|||SUPREME COURT OF THE UNITED STATES
431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675
|||June 9, 1977;
|||CAREY, GOVERNOR OF NEW YORK, ET AL.
POPULATION SERVICES INTERNATIONAL ET AL.
|||APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK
|||Arlene R. Silverman, Assistant Attorney General of New York, argued the
cause for appellants. With her on the briefs were Louis J. Lefkowitz, Attorney
General, and Samuel A. Hirshowitz, First Assistant Attorney General.
|||Michael N. Pollet argued the cause for appellees. With him on the brief
was Steven Delibert.*
|||Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist,
|||The opinion of the court was delivered by: Brennan
|||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.
|||398 F.Supp. 321, affirmed.
|||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 non-medical 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, 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 non-medical 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 non-hazardous
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.
|||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, 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; Roe
v. Wade, 410 U.S. 113, 148. 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.
|||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.
|||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 unjustifically interfering with parental interests in rearing children.
|||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 veneral disease or
unwanted pregnancy, and that the prohibition cannot be justified as a means
of discouraging sexual activity by minors. Pp. 713-716.
|||BRENNAN, J., announced the Court's judgment and delivered an opinion of
the Court (Parts I, II, III, and V), in which STEWART, MARSHALL, BLACKMUN,
and STEVENS, JJ., joined; in all but Part II of which WHITE, J., joined;
and in Part I of which POWELL, J., joined; and an opinion (Part IV), in
which STEWART, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., post, p.
702, POWELL, J., post, p. 703, and STEVENS, J., post, p. 712, filed opinions
Concurring in part and Concurring in the judgment. BURGER, C.J., Dissented.
REHNQUIST, J., filed a Dissenting opinion, post, p. 717.
|||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 Educ. 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.
*fn1 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 (1976). We affirm.
|||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. *fn2
|||PPA is a corporation primarily engaged in the mail-order retail sale of
no medical 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
|||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 (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 "he legal duties created by the statutory sections under
challenge are addressed directly to vendors such as [PPA. It] is obliged
either to heed the statutory , thereby incurring a direct economic injury
through the constriction of market, or to disobey the statutory command
and suffer" legal sanctions. 429 U.S., at 194. *fn3
Therefore, PPA is among the "vendors and those in like positions have been
uniformly permitted to resist efforts at restricting their operations by
acting as advocates for the rights of third parties who seek access to their
market or function." Id., at 195. See also Eisenstadt v. Baird, 405 U.S.
438, 443-446 (1972); Sullivan v. Little Hunting Park, 396 U.S. 229, 237
(1969); Barrows v. Jackson, 346 U.S. 249, 257-260 (1953). As such, PPA "is
entitled to assert those concomitant rights of third parties that would
be 'diluted or adversely affected' should constitutional challenge fail."
Craig v. Boren, supra, at 195, quoting Griswold v. Connecticut, 381 U.S.
479, 481 (1965). *fn4
|||Although "he Constitution does not explicitly mention any right of privacy,"
the Court has recognized that one aspect of the "liberty" protected by the
Due Process Clause of the Fourteenth Amendment is "a right of personal privacy,
or a guarantee of certain areas or zones of privacy." Roe
v. Wade, 410 U.S. 113, 152 (1973). This right
of personal privacy includes "the interest in independence in making certain
kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600 (1977).
While the outer limits of this aspect of privacy have not been marked by
the Court, it is clear that among the decisions that an individual may make
without unjustified government interference are personal decisions "relating
to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner
v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542 (1942); contraception,
Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE,
J., Concurring in result); family relationships, Prince v. Massachusetts,
321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society
of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, [ 262 U.S. 390,
399 (1923)]." Roe v. Wade, supra,
at 152-153. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632,
|||The decision whether or not to beget or bear a child is at the very heart
of this cluster of constitutionally protected choices. That decision holds
a particularly important place in the history of the right of privacy, a
right first explicitly recognized in an opinion holding unconstitutional
a statute prohibiting the use of contraceptives, Griswold v. Connecticut,
supra, and most prominently vindicated in recent years in the contexts of
contraception, Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra;
and abortion, Roe v. Wade, supra;
Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52 (1976). This is understandable, for in a field
that by definition concerns the most intimate of human activities and relationships,
decisions whether to accomplish or to prevent conception are among the most
private and sensitive. "If the right of privacy means anything, it is the
right of the individual, married or single, to be free of unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453. (Emphasis
|||That the constitutionally protected right of privacy extends to an individual's
liberty to make choices regarding contraception does not, however, automatically
invalidate every state regulation in this area. The business of manufacturing
and selling contraceptives may be regulated in ways that do not infringe
protected individual choices. And even a burdensome regulation may be validated
by a sufficiently compelling state interest. In Roe v.
