GRISWOLD v. CONNECTICUT
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.
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?
Legal provision: Due Process
Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.
Argument of Thomas I. Emerson
Chief Justice Earl Warren: Number 496, Estelle T. Griswold, et al., versus Connecticut.
Mr. 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.
Justice Arthur J. Goldberg: Mr. Emerson, how was the determination made that she was a married woman?
Mr. 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.
Justice John M. Harlan: That was what I wanted to ask you?
Mr. Emerson: Yes, there's no question about that.
Justice John M. Harlan: [Inaudible]
Mr. Emerson: If an unmarried woman got services, it would be through misrepresentation and mistake.
Justice John M. Harlan: In the specific case [Voice Overlap]
Mr. Emerson: That's right, Your Honor; that's right, yes.
Unknown Speaker: Well typically [Inaudible]
Mr. Emerson: That's right, yeah, yeah.
Justice Hugo L. Black: Does the law allow that distinction, discrimination --
Mr. 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.
Justice 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?
Mr. 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 William J. Brennan: 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?
Mr. Emerson: Yes, it is, Your Honor, by virtue of the accessory statute.
Justice William J. Brennan: That is -- would it be, for example, also the crime of aiding or abetting and violation of the use statute to sell contraceptives?
Mr. Emerson: Yes, it would be, Your Honor.
Justice William J. Brennan: Have there been any prosecutions for that?
Mr. 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.
Justice 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?
Mr. Emerson: That's right, Your Honor.
In just one minute I'll get to the interpretation, the Connecticut State interpretation of the statute.
Justice William J. Brennan: 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?
Mr. 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 William J. Brennan: Well, is that the way that contraceptives are freely sold in Connecticut?
Mr. Emerson: That's correct, Your Honor.
They are sold in Connecticut for purposes of preventing disease.
Justice William J. Brennan: And yet, you're making no equal protection argument at all?
Mr. 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.
Justice Arthur J. Goldberg: For the purpose of preventing disease, no distinction is drawn between married and unmarried, correct?
Mr. 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.
That applies to anybody, yes.
Justice Arthur J. Goldberg: I take it that applies across the board?
Mr. 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--
Justice John M. Harlan: What was the sentence [Inaudible]?
Mr. Emerson: The sentence was a fine of a hundred dollars each.
Unknown Speaker: I assume the doctor [Inaudible] involved?
Mr. Emerson: Yes, in the case of the doctor the right to ? the license to practice medicine may be involved.
Chief Justice Earl Warren: Do you make any constitutional distinction between the doctor and the director of the institution, so far as their --
Mr. 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.
Chief Justice 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?
Mr. 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.
Chief Justice Earl Warren: Yes.
So that if Mrs. Griswold had no doctors, she could have done the same thing, conducted the kind of a clinic?
Mr. Emerson: Yes, I think so.
Justice Arthur J. Goldberg: 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.
Mr. 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.
The major interpretation of the Connecticut statute is not in dispute, either.
Justice William J. Brennan: 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?
Mr. Emerson: Yes.
Justice William J. Brennan: I mean, has there been any court decision to --
Mr. 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 William J. Brennan: Well, on the strength of that, wouldn't you have had a rather compelling equal protection argument, if the Connecticut courts went that far?
Mr. Emerson: Well, you mean that --
Justice William J. Brennan: 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?
Mr. 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 ?-
Justice Byron R. White: Is that --
Mr. 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 William J. Brennan: 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?
Mr. Emerson: It would dispose of the statute, Your Honor, that's correct.
Justice Byron R. White: Mr. Emerson are these devices on sale in drugstores?
Mr. 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.
Chief Justice Earl Warren: Openly and validly they're on sale, not secretly?
Mr. 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.
Chief Justice Earl Warren: It's not done --
Mr. 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.
Justice Hugo L. Black: I'd like to ask you a question in connection with Justice Brennan's question.
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?
Mr. Emerson: We have never made any argument on equal protection as such, Your Honor.
Justice 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.
Mr. 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.
Justice Hugo L. Black: That's the due process argument?
Mr. Emerson: That's correct.
They're both due process; they're both due process.
Justice Hugo L. Black: Nothing but due process; no other constitutional provision whatever?
Mr. Emerson: Well, we also argue the First Amendment, Your Honor.
We have a First Amendment argument.
Unknown Speaker: You haven't made it in court?
Mr. Emerson: We argued the Ninth Amendment as part of the privacy ?-
Unknown Speaker: [Inaudible]
Mr. 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.
Justice John M. Harlan: 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?
Mr. Emerson: That's correct, Your Honor.
Justice 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?
Mr. 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.
Justice Hugo L. Black: It sounds to me like you're asking us to follow the constitutional philosophy of that case?
Mr. 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 --
Justice 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--
Mr. Emerson: No, no, no.
Justice Hugo L. Black: Because people were being defrauded, was that it?
Mr. 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 William J. Brennan: Well, let's see.
Wasn't Aptheker underpinned on the concept of over broadness which went too far?
Mr. Emerson: Well, it was a due process ? it was a very ?-
Justice William J. Brennan: That's due process --
Mr. Emerson: -? yes, but that's the same kind of due process argument we're making here, Your Honor.
Justice William J. Brennan: 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?
Mr. 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.
Unknown Speaker: [Inaudible]
Mr. Emerson: That's correct Your Honor.
Unknown Speaker: [Inaudible]
Mr. Emerson: That's correct Your Honor.
Justice William J. Brennan: Now, you're going to come and tell us why it is that it's over broad as to married couples?
Mr. 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.
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.
Justice 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?
Mr. Emerson: They have the power to prohibit as to married couples, within the marriage relationship, yes, Your Honor.
Justice 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?
Mr. Emerson: That's correct, Your Honor, yes and also, the First Amendment clause, in this case at least.
Justice Hugo L. Black: Well I am ? using, use is not speech, is it?
Mr. Emerson: No, it isn't, Your Honor.
That's a different argument.
Justice 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.
Mr. 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.
Justice Potter Stewart: You're telling us that they're dead letters --
Mr. Emerson: That's right.
Justice 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?
Mr. 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.
Justice Potter Stewart: How about the federal, the Federal statutes, 18 United States Code 1461 and 1462?
Mr. Emerson: Yes, those are the statutes which prohibit --
Justice Potter Stewart: Having to do with the mailing of them?
Mr. 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 William J. Brennan: [Inaudible] do the statutes fall?
Mr. 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 William J. Brennan: What about the Federal one?
Mr. 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.
Justice Potter Stewart: How have the Federal statutes been interpreted, did you say?
Mr. 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 William J. Brennan: What cases say that?
Justice Potter Stewart: Yes.
Mr. 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 William J. Brennan: Is that in this Court?
Mr. Emerson: No, that's a Second Circuit--
Justice Potter Stewart: Back in 1936?
Mr. Emerson: 1936, yes.
Justice William J. Brennan: Nothing in this Court, is there?
Mr. Emerson: There's been nothing in this Court I think, Your Honor.
Justice Arthur J. Goldberg: Mr. Emerson, you said if you prevail upon the privacy ground, [Inaudible]
Mr. 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 William J. Brennan: 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?
Mr. Emerson: Well, because, Your Honor, the question is why is it over broad?
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.
Justice Hugo L. Black: That said not be denied in the judgment of this Court?
Mr. Emerson: That's correct, Your Honor.
Justice Hugo L. Black: Is there any constitutional provision that says that?
