Carey v. Population Services International – Oral Argument – January 10, 1977

Media for Carey v. Population Services International

Audio Transcription for Opinion Announcement – June 09, 1977 in Carey v. Population Services International

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Warren E. Burger:

We will hear arguments first this morning in number 75-443, Carey and others against Population Services International.

Mrs. Silverman, you may proceed whenever you are ready.

Arlene R. Silverman:

Mr. Chief Justice and may it please the court.

Appellants appeal from an order of a three judge District Court in the Southern District of New York which enjoined the operation of Section 6811 (8) of the New York State Education Law.

This law did three things and we are talking here only in the context of non-prescription contraceptives as opposed to prescription contraceptives.

The first thing this law did was to limit the sale of contraceptives by licensed pharmacists only in the context of those 16 years and older.

It also forbade the sale by pharmacists to children under 16 and the statutory scheme provides that these particular individuals have to attain their non-prescription contraceptives from a physician.

This is provided by Section 6807 1(b) of the Education Law.

Finally, the statutory scheme prescribed the advertisement and display of contraceptive products.

Before turning to the merits of Appellees’ claims, I would just like briefly to address myself to the question of standing of the different appellees to maintain this lawsuit.

The District Court held that population planning associates and Hagen had standing to raise the First Amendment and privacy rights of users of non-prescription contraceptives, we disagree.

As per plaintiff, population planning associates as well as Hagen, it is our position that there is no realistic — or that they have demonstrated no realistic fear of prosecution under the statute that is currently being attacked.

As we have pointed out, there have been no prosecutions under the Statute of New York State since 1965.

We feel that this is even recognized by population planning associates itself since — although they received two letters from the State Board of Pharmacy with regards to the advertisement of contraceptives.

They waited over a year before even initiating this lawsuit in the District Court.

Although, there was a visit to their premises in September, 1974 after this lawsuit was started.

This visit was for information gathering purposes only, and is not sufficient to confer standing on population planning associates.

As for the Reverent Hagen, there is not even an allegation in the complaint that he received a letter, and we would say that he also is without standing and without standing even less than population planning associates to maintain this lawsuit.

Even if appellees had demonstrated a realistic fear of injury under the Statute, we also feel they are not suitable representatives to raise the privacy rights of third parties which is what they are both attempting to do in this lawsuit.

A Plaintiff Population Associates is a commercial firm and under these circumstances, we feel they are not a proper party to raise the privacy rights of users of non-prescription contraceptives where there is no party to a lawsuit and never was a party to the lawsuit who maintained that they wanted these particular products sold in places other than licensed pharmacies.

With respect, Plaintiff Population Planning associates raising the First Amendment rights of others, we also feel they’re an improper party. The District Court in holding that they had standing to raise the First Amendment rights of others, relied on the Procunier and the New York Times cases.

We feel that neither of these cases support that position.

Procunier was not an assertion of third party rights case.

The court in that case was careful to state that we do not deal here with the difficult questions of the so called right to hear and third party standing.

But with the particular means of communication which the interest of both parties are inextricably mashed, that’s in Procunier at page 409.

As for the New York Times case, we would submit that those are very special kinds of standing cases because in that type of case, a third party is not permitted to raise the rights of those who would receive the communication.

The receivers of the communication not knowing about the communication would of course be in no position to bring the lawsuit themselves.

That is quite different from the case here where there is a statute on the book, and those who would benefit from appellees argument in this court, would be in a position to attack the statute.

As for Hagen, he does not allege any interference with his receipt of information regarding contraceptives, nor does he allege that he wishes to advertise or display contraceptives and for these reasons, we would also feel he is not an appropriate party to raise the third party interest — to raise third party interest.

There were other plaintiffs in the District Court, the District Court did not reach the question of their standing.

Arlene R. Silverman:

We would submit that they in any event do not have any standing.

The doctors as we have pointed out are exempted from the operation of Section 6811 (a) by another provision of the Education Law, PSILH, no threat of prosecution, and as the District Court pointed out, their exact relationship to the New York State Law was not at all clear.

As for John Doe(ph), he was never identified and we would submit that an analysis of the complaint would indicate that his claims in any event are speculative.

Turning out to an analysis of the merits of the claims advanced by the plaintiffs in the District Court.

The District Court analyzed the New York Statutory scheme from a right of privacy standpoint.

They held that the right of private – that access to contraceptive products was, if not an aspect of the right of privacy was close enough for them to consider it as such.

And they therefore found that the State could not regulate in this area unless there was a fundamental reason for it to do so.

It is our position however that in reaching this conclusion, the District Court applied an inappropriate standard to the New York State Statutory Scheme.

There is no right of access to contraceptive products even assuming there is a right to use contraceptive products which was the case in Griswold v. Connecticut.

New York in providing, that only licensed pharmacist or physicians where children under 16 are concerned may distribute contraceptives has merely regulated the sources from which individuals may obtain contraceptives.

Perhaps I misunderstood.

I thought that it was illegal for a pharmacist to sell contraceptives to those under 16.

Arlene R. Silverman:

Yes, Your Honor, it is.

I thought — and I just said that, New York in providing that licensed pharmacists or physicians where children under 16 are concerned, that is true, may only sell contraceptive — only physicians may distribute contraceptives.

Pharmacists may not.

Arlene R. Silverman:

That is correct.

Unless prescribed by a physician —

Arlene R. Silverman:

Not prescribed, unless obtained from a physician, we are talking about non-prescription contraceptives.

Pharmacists may not sell to those under 16 period.

Arlene R. Silverman:

Exactly.

They would have to obtain non-prescription contraceptives from a clinic where a physician is employed or works or from a physician directly.

However, there are no individuals in New York State that are denied outright the ability to obtain non-prescription contraceptive products.

