Carey v. Population Services International

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

No. 75-443 Argued: January 10, 1977 --- Decided: June 9, 1977
MR. JUSTICE BRENNAN delivered the opinion of the Court (Parts I, II, III, and V), together with an opinion (Part IV), in which MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN Joined.

Under New York Educ. Law $ 6811(8) (McKinney 1972), it is a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives. [n1] A three-judge District Court for the Southern District of New York declared $ 6811(8) unconstitutional in its entirety under the First and Fourteenth Amendments of the [p682] Federal Constitution insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied. 398 F.Supp. 321 (1975). We noted probable jurisdiction, 426 U.S. 918 (1976). We affirm.

I

We must address a preliminary question of the standing of the various appellees to maintain the action. We conclude that appellee Population Planning Associates, Inc. (PPA) has the requisite standing, and therefore have no occasion to decide the standing of the other appellees. [n2]

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 [p683] law. A second letter, dated February 23, 1973, notifying PPA that PPA's magazine advertisements of contraceptives violated the statute, referred particularly to the provisions prohibiting sales to minors and sales by nonpharmacists, and threatened: "In the event you fail to comply, the matter will be referred to our Attorney General for legal action." Finally, PPA was served with a copy of a report of inspectors of the State Board of Pharmacy, dated September 4, 1974, which recorded that PPA advertised male contraceptives, and had been advised to cease selling contraceptives in violation of the state law.

That PPA has standing to challenge $ 6811(8) not only in its own right, but also on behalf of its potential customers, is settled by Craig v. Boren, 429 U.S. 190, 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. [n3] Therefore, [p684] PPA is among the

vendors and those in like positions [who] have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or function.

Id. at 195. See also Eisenstadt v. Baird, 405 U.S. 438, 443-446 (1972); Sullivan v. Little Hunting Park, 396 U.S. 229, 237 (1969); Barrows v. Jackson, 346 U.S. 249, 257-260 (1953). As such, PPA "is entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected' should [its] constitutional challenge fail." Craig v. Boren, supra at 195, quoting Griswold v. Connecticut, 381 U.S. 479, 481 (1965). [n4]

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." 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 [p685] the decisions that an individual may make without unjustified government interference are personal decisions

relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, [262 U.S. 390, 399 (1923)].

Roe v. Wade, supra at 410 U.S. 152, 152-153. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974).

The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, Griswold v. Connecticut, supra, and most prominently vindicated in recent years in the contexts of contraception, Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; and abortion, Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). This is understandable, for in a field that, by definition, concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive.

If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Eisenstadt v. Baird, supra at 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 [p686] regulation in this area. The business of manufacturing and selling contraceptives may be regulated in ways that do not infringe protected individual choices. And even a burdensome regulation may be validated by a sufficiently compelling state interest. In Roe v. Wade, for example, after determining that the "right of privacy . . . encompass[es] a woman's decision whether or not to terminate her pregnancy," 410 U.S. at 153, we cautioned that the right is not absolute, and that certain state interests (in that case, "interests in safeguarding health, in maintaining medical standards, and in protecting potential life") may at some point "become sufficiently compelling to sustain regulation of the factors that govern the abortion decision." Id. at 154. "Compelling" is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Id. at 155-156, and cases there cited.

With these principles in mind, we turn to the question whether the District Court was correct in holding invalid the provisions of § 6811(8) as applied to the distribution of nonprescription contraceptives.

III

We consider first the wider restriction on access to contraceptives created by § 6811(8)'s prohibition of the distribution of nonmedical contraceptives to adults except through licensed pharmacists.

Appellants argue that this Court has not accorded a "right of access to contraceptives" the status of a fundamental aspect of personal liberty. They emphasize that Griswold v. Connecticut struck down a state prohibition of the use of contraceptives, and so had no occasion to discuss laws "regulating their manufacture or sale." 381 U.S. at 485. Eisenstadt v. Bard was decided under the Equal Protection Clause, holding that "whatever the rights of the individual to access to contraceptives [p687] may be, the rights must be the same for the unmarried and the married alike." 405 U.S. at 453. Thus appellants argue that neither case should be treated as reflecting upon the State's power to limit or prohibit distribution of contraceptives to any persons, married or unmarried. But see id. at 463-464 (WHITE, J., concurring in result).