Mr. Emerson: We're relying on the Due Process Clause, Your Honor.
Justice Hugo L. Black: Is there any other constitutional provision on which you could possibly rely upon?
Mr. 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.
Justice Hugo L. Black: Again you're dealing with [Inaudible]
Mr. 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.
Justice 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?
Mr. 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.
Justice 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?
Mr. 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.
Justice 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?
Mr. 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.
Chief Justice 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?
Mr. 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.
Justice John M. Harlan: It doesn't prove [Inaudible]
Mr. Emerson: It doesn't prove it either way, I think, Your Honor.
That factor cannot be really isolated that way, I think.
Justice Hugo L. Black: Are there any statistics that indicate that Connecticut people have been suffering because of inability to get such things?
Mr. 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.
Justice Hugo L. Black: But this one's not a question of advice, is it?
Mr. Emerson: This involved more than advice, Your Honor, that's true.
It also involved some --
Justice William J. Brennan: You also can make the First Amendment argument based on advice, can't you?
Mr. Emerson: The First Amendment argument is based on the advice aspects of the case.
Justice Byron R. White: But there was more than advice here, wasn't there?
Mr. Emerson: There was Yes.
Justice Byron R. White: There was furnishing --
Mr. Emerson: There was yes, 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.
Justice 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 --
Mr. 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.
Justice Byron R. White: Yes, you are right.
Chief Justice 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?
Mr. 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.
Chief Justice Earl Warren: It's never been enforced against anyone, has it, until this case?
Mr. Emerson: Yes, it has been enforced against the clinics since 1937.
Chief Justice Earl Warren: Was any judgment resolved?
Mr. 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 --
Chief Justice Earl Warren: Isn't that the one that was nolle prosequi when it came back?
Mr. 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.
Chief Justice 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?
Mr. 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.
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.
Chief Justice 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?
Mr. 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.
Chief Justice 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?
Mr. Emerson: That's right.
Chief Justice Earl Warren: But that a poor person could not do it.
Now, what do you base that distinction on?
Mr. 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.
Chief Justice Earl Warren: Does the State concede that?
Mr. Emerson: I'm not sure, Your Honor what --
Chief Justice 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?
Mr. 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]
Chief Justice Earl Warren: Very well we --
Justice 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?
Mr. Emerson: We have not made an equal ? no we have not made an equal protection argument as such.
Justice Byron R. White: And the record doesn't show whether or not the State enforces it against private doctors?
Mr. Emerson: No, the record does not show that, but that was the basis of Poe against Ulmin, Your Honor.
Justice Arthur J. Goldberg: Are you coming back to your First Amendment argument, if not, I wanted to ask you a question.
Mr. 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.
Justice Arthur J. Goldberg: Well, I'll withdraw the question.
Mr. 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 --
Chief Justice Earl Warren: Why wouldn't it, if it relates to morality?
Mr. Emerson: To material welfare, I said, Your Honor.
Chief Justice Earl Warren: You mean money welfare?
Mr. 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.
Justice John M. Harlan: How do you measure community standards?
Mr. 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.
Justice John M. Harlan: Are they not National standards?
Mr. 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]
Justice 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?
Mr. 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.
Justice 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?
Mr. 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 --
Justice 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?
Mr. 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.
Chief Justice Earl Warren: You may, Mr. Emerson.
Argument of Joseph B. Clark
Mr. Clark: Mr. Chief Justice, if it please the Court.
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.
Justice John M. Harlan: Did those involve use statutes?
Mr. 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 --
Justice Byron R. White: But that's only for a forbidden purpose?
Mr. Clark: But, if Your Honor please, there's no other purpose in this case.
Justice William J. Brennan: But if in fact these devices are provided for the prevention or treatment of disease, that's no crime?
Mr. Clark: Now, this is an interesting thing, if Your Honor please, because we have the case in Massachusetts where this argument was made.
Justice William J. Brennan: But what about Connecticut?
Mr. Clark: Connecticut has no case at all on the subject.
Justice William J. Brennan: 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?
Mr. 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.
Justice Byron R. White: You do know as a matter of fact whether sales take place, don't you?
Mr. 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.
Justice Byron R. White: They're illegal sales?
Mr. Clark: They're illegal sales, the same as a bookie selling a horserace.
It's against the law; it's illegal.
Justice William J. Brennan: Do you know if the police have ever done anything about it?
Mr. Clark: There have been convictions.
Justice Byron R. White: For selling?
Mr. Clark: There have been convictions, if Your Honor please, yes.
Justice William J. Brennan: Drugstore selling?
Mr. 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.
Justice Byron R. White: What about doctors?
What about doctors prescribing these devices?
Are there cases?
Mr. Clark: There are no cases of any doctors prescribing, either.
The only cases that have ever--
Justice William J. Brennan: Have there been any prosecutions of doctors who prescribe?
Mr. Clark: I have never heard of any prosecution of a doctor who prescribed it, Your Honor.
Justice Byron R. White: Your theory on that is it's because they're prescribing for the prevention of disease --
Mr. 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.
Justice 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?
Mr. 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 William J. Brennan: 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?
Mr. Clark: If Your Honor please, if it could be honestly--
Justice William J. Brennan: Well, would it or wouldn't?
Mr. Clark: I don't think it would.
Justice William J. Brennan: It would not be --
Mr. 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.
Justice Hugo L. Black: Is the device which you're talking about here described in the record?
If so, what page?
Mr. Clark: If Your Honor please, a device that could be used for prevention of disease --
Justice 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.
Mr. 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.
Justice Hugo L. Black: They're adequately described in the record of each of the women they state specifically what each device is?
Mr. Clark: That's correct, yes.
Chief Justice Earl Warren: So that we have a record of what device --
Mr. Clark: Yes.
Chief Justice 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?
Mr. Clark: That is exactly my point.
Justice Hugo L. Black: And that you're quite correct.
Mr. Clark: That is exactly my point.
Chief Justice 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?
Mr. Clark: I'm sorry, Your Honor, I did not get your question.
I am very sorry.
Chief Justice 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.
Mr. Clark: I think that is undoubtedly the fact, Your Honor.
Unknown Speaker: [Inaudible]
Mr. Clark: They're sold under the counters there's no question about it.
Chief Justice 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?
Mr. 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.
Chief Justice Earl Warren: "All the way," what do you mean?
Mr. Clark: A guilty finding.
No appeal; the final disposition.
Chief Justice Earl Warren: I see, I see.
Mr. 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.
Chief Justice Earl Warren: Very well.
We will recess now.
Argument of Joseph B. Clark
Chief Justice Earl Warren: No. 496, Estelle T. Griswold, et al., appellants versus Connecticut.
Mr. Clark, you may continue your argument.
Mr. Clark: Mr. Chief Justice, if it please the Court.
In yesterday's questioning there were some questions directed both to me and to Mr. Emerson concerning population and birth rates.
In our brief at pages 27 and 28, we cite the statistics that show that the birth rate in the State of Connecticut last year, for the seventh straight year, was on the decline.
The birth rate in the United States is apparently also on the decline, and I would point out to the Court that in the Reporter magazine of March 25th, 1965, there is an article entitled "Our Population.
The Statistics Explosion," written in part by Richard M. Scammony, who was the head the Census Bureau, that points out that the growth rate or the birth rate in this country is actually on the decline, and takes great issue with the so called experts, using his term, of a population explosion.