Thus, the statutory scheme under attack here —

How do you say that, that license —

Arlene R. Silverman:

Well, because under the New York State statutory scheme, adults could go into a pharmacist and from him, they could purchase non-prescription contraceptives and a child under the age of 16 could go to a clinic or to a physician and would be able to obtain non-prescription contraceptives.

So there was no category of individuals in the State of New York that does not have some means of obtaining non-prescription contraceptives.

And for this reason Your Honor —

Does the record tell us how available they are to people under 16 who go to clinics and the like?

Arlene R. Silverman:

No, it doesn’t Your Honor.

This was decided on a motion for summary judgment and this was not at all — there was no evidence in the record really which would indicate one way or the other.

And you did not offer any evidence to show that they were in fact available through the doctors or clinics.

Arlene R. Silverman:

Well Your Honor, we said that they were available through doctors, I would say the plaintiffs offered no evidence to show that this was not realistic —

Well, you said they are available, by that you mean there is no statutory objection?

Arlene R. Silverman:

Exactly.

Maybe doctors don’t have a stock of contraceptives in their office or their clinics. How do we know?

Arlene R. Silverman:

Well Your Honor, we don’t know and that was one of our objections to the granting of summary judgment by the District Court.

It seemed to us that since —

Well, if you wanted to prove that they are available, why would you object to the Summary Judgment.

You could have put an evidence —

Arlene R. Silverman:

Well Your Honor, we did object Summary Judgment, but it seem to me that the plaintiffs were the ones maintaining this lawsuit, and therefore the burden was on them in attacking the State statute to establish, not on the defendants, that they were unavailable, and therefore, not having done so, we feel that the District Court improperly granted Summary Judgment to the plaintiffs in this matter.

In other words, I do not see the burden on state.

To me, the burden was on the plaintiffs to —

You are making the argument that they are available, and I think if you are going to make that argument, you should be pointing to something in the record to show they are.

Arlene R. Silverman:

Well, Your Honor, we had no opportunity if we were permitted to go to trial on this case, we would have been able or would have at that time proved what the actual practice was under New York Law.

However, we were not given that opportunity.

We opposed the motion for summary judgment and summary judgment was granted.

We feel that there was not sufficient evidence in the record to warrant a holding by the District Court that they were unavailable, since there are clinics maintained by one of the amicus in these courts, and I understand that they do employ physicians and therefore a children could go to these clinics as well as their own physicians, and obtain a non-prescription contraceptive products.

Mrs. Silverman, the only statute that is here is the one quoted on Page 2 of your brief, New York State Education Law, Section 6811 (8).

Is that correct?

Arlene R. Silverman:

Yes Sir.

It does not say anything about physicians.

Arlene R. Silverman:

Well, Your Honor, there is another provision of the Education Law which we cited in that same article.

It is 68 — let me just get the right side, Section 6807 (1) (b), 6807(1) (b) of the Education Law.

Is that quoted anywhere?

Arlene R. Silverman:

I do not believe it is Your Honor.

I think it is set forth in the brief of the opinion of the District Court which is I believe in the jurisdictional state.

Can you paraphrase the phrase what it provides?

Arlene R. Silverman:

Yeah.

It says that nothing in this article shall prohibit a physician from distributing any instruments or anything that he feels is appropriate in the course of his practice.

That is an instrument and whatever other words are used — identifying another section of Education Law as items that would obviously include non-prescription contraceptives and I might say that the State Board of Pharmacy has always interpreted section 6811 (8) to exempt physician from its operations.

But, the distribution must be directly by the physician.

Arlene R. Silverman:

That is true Your Honor.

Mrs. Silverman would it violate the statute for a parent to give his child a contraceptive?

Arlene R. Silverman:

Well, I think Your Honor that it would violate the terms of the statute, the same that is probably as much as a parent should not give any sort of a drug that is obtainable by a prescription to a minor.

How?

I do not know, if that is a realistic kind of a thing to consider because I suppose how is anybody going to know this type of thing, and I do not know if that type of a distribution is meaningful under the statute, but I think by its terms, it probably would.

Potter Stewart:

Well, it makes it — the statute makes it illegal for anybody to give or sell the contraceptive to anybody whether it be parent or child or whatever –unless he is a distributor, seller or a pharmacist or a physician.

Arlene R. Silverman:

Yes, I would agree Your Honor.

In any event, since as we have just been discussing, since contraceptives are available to all in the State of New York, we would say that the claims raised here by the appellees do not reach the level of governmental intrusion into matter, so affecting the decision whether to bear — to get a child, and therefore, we would say that the issue before this court is not one involving the right to use contraceptive products, but is merely a state statute which tends to regulate the sale of contraceptive products, and does not establish any independent constitutional right.

I believe that this was pointed out by this court in Griswold v. Connecticut where this court held that the statutory scheme, an issue in that case was violative of the constitution because it forbade the use of contraceptives.

The court specifically noted at Page 485 that the statutory scheme did not simply regulate manufacture or sell, which is the case with this particular statute of course.

In short, then we would simply state that the right of the access to contraceptive products is not a right within the right of privacy, is not a right within the constitution, and therefore, the District Court in invalidating the statutory scheme implied an inappropriate and unwarranted constitutional standard.

We would point out however, that even if they were right in applying this particular standard, that the reasons for the statutory scheme are such that the regulation is permissible.

I would just at this point though like to note with respect to the claim that only licensed pharmacists may distribute non-prescription contraceptives that we feel that this is an argument that cannot really be taken seriously by this court, since there are many pharmacies in New York and it does not seem to the appellants that this really raises a realistic claim.

There is no proof in the record, and we do not believe it could seriously be shown by the appellees that an individual in New York state could not obtain non prescription contraceptives if they did not want to.

There are many, many pharmacies in New York and to us, it seems a highly specious argument to claim that there was not a supply of these contraceptives or that they are unavailable to particular individuals wishing to purchase them.

In any event we would submit further that the limitations on sale which permit only licensed pharmacists to sell non prescription contraceptives is eminently reasonable.

