U.S. Supreme Court
CAREY v. POPULATION SERVICES INTERNATIONAL, 431 U.S. 678
431 U.S. 678
CAREY, GOVERNOR OF NEW YORK, ET AL. v. POPULATION SERVICES
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
Argued January 10, 1977
Decided June 9, 1977
Section 6811 (8) of the New York Education Law makes it a crime (1) for any
person to sell or distribute any contraceptive of any kind to a minor under 16;
(2) for anyone other than a licensed pharmacist to distribute contraceptives to
persons 16 or over; and (3) for anyone, including licensed pharmacists, to
advertise or display contraceptives. In appellees' action against appellant
state officials challenging the constitutionality of 6811 (8), a three-judge
District Court declared the statute unconstitutional in its entirety under the
First and Fourteenth Amendments insofar as it applies to nonprescription
contraceptives, and enjoined its enforcement as so applied. Held: The judgment
is affirmed. Pp. 682-703; 707-708; 713-716.
398 F. Supp. 321, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court with respect to
Parts I, II, III, and V, finding that:
1. Appellee Population Planning Associates (PPA), a corporation that makes
mail-order sales of nonmedical contraceptive devices from its North Carolina
offices and regularly advertises its products in New York periodicals and
fills mail orders from New York residents without limiting availability of
the products to persons of any particular age, has the requisite standing to
maintain the action not only in its own right but also on behalf of its
potential customers, Craig v. Boren, 429 U.S. 190, and therefore there is no
occasion to decide the standing of the other appellees. Pp. 682-684.
2. Regulations imposing a burden on a decision as fundamental as whether to
bear or beget a child may be justified only by compelling state interests,
and must be narrowly drawn to express only those interests. Pp. 684-686.
3. The provision prohibiting distribution of nonmedical contraceptives to
persons 16 or over except through licensed pharmacists clearly burdens the
right of such individuals to use contraceptives if they so desire, and the
provision serves no compelling state interests. It cannot be justified by an
interest in protecting health insofar as it applies
[431 U.S. 678, 679] to nonhazardous contraceptives or in protecting
potential life, nor can it be justified by a concern that young people not
sell contraceptives, or as being designed to serve as a quality control
device or as facilitating enforcement of the other provisions of the
statute. Pp. 686-691.
4. The prohibition of any advertisement or display of contraceptives that
seeks to suppress completely any information about the availability and
price of contraceptives cannot be justified on the ground that
advertisements of contraceptive products would offend and embarrass those
exposed to them and that permitting them would legitimize sexual activity of
young people. These are classically not justifications validating
suppression of expression protected by the First Amendment, and here the
advertisements in question merely state the availability of products that
are not only entirely legal but constitutionally protected. Pp. 700-702.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE STEWART, MR. JUSTICE MARSHALL,
and MR. JUSTICE BLACKMUN, concluded in Part IV that the provision
prohibiting distribution of contraceptives to persons under 16, as applied
to nonprescription contraceptives, cannot be justified as a permissible
regulation of minors' morality in furtherance of the State's policy against
promiscuous sexual intercourse among the young. Pp. 691-699.
(a) The right to privacy in connection with decisions affecting procreation
extends to minors as well as to adults, and since a State may not impose a
blanket prohibition, or even a blanket requirement of parental consent, on
the choice of a minor to terminate her pregnancy, Planned Parenthood of
Missouri v. Danforth, 428 U.S. 52, the constitutionality of a blanket
prohibition of the distribution of contraceptives to minors is a fortiori
foreclosed. Pp. 693-694.
(b) The argument that sexual activity may be deterred by increasing the
hazards attendant on it has been rejected by the Court as a justification
for restrictions on the freedom to choose whether to bear or beget a child.
Eisenstadt v. Baird, 405 U.S. 438, 448; Roe v. Wade, 410 U.S. 113, 148.
Moreover, there is substantial doubt whether limiting access to
contraceptives will in fact substantially discourage early sexual behavior.
When a State, as here, burdens the exercise of a fundamental right, its
attempt to justify that burden as a rational means for the accomplishment of
some state policy requires more than the unsupported assertion (appellants
here having conceded that there is no evidence that teenage extramarital
sexual activity increases in proportion to the availability of
contraceptives) that the burden is connected to such a policy. Pp. 694-696. [431 U.S. 678, 680]
(c) That under another provision of the statute a minor under 16 may
be supplied with a contraceptive by a physician does not save the challenged
provision, especially where appellants asserted no medical necessity for
imposing a limitation on the distribution of nonprescription contraceptives
to minors. Pp. 697-699.
MR. JUSTICE WHITE concluded that the prohibition against distribution of
contraceptives to persons under 16 cannot be justified primarily because the
State has not demonstrated that such prohibition measurably contributes to
the deterrent purposes that the State advances as justification. Pp.
MR. JUSTICE POWELL concluded that the prohibition against distribution of
contraceptives to persons under 16 is defective both because it infringes
the privacy interests of married females between the ages of 14 and 16 and
because it prohibits parents from distributing contraceptives to their
children, thus unjustifiably interfering with parental interests in rearing
children. Pp. 707-708.
MR. JUSTICE STEVENS concluded that the prohibition against distribution of
contraceptives to persons under 16 denies such persons and their parents a
choice which, if available, would reduce exposure to venereal disease or
unwanted pregnancy, and that the prohibition cannot be justified as a means
of discouraging sexual activity by minors. Pp. 713-716.
BRENNAN, J., announced the Court's judgment and delivered an opinion of the
Court (Parts I, II, III, and V), in which STEWART, MARSHALL, BLACKMUN, and
STEVENS, JJ., joined; in all but Part II of which WHITE, J., joined; and in Part
I of which POWELL, J., joined; and an opinion (Part IV), in which STEWART,
MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., post, p. 702, POWELL, J., post,
p. 703, and STEVENS, J., post, p. 712, filed opinions concurring in part and
concurring in the judgment. BURGER, C. J., dissented. REHNQUIST, J., filed a
dissenting opinion, post, p. 717.
Arlene R. Silverman, Assistant Attorney General of New York, argued the cause
for appellants. With her on the briefs were Louis J. Lefkowitz, Attorney
General, and Samuel A. Hirshowitz, First Assistant Attorney General.
Michael N. Pollet argued the cause for appellees. With him on the brief was
[Footnote *] Briefs of amici curiae urging affirmance were
filed by Melvin L. Wulf, [431 U.S. 678, 681]
Judith M. Mears, and Rena Uviller for the American Civil Liberties Union; and by
Harriet F. Pilpel and Eve W. Paul for the Planned Parenthood Federation of
America et al. [431 U.S. 678, 681]
MR. JUSTICE BRENNAN delivered the opinion of the Court (Parts I, II, III, and
V), together with an opinion (Part IV), in which MR. JUSTICE STEWART, MR.
JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN joined.
Under New York Educ. Law 6811 (8) (McKinney 1972) it is a crime (1) for any
person to sell or distribute any contraceptive of any kind to a minor under the
age of 16 years; (2) for anyone other than a licensed pharmacist to distribute
contraceptives to persons 16 or over; and (3) for anyone, including licensed
pharmacists, to advertise or display contraceptives.1 A
three-judge District Court for the Southern District of New York declared 6811
(8) unconstitutional in its entirety under the First and Fourteenth Amendments
of the [431 U.S. 678, 682] Federal
Constitution insofar as it applies to nonprescription contraceptives, and
enjoined its enforcement as so applied. 398 F. Supp. 321 (1975). We noted
probable jurisdiction, 426 U.S. 918 (1976). We affirm.
We must address a preliminary question of the standing of the
various appellees to maintain the action. We conclude that appellee Population
Planning Associates, Inc. (PPA) has the requisite standing and therefore have no
occasion to decide the standing of the other appellees.2
PPA is a corporation primarily engaged in the mail-order retail sale of
nonmedical contraceptive devices from its offices in North Carolina. PPA
regularly advertises its products in periodicals published or circulated in New
York, accepts orders from New York residents, and fills orders by mailing
contraceptives to New York purchasers. Neither the advertisements nor the order
forms accompanying them limit availability of PPA's products to persons of any
Various New York officials have advised PPA that its activities violate New
York law. A letter of December 1, 1971, notified PPA that a PPA advertisement in
a New York college newspaper violated 6811 (8), citing each of the three
challenged provisions, and requested "future compliance" with the
[431 U.S. 678, 683]
law. A second letter, dated February 23, 1973, notifying PPA that PPA's magazine
advertisements of contraceptives violated the statute, referred particularly to
the provisions prohibiting sales to minors and sales by nonpharmacists, and
threatened: "In the event you fail to comply, the matter will be referred to our
Attorney General for legal action." Finally, PPA was served with a copy of a
report of inspectors of the State Board of Pharmacy, dated September 4, 1974,
which recorded that PPA advertised male contraceptives, and had been advised to
cease selling contraceptives in violation of the state law.
That PPA has standing to challenge 6811 (8), not only in its own right but
also on behalf of its potential customers, is settled by Craig v. Boren, 429
U.S. 190, 192-197 (1976). Craig held that a vendor of 3.2% beer had standing to
challenge in its own right and as advocate for the rights of third persons, the
gender-based discrimination in a state statute that prohibited sale of the beer
to men, but not to women, between the ages of 18 and 21. In this case, as did
the statute in Craig, 6811 (8) inflicts on the vendor PPA "injury in fact" that
satisfies Art. III's case-or-controversy requirement, since "[t]he legal duties
created by the statutory sections under challenge are addressed directly to
vendors such as [PPA. It] is obliged either to heed the statutory [prohibition],
thereby incurring a direct economic injury through the constriction of [its]
market, or to disobey the statutory command and suffer" legal sanctions. 429
U.S., at 194.3
Therefore, [431 U.S. 678, 684] PPA is
among the "vendors and those in like positions [who] have been uniformly
permitted to resist efforts at restricting their operations by acting as
advocates for the rights of third parties who seek access to their market or
function." Id., at 195. See also Eisenstadt v. Baird, 405 U.S. 438, 443-446
(1972); Sullivan v. Little Hunting Park, 396 U.S. 229, 237 (1969); Barrows v.