The tenor of his article is that this so-called fear that there will be no breathing room is actually a false use of statistics, that in fact if you use the same logic that people of this ilk have been using in the past, the statistics would show - that is, carrying out the same logic, that there won't be anyone in this country by the year 2000.
Justice Potter Stewart: Mr. Clark, what you're touching on now leads me to ask, what is the purpose of this legislation in Connecticut?
Your basic argument in your brief, and so far in your oral argument, is that this is well within the so-called police power of the State of Connecticut.
What is its purpose?
Mr. Clark: If Your Honor please, I think it's purpose is to --
Justice John M. Harlan: To increase the population of Connecticut, or to impair its decrease, or is it, what --
Mr. Clark: If Your Honor please, I do not hold that it is to increase the population of Connecticut.
I don't think that this is a - we could make this claim valid.
Justice Potter Stewart: Well, what is it?
What is the purpose of this legislation?
Mr. Clark: I think that it's to reduce the chances of immorality.
If Your Honor please, and I use the word "immorality" here in a broad sense, that is, in one way to act as a deterrent to sexual intercourse outside of the marital relationship.
Justice Potter Stewart: Well, the trouble with that argument is that, on this record, this involves only married women.
Mr. Clark: That is correct, Your Honor.
Justice Potter Stewart: So how can you make that argument?
Mr. Clark: Well, if Your Honor please, I think that on this record, that the statute is a valid exercise of the police power --
Justice Potter Stewart: For what purpose?
Mr. Clark: If Your Honor please, on this purpose - on this record, that there is a distinction and there has to be a distinction between birth control and the use of contraceptives.
That is to say that all contraceptives involve birth control, but in order to practice so-called birth control one does not have to use contraceptives, and that the State is able to take this position and make this distinction, that there are - if it be said, well, should married people be allowed to use these devices, would this not - is not the State going too far?
I think the State can answer to that that there are other methods available to married people.
Justice Potter Stewart: For what purpose under its police power, assuming we're dealing now with married couples?
Mr. Clark: Well, if Your Honor please, going back, Connecticut in the Nelson case cited the Byrne case in New York, and one of the reasons cited by the Connecticut court, and the Byrne case was that, it was not the - as a matter of fact, it would not be improper for the legislature to consider that Connecticut, as any State, has the right to look out for its own continuation.
This is the population argument.
I personally am not too happy with it, but --
Justice Potter Stewart: Well, what argument are you happy with?
Mr. Clark: I think, if Your Honor please, the only argument we can honestly say is that this is a question of pure power.
Justice Potter Stewart: Well, do you think the State of Connecticut could prevent marriage?
Mr. Clark: I think the State of Connecticut could prevent marriage in certain people, certain groups, yes, if Your Honor please, between idiots, say, or age in marriage.
I think, if Your Honor please that --
Justice Potter Stewart: But surely you'll agree with me, they couldn't - l should think you'd agree with me, that if the State of Connecticut should say, there will be no marriages contracted in this State, there will be no sexual intercourse of any kind, married or unmarried.
Mr. Clark: I agree with you.
Justice Potter Stewart: Well now, what purpose, what is the police power purpose of Connecticut in telling married people, two people who are married to each other, that they cannot use contraceptives?
Mr. Clark: I think, if Your Honor please, it's just to preserve morality.
Justice Potter Stewart: What kind of morality?
What moral purpose is that?
Mr. Clark: If Your Honor please, it is not unheard of that the use of contraceptives themselves would be immoral and certainly, this is a view that has been prevalent in history right up to the last few years in most groups.
In Connecticut, citing the brief of our opponents in one instance, the number of Catholics and Orthodox Jews in the State, if you, were just to put it on a numerical basis --
Justice Potter Stewart: Well, you would have had quite a different case if the State of Connecticut compelled all married couples to use them.
That's not - that's when you'd run into the argument you're now making, that this violates the religious precepts and beliefs of certain groups.
Mr. Clark: This is true, but if Your Honor please, it also would be more difficult for the State to control the result of what we call a dissolute action, that is, fornication and adultery.
Justice Potter Stewart: I thought you and I had agreed that this isn't involved here.
We're dealing here, by definition and on this record, with advice and the furnishing of devices to married women who asked for such advice.
Mr. Clark: Well, if Your Honor please, I think what we have here, that is true.
We have here a center being used, and the witnesses that the State used in this case were in fact three married women.
Justice Arthur J. Goldberg: Mr. Clark, just to pinpoint this inquiry, on page 15 of your brief--I don't know that I agree, but you might provide an answer by reading what your court said in State versus Nelson.
It doesn't sound like a very lofty attribution to many people, but that's the reason your court assigned.
Page l5, State versus Nelson; if you'll look at the next to the last paragraph.
Mr. Clark: If Your Honor please, that's what I was trying to get at.
I must say that I did rather poorly.
Justice Arthur J. Goldberg: That is the reason your State, I take it, assigned that morals are involved?
Mr. Clark: That is correct.
If Your Honor please, the court held in Nelson, if, meaning the legislature was not precluded from considering that not all married people were immune from temptations or inclinations to extramarital indulgence and I think, if Your Honor please --
Justice Arthur J. Goldberg: That is the moral ground, then, upon which presumably your court sustained this legislation under the police power?
Mr. Clark: I think it is, sir.
Justice Arthur J. Goldberg: And that's the ground on which you rely?
Mr. Clark: That is correct.
Justice Potter Stewart: Anybody who has the price of a ticket to New York is immune?
Mr. Clark: No, if Your Honor please, that is not the case, because the New York law is not that way.
The New York law, as I understand it, is that contraceptives cannot be sold, except for the treatment of disease.
Now certainly, anyone who wants to use something as a contraceptive is not using something for the treatment of disease and Connecticut is like many other states in this regard.
We have cited some other states in our brief that hold to this same proposition, if the Court please.
Justice Arthur J. Goldberg: How do you meet the argument which many decisions of this Court have mentioned, that legislation must be carefully tailored to meet the evil?
If this is the evil which your State is trying to combat, you have other laws to deal with that, the adultery laws, for example.
Isn't that correct?
Mr. Clark: This is correct, if Your Honor please, but the problem is that if contraceptives, say, are freely sold, dispensed, or otherwise used, even to married people, how can it be known that they will be used within the marital relationship?
Not all people are immune from adultery.
The problem would be greater, the problem of identification, the problem of conviction, would be greater without it.
I don't hold that the statute is the most wise way of putting the decision.
Justice Potter Stewart: But as Justice Goldberg said, you do have substantive criminal statutes against adultery or against extramarital fornication, or non-marital fornication, in Connecticut, don't you?
Mr. Clark: That is correct.
Justice Potter Stewart: And you're suggesting, as a matter of practical problems of proof, it's easier to prove that in such relationship people use contraceptives than it is to prove that they had such a relationship?
Mr. Clark: No, I am not saying that, if Your Honor please.
I am saying that with the two statutes here involved it's easier to control the problem.
I'm not saying it would be that much easier to prove it.
Unknown Speaker: [Inaudible]
Mr. Clark: That is somewhat - that is so, but our court has held in Tileston that the statutes as here in this case, apply both to the provider and to the user.
Now, the other side has tried to push this right on the use all the time, but with our accessory statute, we get beyond the use itself, we get into the question of the provider, the disseminator of devices.