Potter Stewart:

I suppose there are other products that under New York law maybe sold only by licensed pharmacists, aren’t there?

Arlene R. Silverman:

That is true Your Honor, and also I believe under Federal Regulation.

We would say that the reasons for the statute are among the following that by permitting only licensed pharmacists to sell non prescription contraceptives; this assures that only persons of mature years will be involved in the sale of such products.

It also permits an area of expertise in the types of products to be developed which permits purchasers to inquire as to the relative qualities of the different products.

Mrs. Silverman, let me follow through on your response to Mr. Justice Stewart.

Are there other non prescription products the sale of which under New York statute is restricted to licensed pharmacist?

Arlene R. Silverman:

Non prescription?

Yeah.

Arlene R. Silverman:

At the moment Your Honor, I cannot think of any.

That is not to say there are not any.

I am not familiar with the complete range of — but I would think that if one needs a prescription, then one would have to obtain it from a licensed pharmacist.

I can imagine if it were — the prescription item that would by definition —

Non prescription products — my question is whether you know of any other such product, the sale of which is restricted to licensed pharmacists in New York?

Arlene R. Silverman:

I do not know of any Your Honor, as I say that does not mean there are not any, but I at the moment do not know of any, no.

As far as I know, this is one of the items though that does fall in that category.

Do you justify this on the ground that a licensed pharmacist has some particular expertise in the dispensation of these products?

Arlene R. Silverman:

Well, we justify it on various grounds Your Honor, one of them is that permitting a licensed pharmacist to sell these products does permit an area of expertise to be developed at least whereby he would have some idea of what particular product might be best suited for some particular individual.

And with his training, would be a in better position than the average individual to answer any questions.

Since presumably a pharmacist would have been to a specialized school and would have a background in chemicals etcetera.

We feel there are other justifications however by limiting the sale by licensed pharmacist, this prohibits anyone or prevents rather anyone from tampering with the items and also, if the statutory scheme which forbids display of contraceptives and limits the sale by minors to physicians only, since the State Board of Pharmacy employees investigators, these provisions are capable of realistic enforcement if contraceptives result anywhere, of course there would be no way really to enforce these particular provisions.

The appellees raise an argument in this court which they mentioned briefly in their complaint, but didn’t pursue thereafter and I took it as abandoned — that the fact that these products are limited, that only licensed pharmacists may sell these products keeps the prices of the products artificially high.

We would submit that there is no proof in the record of that particular point, but even if there were that, that in and of itself is not a reason to overturn the statutory scheme.

Now, this is not anti-trust case anyway?

Arlene R. Silverman:

That’s another point Your Honor.

As for the limitation on the way, minors under the age of 16 may obtain non prescription contraceptives, we would also submit that even if there is a right of access to contraceptive products, that the New York statutory scheme is again constitutional that the reason the legislature has advanced for this particular statutory scheme is the morality of the youth of the state of New York and we would submit that the morality of the youth of the state of New York wants this particular legislation.

We have cited in our brief various studies and statical analysis which we feel support the position that even if not non prescription contraceptives were more widely available, youngsters 13, 14, 12, 11 whatever age they are like would not use them.

However, by making them widely available, we would in effect be sanctioning sexual activity by these particular groups of youngsters.

Under these circumstances we feel it was reasonable for the state legislature to determine that permitting youngsters to obtain these products from a physician was in the best interest of these youngsters and was consistent with the morality, the standards of morality of the state.

What age can then — people get married in New York?

Arlene R. Silverman:

I believe 16 and 14.

14 for the girl?

Arlene R. Silverman:

I believe that’s correct.

Does New York prohibit they have a statutory rate provision?

Arlene R. Silverman:

Yes, there is Your Honor.

What’s the age of concern?

Arlene R. Silverman:

I believe it is either 16 or 18, I am not absolutely sure — 17 excuse me, Mr. Pollock(ph) is correcting me.

Well, a married couple —

Arlene R. Silverman:

Well —

The wife — 14 or 15 could not —

Arlene R. Silverman:

Well, she could —

Buy any of these things except from a physician.

Arlene R. Silverman:

Exactly Your Honor.

As we have again pointed out in our brief just to go a little further with this point that family planning assumes both in family context and the possibility of rational planning and studies with respect to very young children seem to point out that youngsters that their sex is often episodic and unanticipated, that passion tends to triumph over reason and that therefore even assuming that these products were available, they would not be used.

Arlene R. Silverman:

My discussion up to this point has been in the context of the right of privacy which is really the advantage point from which the District Court analyzed the appellees claims.

I would submit though that even from a standard Equal Protection analysis, that the constitutional scheme which I have been discussing passes constitutional muster assuming there were proper parties to this lawsuit to raise Equal Protection claims.

We would submit that for the same reasons, we have advanced with regard to the right of privacy that again the Equal Protection standard is not violated by the statutory scheme.

Now, the final part of the District Court’s opinion deals with the statutory prohibition on advertisement and display of contraceptive products.

The District Court held that this was violative of the First Amendment.

Again, we disagree.

The statutory scheme under attack here applies only to commercial advertisements.

We would submit that even if commercial advertisements are protected by the First Amendment that the state may regulate nonetheless a commercial advertisement to a greater extent than a communication which merely sets forth an idea.

Viewing this context, we would state that it was proper for the legislature to pass this particular statute.

As we have pointed out in our brief, this statute was motivated by the belief that the advertisement and display of contraceptive products would again lead to the legitimization of sexual activity by very young people in the state which would be contrary to the policy of the State of New York.

It was also of a concern by the legislature that the sensibilities of adults might be offended if the advertisement and display of contraceptive products were permitted.

Are there any other products that maybe legally sold in the State of New York that New York — says may not be displayed or advertised?

Arlene R. Silverman:

Well, none that I know of Your Honor, but I would point out that there were limitations on cigarettes and alcoholic beverages, and those of course may legally be sold in the state and there are limitations of course on the way for those particular products.