Wade, for example, after determining that the "right of privacy...
encompass a woman's decision whether or not to terminate her pregnancy,"
410 U.S., at 153, we cautioned that the right is not absolute, and that
certain state interests (in that case, "interests in safeguarding health,
in maintaining medical standards, and in protecting potential life") may
at some point "become sufficiently compelling to sustain regulation of the
factors that govern the abortion decision." Id., at 154. "Compelling" is
of course the key word; where a decision as fundamental as that whether
to bear or beget a child is involved, regulations imposing a burden on it
may be justified only by compelling state interests, and must be narrowly
drawn to express only those interests. Id., at 155-156, and cases there
|||With these principles in mind, we turn to the question whether the District
Court was correct in holding invalid the provisions of § 6811(8) as
applied to the distribution of nonprescription contraceptives.
|||We consider first the wider restriction on access to contraceptives created
by § 6811(8)'s prohibition of the distribution of non-medical contraceptives
to adults except through licensed pharmacists.
|||Appellants argue that this Court has not accorded a "right of access to
contraceptives" the status of a fundamental aspect of personal liberty.
They emphasize that Griswold v. Connecticut struck down a state prohibition
of the use of contraceptives, and so had no occasion to discuss laws "regulating
their manufacture or sale." 381 U.S., at 485. Eisenstadt v. Baird, was decided
under the Equal Protection Clause, holding that "whatever the rights of
the individual to access to contraceptives may be, the rights must be the
same for the unmarried and the married alike." 405 U.S., at 453. Thus appellants
argue that neither case should be treated as reflecting upon the State's
power to limit or prohibit distribution of contraceptives to any persons,
married or unmarried. But see id., at 463-464 (WHITE, J., Concurring in
|||The fatal fallacy in this argument is that it overlooks the underlying
premise of those decisions that the Constitution protects "the right of
the individual... to be free from unwarranted governmental intrusion into...
the decision whether to bear or beget a child." Id., at 453. Griswold did
state that by "forbidding the use of contraceptives rather than regulating
their manufacture or sale," the Connecticut statute there had "a maximum
destructive impact" on privacy rights. 381 U.S., at 485. This intrusion
into "the sacred precincts of marital bedrooms" made that statute particularly
"repulsive." Id., at 485-486. But subsequent decisions have made clear that
the constitutional protection of individual autonomy in matters of childbearing
is not dependent on that element. Eisenstadt v. Baird, holding that the
protection is not limited to married couples, characterized the protected
right as the "decision whether to bear or beget a child." 405 U.S., at 453
(emphasis added). Similarly, Roe v. Wade,
held that the Constitution protects "a woman's decision whether or not to
terminate her pregnancy." 410 U.S., at 153 (emphasis added). See also Whalen
v. Roe, supra, at 599-600, and n. 26. These decisions put Griswold in proper
perspective. Griswold may no longer be read as holding only that a State
may not prohibit a married couple's use of contraceptives. Read in light
of its progeny, the teaching of Griswold is that the Constitution protects
individual decisions in matters of childbearing from unjustified intrusion
by the State.
|||Restrictions on the distribution of contraceptives clearly burden the
freedom to make such decisions. A total prohibition against sale of contraceptives,
for example, would intrude upon individual decisions in matters of procreation
and contraception as harshly as a direct ban on their use. Indeed, in practice,
a prohibition against all sales, since more easily and less offensively
enforced, might have an even more devastating effect upon the freedom to
choose contraception. Cf. Poe v. Ullman, 367 U.S. 497 (1961).
|||An instructive analogy is found in decisions after Roe v.
Wade, supra, that held unconstitutional statutes that did
not prohibit abortions outright but limited in a variety of ways a woman's
access to them. Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of
Central Missouri v. Danforth, 428 U.S. 52 (1976). See also Bigelow v. Virginia,
421 U.S. 809 (1975). The significance of these cases is that they establish
that the same test must be applied to state regulations that burden an individual's
right to decide to prevent conception or terminate pregnancy by substantially
limiting access to the means of effectuating that decision as is applied
to state statutes that prohibit the decision entirely. Both types of regulation
"may be justified only by a 'compelling state interest'... and... must be
narrowly drawn to express only the legitimate state interests at stake."