Justice Potter Stewart: That rather begs the question, doesn't it, you've got to - I suppose a person can't be convicted of aiding and abetting a criminal offense if that substantive criminal offense is unconstitutional, if it's beyond the constitutional power of a State to enact it.
Mr. Clark: This is a valid argument, I think, and I don't think that this statute is beyond the power of Connecticut to enact.
Justice Potter Stewart: So you do come back to the substantive statute, don't you?
Mr. Clark: We have to come back to the substantive statute that this is a valid --
Justice Potter Stewart: By the same token, I suppose you can't, under the First Amendment, free speech doesn't entitle you to aid and abet something which is a criminal offense.
So you I think that, on either side of this argument, you come back to the substantive use of statute.
Mr. Clark: That is correct.
Chief Justice Earl Warren: There's no standing problem involved?
Mr. Clark: Well, there is a standing problem, if Your Honor please.
Chief Justice Earl Warren: [Inaudible]
Mr. Clark: Not in relationship to the constitutionality of the statute, but there is a great standing problem here in the relationship of these defendants claiming it.
As I understand, one of their main arguments was a claim of privacy.
Now, it's not their privacy, because they were running a center, they were running a clinic.
They were holding themselves out to the world and as a matter of - it can't, think it truly can't be said, that it's the privacy of the so-called patients involved, because in this case we had three women testify against them.
If there was any claim that anyone had a right to privacy, it would be a right of these people.
Justice Byron R. White: But any ground on which the constitutionality of the basic statute could be attacked, that ground is available to these aiders and abetters?
Mr. Clark: I think that might be a fair statement, but I might point out --
Justice Byron R. White: Including the privacy --
Mr. Clark: Including privacy, except - no, I would have to disagree, if the Court please, and I would have to say, because what they are trying to do, then, is, they would be advocating the views or the rights, if any such right exists of people who in fact testified for the State against them in a criminal proceeding.
And think this would be an extremely bad precedent, if defendants could claim the rights, if any such right exists of a witness who testifies against him.
Justice Byron R. White: This is nothing more than asking whether an aider and abetter can attack the constitutionality of a statute, that's the only question?
Mr. Clark: I'm sorry, I --
Justice Byron R. White: Well, can an aider and abetter attack the constitutionality of the statute which makes it crime out of the act he's supposed to be aiding and abetting?
Mr. Clark: I think he can, if Your Honor please, but I think that they failed to do it in this case.
I think that they could have put on testimony; they did not.
In this case, two detectives and three women testified for the State.
The defendants testified, and they had some doctors.
Justice Byron R. White: Are you saying that the grounds on which the statutes are attacked here weren't raised below?
Mr. Clark: That is correct, if Your Honor please.
Justice Byron R. White: This isn't a standing problem.
It is that the arguments weren't raised below?
Mr. Clark: This is correct.
Justice Byron R. White: But weren't they passed upon by your supreme court?
Mr. Clark: Well, the supreme court said that the arguments of the defendants didn't merit discussion.
Now, if this means they were passed upon, they were passed upon, I suppose, if you please.
But the only arguments that the defendants, the appellants made in this case was a First Amendment argument, freedom of speech, which I understand they abandoned here yesterday.
It was action, not speech and a broad claim under the Fourteenth Amendment.
This they argued on demurrer, and this they argued through the case.
Justice Byron R. White: Yes, but the Fourteenth Amendment covers quite a bit of territory?
Mr. Clark: Liberty and property; liberty and property under the Fourteenth Amendment.
"Their rights to liberty and property, in violation of the Fourteenth Amendment," was their ground on demurrer and the ground they argued through.
As I said, if Your Honor please, it seems to me that this case is purely a case of legislative power reduced to its narrowest sense.
Does the legislature have the power to enact laws in this area and think the answer has to be said that it does and then the question comes up, could Connecticut go too far?
And this is a - it's said that this is a dead letter, this statute, but it is not.
Every two years, the General Assembly meets in Hartford and people troop up, and this is one of the most hotly debated issues before the Connecticut Assembly.
Justice Byron R. White: Well, do you say the constitutional issue is here to be decided in this Court or not?
Mr. Clark: If Your Honor please, I say that they have not standing to raise the issues, aside from freedom of speech, and aside from claims of liberty and properly.
Justice Byron R. White: Liberty and property of--
Mr. Clark: Of themselves.
Justice Byron R. White: --of themselves as doctors or advisers?
Mr. Clark: That is correct, because the claim that they made--incidentally, the claim was not - the claim has never been made, up to the time that it reached this Court, that the substantive statute was void on its face.
That claim was made here throughout the case.
The defendants have always argued that as the statutes here would be applied to them they violated certain constitutional rights.
Justice John M. Harlan: Subsequent to Poe and Ullman, was there any further legislative action or attempted legislative action on the statute?
Mr. Clark: If I remember correctly, Poe and Ullman was in 1961.
We've had a 1961 session of the legislature and bills were introduced.
I think I cite the number in my brief.
In 1961, bills were introduced and they never came out of committee.
They went to both houses of the General Assembly.
In 1963, other bills were introduced.
The bill in 1963 was to repeal the statute.
The house passed that, 149 to 66.
The senate committee never reported the bill out.
Now, on February 10th, I believe it was, of this year, a bill was introduced.
I have a copy of it here.
I don't have - it was to repeal the statute.
They had a public hearing on it last week.
Traditionally in Connecticut bills do not get reported out until late in the session.
So what will happen this session, I do not know.
But this is something that comes up.
There are bills to repeal or to give exceptions, that come up in every session of the General Assembly.
And as you will note in our brief, a good part, a good part of these arguments are based on the fact that there's no medical need for - I'm sorry, I withdraw that.
A good part of the defendants' arguments and a good part of the brief of amicus curiae have been that there is medical necessity involved in allowing people to use contraceptives.
Now, there has been testimony in the legislature by doctors, prominent in the field of obstetrics and gynecology, that there is no medical necessity for the use of contraceptives, absolutely none.
Unknown Speaker: [Inaudible]
Mr. Clark: It's not a medical problem.
It may be a social problem, but it's not a medical problem.
Just to cite some of the examples that were used in the brief of the Planned Parenthood League, amicus curiae in this case, there was a whole series of appendices about certain types of women who should not have a child and certain heart conditions were listed and they listed a whole group of doctors, some who say they shouldn't have children, some who say that they should never have children, and some who say that they should seldom have children, the whole tenor of which is that there are some women that shouldn't have any children at all and the testimony to the legislature has been that in this particular type of heart condition this is not so.
The difference is the difference between pregnancy control and birth control that people can, this type of pet son can have a child.
Justice Potter Stewart: Now, what you're saying would be relevant, and perhaps with some persuasiveness, if what Connecticut had done were to compel everybody to use contraceptives.
Then you could show that there's divided opinion about their value for certain people with certain physical conditions, but we have the other side of the coin here, and if the medical and sociological and religious views on this subject are divided and it adds up on net balance to be relatively neutral, then what we have here is the freedom of people, of married couples to do this just as they want to and therefore, I don't quite see the relevance of what you're telling us now, when you remember what this case is about.
Mr. Clark: Well, if Your Honor please, I can only say that married couples do not have freedom to do what they want.
This has been a Connecticut decision, and this is the Connecticut holding.
Justice Potter Stewart: Well, it still conies back to what the basic purpose, under the police power of your State, is.
Now could Connecticut decree that married people live separately in dormitories for men and for women, except for two weeks out of the year, under the Due Process Clause?