Under New York law?

Arlene R. Silverman:

Well, of course the Federal Law and I do not know if New York has the identical statute or a regulation, but of course there are examples of other governmental regulation of products that are legal, but on the other hand may not be advertised.

In your discussion of the consideration rather than the standing of this organization commercially to raise the Equal Protection claim.

Have you considered our opinion just a couple of weeks ago in Boren and Craig?

Arlene R. Silverman:

Yes, I have Your Honor.

I have right here, and I think that, that case is somewhat different from this case for the reason that there, at least at one point, there was a male who was between the ages of 18 and 21 who desired to purchase the beverages under consideration in that case.

I think one of the problems with this case is that you have the sellers or the vendors of these products raising claims for people who are not parties, and it may very well be that there was nobody in the State of New York that wishes to have these products advertised or wishes them sell to children under the age of 16.

So it seems to me that in a sense in this particular case without any demonstration ever of a category of people who would benefit from the ruling or that benefited from the District Court’s ruling that this case is quite different from the Craig case.

Assume there are.

Arlene R. Silverman:

Well, if there are, Your Honor, then I think this case does go a little further than Singleton for instance, but I just think that, that is a —

But, in Boren and Craig, we ended up with a commercialized proceeding, did we not?

Arlene R. Silverman:

Yes, that is true.

That she had standing to the Equal Protection claim of males 18-21 who want to buy beer.

Arlene R. Silverman:

That is true Your Honor.

How you differ this one?

Arlene R. Silverman:

Well, Your Honor I think that first of all they have the Equal Protection claim, here you have —

Well, I am speaking — I am addressing the Equal Protection claim — we have an Equal Protection claim asserted by the same commercial dispenser — do we not?

Arlene R. Silverman:

Well, I think we do Your Honor.

I am not quite sure the plaintiffs mentioned it tangentially in their complaint never really urged it thereafter but assuming that there is, as I say, I think the distinction is that at least in Craig, there was a feeling at least or at least the court knew that there was at least somebody who at some point in time —

Certainly the standing of argument would not depend on whether it is Equal Protection of privacy, would not you get the same answers?

Arlene R. Silverman:

Well, I think that would depend on analysis of how well the party could raise the particular claim.

In other words, if there was no difference between the Equal Protection, the position.

Didn’t Eisenstadt permit a commercial dispenser to raise the equal protection — that was equal protection too, was not that?

Arlene R. Silverman:

That was an equal protection claim.

And that was also contraceptives.

Arlene R. Silverman:

Yeah, but I do not think that there — was looking really to sell the contraceptives.

I viewed him more as a genuine advocate and some with an interest that was more akin to those that would benefit or at least that they alleged would benefit from the ruling must hear, you have somebody really just looking to make a profit.

And I question whether someone looking to make a profit should be permitted to stand in the same position as those who they claim would benefit.

Well, definitely we permitted someone in the business of making a profit to assert the third party claims in the Craig and Boren.

Arlene R. Silverman:

Yes, you did Your Honor.

We did also I think in Eisenstadt.

Arlene R. Silverman:

Well, as I said and I think Eisenstadt is different.

I don’t think there was really — I do not see him as a commercial entity, but with respect to Craig, I would say that the difference between Craig and this case is one that the standing claim was never really raised in the court below —

In this case?

Arlene R. Silverman:

In Craig, and in reading Craig, I have a sense that perhaps that when some have to the court’s determination as to whether that was really a sincere claim raised by the defendants in that particular case but again, I would point out that to me the more serious problem.

What is it that you are saying?

Arlene R. Silverman:

In Craig, this court noted.

We did what?

Arlene R. Silverman:

You note, the court noted that initially and despite having the opportunity to do so, appellees never raised before the District Court any objection to witness reliance upon the claimed unequal treatment to 18-20 year old males.

And you think that controlled our decision?

Arlene R. Silverman:

No, I don’t Your Honor; I merely pointed out this one factor.

Initially there was a plaintiff in Craig — initially who was under 21 year old male.

Arlene R. Silverman:

Exactly, so at least the court was not dealing with an unrealistic sort of a claim.

Here, I feel that there is — at this juncture, I do not think we really know that there is any individual in the State of New York who is particularly anxious to have non prescription contraceptives advertised, nor do I know if there are any youngsters under the age of 16 are particularly anxious going to pharmacies.

I mean, the point is there is nothing in the record in this case which would warrant that particular finding.

That is the way I feel Craig.

No such person has ever been identified in this litigation.

Arlene R. Silverman:

That is true, other than John Doe(ph) but again he has —

He is 42 years old.

Arlene R. Silverman:

Never been identified and I am not quite sure John Doe(ph) exists, and I do not know who he is.

Well, whether or not he exists, he is 42 years old.

Arlene R. Silverman:

I believe he has two children Your Honor.

In any event, in conclusion then, I would ask that the order of the District Court which granted summary judgment to the plaintiffs be reversed and at the very least judgment, be entered for the appellants.

What would you ask at the very moment?

Arlene R. Silverman:

The very least I would ask that the judgment be reversed, the very most I suppose, but the very least I would asked us to be given an opportunity or at least the plaintiff should be required to prove their claims and we should have a proper opportunity to refute them.

What the District court did I think was just take a bunch of citations to questionable studies; I don’t know who did the studies or on what basis they did the studies, it reached to all these fabulous conclusions.

I think this is one of the problems with this kind of case that courts are sitting as legislatures.

I don’t think this is the kind of case that is appropriate for resolution really by a court at all.

But at least if the court is going to undertake the test than I think that the defendant should be given a proper opportunity to hear what there case is and be given an Equal opportunity.

But Mrs. Silverman, in your questions presented, you didn’t raise any question about the summary judgment procedure, did you? In your jurisdictional statement.

Arlene R. Silverman:

Well, if I didn’t in absolute terms your honor I thought that I was implied in my reply brief as well as throughout.

