences by providing, for
example, that a minor may not be required to honor his bargain. It
is almost unprecedented, however, for a State to require that an
ill-advised act by a minor give rise to greater risk of irreparable
harm than a similar act by an adult. [
Footnote 3/1]
Common sense indicates that many young people will engage in
sexual activity regardless of what the New York Legislature does;
and further, that the incidence of venereal disease and premarital
pregnancy is affected by the availability or unavailability of
contraceptives. Although young persons theoretically may avoid
those harms by practicing total abstention, inevitably many will
not. The statutory prohibition denies them and their parents a
choice which, if available, would reduce their exposure to disease
or unwanted pregnancy.
Page 431 U. S. 715
The State's asserted justification is a desire to inhibit sexual
conduct by minors under 16. Appellants do not seriously contend
that, if contraceptives are available, significant numbers of
minors who now abstain from sex will cease abstaining because they
will no longer fear pregnancy or disease. [
Footnote 3/2] Rather, appellants' central argument is
that the statute has the important symbolic effect of communicating
disapproval of sexual activity by minors. [
Footnote 3/3] In essence, therefore, the statute is
defended as a form of propaganda, rather than a regulation of
behavior. [
Footnote 3/4]
Although the State may properly perform a teaching function, it
seems to me that an attempt to persuade by inflicting harm on the
listener is an unacceptable means of conveying a message that is
otherwise legitimate. The propaganda technique used in this case
significantly increases the risk of unwanted pregnancy and venereal
disease. It is as though a State decided to dramatize its
disapproval of motorcycles by forbidding the use of safety helmets.
One need not posit a constitutional right to ride a motorcycle to
characterize such a restriction as irrational and perverse.
Even as a regulation of behavior, such a statute would be
defective. Assuming that the State could impose a uniform
Page 431 U. S. 716
sanction upon young persons who risk self-inflicted harm by
operating motorcycles, or by engaging in sexual activity, surely
that sanction could not take the form of deliberately injuring the
cyclist or infecting the promiscuous child. If such punishment may
not be administered deliberately, after trial and a finding of
guilt, it manifestly cannot be imposed by a legislature,
indiscriminately and at random. This kind of government-mandated
harm, is, in my judgment, appropriately characterized as a
deprivation of liberty without due process of law.
II
In
431 U. S. the
Court holds that New York's total ban on contraceptive advertising
is unconstitutional under
Bigelow v. Virginia,
421 U. S. 809, and
Virginia Pharmacy Bd. v. Virginia Citizens Consumer
Council, 425 U. S. 748.
Specifically, the Court holds that all contraceptive advertising
may not be suppressed because some advertising of that subject may
be offensive and embarrassing to the reader or listener. I also
agree with that holding.
The Court properly does not decide whether the State may impose
any regulation on the content of contraceptive advertising in order
to minimize its offensive character. I have joined
431 U.
S.
The fact that a type of communication is entitled to some
constitutional protection does not require the conclusion that it
is totally immune from regulation.
Cf. Young v. American Mini
Theatres, Inc., 427 U. S. 50,
427 U. S. 65-71
(opinion of STEVENS, J.). An editorial and an advertisement in the
same newspaper may contain misleading matter in equal measure.
Although each is a form of protected expression, one may be
censored, while the other may not.
In the area of commercial speech -- as in the business of
exhibiting motion pictures for profit -- the offensive character
of
Page 431 U. S. 717
the communication is a factor which may affect the time, place,
or manner in which it may be expressed.
Cf. Young v. American
Mini Theatres, Inc., supra. The fact that the advertising of a
particular subject matter is sometimes offensive does not deprive
all such advertising of First Amendment protection; but it is
equally clear to me that the existence of such protection does not
deprive the State of all power to regulate such advertising in
order to minimize its offensiveness. A picture which may
appropriately be included in an instruction book may be excluded
from a billboard.
I concur in the judgment and in Parts I, II, III, and V of the
Court's opinion.
[
Footnote 3/1]
Only two other States have adopted similar legislation. Family
Planning, Contraception and Voluntary Sterilization: An Analysis of
Laws and Policies in the United States, Each State and
Jurisdiction, A Report of the National Center for Family Planning
Services 76 (1971) (DHEW Pub. No. (HSA) 74-16001). This publication
contains a comprehensive survey of state laws in this area. The
authors were aware of
"no case in which either a doctor or a layman has been
successfully prosecuted under any criminal statute for providing
contraceptive information or services to a minor or has been held
liable for damages for providing contraception to a minor without
parental consent."
Id. at 70. This survey also indicated that "the clear
trend is toward the removal of all such barriers to the sale and
distribution of contraceptives."