Roe v. Wade, supra, at 155. *fn5
See also Eisenstadt v. Baird, 405 U.S., at 463 (WHITE, J., Concurring in
result). This is so not because there is an independent fundamental "right
of access to contraceptives," but because such access is essential to exercise
of the constitutionally protected right of decision in matters of childbearing
that is the underlying foundation of the holdings in Griswold, Eisenstadt
v. Baird, and Roe v. Wade.
|||Limiting the distribution of nonprescription contraceptives to licensed
pharmacists clearly imposes a significant burden on the right of the individuals
to use contraceptives if they choose to do so. Eisenstadt v. Baird, supra,
at 461-464 (WHITE, J., Concurring in result).The burden is, of course, not
as great as that under a total ban on distribution. Nevertheless, the restriction
of distribution channels to a small fraction of the total number of possible
retail outlets renders contraceptive devices considerably less accessible
to the public, reduces the opportunity for privacy of selection and purchase,
*fn6 and lessens the possibility
of price competition. *fn7 Cf.
Griswold v. Connecticut, 381 U.S., at 503 (WHITE, J., Concurring in judgment).
Of particular relevance here is Doe v. Bolton, supra, in which the Court
struck down, as unconstitutionally burdening the right of a woman to choose
abortion, a statute requiring that abortions be performed only in accredited
hospitals, in the absence of proof that the requirement was substantially
related to the State's interest in protecting the patient's health. 410
U.S., at 193-195. The same infirmity infuses the limitation in § 6811(8).
"Just as in Griswold, where the right of married persons to use contraceptives
was 'diluted or adversely affected' by permitting a conviction for giving
advice as to its exercise,... so here, to sanction a medical restriction
upon distribution of a contraceptive not proved hazardous to health would
impair the exercise of the constitutional right." Eisenstadt v. Baird, 405
U.S., at 464 (WHITE, J., Concurring in result).
|||There remains the inquiry whether the provision serves a compelling state
interest. Clearly "interests... in maintaining medical standards, and in
protecting potential life," Roe v. Wade,
410 U.S., at 154, cannot be invoked to justify this statute. Insofar as
§ 6811(8) applies to non-hazardous contraceptives, *fn8
it bears no relation to the State's interest in protecting health. Eisenstadt
v. Baird, supra, at 450-452; 463-464 (WHITE, J., Concurring in result).
*fn9 Nor is the interest in protecting
potential life implicated in state regulation of contraceptives. Roe
v. Wade, supra, at 163-164.
|||Appellants therefore suggest that § 6811(8) furthers other state
interests. But none of them is comparable to those the Court has heretofore
recognized as compelling. Appellants argue that the limitation of retail
sales of non-medical contraceptives to pharmacists (1) expresses "a proper
concern that young people not sell contraceptives"; (2) "allows purchasers
to inquire as to the relative qualities of the varying products and prevents
anyone from tampering with them"; and (3) facilitates enforcement of the
other provisions of the statute. Brief for Appellants 14. The first hardly
can justify the statute's incursion into constitutionally protected rights,
and in any event the statute is obviously not substantially related to any
goal of preventing young people from selling contraceptives. *fn10
Nor is the statute designed to serve as a quality control device. Nothing
in the record suggests that pharmacists are particularly qualified to give
advice on the merits of different non-medical contraceptives, or that such
advice is more necessary to the purchaser of contraceptive products than
to consumers of other nonprescription items. Why pharmacists are better
able or more inclined than other retailers to prevent tampering with prepackaged
products, or, if they are, why contraceptives are singled out for this special
protection, is also unexplained. *fn11
As to ease of enforcement, the prospect of additional administrative inconvenience
has not been thought to justify invasion of fundamental constitutional rights.
See, e.g., Morrisseyv. Brewer, 408 U.S. 471 (1972); Goldberg v. Kelly, 397
U.S. 254 (1970).
|||The District Court also held unconstitutional, as applied to nonprescription
contraceptives, the provision of § 6811(8) prohibiting the distribution
of contraceptives to those under 16 years of age. *fn13
Appellants contend that this provision of the statute is constitutionally
permissible as a regulation of the morality of minors, in furtherance of
the State's policy against promiscuous sexual intercourse among the young.
|||The question of the extent of state power to regulate conduct of minors
not constitutionally regulable when committed by adults is a vexing one,
perhaps not susceptible of precise answer. We have been reluctant to attempt
to define "the totality of the relationship of the juvenile and the state."