Warren E. Burger:

Mr. Pollet, let me ask you a question before you get started.

On this matter of age of marriage in New York state, can a 14 year old girl get married without the consent of her parents?

Michael N. Pollet:

I blieve it requires parental consent.

Warren E. Burger:

And, 16 same for the males who are 16?

Michael N. Pollet:

I believe that’s accurate.

Mr. Chief Justice, may I please the court.

It is the appellees view and it was the conclusion in holding of the Three-Judge district court that New York’s anti-contraceptive law conveys an established personal privacy right, namely the fundamental right of individual choice and freedom from state interference in matters of family planning and birth control.

This constitutional privacy right, it has been held encompasses not only the abortion decision but also includes the right to obtain non medical products used to prevent conception and right to convey and receive information about such products.

This statute which impinges upon the right of reproductive freedom is as Judges Finley, Pierce and Connor of the Three-Judge court below held a law which harms rather than benefits the citizens of New York State.

How do you limit it’s a non medical products?

Michael N. Pollet:

Because in our view there is no health rationale which supports the state’s restriction and limitation on the sale of non medical contraceptives.

But what you said there, there was right to obtain non medical products.

Is that what you said?

Michael N. Pollet:

No.

If I did, I misspoke Your Honor; the right to obtain would of course include the right to obtain medical as well as non medical products.

We make no contingent here that the imposition of requirements of prescriptions for drugs and compounds which require such restrictions are illegal, this case is limited to the sale and distribution of non medical contraceptives.

William H. Rehnquist:

You say that Three-Judge district court said that this law harmed rather than helped the citizens of New York.

Is that the kind of decision that Three-Judge district court ordinarily makes in a constitutional case?

Michael N. Pollet:

I don’t think it was necessary Mr. Justice Rehnquist for the court to make that finding but on the record that was put before them that finding was well justified.

How possibly was that a permissible issue in a Federal District Court which was properly concerned only with the constitutionality of this law?

Michael N. Pollet:

Well, I believe the constitutionality requires that those factors be brought in directly if not peripherally.

What if the decision was that, it constitutionally harmed them, that it invaded and violated some rights or freedoms of theirs protected or guaranteed by the constitution, that was one thing but finding that the law was a bad law that did more harm than good was no business of the Federal Court.

Michael N. Pollet:

Well I think the Federal Court below did what this Court didn’t Roe v. Wade, and that is in order to determine the fundamentality of the right asserted.

It looked if the harm and consequences which would befall the citizens if that activity were denied to them.

And in so doing, it found dire, devastating, and tragic consequences which would result from the limitations and denial of access to contraceptives.

Mr. Pollet, what provision of the constitution do you rely on?

Michael N. Pollet:

We rely primarily on the Fourteenth Amendment and the Right of Privacy derived there affirmed from the Fourteenth Amendments concept of personal liberty.

Do you means just the Fourteenth Amendment in gross or you have some provision in the Fourteenth Amendment?

Michael N. Pollet:

The restrictions on the state action —

Which one?

They are all restrictions on state action.

Michael N. Pollet:

That’s correct.

Which ones, its a Due Process Clause or Equal Protection, what is it?

Michael N. Pollet:

Well, both Due Process and Equal Protection are involved on different levels in this case.

We also rely of course —

Where do you apply in privacy in those provisions.

Michael N. Pollet:

I believe that those rights are implicit in the Fourteenth Amendment and that this court had said so.

Do you think the court has tied it to the Due Process Clause?

Michael N. Pollet:

No, I think in —

What do you find it?

Michael N. Pollet:

I think I feel the same way the Court does in Roe v. Wade that while there’s a slight preference for Fourteenth Amendment that has also been held by this court in Griswold, so that such rights also derive from emanations of the First, Third, Fourth —

You find it where the Court finds it?

Michael N. Pollet:

Exactly.

And you shouldn’t be permitted to find it anywhere else.

Michael N. Pollet:

No, we are not seeking to establish new law or breakthrough, new frontiers on this case.

I don’t believe that there’s a valid criticism of unstructured substantive Due process.

Warren E. Burger:

Would your view then be — follow up almost automatically although not presented in this case that the New York statute requiring parental consent for marriage at the age 14, 16 is equally unconstitutional.

Michael N. Pollet:

No, I don’t think that necessarily follows from our view.

Our view is based upon holdings of this court, holdings of this Court in Griswold, Eisenstadt v. Baird, Roe v. Wade and those lower district courts which have interpreted and applied those three decisions, two cases involving restrictions upon contraceptives.

So in other words, it has to be the Chief Justice’s question.

Your submission would be that is not constitutionally permissible for New York to discourage teenagers to get married but it is unconstitutional for New York to discourage teenagers to have sexual intercourse without getting married, is that it?

Michael N. Pollet:

No, it’s just that the first issue was not before us here.

What would you answer this question, and so the issue were before you?

Michael N. Pollet:

Well, I don’t believe that New York constitutionally has the right to foster a moral climate or to regulate morals in a fashion which it intends to do in this statute.

Well I thought your brief anyways said there was no connection between sexual activity and receipt of contraceptives anyway.

Michael N. Pollet:

That is correct, the state has made that concession throughout all the proceedings below that there was no proof and there nothing has been, no facts have been —

And I thought you just asserted them a right to obtain contraceptives.

Michael N. Pollet:

There’s a right to obtain contraceptives.

I mean that’s what is at issue here, isn’t it?

Michael N. Pollet:

That is correct.

Thurgood Marshall:

Can the state regulate it at all?

Michael N. Pollet:

Only as it is supported by proper health rationale, Your Honor.

Thurgood Marshall:

It can be regulated.

Michael N. Pollet:

I would believe that if a regulation is necessary to achieve a compelling state interest —

Thurgood Marshall:

Well you can’t get the support, can you?

Michael N. Pollet:

It can’t —

Thurgood Marshall:

You can’t guess or know it?

