Planned Parenthood Committee of Phoenix, Inc. v. Maricopa County

• Decision Date: 31 October 1962
• Docket Number: No. 7309,7309
• Citation: 375 P.2d 719,92 Ariz. 231
• Parties: PLANNED PARENTHOOD COMMITTEE OF PHOENIX, INCORPORATED, a nonprofit Arizona corporation, Appellant, v. MARICOPA COUNTY, a political subdivision of the State of Arizona; James G. Hart, James E. Lindsay, and Ruth A. O'Neill, as Members and constituting the Board of Supervisors of Maricopa County; Thomas Sullivan, as Maricopa County Manager; S. F. Farnsworth, as Director of Maricopa County Health Department; Charles Stidham, as Maricopa County Attorney; and State of Arizona, Appellees.
• Court: Arizona Supreme Court

Page 719

375 P.2d 719

92 Ariz. 231

PLANNED PARENTHOOD COMMITTEE OF PHOENIX, INCORPORATED, a nonprofit Arizona corporation, Appellant, v. MARICOPA COUNTY, a political subdivision of the State of Arizona; James G. Hart, James E. Lindsay, and Ruth A. O'Neill, as Members and constituting the Board of Supervisors of Maricopa County; Thomas Sullivan, as Maricopa County Manager; S. F. Farnsworth, as Director of Maricopa County Health Department; Charles Stidham, as Maricopa County Attorney; and State of Arizona, Appellees.

No. 7309.

Supreme Court of Arizona, In Banc.

Oct. 31, 1962.

Sheldon Mitchell, Phoenix, for appellant.

Robert W. Pickrell, Atty. Gen., Philip M. Haggerty, Asst. Atty. Gen., Charles Stidham, former Maricopa County Atty., and Charles N. Ronan, present Maricopa County Atty., for appellees.

BERNSTEIN, Chief Justice.

This is a declaratory judgment action ¹ brought to test the constitutionality of A.R.S. § 13-213 under the state and federal constitutions. From a judgment of the lower court holding the statute constitutional, the appellant, hereinafter called 'plaintiff', has perfected this appeal.

Plaintiff is a non-profit corporation associated with the Planned Parenthood Federation of America, Inc. Its objective is the dissemination of information which would enable parents to plan and space their offspring so as to promote the mental and physical health of mothers and children. It has operated a clinic at Memorial Hospital in Phoenix in which birth controlmethods and devices were discussed and explained to persons seeking such information. It has sent out from this clinic to the general public descriptive, educational and informative literature on the subject of birth control. The general public learned of plaintiff's business from, among other sources, referrals made by doctors and nurses working in county medical clinics throughout Maricopa County. At such clinics Planned Parenthood displayed and distributed literature explaining its functions and purposes, and giving information on birth control and contraceptive devices.

It was stipulated by the parties to this case that Planned Parenthood's business activity has been in direct contravention of A.R.S. § 13-213 which states:

'Advertising to produce abortion or prevent conception; punishment

'A person who wilfully writes, composes or publishes a notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for prevention of conception, or who offers his services by a notice, advertisement or otherwise, to assist in the accomplishment of any such purposes, is guilty of a misdemeanor.'

Because of the existence of this section Dr. S. F. Farnsworth, County Medical Director, issued the following directive:

'Maricopa County Health Department

'To: All Division Heads June 17, 1959

'From: S. F. Farnsworth, M. D.

'No information regarding birth control shall be given out by Maricopa County Health Department Personnel during any clinic session.

'No literature or pamphlets in regard to birth control will be displayed or distributed by clinic personnel in any Maricopa County Health Department clinic facility.

'Patients who request information regarding birth control or Planned Parenthood clinics may receive such information at the time of PHN [Phoenix Home Nursing] home visits.

'This policy shall be effective as of this date, June 17, 1959.'

It was further stipulated by the parties that as a result of the existence of § 13-213 and the issuance of the above directive by Dr. Farnsworth, plaintiff has withdrawn all of its literature from the various county clinics and has curtailed its dissemination and distribution of literature dealing with contraception and birth control. The directive of Dr. Farnsworth has caused a complete stoppage of referrals from the county clinics and Planned Parenthood's business operations have come almost to a standstill. It was also stipulated that Planned Parenthood's discontinuation of a large part of its business activity was caused by the fact that prosecution under A.R.S. § 13-213 was likely unless such curtailment took place.