Jackson, 346 U.S. 249, 257-260 (1953). As such, PPA "is entitled to assert those
concomitant rights of third parties that would be `diluted or adversely
affected' should [its] constitutional challenge fail." Craig v. Boren, supra, at
195, quoting Griswold v. Connecticut, 381 U.S. 479, 481 (1965).4
Although "[t]he Constitution does not explicitly mention any
right of privacy," the Court has recognized that one aspect of the "liberty"
protected by the Due Process Clause of the Fourteenth Amendment is "a right of
personal privacy, or a guarantee of certain areas or zones of privacy." Roe v.
Wade, 410 U.S. 113, 152 (1973). This right of personal privacy includes "the
interest in independence in making certain kinds of important decisions." Whalen
v. Roe, 429 U.S. 589, 599-600 (1977). While the outer limits of this aspect of
privacy have not been marked by the Court, it is clear that among
[431 U.S. 678, 685] the decisions that an individual may make without
unjustified government interference are personal decisions "relating to
marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542 (1942); contraception,
Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J.,
concurring in result); family relationships, Prince v. Massachusetts, 321 U.S.
158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters,
268 U.S. 510, 535 (1925); Meyer v. Nebraska, [262 U.S. 390, 399 (1923)]." Roe v.
Wade, supra, at 152-153. See also Cleveland Board of Education v. LaFleur, 414
U.S. 632, 639-640 (1974).
The decision whether or not to beget or bear a child is at the very heart of
this cluster of constitutionally protected choices. That decision holds a
particularly important place in the history of the right of privacy, a right
first explicitly recognized in an opinion holding unconstitutional a statute
prohibiting the use of contraceptives, Griswold v. Connecticut, supra, and most
prominently vindicated in recent years in the contexts of contraception,
Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; and abortion, Roe v.
Wade, supra; Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (1976). This is understandable, for in a field
that by definition concerns the most intimate of human activities and
relationships, decisions whether to accomplish or to prevent conception are
among the most private and sensitive. "If the right of privacy means anything,
it is the right of the individual, married or single, to be free of unwarranted
governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453.
That the constitutionally protected right of privacy extends to an
individual's liberty to make choices regarding contraception does not, however,
automatically invalidate every state [431 U.S.
678, 686] regulation in this area. The business of manufacturing and
selling contraceptives may be regulated in ways that do not infringe protected
individual choices. And even a burdensome regulation may be validated by a
sufficiently compelling state interest. In Roe v. Wade, for example, after
determining that the "right of privacy . . . encompass[es] a woman's decision
whether or not to terminate her pregnancy," 410 U.S., at 153, we cautioned that
the right is not absolute, and that certain state interests (in that case,
"interests in safeguarding health, in maintaining medical standards, and in
protecting potential life") may at some point "become sufficiently compelling to
sustain regulation of the factors that govern the abortion decision." Id., at
154. "Compelling" is of course the key word; where a decision as fundamental as
that whether to bear or beget a child is involved, regulations imposing a burden
on it may be justified only by compelling state interests, and must be narrowly
drawn to express only those interests. Id., at 155-156, and cases there cited.
With these principles in mind, we turn to the question whether the District
Court was correct in holding invalid the provisions of 6811 (8) as applied to
the distribution of nonprescription contraceptives.
We consider first the wider restriction on access to
contraceptives created by 6811 (8)'s prohibition of the distribution of
nonmedical contraceptives to adults except through licensed pharmacists.
Appellants argue that this Court has not accorded a "right of access to
contraceptives" the status of a fundamental aspect of personal liberty. They
emphasize that Griswold v. Connecticut struck down a state prohibition of the
use of contraceptives, and so had no occasion to discuss laws "regulating their
manufacture or sale." 381 U.S., at 485. Eisenstadt v. Baird, was decided under
the Equal Protection Clause, holding that "whatever the rights of the individual
to access to contraceptives [431 U.S. 678, 687] may be, the rights must be
the same for the unmarried and the married alike." 405 U.S., at 453. Thus
appellants argue that neither case should be treated as reflecting upon the
State's power to limit or prohibit distribution of contraceptives to any
persons, married or unmarried. But see id., at 463-464 (WHITE, J., concurring in
The fatal fallacy in this argument is that it overlooks the underlying
premise of those decisions that the Constitution protects "the right of the
individual . . . to be free from unwarranted governmental intrusion into . . .
the decision whether to bear or beget a child." Id., at 453. Griswold did state
that by "forbidding the use of contraceptives rather than regulating their
manufacture or sale," the Connecticut statute there had "a maximum destructive
impact" on privacy rights. 381 U.S., at 485. This intrusion into "the sacred
precincts of marital bedrooms" made that statute particularly "repulsive." Id.,
at 485-486. But subsequent decisions have made clear that the constitutional
protection of individual autonomy in matters of childbearing is not dependent on
that element. Eisenstadt v. Baird, holding that the protection is not limited to
married couples, characterized the protected right as the "decision whether to
bear or beget a child." 405 U.S., at 453 (emphasis added). Similarly, Roe v.
Wade, held that the Constitution protects "a woman's decision whether or not to
terminate her pregnancy." 410 U.S., at 153 (emphasis added). See also Whalen v.
Roe, supra, at 599-600, and n. 26. These decisions put Griswold in proper
perspective. Griswold may no longer be read as holding only that a State may not
prohibit a married couple's use of contraceptives. Read in light of its progeny,
the teaching of Griswold is that the Constitution protects individual decisions
in matters of childbearing from unjustified intrusion by the State.
Restrictions on the distribution of contraceptives clearly burden the freedom
to make such decisions. A total prohibition against sale of contraceptives, for
example, would intrude [431 U.S. 678, 688]
upon individual decisions in matters of procreation and contraception as harshly
as a direct ban on their use. Indeed, in practice, a prohibition against all
sales, since more easily and less offensively enforced, might have an even more
devastating effect upon the freedom to choose contraception. Cf. Poe v. Ullman,
367 U.S. 497 (1961).
An instructive analogy is found in decisions after Roe v. Wade, supra, that
held unconstitutional statutes that did not prohibit abortions outright but
limited in a variety of ways a woman's access to them. Doe v. Bolton, 410 U.S.
179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52
(1976). See also Bigelow v. Virginia, 421 U.S. 809 (1975). The significance of
these cases is that they establish that the same test must be applied to state
regulations that burden an individual's right to decide to prevent conception or
terminate pregnancy by substantially limiting access to the means of
effectuating that decision as is applied to state statutes that prohibit the
decision entirely. Both types of regulation "may be justified only by a
`compelling state interest' . . . and . . . must be narrowly drawn to express
only the legitimate state interests at stake." Roe v. Wade, supra, at 155.5 See also Eisenstadt v. Baird, 405 U.S., at 463 (WHITE, J.,
concurring in result). This is so not because there is an independent
fundamental "right of access to contraceptives," but because such access is
essential to exercise of the constitutionally protected right of decision in
matters of childbearing that is the [431 U.S.
underlying foundation of the holdings in Griswold, Eisenstadt v. Baird, and Roe
Limiting the distribution of nonprescription contraceptives to licensed
pharmacists clearly imposes a significant burden on the right of the individuals
to use contraceptives if they choose to do so. Eisenstadt v. Baird, supra, at
461-464 (WHITE, J., concurring in result). The burden is, of course, not as
great as that under a total ban on distribution. Nevertheless, the restriction
of distribution channels to a small fraction of the total number of possible
retail outlets renders contraceptive devices considerably less accessible to the
public, reduces the opportunity for privacy of selection and purchase,6 and lessens the possibility of price
competition.7 Cf. Griswold v. Connecticut, 381 U.S., at 503 (WHITE, J.,
concurring in judgment). Of particular relevance here is Doe v. Bolton, supra,
in which the Court struck down, as unconstitutionally burdening the right of a
woman to choose abortion, a statute requiring that abortions be performed only
in accredited hospitals, in the absence of proof that the requirement was
substantially related to the State's interest in protecting the patient's
health. 410 U.S., at 193-195. The same infirmity infuses the limitation in 6811
(8). "Just as in Griswold, where the right of married persons to use
contraceptives was `diluted or adversely affected' by permitting a
[431 U.S. 678, 690]
conviction for giving advice as to its exercise, . . . so here, to sanction a
medical restriction upon distribution of a contraceptive not proved hazardous to
health would impair the exercise of the constitutional right." Eisenstadt v.
Baird, 405 U.S., at 464 (WHITE, J., concurring in result).
There remains the inquiry whether the provision serves a compelling state
interest. Clearly "interests . . . in maintaining medical standards, and in
protecting potential life," Roe v. Wade, 410 U.S., at 154, cannot be invoked to
justify this statute. Insofar as 6811 (8) applies to nonhazardous
contraceptives,8 it bears no relation to the State's interest in protecting
health. Eisenstadt v. Baird, supra, at 450-452; 463-464 (WHITE, J., concurring
Nor is the interest in protecting potential life implicated in state regulation
of contraceptives. Roe v. Wade, supra, at 163-164.
