Griswold v. Connecticut – Oral Argument – March 30, 1965

Media for Griswold v. Connecticut

Audio Transcription for Oral Argument – March 29, 1965 in Griswold v. Connecticut

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Earl Warren:

No. 496, Estelle T. Griswold, et al., appellants versus Connecticut.

Mr. Clark, you may continue your argument.

Joseph B. Clark:

Mr. Chief Justice, if it please the Court.

In yesterday’s questioning there were some questions directed both to me and to Mr. Emerson concerning population and birth rates.

In our brief at pages 27 and 28, we cite the statistics that show that the birth rate in the State of Connecticut last year, for the seventh straight year, was on the decline.

The birth rate in the United States is apparently also on the decline, and I would point out to the Court that in the Reporter magazine of March 25th, 1965, there is an article entitled “Our Population.

The Statistics Explosion,” written in part by Richard M. Scammony, who was the head the Census Bureau, that points out that the growth rate or the birth rate in this country is actually on the decline, and takes great issue with the so called experts, using his term, of a population explosion.

The tenor of his article is that this so-called fear that there will be no breathing room is actually a false use of statistics, that in fact if you use the same logic that people of this ilk have been using in the past, the statistics would show – that is, carrying out the same logic, that there won’t be anyone in this country by the year 2000.

Potter Stewart:

Mr. Clark, what you’re touching on now leads me to ask, what is the purpose of this legislation in Connecticut?

Your basic argument in your brief, and so far in your oral argument, is that this is well within the so-called police power of the State of Connecticut.

What is its purpose?

Joseph B. Clark:

If Your Honor please, I think it’s purpose is to —

Potter Stewart:

To increase the population of Connecticut, or to impair its decrease, or is it, what —

Joseph B. Clark:

If Your Honor please, I do not hold that it is to increase the population of Connecticut.

I don’t think that this is a – we could make this claim valid.

Potter Stewart:

Well, what is it?

What is the purpose of this legislation?

Joseph B. Clark:

I think that it’s to reduce the chances of immorality.

If Your Honor please, and I use the word “immorality” here in a broad sense, that is, in one way to act as a deterrent to sexual intercourse outside of the marital relationship.

Potter Stewart:

Well, the trouble with that argument is that, on this record, this involves only married women.

Joseph B. Clark:

That is correct, Your Honor.

Potter Stewart:

So how can you make that argument?

Joseph B. Clark:

Well, if Your Honor please, I think that on this record, that the statute is a valid exercise of the police power —

Potter Stewart:

For what purpose?

Joseph B. Clark:

If Your Honor please, on this purpose – on this record, that there is a distinction and there has to be a distinction between birth control and the use of contraceptives.

That is to say that all contraceptives involve birth control, but in order to practice so-called birth control one does not have to use contraceptives, and that the State is able to take this position and make this distinction, that there are – if it be said, well, should married people be allowed to use these devices, would this not – is not the State going too far?

I think the State can answer to that that there are other methods available to married people.

Potter Stewart:

For what purpose under its police power, assuming we’re dealing now with married couples?

Joseph B. Clark:

Well, if Your Honor please, going back, Connecticut in the Nelson case cited the Byrne case in New York, and one of the reasons cited by the Connecticut court, and the Byrne case was that, it was not the – as a matter of fact, it would not be improper for the legislature to consider that Connecticut, as any State, has the right to look out for its own continuation.

This is the population argument.

Joseph B. Clark:

I personally am not too happy with it, but —

Potter Stewart:

Well, what argument are you happy with?

Joseph B. Clark:

I think, if Your Honor please, the only argument we can honestly say is that this is a question of pure power.

Potter Stewart:

Well, do you think the State of Connecticut could prevent marriage?

Joseph B. Clark:

I think the State of Connecticut could prevent marriage in certain people, certain groups, yes, if Your Honor please, between idiots, say, or age in marriage.

I think, if Your Honor please that —

Potter Stewart:

But surely you’ll agree with me, they couldn’t – l should think you’d agree with me, that if the State of Connecticut should say, there will be no marriages contracted in this State, there will be no sexual intercourse of any kind, married or unmarried.

Joseph B. Clark:

I agree with you.

Potter Stewart:

Well now, what purpose, what is the police power purpose of Connecticut in telling married people, two people who are married to each other, that they cannot use contraceptives?

Joseph B. Clark:

I think, if Your Honor please, it’s just to preserve morality.

Potter Stewart:

What kind of morality?

What moral purpose is that?

Joseph B. Clark:

If Your Honor please, it is not unheard of that the use of contraceptives themselves would be immoral and certainly, this is a view that has been prevalent in history right up to the last few years in most groups.

In Connecticut, citing the brief of our opponents in one instance, the number of Catholics and Orthodox Jews in the State, if you, were just to put it on a numerical basis —

Potter Stewart:

Well, you would have had quite a different case if the State of Connecticut compelled all married couples to use them.

That’s not – that’s when you’d run into the argument you’re now making, that this violates the religious precepts and beliefs of certain groups.

Joseph B. Clark:

This is true, but if Your Honor please, it also would be more difficult for the State to control the result of what we call a dissolute action, that is, fornication and adultery.

Potter Stewart:

I thought you and I had agreed that this isn’t involved here.

We’re dealing here, by definition and on this record, with advice and the furnishing of devices to married women who asked for such advice.

Joseph B. Clark:

Well, if Your Honor please, I think what we have here, that is true.

We have here a center being used, and the witnesses that the State used in this case were in fact three married women.

Arthur J. Goldberg:

Mr. Clark, just to pinpoint this inquiry, on page 15 of your brief–I don’t know that I agree, but you might provide an answer by reading what your court said in State versus Nelson.

It doesn’t sound like a very lofty attribution to many people, but that’s the reason your court assigned.

