156 A.2d 508 (Conn. 1959), Buxton v. Ullman

Citation:156 A.2d 508, 147 Conn. 48
Opinion Judge:BALDWIN, C.J.
Party Name:C. Lee BUXTON v. Abraham S. ULLMAN, State's Attorney. Paul POE et al. v. Abraham S. ULLMAN, State's Attorney. Harold HOE et al. v. Abraham S. ULLMAN, State's Attorney. Jane DOE v. Abraham S. ULLMAN, State's Attorney.
Attorney:Catherine G. Roraback, Canaan, for appellants (plaintiffs)., Raymond J. Cannon, Asst. Atty. Gen., with whom, on the brief, was Albert L. Coles, Atty. Gen., for appellee (defendant) in each case. Catherine G. Roraback, for the appellants (plaintiffs). Raymond J. Cannon, assistant attorney general...
Judge Panel:In this opinion the other Judges concurred. Before BALDWIN, C J, and KING, MURPHY, MELLITZ and SHEA
Case Date:December 08, 1959
Court:Supreme Court of Connecticut

Page 508

156 A.2d 508 (Conn. 1959)

147 Conn. 48



Abraham S. ULLMAN, State's Attorney.

Paul POE et al.


Abraham S. ULLMAN, State's Attorney.

Harold HOE et al.


Abraham S. ULLMAN, State's Attorney.

Jane DOE


Abraham S. ULLMAN, State's Attorney.

Supreme Court of Errors of Connecticut.

December 8, 1959.

Page 509

[Copyrighted Material Omitted]

Page 510

Catherine G. Roraback, Canaan, for appellants (plaintiffs).

Raymond J. Cannon, Asst. Atty. Gen., with whom, on the brief, was Albert L. Coles, Atty. Gen., for appellee (defendant) in each case.


[147 Conn. 49] BALDWIN, Chief Justice.

The complaints in these four actions seek declaratory judgments as to the constitutionality of § 53-32 of the General Statutes, prohibiting the use of any drug, medicinal article or instrument for the purpose of preventing conception, [147 Conn. 50] and § 54-196, prohibiting the counseling or abetting of such use. 1 The plaintiff C. Lee Buxton is a licensed physician. The plaintiff Jane Doe is a married woman living with her husband. The plaintiffs Paul and Pauline Poe, as well as the plaintiffs Harold and Hanna Hoe, are husband and wife. Except for Dr. Buxton, all the plaintiffs are using, for the purpose of this litigation, fictitious names. They are patients of Dr. Buxton. The plaintiffs claim that the two statutes deprive them of rights guaranteed by the fourteenth amendment to the federal constitution. The defendant demurred to all the complaints; among his grounds were that the plaintiffs were seeking declaratory judgments on legal issues already conclusively determined by this court and that the passage of time and a change in the personnel of the court would not justify a reversal of those determinations. The trial court sustained the demurrers on those grounds, and the plaintiffs have appealed.

A demurrer to a complaint for a declaratory judgment is proper when the facts alleged do not bring the case within the scope of the statute and rules relating to declaratory judgments. General Statutes § 52-29; Practice Book, § 277; Hill v. Wright, 128 Conn. 12, 15, 20 A.2d 388; Maltbie, Conn.App.Proc. § 227; see Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 713, 156 A.2d 146. If the rights and jural relations of parties in the situation of [147 Conn. 51] these plaintiffs have been conclusively determined by previous decision of this court, the demurrers were properly sustained upon the grounds stated.

Twice in the recent past this court has passed upon questions of interpretation and constitutionality of what are presently §§ 53-32 and 54-196. State v. Nelson, 126 Conn. 412, 11 A.2d 856, decided March 6, 1940, held that there was no ambiguity in the wording of the statutes which made the legislative intent uncertain so as to permit a construction which allowed an exception in favor of a duly licensed physician who prescribes the use of contraceptive measures to a patient who is a married woman when, in his professional opinion, her general health and well-being necessitate it. We said (126 Conn. at page 417, 11 A.2d at

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page 858): 'Any intention on the part of the Legislature to allow [the exception claimed] is negatived not only by the absolute language used originally and preserved ever since but also, signally, by [the legislature's] repeated and recent refusals to inject an exception.' We held, also (126 Conn. at page 422, 11 A.2d at page 860), that the statute was a valid exercise of the police power. We pointed out (126 Conn. at page 418, 11 A.2d at page 859) that the particular facts alleged in the information confined the issues to situations where, in the opinion of the physician, "the general health' of married woman requires the use of contraceptives.' We said that there was, therefore, 'no occasion to determine whether an implied exception might be recognized when 'pregnancy would jeopardize life' * * * similar to that usually expressly made in statutes concerning abortion.' See General Statutes § 53-29.

In Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582, decided May 22, 1942, the plaintiff, a licensed physician, brought an action for a declaratory judgment to determine whether the statutes forbade him from [147 Conn. 52] prescribing the use of contraceptives for a married woman in cases where a pregnancy would endanger her life or health and, if the statutes did, whether they were constitutional. This presented the issue which we specifically said was not Before us in the Nelson case. We held in the Tileston case that, in the light of the legislative history of the statutes and the repeated and recent refusals of the legislature to inject any exception, the statutes could not be construed to allow the exception claimed, and that they were constitutional.

It is claimed that the facts in the cases at bar present an entirely different situation with respect to the rights of the plaintiffs from that presented in the Nelson and Tileston cases. In Buxton v. Ullman, the complaint alleges, in substance, and the demurrer admits, that the plaintiff, a licensed physician, has a patient, Jane Doe, a married woman twenty-five years of age, living with her husband. She had been admitted to the obstetrical service of the hospital where the plaintiff, an eminently qualified obstetrician and gynecologist, was in charge. She was three and one-half months pregnant and developed a condition which brought her to the very brink of death. Her physical condition is now such that conception and another pregnancy would be exceedingly dangerous to her life. She needs and requires advice as to what preventive measures can be taken to avert a recurrence of the experience she suffered. She claims a right to live a normal married life with her husband. She has asked the plaintiff for medical advice, and he has knowledge of drugs, medicinal articles and instruments which could be used by her to prevent conception and avoid the serious consequences of another pregnancy. In a companion case, Doe v. Ullman, the plaintiff is the [147 Conn. 53] patient described in the Buxton case, and she alleges, in substance, the same facts as are alleged in the Buxton complaint. In another companion case the complaint alleges, in substance, that the plaintiffs, Paul and Pauline Poe, are a married couple who have consulted Dr. Buxton. Mrs. Poe, who is twenty-six years old and living with her husband, has borne three abnormal children, no one of whom lived more than ten weeks. The basic cause of these abnormalities is thought by Dr. Buxton and other qualified medical specialists to be genetic, but the prognosis is very uncertain and renders the prospect of another pregnancy extremely disturbing to both Mr. and Mrs. Poe. In still another case the plaintiffs, Harold and Hanna Hoe, aged twenty-nine and twenty-six years, respectively, husband and wife, have no living children. Mrs. Hoe has been delivered of four children. Owing to the blood groupings of these plaintiffs, Mrs. Hoe's blood being Rh negative and Mr. Hoe's Rh positive, the prospects that they can procreate a normal child is highly unlikely.

The plaintiff Buxton has knowledge of drugs, medicinal articles and instrumentalities which could be safely used to prevent

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conception and avert the dire consequences which have followed conception and pregnancy in the women plaintiffs, who desire to live normal married lives with their husbands. If the plaintiff Buxton, on one hand, applies this knowledge by advising these married people as to available contraceptive measures, and if, on the other hand, these married people accept and follow his advice, the statutes would be violated by all the plaintiffs. It is conceded by the demurrers that the use of contraceptives is, according to medical science, the best and safest preventive measure for the plaintiffs to follow in order to avoid pregnancy.

[147 Conn. 54] The plaintiffs claim that these facts raise issues not raised in the Nelson and Tileston cases. The plaintiff Buxton asserts that he has a constitutional right, distinct from that of his patients, to practice his profession free from unreasonable restraint and to advise and prescribe the use of drugs, medicinal articles and instrumentalities which he believes it to be his professional obligation to prescribe. The facts in the Buxton case differ from those in the Tileston case in that here the plaintiff, a physician, is asserting an alleged constitutional right of his own rather than an alleged constitutional right of a patient. Essentially, there is no...

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