Appellants therefore suggest that 6811 (8) furthers other state interests.
But none of them is comparable to those the Court has heretofore recognized as
compelling. Appellants argue that the limitation of retail sales of nonmedical
contraceptives to pharmacists (1) expresses "a proper concern that young people
not sell contraceptives"; (2) "allows purchasers to inquire as to the relative
qualities of the varying products and prevents anyone from tampering with them";
and (3) facilitates enforcement of the other provisions of the statute. Brief
for Appellants 14. The first hardly can justify the statute's incursion into
constitutionally protected rights, and [431 U.S. 678, 691] in any event the statute is obviously
not substantially related to any goal of preventing young people from selling
contraceptives.10 Nor is the statute designed to serve as a
quality control device. Nothing in the record suggests that pharmacists are
particularly qualified to give advice on the merits of different nonmedical
contraceptives, or that such advice is more necessary to the purchaser of
contraceptive products than to consumers of other nonprescription items. Why
pharmacists are better able or more inclined than other retailers to prevent
tampering with prepackaged products, or, if they are, why contraceptives are
singled out for this special protection, is also unexplained.11 As to ease of enforcement, the prospect of additional
administrative inconvenience has not been thought to justify invasion of
fundamental constitutional rights. See, e. g., Morrissey v. Brewer, 408 U.S. 471
(1972); Goldberg v. Kelly, 397 U.S. 254 (1970).
The District Court also held unconstitutional, as applied to
nonprescription contraceptives, the provision of 6811 (8) prohibiting the
distribution of contraceptives to those under
[431 U.S. 678, 692] 16 years of age.13
Appellants contend that this provision of the statute is constitutionally
permissible as a regulation of the morality of minors, in furtherance of the
State's policy against promiscuous sexual intercourse among the young.
The question of the extent of state power to regulate conduct of minors not
constitutionally regulable when committed by adults is a vexing one, perhaps not
susceptible of precise answer. We have been reluctant to attempt to define "the
totality of the relationship of the juvenile and the state." In re Gault, 387
U.S. 1, 13 (1967). Certain principles, however, have been recognized. "Minors,
as well as adults, are protected by the Constitution and possess constitutional
rights." Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 74.
"[W]hatever may be their precise impact, neither the Fourteenth Amendment nor
the Bill of Rights is for adults alone." In re Gault, supra, at 13.14 On the other hand, we have held in a variety of contexts that
"the power of the state to control the conduct of children reaches beyond the
scope of its authority over adults." Prince v. Massachusetts, 321 U.S. 158, 170
(1944). See Ginsberg v. New York, 390 U.S. 629 (1968). See also McKeiver v.
Pennsylvania, 403 U.S. 528 (1971). [431 U.S. 678,
Of particular significance to the decision of this case, the right to privacy
in connection with decisions affecting procreation extends to minors as well as
to adults. Planned Parenthood of Central Missouri v. Danforth, supra, held that
a State "may not impose a blanket provision . . . requiring the consent of a
parent or person in loco parentis as a condition for abortion of an unmarried
minor during the first 12 weeks of her pregnancy." 428 U.S., at 74. As in the
case of the spousal-consent requirement struck down in the same case, id., at
67-72, "the State does not have the constitutional authority to give a third
party an absolute, and possibly arbitrary, veto," id., at 74, "`which the state
itself is absolutely and totally prohibited from exercising.'" Id., at 69. State
restrictions inhibiting privacy rights of minors are valid only if they serve
"any significant state interest . . . that is not present in the case of an
adult." Id., at 75.15 Planned Parenthood
found that no such interest justified a state requirement of parental consent.16 [431 U.S. 678, 694]
Since the State may not impose a blanket prohibition, or even a blanket
requirement of parental consent, on the choice of a minor to terminate her
pregnancy, the constitutionality of a blanket prohibition of the distribution of
contraceptives to minors is a fortiori foreclosed. The State's interests in
protection of the mental and physical health of the pregnant minor, and in
protection of potential life are clearly more implicated by the abortion
decision than by the decision to use a nonhazardous contraceptive.
Appellants argue, however, that significant state interests are served by
restricting minors' access to contraceptives, because free availability to
minors of contraceptives would lead to increased sexual activity among the
young, in violation of the policy of New York to discourage such behavior.17 The argument is that minors' sexual activity may be deterred
by increasing the hazards attendant on it. The same argument, however, would
support a ban on abortions for minors, or indeed support a prohibition on
abortions, or access to contraceptives, for the unmarried, whose sexual activity
is also against the public policy of many States. Yet, in each of these areas,
the Court has rejected the argument, noting in Roe v. Wade, that "no court or
commentator has taken the argument seriously." 410
[431 U.S. 678, 695]
U.S., at 148. The reason for this unanimous rejection was stated in Eisenstadt
v. Baird: "It would be plainly unreasonable to assume that [the State] has
prescribed pregnancy and the birth of an unwanted child [or the physical and
psychological dangers of an abortion] as punishment for fornication." 405 U.S.,
at 448. We remain reluctant to attribute any such "scheme of values" to the
Moreover, there is substantial reason for doubt whether limiting access to
contraceptives will in fact substantially discourage early sexual behavior.
Appellants themselves conceded in the District Court that "there is no evidence
that teenage extramarital sexual activity increases in proportion to the
availability of contraceptives," 398 F. Supp., at 332, and n. 10, and
accordingly offered none, in the District Court or here. Appellees, on the other
hand, cite a considerable body of evidence and opinion indicating that there is
no such deterrent effect.19 Although we take judicial notice, as did the
[431 U.S. 678, 696] District Court, id., at 331-333, that with or without
access to contraceptives, the incidence of sexual activity among minors is high,20
and the consequences of such activity are frequently devastating,21 the studies cited by appellees play no part in our decision.
It is enough that we again confirm the principle that when a State, as here,
burdens the exercise of a fundamental right, its attempt to justify that burden
as a rational means for the accomplishment of some significant state policy
requires more than a bare assertion, based on a conceded complete absence of
supporting evidence, that the burden is connected to such a policy.22 [431 U.S. 678, 697]
Appellants argue that New York does not totally prohibit
distribution of contraceptives to minors under 16, and that accordingly 6811 (8)
cannot be held unconstitutional. Although 6811 (8) on its face is a flat
unqualified prohibition, Educ. Law 6807 (b) (McKinney, Supp. 1976-1977), see nn.
1, 7, and 13, supra, provides that nothing in Education Law 6800-6826 shall be
construed to prevent "[a]ny physician . . . from supplying his patients with
such drugs as [he] . . . deems proper in connection with his practice." This
narrow exception, however, does not save the statute. As we have held above as
to limitations upon distribution to adults, less than total restrictions on
access to contraceptives that significantly burden the right to decide whether
to bear children must also pass constitutional scrutiny. Appellants assert no
medical necessity for imposing a medical limitation on the distribution of
nonprescription contraceptives to minors. Rather, they argue that such a
restriction serves to emphasize to young people the seriousness with which the
State views the decision to engage in sexual intercourse at an early age.23 But this is only another form of the [431 U.S. 678, 698] argument that juvenile
sexual conduct will be deterred by making contraceptives more difficult to
obtain. Moreover, that argument is particularly poorly suited to the restriction
[431 U.S. 678, 699] appellants are attempting to justify, which on
appellants' construction delegates the State's authority to disapprove of
minors' sexual behavior to physicians, who may exercise it arbitrarily,24 either to deny contraceptives to young people, or to
undermine the State's policy of discouraging illicit early sexual behavior. This
the State may not do. Cf. Planned Parenthood of Central Missouri v. Danforth,
428 U.S., at 69, 74.25 [431 U.S. 678, 700]
The District Court's holding that the prohibition of any
"advertisement or display" of contraceptives is unconstitutional was clearly
correct. Only last Term Virginia Pharmacy Bd. v. Virginia Citizens Consumer
Council, 425 U.S. 748 (1976), held that a State may not "completely suppress the
dissemination of concededly truthful information about entirely lawful
activity," even when that information could be categorized as "commercial
speech." Id., at 773. Just as in that case, the statute challenged here seeks to
suppress completely any information about the availability and price of
contraceptives.26 Nor does the case present any question left open in Virginia
Pharmacy Bd.; here, as there, there can be no contention that the regulation is
"a mere time, place, and manner restriction," id., at 771, or that it prohibits
only misleading or deceptive advertisements, ibid., or "that the transactions
proposed in the forbidden advertisements are themselves illegal in any way. Cf.
Pittsburgh Press Co. v. Human Relations Comm'n, [413 U.S. 376 (1973)]." Id., at
772-773. Moreover, in addition to the "substantial individual and societal
interests" in the free flow of commercial information enumerated in Virginia
Pharmacy Bd., supra, at 763-766, the [431 U.S.
678, 701] information suppressed by this statute "related to activity
with which, at least in some respects, the State could not interfere." 425 U.S.,
at 760. Cf. Bigelow v. Virginia, 421 U.S. 809 (1975).
Appellants contend that advertisements of contraceptive products would be
offensive and embarrassing to those exposed to them, and that permitting them
would legitimize sexual activity of young people. But these are classically not
justifications validating the suppression of expression protected by the First
Amendment. At least where obscenity is not involved, we have consistently held
that the fact that protected speech may be offensive to some does not justify
its suppression. See, e. g., Cohen v. California, 403 U.S. 15 (1971).27
As for the possible "legitimation" of illicit sexual behavior, whatever might be
the case if the advertisements directly incited illicit sexual activity among
the young, none of the advertisements in this record can even remotely be
characterized as "directed to inciting or producing imminent lawless action and
. . . likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S.