The fatal fallacy in this argument is that it overlooks the underlying premise of those decisions that the Constitution protects

the right of the individual . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.

Id. at 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 [p688] upon individual decisions in matters of procreation and contraception as harshly as a direct ban on their use. Indeed, in practice, a prohibition against all sales, since more easily and less offensively enforced, might have an even more devastating effect upon the freedom to choose contraception. Cf. Poe v. Ullman, 367 U.S. 497 (1961).

An instructive analogy is found in decisions after Roe v. Wade, supra, that held unconstitutional statutes that did not prohibit abortions outright but limited in a variety of ways a woman's access to them. Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). See also Bigelow v. Virginia, 421 U.S. 809 (1975). The significance of these cases is that they establish that the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation

may be justified only by a "compelling state interest" . . . , and . . . must be narrowly drawn to express only the legitimate state interests at stake.

Roe v. Wade, supra at 155. [n5] See also Eisentadt v. Baird, 405 U.S. at 463 (WHITE, J., concurring in result). This is so not because there is an independent fundamental "right of access to contraceptives," but because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing that is the [p689] underlying foundation of the holdings in Griswold, Eisenstadt v. Baird, and Roe v. Wade.

Limiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so. Eisenstadt v. Baird, supra at 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, [n6] and lessens the possibility of price competition. [n7] Cf. Griswold v. Connecticut, 381 U.S. at 503 (WHITE, J., concurring in judgment). Of particular relevance here is Doe v. Bolton, supra, in which the Court struck down, as unconstitutionally burdening the right of a woman to choose abortion, a statute requiring that abortions be performed only in accredited hospitals, in the absence of proof that the requirement was substantially related to the State's interest in protecting the patient's health. 410 U.S. at 193-195. The same infirmity infuses the limitation in § 6811(8).

Just as in Griswold, where the right of married persons to use contraceptives was "diluted or adversely affected" by permitting a [p690] conviction for giving advice as to its exercise, . . . so here, to sanction a medical restriction upon distribution of a contraceptive not proved hazardous to health would impair the exercise of the constitutional right.

Eisenstadt v. Baird, 405 U.S. at 464 (WHITE, J., concurring in result).

There remains the inquiry whether the provision serves a compelling state interest. Clearly, "interests . . . in maintaining medical standards, and in protecting potential life," Roe v. Wade, 410 U.S. at 154, cannot be invoked to justify this statute. Insofar as § 6811(8) applies to nonhazardous contraceptives, [n8] it bears no relation to the State's interest in protecting health. Eisenstadt v. Baird, supra at 450-452; 463-464 (WHITE, J., concurring in result). [n9] Nor is the interest in protecting potential life implicated in state regulation of contraceptives. Roe v. Wade, supra at 163-164.

Appellants therefore suggest that § 6811(8) furthers other state interests. But none of them is comparable to those the Court has heretofore recognized as compelling. Appellants argue that the limitation of retail sales of nonmedical contraceptives to pharmacists (1) expresses "a proper concern that young people not sell contraceptives"; (2) "allows purchasers to inquire as to the relative qualities of the varying products and prevents anyone from tampering with them"; and (3) facilitates enforcement of the other provisions of the statute. Brief for Appellants 14. The first hardly can justify the statute's incursion into constitutionally protected rights, and, [p691] in any event, the statute is obviously not substantially related to any goal of preventing young people from selling contraceptives. [n10] Nor is the statute designed to serve as a quality control device. Nothing in the record suggests that pharmacists are particularly qualified to give advice on the merits of different nonmedical contraceptives, or that such advice is more necessary to the purchaser of contraceptive products than to consumers of other nonprescription items. Why pharmacists are better able or more inclined than other retailers to prevent tampering with prepackaged products, or, if they are, why contraceptives are singled out for this special protection, is also unexplained. [n11] As to ease of enforcement, the prospect of additional administrative inconvenience has not been thought to justify invasion of fundamental constitutional rights. See, e.g., Morrssey v. Brewer, 408 U.S. 471 (1972); Gloldberg v. Kelly, 397 U.S. 254 (1970).

