Under New York Educ. Law § 6811 (8) (McKinney 1972) it is a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives.
I
We must address a preliminary question of the standing of the various appellees to maintain the action. We conclude that appellee Population Planning Associates, Inc. (PPA) has the requisite standing and therefore have no occasion to decide the standing of the other appellees.
PPA is a corporation primarily engaged in the mail-order retail sale of nonmedical contraceptive devices from its offices in North Carolina. PPA regularly advertises its products in periodicals published or circulated in New York, accepts orders from New York residents, and fills orders by mailing contraceptives to New York purchasers. Neither the advertisements nor the order forms accompanying them limit availability of PPA's products to persons of any particular age.
Various New York officials have advised PPA that its activities violate New York law. A letter of December 1, 1971, notified PPA that a PPA advertisement in a New York college newspaper violated § 6811 (8), citing each of the three challenged provisions, and requested "future compliance" with the
That PPA has standing to challenge § 6811 (8), not only in its own right but also on behalf of its potential customers, is settled by Craig v. Boren, 429 U.S. 190, 192-197 (1976). Craig held that a vendor of 3.2% beer had standing to challenge in its own right and as advocate for the rights of third persons, the gender-based discrimination in a state statute that prohibited sale of the beer to men, but not to women, between the ages of 18 and 21. In this case, as did the statute in Craig, § 6811 (8) inflicts on the vendor PPA "injury in fact" that satisfies Art. III's case-or-controversy requirement, since "[t]he legal duties created by the statutory sections under challenge are addressed directly to vendors such as [PPA. It] is obliged either to heed the statutory [prohibition], thereby incurring a direct economic injury through the constriction of [its] market, or to disobey the statutory command and suffer" legal sanctions. 429 U. S., at 194.
II
Although "[t]he Constitution does not explicitly mention any right of privacy," the Court has recognized that one aspect of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment is "a right of personal privacy, or a guarantee of certain areas or zones of privacy." Roe v. Wade, 410 U.S. 113, 152 (1973). This right of personal privacy includes "the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600 (1977). While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among
The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, Griswold v. Connecticut, supra, and most prominently vindicated in recent years in the contexts of contraception, Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; and abortion, Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). This is understandable, for in a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive. "If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453. (Emphasis omitted.)
That the constitutionally protected right of privacy extends to an individual's liberty to make choices regarding contraception does not, however, automatically invalidate every state
With these principles in mind, we turn to the question whether the District Court was correct in holding invalid the provisions of § 6811 (8) as applied to the distribution of nonprescription contraceptives.
III
We consider first the wider restriction on access to contraceptives created by § 6811 (8)'s prohibition of the distribution of nonmedical contraceptives to adults except through licensed pharmacists.
Appellants argue that this Court has not accorded a "right of access to contraceptives" the status of a fundamental aspect of personal liberty. They emphasize that Griswold v. Connecticut struck down a state prohibition of the use of contraceptives, and so had no occasion to discuss laws "regulating their manufacture or sale." 381 U. S., at 485. Eisenstadt v. Baird, was decided under the Equal Protection Clause, holding that "whatever the rights of the individual to access to contraceptives
The fatal fallacy in this argument is that it overlooks the underlying premise of those decisions that the Constitution protects "the right of the individual . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child." Id., at 453. Griswold did state that by "forbidding the use of contraceptives rather than regulating their manufacture or sale," the Connecticut statute there had "a maximum destructive impact" on privacy rights. 381 U. S., at 485. This intrusion into "the sacred precincts of marital bedrooms" made that statute particularly "repulsive." Id., at 485-486. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the "decision whether to bear or beget a child." 405 U. S., at 453 (emphasis added). Similarly, Roe v. Wade, held that the Constitution protects "a woman's decision whether or not to terminate her pregnancy." 410 U. S., at 153 (emphasis added). See also Whalen v. Roe, supra, at 599-600, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.
