Griswold v. Connecticut

PETITIONER:Estelle T. Griswold, et al.
RESPONDENT:State of Connecticut
LOCATION:Planned Parenthood Birth Control Clinic

DOCKET NO.: 496
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 381 US 479 (1965)
ARGUED: Mar 29, 1965 / Mar 30, 1965
DECIDED: Jun 07, 1965

ADVOCATES:
Joseph B. Clark – For the Appellees
Thomas I. Emerson – For the Appellants

Facts of the case

Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception.

Question

Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?

Earl Warren:

Number 496, Estelle T. Griswold, et al., versus Connecticut.

Mr. Emerson.

Thomas I. Emerson:

Mr. Chief Justice, may it please the Court.

This case involves the validity of the Connecticut anti-contraceptives statutes.

There are two statutes involved, which are printed on page three of our brief.

The first one, which I will refer to as the “use statute,” provides that any person who uses any drug, medicinal article or instrument for the purpose of preventing conception is guilty of a crime; and the second statute, the “accessory statute,” provides that anyone who assists, abets, counsels, and so on, another to commit any offense may be punished as if he were the principal offender.

There is no dispute concerning the facts of the case, at least so far as I know.

Following the decision of this Court in Poe against Ulmin in 1961, there was opened in New Haven the Planned Parenthood Center, and this was in November of 1961.

The purpose of the Center was to provide information, instruction and medical advice to married persons as to the means of preventing conception, and to educate married persons generally as to such means and methods, that was the finding of the court in this case.

Dr. Buxton, one of the appellants here, was medical director of the Center.

Dr. Buxton is chief of the Department of Obstetrics and Gynecology at Yale Medical School, and one of the leading authorities in his field.

Mrs. Griswold, the other appellant here, was acting director of the Center.

She is executive director of the Planned Parenthood League of Connecticut, and she was in charge of the administration of the Center and its educational program.

The Center functioned in a suite of eight rooms in a building in New Haven.

It had a staff of doctors and nurses, as well as Mrs. Griswold.

The procedure was that, when a married woman came to the Center, she was interviewed, her case history was taken, and various forms of contraception were explained to her.

Mr. Emerson, how was the determination made that she was a married woman?

Thomas I. Emerson:

I do not know, Your Honor, except that, in asking questions and taking the case history, I assume that it was accepted if she said she was married, but I’m not sure what the arrangements for that was.

There is no question in the case, but that the Center functioned only for the purpose of helping married women.

That was what I wanted to ask you?

Thomas I. Emerson:

Yes, there’s no question about that.

[Inaudible]

Thomas I. Emerson:

If an unmarried woman got services, it would be through misrepresentation and mistake.

In the specific case [Voice Overlap]

Thomas I. Emerson:

That’s right, Your Honor; that’s right, yes.

Well typically [Inaudible]

Thomas I. Emerson:

That’s right, yeah, yeah.

Hugo L. Black:

Does the law allow that distinction, discrimination —

Thomas I. Emerson:

The law makes no distinction between married and unmarried women, but our objection to it, essentially, goes only to the application to married women.

Hugo L. Black:

Well, why wouldn’t it be a denial of equal protection of the laws to draw such a distinction, if women need that?

Thomas I. Emerson:

Well, it might be, and I will argue that it does operate discriminatorily, Your Honor.

The equal protection question as such was not raised in this case and there might be differences between – there are differences between married and unmarried women for purposes of legislation in this area.

So that the mere fact of distinction would not necessarily be a denial of equal protection.

Justice Bernnan:

I suppose you’re not making any equal protection argument.

That reminds me, is or is not the sale of contraceptives a crime in Connecticut?

Thomas I. Emerson:

Yes, it is, Your Honor, by virtue of the accessory statute.

Justice Bernnan:

That is — would it be, for example, also the crime of aiding or abetting and violation of the use statute to sell contraceptives?

Thomas I. Emerson:

Yes, it would be, Your Honor.

Justice Bernnan:

Have there been any prosecutions for that?

Thomas I. Emerson:

There have been no prosecutions for sale, Your, Honor.

The only prosecutions, actually, have been in the case of clinics, where the prosecutions have been brought against doctors, nurses and assistants.

Potter Stewart:

What you said would be correct if contraceptives were sold as contraceptives, but I suppose, if they were sold as something else, such as preventives for disease, that would not violate the abetting statute, is that right?

Thomas I. Emerson:

That’s right, Your Honor.

In just one minute I’ll get to the interpretation, the Connecticut State interpretation of the statute.

Justice Bernnan:

Just one other question, I am not satisfied if I may.

There’s no authorization for the prescription of contraceptives to prevent disease or that sort of thing?

Thomas I. Emerson:

No.

Well, the statute applies without exception, to prevent the use of contraceptives for purposes of preventing conception.

The statute does not apply to the use or sale of contraceptives for purposes of preventing disease.

Justice Bernnan:

Well, is that the way that contraceptives are freely sold in Connecticut?

Thomas I. Emerson:

That’s correct, Your Honor.

They are sold in Connecticut for purposes of preventing disease.

Justice Bernnan:

And yet, you’re making no equal protection argument at all?

Thomas I. Emerson:

We are not arguing the Equal Protection Clause of the Fourteenth Amendment as such in this case, no.

It was not raised in that way.

We do say that the statute does operate discriminatorily, and as part of our due process argument.

For the purpose of preventing disease, no distinction is drawn between married and unmarried, correct?

Thomas I. Emerson:

No.