In re Gault, 387 U.S. 1, 13 (1967). Certain principles, however, have been
recognized. "Minors, as well as adults, are protected by the Constitution
and possess constitutional rights." Planned Parenthood of Central Missouri
v. Danforth, 428 U.S., at 74. "hatever may be their precise impact, neither
the Fourteenth Amendment nor the Bill of Rights is for adults alone." In
re Gault, supra, at 13. *fn14
On the other hand, we have held in a variety of contexts that "the power
of the state to control the conduct of children reaches beyond the scope
of its authority over adults." Prince v. Massachusetts, 321 U.S., at 158,
170 (1944). See Ginsberg v. New York, 390 U.S. 629 (1968). See also McKeiver
v. Pennsylvania, 403 U.S. 528 (1971).
|||Of particular significance to the decision of this case, the right to
privacy in connection with decisions affecting procreation extends to minors
as well as to adults. Planned Parenthood of Central Missouri v. Danforth,
supra, held that a State "may not impose a blanket provision... requiring
the consent of a parent or person in loco parentis as a condition for abortion
of an unmarried minor during the first 12 weeks of her pregnancy." 428 U.S.,
at 74. As in the case of the spousal-consent requirement struck down in
the same case, id., at 67-72, "the State does not have the constitutional
authority to give a third party an absolute, and possibly arbitrary, veto,"
id., at 74, "'which the state itself is absolutely and totally prohibited
from exercising.'" Id., at 69. State restrictions inhibiting privacy rights
of minors are valid only if they serve "any significant state interest...
that is not present in the case of an adult." Id., at 75. *fn15
Planned Parenthood found that no such interest justified a state requirement
of parental consent. *fn16
|||Since the 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, the constitutionality of a blanket prohibition of the distribution
of contraceptives to minors is a fortiori foreclosed. The State's interests
in protection of the mental and physical health of the pregnant minor, and
in protection of potential life are clearly more implicated by the abortion
decision than by the decision to use a non-hazardous contraceptive.
|||Appellants argue, however, that significant state interests are served
by restricting minors' access to contraceptives, because free availability
to minors of contraceptives would lead to increased sexual activity among
the young, in violation of the policy of New York to discourage such behavior.
*fn17 The argument is that minors'
sexual activity may be deterred by increasing the hazards attendant on it.
The same argument, however, would support a ban on abortions for minors,
or indeed support a prohibition on abortions, or access to contraceptives,
for the unmarried, whose sexual activity is also against the public policy
of many States. Yet, in each of these areas, the Court has rejected the
argument, noting in Roe v. Wade,
that "no court or commentator has taken the argument seriously." 410 U.S.,
at 148. The reason for this unanimous rejection was stated in Eisenstadt
v. Baird: "It would be plainly unreasonable to assume that [the State] has
prescribed pregnancy and the birth of an unwanted child [or the physical
and psychological dangers of an abortion] as punishment for fornication."
405 U.S., at 448. We remain reluctant to attribute any such "scheme of values"
to the State. *fn18
|||Moreover, there is substantial reason for doubt whether limiting access
to contraceptives will in fact substantially discourage early sexual behavior.
Appellants themselves conceded in the District Court that "there is no evidence
that teenage extramarital sexual activity increases in proportion to the
availability of contraceptives," 398 F. Supp., at 332, and n. 10, and accordingly
offered none, in the District Court or here. Appellees, on the other hand,
cite a considerable body of evidence and opinion indicating that there is
no such deterrent effect. *fn19
Although we take judicial notice, as did the District Court, id., at 331-333,
that with or without access to contraceptives, the incidence of sexual activity
among minors is high, *fn20 and
the consequences of such activity are frequently devastating, *fn21
the studies cited by appellees play no part in our decision. It is enough
that we again confirm the principle that 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 significant state policy
requires more than a bare assertion, based on a conceded complete absence
of supporting evidence, that the burden is connected to such a policy. *fn22
|||Appellants argue that New York does not totally prohibit distribution
of contraceptives to minors under 16, and that accordingly § 6811(8)
cannot be held unconstitutional. Although § 6811(8) on its face is
a flat unqualified prohibition, Educ. Law § 6807(b) (McKinney, Supp.
1976-1977), see nn. 1, 7, and 13, supra, provides that nothing in Education
Law §§ 6800-6826 shall be construed to prevent "ny physician...
from supplying his patients with such drugs as ... deems proper in connection
with his practice." This narrow exception, however, does not save the statute.
As we have held above as to limitations upon distribution to adults, less
than total restrictions on access to contraceptives that significantly burden
the right to decide whether to bear children must also pass constitutional
scrutiny. Appellants assert no medical necessity for imposing a medical
limitation on the distribution of nonprescription contraceptives to minors.