Page l5, State versus Nelson; if you’ll look at the next to the last paragraph.

Joseph B. Clark:

If Your Honor please, that’s what I was trying to get at.

I must say that I did rather poorly.

Arthur J. Goldberg:

That is the reason your State, I take it, assigned that morals are involved?

Joseph B. Clark:

That is correct.

If Your Honor please, the court held in Nelson, if, meaning the legislature was not precluded from considering that not all married people were immune from temptations or inclinations to extramarital indulgence and I think, if Your Honor please —

Arthur J. Goldberg:

That is the moral ground, then, upon which presumably your court sustained this legislation under the police power?

Joseph B. Clark:

I think it is, sir.

Arthur J. Goldberg:

And that’s the ground on which you rely?

Joseph B. Clark:

That is correct.

Potter Stewart:

Anybody who has the price of a ticket to New York is immune?

Joseph B. Clark:

No, if Your Honor please, that is not the case, because the New York law is not that way.

The New York law, as I understand it, is that contraceptives cannot be sold, except for the treatment of disease.

Now certainly, anyone who wants to use something as a contraceptive is not using something for the treatment of disease and Connecticut is like many other states in this regard.

We have cited some other states in our brief that hold to this same proposition, if the Court please.

Arthur J. Goldberg:

How do you meet the argument which many decisions of this Court have mentioned, that legislation must be carefully tailored to meet the evil?

If this is the evil which your State is trying to combat, you have other laws to deal with that, the adultery laws, for example.

Isn’t that correct?

Joseph B. Clark:

This is correct, if Your Honor please, but the problem is that if contraceptives, say, are freely sold, dispensed, or otherwise used, even to married people, how can it be known that they will be used within the marital relationship?

Not all people are immune from adultery.

The problem would be greater, the problem of identification, the problem of conviction, would be greater without it.

I don’t hold that the statute is the most wise way of putting the decision.

Potter Stewart:

But as Justice Goldberg said, you do have substantive criminal statutes against adultery or against extramarital fornication, or non-marital fornication, in Connecticut, don’t you?

Joseph B. Clark:

That is correct.

Potter Stewart:

And you’re suggesting, as a matter of practical problems of proof, it’s easier to prove that in such relationship people use contraceptives than it is to prove that they had such a relationship?

Joseph B. Clark:

No, I am not saying that, if Your Honor please.

I am saying that with the two statutes here involved it’s easier to control the problem.

I’m not saying it would be that much easier to prove it.

[Inaudible]

Joseph B. Clark:

That is somewhat – that is so, but our court has held in Tileston that the statutes as here in this case, apply both to the provider and to the user.

Now, the other side has tried to push this right on the use all the time, but with our accessory statute, we get beyond the use itself, we get into the question of the provider, the disseminator of devices.

Potter Stewart:

That rather begs the question, doesn’t it, you’ve got to – I suppose a person can’t be convicted of aiding and abetting a criminal offense if that substantive criminal offense is unconstitutional, if it’s beyond the constitutional power of a State to enact it.

Joseph B. Clark:

This is a valid argument, I think, and I don’t think that this statute is beyond the power of Connecticut to enact.

Potter Stewart:

So you do come back to the substantive statute, don’t you?

Joseph B. Clark:

We have to come back to the substantive statute that this is a valid —

Potter Stewart:

By the same token, I suppose you can’t, under the First Amendment, free speech doesn’t entitle you to aid and abet something which is a criminal offense.

So you I think that, on either side of this argument, you come back to the substantive use of statute.

Joseph B. Clark:

That is correct.

Byron R. White:

There’s no standing problem involved?

Joseph B. Clark:

Well, there is a standing problem, if Your Honor please.

Byron R. White:

[Inaudible]

Joseph B. Clark:

Not in relationship to the constitutionality of the statute, but there is a great standing problem here in the relationship of these defendants claiming it.

As I understand, one of their main arguments was a claim of privacy.

Now, it’s not their privacy, because they were running a center, they were running a clinic.

They were holding themselves out to the world and as a matter of – it can’t, think it truly can’t be said, that it’s the privacy of the so-called patients involved, because in this case we had three women testify against them.

If there was any claim that anyone had a right to privacy, it would be a right of these people.

Byron R. White:

But any ground on which the constitutionality of the basic statute could be attacked, that ground is available to these aiders and abetters?

Joseph B. Clark:

I think that might be a fair statement, but I might point out —

Byron R. White:

Including the privacy —

Joseph B. Clark:

Including privacy, except – no, I would have to disagree, if the Court please, and I would have to say, because what they are trying to do, then, is, they would be advocating the views or the rights, if any such right exists of people who in fact testified for the State against them in a criminal proceeding.

And think this would be an extremely bad precedent, if defendants could claim the rights, if any such right exists of a witness who testifies against him.

Byron R. White:

This is nothing more than asking whether an aider and abetter can attack the constitutionality of a statute, that’s the only question?

Joseph B. Clark:

I’m sorry, I —

Byron R. White:

Well, can an aider and abetter attack the constitutionality of the statute which makes it crime out of the act he’s supposed to be aiding and abetting?

Joseph B. Clark:

I think he can, if Your Honor please, but I think that they failed to do it in this case.

I think that they could have put on testimony; they did not.

In this case, two detectives and three women testified for the State.

The defendants testified, and they had some doctors.

Byron R. White:

Are you saying that the grounds on which the statutes are attacked here weren’t raised below?

Joseph B. Clark:

That is correct, if Your Honor please.

Byron R. White:

This isn’t a standing problem.

It is that the arguments weren’t raised below?

Joseph B. Clark:

This is correct.

Byron R. White:

But weren’t they passed upon by your supreme court?

Joseph B. Clark:

Well, the supreme court said that the arguments of the defendants didn’t merit discussion.