Well, there’s no statute which says that.

It’s simply that the statute doesn’t cover the use or sale of contraceptives for preventing disease.

Thomas I. Emerson:

That applies to anybody, yes.

I take it that applies across the board?

Thomas I. Emerson:

That’s right, that’s right.

The Center functioned for ten days, and then at that time Dr. Buxton and Mrs. Griswold were arrested and the Center closed down.

Informations were filed against the two appellants here, and demurrers were filed to those informations, challenging the statute on due process grounds under the Fourteenth Amendment and First Amendment – freedom of speech grounds under the First and Fourteenth Amendments.

The demurrers were overruled.

There was a trial before the court without a jury; and findings of fact were subsequently made which state the basis of the court’s position.

The evidence show that Dr. Buxton had not only been medical director of the Center, and had made the medical decisions in setting it up, but he also had functioned as a physician during the operation of the Center on several occasions, and had examined patients and given them contraceptive advice.

The evidence show that Mrs. Griswold had taken case histories, had discussed methods of contraception with married women who came to the Center, and on one occasion had given contraceptive materials to one of the women.

There was testimony of three married women who had come to the Center, had gone through the procedure which I have described, and were given contraceptive materials, and thereafter used them.

The defendants were convicted, sentenced to a fine of one hundred dollars each.

Appeals were taken to the Appellate Division and the Supreme Court of ours, which affirmed the convictions.

The appellants at all times–

What was the sentence [Inaudible]?

Thomas I. Emerson:

The sentence was a fine of a hundred dollars each.

I assume the doctor [Inaudible] involved?

Thomas I. Emerson:

Yes, in the case of the doctor the right to – the license to practice medicine may be involved.

Earl Warren:

Do you make any constitutional distinction between the doctor and the director of the institution, so far as their —

Thomas I. Emerson:

No, Your Honor, we do not.

The doctor’s right is the right to engage in the practice of his profession as a property right, and we think that an equal property right to engage in an occupation exists in the case of Mrs. Griswold.

In addition, she was an assistant to the doctor, so she comes in under the rights that pertain to the doctor.

Earl Warren:

You don’t claim that, because he is a doctor he has a peculiar right over and above another individual to give this information?

Thomas I. Emerson:

Well, we do claim, Your Honor, that the operation of the statute is to violate his right to practice medicine in accordance with scientifically accepted principles, and in that respect the fact that he is a doctor does make a difference, but the initial constitutional right with which he starts, the right to practice a profession or the right to engage in an occupation, it seems to me to be the same in both cases.

Earl Warren:

Yes.

So that if Mrs. Griswold had no doctors, she could have done the same thing, conducted the kind of a clinic?

Thomas I. Emerson:

Yes, I think so.

Now–

That’s assuming the scientific validity of what she was doing, assuming that if she recommended a type of operation that a doctor might not have approve of, she would be in a different situation.

Thomas I. Emerson:

Yes.

I mean, there would be questions of whether she was licensed to practice, but assuming that she was operating in the same manner as the doctor, I would see no difference.

Thomas I. Emerson:

The major interpretation of the Connecticut statute is not in dispute, either.

Justice Bernnan:

I’m sorry.

I gather, looking at your brief at page nine, that this exclusion of sales for the prevention of disease is read into the fact that the statute deals only with use for the purpose of preventing conception, is that it?

Thomas I. Emerson:

Yes.

In addition–

Justice Bernnan:

I mean, has there been any court decision to —

Thomas I. Emerson:

Not in Connecticut, Your Honor.

The Massachusetts courts, which have a somewhat similar statute, have interpreted their statute as not applying to the sale of contraceptives for the prevention of disease and the Connecticut courts have cited with approval those Massachusetts decisions, so that we say that, in effect, the Connecticut courts have taken that position, but there is no direct ruling by a Connecticut court on that point, that’s correct.

Justice Bernnan:

Well, on the strength of that, wouldn’t you have had a rather compelling equal protection argument, if the Connecticut courts went that far?

Thomas I. Emerson:

Well, you mean that —

Justice Bernnan:

I’m just trying to find out why you haven’t made an equal protection argument which on the face of it, it seems to me, might have considerable merit?

Thomas I. Emerson:

Well, I didn’t – I wasn’t participating in the case at an earlier stage, Your Honor, but the equal protection – there are differences between married and unmarried persons, and between the use of devices for preventing conception and the use for preventing disease –-

Byron R. White:

Is that —

Thomas I. Emerson:

-– and it’s conceivable that the State legislature could validly make discrimination between them in some situations.

I think we do – I think we satisfy your suggestion for an argument under the Equal Protection Clause in the sense that we do argue that the discriminatory nature and application of the statutes are one of the reasons why they are arbitrary and unreasonable under the due process clause.

But we have not made an argument that it is unreasonable to leave out the use for the prevention of disease as an equal protection argument.

It seems to us it’s inconsistent with the whole philosophy of the statute, but we have not made it as an equal protection argument.

Justice Bernnan:

It just struck me that, if it has merit on narrower constitutional grounds, it would dispose of the statute, which is what you want to do?

Thomas I. Emerson:

It would dispose of the statute, Your Honor, that’s correct.

Byron R. White:

Mr. Emerson are these devices on sale in drugstores?

Thomas I. Emerson:

There’s nothing in the record about that, Your Honor.

The question was asked about that at the trial and the evidence was excluded.

I can however say from my own information that they are on sale in the drugstores for the prevention of disease.

They are, at least technically, not on sale for any other purpose.