Rather, they argue that such a restriction serves to emphasize to young
people the seriousness with which the State views the decision to engage
in sexual intercourse at an early age. *fn23
But this is only another form of the argument that juvenile sexual conduct
will be deterred by making contraceptives more difficult to obtain. Moreover,
that argument is particularly poorly suited to the restriction appellants
are attempting to justify, which on appellants' construction delegates the
State's authority to disapprove of minors' sexual behavior to physicians,
who may exercise it arbitrarily, *fn24
either to deny contraceptives to young people, or to undermine the State's
policy of discouraging illicit early sexual behavior. This the State may
not do. Cf. Planned Parenthood of Central Missouri v. Danforth, 428 U.S.,
at 69, 74. *fn25
|||The District Court's holding that the prohibition of any "advertisement
or display" of contraceptives is unconstitutional was clearly correct. Only
last Term Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425
U.S. 748 (1976), held that a State may not "completely suppress the dissemination
of concededly truthful information about entirely lawful activity," even
when that information could be categorized as "commercial speech." Id.,
at 773. Just as in that case, the statute challenged here seeks to suppress
completely any information about the availability and price of contraceptives.
*fn26 Nor does the case present
any question left open in Virginia Pharmacy Bd.; here, as there, there can
be no contention that the regulation is "a mere time, place, and manner
restriction," id., at 771, or that it prohibits only misleading or deceptive
advertisements, ibid., or "that the transactions proposed in the forbidden
advertisements are themselves illegal in any way. Cf. Pittsburgh Press Co.
v. Human Relations Comm'n, [ 413 U.S. 376 (1973)]." Id., at 772-773. Moreover,
in addition to the "substantial individual and societal interests" in the
free flow of commercial information enumerated in Virginia Pharmacy Bd.,
supra, at 763-766, the information suppressed by this statute "related to
activity with which, at least in some respects, the State could not interfere."
425 U.S., at 760. Cf. Bigelow v. Virginia, 421 U.S. 809 (1975).
|||Appellants contend that advertisements of contraceptive products would
be offensive and embarrassing to those exposed to them, and that permitting
them would legitimize sexual activity of young people. But these are classically
not justifications validating the suppression of expression protected by
the First Amendment. At least where obscenity is not involved, we have consistently
held that the fact that protected speech may be offensive to some does not
justify its suppression. See, e.g., Cohen v. California, 403 U.S. 15 (1971).
*fn27 As for the possible "legitimation"
of illicit sexual behavior, whatever might be the case if the advertisements
directly incited illicit sexual activity among the young, none of the advertisements
in this record can even remotely be characterized as "directed to inciting
or producing imminent lawless action and... likely to incite or produce
such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). They merely
state the availability of products and services that are not only entirely
legal, cf. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376
(1973), but constitutionally protected. Cf. Bigelow v. Virginia, supra.
*fn28 These arguments therefore
do not justify the total suppression of advertising concerning contraceptives.
|||THE CHIEF JUSTICE Dissents.
|||JUSTICE WHITE, Concurring in part and Concurring in the result.
|||I join Parts I, III, and V of the Court's opinion and concur in the result
with respect to Part IV.*
|||Although I saw no reason in Eisenstadt v. Baird, 405 U.S. 438 (1972),
to reach "the novel constitutional question whether a State may restrict
or forbid the distribution of contraceptives to the unmarried," id., at
465 (concurring in result), four of the seven Justices participating in
that case held that in this respect the rights of unmarried persons were
equal to those of the married. Given Eisenstadt and given the decision of
the Court in the abortion case, Roe v. Wade,
410 U.S. 113 (1973), the result reached by the Court in Part III of its
opinion appears warranted. I do not regard the opinion, however, as declaring
unconstitutional any state law forbidding extramarital sexual relations.
On this assumption I join Part III.
|||I concur in the result in Part IV primarily because the State has not
demonstrated that the prohibition against distribution of contraceptives
to minors measurably contributes to the deterrent purposes which the State
advances as justification for the restriction. Again, however, the legality
of state laws forbidding premarital intercourse is not at issue here; and,
with MR. JUSTICE STEVENS, "I would describe as 'frivolous' appellees' argument
that a minor has the constitutional right to put contraceptives to their
intended use, notwithstanding the combined objection of both parents and
the State," post, at 713.
|||In joining Part V of the Court's opinion, I should also say that I agree
with the views of MR. JUSTICE STEVENS expressed in Part II of his separate
|||JUSTICE POWELL, Concurring in part and Concurring in the judgment.
|||I agree that Population Planning Associates has standing to maintain this
action, and therefore join Part I of the Court's opinion. Although I concur
in the judgment of the Court, I am not persuaded that the Constitution requires
the severe constraints that the Court's opinion places upon legislative
efforts to regulate the distribution of contraceptives, particularly to
|||The Court apparently would subject all state regulation affecting adult
sexual relations to the strictest standard of judicial review. Under today's
decision, such regulation "may be justified only by compelling state interests,
and must be narrowly drawn to express only those interests." Ante, at 686.