Now, if this means they were passed upon, they were passed upon, I suppose, if you please.

But the only arguments that the defendants, the appellants made in this case was a First Amendment argument, freedom of speech, which I understand they abandoned here yesterday.

Joseph B. Clark:

It was action, not speech and a broad claim under the Fourteenth Amendment.

This they argued on demurrer, and this they argued through the case.

Byron R. White:

Yes, but the Fourteenth Amendment covers quite a bit of territory?

Joseph B. Clark:

Liberty and property; liberty and property under the Fourteenth Amendment.

“Their rights to liberty and property, in violation of the Fourteenth Amendment,” was their ground on demurrer and the ground they argued through.

As I said, if Your Honor please, it seems to me that this case is purely a case of legislative power reduced to its narrowest sense.

Does the legislature have the power to enact laws in this area and think the answer has to be said that it does and then the question comes up, could Connecticut go too far?

And this is a – it’s said that this is a dead letter, this statute, but it is not.

Every two years, the General Assembly meets in Hartford and people troop up, and this is one of the most hotly debated issues before the Connecticut Assembly.

Byron R. White:

Well, do you say the constitutional issue is here to be decided in this Court or not?

Joseph B. Clark:

If Your Honor please, I say that they have not standing to raise the issues, aside from freedom of speech, and aside from claims of liberty and properly.

Byron R. White:

Liberty and property of–

Joseph B. Clark:

Of themselves.

Byron R. White:

–of themselves as doctors or advisers?

Joseph B. Clark:

That is correct, because the claim that they made–incidentally, the claim was not – the claim has never been made, up to the time that it reached this Court, that the substantive statute was void on its face.

That claim was made here throughout the case.

The defendants have always argued that as the statutes here would be applied to them they violated certain constitutional rights.

Arthur J. Goldberg:

Subsequent to Poe and Ullman, was there any further legislative action or attempted legislative action on the statute?

Joseph B. Clark:

If I remember correctly, Poe and Ullman was in 1961.

We’ve had a 1961 session of the legislature and bills were introduced.

I think I cite the number in my brief.

In 1961, bills were introduced and they never came out of committee.

They went to both houses of the General Assembly.

In 1963, other bills were introduced.

The bill in 1963 was to repeal the statute.

The house passed that, 149 to 66.

The senate committee never reported the bill out.

Now, on February 10th, I believe it was, of this year, a bill was introduced.

I have a copy of it here.

I don’t have – it was to repeal the statute.

Joseph B. Clark:

They had a public hearing on it last week.

Traditionally in Connecticut bills do not get reported out until late in the session.

So what will happen this session, I do not know.

But this is something that comes up.

There are bills to repeal or to give exceptions, that come up in every session of the General Assembly.

And as you will note in our brief, a good part, a good part of these arguments are based on the fact that there’s no medical need for – I’m sorry, I withdraw that.

A good part of the defendants’ arguments and a good part of the brief of amicus curiae have been that there is medical necessity involved in allowing people to use contraceptives.

Now, there has been testimony in the legislature by doctors, prominent in the field of obstetrics and gynecology, that there is no medical necessity for the use of contraceptives, absolutely none.

[Inaudible]

Joseph B. Clark:

It’s not a medical problem.

It may be a social problem, but it’s not a medical problem.

Just to cite some of the examples that were used in the brief of the Planned Parenthood League, amicus curiae in this case, there was a whole series of appendices about certain types of women who should not have a child and certain heart conditions were listed and they listed a whole group of doctors, some who say they shouldn’t have children, some who say that they should never have children, and some who say that they should seldom have children, the whole tenor of which is that there are some women that shouldn’t have any children at all and the testimony to the legislature has been that in this particular type of heart condition this is not so.

The difference is the difference between pregnancy control and birth control that people can, this type of pet son can have a child.

Potter Stewart:

Now, what you’re saying would be relevant, and perhaps with some persuasiveness, if what Connecticut had done were to compel everybody to use contraceptives.

Then you could show that there’s divided opinion about their value for certain people with certain physical conditions, but we have the other side of the coin here, and if the medical and sociological and religious views on this subject are divided and it adds up on net balance to be relatively neutral, then what we have here is the freedom of people, of married couples to do this just as they want to and therefore, I don’t quite see the relevance of what you’re telling us now, when you remember what this case is about.

Joseph B. Clark:

Well, if Your Honor please, I can only say that married couples do not have freedom to do what they want.

This has been a Connecticut decision, and this is the Connecticut holding.

Potter Stewart:

Well, it still conies back to what the basic purpose, under the police power of your State, is.

Now could Connecticut decree that married people live separately in dormitories for men and for women, except for two weeks out of the year, under the Due Process Clause?

Joseph B. Clark:

No, I wouldn’t say so, if Your Honor please, but parenthetically, we might say that, under the welfare powers, that this is practically what’s happening in a great number of cases.

In order to collect welfare people must do this, and unfortunately this has been what has happened under the welfare legislation.

Justice Bernnan:

Is this matter pending in the present session of the legislature?

Joseph B. Clark:

There is a bill.

Justice Bernnan:

When does the session end?

Joseph B. Clark:

The session has to end in June.

Justice Bernnan:

When in June?

Joseph B. Clark:

It’s either the first or the last; I don’t know.

Justice Bernnan:

Either house taken any action on this?

Joseph B. Clark:

They have had committee hearings, a joint committee hearing, last week.

The bill is No. 2462, House Bill 2462.

Joseph B. Clark:

It’s a simple bill.

It says, “Section I, Section 5332 of the General Statutes is repealed. This Act shall take effect from its passage; Section 2”

To my knowledge, there has not been a report out by either house committee.

I have spoken to some people in the legislature, and it is the opinion that I’ve gotten from them that there may be some legislation this year, but it probably will not be that legislation.

