Carey v. Population Services International

• Decision Date: 09 June 1977
• Docket Number: No. 75-443,75-443
• Parties: Hugh CAREY, etc., et al., Appellants, v. POPULATION SERVICES INTERNATIONAL et al
• Court: U.S. Supreme Court

431 U.S. 678

97 S.Ct. 2010

52 L.Ed.2d 675

Hugh CAREY, etc., et al., Appellants,

v POPULATION SERVICES INTERNATIONAL et al.

No. 75-443.

Argued Jan. 10, 1977.

Decided June 9, 1977.

Syllabus

Section 6811(8) of the New York Education Law makes it a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under 16; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives. In appellees' action against appellant state officials challenging the constitutionality of § 6811(8), a three-judge District Court declared the statute unconstitutional in its entirety under the First and Fourteenth Amendments insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied. Held : The judgment is affirmed. Pp. 682-703; 707-708; 713-716.

D.C., 398 F.Supp. 321, affirmed.

Mr. Justice BRENNAN delivered the opinion of the Court with respect to Parts I, II, III, and V, finding that:

1. Appellee Population Planning Associates (PPA), a corporation that makes mail-order sales of nonmedical contraceptive devices from its North Carolina offices and regularly advertises its products in New York periodicals and fills mail orders from New York residents without limiting availability of the products to persons of any particular age, has the requisite standing to maintain the action not only in its own right but also on behalf of its potential customers, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 51 L.Ed.2d 397, and therefore there is no occasion to decide the standing of the other appellees. Pp. 682-684.

2. Regulations imposing a burden on a decision as fundamental as whether to bear or beget a child may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Pp. 684-686.

3. The provision prohibiting distribution of nonmedical contraceptives to persons 16 or over except through licensed pharmacists clearly burdens the right of such individuals to use contraceptives if they so desire, and the provision serves no compelling state interests. It cannot be justified by an interest in protecting health insofar as it applies to nonhazardous contraceptives or in protecting potential life, nor can it be justified by a concern that young people not sell contraceptives, or as being designed to serve as a quality control device or as facilitating enforcement of the other provisions of the statute. Pp. 686-691.

4. The prohibition of any advertisement or display of contraceptives that seeks to suppress completely any information about the availability and price of contraceptives cannot be justified on the ground that advertisements of contraceptive products would offend and embarrass those exposed to them and that permitting them would legitimize sexual activity of young people. These are classically not justifications validating suppression of expression protected by the First Amendment, and here the advertisements in question merely state the availability of products that are not only entirely legal but constitutionally protected. Pp. 700-702.

Mr. Justice BRENNAN, joined by Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, concluded in Part IV that the provision prohibiting distribution of contraceptives to persons under 16, as applied to nonprescription contraceptives, cannot be justified as a permissible regulation of minors' morality in furtherance of the State's policy against promiscuous sexual intercourse among the young. Pp. 691-699.

(a) The right to privacy in connection with decisions affecting procreation extends to minors as well as to adults, and since a State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. Pp. 693-694.

(b) The argument that sexual activity may be deterred by increasing the hazards attendant on it has been rejected by the Court as a justification for restrictions on the freedom to choose whether to bear or beget a child. Eisenstadt v. Baird, 405 U.S. 438, 448, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349; Roe v. Wade, 410 U.S. 113, 148, 93 S.Ct. 705, 724, 35 L.Ed.2d 147. Moreover, there is substantial doubt whether limiting access to contraceptives will in fact substantially discourage early sexual behavior. When a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some state policy requires more than the unsupported assertion (appellants here having conceded that there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives) that the burden is connected to such a policy. Pp. 694-696.

(c) That under another provision of the statute a minor under 16 may be supplied with a contraceptive by a physician does not save the challenged provision, especially where appellants asserted no medical necessity for imposing a limitation on the distribution of nonprescription contraceptives to minors. Pp. 697-699.

Mr. Justice WHITE concluded that the prohibition against distribution of contraceptives to persons under 16 cannot be justified primarily because the State has not demonstrated that such prohibition measurably contributes to the deterrent purposes that the State advances as justification. Pp. 702-703.

Mr. Justice POWELL concluded that the prohibition against distribution of contraceptives to persons under 16 is defective both because it infringes the privacy interests of married females between the ages of 14 and 16 and because it prohibits parents from distributing contraceptives to their children, thus unjustifiably interfering with parental interests in rearing children. Pp. 707-708.

Mr. Justice STEVENS concluded that the prohibition against distribution of contraceptives to persons under 16 denies such persons and their parents a choice which, if available, would reduce exposure to venereal disease or unwanted pregnancy, and that the prohibition cannot be justified as a means of discouraging sexual activity by minors. Pp. 713-716.

D.C., 398 F.Supp. 321, affirmed.

Arlene R. Silverman, New York City, for appellants.

Michael N. Pollet, New York City, for appellees.

Mr. Justice BRENNAN delivered the opinion of the Court (Parts I, II, III, and V), together with an opinion (Part IV), in which Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN joined.

Under New York Ed. Law § 6811(8) (McKinney 1972) it is a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives.¹ A three-judge District Court for the Southern District of New York declared § 6811(8) unconstitutional in its entirety under the First and Fourteenth Amendments of the Federal Constitution insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied. 398 F.Supp. 321 (1975). We noted probable jurisdiction, 426 U.S. 918, 96 S.Ct. 2621, 49 L.Ed.2d 371 (1976). We affirm.

I

We must address a preliminary question of the standing of the various appellees to maintain the action. We conclude that appellee Population Planning Associates, Inc. (PPA) has the requisite standing and therefore have no occasion to decide the standing of the other appellees.²

PPA is a corporation primarily engaged in the mail-order retail sale of nonmedical contraceptive devices from its offices in North Carolina. PPA regularly advertises its products in periodicals published or circulated in New York, accepts orders from New York residents, and fills orders by mailing contraceptives to New York purchasers. Neither the advertisements nor the order forms accompanying them limit availability of PPA's products to persons of any particular age.

Various New York officials have advised PPA that its activities violate New York law. A letter of December 1, 1971, notified PPA that a PPA advertisement in a New York college newspaper violated § 6811(8), citing each of the three challenged provisions, and requested "future compliance" with the law. A second letter, dated February 23, 1973, notifying PPA that PPA's magazine advertisements of contraceptives violated the statute, referred particularly to the provisions prohibiting sales to minors and sales by nonpharmacists, and threatened: "In the event you fail to comply, the matter will be referred to our Attorney General for legal action." Finally, PPA was served with a copy of a report of inspectors of the State Board of Pharmacy, dated September 4, 1974, which recorded that PPA advertised male contraceptives, and had been advised to cease selling contraceptives in violation of the state law.

That PPA has standing to challenge § 6811(8), not only in its own right but also on behalf of its potential customers, is settled by Craig v. Boren, 429 U.S. 190, 192-197, 97 S.Ct. 451, 454-456, 51 L.Ed.2d 397 (1976). Craig held that a vendor of 3.2% beer had standing to challenge in its own right and as advocate for the rights of third persons, the gender-based discrimination in a state statute that prohibited sale of the beer to men, but not to women, between the ages of 18 and 21. In this case, as did the statute in Craig, § 6811(8) inflicts on the vendor PPA "injury in fact" that satisfies Art. III's case-or-controversy requirement, since "(t)he legal duties created by the statutory sections under challenge are addressed directly to vendors...