Even regulation restricting only the sexual activity of the young must now
be justified by a "significant state interest," a standard that is "apparently
less rigorous" than the standard the Court would otherwise apply. Ante,
at 693 n. 15. In my view, the extraordinary protection the Court would give
to all personal decisions in matters of sex is neither required by the Constitution
nor supported by our prior decisions.
|||The cases on which the Court relies for its "compelling interest" standard
do not support the sweeping principle it adopts today. Those cases generally
involved direct and substantial interference with constitutionally protected
rights. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court invalidated
a state statute prohibiting the use of contraceptives and making it illegal
for physicians to give advice to married persons regarding contraception.
The statute was viewed as one "operat directly on an intimate relation of
husband and wife and their physician's role in one aspect of that relation,"
p1391*697 id., at 482, and "seek to achieve its goals by means having a
maximum destructive impact upon that relationship," id., at 485. In Roe
v. Wade, 410 U.S. 113 (1973), the Court reviewed
a Texas statute imposing severe criminal sanctions on physicians and other
medical personnel who performed nontherapeutic abortions, thus effectively
foreclosing the availability and safety of this desired service. And just
last Term, in Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976), we invalidated Missouri's requirement of spousal consent as a
state-imposed "absolute obstacle to a woman's decision that Roe held to
be constitutionally protected from such interference." Id., at 71 n. 11.
|||The Court relies on Planned Parenthood, supra, and Doe v. Bolton, 410
U.S. 179 (1973), for the proposition that "the same test must be applied
to state regulations that burden an individual's right to decide to prevent
conception or terminate pregnancy by substantially limiting access to the
means of effectuating that decision as is applied to state statutes that
prohibit the decision entirely." Ante, at 688. But neither of those cases
refers to the "compelling state interest" test. In Bolton, the Court invalidated
procedural requirements of the Georgia abortion statute that were found
not "reasonably related" to the asserted legislative purposes or to the
"patient's needs." 410 U.S., at 194, 199. Planned Parenthood involved -
in addition to the "absolute obstacle" referred to above - the Missouri
requirement of prior written consent by the pregnant woman. Despite the
fact that Missouri normally did not require written consent for other surgical
procedures, the Court sustained this regulation without requiring any demonstration
of compelling state interests. The Court recognized that the decision to
abort "is an important, and often a stressful one," and the State thus constitutionally
could assure that the woman was aware of the significance of the decision.
428 U.S., at 67.
|||In sum, the Court quite unnecessarily extends the reach of cases like
Griswold and Roe. Neither our precedents nor sound principles of constitutional
analysis require state legislation to meet the exacting "compelling state
interest" standard whenever it implicates sexual freedom. In my view, those
cases make clear that that standard has been invoked only when the state
regulation entirely frustrates or heavily burdens the exercise of constitutional
rights in this area. See Bellotti v. Baird, 428 U.S. 132, 147 (1976). This
is not to say that other state regulation is free from judicial review.
But a test so severe that legislation rarely can meet it should be imposed
by courts with deliberate restraint in view of the respect that properly
should be accorded legislative judgments.
|||There is also no justification for subjecting restrictions on the sexual
activity of the young to heightened judicial review. Under our prior cases,
the States have broad latitude to legislate with respect to adolescents.
The principle is well settled that "a State may permissibly determine that,
at least in some precisely delineated areas, a child... is not possessed
of that full capacity for individual choice" which is essential to the exercise
of various constitutionally protected interests. Ginsberg v. New York, 390
U.S. 629, 649-650 (1968) (STEWART, J., Concurring in result). This principle
is the premise of our prior decisions, ostensibly reaffirmed by the plurality,
ante, at 692, holding that "the power of the state to control the conduct
of children reaches beyond the scope of its authority over adults." Prince
v. Massachusetts, 321 U.S. 158, 170 (1944). Restraints on the freedom of
minors may be justified "even though comparable restraints on adults would
be constitutionally impermissible." Planned Parenthood of Central Missouri
v. Danforth, supra, at 102 (STEVENS, J., Concurring in part and Dissenting
in part). *fn1
|||New York has exercised its responsibility over minors in areas falling
within the "cluster of constitutionally protected choices" relating to sex
and marriage. Ante, at 685. It has set an age limitation below which persons
cannot marry without parental consent, N. Y. Dom. Rel. Law §§
15, 15-a (McKinney 1964 and Supp. 1976-1977), and has established by statute
the age at which a minor is legally recognized as having the capacity to
consent to sexual activity, Penal Law § 130.05 (3)(a) (McKinney 1975).
See also Penal Law §§ 130.25, 130.30, 130.35 (McKinney 1975).