There might be some legislation, but it will more probably be similar to some of the other states’ restrictions on sales, but there has been no report out.

This is all conjecture on my part.

Justice Bernnan:

You’re suggesting additional legislation, leaving this statute on the books, is that it?

Joseph B. Clark:

Amending this statute, I might – probably repealing the statute as written and substituting therefore – Now, it has been – it was argued before that some other Amendments, other than the First and Fourteenth, were brought into the case.

We heard yesterday, the Third, the Ninth, the Fourth, and possibly the Fifth Amendment.

And I can only say to the Court that these were not brought up in the record.

The record does not support —

[Inaudible]

Joseph B. Clark:

I heard this – I made a note.

That is correct, if Your Honor please, what I’m saying, that they should not be in this case, that they were not in the record.

[Inaudible]

Joseph B. Clark:

It might have relevance, had it been raised at the proper time, because the Connecticut procedure, which I understand the Court has to follow, if I can recall a note, note number nine in the majority opinion of the Mapp case was that in criminal procedures this Court would adopt the procedures of the state in which it came up and Connecticut has very strict procedures on how to raise issues.

I point them out in my brief.

Now, the only issues that were raised in fact —

[Inaudible]

Joseph B. Clark:

You have to allege – you have to —

[Inaudible]

Joseph B. Clark:

The Court does have this power, yes, especially on constitutional questions it does, but generally speaking, the court restricts you to the ruling that you have made – the errors you have cited.

And, as we’ve pointed out, there’s one thing that was brought up by the defendants in their argument, it wasn’t cited in their jurisdictional grounds and that is this – the fact that they claim they were cut off in the trial level from getting into the availability of contraceptives in the State of Connecticut.

And I quote now from the transcript of a case, because I want to be exact on this, on page 47 and 48.

This is a question of Detective Berg, a member of the New Haven Police Department, called as a State’s witness – cross-examination by Ms. Royerbach, page 47; Now, in the course of your investigations, Detective Berg, did you ascertain whether these products and he is referring to contraceptives, were available anywhere else in the City of New Haven?

Answer – I did not.

Then there was an objection taken.

Now, the court below ruled on the question of whether the objection was properly taken but the interesting fact of the case is that the answer got out before the objection did, and the answer was, “I did not.”

There’s no place else in the record that the availability or lack of, of contraceptives came into the case at all.

They were not precluded from bringing this up, if they wanted to show it, not that we would say that it would make any difference.

Joseph B. Clark:

Assuming, for the sake of argument, that you could purchase any type of contraceptive any place, it’d be no different, it seems to me, than being able to buy a number, which you can buy, I must admit, almost any place.

It’s rather difficult to enforce the gambling laws.

Any statute that might be said to be not too popular is not easily enforced.

In short, I think we get —

Earl Warren:

The difference between this and the case of the numbers racket is that in the latter case you have had many prosecutions over the lifetime of this particular act, haven’t you?

Joseph B. Clark:

We have had many prosecutions, Mr. Chief Justice.

Earl Warren:

Yes, but you can hardly cite any at all in this, in violation of this law?

Joseph B. Clark:

That is correct, Mr. Chief Justice and yesterday afternoon at the conclusion of Court, the other gentlemen that had sponsored for membership in the bar, were all prosecutors or assistant prosecutors of circuit courts in Connecticut.

We put our heads together and it seems that every one of us has handled cases along this line.

Now, none of us, parenthetically, none of us has had those cases go out.

They’ve always been disposed of for one reason or another.

I know I handled one and the one handled involved two charges.

The first was statutory rape.

Earl Warren:

Was what?

Joseph B. Clark:

Statutory rape.

Earl Warren:

A little different.

Joseph B. Clark:

That is correct.[Laughter]

And therefore the second charge was using contraceptives.

In this case, it was a condom on the part of the man.

We threw this out.

So that, in the books, in the records, you don’t get this at all.

Now in the other cases, one of the gentlemen told me that he had a case of some high school children.

Earl Warren:

What?

Joseph B. Clark:

They had high school children, and he just quietly changed the charge.

He thought this might be a crime and it might come back and haunt them, and he didn’t want this on their record.

So he just disposed of the case, changed the charge so he wouldn’t even have to nolle it.

Earl Warren:

I couldn’t quire hear you.

Joseph B. Clark:

I said he changed the charge, Your Honor, so he wouldn’t have to nolle it, because if he had nolle’d it, the charge as it was would be on the record.

He substituted a charge therefore, breach of the peace, so it would be less.

Now, if Your Honors pleases, it seems to me that the other side has pointed out that Massachusetts – that Connecticut adopted certain views from Massachusetts cases, specifically the Gardner case, and that Massachusetts had in fact later changed its view.

Joseph B. Clark:

And that is, quoting the Corbett case in Massachusetts and the Werlinsky case the same year, that in order to prove a violation of their sales statutes they had to affirmatively prove that these devices were not being used for the purpose of the prevention of disease, but what they forgot to inform the Court was that four years later there was another Massachusetts case, and it’s a case of Commonwealth versus Goldberg, that severally changed it back again, by convicting a druggist who had condoms on display, just on display.

And they held, the court in Massachusetts held, that the specific intent did not have to be proved in that particular case.

Now this –

Earl Warren:

Did that case go to your supreme court?

Joseph B. Clark:

No, that was a Massachusetts Supreme Court case.

Earl Warren:

Yes, I see.

That’s one of them which is referred to in your supreme court?

Joseph B. Clark:

No.

If Your Honor please, our supreme court had referred to the Gardner case, and our opponents have pointed out that since the Gardner case in Massachusetts, the two other cases have come up restricting it; and I’m just pointing out that since the cases that they refer to come up, a third case had come up in Massachusetts which brings it back nearer to the original Gardner case.