Earl Warren:

Openly and validly they’re on sale, not secretly?

Thomas I. Emerson:

They’re not normally on display, Your Honor.

They’re under the counter, but there’s no problem in obtaining them if you ask for them.

Earl Warren:

It’s not done —

Thomas I. Emerson:

Certain devices must be sold on physician’s prescription, of course, and can be obtained only on prescription from a physician, but others which do not require such a prescription can be obtained without it at the drugstore.

Hugo L. Black:

I’d like to ask you a question in connection with Justice Brennan’s question.

Hugo L. Black:

I can understand an argument, from my own constitutional ideas, based on equal protection.

It seems to me what someone has done here deliberately is to try to force a decision on the broadest possible grounds of the meaning of due process speaking as a matter of substance, and to have us weigh the facts and circumstances as to the advisability of a law like this, rather than leave it up to the legislature.

As I understand it, however, you’re abandoning your idea of any argument under equal protection as such?

Thomas I. Emerson:

We have never made any argument on equal protection as such, Your Honor.

Hugo L. Black:

You pitch it wholly on due process, with the broad idea that we can look to see how reasonable or unreasonable the decision of the people of Connecticut has been in connection with this statute.

Thomas I. Emerson:

We pitch it an due process in the basic sense, yes, that it is arbitrary and unreasonable, and in the special sense that it constitutes a deprivation of right against invasion of privacy.

The privacy argument is a substantially narrower one than the general argument.

Hugo L. Black:

That’s the due process argument?

Thomas I. Emerson:

That’s correct.

They’re both due process; they’re both due process.

Hugo L. Black:

Nothing but due process; no other constitutional provision whatever?

Thomas I. Emerson:

Well, we also argue the First Amendment, Your Honor.

We have a First Amendment argument.

You haven’t made it in court?

Thomas I. Emerson:

We argued the Ninth Amendment as part of the privacy –-

[Inaudible]

Thomas I. Emerson:

-– well, the Ninth Amendment wasn’t clearly raised below either, Your Honor, and in that sense we didn’t feel that we could pitch it squarely on the Ninth Amendment.

So we refer to that as a basis for the right of privacy.

As I understand it, you argue this as a due process question [Inaudible] Due Process Clause [Inaudible] application of this law to married couples and married couples only?

Thomas I. Emerson:

That’s correct, Your Honor.

Hugo L. Black:

But you expect us to determine whether, it’s sufficiently shocking to our sense of what ought to be the law, because this applies to married people only?

Thomas I. Emerson:

Yes, Your Honor, but it is not broad due process in the sense in which the issue was raised in the 1930’s.

In the first place, this is not a regulation that deals with economic or commercial matters.

It is a regulation that touches upon individual rights: the right to protect life and health, the right of advancing scientific knowledge, the right to have children voluntarily and therefore, we say we are not asking this Court to revive Lochner against New York, or to overrule Nebbia or West Coast Hotel.

Hugo L. Black:

It sounds to me like you’re asking us to follow the constitutional philosophy of that case?

Thomas I. Emerson:

No, Your Honor.

We are asking you to follow the philosophy of Meyer against Nebraska and Pierce against the Society of Sisters, which dealt with Meyer against Nebraska —

Hugo L. Black:

Was the one that held it was unconstitutional as I recall it, for a state to try to regulate the size of loaves of bread–

Thomas I. Emerson:

No, no, no.

Hugo L. Black:

Because people were being defrauded, was that it?

Thomas I. Emerson:

That was the Lochner case, Your Honor –- Meyer against Nebraska held that it was unconstitutional for a state to enact a law prohibiting the teaching of the German language to children who had not passed the eighth grade.

And Pierce against the Society of Sisters held that it was unconstitutional for a state to prevent the operation of private schools in the state.

And those were bath due process cases, were decided as due process cases and the Aptheker case, well, I would bring within this rule the Schware case, Schware against the Board of Bar Examiners, and the Aptheker case most recently, all were due process cases which related to individual rights and liberties, and we distinguish those from the cases which involved commercial operations like Lochner against New York and West Coast Hotel against Parrish.

We make that very definite distinction.

Justice Bernnan:

Well, let’s see.

Wasn’t Aptheker underpinned on the concept of over broadness which went too far?

Thomas I. Emerson:

Well, it was a due process – it was a very –-

Justice Bernnan:

That’s due process —

Thomas I. Emerson:

-– yes, but that’s the same kind of due process argument we’re making here, Your Honor.

Justice Bernnan:

In other words, that this – however constitutionally a state may enact a statute on this subject to go so far as to reach married couples goes too far, and in that sense the statute is over broad, is that it?

Thomas I. Emerson:

That’s right.

So it’s an undue breadth’s argument very similar to the Aptheker argument and, Mr. Justice Black, when I get a little further along, I think I’ll also narrow the issue down somewhat further, even.

[Inaudible]

Thomas I. Emerson:

That’s correct Your Honor.

[Inaudible]

Thomas I. Emerson:

That’s correct Your Honor.

Justice Bernnan:

Now, you’re going to come and tell us why it is that it’s over broad as to married couples?

Thomas I. Emerson:

Yes.

Let me first say one further thing in a preliminary way with respect to the interpretation of the statute.

The Connecticut courts are clear that the “use statute” has been – the use statute prohibits by criminal process any use of contraceptive devices for prevention of conception.

And there is no exception to that statute, it applies to married persons, to married couples.

It applies to a woman whose health is such that a further pregnancy would be dangerous, or perhaps fatal.