Mr. Clark: No, I wouldn't say so, if Your Honor please, but parenthetically, we might say that, under the welfare powers, that this is practically what's happening in a great number of cases.
In order to collect welfare people must do this, and unfortunately this has been what has happened under the welfare legislation.
Justice William J. Brennan: Is this matter pending in the present session of the legislature?
Mr. Clark: There is a bill.
Justice William J. Brennan: When does the session end?
Mr. Clark: The session has to end in June.
Justice William J. Brennan: When in June?
Mr. Clark: It's either the first or the last; I don't know.
Justice William J. Brennan: Either house taken any action on this?
Mr. Clark: They have had committee hearings, a joint committee hearing, last week.
The bill is No. 2462, House Bill 2462.
It's a simple bill.
It says, "Section I, Section 5332 of the General Statutes is repealed. This Act shall take effect from its passage; Section 2"
To my knowledge, there has not been a report out by either house committee.
I have spoken to some people in the legislature, and it is the opinion that I've gotten from them that there may be some legislation this year, but it probably will not be that legislation.
There might be some legislation, but it will more probably be similar to some of the other states' restrictions on sales, but there has been no report out.
This is all conjecture on my part.
Justice William J. Brennan: You're suggesting additional legislation, leaving this statute on the books, is that it?
Mr. Clark: Amending this statute, I might - probably repealing the statute as written and substituting therefore - Now, it has been - it was argued before that some other Amendments, other than the First and Fourteenth, were brought into the case.
We heard yesterday, the Third, the Ninth, the Fourth, and possibly the Fifth Amendment.
And I can only say to the Court that these were not brought up in the record.
The record does not support --
Unknown Speaker: [Inaudible]
Mr. Clark: I heard this - I made a note.
That is correct, if Your Honor please, what I'm saying, that they should not be in this case, that they were not in the record.
Unknown Speaker: [Inaudible]
Mr. Clark: It might have relevance, had it been raised at the proper time, because the Connecticut procedure, which I understand the Court has to follow, if I can recall a note, note number nine in the majority opinion of the Mapp case was that in criminal procedures this Court would adopt the procedures of the state in which it came up and Connecticut has very strict procedures on how to raise issues.
I point them out in my brief.
Now, the only issues that were raised in fact --
Unknown Speaker: [Inaudible]
Mr. Clark: You have to allege - you have to --
Unknown Speaker: [Inaudible]
Mr. Clark: The Court does have this power, yes, especially on constitutional questions it does, but generally speaking, the court restricts you to the ruling that you have made - the errors you have cited.
And, as we've pointed out, there's one thing that was brought up by the defendants in their argument, it wasn't cited in their jurisdictional grounds and that is this - the fact that they claim they were cut off in the trial level from getting into the availability of contraceptives in the State of Connecticut.
And I quote now from the transcript of a case, because I want to be exact on this, on page 47 and 48.
This is a question of Detective Berg, a member of the New Haven Police Department, called as a State's witness - cross-examination by Ms. Royerbach, page 47; Now, in the course of your investigations, Detective Berg, did you ascertain whether these products and he is referring to contraceptives, were available anywhere else in the City of New Haven?
Answer - I did not.
Then there was an objection taken.
Now, the court below ruled on the question of whether the objection was properly taken but the interesting fact of the case is that the answer got out before the objection did, and the answer was, "I did not."
There's no place else in the record that the availability or lack of, of contraceptives came into the case at all.
They were not precluded from bringing this up, if they wanted to show it, not that we would say that it would make any difference.
Assuming, for the sake of argument, that you could purchase any type of contraceptive any place, it'd be no different, it seems to me, than being able to buy a number, which you can buy, I must admit, almost any place.
It's rather difficult to enforce the gambling laws.
Any statute that might be said to be not too popular is not easily enforced.
In short, I think we get --
Chief Justice Earl Warren: The difference between this and the case of the numbers racket is that in the latter case you have had many prosecutions over the lifetime of this particular act, haven't you?
Mr. Clark: We have had many prosecutions, Mr. Chief Justice.
Chief Justice Earl Warren: Yes, but you can hardly cite any at all in this, in violation of this law?
Mr. Clark: That is correct, Mr. Chief Justice and yesterday afternoon at the conclusion of Court, the other gentlemen that had sponsored for membership in the bar, were all prosecutors or assistant prosecutors of circuit courts in Connecticut.
We put our heads together and it seems that every one of us has handled cases along this line.
Now, none of us, parenthetically, none of us has had those cases go out.
They've always been disposed of for one reason or another.
I know I handled one and the one handled involved two charges.
The first was statutory rape.
Chief Justice Earl Warren: Was what?
Mr. Clark: Statutory rape.
Chief Justice Earl Warren: A little different.
Mr. Clark: That is correct.[Laughter]
And therefore the second charge was using contraceptives.
In this case, it was a condom on the part of the man.
We threw this out.
So that, in the books, in the records, you don't get this at all.
Now in the other cases, one of the gentlemen told me that he had a case of some high school children.
Chief Justice Earl Warren: What?
Mr. Clark: They had high school children, and he just quietly changed the charge.
He thought this might be a crime and it might come back and haunt them, and he didn't want this on their record.
So he just disposed of the case, changed the charge so he wouldn't even have to nolle it.
Unknown Speaker: I couldn't quite hear you.
Mr. Clark: I said he changed the charge, Your Honor, so he wouldn't have to nolle it, because if he had nolle'd it, the charge as it was would be on the record.
He substituted a charge therefore, breach of the peace, so it would be less.
Now, if Your Honors pleases, it seems to me that the other side has pointed out that Massachusetts - that Connecticut adopted certain views from Massachusetts cases, specifically the Gardner case, and that Massachusetts had in fact later changed its view.
And that is, quoting the Corbett case in Massachusetts and the Werlinsky case the same year, that in order to prove a violation of their sales statutes they had to affirmatively prove that these devices were not being used for the purpose of the prevention of disease, but what they forgot to inform the Court was that four years later there was another Massachusetts case, and it's a case of Commonwealth versus Goldberg, that severally changed it back again, by convicting a druggist who had condoms on display, just on display.
And they held, the court in Massachusetts held, that the specific intent did not have to be proved in that particular case.
Now this ?
Chief Justice Earl Warren: Did that case go to your supreme court?
Mr. Clark: No, that was a Massachusetts Supreme Court case.
Chief Justice Earl Warren: Yes, I see.
That's one of them which is referred to in your supreme court?
Mr. Clark: No.
If Your Honor please, our supreme court had referred to the Gardner case, and our opponents have pointed out that since the Gardner case in Massachusetts, the two other cases have come up restricting it; and I'm just pointing out that since the cases that they refer to come up, a third case had come up in Massachusetts which brings it back nearer to the original Gardner case.
I should like to point out that there has been a problem that prosecutions in Connecticut have been under in this area, and it could be seen best by the case of State verses Certain Contraceptive Articles, which is probably one of the more cited cases in Connecticut history.
At the lime this case came up and you will recall that this was the companion of the Nelson case; this was a raid on the supply center of the Waterbury clinic, health center or clinic.
This was a police raid on the basis of a warrant.
Now at the time that this came up, the statute that empowered the warrant was the gambling statute.
Connecticut had at that time no general search warrant statute.
There were statutes for narcotics, for gambling, for firearms.
The gambling statute read something to the effect of, "for gaming, gambling or other crimes."