Id. at 59. By 1971, there
were 34 States with no law restricting or regulating distribution
of contraceptives,
ibid., and 33 States with no
restrictions on advertising or display.
Id. at 60.
[
Footnote 3/2]
Appellants make this argument only once, in passing.
See Brief for Appellants 20. In the District Court,
appellants candidly admitted that "there is no evidence that
teenage extramarital sexual activity increases in proportion to the
availability of contraceptives. . . ."
See 398 F.
Supp. 321, 332. Indeed, appellants maintain that it is a "fact
that youngsters will not use contraceptives even where available. .
. ." Reply Brief for Appellants 5.
[
Footnote 3/3]
The fact that the State admittedly has never brought a
prosecution under the statute,
id. at 2, is consistent
with appellants' position that the purpose of the statute is merely
symbolic.
[
Footnote 3/4]
Appellants present no empirical evidence to support the
conclusion that the State's "propaganda" is effective. Simply as a
matter of common sense, it seems unlikely that many minors under 16
are influenced by the mere existence of a law indirectly
disapproving of their conduct.
MR. JUSTICE REHNQUIST, dissenting.
Those who valiantly but vainly defended the heights of Bunker
Hill in 1775 made it possible that men such as James Madison might
later sit in the first Congress and draft the Bill of Rights to the
Constitution. The post-Civil War Congresses which drafted the Civil
War Amendments to the Constitution could not have accomplished
their task without the blood of brave men on both sides which was
shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible
for these Amendments, by feats of valor or efforts of
draftsmanship, could have lived to know that their efforts had
enshrined in the Constitution the right of commercial vendors of
contraceptives to peddle them to unmarried minors through such
means as window displays and vending machines located in the men's
room of truck stops, notwithstanding the considered judgment of the
New York Legislature to the contrary, it is not difficult to
imagine their reaction. [
Footnote
4/1]
Page 431 U. S. 718
I do not believe that the cases discussed in the Court's opinion
require any such result, but to debate the Court's treatment of the
question on a case-by-case basis would concede more validity to the
result reached by the Court than I am willing to do. [
Footnote 4/2] There comes a point when
endless and ill-considered extension of principles originally
formulated in quite different cases produces such an indefensible
result that no logic chopping can possibly make the fallacy of the
result more obvious. The Court here in effect holds that the First
and Fourteenth Amendments not only guarantee full and free debate
before a legislative judgment as to the moral dangers to
which minors within the jurisdiction of the State should not be
subjected, but goes further and absolutely prevents the
representatives of the majority from carrying out such a policy
after the issues have been fully aired.
No questions of religious belief, compelled allegiance to a
secular creed, or decisions on the part of married couples as to
procreation, are involved here. New York has simply decided that it
wishes to discourage unmarried minors under 16 from having
promiscuous sexual intercourse with one another. Even the Court
would scarcely go so far as to say that this is not a subject with
which the New York Legislature may properly concern itself.
That legislature has not chosen to deny to a pregnant woman,
after the
fait accompli of pregnancy, the one remedy which
would enable her to terminate an unwanted pregnancy. It has instead
sought to deter the conduct which will produce such
faits
accomplis. The majority of New York's citizens are in effect
told that however deeply they may be concerned about the problem of
promiscuous sex and intercourse among unmarried teenagers, they may
not adopt this means of dealing with it. The Court holds that New
York may not use its police power to legislate in the interests of
its concept of the public morality as it pertains to minors. The
Court's denial of a power so fundamental to self-government must,
in the long run, prove to be but a temporary departure from a wise
and heretofore settled course of adjudication to the contrary. I
would reverse the judgment of the District Court.
[
Footnote 4/1]
As well as striking down the New York prohibitions of commercial
advertising and sales to persons under 16, the Court holds invalid
the State's requirement that all ales be made by licensed
pharmacists. Whatever New York's reasons for this particular
restriction on distribution -- and several can be imagined -- I
cannot believe that it could significantly impair the access to
these products of a person with a settled and deliberate intention
to procure them.
[
Footnote 4/2]
I cannot, however, let pass without comment the statement
that
"the Court has not definitively answered the difficult question
whether and to what extent the Constitution prohibits state
statutes regulating [private] consensual sexual behavior among
adults."
Ante at
431 U. S. 688
n. 5,
431 U. S. 694
n. 17. While we have not ruled on every conceivable regulation
affecting such conduct the facial constitutional validity of
criminal statutes prohibiting certain consensual acts has been
"definitively" established.
Doe v. Commonwealth's
Attorney, 425 U.S. 901 (1976).
See Hicks v. Miranda,
422 U. S. 332,
422 U. S.
343-344 (1975).