It applies even though there is a doctor’s prescription based upon scientific and medical grounds, it applies without exception.

On the other hand, as I indicated, it is not an offense to sell these same devices for, or to use them for, purposes of preventing disease and the accessory statute prevents a doctor from prescribing them for prevention of conception and prevents their sale for prevention of conception.

Now, the Connecticut statute is a unique statute.

There is no other statute dealing with this problem that makes it a criminal offense to use contraceptive devices.

In that respect it is totally unique.

The only statute, other statute, which is somewhat comparable, is the Massachusetts statute.

The Massachusetts statute prohibits the sale or giving away or displaying of contraceptive devices for prevention of conception.

It is different in that it applies to the sale, not the use, but it is the same as the Connecticut statute in that it has been interpreted to apply without exception.

Thomas I. Emerson:

It applies to married persons, doctors, physicians, and so forth.

Now, the statutes are collected in the appendix to the brief of the Planned – amicus brief for the Planned Parenthood Federation, here.

I will not go into them further, except to say that there is no other statute, either state or Federal, which has been interpreted in this way or applied in this way.

Either by express language of the statute or by judicial interpretation, or by application of the executive officials charged with enforcement, all the other statutes allow at least the use of contraceptives for purposes of preventing conception and their sale on doctor’s prescription or through some pharmaceutical arrangement or something of that sort.

There are no others like the Connecticut statute or the Massachusetts statute.

Hugo L. Black:

Are you emphasizing that on the ground that a state is without power wholly to prohibit the use of contraceptives that due process forbids it?

Thomas I. Emerson:

They have the power to prohibit as to married couples, within the marriage relationship, yes, Your Honor.

Hugo L. Black:

That’s the basis of your argument, that a state cannot pass a law which forbids all people to use contraceptives, and is forbidden to do so by due process, the Due Process Clause?

Thomas I. Emerson:

That’s correct, Your Honor, yes and also, the First Amendment clause, in this case at least.

Hugo L. Black:

Well I am – using, use is not speech, is it?

Thomas I. Emerson:

No, it isn’t, Your Honor.

That’s a different argument.

Potter Stewart:

Mr. Emerson, maybe I’m misreading your opponent’s brief, but if I don’t, there seems to be a little difference of opinion between you as to what you’ve just told us.

I’m referring to page nine of his brief, in which he tells us that some thirty states have laws on this general subject, laws of one kind or another, and, of those thirty, the laws of Massachusetts, Minnesota, Mississippi, Missouri, Nebraska and New York would be violated by the facts in the present case.

Thomas I. Emerson:

Yes, Your Honor, I disagree with that statement.

Only Massachusetts law would have been violated by the facts of this case.

The Minnesota and the New York laws prohibit sale, except on a doctor’s prescription, and the wording is, “for use – for the cure or prevention of disease.”

They can be sold in Minnesota and New York on doctor’s prescription for the cure and prevention of disease, but the court in New York in the Sanger case and in later cases has interpreted that language to mean, “for the purpose of promoting general health and well-being.”

So that New York does have birth control clinics operating in New York City and the New York – and the Minnesota statute similarly is classified as statutes allowing sale on prescription of physician for purposes of general health and well-being.

The Mississippi, Missouri and Nebraska statutes do on their face sound like the Massachusetts statute.

They are statutes prohibiting sale, but they have never been interpreted that way, well I’m not sure there are any court decisions, they have never been applied that way in those States, and there are in those States birth control clinics operating, either by the government or by Planned Parenthood.

So that, although on their face those statutes would apply, they have never been utilized in that way, and the Center would have been allowed to operate in those States.

Potter Stewart:

You’re telling us that they’re dead letters —

Thomas I. Emerson:

That’s right.

Potter Stewart:

— that they’re not, as a matter of administration of law, that they’re not enforced, but that’s – that was — you’re kind of reaching the basis on which this Court disposed of Poe against Ulmin, which I suppose didn’t please you very much, did it?

Thomas I. Emerson:

Well, Your Honor, the – many of these statutes started out with language similar to the Massachusetts statute.

As far as I know there are no other use statutes, but have been interpreted, as the Federal statutes have, not to apply except to unlawful uses, in effect.

Potter Stewart:

How about the federal, the Federal statutes, 18 United States Code 1461 and 1462?

Thomas I. Emerson:

Yes, those are the statutes which prohibit —

Potter Stewart:

Having to do with the mailing of them?

Thomas I. Emerson:

–mailing or transportation in interstate commerce or importation of articles designed to prevent conception.

They were interpreted from beginning – well, the leading case which we cite is United States against One Package, a decision of the Second Circuit in 1936, which held that they prevented only the transportation of contraceptive devices for unlawful purposes, illegal abortions or unlawful purposes and did not prevent their transportation where those purposes did not exist.

So that contraceptive devices do – are sent through the mails now, do move in interstate commerce, and that language, which could have been interpreted the way the Massachusetts legislation was, has not been so interpreted.

Justice Bernnan:

[Inaudible] do the statutes fall?

Thomas I. Emerson:

Your Honor, it depends on what ground we prevail.

If we prevail on the privacy ground; that would probably end only the Connecticut statute, because the Connecticut statute is the only use statute.

If we prevail on the further, basic due process ground, it would, I think, end the Massachusetts statute because that ground holds it arbitrary to apply any such statute with respect to the married relation.

Justice Bernnan:

What about the Federal one?

Thomas I. Emerson:

The Federal statutes would continue as they are.