I should like to point out that there has been a problem that prosecutions in Connecticut have been under in this area, and it could be seen best by the case of State verses Certain Contraceptive Articles, which is probably one of the more cited cases in Connecticut history.

At the lime this case came up and you will recall that this was the companion of the Nelson case; this was a raid on the supply center of the Waterbury clinic, health center or clinic.

This was a police raid on the basis of a warrant.

Now at the time that this came up, the statute that empowered the warrant was the gambling statute.

Connecticut had at that time no general search warrant statute.

There were statutes for narcotics, for gambling, for firearms.

The gambling statute read something to the effect of, “for gaming, gambling or other crimes.”

This case, this warrant, was an attempt to get it in under the “or other crimes,” and the Connecticut court held, and I believe rightly so, that the “other crimes” listed in that gambling statute were other clinics of the same ilk, gambling, et cetera, and therefore that there was no grounds under that statute for issuing a search warrant.

Now, that case has been cited many times and our opponents cite it for the fact that Connecticut cannot condemn or claim as a nuisance contraceptives and I don’t think the bare import of that case can be used to cite it in that manner.

If Your Honors please, it seems that what the Court here is being asked to do, as I started to say yesterday, is to overrule Gardner and overrule the case of Margaret Sanger, both cases in which this Court has held that it was within the power of the states to control these contraceptive clinics.

They are also asking the Court, in a way, to overrule the Tileston case, allowing the doctor here to claim rights, the so-called of the patients, although, as Mr. Emerson admitted yesterday, the rights of the doctor in this case are essentially the rights of Ms. Royerbach, that the clinic or center here could have worked without a doctor.

I think the best example of what the Court should do, at least according to our way of looking at it, was the words of Mr. Justice Black in the Ferguson case in 1963, because actually, what we’re concerned with here and we quote, “We are not concerned with the wisdom, need or appropriateness of the legislation.”

Potter Stewart:

There’s a big difference, though, isn’t there or isn’t there?

That case which you just cited had to do with economic regulation, the regulation of business, economic policy; no, not – there was no impingement on the kind of personal privacy and freedom involved in this case?

Joseph B. Clark:

I think this case, if Your Honor please, with the way it comes to this Court, is economic.

These are people running a business, and if you look especially at Mrs. Stevens, the Stevens woman who testified for the State, a girl married less than a year, a graduate student, her husband a student.

She was charged fifteen dollars by this Center for a tube of jelly.

Now, we’ve heard arguments about poverty, and I’m not that long myself from college to know that fifteen dollars is an awful lot of money and it just seems to me that these people were running a business.

It’s that simple.

Potter Stewart:

Now you and I agreed earlier, I think – to come hack to the substantive use statute, or how you start in this case–

Joseph B. Clark:

That’s right.

Potter Stewart:

That statute —

Joseph B. Clark:

That’s the stumbling point.

Potter Stewart:

It was to that statute that I was adverting, and I was indicating by my question that there might be a difference between a state’s economic regulation of commercial businesses in that state and this kind of a statute, which affects – whether or not it does so with constitutional validity is the question before us, but which certainly affects the individual privacy and freedom of human beings, and not in their commercial activities, but in those private activities of their lives?

Joseph B. Clark:

There’s no question about that, if Your Honor please, but I think the issue can be avoided on the grounds that these individuals can achieve the same result by different means, by not using contraceptives.

Potter Stewart:

Or by not getting married.

Joseph B. Clark:

Possibly, but I think also that it’s too bad, in a way, that this case came up now and I say that because, in the last year or so, there appears to have been fantastic work done in this field.

Now, I cite in our brief an article in the – I don’t recall the page in the brief – but I cite an article in the Linacre Quarterly, a February 1965 issue, where a Boston gynecologist has come up with a method of being able to pinpoint ovulation to one day in a cycle.

Now, if this works out, if this is so, then contraceptives – that is, devices that are being used to prevent pregnancy will be passe.

There will be no need, there will just be no need.

[Inaudible]

Joseph B. Clark:

Excuse me, Your Honor.

Why shouldn’t you stay in that [Inaudible]

Joseph B. Clark:

Well, those methods, if Your Honor please, it would be impossible, absolutely impossible, because those methods would involve a rhythm system, which the State has held does not violate this statute.

Justice Bernnan:

You could buy that, couldn’t you?

Joseph B. Clark:

I suppose – I don’t think so.

I would not claim that.

Justice Bernnan:

On the basis of your argument, I don’t see why not.

Joseph B. Clark:

Well, if Your Honor please, what we’re saying is that the State can argue that people cannot go outside their own homes and get things and use them in their own homes.

Now, this is not to say that people can just —

Justice Bernnan:

No, but the reason you give us which would support the power of the State to do this, it seems to me, would equally apply to an amendment of the statute which bars the use of the rhythm method, makes it a crime to use it.

Why wouldn’t it?

Joseph B. Clark:

I suppose that it might.

Justice Bernnan:

Sure.

Joseph B. Clark:

But it’s not at issue here before the Court.

Earl Warren:

Mr. Emerson?

Thomas I. Emerson:

Mr. Chief Justice, may it please the Court.

With respect to the standing question and the right of the appellants in this case to assert the constitutional rights that are involved in the use statute, I call attention of the Court to the Shuttlesworth case, which – last term which raised that same issue.

So far as appellants raising the broad issues in this case, we point out in our brief in the footnote on page 16 those sections of the record in which all the issues that are now urged before this Court were consistently raised in the courts below.

With respect to the question of possible legislation in Connecticut, I call the attention of the Court to the fact that that would not solve the issue of the two defendants who have been convicted in this particular case.

With respect to the question of enforcement, regardless of the issues of whether or not there have been —

Justice Bernnan:

Don’t you have an abatement statute in Connecticut?

