Sturgis v. Attorney General

• Citation: 358 Mass. 37,260 N.E.2d 687
• Parties: Somers H. STURGIS et al. v. ATTORNEY GENERAL.
• Decision Date: 29 June 1970
• Court: United States State Supreme Judicial Court of Massachusetts

Page 687

260 N.E.2d 687

358 Mass. 37

Somers H. STURGIS et al. v. ATTORNEY GENERAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1970.

Decided June 29, 1970.

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 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, ¹ make it illegal for him to 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 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 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 legislative power.' Commonwealth v. Finnigan, 326 Mass. 378, 379, 96 N.E.2d 715, 716. Furthermore, as we stated in Commonwealth v. Leis, 355 Mass. 189, 192, 243 N.E.2d 898, 901--902, 'We know of nothing that compels the Legislature to thoroughly investigate the available scientific and medical evidence when enacting a law. * * * The Legislature is presumed to have acted rationally and reasonably.' The current case raises questions resembling those discussed in Commonwealth v. Leis, supra. The questionable safety of birth control devices is earnestly argued by the Attorney General. 'That there may be an earnest conflict of serious opinion does not suffice to bring matters of legislative judgment within the range of judicial cognizance.' Commonwealth v. Leis, 355 Mass. 189, 201, Kirk, J., concurring. In short, the Legislature is free to conclude that some harm may conceivably attend the employment of contraceptive devices. If such be so, the prohibition against their distribution bears a real and substantial relation to the legislative purpose. We are aware that it may well be that certain contraceptive medication and devices constitute to hazard to health, in which event it could be argued that the statute swept too broadly in its prohibition.

There is, however, a second and more compelling ground for upholding the statute. The plaintiffs argue that the statutory provisions, following in the wake of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, that the plaintiffs can treat married but not unmarried patients are anomalous on their face. There can be no doubt that the enforcement of the statute does create certain factual situations which at best can be described as unhappy. However, the Griswold case is based on the right of privacy 'surrounding the marriage relationship.' Griswold v. Connecticut, supra, at 486, 85 S.Ct. 1678. The Supreme Court of the United States found the Connecticut statute too broad in scope and thus restricted the Legislature from interdicting distribution of birth control devices to married persons. However, the Griswold case, as the Attorney General argues, affirmed 'beyond doubt' the right of the State of Connecticut to enact statutes regulating the private sexual lives of single persons, stating that the discouraging of extra-marital relations is 'admittedly...