IV [n12]
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 [p692] 16 years of age. [n13] Appellants contend that this provision of the statute is constitutionally permissible as a regulation of the morality of minors, in furtherance of the State's policy against promiscuous sexual intercourse among the young.

The question of the extent of state power to regulate conduct of minors not constitutionally regulable when committed by adults is a vexing one, perhaps not susceptible of precise answer. We have been reluctant to attempt to define "the totality of the relationship of the juvenile and the state." In re Gault, 387 U.S. 1, 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. [n14] On the other hand, we have held in a variety of contexts that "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." Prince v. Massachusetts, 321 U.S. 158, 170 (1944). See Ginsberg v. New York, 390 U.S. 629 (1968). See also McKeiver v. Pennsylvania, 403 U.S. 528 (1971). [p693]

Of particular significance to the decision of this case, the right to privacy in connection with decisions affecting procreation extends to minors, as well as to adults. Planned Parenthood of Central Missouri v. Danforth, supra, held that a State

may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy.

428 U.S. at 74. As in the case of the spousal consent requirement struck down in the same case, id. at 67-72, "the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto," id. at 74, "‘which the state itself is absolutely and totally prohibited from exercising.'" Id. at 69. State restrictions inhibiting privacy rights of minors are valid only if they serve "any significant state interest . . . that is not present in the case of an adult." Id. at 75. [n15] Planned Parenthood found that no such interest justified a state requirement of parental consent. [n16] [p694]

Since the State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. The State's interests in protection of the mental and physical health of the pregnant minor, and in protection of potential life are clearly more implicated by the abortion decision than by the decision to use a nonhazardous contraceptive.

Appellants argue, however, that significant state interests are served by restricting minors' access to contraceptives, because free availability to minors of contraceptives would lead to increased sexual activity among the young, in violation of the policy of New York to discourage such behavior. [n17] The argument is that minors' sexual activity may be deterred by increasing the hazards attendant on it. The same argument, however, would support a ban on abortions for minors, or indeed support a prohibition on abortions, or access to contraceptives, for the unmarried, whose sexual activity is also against the public policy of many State. Yet, in each of these areas, the Court has rejected the argument, noting in Roe v. Wade that "no court or commentator has taken the argument seriously." 410 [p695] U.S. at 148. The reason for this unanimous rejection was stated in Eisenstadt v. Baird:

It would be plainly unreasonable to assume that [the State] has prescribed pregnancy and the birth of an unwanted child [or the physical and psychological dangers of an abortion] as punishment for fornication.

405 U.S. at 448. We remain reluctant to attribute any such "scheme of values" to the State. [n18]

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. [n19] Although we take judicial notice, as did the [p696] District Court, id. at 331-333, that with or without access to contraceptives, the incidence of sexual activity among minors is high, [n20] and the consequence of such activity are frequently devastating, [n21] the studies cited by appellees play no part in our decision. It is enough that we again confirm the principle that, when a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some significant state policy requires more than a bare assertion, based on a conceded complete absence of supporting evidence, that the burden is connected to such a policy. [n22] [p697]