Thomas I. Emerson:

I’m sorry, Your Honor.

Justice Bernnan:

You say it wouldn’t solve the problem of these two.

Don’t you have an abatement statute in Connecticut?

Thomas I. Emerson:

I’m not sure about that, Your Honor, or quite how that would operate.

Justice Bernnan:

What about Bell against Maryland?

Thomas I. Emerson:

I’m sorry?

Justice Bernnan:

What about Bell and Maryland last year?

Thomas I. Emerson:

Yes, I realize your reference but I’m not sure how it would apply in the Connecticut situation or what the Court might do with it if it got back here.

Hugo L. Black:

We don’t have to meet that question, do we?

Thomas I. Emerson:

MNo, you’re right, Your Honor. [Attempt to Laughter]

On the question of enforcement, apart from the issue of whether or not there are sporadic cases brought, the issue before the Court is, and the fact is, that the statutes are being enforced against clinics.

Dr. Buxton has been convicted for his participation in a clinic, and that is the key issue with respect to the enforcement of the statute here.

Now, what this means is not only that contraceptive devices are not available as such to persons who cannot afford to go to private doctors, but that the whole range of medical services which are supplied by a clinic are not available to those people.

The medical services which are necessary in health cases, and particularly the newly-developed devices in the contraceptive field, require medical supervision.

All of those services are not available to many citizens of Connecticut who cannot afford private practitioners.

Potter Stewart:

Mr. Emerson —

Earl Warren:

You repeatedly say that it doesn’t apply to private physicians.

Now, where in your record do you find that fact?

I understand counsel to say that it does apply to them, just as well as anybody else.

Thomas I. Emerson:

Your Honor, by “apply” I meant it isn’t enforced as to them.

Earl Warren:

Well, how much has it been enforced here?

Thomas I. Emerson:

It’s enforced against the operation of a clinic.

It has not – there have been no cases in which a physician has been prosecuted outside, apart from the clinic cases.

It has not been enforced as to them.

I’m not saying it has no impact upon them, because it applies to them and they would be violating the law, and in that sense it applies to them, but it has never been enforced as to them.

Also, I was thinking of situations where the patient could go outside the State for medical advice, but the important point about the enforcement, Your Honor, is that it is enforced as to the centers, and not only as to Planned Parenthood centers, but as to hospitals and any other public facility.

So that all the people who rely on facilities of that sort are denied medical supervision in this important field.

Earl Warren:

But we can assume as a matter of law that this is applied only to clinics and is not applied to doctors?

Thomas I. Emerson:

The reason I say it is not applied to doctors —

Earl Warren:

Does the record support that, or is that your argument?

Thomas I. Emerson:

The reason I say that, Your Honor, is because that is what, as I understand, Poe against Ullman decided, that it was not applied to doctors and the record does not throw any more light on that.

I’m relying on the decision in Poe against Ullman.

Earl Warren:

Well, are we dealing on the record of Poe against Ullman here and not this one?

Thomas I. Emerson:

No, but there’s no indication that the situation has changed.

I just didn’t want to fight Poe against Ullman over again at this point.

Earl Warren:

Well, we didn’t vouch for the record, the truthfulness of the record, we were dealing with the record we had, which was inadequate, in Poe and I’m just wondering if we haven’t got the same thing here.

Thomas I. Emerson:

There’s nothing further in this record, Your Honor, Mr. Chief Justice, but I would say that, essentially, the matter is not the most significant aspect of the case.

It’s a secondary matter, because the important thing here is that it is being enforced against Dr. Buxton and Mrs. Griswold, and it is being enforced in a way which denies medical services to a great many people.

And I perhaps didn’t answer sufficiently the question yesterday as to what the people of Connecticut were suffering as a result of this statute.

The fact is that a great many people in Connecticut are denied medical supervision in an area of great importance to them, and it is a matter of great importance to a great number of people in Connecticut.

Potter Stewart:

Mr. Emerson, I don’t want to interrupt your argument, but before you sit down, I’d like to know what you do, if anything, about the precedents in this Court, first Margaret Sanger against the People of New York in 251 U.S., and second, Gardner against Massachusetts in 305 U.S.

Thomas I. Emerson:

People against Sanger is not a precedent in this case, Your Honor.

That involved a prosecution of Margaret Sanger in New York under the New York statute which prohibited the dispensing of contraceptives except by physicians.

She was not a physician, and that was the issue of the case, that since she was not a physician she was covered by the statute.

And there is no such question in this case, because we would not say that a state law which provided for the dissemination of contraceptives through a method of prescription by physicians would violate constitutional rights.

So that was not involved.

Potter Stewart:

That was an equal protection case, was it?

I notice it was argued to the Court in the Sanger case.

Thomas I. Emerson:

No, it was a prosecution under the New York statute.

Potter Stewart:

What was her claim in that case?

Thomas I. Emerson:

Her claim was that the statute was unconstitutional.

Potter Stewart:

Because it denied her equal protection, or why?

Because it allowed physicians to do it and not laymen?

Thomas I. Emerson:

No, it was not based on that grounds.

Potter Stewart:

Well what was her claim, do you remember?

I don’t know.

Thomas I. Emerson:

I’m sorry.

I’m sorry Your Honor.

I think it was a due process, First Amendment claim.

Potter Stewart:

I just wondered what your thought was about that?

Thomas I. Emerson:

I think that case is not significant.

Potter Stewart:

How about the Gardner case?

Thomas I. Emerson:

The Gardner case is much closer, and all I can say on that is that the Court simply dismissed the appeal.

The Gardner case involved the validity of the Massachusetts statute, which was a sale statute, and interpreted the statute to be without exception, as the Connecticut statute has been interpreted.

Similar questions were raised.

So that, so far as the sale aspects of it are concerned, it’s a very similar case.