Restrictions on the distribution of contraceptives clearly burden the freedom to make such decisions. A total prohibition against sale of contraceptives, for example, would intrude
An instructive analogy is found in decisions after Roe v. Wade, supra, that held unconstitutional statutes that did not prohibit abortions outright but limited in a variety of ways a woman's access to them. Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). See also Bigelow v. Virginia, 421 U.S. 809 (1975). The significance of these cases is that they establish that the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation "may be justified only by a `compelling state interest' . . . and . . . must be narrowly drawn to express only the legitimate state interests at stake." Roe v. Wade, supra, at 155.
Limiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so. Eisenstadt v. Baird, supra, at 461-464 (WHITE, J., concurring in result). The burden is, of course, not as great as that under a total ban on distribution. Nevertheless, the restriction of distribution channels to a small fraction of the total number of possible retail outlets renders contraceptive devices considerably less accessible to the public, reduces the opportunity for privacy of selection and purchase,
There remains the inquiry whether the provision serves a compelling state interest. Clearly "interests . . . in maintaining medical standards, and in protecting potential life," Roe v. Wade, 410 U. S., at 154, cannot be invoked to justify this statute. Insofar as § 6811 (8) applies to nonhazardous contraceptives,
Appellants therefore suggest that § 6811 (8) furthers other state interests. But none of them is comparable to those the Court has heretofore recognized as compelling. Appellants argue that the limitation of retail sales of nonmedical contraceptives to pharmacists (1) expresses "a proper concern that young people not sell contraceptives"; (2) "allows purchasers to inquire as to the relative qualities of the varying products and prevents anyone from tampering with them"; and (3) facilitates enforcement of the other provisions of the statute. Brief for Appellants 14. The first hardly can justify the statute's incursion into constitutionally protected rights, and
IV12
A
The District Court also held unconstitutional, as applied to nonprescription contraceptives, the provision of § 6811 (8) prohibiting the distribution of contraceptives to those under
The question of the extent of state power to regulate conduct of minors not constitutionally regulable when committed by adults is a vexing one, perhaps not susceptible of precise answer. We have been reluctant to attempt to define "the totality of the relationship of the juvenile and the state." In re Gault, 387 U.S. 1, 13 (1967). Certain principles, however, have been recognized. "Minors, as well as adults, are protected by the Constitution and possess constitutional rights." Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 74. "[W]hatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, supra, at 13.
Appellants argue, however, that significant state interests are served by restricting minors' access to contraceptives, because free availability to minors of contraceptives would lead to increased sexual activity among the young, in violation of the policy of New York to discourage such behavior.
Moreover, there is substantial reason for doubt whether limiting access to contraceptives will in fact substantially discourage early sexual behavior. Appellants themselves conceded in the District Court that "there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives," 398 F. Supp., at 332, and n. 10, and accordingly offered none, in the District Court or here. Appellees, on the other hand, cite a considerable body of evidence and opinion indicating that there is no such deterrent effect.
B
Appellants argue that New York does not totally prohibit distribution of contraceptives to minors under 16, and that accordingly § 6811 (8) cannot be held unconstitutional. Although § 6811 (8) on its face is a flat unqualified prohibition, Educ. Law § 6807 (b) (McKinney, Supp. 1976-1977), see nn. 1, 7, and 13, supra, provides that nothing in Education Law §§ 6800-6826 shall be construed to prevent "[a]ny physician . . . from supplying his patients with such drugs as [he] . . . deems proper in connection with his practice." This narrow exception, however, does not save the statute. As we have held above as to limitations upon distribution to adults, less than total restrictions on access to contraceptives that significantly burden the right to decide whether to bear children must also pass constitutional scrutiny. Appellants assert no medical necessity for imposing a medical limitation on the distribution of nonprescription contraceptives to minors. Rather, they argue that such a restriction serves to emphasize to young people the seriousness with which the State views the decision to engage in sexual intercourse at an early age.
V
The District Court's holding that the prohibition of any "advertisement or display" of contraceptives is unconstitutional was clearly correct. Only last Term Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), held that a State may not "completely suppress the dissemination of concededly truthful information about entirely lawful activity," even when that information could be categorized as "commercial speech." Id., at 773. Just as in that case, the statute challenged here seeks to suppress completely any information about the availability and price of contraceptives.
