26 A.2d 582 (Conn. 1942), Tileston v. Ullman

Citation:26 A.2d 582, 129 Conn. 84
Opinion Judge:ELLS, Judge.
Party Name:TILESTON v. ULLMAN, State's Attorney, et al.
Attorney:Frederick H. Wiggin and John Q. Tilson, Jr., both of New Haven, for plaintiff. Abraham S. Ullman, State's Atty., of New Haven (Philip R. Pastore and Fred Trotta, City Attys., both of New Haven, on the brief), for defendants.
Judge Panel:AVERY and JENNINGS, JJ., dissenting. Before MALTBIE, C.J., BROWN, and ELLS, JJ. In this opinion MALTBIE, C.J., and BROWN, J., concurred. AVERY, Judge (dissenting). In this opinion JENNINGS, J., concurred.
Case Date:May 22, 1942
Court:Supreme Court of Connecticut

Page 582

26 A.2d 582 (Conn. 1942)

129 Conn. 84



ULLMAN, State's Attorney, et al.

Supreme Court of Errors of Connecticut.

May 22, 1942

Reservation from Superior Court, New Haven County; Earnest C. Simpson, Judge.

Action by Wilder Tileston against Abraham S. Ullman, State's Attorney, and others for a declaratory judgment as to whether the statutes of the state prohibit a licensed physician from prescribing the use of contraceptive devices for married women in cases where pregnancy would endanger life or health, and if so whether such statutes are constitutional, brought to the Superior Court and reserved by the court for the advice of the Supreme Court of Errors.

Judgment in accordance with opinion.

AVERY and JENNINGS, JJ., dissenting.

Page 583

[129 Conn. 85] Frederick H. Wiggin and John Q. Tilson, Jr., both of New Haven, for plaintiff.

Abraham S. Ullman, State's Atty., of New Haven (Philip R. Pastore and Fred Trotta, City Attys., both of New Haven, on the brief), for defendants.

Before MALTBIE, C.J., BROWN, and ELLS, JJ.

ELLS, Judge.

The law of this state forbids the use by any person of any drug, medicinal article or instrument for the purpose of preventing conception; General Statutes, § 6246; and makes liable to prosecution and punishment any person who shall assist, abet, or

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counsel another to commit such an offense; § 6562.

In State v. Nelson, 126 Conn. 412, 11 A.2d 856, the claim was made that these sections should be so construed as not to prohibit a duly licensed physician from prescribing the use of contraceptive devices to a married woman when the general health and well-being of the patient require it. We held that any intention of the legislature to allow such an exception is negatived not only by the absolute language used originally and preserved ever since but also by its repeated and recent refusal to inject an exception. The opinion pointed out, however, that the issue was confined to situations where in the opinion of the physician the ‘ general health’ of a married woman requires the use of contraceptives, and said ( 126 Conn. at page 418, 11 A.2d at page 859), ‘ Therefore, there is 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.'

We are now called upon to decide that issue. The plaintiff, a licensed physician, brought the present action for a judgment declaring whether the designated statutes make it unlawful for him to prescribe the use of contraceptive devices for married women, living [129 Conn. 86] with their husbands, who come to him as patients in cases in which his professional judgment dictates that such treatment be given: (a) where a patient is suffering from high blood pressure so that if pregnancy occurred there would be imminent danger of toxemia of pregnancy which would have a 25 per cent chance of killing her; (b) where the patient is suffering from an arrested case of tuberculosis of the lungs of an acute and treacherous type, so that if she should become pregnant such condition would be likely to light up the disease and set back her recovery for several years, and might result in her death; (c) where the patient is in good health except in so far as she has been weakened by having had three pregnancies in about twenty-seven months and a new pregenancy would probably have a serious effect upon her general health and might result in permanent disability. Desiring to meet squarely the important issues involved, we have stated them in the very language used by the plaintiff in his brief, except that we have strengthened the third case and have pointed out more clearly than did the plaintiff that the patients are not now in danger as to life or health and in immediate need of medical or surgical treatment, as in abortion cases, but will be in such danger if they become pregnant.