These provisions highlight the State's concern that its juvenile citizens
generally lack the maturity and understanding necessary to make decisions
concerning marriage and sexual relationships.
|||Until today, I would not have thought it was even arguably necessary to
review state regulation of this sort under a standard that for all practical
purposes approaches the "compelling state interest" standard. At issue in
Ginsberg v. New York, supra, for example, was the question of the constitutionality
on its face of a New York criminal obscenity statute which prohibited the
sale to minors of material defined to be obscene on the basis of its appeal
to them whether or not it would be obscene to adults. The Court recognized
that "the State has an interest 'to protect the welfare of children' and
to see that they are 'safeguarded from abuses' which might prevent their
'growth into free and independent well-developed men and citizens.'" 390
U.S., at 640-641, quoting Prince v. Massachusetts, supra, at 165. Consequently,
the "only question remaining" in that case was "whether the New York Legislature
might rationally conclude, as it has, that exposure to the materials proscribed
by [the statute] constitutes such an 'abuse.'" 390 U.S., at 641. Similarly,
the relevant question in any case where state laws impinge on the freedom
of action of young people in sexual matters is whether the restriction rationally
serves valid state interests.
|||With these considerations in mind, I turn to the specific provisions of
the New York statute limiting the distribution of contraceptives.
|||New York has made it a crime for anyone other than a physician to sell
or distribute contraceptives to minors under the age of 16 years. Educ.
Law § 6811 (8) (McKinney 1972). This element of New York's program
of regulation for the protection of its minor citizens is said to evidence
the State's judgment that the health and well-being of minors would be better
assured if they are not encouraged to engage in sexual intercourse without
guidance. Although I have no doubt that properly framed legislation serving
this purpose would meet constitutional standards, the New York provision
is defective in two respects. First, it infringes the privacy interests
of married females between the ages of 14 and 16, see ante, at 695 n. 18,
in that it prohibits the distribution of contraceptives to such females
except by a physician. In authorizing marriage at that age, the State also
sanctions sexual intercourse between the partners and expressly recognizes
that once the marriage relationship exists the husband and wife are presumed
to possess the requisite understanding and maturity to make decisions concerning
sex and procreation. Consequently, the state interest that justifies a requirement
of prior counseling with respect to minors in general simply is inapplicable
with respect to minors for whom the State has affirmatively approved marriage.
|||Second, this provision prohibits parents from distributing contraceptives
to their children, a restriction that unjustifiably interferes with parental
interests in rearing their children. Cf. Ginsberg/ v. New York, 390 U.S.,
at 639 and n. 7. "onstitutional interpretation has consistently recognized
that the parents' claim to authority in their own household to direct the
rearing of their children is basic in the structure of our society. 'It
is cardinal with us that the custody, care and nurture of the child reside
first in the parents, whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.'" Ibid., quoting
Prince v. Massachusetts, supra, at 166. See Wisconsin v. Yoder, 406 U.S.
205, 231-233 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-535
(1925); Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923). Moreover, this
statute would allow the State "to enquire into, prove, and punish," Poe
v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J., Dissenting), the exercise
of this parental responsibility. The State points to no interest of sufficient
magnitude to justify this direct interference with the parental guidance
that is especially appropriate in this sensitive area of child development.
|||But in my view there is considerably more room for state regulation in
this area than would be permissible under the plurality's opinion. It seems
clear to me, for example, that the State would further a constitutionally
permissible end if it encouraged adolescents to seek the advice and guidance
of their parents before deciding whether to engage in sexual intercourse.
Planned Parenthood, 428 U.S., at 91 (STEWART, J., Concurring). The State
justifiably may take note of the psychological pressures that might influence
children at a time in their lives when they generally do not possess the
maturity necessary to understand and control their responses. Participation
in sexual intercourse at an early age may have both physical and psychological
consequences. These include the risks of venereal disease and pregnancy,
and the less obvious mental and emotional problems that may result from
sexual activity by children. Moreover, society has long adhered to the view
that sexual intercourse should not be engaged in promiscuously, a judgment
that an adolescent may be less likely to heed than an adult.