Appellants contend that advertisements of contraceptive products would be offensive and embarrassing to those exposed to them, and that permitting them would legitimize sexual activity of young people. But these are classically not justifications validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression. See, e. g., Cohen v. California, 403 U.S. 15 (1971).
Affirmed.
THE CHIEF JUSTICE dissents.
MR. JUSTICE WHITE, concurring in part and concurring in the result.
I join Parts I, III, and V of the Court's opinion and concur in the result with respect to Part IV.
Although I saw no reason in Eisenstadt v. Baird, 405 U.S. 438 (1972), to reach "the novel constitutional question whether a State may restrict or forbid the distribution of contraceptives to the unmarried," id., at 465 (concurring in result), four of the seven Justices participating in that case held that in this respect the rights of unmarried persons were equal to those of the married. Given Eisenstadt and given the decision of the Court in the abortion case, Roe v. Wade, 410 U.S. 113 (1973), the result reached by the Court in Part III of its opinion appears warranted. I do not regard the opinion, however, as declaring unconstitutional any state law forbidding extramarital sexual relations. On this assumption I join Part III.
I concur in the result in Part IV primarily because the State has not demonstrated that the prohibition against distribution of contraceptives to minors measurably contributes to the deterrent purposes which the State advances as justification for the restriction. Again, however, the legality of state laws forbidding premarital intercourse is not at issue here; and, with MR. JUSTICE STEVENS, "I would describe as
In joining Part V of the Court's opinion, I should also say that I agree with the views of MR. JUSTICE STEVENS expressed in Part II of his separate opinion.
MR. JUSTICE POWELL, concurring in part and concurring in the judgment.
I agree that Population Planning Associates has standing to maintain this action, and therefore join Part I of the Court's opinion. Although I concur in the judgment of the Court, I am not persuaded that the Constitution requires the severe constraints that the Court's opinion places upon legislative efforts to regulate the distribution of contraceptives, particularly to the young.
I
The Court apparently would subject all state regulation affecting adult sexual relations to the strictest standard of judicial review. Under today's decision, such regulation "may be justified only by compelling state interests, and must be narrowly drawn to express only those interests." Ante, at 686. Even regulation restricting only the sexual activity of the young must now be justified by a "significant state interest," a standard that is "apparently less rigorous" than the standard the Court would otherwise apply. Ante, at 693 n. 15. In my view, the extraordinary protection the Court would give to all personal decisions in matters of sex is neither required by the Constitution nor supported by our prior decisions.
A
The cases on which the Court relies for its "compelling interest" standard do not support the sweeping principle it adopts today. Those cases generally involved direct and substantial
The Court relies on Planned Parenthood, supra, and Doe v. Bolton, 410 U.S. 179 (1973), for the proposition that "the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely." Ante, at 688. But neither of those cases refers to the "compelling state interest" test. In Bolton, the Court invalidated procedural requirements of the Georgia abortion statute that were found not "reasonably related" to the asserted legislative purposes or to the "patient's needs." 410 U. S., at 194, 199. Planned Parenthood involved— in addition to the "absolute obstacle" referred to above—the Missouri requirement of prior written consent by the pregnant woman. Despite the fact that Missouri normally did not require written consent for other surgical procedures, the Court
In sum, the Court quite unnecessarily extends the reach of cases like Griswold and Roe. Neither our precedents nor sound principles of constitutional analysis require state legislation to meet the exacting "compelling state interest" standard whenever it implicates sexual freedom. In my view, those cases make clear that that standard has been invoked only when the state regulation entirely frustrates or heavily burdens the exercise of constitutional rights in this area. See Bellotti v. Baird, 428 U.S. 132, 147 (1976). This is not to say that other state regulation is free from judicial review. But a test so severe that legislation rarely can meet it should be imposed by courts with deliberate restraint in view of the respect that properly should be accorded legislative judgments.