B

Appellants argue that New York does not totally prohibit distribution of contraceptives to minors under 16, and that, accordingly, § 611(8) cannot be held unconstitutional. Although § 6811(8), on its face, is a flat unqualified prohibition, Educ.Law § 6807(b) (McKinney, Supp. 1976 1977), see nn. 1, 7, and 13, supra, provides that nothing in Education Law §§ 6800-6826 shall be construed to prevent "[a]ny physician . . . from supplying his patients with such drugs as [he] . . . deems proper in connection with his practice." This narrow exception, however, does not save the statute. As we have held above as to limitations upon distribution to adults, less than total restrictions on access to contraceptives that significantly burden the right to decide whether to bear children must also pass constitutional scrutiny. Appellants assert no medical necessity for imposing a medical limitation on the distribution of nonprescription contraceptives to minors. Rather, they argue that such a restriction serves to emphasize to young people the seriousness with which the State views the decision to engage in sexual intercourse at an early age. [n23] But this is only another form of the [p698] argument that juvenile sexual conduct will be deterred by making contraceptives more difficult to obtain. Moreover, that argument is particularly poorly suited to the restriction [p699] appellants are attempting to justify, which on appellants' construction delegates the State's authority to disapprove of minors' sexual behavior to physicians, who may exercise it arbitrarily, [n24] either to deny contraceptives to young people, or to undermine the State's policy of discouraging illicit early sexual behavior. This the State may not do. Cf. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 69, 74. [n25] [p700]

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. [n26] Nor does the case present any question left open in Virginia Pharmacy Bd.; here, as there, there can be no contention that the regulation is "a mere time, place, and manner restriction," id. at 771, or that it prohibits only misleading or deceptive advertisements, ibid., or

that the transactions proposed in the forbidden advertisements are themselves illegal in any way. Cf. Pittsburgh Press Co. v. Human Relations Comm'n, [413 U.S. 376 (1973)].

Id. at 772-773. Moreover, in addition to the "substantial individual and societal interests" in the free flow of commercial information enumerated in Virginia Pharmacy Bd., supra at 763-766, the [p701] information suppressed by this statute "related to activity with which, at least in some respects, the State could not interfere." 425 U.S. at 760. Cf. Bigelow v. Virginia, 421 U.S. 809 (1975).

Appellants contend that advertisements of contraceptive products would be offensive and embarrassing to those exposed to them, and that permitting them would legitimize sexual activity of young people. But these are classically not justifications validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression. See, e.g., Cohen v. California, 403 U.S. 15"]403 U.S. 15 (1971). [n27] As for the possible "legitimation" of illicit sexual behavior, whatever might be the case if the advertisements directly incited illicit sexual activity among the young, none of the advertisements in this record can even remotely be characterized as "directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." 403 U.S. 15 (1971). [n27] As for the possible "legitimation" of illicit sexual behavior, whatever might be the case if the advertisements directly incited illicit sexual activity among the young, none of the advertisements in this record can even remotely be characterized as "directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). They merely state the availability of products and services that are not only entirely legal, cf. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973), but constitutionally protected. Cf. Bigelow v. Virginia, supra. [n28] These arguments [p702] therefore do not justify the total suppression of advertising concerning contraceptives. [n29]

Affirmed.

THE CHIEF JUSTICE dissents.

1. Section 6811(8) provides:

It shall-be a class A misdemeanor for:

* * * *

8. Any person to sell or distribute any instrument or article, or any recipe, drug or medicine for the prevention of contraception to a minor under the age of sixteen years; the sale or distribution of such to a person other than a minor under the age of sixteen years is authorized only by a licensed pharmacist but the advertisement or display of said articles, within or without the premises of such pharmacy, is hereby prohibited.

After some dispute in the District Court the parties apparently now agree that Education Law $ 6807(b) (McKinney 1972) constitutes an exception to the distribution prohibitions of 6811(8). Section 6807(b) provides:

This article shall not be construed to affect or prevent:

* * * *

(b) Any physician . . . who is not the owner of a pharmacy, or registered store, or who is not in the employ of such owner, from supplying his patients with such drugs as the physician . . . deems proper in connection with his practice. . . .

The definition of "drugs" in Education Law $ 6802(7) (McKinney 1972) apparently includes any contraceptive drug or device. See nn. 7, 13, and 23, and text, infra at 697-699. See also 398 F.Supp. 321, 329-330, and n. 8.