444, 447 (1969). They merely state the availability of products and services
that are not only entirely legal, cf. Pittsburgh Press Co. v. Human Relations
Comm'n, 413 U.S. 376 (1973), but constitutionally protected. Cf. Bigelow v.
Virginia, supra.28 These arguments [431 U.S. 678, 702] therefore do not justify the total
suppression of advertising concerning contraceptives.29
THE CHIEF JUSTICE dissents.
[Footnote 1] Section 6811 (8) provides: "It shall be a
class A misdemeanor for: . . . . . "8. Any person to sell or distribute any
instrument or article, or any recipe, drug or medicine for the prevention of
contraception to a minor under the age of sixteen years; the sale or
distribution of such to a person other than a minor under the age of sixteen
years is authorized only by a licensed pharmacist but the advertisement or
display of said articles, within or without the premises of such pharmacy, is
hereby prohibited." After some dispute in the District Court the parties
apparently now agree that Education Law 6807 (b) (McKinney 1972) constitutes an
exception to the distribution prohibitions of 6811 (8). Section 6807 (b)
provides: "This article shall not be construed to affect or prevent: . . . . .
"(b) Any physician . . . who is not the owner of a pharmacy, or registered
store, or who is not in the employ of such owner, from supplying his patients
with such drugs as the physician . . . deems proper in connection with his
practice . . . ." The definition of "drugs" in Education Law 6802 (7) (McKinney
1972) apparently includes any contraceptive drug or device. See nn. 7, 13, and
23, and text, infra, at 697-699. See also 398 F. Supp. 321, 329-330, and n. 8.
[Footnote 2] In addition to PPA, the plaintiffs in the
District Court, appellees here, are Population Services International, a
nonprofit corporation disseminating birth control information and services; Rev.
James B. Hagen, a minister and director of a venereal disease prevention program
that distributes contraceptive devices; three physicians specializing in family
planning, pediatrics, and obstetrics-gynecology; and an adult New York resident
who alleges that the statute inhibits his access to contraceptive devices and
information, and his freedom to distribute the same to his minor children. The
District Court held that PPA and Hagen had standing, and therefore found it
unnecessary to decide the standing of the other plaintiffs. Id., at 327-330. The
appellants here, defendants in the District Court, are state officials
responsible for the enforcement of the Education Law provisions.
[Footnote 3] Appellants contend that PPA
has not suffered "injury in fact" because it has not shown that prosecution
under 6811 (8) is imminent. Steffel v. Thompson, 415 U.S. 452, 459-460 (1974) is
dispositive of this argument. PPA alleges that it has violated the challenged
statute in the past, and continues to violate it in the regular course of its
business; that it has been advised by the authorities responsible for enforcing
the statute that it is in violation; and that on at least one occasion, it has
been threatened with prosecution. The threat is not, as in Poe v. Ullman, 367
U.S. 497, 508 (1961) (plurality opinion), "chimerical." In that [431 U.S. 678, 684] case, the challenged state law had
fallen into virtual desuetude through lack of prosecution over some 80 years,
and plaintiffs alleged no explicit threat of prosecution. Here, PPA has been
threatened with legal action, and prosecutions have been brought under the
predecessor of 6811 (8) as recently as 1965. See, e. g., People v. Baird, 47
Misc. 2d 478, 262 N. Y. S. 2d 947 (1965).
[Footnote 4] Indeed, the case for the
vendor's standing to assert the rights of potential purchasers of his product is
even more compelling here than in Craig, because the rights involved fall within
the sensitive area of personal privacy. In such a case potential purchasers "may
be chilled from . . . assertion [of their own rights] by a desire to protect the
very privacy [they seek to vindicate] from the publicity of a court suit."
Singleton v. Wulff, 428 U.S. 106, 117 (1976).
[Footnote 5] Contrary to the suggestion
advanced in MR. JUSTICE POWELL'S opinion, we do not hold that state regulation
must meet this standard "whenever it implicates sexual freedom," post, at 705,
or "affect[s] adult sexual relations," post, at 703, but only when it "burden[s]
an individual's right to decide to prevent conception or terminate pregnancy by
substantially limiting access to the means of effectuating that decision."
Supra, this page. As we observe below, "the Court has not definitively answered
the difficult question whether and to what extent the Constitution prohibits
state statutes regulating [private consensual sexual] behavior among adults," n.
17, infra, and we do not purport to answer that question now.
[Footnote 6] As MR. JUSTICE POWELL notes,
post, at 711, the prohibition of mail-order sales of contraceptives, as
practiced by PPA, is a particularly "significant invasion of the
constitutionally protected privacy in decisions concerning sexual relations."
[Footnote 7] The narrow exception to 6811
(8) arguably provided by New York Educ. Law 6807 (b) (McKinney, Supp.
1976-1977), see n. 1, supra, which permits a physician "who is not the owner of
a pharmacy, or registered store" to supply his patients with "such drugs as [he]
. . . deems proper in connection with his practice" obviously does not
significantly expand the number of regularly available, easily accessible retail
outlets for nonprescription contraceptives, and so has little relevance to our
analysis of this aspect of 6811 (8).
[Footnote 8] We have taken judicial notice
that "not all contraceptives are potentially dangerous." Eisenstadt v. Baird,
405 U.S., 438, 451, and n. 9 (1972). See also id., at 463-464 (WHITE, J.,
concurring in result).
[Footnote 9] Indeed, in light of other
provisions of both federal and state law that comprehensively regulate hazardous
drugs and devices, see, e. g., 21 U.S.C. 351-360, especially 353 (b); N. Y.
Educ. Law 6800-6826 (McKinney 1972 and Supp. 1976-1977), especially 6810, it is
unclear what health-related interest the State could have in nonprescription
contraceptives. Eisenstadt v. Baird, supra, at 452.
[Footnote 10] Nothing in New York law
limits the employment of minors who work as sales clerks in pharmacies. To the
extent that minors employed in other retail stores selling contraceptive
products might be exposed "to undesirable comments and gestures," Brief for
Appellants 3-4, or otherwise corrupted by exposure to such products, minors
working as sales clerks in pharmacies are exposed to the same hazards.
[Footnote 11] As the District Court
pointed out, while these interests are insufficient to justify limiting the
distribution of nonhazardous contraceptives to pharmacists, other restrictions
may well be reasonably related to the objective of quality control. We therefore
express no opinion on, for example, restrictions on the distribution of
contraceptives through vending machines, which are not before us in this case.
See 398 F. Supp., at 336.
[Footnote 12] This part of the opinion
expresses the views of JUSTICES BRENNAN, STEWART, MARSHALL, and BLACKMUN.
[Footnote 13] Subject to an apparent
exception for distribution by physicians in the course of their practice. See n.
1, supra, and infra, at 697-699, nd n. 23.
[Footnote 14] Thus minors are entitled
to constitutional protection for freedom of speech, Tinker v. Des Moines School
Dist., 393 U.S. 503 (1969); West Virginia Bd. of Education v. Barnette, 319 U.S.
624 (1943); equal protection against racial discrimination, Brown v. Board of
Education, 347 U.S. 483 (1954); due process in civil contexts, Goss v. Lopez,
419 U.S. 565 (1975); and a variety of rights of defendants in criminal
proceedings, including the requirement of proof beyond a reasonable doubt, In re
Winship, 397 U.S. 358 (1970), the prohibition of double jeopardy, Breed v.
Jones, 421 U.S. 519 (1975), the rights to notice, counsel, confrontation, and
cross-examination, and not to incriminate oneself, In re Gault, 387 U.S. 1
(1967), and the protection against coerced confessions, Gallegos v. Colorado,
370 U.S. 49 (1962); Haley v. Ohio, 332 U.S. 596 (1948).
[Footnote 15] This test is apparently
less rigorous than the "compelling state interest" test applied to restrictions
on the privacy rights of adults. See, e. g., n. 16, infra. Such lesser scrutiny
is appropriate both because of the States' greater latitude to regulate the
conduct of children, Prince v. Massachusetts, 321 U.S. 158 (1944); Ginsberg v.
New York, 390 U.S. 629 (1968), and because the right of privacy implicated here
is "the interest in independence in making certain kinds of important
decisions," Whalen v. Roe, 429 U.S. 589, 599-600 (1977), and the law has
generally regarded minors as having a lesser capability for making important
decisions. See, e. g., Planned Parenthood, 428 U.S., at 102 (STEVENS, J.,
concurring in part and dissenting in part).
[Footnote 16] Planned Parenthood,
however, "does not suggest that every minor, regardless of age or maturity, may
give effective consent for termination of her pregnancy. See Bellotti v. Baird,
[428 U.S. 132 (1976)]. The fault of [the particular statute considered in
Planned Parenthood] is that it imposes a special-consent provision, exercisable
by a person other than the woman and her physician, as a prerequisite to a
minor's termination of her pregnancy . . . without a sufficient justification
for the restriction." Id., at 75.
[Footnote 17] Appellees argue that the
State's policy to discourage sexual activity of minors is itself
unconstitutional, for the reason that the right to privacy comprehends a right
of minors as well as adults to engage in private consensual sexual behavior. We
observe that the Court has not definitively answered the difficult question
whether and to what extent the Constitution prohibits state statutes regulating
such behavior among adults. See generally Note, On Privacy: Constitutional
Protection for Personal Liberty, 48 N. Y. U. L. Rev. 670, 719-738 (1973). But
whatever the answer to that question, Ginsberg v. New York, supra, indicates
that in the area of sexual mores, as in other areas, the scope of permissible
state regulation is broader as to minors than as to adults. In any event, it is
unnecessary to pass upon this contention of appellees, and our decision proceeds
on the assumption that the Constitution does not bar state regulation of the
sexual behavior of minors.