B
There is also no justification for subjecting restrictions on the sexual activity of the young to heightened judicial review. Under our prior cases, the States have broad latitude to legislate with respect to adolescents. The principle is well settled that "a State may permissibly determine that, at least in some precisely delineated areas, a child . . . is not possessed of that full capacity for individual choice" which is essential to the exercise of various constitutionally protected interests. Ginsberg v. New York, 390 U.S. 629, 649-650 (1968) (STEWART, J., concurring in result). This principle is the premise of our prior decisions, ostensibly reaffirmed by the plurality, ante, at 692, holding that "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
New York has exercised its responsibility over minors in areas falling within the "cluster of constitutionally protected choices" relating to sex and marriage. Ante, at 685. It has set an age limitation below which persons cannot marry without parental consent, N. Y. Dom. Rel. Law §§ 15, 15-a (McKinney 1964 and Supp. 1976-1977), and has established by statute the age at which a minor is legally recognized as having the capacity to consent to sexual activity, Penal Law § 130.05 (3) (a) (McKinney 1975). See also Penal Law §§ 130.25, 130.30, 130.35 (McKinney 1975). These provisions highlight the State's concern that its juvenile citizens generally lack the maturity and understanding necessary to make decisions concerning marriage and sexual relationships.
Until today, I would not have thought it was even arguably necessary to review state regulation of this sort under a standard that for all practical purposes approaches the "compelling state interest" standard. At issue in Ginsberg v. New York, supra, for example, was the question of the constitutionality on its face of a New York criminal obscenity statute which prohibited the sale to minors of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults. The Court recognized that "the State has
II
With these considerations in mind, I turn to the specific provisions of the New York statute limiting the distribution of contraceptives.
A
New York has made it a crime for anyone other than a physician to sell or distribute contraceptives to minors under the age of 16 years. Educ. Law § 6811 (8) (McKinney 1972). This element of New York's program of regulation for the protection of its minor citizens is said to evidence the State's judgment that the health and well-being of minors would be better assured if they are not encouraged to engage in sexual intercourse without guidance. Although I have no doubt that properly framed legislation serving this purpose would meet constitutional standards, the New York provision is defective in two respects. First, it infringes the privacy interests of married females between the ages of 14 and 16, see ante, at 695 n. 18, in that it prohibits the distribution of contraceptives to such females except by a physician. In authorizing marriage at that age, the State also sanctions sexual intercourse between the partners and expressly recognizes that once the marriage relationship exists the husband and
Second, this provision prohibits parents from distributing contraceptives to their children, a restriction that unjustifiably interferes with parental interests in rearing their children. Cf. Ginsberg v. New York, 390 U. S., at 639 and n. 7. "[C]onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. `It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' " Ibid., quoting Prince v. Massachusetts, supra, at 166. See Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923). Moreover, this statute would allow the State "to enquire into, prove, and punish," Poe v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J., dissenting), the exercise of this parental responsibility. The State points to no interest of sufficient magnitude to justify this direct interference with the parental guidance that is especially appropriate in this sensitive area of child development.
Requiring minors to seek parental guidance would be consistent with our prior cases. In Planned Parenthood, we considered whether there was "any significant state interest in conditioning [a minor's] abortion [decision] on the consent of a parent or person in loco parentis that is not present in the case of an adult." 428 U. S., at 75. Observing that the minor necessarily would be consulting with a physician on all aspects of the abortion decision, we concluded that the Missouri requirement was invalid because it imposed
A requirement of prior parental consultation is merely one illustration of permissible regulation in this area. As long as parental distribution is permitted, a State should have substantial latitude in regulating the distribution of contraceptives to minors.
B
New York also makes it a crime for anyone other than a licensed pharmacist to sell or distribute contraceptives to adults and to minors aged 16 or over. The only serious justification offered by the State for this prohibition is that it is necessary to facilitate enforcement of the limitation on distribution to children under 16 years of age. Since the Court invalidates that limitation today, the pharmacy restriction lacks any rational justification. I therefore agree with the Court that § 6811 (8)'s limitation on the distribution of nonprescription contraceptives cannot be sustained.