It did not involve the use aspect and all the privacy questions that are involved in the use aspect.

Earl Warren:

I understood you to say yesterday, Mr. Emerson, that you made no distinction between the doctor in this case and the director.

Thomas I. Emerson:

I made no distinction, apart from the question of the requirements that a person have a license to practice medicine and so on, those aspects of the case which, of course, are different.

I would say that dissemination – that in this case there is no difference, because the statute prohibits dissemination by any person.

And therefore, whether it was the physician or whether it was an assistant to the physician, in that case they’re both in the same – have the same rights in that respect.

Hugo L. Black:

There’s been some statements in your argument about the difference between a business institution and somebody that’s not a business institution.

Is the statement of facts about how this clinic operates correct as made in the court’s opinion?

Thomas I. Emerson:

Yes, sir.

Hugo L. Black:

It is a business institution, isn’t it?

Thomas I. Emerson:

No, it is not a business institution.

Hugo L. Black:

Well, what do they get paid for?

Thomas I. Emerson:

Well, there was a sliding scale of fees, ranging from nothing to fifteen dollars.

Hugo L. Black:

Who gets the fees, the public?

Thomas I. Emerson:

No, it’s run by a nonprofit organization, Planned Parenthood.

Hugo L. Black:

What does the doctor get?

Thomas I. Emerson:

The doctor serves without fee.

Hugo L. Black:

Is that right?

Thomas I. Emerson:

Yes.

I’m quite certain about that, Your Honor.

There is no element of profit in this whatsoever.

Hugo L. Black:

What does Mrs. Griswold get?

Thomas I. Emerson:

She was executive director of the Planned Parenthood League of Connecticut.

Hugo L. Black:

What does she get out of this clinic?

Thomas I. Emerson:

I think nothing, Your Honor.

I think there was no —

Hugo L. Black:

Is the statement correct, however, as given by the court’s opinion?

Thomas I. Emerson:

I didn’t recollect that the court said–

Hugo L. Black:

I think she got a salary.

Thomas I. Emerson:

She got a salary from Planned Parenthood League of Connecticut, which sponsored the center, but she got no salary from the center.

Hugo L. Black:

I’m not asking that with the idea that I think that raises, makes a constitutional difference, but because some suggestion has been made that it might?

Byron R. White:

Mr. Emerson, could I ask you another question?

Apparently, the State would concede that you certainly – that the defendants can raise the constitutional issues about this statute which the married couple could raise, provided they were litigating in a court of law and things like that, but how about the health argument?

Here were two healthy, two healthy people, apparently, these two married women who testified and can we really be legitimately concerned with the way this statute might apply to two other married women who might have health reasons for wanting a birth control device?

Thomas I. Emerson:

Yes, I think clearly so, Your Honor, because, in the first place, it would really make no sense for this Court to rule on the narrow issue of the three women that happened to be called as witnesses in this case; and then, if it decided as to them one way, the clinic would then operate, and the next day three more women would come in and raise different questions.

It seems to me that there is no sound judicial administration in taking it on that narrow a view, when actually it raises, for all practical purposes, all the types of problems that would come up in case any women came in.

Byron R. White:

But these people are being prosecuted for giving advice and furnishing devices to these particular women who testified, aren’t they?

Thomas I. Emerson:

Yes, Your Honor.

But —

Byron R. White:

Not in a lot of other situations?

Thomas I. Emerson:

No, but they are subrogated to the rights of those women, and those women–

Byron R. White:

Only those women, yes?

Thomas I. Emerson:

Yes, Your Honor, but those women may be healthy today, but not tomorrow, for one thing.

Byron R. White:

Let’s assume the woman was prosecuted for using, and she says, “This statute is unconstitutional because it would prevent a sick woman from using it;” and, are you sick?

“No, I’m not sick at all; I just want to practice birth control.”

Thomas I. Emerson:

Well, I think it’s fully within the doctrine of the Aptheker case, for instance, Your Honor, in which a passport was denied to one member of the Communist Party and the question – the Court considered whether – how that statute applied to other members of the Communist Party.

I think that the issues are sufficiently related so that all aspects of the case would be considered.

I think the Court would be drawing the line much too finely if it attempted to separate the different types of patients that might come into that center.

Byron R. White:

Now, how about your First Amendment argument in the – is that really seriously involved here because it was furnishing the device?

Thomas I. Emerson:

Yes, Your Honor.

The fact that I have not discussed the privacy argument or the First Amendment argument I hope will not be construed that I do not emphasize them.

I do.

The First Amendment argument is significant in two respects; both in the fact that the statute is void on its lace because it permits counseling – aiding, assisting, abetting and counseling the use of contraceptive devices.

That term could mean that a mother who counseled her newly married daughter to use contraceptives because of her ill health could come under the statute.

Thomas I. Emerson:

It could apply to a doctor who had a patient in his office and discussed the effectiveness of a contraceptive device with her. He would be running a serious risk.

Arthur J. Goldberg:

But doesn’t that assume the underlying invalidity of the statute, because the mother could not counsel her daughter to commit adultery?

Thomas I. Emerson:

Well, I’m not so sure about that, Your Honor and Mr. Justice Stewart said in the Kingsley Pictures case that freedom of speech did include the right to advocate adultery.

Potter Stewart:

Not to counsel an individual person to commit it, there may be a difference.

Byron R. White:

Not a specific crime?

Thomas I. Emerson:

I would think that advocacy would be more likely to be outside the First Amendment than counseling, which is a personal, face-to-face relationship, and would probably be of less public social significance than advocacy, but we would argue two things, Your Honor —

Byron R. White:

But this is an aiding and abetting statute in connection with a specific crime.

This is not a statute that says, “it shall be illegal to aid, to counsel about birth control.”

This is an aiding and abetting provision of a specific crime.