2. In addition to PPA, the plaintiffs in the District Court, appellees here, are Population Services International, a nonprofit corporation disseminating birth control information and services; Rev. James B. Hagen, a minister and director of a venereal disease prevention program that distributes contraceptive devices; three physicians specializing in family planning, pediatrics, and obstetrics-gynecology; and an adult New York resident who alleges that the statute inhibits his access to contraceptive devices and information, and his freedom to distribute the same to his minor children. The District Court held that PPA and Hagen had standing, and therefore found it unnecessary to decide the standing of the other plaintiffs. Id. at 327-330.

The appellants here, defendants in the District Court, are state officials responsible for the enforcement of the Education Law provisions.

3. Appellants contend that PPA has not suffered "injury in fact" because it has not shown that prosecution under $ 6811(8) is imminent. Steffel v. Thompson, 415 U.S. 452, 459-460 (1974), is dispositive of this argument. PPA alleges that it has violated the challenged statute in the past, and continues to violate it in the regular course of its business; that it has been advised by the authorities responsible for enforcing the statute that it is in violation; and that, on at least one occasion, it has been threatened with prosecution. The threat is not, as in Poe v. Ullman, 367 U.S. 497, 508 (1961) (plurality opinion), "chimerical." In that case, the challenged state law had fallen into virtual desuetude through lack of prosecution over some 80 years, and plaintiffs alleged no explicit threat of prosecution. Here, PPA has been threatened with legal action, and prosecutions have been brought under the predecessor of $ 6811(8) as recently as 1965. See, e.g., People v. Baird, 47 Misc.2d 478, 262 N.Y.S.2d 947 (1965).

4. Indeed, the case for the vendor's standing to assert the rights of potential purchasers of his product is even more compelling here than in Craig, because the rights involved fall within the sensitive area of personal privacy. In such a case, potential purchasers "may be chilled from . . . assertion [of their own rights] by a desire to protect the very privacy [they seek to vindicate] from the publicity of a court suit." Singleton v. Wulff, 428 U.S. 106, 117 (1976).

5. Contrary to the suggestion advanced in MR. JUSTICE POWELL's opinion, we do not hold that state regulation must meet this standard "whenever it implicates sexual freedom," post at 705, or "affect[s] adult sexual relations," post at 703, but only when it

burden[s] an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision.

Supra, this page. As we observe below,

the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults,

n. 17, infra and we do not purport to answer that question now.

6. As MR. JUSTICE POWELL notes, post at 711, the prohibition of mail-order sales of contraceptives, as practiced by PPA, is a particularly "significant invasion of the constitutionally protected privacy in decisions concerning sexual relations."

7. The narrow exception to § 6811(8) arguably provided by New York Educ. Law § 6807(b) (McKinney, Supp. 1976-1977), see n. 1, supra, which permits a physician "who is not the owner of a pharmacy, or registered store" to supply his patients with "such drugs as [he] . . . deems proper in connection with his practice" obviously does not significantly expand the number of regularly available, easily accessible retail outlets for nonprescription contraceptives, and so has little relevance to our analysis of this aspect of § 6811(8).

8. We have taken judicial notice that "not all contraceptives are potentially dangerous." Eisenstadt v. Baird, 405 U.S. 438, 451, and n. 9 (1972). See also id. at 463-464 (WHITE, J., concurring in result).

9. Indeed, in light of other provisions of both federal and state law that comprehensively regulate hazardous drugs and devices, see, e.g., 21 U.S.C. §§ 351-360, especially § 353(b); N.Y.Educ.Law §§ 6800-6826 (McKinney 1972 and Supp. 1976-1977), especially § 6810, it is unclear what health-related interest the State could have in nonprescription contraceptives. Eisenstadt v. Baird, supra at 452.

10. Nothing in New York law limits the employment of minors who work as sales clerks in pharmacies. To the extent that minors employed in other retail stores selling contraceptive products might be exposed "to undesirable comments and gestures," Brief for Appellants 3, or otherwise corrupted by exposure to such products, minors working as sales clerks in pharmacies are exposed to the same hazards.

