Commonwealth v. Gardner

• Citation: 300 Mass. 372,15 N.E.2d 222
• Parties: COMMONWEALTH v. GARDNER, and three other cases.
• Decision Date: 26 May 1938
• Court: United States State Supreme Judicial Court of Massachusetts

300 Mass. 372

15 N.E.2d 222

COMMONWEALTH

v.GARDNER, and three other cases.

Supreme Judicial Court of Massachusetts, Essex.

May 26, 1938.

Exceptions from Superior Court, Essex County; Gray, Judge.

Carolyn T. Gardner, Lucile Lord-Heinstein, Flora Rand, and Pamelia Ferris were convicted of violating statute which prohibits the selling, lending, giving away, exhibiting, or offering to sell, lend, or give away any drug, medicine, instrument, or article for the prevention of conception, and they bring exceptions.

Exceptions overruled. J. J. Ryan, Jr., Asst. Dist. Atty., of Haverhill, and E. Randall Jackson, of Danvers, for the Commonwealth.

M. F. Hall and D. J. Hurley, both of Boston, amici curiae.

R. G. Dodge and W. A. Barrows, both of Boston, for defendants.

RUGG, Chief Justice.

It is provided by G.L. (Ter. Ed.) c. 272, § 21, that ‘Whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away * * * any drug, medicine, instrument or article whatever for the prevention of conception’ shall be punished. The penalty stamps the crime thus created as a felony. Violation of this statute at a specified time and place was charged against each of the defendants in these four cases. When the cases came on for trial it was agreed that the defence consisted of the facts set forth in the written statement of facts presented by them, and that there was no other defence. The trial judge then heard counsel upon the question of law whether this offer of proof constituted a defence. Each defendant, having waived the right to trial by jury, was convicted by the trial judge in the Superior Court and was sentenced to pay a fine. It was admitted at the trial that two of the defendants sold and gave away articles and medicine for the prevention of conception to various patients after another defendant, who was a physician, with the assistance of the fourth defendant, who was a nurse, had examined the patients, and that they were sold or given in accordance with instructions given by the physician either personally or through the nurse. The four defendants were present in the offices of the North Shore Mothers' Health Office in Salem, though not in the same room, when the examinations were made, the directions given, and the contraceptions prescribed and sold or given to the patients. The only defence was set forth in an offer of proof. Briefly summarized, it was there stated that the North Shore Mothers' Health Office was an association of persons which conducted the office where the acts charged in these cases took place. It is a charitable organization supported by charitable contributions. That association employed a doctor, who was a duly qualified physician and in charge of the medical work in the office. It also employed a registered trained nurse, who assisted the physician. The other two defendants were members of the association, trained social workers, and worked as such for the association without pay. The physician in charge agreed to keep within the provisions of law as interpreted by an attorney, to the effect that the statute here in question does not apply to articles intended to be used for the prevention of conception only upon prescription by a duly qualified physician when necessary for the preservation of life or health according to sound and generally accepted medicial practice. Offices like that maintained by this association exist in several other places in this Commonwealth. It is sound and generally accepted medical practice to prescribe contraceptives to protect life and health. This proposition is supported by numerous medical organizations. Patients are usually referred to the association by hospitals, social welfare agencies and private physicians. ‘Patients accepted are married women only, not pregnant, whose physical or mental condition contra-indicates further or immediate pregnancy.’ It is not necessary to pursue the description of methods employed by the defendants, or the theories as to advisability of the use of contraceptives. There is no contention that the defendants did not do the acts charged. The trial judge ‘ruled that the admissible and competent evidence contained in the offer of proof’ thus made by the defendants constituted no defense. Each defendant excepted to this ruling of law. The cases come before us by a consolidated bill of exceptions to this ruling.

The defendants contend that the statute does not apply to drugs, medicines, instruments, or articles for the prevention of conception when they are intended for such use only upon prescription by a duly qualified physician for the preservation of life or health according to sound and generally accepted medicial practices, and that, otherwise, the statute is unconstitutional under both the State and the Federal Constitutions.

The terms of G.L. (Ter.Ed.) c. 272, § 21, already quoted, are plain, unequivocal and peremptory. They contain no exceptions. They are sweeping, absolute, and devoid of ambiguity. They are directed with undeviating explicitness against the prevention of conception by any of the means specified. It would be difficult to select appropriate legislative words to express the thought with greater emphasis. It is a canon of interpretation that the words of a statute are to be construed according to the common and approved usage of the language considered in connection with the cause of its enactment, the preexisting state of the law, and the main object to be accomplished. Brown v. Robinson, 275 Mass. 55, 57,175 N.E. 569; Dascalakis v. Commonwealth, 244 Mass. 568, 570, 139 N.E. 168.

The provisions of G.L. (Ter.Ed.) c. 272, § 21, first appeared in St.1879, c. 159, in substantially the same words as are now used. That was the earliest enactment in this Commonwealth respecting the prevention of conception, in framing legislation under the police power the Legislature, without any denial of rights under either the State or the Federal Constitution, might take the view that the use of contraceptives would not only promote sexual immorality but would expose the Commonwealth to other grave dangers. Even though prevention of conception by medical advice and treatment was not known in 1879, and might have been the subject of an exception from the general legislative prohibition if the Legislature had deemed such an exception consonant with public policy, the Legislature had equal power to adopt the contrary view that such an...