[Footnote 18] We note, moreover, that
other provisions of New York law argue strongly against any conclusion that the
deterrence of illegal sexual conduct among minors was an objective of 6811 (8).
First, a girl in New York may marry as young as 14, with the consent of her
parents and a family court judge. N. Y. Dom. Rel. Law 15-a, 15 (2), 15 (3)
(McKinney 1964 and Supp. 1976-1977). Yet although sexual intercourse by a
married woman of that age violates no state law, 6811 (8) prohibits distribution
of contraceptives to her. Second, New York requires that birth control
information and services be provided to recipients of certain welfare programs,
provided only that they are "of childbearing age, including children who can be
considered sexually active." N. Y. Soc. Serv. Law 350 (1) (e) (McKinney 1976);
cf. 42 U.S.C. 602 (a) (15) (A) (1970 ed., Supp. V). See also N. Y. Soc. Serv.
Law 365-a (3) (c) (McKinney 1976); cf. 42 U.S.C. 1396d (a) (vii) (4) (C) (1970
ed., Supp. V). Although extramarital intercourse is presumably as contrary to
state policy among minors covered by those programs as among others, state law
requires distribution of contraceptives to them and prohibits their distribution
to all others.
[Footnote 19] See, e. g., Settlage,
Baroff, & Cooper, Sexual Experience of Younger Teenage Girls Seeking
Contraceptive Assistance for the First Time, Family Planning Perspectives 223
(fall 1973); Pilpel & Wechsler, Birth Control,
[431 U.S. 678, 696]
Teenagers and the Law: A New Look 1971, Family Planning Perspectives 37 (July
1971); Stein, Furnishing Information and Medical Treatment to Minors for
Prevention, Termination and Treatment of Pregnancy, Clearinghouse Review 131,
132 (July 1971); Reiss, Contraceptive Information and Sexual Morality, Journal
of Sex Research 51 (Apr. 1966). See also Note, Parental Consent Requirements and
Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv. L. Rev. 1001,
1010, and n. 67 (1975); Jordan, A Minor's Right to Contraceptives, 7 U. Calif.
Davis L. Rev. 270, 272-273 (1974).
[Footnote 20] See, e. g., id., at
271-273; Kanter & Zelnick, Sexual Experience of Young Unmarried Women in the
United States, Family Planning Perspectives 9 (Oct. 1972).
[Footnote 21] Although this is not the
occasion for a full examination of these problems, the following data sketchily
indicate their extent. According to New York City Department of Health
statistics, filed with the Court by the American Civil Liberties Union as amicus
curiae, in New York City alone there were over 6,000 live births to girls under
the age of 17 in 1975, as well as nearly 11,000 abortions. Moreover, "[t]eenage
motherhood involves a host of problems, including adverse physical and
psychological effects upon the minor and her baby, the continuous stigma
associated with unwed motherhood, the need to drop out of school with the
accompanying impairment of educational opportunities, and other dislocations
[including] forced marriage of immature couples and the often acute anxieties
involved in deciding whether to secure an abortion." Note, Parental Consent
Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88
Harv. L. Rev. 1001, 1010 (1975) (footnotes omitted). See also Jordan, supra, n.
19, at 273-275.
[Footnote 22] Appellants argue that the
statement in Ginsberg v. New York, 390 [431 U.S. 678, 697] U.S., at 641, that "it was not
irrational for the legislature to find that exposure to material condemned by
the statute is harmful to minors," is authority that the burden is appellees' to
prove that there is no connection between the statute and the asserted state
policy. But Ginsberg concerned a statute prohibiting dissemination of obscene
material that it held was not constitutionally protected. In contrast 6811 (8)
concerns distribution of material access to which is essential to exercise of a
[Footnote 23] There is considerable
doubt that appellants accurately identify the legislative purposes in enacting
Educ. Law 6807 (b) and 6811 (8). Section 6811 (8) (formerly Educ. Law 6804-b and
before that Penal Law 1142 (2)) was first enacted in 1965 as a modification,
apparently in response to Griswold v. Connecticut, 381 U.S. 479 (1965), of
former Penal Law 1142, titled "Indecent articles." 1965 N. Y. Laws, c. 637. This
statute, which dated back at least to 318 of the Penal Code of [431 U.S. 678, 698] 1881, 1881 N. Y. Laws, c. 676, had
made it a misdemeanor for any person to distribute or advertise "any instrument
or article, or any drug or medicine, for the prevention of conception." Section
6807 (b), on the other hand, generally excepts the distribution of drugs by a
physician in the course of his practice from all the licensing requirements and
restrictions imposed on the practice of pharmacy by Education Law 6800-6826
(subject to certain provisos not here relevant). Such a provision, in one form
or another and bearing several different numbers, has been included in the
article concerning the practice of pharmacy since that article was first
incorporated in the Education Law in 1927, see former Education Law 1361, 1927
N. Y. Laws, c. 85, and before that a similar provision was included in the
statutes regulating pharmacy in the Public Health Law. See, e. g., Public Health
Law of 1893, 187, 1893 N. Y. Laws, c. 661. Thus, 6807 (b) and its predecessors
long predate the inclusion of 6811 (8) in the Education Law. Even more
significantly, when 6811 (8) was first enacted as Penal Law 1142 (2), it was not
subject to the physicians' exception of 6807 (b). Rather, it was apparently
subject to a different physicians' exception, former Penal Law 1145 ( 321 of the
Penal Code of 1881), which provided: "An article or instrument, used or applied
by physicians lawfully practicing, or by their direction or prescription, for
the cure or prevention of disease, is not an article of indecent or immoral
nature or use, within this chapter. The supplying of such articles to such
physicians or by their direction or prescription, is not an offense under this
chapter." This was interpreted by the New York Court of Appeals to permit a
physician "in good faith" to use contraceptives to treat "a married person to
cure or prevent disease," but not to permit "promiscuous advice to patients
irrespective of their condition." People v. Sanger, 222 N. Y. 192, 194-195, 118
N. E. 637, 637-638 (1918), appeal dismissed for lack of jurisdiction, 251 U.S.
537 (1919) (per curiam). See also People v. Byrne, 99 Misc. 1, 163 N. Y. S. 682
(1917); People v. Baird, 47 Misc. 2d 478, 262 N. Y. S. 2d 947 (1965). In light
of this history, it appears that insofar as the legislature had 6807 (b) in mind
at all when it transferred the prohibition of
[431 U.S. 678, 699]
distribution of contraceptives to those under 16 from the Penal Law to the
Education Law, it thought of that section as at most a narrow exception,
analogous to 1145, permitting physicians, "in connection with [their] practice,"
to treat or prevent disease, rather than, as appellants assert, intending that
6807 (b) and 6811 (8) be read together as establishing a scheme under which
contraceptives would be freely available to those under 16, but limiting the
distribution function to physicians. The legislative history of attempts in 1972
and 1974 to modify 6811 (8), to which appellants refer, supports this
construction. The legislators debating those bills seem to have thought of 6811
(8) as a flat prohibition of the distribution of contraceptives to minors, and
made no reference to 6807 (b).
[Footnote 24] In Doe v. Bolton, 410 U.S.
179, 196 (1973), we doubted that physicians would allow their moral
"predilections on extramarital sex" to interfere with their medical judgments
concerning abortions. Here, however, no medical judgment is involved at all; the
State purports to commission physicians to engage in moral counseling that can
reflect little other than their private views on the morality of premarital sex
among the young. It seems evident that many physicians are likely to have views
on this subject to a significant degree more permissive or more restrictive than
those of the State, the minor, or the minor's parents. Moreover, nothing in 6807
(b) suggests that the role of the physician is limited to such "counseling." The
statute does nothing more than to permit the physician to provide his patients
with such drugs or devices as he "deems proper." Such "absolute, and possibly
arbitrary" discretion over the privacy rights of minors is precisely what
Planned Parenthood condemned. 428 U.S., at 74.
[Footnote 25] In cases involving
abortions, we have emphasized that the decision to terminate a pregnancy is
properly made by a woman in consultation with her physician. See, e. g., Roe v.
Wade, 410 U.S. 113, 153, 164 (1973); Planned Parenthood of Central Missouri v.
Danforth, 428 U.S., [431 U.S. 678, 700] at 75. No such suggestion,
however, has been made concerning the right to obtain or use contraceptives. See
Griswold v. Connecticut, supra; Eisenstadt v. Baird, 405 U.S. 438 (1972). The
reason, of course, is that the abortion decision necessarily involves a medical
judgment, Roe v. Wade, supra, at 164, while the decision to use a nonhazardous
contraceptive does not. Eisenstadt v. Baird, supra, at 463-464 (WHITE, J.,
concurring in result). See also n. 24, supra.
[Footnote 26] The prohibition of
advertising and display of contraceptives is invalid as to prescription as well
as nonprescription contraceptives, at least when the advertising is by persons
who are licensed to sell such products. Virginia Pharmacy Bd. v. Virginia
Citizens Consumer Council, 425 U.S. 748 (1976).
[Footnote 27] Indeed, as the Court
recognized in Virginia Pharmacy Bd., much advertising is "tasteless and
excessive," and no doubt offends many. 425 U.S., at 765.