Michael N. Pollet:

Excuse me Your Honor.

Thurgood Marshall:

You can’t guess or know it.

Michael N. Pollet:

No, we can not, it may be possible that —

Thurgood Marshall:

You are not wanting that the state can regulate it.

Michael N. Pollet:

I do say that the State can regulate it if it can demonstrate–

Thurgood Marshall:

Well if the state said, if they can’t sell contraceptives in court rooms.

Michael N. Pollet:

I don’t believe so, your honor.

Does the state of New York still have a statute that makes fornication a misdemeanor?

Michael N. Pollet:

There’s no fornication statute in New York.

Did they ever have one?

Michael N. Pollet:

I believe it did at one time.

It was repealed several years ago.

There’s an adultery statute, and there’s also a statutory rape penal for this act.

William H. Rehnquist:

Well is there anything wrong with the Statutory Rape Provision n constitutionally in your view that presumably prohibits a 16 year old male from having sexual intercourse with a 15 year old female, both of them consent.

Michael N. Pollet:

That would in my view be unconstitutional, that’s not the question before us here.

William H. Rehnquist:

So New York cannot in anyway discourage sexual promiscuity among children 14, 15, 13 years old in your view.

Michael N. Pollet:

They cannot do it, as it is done here by potentially punishing them with the threat of unwanted birth —

William H. Rehnquist:

Well, but you say it can’t do it by making it a criminal offense for the man to have intercourse with a woman of that age.

Michael N. Pollet:

Again, that is not the question before us but it is my view and that would be constitutionally impermissible.

That would also be —

Just with respect to the issues that are before us, do you contend that a 15-year-old has a constitutional rights to put these products to their intended use.

Michael N. Pollet:

Yes, we do.

The Fundamental Privacy Right of access to contraceptives is even more important for minors than it is for adults.

Minors have been shown in substantial and significant numbers to engage in sexual intercourse despite state’s ban to be harmed that should be —

And the state’s ban is unconstitutional under what you just said.

Michael N. Pollet:

That’s correct.

Because the minor has the constitutional right to do this free of any state restriction whatsoever.

Michael N. Pollet:

That’s correct your honor.

Is your answer the same with that regard to the age of the minor?

Suppose the statute said 14 than rather than 16.

Michael N. Pollet:

I think the answer would be the same regardless of the age.

It would depend on the onset of sexual activity with the minor.

As long as they are minor and sexually active, I believe it would be unconstitutional, an invasion, and intolerable invasion of his or her privacy right to prohibit or limit his access or her access to contraceptive products.

Thurgood Marshall:

And which one of these youngsters that we are talking about?

Michael N. Pollet:

Excuse me, your honor.

Thurgood Marshall:

Which one of the youngsters that we are talking about, 12, 14, or 16 who are we talking about in this case?

Michael N. Pollet:

There’s no minor plaintiff in this case, and if you like to return and discuss these standing issues, I believe the question of standing is foreclosed by this court’s December 20th in Craig v. Boren.

The appellees who were found to have standing by the Three-Judge District court, or Population Planning Associates, and the Reverend John Hagen.

They are vendors and advocates of the sale and distribution of non medical contraceptive products.

Michael N. Pollet:

The law operates correctly against them.

It threatens them with imprisonment or fine for taking in their constitutionally protected activities.

If they abstain, they will suffer economic loss.

We believe that that is sufficient under Craig v. Boren where a saloon keeper was permitted to assert third party constitutional rights to sustain the three judge courts upholding of the standing of the plaintiffs in this case.

There’s a difference in Craig against Boren.

We knew that at least with one person in the State of Oklahoma who complained about the law has affected him, i.e. a young man between 18 and 21.

In this litigation, nobody has been identified whose constitutional rights are directly affected, and who is being represented by these third party vendors.

Michael N. Pollet:

Well of course the Statute in this case prohibits distribution not use.

It doesn’t operate against the intended recipients of the —

Well, so indeed in Statute in Craig against Boren if I am not mistaken operated against the vendor.

Michael N. Pollet:

I don’t believe that that was —

But it was the rights of the young man that were involved and decided in the case, in Craig against Boren.

Michael N. Pollet:

Of course, he was a proper party of the —

Presumably, at least there was evidence and there was such a person.

Here as the counsel for the state says there is no such person has been identified.

Michael N. Pollet:

One of the plaintiffs whose standing was not considered by the three judge District Court.

John Dove(ph)42 years old.

Michael N. Pollet:

That’s correct, and he also asserted that he was the father of two minor children and that he —

He just said, he was sexually active.

He didn’t say anything about the children in complaint.

Michael N. Pollet:

Well that is a basic problem in privacy of litigation in this area.

By asserting the claim there’s a very loss of privacy which one seeks to protect.

There’s embarrassment and it’s for those reasons that the court has relaxed third party standing in its past privacy cases.

In many of the cases, in Eisenstadt, and indeed even in Griswold, none of the users were parties.

In Griswold one of the —

And you have a John Dove minor here or Mary —

Michael N. Pollet:

No, it’s because the least challenger is the vendor and the distributor.

(Inaudible) None of them were represented in that case.

Michael N. Pollet:

That is correct, Mr. Justice Brennan.

I believe the same is true in —

William J. Brennan, Jr.:

Didn’t Craig and Boren indicate that after the 21 year rule was out of the case, the whole issue stands turned on (Inaudible).

Michael N. Pollet:

That is correct.

William J. Brennan, Jr.:

Without regard to whether or not there would have ever been an individual 18 to 21 in the —

Michael N. Pollet:

That is correct.

I don’t believe that was a determinant in beholding in Craig v. Boren.

Two other plaintiffs, main plaintiff’s corporation is based in North Carolina.

One is described as a non-profit corporation and the other one is profit corporation?

Michael N. Pollet:

Yes, the plaintiff Population Planning Associates which was found to have standing is a business corporation and not corporate in North Carolina for profit.