11. As the District Court pointed out, while these interests are insufficient to justify limiting the distribution of nonhazardous contraceptives to pharmacists, other restrictions may well be reasonably related to the objective of quality control. We therefore express no opinion on, for example, restrictions on the distribution of contraceptives through vending machines, which are not before us in this case. See 398 F.Supp. at 336.

12. This part of the opinion expresses the views of JUSTICES BRENNAN, STEWART, MARSHALL, and BLACKMUN.

13. Subject to an apparent exception for distribution by physicians in the course of their practice. See n. 1, supra, and infra at 697-699, and n. 23.

14. Thus, minors are entitled to constitutional protection for freedom of speech, Tinker v. Des Moines School Dist., 393 U.S. 503 (1969); West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943); equal protection against racial discrimination, Brown v. Board of Education, 347 U.S. 483 (1954); due process in civil contexts, Goss v. Lopez, 419 U.S. 565 (1975); and a variety of rights of defendants in criminal proceedings including the requirement of proof beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970), the prohibition of double jeopardy, Breed v. Jones, 421 U.S. 519 (1975), the rights to notice, counsel, confrontation, and cross-examination, and not to incriminate oneself, In re Gault, 387 U.S. 1 (1967), and the protection against coerced confessions, Gallegos v. Colorado, 370 U.S. 49 (1962); Haley v. Ohio, 332 U.S. 596 (1948).

15. This test is apparently less rigorous than the "compelling state interest" test applied to restrictions on the privacy rights of adults. See, e.g., n. 16, infra. Such lesser scrutiny is appropriate both because of the States' greater latitude to regulate the conduct of children, Prince v. Massachusetts, 321 U.S. 158 (1944); Ginsberg v. New York, 390 U.S. 629 (1968), and because the right of privacy implicated here is "the interest in independence in making certain kinds of important decisions," Whalen v. Roe, 429 U.S. 589, 599-600 (1977), and the law has generally regarded minors as having a lesser capability for making important decisions. See, e.g., Planned Parenthood, 428 U.S. at 102 (STEVENS, J., concurring in part and dissenting in part).

16. Planned Parenthood, however,

does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy. See Bellotti v. Baird, [428 U.S. 132 (1976)]. The fault of [the particular statute considered in Planned Parenthood] is that it imposes a special consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy . . . without a sufficient justification for the restriction.

Id. at 75.

17. Appellees argue that the State's policy to discourage sexual activity of minors is itself unconstitutional, for the reason that the right to privacy comprehends a right of minors as well as adults to engage in private consensual sexual behavior. We observe that the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating such behavior among adults. See generally Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 719-738 (1973). But whatever the answer to that question, Ginsberg v. New York, supra, indicates that, in the area of sexual mores, as in other areas, the scope of permissible state regulation is broader as to minors than as to adults. In any event, it is unnecessary to pass upon this contention of appellees, and our decision proceeds on the assumption that the Constitution does not bar state regulation of the sexual behavior of minors.

18. We note, moreover, that other provisions of New York law argue strongly against any conclusion that the deterrence of illegal sexual conduct among minors was an objective of § 6811(8). First, a girl in New York may marry as young as 14, with the consent of her parents and a family court judge. N.Y.Dom.Rel.Law §§15-a, 15(2), 15(3) (McKinney 1964 and Supp. 1976-1977). Yet, although sexual intercourse by a married woman of that age violates no state law, § 6811(8) prohibits distribution of contraceptives to her. Second, New York requires that birth control information and services be provided to recipients of certain welfare programs, provided only that they are "of childbearing age, including children who can be considered sexually active." N.Y.Soc.Serv.Law §350(1)(e) (McKinney 1976); cf. 42 U.S.C. § 602(a)(15)(A) (1970 ed., Supp. V). See also N.Y.Soc.Serv.Law § 365-a(3)(c) (McKinney 1976); cf. 42 U.S.C. §1396d(a) (vii)(4)(C) (1970 ed., Supp. V). Although extramarital intercourse is presumably as contrary to state policy among minors covered by those programs as among others, state law requires distribution of contraceptives to them and prohibits their distribution to all others.

