358 Mass. 37 (1970), Sturgis v. Attorney General
| Citation | 260 N.E.2d 687,358 Mass. 37 |
| Docket Number | . |
| Date | 29 June 1970 |
| Parties | Somers H. STURGIS et al. v. ATTORNEY GENERAL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Page 37
Argued March 4, 1970.
[260 N.E.2d 688] Roger P. Stokey, Boston, (Stephen M. Weiner, Boston, with him), for plaintiffs.
Robert J. Condlin, Deputy Asst. Atty. Gen., (Walter H. Mayo, III, Asst. Atty. Gen., with him), for the Attorney General.
Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, SPIEGEL, REARDON and QUIRICO, JJ.
REARDON, Justice.
The plaintiffs filed a bill for declaratory relief in the county court to determine the validity of G.L. c. 272, §§ 20, 21, and 21A. The parties submitted a statement of agreed facts. The single justice reserved and reported the case to the full court for such decree as may be entered under G.L. c. 231A. The facts in part are as follows.
The plaintiffs are registered physicians licensed to practice in Massachusetts, and are specialists in the field of gynecology, 'trained and competent in the use of recognized drugs and articles used for the prevention of pregnancy.' In the past each plaintiff in the course of his medical practice and in the exercise of his best medical judgment has administered to, and prescribed for, married
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patients drugs and articles intended for the prevention of pregnancy or conception. It has been, is, and will be each plaintff's desire in the course of his medical practice and in the exercise of his best medical judgment to administer to, and prescribe for, certain unmarried patients drugs or articles intended for the prevention of pregnancy or conception. Each is of the medical opinion that sound medical practice calls for such action. Each plaintiff has been advised that G.L. c. 272, § 20, as amended by St.1966, c. 265, § 2; § 21, as amended by St.1966, c. 265, § 3; and 21A, inserted by St.1966, c. 265, § 1,
Page 39
administer to, or to prescribe for, any unmarried patient such drugs and articles, and make it illegal for any registered pharmacist to fill a prescription for such a patient. Each plaintiff has been advised that if he should administer to or prescribe such drugs or articles for an unmarried patient he could be arrested, prosecuted and convicted under G.L. c. 272, §§ 20, 21, and 21A, and sentenced for up to five years in the State prison and have his license to practice medicine indefinitely suspended by the Massachusetts Baord of Registration in Medicine.
The defendant Attorney General is responsible for enforcing the laws of the Commonwealth, and under authority granted to him proposes to enforce G.L. c. 272, §§ 20, 21, and 21A.
The plaintiffs argue that they are engaged in a profession under the protections of the Fourteenth Amendment to the Constitution of the United States and arts. 1, 10 and 12 of the Massachusetts Bill of Rights. They allege that any exercise of the police powers which infringes on their constitutional rights 'must have a 'real and substantial relation' to the general welfare.' They state that the statutory provisions under attack are unrelated to the statutory purpose and interfere both with their right to carry on a profession and their duty to care for their patients in derogation of the Fourteenth Amendment to the Constitution of the United States and the stated articles of the Massachusetts Bill of Rights. They further allege the statutes to be invalid in that they discriminate against the indigent.
The Attorney General argues the Commonwealth's ability to prohibit distribution of birth control devices to the unmarried on the ground that the Commonwealth is entitled to protect the health and welfare of its citizens, and also argues that new research in the field cited at the hearings before a United States Senate subcommittee in January, 1970, indicated the potential danger of contraceptives in causing long range mutagenic and carcinogenic side effects. Reference was made to conflicting medical testimony between experts on the subject. It is on the basis of this
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Senate testimony that the Attorney General further argues that the prohibition against distribution of birth control devices to single persons is reasonably related to the public health [260 N.E.2d 690] and welfare. The Attorney General refers to Sperry & Hutchinson Co. v. Director of Div. of Necessaries of Life, 307 Mass. 408, 418, 30 N.E.2d 269, 274, where we said, 'Unless the act of the Legislature cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it, the court has no power to strike it down as violative of the Constitution.' We further test the legislation on the basis that '(a)ll rational presumptions are made in favor of the validity of every legislative enactment. Enforcement is to be refused only when it is in manifest excess of...
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Roe v. Wade
...married couples of their right, secured by the Ninth Amendment, to choose whether to have children.", with Sturgis v. Attorney General, 260 N.E. 2d 687, 6900 (Mass.1970) (directly contrary to federal decision Baird). [40] 40 If a married couple is to have private control over numbers and sp......