To what extend are the two affiliated?

Michael N. Pollet:

I don’t believe that there is any direct affiliation, there maybe some connection in that.

Some of the people who are officers and warner officers in another.

The names are quite similar.

To what extend do the boards overlap?

Michael N. Pollet:

I am not directly sure of the answer to that currently.

Which one do you represent?

Michael N. Pollet:

We represent both of them.

I believe my associate just informs me that there is one overlapping member on the boards of–

As a matter of curiosity, how did you assemble this rather extraordinary group of plaintiffs?

Fiscal Minista (ph) profit corporation, non-profit corporation,various doctors, 40/43 years old John Doe, sexually active but with three children?

How did you get them all together?

Michael N. Pollet:

These were people who were brought to us by our clients Population Planning Associates and Population Services International.

Your client assembled them?

Michael N. Pollet:

Yes.

Thurgood Marshall:

Not that it matters but are these two corporations qualified to do business in New York?

Michael N. Pollet:

Yes, they are.

Thurgood Marshall:

And they are under the jurisdiction of the Supreme Court?

Michael N. Pollet:

Yes.

We believe and urge strenuously that access to contraceptives is encompassed by the constitutional privacy right and a series of decisions commencing with the Griswold case in 1965, this court has made a plan that there exists a fundamental right of personal privacy which prohibits the state from in properly intruding into a citizen’s private decision whether appropriate.

Griswold held that a state could not prohibit use of contraceptives by a married couple.

Warren E. Burger:

Isn’t that limiting by that definition that you have suggested?

Michael N. Pollet:

Yes, the Griswold case on its face is limited in that fashion–

Warren E. Burger:

Anything in the Griswold opinion that suggests the contrary or suggests any doubts about it?

Michael N. Pollet:

Well, the court’s next decision in this area, Eisenstadt v Baird suggests an expansion–

Warren E. Burger:

I am just talking about Griswold itself.

Griswold suggest in that such limitation, did it?

Michael N. Pollet:

No, I don’t believe it did and Eisenstadt v. Baird though, although the case was ultimately decided on equal protection grounds, the court held that the right of privacy existed and was not dependent on marital status but also applied to unmarried persons.

In Roe v. Wade the court held that the privacy right protected a woman’s decision to terminate her pregnancy and making that determination of whether any particular personal decision is included within the privacy right, there was required a judicial finding that the right asserted was fundamental or implicit in the concept declaratory.

In Roe, inholding that the abortion decision was a fundamental personal right which could be abridged by only propelling state interest, guidelines were established which in lower court’s view, made an indisputable that access to contraceptives also was fundamental and also was included within the privacy guarantee.

Warren E. Burger:

What do you have to say about the power of the State of New York or of any state, age limit on the acquisition of intoxicating beverages or even marginally intoxicating beverages like beer.

Michael N. Pollet:

New York has such a statute and most of the states do as well.

Warren E. Burger:

What’s the limit in New York.

18 or 21.

Michael N. Pollet:

I believe it is 18 Your Honor.

No serious argument has ever been urged that the intake of the intoxicating beverages is beneficial.

Potter Stewart:

But there it has been suggested in the Constantino that’s it’s constitutional freedom to purchase intoxicating beverages.

Constantino against Wisconsin.

Warren E. Burger:

Well, did the Constantino case suggest that or if it suggests if the right is to be deprived, taking away there must be some Due Process.

Michael N. Pollet:

I am not familiar with the Constantino decisions Mr. Chief Justice.

Here denying access to contraceptives demonstrably results in harm rather than benefits to the citizens of New York and particularly to the minor citizens of New York.

The saying prima face by denying a women in abortion in the Roe case is found here.

Same detrimental consequences to mother and child are present here in even more aggregated fashion.

Potter Stewart:

Now who is the mother and who is the child, you are talking about the teenager as the child or the mother?

Michael N. Pollet:

Unfortunately the effect of this law is to make many children mothers.

Potter Stewart:

So you are talking in that context.

Michael N. Pollet:

Well, both —

Potter Stewart:

Not parent and teenager who wants to acquire contraceptives.

Michael N. Pollet:

Yes.

Potter Stewart:

Or you are talking about the teenager as the parent?

Michael N. Pollet:

I am talking about as the teenager, as the parent.

Defendant Griswold, individuals have a right to use contraceptives, they must be held to have a fundamental right to obtain them otherwise the right of use is hollow and meaningless.

Michael N. Pollet:

These two rights are inextricably enmeshed and the right of use can not exist unless a right to obtain is recognized.

Warren E. Burger:

Well, a fundamental right then must the material be supplied by the state to indigent minors under age, the persons under age 16.

Michael N. Pollet:

I don’t believe that, that would be constitutionally mandated, it does in fact exist under current New York Law as mandated by various federal programs under AFDC and Medicaid, that minors who were sexually active and as per, shall be provided with family planning services including contraceptives.

William H. Rehnquist:

In Stanley against Georgia, the court held that, you have the right to read whatever books you have without being intruded on and yet in the Miller and Aredo (ph) cases, a year or two later they held that you didn’t have any right to obtain those materials.

So at least those two cases would tend to cut against your argument that if you have a right to use them, you must have a right to obtain them.

Michael N. Pollet:

Oh, I don’t believe so Mr. Justice Rehnquist, those cases are obscenity cases and obscenity is not protected by First Amendment and —

All I said it was —

Michael N. Pollet:

Well that case was severely limited —

Pro tanto, it said was.

That was my brother Rehnquist’s point.

Michael N. Pollet:

I believe the subsequent decisions of this court have turned what was First Amendment case into a very limited privacy case.

William H. Rehnquist:

Giving a privacy case here, aren’t you?

Michael N. Pollet:

That’s right and here again the difference being that no argument has been made seriously that obscenity is beneficial or of positive use to the recipient, whereas that has been established in this case.