Although the facts of the Nelson case involved the ‘ general health’ of the patient, and not health affected by a specific disease or condition, the reasoning of the opinion, and particularly the authorities cited, control the instant case and reject the claims now made by the plaintiff. Two judges dissented in the Nelson case, but it became the law of this state, and a change in the personnel of the court affords no ground for reopening a question which has been authoritatively settled. However, we consider the present case strictly upon its own factual situations and determine whether the [129 Conn. 87] statutes in question permit the plaintiff to prescribe drugs, medicinal articles or instruments to prevent the pregnancy of patients whose condition, due to specific disease, is such that pregnancy, if it occurs, may result in death or serious injury to health.

The plaintiff's first claim is that § 6246, supra, was originally enacted in 1879 as part of a statute which was a law against obscenity only, and therefore had no reference to the medical situation now before us. It is sufficient to point out that it contained three prohibitions. One, it is true, was directed against obscene pictures and literature, but the second forbade the use of any drug, medicine, article, or instrument whatsoever for the purpose of preventing conception, and the third, the use of such articles for the purpose of causing unlawful abortion. Obviously, the latter two stamp the statute as having far wider scope than general obscenity. The argument then proceeds to contend that the legislative history of the statute since its enactment in 1879 is of no significance. We discussed and rejected this claim in the Nelson case, 126 Conn. at page 417, 11 A.2d 856, where we consider in detail the repeated and recent refusals of the legislature to inject an exception. It is necessary to add only that since the decision a so-called medical birth control bill failed of enactment in the 1941 General Assembly. The result of all the attempts made to secure a change in these statutes is that no change whatsoever was made by the legislature. This is significant, for in the consideration of these bills year after year there was ample opportunity

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for the legislature to accept a compromise measure. It might have adopted a partial exception, as for instance, in cases where life might be in jeopardy if pregnancy occurred. Its refusal to make any change, in the light of its opportunity to do so, impels us to the conclusion that not even in such situations as are presented in the [129 Conn. 88] instant case did the legislature wish to permit exceptions. It is not our function to doubt the wisdom of these statutes or question their propriety. The manifest intention of the legislature of this state, to date, for all-out prohibition cannot very well be denied. For us now to construe these plainly worded statutes as inapplicable to physicians, even under the limited circumstances of this case, would be to write into the statutes what is not there and what the legislature has thus far refused to place there.

The next claim of the plaintiff is that the decision in the Nelson case is not inconsistent with the claims of this plaintiff. We have stated above our view of the significance of this case. It is also claimed that the weight of authority in other jurisdictions supports the plaintiff's position. The only cases cited in the plaintiff's behalf are decisions of Federal District or Circuit Courts. The applicable ones are discussed and distinguished in the Nelson case and in the Massachusetts case which we later refer to. We have again reviewed the federal cases and find no sound reason for holding that they control the present situation. A case principally relied upon by the plaintiff is United States v. One Package, 2 Cir., 86 F.2d 737. It concerned § 305(a) of the Tariff Act of 1930, 19 U.S.C.A. § 1305(a) which provides that ‘ All persons are prohibited from importing into the United States from any foreign country * * * any article whatever for the prevention of conception or for causing unlawful abortion.’ The question was ( 86 F.2d at page 738) ‘ whether physicians who import such articles as those involved in the present case in order to use them for the health of their patients are excepted by implication from the literal terms of the statute.’ Judge Augustus N. Hand's opinion was careful to point out that the accused was a New York physician, that New York law, which makes it in [129 Conn. 89] general a misdemeanor to sell or give away any articles for the prevention of conception, excepts furnishing such articles to physicians who may in good faith prescribe their use for the cure or prevention of disease, and that it was conceded that the use of contraceptives was in many cases necessary for the health of women. We point out also that the decision reads into the statute an exception in behalf of physicians who might intelligently employ such articles for the promotion of the well-being of their patients, and that this is directly contrary to our holding in the Nelson case. Judge Learned Hand, in a brief concurring opinion, says ( 86 F.2d at page 740): ‘ Many people have changed their minds about such matters in sixty years, but the act forbids the same conduct now as then; a statute stands until public feeling gets enough momentum to change it, which may be long after a majority would repeal it, if a poll were taken. Nevertheless, I am not prepared to dissent.’ The opinions contain no record of repeated but unsuccessful attempts to change the statute, as in Connecticut.

The plaintiff's final claim is that if § 6246, supra, should be construed according to its express language it would violate the state and federal constitutions. As we shall point out in our discussion of the Gardner...

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