They have been interpreted so that they don’t raise any of these questions, and I would say that is true of all the other statutes, so far as I’m aware.

Potter Stewart:

How have the Federal statutes been interpreted, did you say?

Thomas I. Emerson:

They have been interpreted as not to raise these questions because they don’t prevent the shipment of contraceptives for use by married couples within the marital relationship.

Justice Bernnan:

What cases say that?

Potter Stewart:

Yes.

Thomas I. Emerson:

The United States against One Package is the leading Federal case on that, Your Honor.

It’s cited on page 24 of our brief.

Justice Bernnan:

Is that in this Court?

Thomas I. Emerson:

No, that’s a Second Circuit–

Potter Stewart:

Back in 1936?

Thomas I. Emerson:

1936, yes.

Justice Bernnan:

Nothing in this Court, is there?

Thomas I. Emerson:

There’s been nothing in this Court I think, Your Honor.

Mr. Emerson, you said if you prevail upon the privacy ground, [Inaudible]

Thomas I. Emerson:

Well, you’re correct, Your Honor.

I was speaking rather broadly there, because it’s quite true that many of the privacy arguments would apply to the sale statutes, some of them don’t and therefore, you don’t have as clear cut a privacy argument with respect to the sale statutes.

I should have put it in those terms.

I was stating it too generally.

Justice Bernnan:

Well, I wonder, Professor Emerson, if this goes off – you were to prevail on an Aptheker or over breadth ground, why would that settle anything, except that this Connecticut statute is over broad?

Why would that settle necessarily the constitutionality of the Massachusetts statute?

Thomas I. Emerson:

Well, because, Your Honor, the question is why is it over broad?

Thomas I. Emerson:

The reason that it is over broad is because it denies rights to married couples that should not be denied and therefore, that would be true equally of the use statute or the sales statute, I think.

Hugo L. Black:

That said not be denied in the judgment of this Court?

Thomas I. Emerson:

That’s correct, Your Honor.

Hugo L. Black:

Is there any constitutional provision that says that?

Thomas I. Emerson:

We’re relying on the Due Process Clause, Your Honor.

Hugo L. Black:

Is there any other constitutional provision on which you could possibly rely upon?

Thomas I. Emerson:

We rely on the Third, Fourth and Fifth Amendments, insofar as they embody a concept of a right of privacy, Your Honor, which are incorporated in the Fourteenth Amendment, since this is state legislation.

Hugo L. Black:

Again you’re dealing with [Inaudible]

Thomas I. Emerson:

It could very well be, Your Honor.

Certainly the Ninth Amendment meant to reserve some rights to the people, and if there’s any right that you would think would he reserved to the people and which the Government would not interfere with, it would be this right, yes.

Potter Stewart:

Do you have any data as to the breadth of the use of these devices back in the late 18th Century when the Ninth Amendment was adopted?

Thomas I. Emerson:

No, I’m not familiar with that history, Your Honor.

Methods of contraception have been used for ages, of various types, and what the state of the art was in 1879, I’m not exactly sure.

Potter Stewart:

I think we can – it is true that there’s been a good deal of technological development in this area in recent years, isn’t it?

Thomas I. Emerson:

Yes, there has been, Your Honor.

There has been a very substantial development, particularly with respect to intra-uterine devices, and also the oral contraceptives, the pills.

Potter Stewart:

Now that I’ve interrupted you, you’ve told us that in Connecticut the sale of these devices is not molested because they’re sold for the prevention of disease.

Is this true about all of these devices that are covered, that each of them has the potential dual function of acting in a contraceptive capacity and as a prevention of disease, or only with respect to some of them?

Thomas I. Emerson:

It’s probably only true with respect to some, but some get by under the term “feminine hygiene,” and others I just don’t know about, but they are all sold in Connecticut drugstores on one theory or another.

Earl Warren:

Is there anything in the record to indicate the extent of the birth rate in Connecticut vis-a-vis the states that don’t have such laws?

Thomas I. Emerson:

Well, there are so many other factors involved, Your Honor, that it would be hard, I think, to isolate this.

Connecticut’s birth rate is, I believe, in excess of that of the Nation.

I think at least the increase of its population from 1950 to 1960 was something like 26 percent, and the rest of the Nation’s population was 18 percent, but that may involve a lot of mobility between states, people moving between states, and so forth.

It doesn’t prove [Inaudible]

Thomas I. Emerson:

It doesn’t prove it either way, I think, Your Honor.

That factor cannot be really isolated that way, I think.

Hugo L. Black:

Are there any statistics that indicate that Connecticut people have been suffering because of inability to get such things?

Thomas I. Emerson:

There are no statistics, Your Honor, but the effect of the operation of the statutes is that people who are too poor to have private physicians or too uninformed to know about these matters do not get the services.

And there is no doubt whatever that there would be room for an important work in terms of giving people advice and information and instruction with respect to contraceptive services when they wanted it in Connecticut.

Hugo L. Black:

But this one’s not a question of advice, is it?

Thomas I. Emerson:

This involved more than advice, Your Honor, that’s true.

It also involved some —

Justice Bernnan:

You also can make the First Amendment argument based on advice, can’t you?

Thomas I. Emerson:

The First Amendment argument is based on the advice aspects of the case.

Byron R. White:

But there was more than advice here, wasn’t there?

Thomas I. Emerson:

There was Yes.

Byron R. White:

There was furnishing —

Thomas I. Emerson:

There was yeas, there was I would say, examination of patients, prescription of a device, furnishing a device, all of those would seem to me action and not within the First Amendment protection.