If I may turn briefly to the pharmacy limitation, in contrast to what learned counsel for the state has said, the number of pharmacies that exist in New York is small and is decreasing.

In the New York Times of November 18, it was stated that the number of pharmacies in New York decreased from 3380 in 1962 to 1832 in 1976 which was a 45% decrease and in that same article, the defendant seeker who is the Executive Secretary of the New York State Board of Pharmacy was corded as stating that New York State has lost 2500 drug stores in the last 20 years.

In any event —

Warren E. Burger:

But what has that got to do with this, is that a market condition kind of corner grocery stores have disappeared in the face of super markets, that was similar reduction in the number of outlets of grocery stores, don’t you?

Michael N. Pollet:

Yes but there is no proper reason why these products should be limited to drug stores.

There is no health reason and I can not see any reason why the our state could permissibly make licensed pharmacists moral guardians of New York citizens and it is to demonstrate that the restriction is very real restriction but the number of drug stores is small but those that are open or not accessible always, they are not always open that there is —

The statute applies to the pharmacist not the pharmacies.

Isn’t that correct?

Michael N. Pollet:

That’s correct.

Do the figures indicate whether the number of pharmacists also is shrinking in New York State.

Michael N. Pollet:

No, but I believe a pharmacist availability would primarily be limited to pharmacies.

May be at fewer locations but there may be more of them available —

Michael N. Pollet:

But the end result for New York citizens is the same.

There are fewer outlets whereby they can obtain non prescription contraceptives and there is no proper health reason why such products should be limited to sale or distribution in pharmacies.

They are prepackaged and there is no need for the state to insist upon quality control.

The state has failed to demonstrate in anyway that pharmacists have any expertise in this area.

Thurgood Marshall:

(Inaudible) do you know what you said?

Michael N. Pollet:

I believe I said Mr Justice Marshall that if they could demonstrate a compelling state interest, it could be regulated.

The burden is not upon the plaintiffs, once they have shown that fundamental right has been involved.

Thurgood Marshall:

Could they who are getting back to — could the state of New York prevent them from sending in public schools?

Michael N. Pollet:

If they could demonstrate that there was a proper public care health interest, I believe they could or if as they have failed to do so and if they could demonstrate —

Thurgood Marshall:

So, the limitation is of public health?

Michael N. Pollet:

I believe that the limitation would be a public health —

Thurgood Marshall:

Well, the usual criteria for limiting the sale of profits for —

Michael N. Pollet:

Products which affect a fundamental constitutional activity would have to be supported by the compelling state interest.

The state interest in regulating morals, if it exist at all —

Thurgood Marshall:

Now suppose the State said that the sale of contraceptive in a courtroom walk them down and shacking them could possibly destruct the court room, would that be good enough?

Michael N. Pollet:

Yes Your Honor, I believe that that would suffice.

The state has of course not made any such narrow, limited findings in this case.

The statute in almost all respects is over broad.

The pharmacy limitation —

May I try and understand your theory a little better.

Is it your view that it is wholly impermissible for the state to assert as an interest or justification for a statute of this kind.

— will discourage in sexual activity among minor children?

Michael N. Pollet:

That is our view.

It’s fully impermissible.

Even if that’s your view then you really need any of these legislative facets.

Because that’s the purpose and the state relies on – Do you say it’s per se bad.

Michael N. Pollet:

We say as per se bad, we also say that even if one were to assume arguendo that this were a valid purpose, it is not one which can purport the statute in this case because there has been no showing that the statute achieves that objective.

In fact the showing is in the —

Well, there was a showing that the legislature thought was sufficient, but you say, we should disagree with the legislative finding on that.

Michael N. Pollet:

Well, only if the court applies the most lenient and critical rational basis test, could it rely on these more, supposed legislative end.

You have alternative positions.

One is it’s wholly impermissible to rely on this discouraging sexual activity as justification.

Secondly, that at most that’s really merely a rational basis and not a compelling basis.

Those are your two arguments.

Michael N. Pollet:

Yes.

I see.

If we adopt your rationale as you have just expressed it, wouldn’t we invalidate every statutory writ of statue in the United States?

Michael N. Pollet:

Not necessarily.

Why?

Michael N. Pollet:

We are talking here about a different issue, the ability to legislate indirectly rather than directly.

I think if the state wants to — if again assuming arguendo that the state has a legitimate purpose in regulating morality that it could do so only in a fashion which does not punish in a way that is in sense akin to cruel and unusual punishment with the pregnancy, abortion or venereal disease that it should be honest and open in it’s the purpose, and legislate directly.

The punishment for a rape is not inconsequential, is it?

Michael N. Pollet:

No, it is not inconsequential but that again is a different case.

Of course, but I am just thinking about how far your rationale would reach namely that there could be no valid regulation of sexual activity regardless of age.

Michael N. Pollet:

Well, I don’t think that our rationale carries to that extent or that far.

The ability to legislate directly is not in question here.

What is in question here is the effects of an indirect attempt to legislate morality and to pled a moral (Inaudible).

Potter Stewart:

But suppose in a statutory rape case, it’s only the man in the absence of aid or abettor who can be prosecuted —

Michael N. Pollet:

That is the case in New York.

Potter Stewart:

And anybody under 16 would not be prosecuted for statutory rape but would rather be dealt within juvenile court, is that right?

Michael N. Pollet:

Yes.

Potter Stewart:

So it would have to be somebody over 16 who would be subject to this criminal sections of statutory rape, a man over 16.

Michael N. Pollet:

That is correct.

Potter Stewart:

But wouldn’t his claim to this field of privacy and sexual activity be even stronger than someone under 16 and presumably an adult has a stronger claim in that area than a minor?

Michael N. Pollet:

In the sense that the state may have narrow area which can impose restrictions, yes.

Thank you.

Warren E. Burger:

Thank you Mr. Pollet.

Thank you.

The case is submitted.