This case, this warrant, was an attempt to get it in under the "or other crimes," and the Connecticut court held, and I believe rightly so, that the "other crimes" listed in that gambling statute were other clinics of the same ilk, gambling, et cetera, and therefore that there was no grounds under that statute for issuing a search warrant.
Now, that case has been cited many times and our opponents cite it for the fact that Connecticut cannot condemn or claim as a nuisance contraceptives and I don't think the bare import of that case can be used to cite it in that manner.
If Your Honors please, it seems that what the Court here is being asked to do, as I started to say yesterday, is to overrule Gardner and overrule the case of Margaret Sanger, both cases in which this Court has held that it was within the power of the states to control these contraceptive clinics.
They are also asking the Court, in a way, to overrule the Tileston case, allowing the doctor here to claim rights, the so-called of the patients, although, as Mr. Emerson admitted yesterday, the rights of the doctor in this case are essentially the rights of Ms. Royerbach, that the clinic or center here could have worked without a doctor.
I think the best example of what the Court should do, at least according to our way of looking at it, was the words of Mr. Justice Black in the Ferguson case in 1963, because actually, what we're concerned with here and we quote, "We are not concerned with the wisdom, need or appropriateness of the legislation."
Justice Potter Stewart: There's a big difference, though, isn't there or isn't there?
That case which you just cited had to do with economic regulation, the regulation of business, economic policy; no, not - there was no impingement on the kind of personal privacy and freedom involved in this case?
Mr. Clark: I think this case, if Your Honor please, with the way it comes to this Court, is economic.
These are people running a business, and if you look especially at Mrs. Stevens, the Stevens woman who testified for the State, a girl married less than a year, a graduate student, her husband a student.
She was charged fifteen dollars by this Center for a tube of jelly.
Now, we've heard arguments about poverty, and I'm not that long myself from college to know that fifteen dollars is an awful lot of money and it just seems to me that these people were running a business.
It's that simple.
Justice Potter Stewart: Now you and I agreed earlier, I think - to come hack to the substantive use statute, or how you start in this case--
Mr. Clark: That's right.
Justice Potter Stewart: That statute --
Mr. Clark: That's the stumbling point.
Justice Potter Stewart: It was to that statute that I was adverting, and I was indicating by my question that there might be a difference between a state's economic regulation of commercial businesses in that state and this kind of a statute, which affects - whether or not it does so with constitutional validity is the question before us, but which certainly affects the individual privacy and freedom of human beings, and not in their commercial activities, but in those private activities of their lives?
Mr. Clark: There's no question about that, if Your Honor please, but I think the issue can be avoided on the grounds that these individuals can achieve the same result by different means, by not using contraceptives.
Justice Potter Stewart: Or by not getting married.
Mr. Clark: Possibly, but I think also that it's too bad, in a way, that this case came up now and I say that because, in the last year or so, there appears to have been fantastic work done in this field.
Now, I cite in our brief an article in the - I don't recall the page in the brief - but I cite an article in the Linacre Quarterly, a February 1965 issue, where a Boston gynecologist has come up with a method of being able to pinpoint ovulation to one day in a cycle.
Now, if this works out, if this is so, then contraceptives - that is, devices that are being used to prevent pregnancy will be passe.
There will be no need, there will just be no need.
Unknown Speaker: [Inaudible]
Mr. Clark: Excuse me, Your Honor.
Unknown Speaker: Why shouldn't you stay in that [Inaudible]
Mr. Clark: Well, those methods, if Your Honor please, it would be impossible, absolutely impossible, because those methods would involve a rhythm system, which the State has held does not violate this statute.
Justice Potter Stewart: You could buy that, couldn't you?
Mr. Clark: I suppose - I don't think so.
I would not claim that.
Justice William J. Brennan: On the basis of your argument, I don't see why not.
Mr. Clark: Well, if Your Honor please, what we're saying is that the State can argue that people cannot go outside their own homes and get things and use them in their own homes.
Now, this is not to say that people can just --
Justice William J. Brennan: No, but the reason you give us which would support the power of the State to do this, it seems to me, would equally apply to an amendment of the statute which bars the use of the rhythm method, makes it a crime to use it.
Why wouldn't it?
Mr. Clark: I suppose that it might.
Justice William J. Brennan: Sure.
Mr. Clark: But it's not at issue here before the Court.
Chief Justice Earl Warren: Mr. Emerson?
Argument of Thomas I. Emerson
Mr. Emerson: Mr. Chief Justice, may it please the Court.
With respect to the standing question and the right of the appellants in this case to assert the constitutional rights that are involved in the use statute, I call attention of the Court to the Shuttlesworth case, which - last term which raised that same issue.
So far as appellants raising the broad issues in this case, we point out in our brief in the footnote on page 16 those sections of the record in which all the issues that are now urged before this Court were consistently raised in the courts below.
With respect to the question of possible legislation in Connecticut, I call the attention of the Court to the fact that that would not solve the issue of the two defendants who have been convicted in this particular case.
With respect to the question of enforcement, regardless of the issues of whether or not there have been --
Justice William J. Brennan: Don't you have an abatement statute in Connecticut?
Mr. Emerson: I'm sorry, Your Honor.
Justice William J. Brennan: You say it wouldn't solve the problem of these two.
Don't you have an abatement statute in Connecticut?
Mr. Emerson: I'm not sure about that, Your Honor, or quite how that would operate.
Justice William J. Brennan: What about Bell against Maryland?
Mr. Emerson: I'm sorry?
Justice William J. Brennan: What about Bell and Maryland last year?
Justice Byron R. White: Yes, I realize your reference but I'm not sure how it would apply in the Connecticut situation or what the Court might do with it if it got back here.
Justice Hugo L. Black: We don't have to meet that question, do we?
Mr. Emerson: No, you're right, Your Honor. [Attempt to Laughter]
On the question of enforcement, apart from the issue of whether or not there are sporadic cases brought, the issue before the Court is, and the fact is, that the statutes are being enforced against clinics.
Dr. Buxton has been convicted for his participation in a clinic, and that is the key issue with respect to the enforcement of the statute here.
Now, what this means is not only that contraceptive devices are not available as such to persons who cannot afford to go to private doctors, but that the whole range of medical services which are supplied by a clinic are not available to those people.
The medical services which are necessary in health cases, and particularly the newly-developed devices in the contraceptive field, require medical supervision.
All of those services are not available to many citizens of Connecticut who cannot afford private practitioners.
Justice Potter Stewart: Mr. Emerson --
Chief Justice Earl Warren: You repeatedly say that it doesn't apply to private physicians.
Now, where in your record do you find that fact?
I understand counsel to say that it does apply to them, just as well as anybody else.
Mr. Emerson: Your Honor, by "apply" I meant it isn't enforced as to them.
Chief Justice Earl Warren: Well, how much has it been enforced here?
Mr. Emerson: It's enforced against the operation of a clinic.
It has not - there have been no cases in which a physician has been prosecuted outside, apart from the clinic cases.
It has not been enforced as to them.
I'm not saying it has no impact upon them, because it applies to them and they would be violating the law, and in that sense it applies to them, but it has never been enforced as to them.
Also, I was thinking of situations where the patient could go outside the State for medical advice, but the important point about the enforcement, Your Honor, is that it is enforced as to the centers, and not only as to Planned Parenthood centers, but as to hospitals and any other public facility.
So that all the people who rely on facilities of that sort are denied medical supervision in this important field.