In addition, there was advice to married women generally, and the aiding and abetting statute includes not only assisting and abetting, but counseling, and that part of it, we think, would make the statute void on its face.

Byron R. White:

Are you going to cover in your argument why these defendants can or should assert the rights of the married people on —

Thomas I. Emerson:

I cover that, Your Honor, yes.

One major reason is that there is no violation of the accessory statute unless there is a violation of the principal statute.

So that the appellants’ rights are the same as the patients’ rights, because, if the patients were acting constitutionally, so were the appellants, but there are other reasons.

I think there is no real problem about that.

Byron R. White:

Yes, you are right.

Earl Warren:

Mr. Emerson, do I understand you that, if a couple goes to a doctor and gets this information, that they’ve violated no law, but if they go to a clinic they have?

Thomas I. Emerson:

No, Your Honor.

They would have violated the law if they go to the doctor, but the law has not been enforced against private practitioners, as this Court so held in Poe against Ulmin.

Earl Warren:

It’s never been enforced against anyone, has it, until this case?

Thomas I. Emerson:

Yes, it has been enforced against the clinics since 1937.

Earl Warren:

Was any judgment resolved?

Thomas I. Emerson:

No, Your Honor.

The initial case, State against Nelson, was a criminal case against a doctor and a nurse who were operating one of nine clinics that were then operating in Connecticut.

That was – 1940 was the decision of the Connecticut State —

Earl Warren:

Isn’t that the one that was nolle prosequi when it came back?

Thomas I. Emerson:

That’s correct, Your Honor, but it wasn’t prosecuted because the clinics closed down.

The Waterbury clinic, which was the one involved, closed down, and the other eight closed down, and no clinic has opened in Connecticut since then.

Earl Warren:

It wasn’t closed down when they charged them, and it wasn’t closed down when they got the final judgment of the Supreme Court of Connecticut, was it?

Thomas I. Emerson:

It went up on the demurrer, of course, so that when the Supreme Court of Connecticut ruled that the statute should be interpreted as applying to this situation, even though there was a doctor’s prescription, that settled the legal issue so far as Connecticut was concerned; that it was a violation.

At that point, clinics no longer operated.

Thomas I. Emerson:

I’m not exactly sure when it actually closed down, but the result of the Nelson case, even though there was no ultimate conviction, the result of the Nelson case was to close down all the clinics and this clinic was closed down, or at least the participants were arrested, within ten days after it opened.

Earl Warren:

But how can we say that this law is interpreted by your courts not to apply to doctors who do the same things that this clinic does?

Where in your law or in your decisions can we find that?

Thomas I. Emerson:

No, there’s no difference in the interpretation, Your Honor.

The law would be interpreted to make it a criminal offense for a private practitioner to do this as well as a physician in the clinic.

Earl Warren:

Well, that’s what I understood, but also I understood you to say that a person with means could go to a doctor and get this information because he has the money to pay for it?

Thomas I. Emerson:

That’s right.

Earl Warren:

But that a poor person could not do it.

Now, what do you base that distinction on?

Thomas I. Emerson:

That’s the basis of the Poe case, Your Honor.

It isn’t enforced against doctors.

It isn’t enforced against private practitioners or individuals.

Earl Warren:

Does the State concede that?

Thomas I. Emerson:

I’m not sure, Your Honor what —

Earl Warren:

Well, you must have had some experience with it up to this time, what have they said about that as it’s gone through the courts?

Thomas I. Emerson:

Well, Your Honor, I was not in the earlier stages of the case.

I’m afraid that you’ll have to ask them. [Attempt to Laughter]

Earl Warren:

Very well we —

Byron R. White:

Well, at least it’s not – I gather from the talk about equal protection before, that the issue is not in the record, it was not developed in the record, and that the equal protection argument is not made?

Thomas I. Emerson:

We have not made an equal – no we have not made an equal protection argument as such.

Byron R. White:

And the record doesn’t show whether or not the State enforces it against private doctors?

Thomas I. Emerson:

No, the record does not show that, but that was the basis of Poe against Ulmin, Your Honor.

Arthur J. Goldberg:

Are you coming back to your First Amendment argument, if not, I wanted to ask you a question.

Thomas I. Emerson:

Well, I’m not getting far on any of my arguments [Laughter] but I can’t guarantee that I’ll get back to the First Amendment, no.

Arthur J. Goldberg:

Well, I’ll withdraw the question.

Thomas I. Emerson:

Let me just outline the argument on due process.

It proceeds along two lines.

The first is that this is an enactment of a principle of morality which has no objective relation to any material welfare —

Earl Warren:

Why wouldn’t it, if it relates to morality?

Thomas I. Emerson:

To material welfare, I said, Your Honor.

Earl Warren:

You mean money welfare?

Thomas I. Emerson:

Well, or measurable welfare.

It’s a moral principle; it’s a religious principle that’s being enacted into law, that it is immoral to use contraceptives even within the marriage relation, and therefore it can be made an offense.

That is the aspect of the statute we’re dealing with at this purpose.

And I say that is purely a moral judgment, which cannot be measured by objective circumstances.

There is nothing harmful about a contraceptive devices, either to the individual or to other individuals.

There are – they are useful and important for solving many medical problems.

The woman who cannot have another child without incurring ill health or death has no other solution to that medical problem, no other effective solution, than the use of contraceptive devices or abstinence.