But even if New York were to enact constitutionally permissible limitations on access for children, I doubt that it could justify the present pharmacy restriction as an enforcement measure. Restricting the kinds of retail outlets that may distribute
III
I also agree with the Court that New York cannot lawfully prohibit all "advertisement or display" of contraceptives. But it seems to me that the Court's opinion may be read too broadly. It flatly dismisses, as justifications "classically" irrelevant, the State's contentions that the indiscriminate advertisement of contraceptive products in some settings could be unduly offensive and could be viewed by the young as legitimation of sexual promiscuity. I agree that these justifications
MR. JUSTICE STEVENS, concurring in part and concurring in the judgment.
For the reasons stated in Parts I, II, and III of the opinion of the Court, which I join, I agree that Population Planning Associates, Inc., has standing to challenge the New York statute and that the grant to licensed pharmacists of a monopoly in the distribution of nonmedical contraceptives is unconstitutional. I also agree with the conclusion that New York's prohibition against the distribution of contraceptives to persons under 16 years of age is unconstitutional, and with the Court's conclusion that the total suppression of advertising or display of contraceptives is invalid, but my reasons differ from those set forth in Part IV of MR. JUSTICE BRENNAN'S
I
There are two reasons why I do not join Part IV. First, the holding in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 72-75, that a minor's decision to abort her pregnancy may not be conditioned on parental consent, is not dispositive here. The options available to the already pregnant minor are fundamentally different from those available to nonpregnant minors. The former must bear a child unless she aborts; but persons in the latter category can and generally will avoid childbearing by abstention. Consequently, even if I had joined that part of Planned Parent-hood, I could not agree that the Constitution provides the same measure of protection to the minor's right to use contraceptives as to the pregnant female's right to abort.
Second, I would not leave open the question whether there is a significant state interest in discouraging sexual activity among unmarried persons under 16 years of age. Indeed, I would describe as "frivolous" appellees' argument that a minor has the constitutional right to put contraceptives to their intended use, notwithstanding the combined objection of both parents and the State.
For the reasons explained by MR. JUSTICE POWELL, I agree that the statute may not be applied to married females between the ages of 14 and 16, or to distribution by parents. I am not persuaded, however, that these glaring defects alone justify an injunction against other applications of the statute. Only one of the three plaintiffs in this case is a parent who wishes to give contraceptives to his children. The others are an Episcopal minister who sponsors a program against venereal disease, and a mail-order firm, which presumably has no way to determine the age of its customers. I am satisfied, for the reasons that follow, that the statute is also invalid as applied to them.
Common sense indicates that many young people will engage in sexual activity regardless of what the New York Legislature does; and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or unavailability of contraceptives. Although young persons theoretically may avoid those harms by practicing total abstention, inevitably many will not. The statutory prohibition denies them and their parents a choice which, if available, would reduce their exposure to disease or unwanted pregnancy.
Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate. The propaganda technique used in this case significantly increases the risk of unwanted pregnancy and venereal disease. It is as though a State decided to dramatize its disapproval of motorcycles by forbidding the use of safety helmets. One need not posit a constitutional right to ride a motorcycle to characterize such a restriction as irrational and perverse.
Even as a regulation of behavior, such a statute would be defective. Assuming that the State could impose a uniform
II
In Part V of its opinion, the Court holds that New York's total ban on contraceptive advertising is unconstitutional under Bigelow v. Virginia, 421 U.S. 809, and Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748. Specifically, the Court holds that all contraceptive advertising may not be suppressed because some advertising of that subject may be offensive and embarrassing to the reader or listener. I also agree with that holding.
The Court properly does not decide whether the State may impose any regulation on the content of contraceptive advertising in order to minimize its offensive character. I have joined Part V of the opinion on the understanding that it does not foreclose such regulation simply because an advertisement is within the zone protected by the First Amendment.
The fact that a type of communication is entitled to some constitutional protection does not require the conclusion that it is totally immune from regulation. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 65-71 (opinion of STEVENS, J.). An editorial and an advertisement in the same newspaper may contain misleading matter in equal measure. Although each is a form of protected expression, one may be censored while the other may not.