Chief Justice Earl Warren: But we can assume as a matter of law that this is applied only to clinics and is not applied to doctors?
Mr. Emerson: The reason I say it is not applied to doctors --
Chief Justice Earl Warren: Does the record support that, or is that your argument?
Mr. Emerson: The reason I say that, Your Honor, is because that is what, as I understand, Poe against Ullman decided, that it was not applied to doctors and the record does not throw any more light on that.
I'm relying on the decision in Poe against Ullman.
Chief Justice Earl Warren: Well, are we dealing on the record of Poe against Ullman here and not this one?
Mr. Emerson: No, but there's no indication that the situation has changed.
I just didn't want to fight Poe against Ullman over again at this point.
Chief Justice Earl Warren: Well, we didn't vouch for the record, the truthfulness of the record, we were dealing with the record we had, which was inadequate, in Poe and I'm just wondering if we haven't got the same thing here.
Mr. Emerson: There's nothing further in this record, Your Honor, Mr. Chief Justice, but I would say that, essentially, the matter is not the most significant aspect of the case.
It's a secondary matter, because the important thing here is that it is being enforced against Dr. Buxton and Mrs. Griswold, and it is being enforced in a way which denies medical services to a great many people.
And I perhaps didn't answer sufficiently the question yesterday as to what the people of Connecticut were suffering as a result of this statute.
The fact is that a great many people in Connecticut are denied medical supervision in an area of great importance to them, and it is a matter of great importance to a great number of people in Connecticut.
Justice Potter Stewart: Mr. Emerson, I don't want to interrupt your argument, but before you sit down, I'd like to know what you do, if anything, about the precedents in this Court, first Margaret Sanger against the People of New York in 251 U.S., and second, Gardner against Massachusetts in 305 U.S.
Mr. Emerson: People against Sanger is not a precedent in this case, Your Honor.
That involved a prosecution of Margaret Sanger in New York under the New York statute which prohibited the dispensing of contraceptives except by physicians.
She was not a physician, and that was the issue of the case, that since she was not a physician she was covered by the statute.
And there is no such question in this case, because we would not say that a state law which provided for the dissemination of contraceptives through a method of prescription by physicians would violate constitutional rights.
So that was not involved.
Justice Potter Stewart: That was an equal protection case, was it?
I notice it was argued to the Court in the Sanger?case.
Mr. Emerson: No, it was a prosecution under the New York statute.
Justice Potter Stewart: What was her claim in that case?
Mr. Emerson: Her claim was that the statute was unconstitutional.
Justice Potter Stewart: Because it denied her equal protection, or why?
Because it allowed physicians to do it and not laymen?
Mr. Emerson: No, it was not based on that grounds.
Justice Potter Stewart: Well what was her claim, do you remember?
I don't know.
Mr. Emerson: I'm sorry.
I'm sorry Your Honor.
I think it was a due process, First Amendment claim.
Justice Potter Stewart: I just wondered what your thought was about that?
Mr. Emerson: I think that case is not significant.
Justice Potter Stewart: How about the Gardner case?
Mr. Emerson: The Gardner case is much closer, and all I can say on that is that the Court simply dismissed the appeal.
The Gardner case involved the validity of the Massachusetts statute, which was a sale statute, and interpreted the statute to be without exception, as the Connecticut statute has been interpreted.
Similar questions were raised.
So that, so far as the sale aspects of it are concerned, it's a very similar case.
It did not involve the use aspect and all the privacy questions that are involved in the use aspect.
Chief Justice Earl Warren: I understood you to say yesterday, Mr. Emerson, that you made no distinction between the doctor in this case and the director.
Mr. Emerson: I made no distinction, apart from the question of the requirements that a person have a license to practice medicine and so on, those aspects of the case which, of course, are different.
I would say that dissemination - that in this case there is no difference, because the statute prohibits dissemination by any person.
And therefore, whether it was the physician or whether it was an assistant to the physician, in that case they're both in the same - have the same rights in that respect.
Justice Hugo L. Black: There's been some statements in your argument about the difference between a business institution and somebody that's not a business institution.
Is the statement of facts about how this clinic operates correct as made in the court's opinion?
Mr. Emerson: Yes, sir.
Justice Hugo L. Black: It is a business institution, isn't it?
Mr. Emerson: No, it is not a business institution.
Justice Hugo L. Black: Well, what do they get paid for?
Mr. Emerson: Well, there was a sliding scale of fees, ranging from nothing to fifteen dollars.
Justice Hugo L. Black: Who gets the fees, the public?
Mr. Emerson: No, it's run by a nonprofit organization, Planned Parenthood.
Justice Hugo L. Black: What does the doctor get?
Mr. Emerson: The doctor serves without fee.
Justice Hugo L. Black: Is that right?
Mr. Emerson: Yes.
I'm quite certain about that, Your Honor.
There is no element of profit in this whatsoever.
Justice Hugo L. Black: What does Mrs. Griswold get?
Mr. Emerson: She was executive director of the Planned Parenthood League of Connecticut.
Justice Hugo L. Black: What does she get out of this clinic?
Mr. Emerson: I think nothing, Your Honor.
I think there was no --
Justice Hugo L. Black: Is the statement correct, however, as given by the court's opinion?
Mr. Emerson: I didn't recollect that the court said--
Justice Hugo L. Black: I think she got a salary.
Mr. Emerson: She got a salary from Planned Parenthood League of Connecticut, which sponsored the center, but she got no salary from the center.
Justice Arthur J. Goldberg: I'm not asking that with the idea that I think that raises, makes a constitutional difference, but because some suggestion has been made that it might?
Justice Byron R. White: Mr. Emerson, could I ask you another question?
Apparently, the State would concede that you certainly - that the defendants can raise the constitutional issues about this statute which the married couple could raise, provided they were litigating in a court of law and things like that, but how about the health argument?
Here were two healthy, two healthy people, apparently, these two married women who testified and can we really be legitimately concerned with the way this statute might apply to two other married women who might have health reasons for wanting a birth control device?
Justice Byron R. White: Yes, I think clearly so, Your Honor, because, in the first place, it would really make no sense for this Court to rule on the narrow issue of the three women that happened to be called as witnesses in this case; and then, if it decided as to them one way, the clinic would then operate, and the next day three more women would come in and raise different questions.
It seems to me that there is no sound judicial administration in taking it on that narrow a view, when actually it raises, for all practical purposes, all the types of problems that would come up in case any women came in.
Justice Byron R. White: But these people are being prosecuted for giving advice and furnishing devices to these particular women who testified, aren't they?
Mr. Emerson: Yes, Your Honor.
Justice Byron R. White: Not in a lot of other situations?
Mr. Emerson: No, but they are subrogated to the rights of those women, and those women--
Justice Byron R. White: Only those women, yes?
Mr. Emerson: Yes, Your Honor, but those women may be healthy today, but not tomorrow, for one thing.
Justice Byron R. White: Let's assume the woman was prosecuted for using, and she says, "This statute is unconstitutional because it would prevent a sick woman from using it;" and, are you sick?
"No, I'm not sick at all; I just want to practice birth control."
Mr. Emerson: Well, I think it's fully within the doctrine of the Aptheker case, for instance, Your Honor, in which a passport was denied to one member of the Communist Party and the question - the Court considered whether - how that statute applied to other members of the Communist Party.
I think that the issues are sufficiently related so that all aspects of the case would be considered.