And consequently, there is no moral, there was no objective basis for the statutes in this respect, except the moral principle and we say that the State cannot enact such an abstract moral principle, unless it is one that conforms to current community standards, and that this statute does not.

The Government projects, programs, are widespread at the Federal, state and local level, in which contraceptive devices are used.

The Congress of the United States last session appropriated funds for the District of Columbia to create birth control clinics in the District of Columbia using contraceptive devices.

Hugo L. Black:

How do you measure community standards?

Thomas I. Emerson:

The material on that is developed at some length in our briefs, Your Honor, but the point I’m making now is that, if the Government – it can scarcely be said to be contrary to current community standards if the Government itself does it.

Hugo L. Black:

Are they not National standards?

Thomas I. Emerson:

Well, this was the Federal Congress.

Yes, think this is a case of – I realize there is problem of the national and local standards, and I hope I don’t get involved in that at the moment.[Laughter]

Hugo L. Black:

I don’t understand why you’re saying that if Congress has one standard it thinks should be adopted, the people of Connecticut would be tied down to that standard within their area of power to legislate?

Thomas I. Emerson:

Well, Your Honor, that’s – in the first place, there would be a number of people moving in and out of Connecticut that would be affected.

And I think, for the same reasons that prevail in the obscenity cases, the national standard is the one I think should be applied here.

However, let me simply take a moment to develop the other phase of the due process argument, which is the reasons why we think that using the stricter standards, this nevertheless falls under the doctrine that a law cannot be arbitrary or capricious.

Hugo L. Black:

You insist that that’s what we’ve got to decide this on, as I understand it; that we’ve got a right to set aside state laws that we think are arbitrary and capricious, in our judgment?

Thomas I. Emerson:

In the field of individual liberty, Your Honor, in a field where the laws not only affect important individual rights, but are quite inconsistent and arbitrary in their application – the laws in relation to contraception and abortion and sterilization make no sense whatever —

Hugo L. Black:

Suppose one agrees with you, as I might, does that give me the right to say that Connecticut can’t have a different idea?

Thomas I. Emerson:

No, Your Honor, no.

Obviously, we don’t press the issue that far.

We do say that in the field of individual liberties, and in the field where the individual is entitled to some private sector against which government is forbidden to intrude, in that narrow area, unless the State can make an overwhelming case for intrusion which destroys the right to decide whether to have children voluntarily, whether to be able to maintain health and the very life of the individual, when the State makes decisions which affect those rights, then, unless it has an overwhelming case and I submit that here it doesn’t have that kind of a case and I have not had time to outline the reasons or to catalog the injustices or the absurdities of this statute, but they are set forth in our brief.

I also have not had time to discuss the privacy argument or the First Amendment argument, but I do want to reserve a few minutes for rebuttal.

Earl Warren:

You may, Mr. Emerson.

Mr. Clark?

Joseph B. Clark:

Mr. Chief Justice, if it please the Court.

Joseph B. Clark:

Actually, the issue that this Court is being asked to decide is not a new issue here.

It’s, should the case of State versus Sanger from New York, and should the case of State versus Gardner from Massachusetts, decisions of this Court, be overturned?

In both those cases, this Court was involved with a situation where clinics were being run in which contraceptives were being supplied to people to be used as contraceptives, the same factual situation we have here.

And in both cases, this Court held that this was not a Federal question, this was a question solely within the responsibility of the state legislatures, and it was not a question to be entertained by this Court.

Now —

Did those involve use statutes?

Joseph B. Clark:

They involved sales, if Your Honor please, but the Connecticut court, in the Tilestone case has interpreted the Connecticut statutes, this particular statute, the interplay of these two statutes, as applying to both the user and the provider of the material.

And it’s conceded by all, and I think it was conceded by Mr. Emerson here today, that the statutes in their breadth, with the accessory statute, apply to the situation of sale or providing or disseminating, or however you want to call it —

Byron R. White:

But that’s only for a forbidden purpose?

Joseph B. Clark:

But, if Your Honor please, there’s no other purpose in this case.

Justice Bernnan:

But if in fact these devices are provided for the prevention or treatment of disease, that’s no crime?

Joseph B. Clark:

Now, this is an interesting thing, if Your Honor please, because we have the case in Massachusetts where this argument was made.

Justice Bernnan:

But what about Connecticut?

Joseph B. Clark:

Connecticut has no case at all on the subject.

Justice Bernnan:

Well, I understood, from what Professor Emerson said, that, while it was not directly decided, there were indications in some Connecticut court opinions that this statute would not reach that situation?

Joseph B. Clark:

Well, there may be.

I can’t recall them at this time, if Your Honor please.

I might say this, that it has been held, both in the brief and here today, that there have been no convictions under Connecticut law.

Well, to that I might say that, of course, the Supreme Court of Errors of Connecticut only handles appeals.

Byron R. White:

You do know as a matter of fact whether sales take place, don’t you?

Joseph B. Clark:

Well, I am told that sales take place, if Your Honor please.

It’s on an under-the-counter basis.

It’s the same as the sales of numbers take place.

Byron R. White:

They’re illegal sales?

Joseph B. Clark:

They’re illegal sales, the same as a bookie selling a horserace.

It’s against the law; it’s illegal.

Justice Bernnan:

Do you know if the police have ever done anything about it?

Joseph B. Clark:

There have been convictions.

Byron R. White:

For selling?

Joseph B. Clark:

There have been convictions, if Your Honor please, yes.

Justice Bernnan:

Drugstore selling?

Joseph B. Clark:

Yes.