Plaintiff's contentions may be summarized under the headings:

(1) A.R.S. § 13-213 is a deprivation of the constitutional freedom of speech and of the press, and imposes a prior restraint and censorship on publishing and advertising activities in violation of the First Amendment of the Federal Constitution as applied to the states by the Fourteenth Amendment thereof, and in violation of Article II, §§ 4 and 6 of the Arizona Constitution, A.R.S. ²

(2) A.R.S. § 13-213 is an improper exercise of the police power of the state in that it penalizes acts which are not substantive evils, it is arbitrary and unreasonable, and it does not reflect any legitimate legislative or public policy, for which reasons it violates the due process requirements of the Fourteenth Amendment of the Federal Constitution.

Before considering the arguments of the plaintiff in support of its contentions it is necessary to examine and construe the statute. It is obvious that the parties cannot, by stipulation, bind this court by the proposition that Planned Parenthood's activities are in direct contravention of the statute. Cf. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). Before deciding whether the statute causes an unconstitutional impairment of plaintiff's freedom of speech we must determine the nature of the infringement which the statute imposes upon the plaintiff's activities.

The two clauses of § 13-213 are both related to advertising. A person who wilfully 'writes, composes or publishes a notice or advertisement of any medicine or means * * * for prevention of conception * * *' comes within its prohibition, as does one who 'offers his services by a notice, advertisement or otherwise, to assist in the accomplishment of any such purposes * * *.'

While in its broadest sense, 'advertising' includes almost every activity designed to capture the attention of another, we do not think it is to be understood in that broad sense in this criminal statute. The rule of statutory construction, noscitur a sociis, directs our attention to the accompanying words as we undertake to learn the meaning to be given to the words 'notice' and 'advertisement.' Thus, the words 'writes, composes or publishes' may limit the meaning of 'notice' and 'advertisement.' The words 'write' and 'compose' connote a more or less formal announcement as contrasted to a person to person referral. The word 'publish' used in conjunction with 'write' and 'compose' strongly implies the utilization of the newspaper or some similar mass media.

"To 'publish' is to issue, to make known what before was private, to put into circulation. * * * The idea of publicity, of circulation, of intended distribution, seems to be inseparable from the term 'publication,"' Cox v. First Mortgage Loan Co., 173 Okl. 392, 394, 48 P.2d 1060, 1063 (1935).

'In its broad sense, the word 'published' means to make public announcement of, to make known to people in general, to divulge, to disseminate, but in its more restricted sense it means to make public in a newspaper, book, circular, or the like.' Underwood v. City of Bellefontaine, 64 Ohio App. 205, 215, 28 N.E.2d 663, 668 (1939).

The word 'publish' means to make known to mankind in general, or to people in general, to make public, to send forth, as a book, newspaper, musical piece, or other printed work, either for sale or for general distribution, to print and issue from the press, to utter, or put into circulation. Rizzo v. Zucker, 18 Misc.2d 593, 182 N.Y.S2d 246 (1958).

When used in connection with words such as those discussed, it is apparent that the word 'advertise' or 'advertisement' has a limited meaning.

'The verb 'advertise' means '* * * [t]o give public notice of; to announce publicly, esp[ecially] by a printed notice; as, to advertise a sale; hence, to call public attention to, esp[ecially] by emphasizing desirable qualities, in order to arouse a desire to purchase, invest, patronize, or the like.'' Amsel v. Brooks, 141 Conn. 288, 299, 106 A.2d 152, 158, 45 A.L.R.2d 1234 (1954).

In construing the California statute from which § 13-213 of the Arizona Statutes was adopted, the California Court of Appeals said:

"The many uses of the term 'advertise,' in its various forms, may be found in the Century Dictionary, from which this definition, the one most nearly reaching the facts here, is taken: 'The act or practice of bringing anything, as one's wants or one's business, into public notice, as by paid announcement in periodicals, or by handbills, placards, etc., as to secure customers by advertising."' People v. McKean, 76 Cal.App. 114, 118, 243 P. 898, 900 (1925).

In the same case the court considered the words 'notice' and 'otherwise' as used in the clauses of the act:

'* * * The word 'notice' as used in both clauses * * * doubtless was intended to include such notices as are sent through the mail; also circulars left upon doorsteps, etc.

'We think that the term 'or otherwise' in the provision 'Every person who willfully * * * offers his services by any notice, advertisement, or otherwise, * * *,' should be construed as signifying other like means, i. e., means which are of the same general nature or class as advertisements, or which are of the same general nature or class as those notices which are akin to advertisements.

'This construction is warranted by the rule 'ejusdem generis,' * * *.' 76 Cal.App. at 118, 119, 243 P. at 900.

In the McKean case, which involved a charged violation of the clauses relating to abortions, it was held that the information charging the defendant with orally offering to assist in an abortion did not state a public offense. The statute was construed to require more than the 'advertisement' or 'notice' that might be involved in the oral act of making the offer of services.

With these definitions in...