In the area of commercial speech—as in the business of exhibiting motion pictures for profit—the offensive character of
I concur in the judgment and in Parts I, II, III, and V of the Court's opinion.
MR. JUSTICE REHNQUIST, dissenting.
Those who valiantly but vainly defended the heights of Bunker Hill in 1775 made it possible that men such as James Madison might later sit in the first Congress and draft the Bill of Rights to the Constitution. The post-Civil War Congresses which drafted the Civil War Amendments to the Constitution could not have accomplished their task without the blood of brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men's room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction.
No questions of religious belief, compelled allegiance to a secular creed, or decisions on the part of married couples as to procreation, are involved here. New York has simply decided that it wishes to discourage unmarried minors under 16 from having promiscuous sexual intercourse with one another. Even the Court would scarcely go so far as to say that this is not a subject with which the New York Legislature may properly concern itself.
That legislature has not chosen to deny to a pregnant woman, after the fait accompli of pregnancy, the one remedy
FootNotes
"It shall be a class A misdemeanor for:
.....
"8. Any person to sell or distribute any instrument or article, or any recipe, drug or medicine for the prevention of contraception to a minor under the age of sixteen years; the sale or distribution of such to a person other than a minor under the age of sixteen years is authorized only by a licensed pharmacist but the advertisement or display of said articles, within or without the premises of such pharmacy, is hereby prohibited."
After some dispute in the District Court the parties apparently now agree that Education Law § 6807 (b) (McKinney 1972) constitutes an exception to the distribution prohibitions of § 6811 (8). Section 6807 (b) provides:
"This article shall not be construed to affect or prevent:
.....
"(b) Any physician . . . who is not the owner of a pharmacy, or registered store, or who is not in the employ of such owner, from supplying his patients with such drugs as the physician . . . deems proper in connection with his practice . . . ."
The definition of "drugs" in Education Law § 6802 (7) (McKinney 1972) apparently includes any contraceptive drug or device. See nn. 7, 13, and 23, and text, infra, at 697-699. See also 398 F.Supp. 321, 329-330, and n. 8.
The appellants here, defendants in the District Court, are state officials responsible for the enforcement of the Education Law provisions.
Even more significantly, when § 6811 (8) was first enacted as Penal Law § 1142 (2), it was not subject to the physicians' exception of § 6807 (b). Rather, it was apparently subject to a different physicians' exception, former Penal Law § 1145 (§ 321 of the Penal Code of 1881), which provided:
"An article or instrument, used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this chapter. The supplying of such articles to such physicians or by their direction or prescription, is not an offense under this chapter."
This was interpreted by the New York Court of Appeals to permit a physician "in good faith" to use contraceptives to treat "a married person to cure or prevent disease," but not to permit "promiscuous advice to patients irrespective of their condition." People v. Sanger, 222 N.Y. 192, 194-195, 118 N. E. 637, 637-638 (1918), appeal dismissed for lack of jurisdiction, 251 U.S. 537 (1919) (per curiam). See also People v. Byrne, 99 Misc. 1, 163 N.Y.S. 682 (1917); People v. Baird, 47 Misc.2d 478, 262 N.Y.S.2d 947 (1965).
In light of this history, it appears that insofar as the legislature had § 6807 (b) in mind at all when it transferred the prohibition of distribution of contraceptives to those under 16 from the Penal Law to the Education Law, it thought of that section as at most a narrow exception, analogous to § 1145, permitting physicians, "in connection with [their] practice," to treat or prevent disease, rather than, as appellants assert, intending that §§ 6807 (b) and 6811 (8) be read together as establishing a scheme under which contraceptives would be freely available to those under 16, but limiting the distribution function to physicians. The legislative history of attempts in 1972 and 1974 to modify § 6811 (8), to which appellants refer, supports this construction. The legislators debating those bills seem to have thought of § 6811 (8) as a flat prohibition of the distribution of contraceptives to minors, and made no reference to § 6807 (b).
"Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant." 428 U. S., at 102.
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