19. See, e.g., Settlage, Baroff, & Cooper, Sexual Experience of Younger Teenage Girls Seeking Contraceptive Assistance for the First Time, Family Planning Perspectives 223 (fall 1973); Pilpel & Wechsler, Birth Control, Teenagers and the Law: A New Look 1971, Family Planning Perspectives 37 (July 1971); Stein, Furnishing Information and Medical Treatment to Minors for Prevention, Termination and Treatment of Pregnancy, Clearinghouse Review 131, 132 (July 1971); Reiss, Contraceptive Information and Sexual Morality, Journal of Sex Research 51 (Apr.1966). See also Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv.L.Rev. 1001, 1010, and n. 67 (1975); Jordan, A Minor's Right to Contraceptives, 7 U.Calif.Davis L.Rev. 270, 272-273 (1974).

20. See, e.g., id. at 271-273; Kanter & Zelnick, Sexual Experience of Young Unmarried Women in the United States, Family Planning Perspectives 9 (Oct.1972).

21. Although this is not the occasion for a full examination of these problems, the following data sketchily indicate their extent. According to New York City Department of Health statistics, filed with the Court by the American Civil Liberties Union as amicus curiae, in New York City alone, there were over 6,000 live births to girls under the age of 17 in 1975, as well as nearly 11,000 abortions. Moreover,

[t]eenage motherhood involves a host of problems, including adverse physical and psychological effects upon the minor and her baby, the continuous stigma associated with unwed motherhood, the need to drop out of school with the accompanying impairment of educational opportunities, and other dislocations [including] forced marriage of immature couples and the often acute anxieties involved in deciding whether to secure an abortion.

Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv.L.Rev. 1001, 1010 (1975) (footnotes omitted). See also Jordan, supra, n.19, at 273-275.

22. Appellants argue that the statement in Ginsberg v. New York, 390 U.S. at 641, that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors," is authority that the burden is appellees' to prove that there is no connection between the statute and the asserted state policy. But Ginsberg concerned a statute prohibiting dissemination of obscene material that it held was not constitutionally protected. In contrast, § 6811(8) concerns distribution of material access to which is essential to exercise of a fundamental right.

23. There is considerable doubt that appellants accurately identify the legislative purposes in enacting Educ.Law §§ 6807(b) and 6811(8). Section 6811(8) (formerly Educ.Law § 6804-b and before that Penal Law §1142(2)) was first enacted in 1965 as a modification, apparently in response to Griswold v. Connecticut, 381 U.S. 479 (1965), of former Penal Law §1142, titled "Indecent articles." 1965 N.Y.Laws, c. 637. This statute, which dated back at least to § 318 of the Penal Code of 1881, 1881 N.Y.Laws, c. 676, had made it a misdemeanor for any person to distribute or advertise "any instrument or article, or any drug or medicine, for the prevention of conception." Section 6807(b), on the other hand, general excepts the distribution of drugs by a physician in the course of his practice from all the licensing requirements and restrictions imposed on the practice of pharmacy by Education Law §§ 6800-6826 (subject to certain provisos not here relevant). Such a provision, in one form or another and bearing several different numbers, has been included in the article concerning the practice of pharmacy since that article was first incorporated in the Education Law in 1927, see former Education Law §1361, 1927 N.Y.Laws, c. 85, and before that a similar provision was included in the statutes regulating pharmacy in the Public Health Law. See, e.g., Public Health Law of 1893, §187, 1893 N.Y.Laws, c. 661. Thus, § 6807(b) and its predecessors long predate the inclusion of § 6811(8) in the Education Law.

