367 U.S. 497 (1961), 60, Poe v. Ullman

Docket NºNo. 60 Argued March 1-2, 1961
Citation367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989
Party NamePoe v. Ullman
Case DateJune 19, 1961
CourtUnited States Supreme Court

Page 497

367 U.S. 497 (1961)

81 S.Ct. 1752, 6 L.Ed.2d 989




No. 60 Argued March 1-2, 1961

United States Supreme Court

June 19, 1961




These are appeals from a decision of the Supreme Court of Errors of Connecticut affirming dismissals of complaints in three cases in which the plaintiffs sued for declaratory judgments that certain Connecticut statutes which prohibit the use of contraceptive devices and the giving of medical advice on their use violate the Fourteenth Amendment by depriving the plaintiffs of life and property without due process of law. The complaints alleged that two plaintiffs who were married women needed medical advice on the use of such devices for the protection of their health, but that a physician, who was the plaintiff in the third case, was deterred from giving such advice because the State's Attorney intended to prosecute offenses against the State's laws and he claimed that the giving of such advice and the use of such devices were forbidden by state statutes. However, it appeared that the statutes in question had been enacted in 1879, and that no one ever had been prosecuted thereunder except two doctors and a nurse, who were charged with operating a birth control clinic, and that the information against them had been dismissed after the State Supreme Court had sustained the legislation in 1940 on an appeal from a demurrer to the information.

Held: The appeals are dismissed, because the records in these cases do not present controversies justifying the adjudication of a constitutional issue. Pp. 498-509.

147 Conn. 48,156 A.2d 508, appeal dismissed.

Page 498

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER join.

These appeals challenge the constitutionality, under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse.

No. 60 combines two actions brought in a Connecticut Superior Court for declaratory relief. The complaint in the first alleges that the plaintiffs, Paul and Pauline Poe,1 are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic, although the

Page 499

underlying "mechanism" is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely disturbing to the physical and mental health of both husband and wife. Plaintiffs know that it is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles, and instruments which can be safely used to effect contraception. Medically, the use of these devices is indicated as the best and safest preventive measure necessary for the protection of plaintiffs' health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney intends to prosecute offenses against the State's laws, and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn.Gen.Stat.Rev.1958, §§ 53-32 and 54-196.2

Page 500

Alleging irreparable injury [81 S.Ct. 1754] and a substantial uncertainty of legal relations (a local procedural requisite for a declaration), plaintiffs ask a declaratory judgment that §§ 53-32 and 54-196 are unconstitutional, in that they deprive the plaintiffs of life and liberty without due process of law.

The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband; they have no children; Mrs. Doe recently underwent a pregnancy which induced in her a critical physical illness -- two weeks' unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She too has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought, are similar to those in the case of Mr. and Mrs. Poe.

In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks that the Connecticut statutes prohibiting his giving of contraceptive advice to Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property without due process.

In all three actions, demurrers were advanced, inter alia, on the ground that the statutes attacked had been previously construed and sustained by the Supreme Court of Errors of Connecticut, and thus there did not exist the uncertainty of legal relations requisite to maintain suits for declaratory judgment. While the Connecticut Supreme Court of Errors, in sustaining the demurrers, referred to this local procedural ground, relying on State v. Nelson, 126 Conn. 412, 11 A.2d 856, and Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582, appeal dismissed, 318 U.S. 44, we cannot say that its decision rested on it. 147 Conn.

Page 501

48, 156 A.2d 508. We noted probable jurisdiction. 362 U.S. 987.

Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations are merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy of the threat described by these allegations might alone raise serious questions of nonjusticiability of appellants' claims. See United Public Workers v. Mitchell, 330 U.S. 75, 88. But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289. Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.

The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. Conn.Acts [81 S.Ct. 1755] 1879, c. 78. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A.2d 856. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State

Page 502

moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process.3 The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drugstores.4 Yet no prosecutions are recorded, and certainly such ubiquitous, open, public sales would mere quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage -- the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. "Deeply embedded traditional ways of carrying out state policy . . . " -- or not carrying it out -- "are often tougher and truer law than the dead words of the written text." Nashville, C. & St.L. R. Co. v. Browning, 310 U.S. 362, 369.

The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution, see Muskrat v. United States, 219 U.S. 346, is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional questions.

Page 503

The policy reflected in numerous cases and over a long period was thus summarized in the oft-quoted statement of Mr. Justice Brandeis:

The Court [has] developed, for its own governance in the...

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