[Footnote 28] Appellants suggest no
distinction between commercial and noncommercial speech that would render these
discredited arguments meritorious when offered to justify prohibitions on
commercial speech. On the contrary, such arguments are clearly directed not at
any commercial aspect of the prohibited advertising but at the ideas conveyed
and form of expression - the core of First Amendment values. Cf. Linmark
Associates, Inc. v. Willingboro, ante, at 96-97.
[Footnote 29] We do not have before us,
and therefore express no views on, state regulation of the time, place, or
manner of such commercial advertising based on these or other state interests.
MR. JUSTICE WHITE, concurring in part and concurring in the result.
I join Parts I, III, and V of the Court's opinion and concur in the result
with respect to Part IV.*
Although I saw no reason in Eisenstadt v. Baird, 405 U.S. 438 (1972), to
reach "the novel constitutional question whether a State may restrict or forbid
the distribution of contraceptives to the unmarried," id., at 465 (concurring in
result), four of the seven Justices participating in that case held that in this
respect the rights of unmarried persons were equal to those of the married.
Given Eisenstadt and given the decision of the Court in the abortion case, Roe
v. Wade, 410 U.S. 113 (1973), the result reached by the Court in Part III of its
opinion appears warranted. I do not regard the opinion, however, as declaring
unconstitutional any state law forbidding extramarital sexual relations. On this
assumption I join Part III.
I concur in the result in Part IV primarily because the State has not
demonstrated that the prohibition against distribution of contraceptives to
minors measurably contributes to the deterrent purposes which the State advances
as justification for the restriction. Again, however, the legality of state laws
forbidding premarital intercourse is not at issue here; and, with MR. JUSTICE
STEVENS, "I would describe as [431 U.S. 678, 703] `frivolous' appellees' argument that
a minor has the constitutional right to put contraceptives to their intended
use, notwithstanding the combined objection of both parents and the State,"
post, at 713.
In joining Part V of the Court's opinion, I should also say that I agree with
the views of MR. JUSTICE STEVENS expressed in Part II of his separate opinion.
[Footnote *] There is no need for present
purposes to agree or disagree with the Court's summary of the law expressed in
MR. JUSTICE POWELL, concurring in part and concurring in the judgment.
I agree that Population Planning Associates has standing to maintain this
action, and therefore join Part I of the Court's opinion. Although I concur in
the judgment of the Court, I am not persuaded that the Constitution requires the
severe constraints that the Court's opinion places upon legislative efforts to
regulate the distribution of contraceptives, particularly to the young.
The Court apparently would subject all state regulation
affecting adult sexual relations to the strictest standard of judicial review.
Under today's decision, such regulation "may be justified only by compelling
state interests, and must be narrowly drawn to express only those interests."
Ante, at 686. Even regulation restricting only the sexual activity of the young
must now be justified by a "significant state interest," a standard that is
"apparently less rigorous" than the standard the Court would otherwise apply.
Ante, at 693 n. 15. In my view, the extraordinary protection the Court would
give to all personal decisions in matters of sex is neither required by the
Constitution nor supported by our prior decisions.
The cases on which the Court relies for its "compelling
interest" standard do not support the sweeping principle it adopts today. Those
cases generally involved direct and substantial
[431 U.S. 678, 704] interference with constitutionally protected rights.
In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court invalidated a state
statute prohibiting the use of contraceptives and making it illegal for
physicians to give advice to married persons regarding contraception. The
statute was viewed as one "operat[ing] directly on an intimate relation of
husband and wife and their physician's role in one aspect of that relation,"
id., at 482, and "seek[ing] to achieve its goals by means having a maximum
destructive impact upon that relationship," id., at 485. In Roe v. Wade, 410
U.S. 113 (1973) the Court reviewed a Texas statute imposing severe criminal
sanctions on physicians and other medical personnel who performed nontherapeutic
abortions, thus effectively foreclosing the availability and safety of this
desired service. And just last Term, in Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52 (1976), we invalidated Missouri's requirement of
spousal consent as a state-imposed "absolute obstacle to a woman's decision that
Roe held to be constitutionally protected from such interference." Id., at 71 n.
The Court relies on Planned Parenthood, supra, and Doe v. Bolton, 410 U.S.
179 (1973), for the proposition that "the same test must be applied to state
regulations that burden an individual's right to decide to prevent conception or
terminate pregnancy by substantially limiting access to the means of
effectuating that decision as is applied to state statutes that prohibit the
decision entirely." Ante, at 688. But neither of those cases refers to the
"compelling state interest" test. In Bolton, the Court invalidated procedural
requirements of the Georgia abortion statute that were found not "reasonably
related" to the asserted legislative purposes or to the "patient's needs." 410
U.S., at 194, 199. Planned Parenthood involved - in addition to the "absolute
obstacle" referred to above - the Missouri requirement of prior written consent
by the pregnant woman. Despite the fact that Missouri normally did not require
written consent for other surgical procedures, the Court
[431 U.S. 678, 705] sustained this regulation without requiring any
demonstration of compelling state interests. The Court recognized that the
decision to abort "is an important, and often a stressful one," and the State
thus constitutionally could assure that the woman was aware of the significance
of the decision. 428 U.S., at 67.
In sum, the Court quite unnecessarily extends the reach of cases like
Griswold and Roe. Neither our precedents nor sound principles of constitutional
analysis require state legislation to meet the exacting "compelling state
interest" standard whenever it implicates sexual freedom. In my view, those
cases make clear that that standard has been invoked only when the state
regulation entirely frustrates or heavily burdens the exercise of constitutional
rights in this area. See Bellotti v. Baird, 428 U.S. 132, 147 (1976). This is
not to say that other state regulation is free from judicial review. But a test
so severe that legislation rarely can meet it should be imposed by courts with
deliberate restraint in view of the respect that properly should be accorded
There is also no justification for subjecting restrictions on
the sexual activity of the young to heightened judicial review. Under our prior
cases, the States have broad latitude to legislate with respect to adolescents.
The principle is well settled that "a State may permissibly determine that, at
least in some precisely delineated areas, a child . . . is not possessed of that
full capacity for individual choice" which is essential to the exercise of
various constitutionally protected interests. Ginsberg v. New York, 390 U.S.
629, 649-650 (1968) (STEWART, J., concurring in result). This principle is the
premise of our prior decisions, ostensibly reaffirmed by the plurality, ante, at
692, holding that "the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults." Prince v. Massachusetts,
321 U.S. 158, 170 (1944). [431 U.S. 678, 706]
Restraints on the freedom of minors may be justified "even though comparable
restraints on adults would be constitutionally impressible." Planned Parenthood
of Central Missouri v. Danforth, supra, at 102 (STEVENS, J., concurring in part
and dissenting in part).1
New York has exercised its responsibility over minors in areas falling within
the "cluster of constitutionally protected choices" relating to sex and
marriage. Ante, at 685. It has set an age limitation below which persons cannot
marry without parental consent, N. Y. Dom. Rel. Law 15, 15-a (McKinney 1964 and
Supp. 1976-1977), and has established by statute the age at which a minor is
legally recognized as having the capacity to consent to sexual activity, Penal
Law 130.05 (3) (a) (McKinney 1975). See also Penal Law 130.25, 130.30, 130.35
(McKinney 1975). These provisions highlight the State's concern that its
juvenile citizens generally lack the maturity and understanding necessary to
make decisions concerning marriage and sexual relationships.
Until today, I would not have thought it was even arguably necessary to
review state regulation of this sort under a standard that for all practical
purposes approaches the "compelling state interest" standard. At issue in
Ginsberg v. New York, supra, for example, was the question of the
constitutionality on its face of a New York criminal obscenity statute which
prohibited the sale to minors of material defined to be obscene on the basis of
its appeal to them whether or not it would be obscene to adults. The Court
recognized that "the State has [431 U.S. 678,
an interest `to protect the welfare of children' and to see that they are
`safeguarded from abuses' which might prevent their `growth into free and
independent well-developed men and citizens.'" 390 U.S., at 640-641, quoting
Prince v. Massachusetts, supra, at 165. Consequently, the "only question
remaining" in that case was "whether the New York Legislature might rationally
conclude, as it has, that exposure to the materials proscribed by [the statute]
constitutes such an `abuse.'" 390 U.S., at 641. Similarly, the relevant question
in any case where state laws impinge on the freedom of action of young people in
sexual matters is whether the restriction rationally serves valid state
With these considerations in mind, I turn to the specific
provisions of the New York statute limiting the distribution of contraceptives.
New York has made it a crime for anyone other than a physician
to sell or distribute contraceptives to minors under the age of 16 years. Educ.
Law 6811 (8) (McKinney 1972). This element of New York's program of regulation
for the protection of its minor citizens is said to evidence the State's
judgment that the health and well-being of minors would be better assured if
they are not encouraged to engage in sexual intercourse without guidance.
Although I have no doubt that properly framed legislation serving this purpose
would meet constitutional standards, the New York provision is defective in two
respects. First, it infringes the privacy interests of married females between
the ages of 14 and 16, see ante, at 695 n. 18, in that it prohibits the
distribution of contraceptives to such females except by a physician. In
authorizing marriage at that age, the State also sanctions sexual intercourse
between the partners and expressly recognizes that once the marriage
relationship exists the husband and [431 U.S. 678, 708] wife are presumed to possess
the requisite understanding and maturity to make decisions concerning sex and
procreation. Consequently, the state interest that justifies a requirement of
prior counselling with respect to minors in general simply is inapplicable with
respect to minors for whom the State has affirmatively approved marriage.