Even more significantly, when §6811(8) was first enacted as Penal Law §1142(2), it was not subject to the physicians' exception of § 6807(b). Rather, it was apparently subject to a different physicians' exception, former Penal Law §1145 (§321 of the Penal Code of 1881), which provided:

An article or instrument, used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use within this chapter. The supplying of such articles to such physicians or by their direction or prescription is not an offense under this chapter.

This was interpreted by the New York Court of Appeals to permit a physician "in good faith" to use contraceptives to treat "a married person to cure or prevent disease," but not to permit "promiscuous advice to patients irrespective of their condition." People v. Sanger, 222 N.Y.192, 194-195, 118 N.E. 637, 637-638 (1918), appeal dismissed for lack of jurisdiction, 251 U.S. 537 (1919) (per curiam). See also People v. Byrne, 99 Misc. 1, 163 N.Y.S. 682 (1917); People v. Baird, 47 Misc.2d 478, 262 N.Y.S.2d 947 (1965).

In light of this history, it appears that, insofar as the legislature had § 6807(b) in mind at all when it transferred the prohibition of distribution of contraceptives to those under 16 from the Penal Law to the Education Law, it thought of that section as at most a narrow exception, analogous to § 1145, permitting physicians, "in connection with [their] practice," to treat or prevent disease, rather than, as appellants assert, intending that §§ 6807(b) and 6811(8) be read together as establishing a scheme under which contraceptives would be freely available to those under 16, but limiting the distribution function to physicians. The legislative history of attempts in 1972 and 1974 to modify § 6811(8), to which appellants refer, supports this construction. The legislators debating those bills seem to have thought of § 6811(8) as a flat prohibition of the distribution of contraceptives to minors, and made no reference to § 6807(b).

24. In Doe v. Bolton, 410 U.S. 179, 196 (1973), we doubted that physicians would allow their moral "predilections on extramarital sex" to interfere with their medical judgments concerning abortions. Here, however, no medical judgment is involved at all; the State purport to commission physicians to engage in moral counseling that can reflect little other than their private views on the morality of premarital sex among the young. It seems evident that many physicians are likely to have views on this subject to a significant degree more permissive or more restrictive than those of the State, the minor, or the minor's parents. Moreover, nothing in § 6807(b) suggests that the role of the physician is limited to such "counseling." The statute does nothing more than to permit the physician to provide his patients with such drugs or devices as he "deems proper." Such "absolute, and possibly arbitrary" discretion over the privacy rights of minors is precisely what Planned Parenthood condemned. 428 U.S. at 74.

25. In cases involving abortions, we have emphasized that the decision to terminate a pregnancy is properly made by a woman in consultation with her physician. See, e.g., Roe v. Wade, 410 U.S. 113, 153, 164 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 75. No such suggestion, however, has been made concerning the right to obtain or use contraceptives. See Griswold v. Connecticut, supra; Eisenstadt v. Baird, 405 U.S. 438 (1972). The reason, of course, is that the abortion decision necessarily involves a medical judgment, Roe v. Wade, supra at 164, while the decision to use a nonhazardous contraceptive does not. Eisenstadt v. Baird, supra at 463-464 (WHITE, J., concurring in result). See also n. 24, supra.

26. The prohibition of advertising and display of contraceptives is invalid as to prescription as well as nonprescription contraceptives, at least when the advertising is by persons who are licensed to sell such products. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

27. Indeed, as the Court recognized in Virginia Pharmacy Bd., much advertising is "tasteless and excessive," and no doubt offends many. 425 U.S. at 765.

28. Appellants suggest no distinction between commercial and noncommercial speech that would render these discredited arguments meritorious when offered to justify prohibitions on commercial speech. On the contrary, such arguments are clearly directed not at any commercial aspect of the prohibited advertising but at the ideas conveyed and form of expression -- the core of First Amendment values. Cf. Linmark Associates, Inc. v. Willingboro, ante at 96-97.

29. We do not have before us, and therefore express no views on, state regulation of the time, place, or manner of such commercial advertising based on these or other state interests.
Comments