Thomas I. Emerson:

That’s true, Your Honor.

But the question of whether a person had violated the aiding and abetting statute by counseling various people on the use of contraceptives would raise many borderline cases, so that a person would not know what his rights were.

And also, we would contend that it would violate the First Amendment substantively because we would contend that a doctor did have a right to advise people to use contraceptives and to —

Byron R. White:

On this basis, there would be an awful lot of aiding and abetting statutes that would be declared unconstitutional.

Thomas I. Emerson:

I think that’s right, Your Honor, in the sense that the aiding and abetting statutes grew up quite independently of the First Amendment and have never really been reconciled.

The fact that there have not been more cases indicates that it’s not been too pressing a situation, but I think sooner or later there will have to be a reconciliation.

Byron R. White:

To take your argument seriously, you have to assume that the aiding and abetting statutes really, really would be applied to people who simply counseled generally, rather than in connection with a specific crime.

Either that, or we have to think that you are urging that advising to commit a specific crime is protected by the First Amendment. You’re not doing the latter, are you?

Thomas I. Emerson:

Not perhaps as to all crimes and in all circumstances, but there is a point at which advising, in the sense of advocating, is certainly protected, under any doctrine of this Court.

Arthur J. Goldberg:

Mr. Emerson, I think that that’s quite a different thing.

You can advocate, as a matter of advocacy, repeal of any law, and say you’re against the underlying principle, but it’s pretty farfetched to say that, assuming the validity of the law, the First Amendment protects counseling the violation of such a law.

Thomas I. Emerson:

Mr. Justice Brandeis you recall said, that there are some types of advocacy which, even under the clear and present danger test, would be permitted under the First Amendment.

It depends on the, in his view, on the extent of the evil, and hence it would depend on how serious the Court thought the consequences were under that view.

Arthur J. Goldberg:

Of course, here, as a matter of the record, the activity involved is not counseling; it’s conduct.

Isn’t that correct?

We’re dealing here with conduct.

The doctor prescribed devices from the center, and Mrs. Griswold helped supply them.

So we’re really not dealing with counseling.

Thomas I. Emerson:

We’re not, directly, Your Honor, and it’s quite true, as I said yesterday, that those aspects of it are outside.

Our position is that the statute is void on its face because it infringes the First Amendment by permitting the possibility of a punishment for counseling, and thus inhibiting free speech; and also, that those aspects of free speech which were protected by the First Amendment in this case were lumped together in the findings of the court.

The action and the speech were all put together in one gray-bag and the court came out with its conviction, and we consider that also a violation of free speech.

Hugo L. Black:

Would your argument concerning these things you’ve been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?

Thomas I. Emerson:

No, I think it would not cover the abortion laws or the sterilization laws, Your Honor.

Those – that conduct does not occur in the privacy of the home.

Hugo L. Black:

There is some privacy, as a rule, and the individual doesn’t generally want it made known, it’s private thing.

Thomas I. Emerson:

Well, that aspect of it is true, Your Honor, but those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this —

Hugo L. Black:

Part of it goes on in the home, undoubtedly?

Thomas I. Emerson:

Part of it does, Your Honor, but the conduct that is being prohibited in the abortion cases takes place outside of the home, normally.

There is no violation of the sanctity of the home.

Justice Bernnan:

Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being, doesn’t it?

Isn’t that a rather different problem from contraception?

Thomas I. Emerson:

Oh, yes, of course.

Justice Bernnan:

And isn’t it different in the sense of the State’s power to deal with it?

Thomas I. Emerson:

Oh, yes.

Of course, the substantive offense is quite different here.

Hugo L. Black:

Are you saying that all abortions involve killing of murder?

Thomas I. Emerson:

Well I don’t know whether you need characterize it that way, but it involves taking what has begun to be a life.

Hugo L. Black:

But the State thinks each of them is wrong, and it passes a law to forbid it being done.

It relates to a pretty closely analogous situation [Inaudible]

Thomas I. Emerson:

Yes, Your Honor, but that case is different from this situation because in the abortion cases Connecticut does not apply this moral principle.

It is the use of an instrument to prevent birth taking place, but they do not apply the moral principle that it can never be done.

In Connecticut, abortion is allowed where it is necessary to save the life of the mother or the child.

So that the basic moral principle that Connecticut is trying to enforce here, they simply pay no attention to in their abortion laws.

It’s a completely inconsistent application of the principle.

They don’t take it seriously in the abortion cases, only in contraception cases.

Earl Warren:

Mr. Emerson, I understood Mr. Clark to say that the question of the unconstitutionality of this act on its face was never raised below, and that this was the first time you argue it.

Is that correct?

Thomas I. Emerson:

No, Your Honor.

In the demurrers to the indictment – we have all this in our brief on page 16, in the demurrers to the indictment, it was alleged that the statutes were unconstitutional as applied to the defendants, and it’s on that basis that they make that assertion.

It was put in that language in order to avoid the problem of the Tileston case.

But the appellants have consistently asserted that the statutes were void as a whole, for all the reasons that we have given here, and we point out the places in the record where that issue was consistently raised below and was consistently passed on by the courts below.

Thomas I. Emerson:

All the issues that we have raised here were.

Earl Warren:

You point out there that “as applied.”

Now, did you specifically attack the constitutionality on its face, as being unconstitutional?

Thomas I. Emerson:

No, it just said, “as applied to them” at that point in the demurrers to the information, but at other points, the broad arguments were raised that we have raised here.

Earl Warren:

Is that in the record where we can find it?

Thomas I. Emerson:

Yes.

Earl Warren:

Where?

Thomas I. Emerson:

There’s a citation given on —

Earl Warren:

Do we have the citation from your brief?

Thomas I. Emerson:

Yes.

Earl Warren:

Alright.

Very well.