Second, this provision prohibits parents from distributing contraceptives to
their children, a restriction that unjustifiably interferes with parental
interests in rearing their children. Cf. Ginsberg v. New York, 390 U.S., at 639
and n. 7. "[C]onstitutional interpretation has consistently recognized that the
parents' claim to authority in their own household to direct the rearing of
their children is basic in the structure of our society. `It is cardinal with us
that the custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obligations the state
can neither supply nor hinder.'" Ibid., quoting Prince v. Massachusetts, supra,
at 166. See Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972); Pierce v. Society
of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S. 390,
399-401 (1923). Moreover, this statute would allow the State "to enquire into,
prove, and punish," Poe v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J.,
dissenting), the exercise of this parental responsibility. The State points to
no interest of sufficient magnitude to justify this direct interference with the
parental guidance that is especially appropriate in this sensitive area of child
development.2 [431 U.S. 678, 709]
But in my view there is considerably more room for state regulation in this
area than would be permissible under the plurality's opinion. It seems clear to
me, for example, that the State would further a constitutionally permissible end
if it encouraged adolescents to seek the advice and guidance of their parents
before deciding whether to engage in sexual intercourse. Planned Parenthood, 428
U.S., at 91 (STEWART, J., concurring). The State justifiably may take note of
the psychological pressures that might influence children at a time in their
lives when they generally do not possess the maturity necessary to understand
and control their responses. Participation in sexual intercourse at an early age
may have both physical and psychological consequences. These include the risks
of venereal disease and pregnancy, and the less obvious mental and emotional
problems that may result from sexual activity by children. Moreover, society has
long adhered to the view that sexual intercourse should not be engaged in
promiscuously, a judgment that an adolescent may be less likely to heed than an
Requiring minors to seek parental guidance would be consistent with our prior
cases. In Planned Parenthood, we considered whether there was "any significant
state interest in conditioning [a minor's] abortion [decision] on the consent of
a parent or person in loco parentis that is not present in the case of an
adult." 428 U.S., at 75. Observing that the minor necessarily would be
consulting with a physician on all aspects of the abortion decision, we
concluded that the Missouri requirement was invalid because it imposed
[431 U.S. 678, 710]
"a special-consent provision, exercisable by a person other than the woman and
her physician, as a prerequisite to a minor's termination of her pregnancy and
[did] so without a sufficient justification for the restriction." Ibid. But we
explicitly suggested that a materially different constitutional issue would be
presented with respect to a statute assuring in most instances consultation
between the parent and child. Ibid., citing Bellotti v. Baird, 428 U.S. 132
(1976). See Planned Parenthood, supra, at 90-91 (STEWART, J., concurring).
A requirement of prior parental consultation is merely one illustration of
permissible regulation in this area. As long as parental distribution is
permitted, a State should have substantial latitude in regulating the
distribution of contraceptives to minors.3
New York also makes it a crime for anyone other than a
licensed pharmacist to sell or distribute contraceptives to adults and to minors
aged 16 or over. The only serious justification offered by the State for this
prohibition is that it is necessary to facilitate enforcement of the limitation
on distribution to children under 16 years of age. Since the Court invalidates
that limitation today, the pharmacy restriction lacks any rational
justification. I therefore agree with the Court that 6811 (8)'s limitation on
the distribution of nonprescription contraceptives cannot be sustained.
But even if New York were to enact constitutionally permissible limitations
on access for children, I doubt that it could justify the present pharmacy
restriction as an enforcement measure. Restricting the kinds of retail outlets
that may distribute [431 U.S. 678, 711] contraceptives may well be
justified,4 but the present statute even prohibits
distribution by mail to adults. In this respect, the statute works a significant
invasion of the constitutionally protected privacy in decisions concerning
sexual relations. By requiring individuals to buy contraceptives over the
counter, the statute heavily burdens constitutionally protected freedom.5
I also agree with the Court that New York cannot lawfully
prohibit all "advertisement or display" of contraceptives. But it seems to me
that the Court's opinion may be read too broadly. It flatly dismisses, as
justifications "classically" irrelevant, the State's contentions that the
indiscriminate advertisement of contraceptive products in some settings could be
unduly offensive and could be viewed by the young as legitimation of sexual
promiscuity. I agree that these justifications
[431 U.S. 678, 712] cannot support a complete ban on advertising, but I
see no reason to cast any doubt on the authority of the State to impose
carefully tailored restrictions designed to serve legitimate governmental
concerns as to the effect of commercial advertising on the young.6
[Footnote 1] MR. JUSTICE STEVENS recently
provided the following examples, deeply rooted in our traditions and law:
"Because he may not foresee the consequences of his decision, a minor may not
make an enforceable bargain. He may not lawfully work or travel where he
pleases, or even attend exhibitions of constitutionally protected adult motion
pictures. Persons below a certain age may not marry without parental consent.
Indeed, such consent is essential even when the young woman is already
pregnant." 428 U.S., at 102.
[Footnote 2] The particular provision at
issue makes it a crime for "[a]ny person to sell or distribute any instrument or
article, or any recipe, drug or medicine for the prevention of contraception to
a minor under the age of sixteen years . . . ." Educ. Law 6811 (8) (McKinney
1972). For the reasons stated in the text, this provision unjustifiably
infringes the constitutionally protected interests of parents and married female
minors, and it is invalid in those two respects. Although the prohibition on
distribution might be sustained as to other individuals if the restrictions on
[431 U.S. 678, 709] parental distribution and distribution to married
female minors could be treated as severable, the result "would be to create a
program quite different from the one the legislature actually adopted." Sloan v.
Lemon, 413 U.S. 825, 834 (1973). I therefore agree with the Court that the
entire provision must be invalidated. See Dorchy v. Kansas, 264 U.S. 286, 291
(1924); Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270, 279, 115 N. E. 711,
[Footnote 3] As long as access is
available through parents, I perceive no constitutional obstacle to state
regulation that authorizes other designated adults - such as physicians - to
provide relevant counselling.
[Footnote 4] Absent some evidence that
a restriction of outlets to registered pharmacists heavily burdens the
constitutional interests of adults, there would be no basis for applying the
standard of review articulated in Griswold and Roe. See Part I, supra. Indeed,
in the absence of such evidence there would be no reason to set aside a
legislative judgment that enforcement of constitutionally permissible
limitations on access for minors, see Part II-A, supra, warrants a reasonable
limitation on the means for marketing contraceptives. Without some limitations
on the number and type of retail outlets it would be difficult - if not
impossible - to effectuate the state interest in assuring that minors are
counseled before purchasing contraceptive devices. As pharmacists are licensed
professionals, the State may be justified in relying on them to act responsibly
in observing regulations applicable to minors.
[Footnote 5] It is not a satisfactory
answer that an individual may preserve anonymity as one of a number of customers
in a retail outlet. However impersonal the marketplace may be, it does not
approach the privacy of the home. There may be some risk that mail distribution
will occasionally permit circumvention of permissible restrictions with respect
to children, but this does not justify the concomitant burden on the
constitutional rights of adults.
[Footnote 6] The State argues that
unregulated commercial advertisement of contraceptive products would be viewed
by the young as "legitimation" of - if not an open invitation to - sexual
promiscuity. The Court simply finds on the basis of the advertisements in the
record before us that this interest does not justify total suppression of
advertising concerning contraceptives. The Court does leave open the question
whether this or other state interests would justify regulation of the time,
place, or manner of such commercial advertising. Ante, at 702 n. 29. In my view,
such carefully tailored restrictions may be especially appropriate when
advertising is accomplished by means of the electronic media. As Judge Leventhal
recently observed in that context: "[T]here is a distinction between the allout
prohibition of a censor, and regulation of time and place of speaking out, which
still leaves access to a substantial part of the mature audience. What is
entitled to First Amendment protection is not necessarily entitled to First
Amendment protection in all places. Young v. American Mini Theatres, Inc., 427
U.S. 50 . . . (1976). Nor is it necessarily entitled to such protection at all
times." Pacifica Foundation v. FCC, 181 U.S. App. D.C. 132, 157, 556 F.2d 9, 34
(1977) (dissenting opinion).
MR. JUSTICE STEVENS, concurring in part and concurring in the judgment.
For the reasons stated in Parts I, II, and III of the opinion of the Court,
which I join, I agree that Population Planning Associates, Inc., has standing to
challenge the New York statute and that the grant to licensed pharmacists of a
monopoly in the distribution of nonmedical contraceptives is unconstitutional. I
also agree with the conclusion that New York's prohibition against the
distribution of contraceptives to persons under 16 years of age is
unconstitutional, and with the Court's conclusion that the total suppression of
advertising or display of contraceptives is invalid, but my reasons differ from
those set forth in Part IV of MR. JUSTICE BRENNAN'S
[431 U.S. 678, 713] opinion and I wish to add emphasis to the limitation
on the Court's holding in Part V.
There are two reasons why I do not join Part IV. First, the
holding in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 72-75, that
a minor's decision to abort her pregnancy may not be conditioned on parental
consent, is not dispositive here. The options available to the already pregnant
minor are fundamentally different from those available to nonpregnant minors.
The former must bear a child unless she aborts; but persons in the latter
category can and generally will avoid childbearing by abstention. Consequently,
even if I had joined that part of Planned Parent-hood, I could not agree that
the Constitution provides the same measure of protection to the minor's right to
use contraceptives as to the pregnant female's right to abort.
Second, I would not leave open the question whether there is a significant
state interest in discouraging sexual activity among unmarried persons under 16
years of age. Indeed, I would describe as "frivolous" appellees' argument that a
minor has the constitutional right to put contraceptives to their intended use,
notwithstanding the combined objection of both parents and the State.