I think the Court would be drawing the line much too finely if it attempted to separate the different types of patients that might come into that center.
Justice Byron R. White: Now, how about your First Amendment argument in the - is that really seriously involved here because it was furnishing the device?
Mr. Emerson: Yes, Your Honor.
The fact that I have not discussed the privacy argument or the First Amendment argument I hope will not be construed that I do not emphasize them.
The First Amendment argument is significant in two respects; both in the fact that the statute is void on its lace because it permits counseling - aiding, assisting, abetting and counseling the use of contraceptive devices.
That term could mean that a mother who counseled her newly married daughter to use contraceptives because of her ill health could come under the statute.
It could apply to a doctor who had a patient in his office and discussed the effectiveness of a contraceptive device with her. He would be running a serious risk.
Justice Arthur J. Goldberg: But doesn't that assume the underlying invalidity of the statute, because the mother could not counsel her daughter to commit adultery?
Mr. Emerson: Well, I'm not so sure about that, Your Honor and Mr. Justice Stewart said in the Kingsley Pictures case that freedom of speech did include the right to advocate adultery.
Justice Potter Stewart: Not to counsel an individual person to commit it, there may be a difference.
Justice Byron R. White: Not a specific crime?
Mr. Emerson: I would think that advocacy would be more likely to be outside the First Amendment than counseling, which is a personal, face-to-face relationship, and would probably be of less public social significance than advocacy, but we would argue two things, Your Honor --
Justice Byron R. White: But this is an aiding and abetting statute in connection with a specific crime.
This is not a statute that says, "it shall be illegal to aid, to counsel about birth control."
This is an aiding and abetting provision of a specific crime.
Mr. Emerson: That's true, Your Honor.
But the question of whether a person had violated the aiding and abetting statute by counseling various people on the use of contraceptives would raise many borderline cases, so that a person would not know what his rights were.
And also, we would contend that it would violate the First Amendment substantively because we would contend that a doctor did have a right to advise people to use contraceptives and to --
Justice Byron R. White: On this basis, there would be an awful lot of aiding and abetting statutes that would be declared unconstitutional.
Mr. Emerson: I think that's right, Your Honor, in the sense that the aiding and abetting statutes grew up quite independently of the First Amendment and have never really been reconciled.
The fact that there have not been more cases indicates that it's not been too pressing a situation, but I think sooner or later there will have to be a reconciliation.
Justice Byron R. White: To take your argument seriously, you have to assume that the aiding and abetting statutes really, really would be applied to people who simply counseled generally, rather than in connection with a specific crime.
Either that, or we have to think that you are urging that advising to commit a specific crime is protected by the First Amendment. You're not doing the latter, are you?
Mr. Emerson: Not perhaps as to all crimes and in all circumstances, but there is a point at which advising, in the sense of advocating, is certainly protected, under any doctrine of this Court.
Justice Arthur J. Goldberg: Mr. Emerson, I think that that's quite a different thing.
You can advocate, as a matter of advocacy, repeal of any law, and say you're against the underlying principle, but it's pretty farfetched to say that, assuming the validity of the law, the First Amendment protects counseling the violation of such a law.
Justice Byron R. White: Mr. Justice Brandeis you recall said, that there are some types of advocacy which, even under the clear and present danger test, would be permitted under the First Amendment.
It depends on the, in his view, on the extent of the evil, and hence it would depend on how serious the Court thought the consequences were under that view.
Justice Arthur J. Goldberg: Of course, here, as a matter of the record, the activity involved is not counseling; it's conduct.
Isn't that correct?
We're dealing here with conduct.
The doctor prescribed devices from the center, and Mrs. Griswold helped supply them.
So we're really not dealing with counseling.
Justice Byron R. White: We're not, directly, Your Honor, and it's quite true, as I said yesterday, that those aspects of it are outside.
Our position is that the statute is void on its face because it infringes the First Amendment by permitting the possibility of a punishment for counseling, and thus inhibiting free speech; and also, that those aspects of free speech which were protected by the First Amendment in this case were lumped together in the findings of the court.
The action and the speech were all put together in one gray-bag and the court came out with its conviction, and we consider that also a violation of free speech.
Justice Hugo L. Black: Would your argument with reference to all these things you've been talking about relating to privacy and so forth, would invalidate all laws that punish people for bringing about abortions?
Mr. Emerson: No, I think it would not cover the abortion laws or the sterilization laws, Your Honor.
Those - that conduct does not occur in the privacy of the home.
Justice Hugo L. Black: There is some privacy, as a rule, and the individual doesn't usually want it made known, it's a very private thing.
Mr. Emerson: Well, that aspect of it is true, Your Honor, but those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this --
Justice Hugo L. Black: Part of it goes on in the home, undoubtedly?
Mr. Emerson: Part of it does, Your Honor, but the conduct that is being prohibited in the abortion cases takes place outside of the home, normally.
There is no violation of the sanctity of the home.
Justice William J. Brennan: Well, apart from that, Mr. Emerson, I take it abortion involves killing the life of a being, doesn't it?
Isn't that a rather different problem from contraception?
Mr. Emerson: Oh, yes, of course.
Justice William J. Brennan: And isn't it different in the sense of the State's power to deal with it?
Mr. Emerson: Oh, yes.
Of course, the substantive offense is quite different here.
Justice Hugo L. Black: Are you saying that all abortions involve killing or murder?
Mr. Emerson: Well I don't know whether you need characterize it that way, but it involves taking what has begun to be a life.
Justice Hugo L. Black: But the State thinks each of them is wrong, and it passes a law to forbid it being done.
It relates to a pretty closely analogous situation [Inaudible]
Mr. Emerson: Yes, Your Honor, but that case is different from this situation because in the abortion cases Connecticut does not apply this moral principle.
It is the use of an instrument to prevent birth taking place, but they do not apply the moral principle that it can never be done.
In Connecticut, abortion is allowed where it is necessary to save the life of the mother or the child.
So that the basic moral principle that Connecticut is trying to enforce here, they simply pay no attention to in their abortion laws.
It's a completely inconsistent application of the principle.
They don't take it seriously in the abortion cases, only in contraception cases.
Chief Justice Earl Warren: Mr. Emerson, I understood Mr. Clark to say that the question of the unconstitutionality of this act on its face was never raised below, and that this was the first time you argue it.
Is that correct?
Mr. Emerson: No, Your Honor.
In the demurrers to the indictment - we have all this in our brief on page 16, in the demurrers to the indictment, it was alleged that the statutes were unconstitutional as applied to the defendants, and it's on that basis that they make that assertion.
It was put in that language in order to avoid the problem of the Tileston case.
But the appellants have consistently asserted that the statutes were void as a whole, for all the reasons that we have given here, and we point out the places in the record where that issue was consistently raised below and was consistently passed on by the courts below.
All the issues that we have raised here were.
Chief Justice Earl Warren: You point out there that "as applied."
Now, did you specifically attack the constitutionality on its face, as being unconstitutional?
Mr. Emerson: No, it just said, "as applied to them" at that point in the demurrers to the information, but at other points, the broad arguments were raised that we have raised here.
Chief Justice Earl Warren: Is that in the record where we can find it?
Mr. Emerson: Yes.
Chief Justice Earl Warren: Where?
Mr. Emerson: There's a citation given on --
Chief Justice Earl Warren: Do we have the citation from your brief?
Justice Byron R. White: Yes.
Chief Justice Earl Warren: Alright.