Now, the thing is, of course, there are no recorded cases on this prior to 1961, and the reason for this is that, prior to 1961, the minor court system of Connecticut consisted of courts in several towns.

You had a J.P. system in some places, you had municipal courts of varying degrees.

But with the circuit court system, all the minor courts, the minor criminal things, misdemeanors, certain felonies, came into being into one place and from now on, from 1961 on, there’s at least a possibility of more records being kept.

Now —

Byron R. White:

What about doctors?

What about doctors prescribing these devices?

Are there cases?

Joseph B. Clark:

There are no cases of any doctors prescribing, either.

The only cases that have ever–

Justice Bernnan:

Have there been any prosecutions of doctors who prescribe?

Joseph B. Clark:

I have never heard of any prosecution of a doctor who prescribed it, Your Honor.

Byron R. White:

Your theory on that is it’s because they’re prescribing for the prevention of disease —

Joseph B. Clark:

If Your Honor please, it seems to me that that argument is completely irrelevant, that they are not in fact prescribing for the prevention of disease.

The prevention of disease is a completely irrelevant argument, in that only certain of these devices could be used for to prevention diseases.

These devices are not in this particular case, but only certain devices could be used to prevent disease.

Now, who could use the devices?

Since Connecticut has laws against fornication and adultery, only married people could use these devices.

In order to get married, you have to have a certificate that you are free from venereal disease; therefore, you couldn’t have the disease beforehand.

The devices can only be used against venereal disease.

This argument of using devices to prevent disease seems to me a ludicrous argument.

Byron R. White:

So if Connecticut permits sale by drugstores, or Connecticut permits prescription by a doctor, it isn’t because of the prevention of disease?

Joseph B. Clark:

Connecticut does not in fact permit.

That is the point.

We cite in our brief, – the other side pointed out that there was a letter to the late Professor Fowler Harper, who had represented the appellants in their case, to the effect that – excuse me, it was from the State Consumer Protection Division now; Pure Food and Drug, I think, was the title then, concerning sales, supplying certain devices that might have been used they claim, and they pointed this out.

As a matter of fact, they pointed this out in the Poe case.

Justice Bernnan:

Well, does this mean that–is it the State’s position that a sale or advice represented to be to prevent disease would be a violation of this statute?

Joseph B. Clark:

If Your Honor please, if it could be honestly–

Justice Bernnan:

Well, would it or wouldn’t?

Joseph B. Clark:

I don’t think it would.

Justice Bernnan:

It would not be —

Joseph B. Clark:

I don’t think it would be, if in fact it happened, but I just can’t see that it could happen, because I don’t see that position.

Hugo L. Black:

Is the device which you’re talking about here described in the record?

If so, what page?

Joseph B. Clark:

If Your Honor please, a device that could be used for prevention of disease —

Hugo L. Black:

I’m talking about this one.

You said this one is not that kind.

Is it described in the record?

I won’t ask you to describe it. [Laughter]

I just want to see where it’s described.

Joseph B. Clark:

They are listed in the findings as exhibits.

I think that is the only place it can be round in the record, the particular things that were given to the particular married women involved in the case.

Hugo L. Black:

They’re adequately described in the record of each of the women they state specifically what each device is?

Joseph B. Clark:

That’s correct, yes.

Earl Warren:

So that we have a record of what device —

Joseph B. Clark:

Yes.

Earl Warren:

And you’re saying that those devices which are described specifically have nothing to do with devices that are sold or described for the prevention of disease?

Joseph B. Clark:

That is exactly my point.

Hugo L. Black:

And that you’re quite correct.

Joseph B. Clark:

That is exactly my point.

Earl Warren:

Well, Mr. Clark, as I recall it, when the Attorney General was here in the Poe case, he disavowed any knowledge of any enforcement of this statute from the standpoint of devices for prevention of disease.

Now, do you have information to the contrary?

Joseph B. Clark:

I’m sorry, Your Honor, I did not get your question.

I am very sorry.

Earl Warren:

When the Poe case was here, the Attorney General of Connecticut, as I recall it, said that he had no knowledge of any enforcement of this statute so far as the selling of apparatus for the prevention of disease, and he admitted there practically that they were sold in all the drugstores in the State.

That’s my recollection; I may be wrong.

Joseph B. Clark:

I think that is undoubtedly the fact, Your Honor.

[Inaudible]

Joseph B. Clark:

They’re sold under the counters there’s no question about it.

Earl Warren:

Well then, why do you say to us here that there is enforcement of it and there have been prosecutions here and there and so forth, if the condition is the same?

Joseph B. Clark:

I say, if Your Honor please, that there is enforcement of it; that if there are sales they are surreptitious sales; that there is enforcement, in that there have been criminal convictions of the statute itself.

Now, perhaps my brother wasn’t able to find them.

Maybe I, in the position of being a prosecutor, was able to find a little better, but I did discover and I wrote to the man who categorizes all offenses, now that we have a statewide system in and I find that there was, in 1961 and in 1962, a conviction, a case that went through all the way on the merits.

Earl Warren:

“All the way,” what do you mean?

Joseph B. Clark:

A guilty finding.

No appeal; the final disposition.

Earl Warren:

I see, I see.

Joseph B. Clark:

Charges on the merits.

Now, I was not able to find out the name of the case or anything else, because it’s just a statistical basis.

I could probably find out, but there is at least one case one year and one case the next, where somebody was convicted of violating this statute.

Earl Warren:

Very well.

We will recess now.