For the reasons explained by MR. JUSTICE POWELL, I agree that the statute may
not be applied to married females between the ages of 14 and 16, or to
distribution by parents. I am not persuaded, however, that these glaring defects
alone justify an injunction against other applications of the statute. Only one
of the three plaintiffs in this case is a parent who wishes to give
contraceptives to his children. The others are an Episcopal minister who
sponsors a program against venereal disease, and a mail-order firm, which
presumably has no way to determine the age of its customers. I am satisfied, for
the reasons that follow, that the statute is also invalid as applied to them. [431 U.S. 678, 714]
The State's important interest in the welfare of its young citizens justifies
a number of protective measures. See Planned Parenthood of Central Missouri v.
Danforth, supra, at 102 (STEVENS, J., concurring in part and dissenting in
part). Such special legislation is premised on the fact that young persons
frequently make unwise choices with harmful consequences; the State may properly
ameliorate those consequences by providing, for example, that a minor may not be
required to honor his bargain. It is almost unprecedented, however, for a State
to require that an ill-advised act by a minor give rise to greater risk of
irreparable harm than a similar act by an adult.1
Common sense indicates that many young people will engage in sexual activity
regardless of what the New York Legislature does; and further, that the
incidence of venereal disease and premarital pregnancy is affected by the
availability or unavailability of contraceptives. Although young persons
theoretically may avoid those harms by practicing total abstention, inevitably
many will not. The statutory prohibition denies them and their parents a choice
which, if available, would reduce their exposure to disease or unwanted
pregnancy. [431 U.S. 678, 715]
The State's asserted justification is a desire to inhibit sexual conduct by
minors under 16. Appellants do not seriously contend that if contraceptives are
available, significant numbers of minors who now abstain from sex will cease
abstaining because they will no longer fear pregnancy or disease.2 Rather appellants' central argument is that the statute has
the important symbolic effect of communicating disapproval of sexual activity by
In essence, therefore, the statute is defended as a form of propaganda, rather
than a regulation of behavior.4
Although the State may properly perform a teaching function, it seems to me
that an attempt to persuade by inflicting harm on the listener is an
unacceptable means of conveying a message that is otherwise legitimate. The
propaganda technique used in this case significantly increases the risk of
unwanted pregnancy and venereal disease. It is as though a State decided to
dramatize its disapproval of motorcycles by forbidding the use of safety
helmets. One need not posit a constitutional right to ride a motorcycle to
characterize such a restriction as irrational and perverse.
Even as a regulation of behavior, such a statute would be defective. Assuming
that the State could impose a uniform [431 U.S.
sanction upon young persons who risk self-inflicted harm by operating
motorcycles, or by engaging in sexual activity, surely that sanction could not
take the form of deliberately injuring the cyclist or infecting the promiscuous
child. If such punishment may not be administered deliberately, after trial and
a finding of guilt, it manifestly cannot be imposed by a legislature,
indiscriminately and at random. This kind of government-mandated harm, is, in my
judgment, appropriately characterized as a deprivation of liberty without due
process of law.
In Part V of its opinion, the Court holds that New York's
total ban on contraceptive advertising is unconstitutional under Bigelow v.
Virginia, 421 U.S. 809, and Virginia Pharmacy Bd. v. Virginia Citizens Consumer
Council, 425 U.S. 748. Specifically, the Court holds that all contraceptive
advertising may not be suppressed because some advertising of that subject may
be offensive and embarrassing to the reader or listener. I also agree with that
The Court properly does not decide whether the State may impose any
regulation on the content of contraceptive advertising in order to minimize its
offensive character. I have joined Part V of the opinion on the understanding
that it does not foreclose such regulation simply because an advertisement is
within the zone protected by the First Amendment.
The fact that a type of communication is entitled to some constitutional
protection does not require the conclusion that it is totally immune from
regulation. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 65-71
(opinion of STEVENS, J.). An editorial and an advertisement in the same
newspaper may contain misleading matter in equal measure. Although each is a
form of protected expression, one may be censored while the other may not.
In the area of commercial speech - as in the business of exhibiting motion
pictures for profit - the offensive character of
[431 U.S. 678, 717]
the communication is a factor which may affect the time, place, or manner in
which it may be expressed. Cf. Young v. American Mini Theatres, Inc., supra. The
fact that the advertising of a particular subject matter is sometimes offensive
does not deprive all such advertising of First Amendment protection; but it is
equally clear to me that the existence of such protection does not deprive the
State of all power to regulate such advertising in order to minimize its
offensiveness. A picture which may appropriately be included in an instruction
book may be excluded from a billboard.
I concur in the judgment and in Parts I, II, III, and V of the Court's
[Footnote 1] Only two other States
have adopted similar legislation. Family Planning, Contraception and Voluntary
Sterilization: An Analysis of Laws and Policies in the United States, Each State
and Jurisdiction, A Report of the National Center for Family Planning Services
76 (1971) (DHEW Pub. No. (HSA) 74-16001). This publication contains a
comprehensive survey of state laws in this area. The authors were aware of "no
case in which either a doctor or a layman has been successfully prosecuted under
any criminal statute for providing contraceptive information or services to a
minor or has been held liable for damages for providing contraception to a minor
without parental consent." Id., at 70. This survey also indicated that "the
clear trend is toward the removal of all such barriers to the sale and
distribution of contraceptives." Id., at 59. By 1971 there were 34 States with
no law restricting or regulating distribution of contraceptives, ibid., and 33
States with no restrictions on advertising or display. Id., at 60.
[Footnote 2] Appellants make this
argument only once, in passing. See Brief for Appellants 20. In the District
Court, appellants candidly admitted that "there is no evidence that teenage
extramarital sexual activity increases in proportion to the availability of
contraceptives. . . ." See 398 F. Supp. 321, 332. Indeed, appellants maintain
that it is a "fact that youngsters will not use contraceptives even where
available . . . ." Reply Brief for Appellants 5.
[Footnote 3] The fact that the State
admittedly has never brought a prosecution under the statute, id., at 2, is
consistent with appellants' position that the purpose of the statute is merely
[Footnote 4] Appellants present no
empirical evidence to support the conclusion that the State's "propaganda" is
effective. Simply as a matter of common sense, it seems unlikely that many
minors under 16 are influenced by the mere existence of a law indirectly
disapproving of their conduct.
MR. JUSTICE REHNQUIST, dissenting.
Those who valiantly but vainly defended the heights of Bunker Hill in 1775
made it possible that men such as James Madison might later sit in the first
Congress and draft the Bill of Rights to the Constitution. The post-Civil War
Congresses which drafted the Civil War Amendments to the Constitution could not
have accomplished their task without the blood of brave men on both sides which
was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these
Amendments, by feats of valor or efforts of draftsmanship, could have lived to
know that their efforts had enshrined in the Constitution the right of
commercial vendors of contraceptives to peddle them to unmarried minors through
such means as window displays and vending machines located in the men's room of
truck stops, notwithstanding the considered judgment of the New York Legislature
to the contrary, it is not difficult to imagine their reaction.1 [431 U.S. 678, 718]
I do not believe that the cases discussed in the Court's opinion require any
such result, but to debate the Court's treatment of the question on a
case-by-case basis would concede more validity to the result reached by the
Court than I am willing to do.2 There comes a point when endless and
ill-considered extension of principles originally formulated in quite different
cases produces such an indefensible result that no logic chopping can possibly
make the fallacy of the result more obvious. The Court here in effect holds that
the First and Fourteenth Amendments not only guarantee full and free debate
before a legislative judgment as to the moral dangers to which minors within the
jurisdiction of the State should not be subjected, but goes further and
absolutely prevents the representatives of the majority from carrying out such a
policy after the issues have been fully aired.
No questions of religious belief, compelled allegiance to a secular creed, or
decisions on the part of married couples as to procreation, are involved here.
New York has simply decided that it wishes to discourage unmarried minors under
16 from having promiscuous sexual intercourse with one another. Even the Court
would scarcely go so far as to say that this is not a subject with which the New
York Legislature may properly concern itself.
That legislature has not chosen to deny to a pregnant woman, after the fait
accompli of pregnancy, the one remedy [431 U.S.
678, 719] which would enable her to terminate an unwanted pregnancy. It
has instead sought to deter the conduct which will produce such faits accomplis.
The majority of New York's citizens are in effect told that however deeply they
may be concerned about the problem of promiscuous sex and intercourse among
unmarried teenagers, they may not adopt this means of dealing with it. The Court
holds that New York may not use its police power to legislate in the interests
of its concept of the public morality as it pertains to minors. The Court's
denial of a power so fundamental to self-government must, in the long run, prove
to be but a temporary departure from a wise and heretofore settled course of
adjudication to the contrary. I would reverse the judgment of the District
[Footnote 1] As well as striking down
the New York prohibitions of commercial advertising and sales to persons under
16, the Court holds invalid the State's requirement that all sales be made by
licensed pharmacists. Whatever New York's reasons for this particular
restriction on distribution - and several can be imagined - I cannot believe
that it could significantly impair [431 U.S. 678,
718] the access to these products of a person with a settled and
deliberate intention to procure them.
[Footnote 2] I cannot, however, let pass
without comment, the statement that "the Court has not definitively answered the
difficult question whether and to what extent the Constitution prohibits state
statutes regulating [private consensual sexual] behavior among adults." Ante, at
688 n. 5, 694 n. 17. While we have not ruled on every conceivable regulation
affecting such conduct the facial constitutional validity of criminal statutes
prohibiting certain consensual acts has been "definitively" established. Doe v.
Commonwealth's Attorney, 425 U.S. 901 (1976). See Hicks v. Miranda, 422 U.S.
332, 343-344 (1975). [431 U.S. 678, 720]
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