|||Requiring minors to seek parental guidance would be consistent with our
prior cases. In Planned Parenthood, we considered whether there was "any
significant state interest in conditioning [a minor's] abortion on the consent
of a parent or person in loco parentis that is not present in the case of
an adult." 428 U.S., at 75. Observing that the minor necessarily would be
consulting with a physician on all aspects of the abortion decision, we
concluded that the Missouri requirement was invalid because it imposed "a
special-consent provision, exercisable by a person other than the woman
and her physician, as a prerequisite to a minor's termination of her pregnancy
and so without a sufficient justification for the restriction." Ibid. But
we explicitly suggested that a materially different constitutional issue
would be presented with respect to a statute assuring in most instances
consultation between the parent and child. Ibid., citing Bellotti v. Baird,
428 U.S. 132 (1976). See Planned Parenthood, supra, at 90-91 (STEWART, J.,
|||A requirement of prior parental consultation is merely one illustration
of permissible regulation in this area. As long as parental distribution
is permitted, a State should have substantial latitude in regulating the
distribution of contraceptives to minors. *fn3
|||New York also makes it a crime for anyone other than a licensed pharmacist
to sell or distribute contraceptives to adults and to minors aged 16 or
over. The only serious justification offered by the State for this prohibition
is that it is necessary to facilitate enforcement of the limitation on distribution
to children under 16 years of age. Since the Court invalidates that limitation
today, the pharmacy restriction lacks any rational justification. I therefore
agree with the Court that § 6811(8)'s limitation on the distribution
of nonprescription contraceptives cannot be sustained.
|||But even if New York were to enact constitutionally permissible limitations
on access for children, I doubt that it could justify the present pharmacy
restriction as an enforcement measure. Restricting the kinds of retail outlets
that may distribute contraceptives may well be justified, *fn4
but the present statute even prohibits distribution by mail to adults. In
this respect, the statute works a significant invasion of the constitutionally
protected privacy in decisions concerning sexual relations. By requiring
individuals to buy contraceptives over the counter, the statute heavily
burdens constitutionally protected freedom. *fn5
|||I also agree with the Court that New York cannot lawfully prohibit all
"advertisement or display" of contraceptives. But it seems to me that the
Court's opinion may be read too broadly. It flatly dismisses, as justifications
"classically" irrelevant, the State's contentions that the indiscriminate
advertisement of contraceptive products in some settings could be unduly
offensive and could be viewed by the young as legitimation of sexual promiscuity.
I agree that these justifications cannot support a complete ban on advertising,
but I see no reason to cast any doubt on the authority of the State to impose
carefully tailored restrictions designed to serve legitimate governmental
concerns as to the effect of commercial advertising on the young. *fn6
|||JUSTICE STEVENS, Concurring in part and Concurring in the judgment.
|||For the reasons stated in Parts I, II, and III of the opinion of the Court,
which I join, I agree that Population Planning Associates, Inc., has standing
to challenge the New York statute and that the grant to licensed pharmacists
of a monopoly in the distribution of non-medical contraceptives is unconstitutional.
I also agree with the Conclusion that New York's prohibition against the
distribution of contraceptives to persons under 16 years of age is unconstitutional,
and with the Court's Conclusion that the total suppression of advertising
or display of contraceptives is invalid, but my reasons differ from those
set forth in Part IV of MR. JUSTICE BRENNAN's opinion and I wish to add
emphasis to the limitation on the Court's holding in Part V.
|||There are two reasons why I do not join Part IV. First, the holding in
Planned Parenthood of Missouriv. Danforth, 428 U.S. 52, 72-75, that a minor's
decision to abort her pregnancy may not be conditioned on parental consent,
is not dispositive here. The options available to the already pregnant minor
are fundamentally different from those available to non-pregnant minors.
The former must bear a child unless she aborts; but persons in the latter
category can and generally will avoid childbearing by abstention. Consequently,
even if I had joined that part of Planned Parenthood, I could not agree
that the Constitution provides the same measure of protection to the minor's
right to use contraceptives as to the pregnant female's right to abort.
|||Second, I would not leave open the question whether there is a significant
state interest in discouraging sexual activity among unmarried persons under
16 years of age. Indeed, I would describe as "frivolous" appellees' argument
that a minor has the constitutional right to put contraceptives to their
intended use, notwithstanding the combined objection of both parents and
|||For the reasons explained by MR. JUSTICE POWELL, I agree that the statute
may not be applied to married females between the ages of 14 and 16, or
to distribution by parents. I am not persuaded, however, that these glaring
defects alone justify an injunction against other applications of the statute.
Only one of the three plaintiffs in this case is a parent who wishes to
give contraceptives to his children. The others are an Episcopal minister
who sponsors a program against venereal disease, and a mail-order firm,
which presumably has no way to determine the age of its customers. I am
satisfied, for the reasons that follow, that the statute is also invalid
as applied to them.
|||The State's important interest in the welfare of its young citizens justifies
a number of protective measures. See Planned Parenthood of Central Missouri
v. Danforth, supra, at 102 (STEVENS, J., Concurring in part and Dissenting
in part). Such special legislation is premised on the fact that young persons
frequently make unwise choices with harmful consequences; the State may
properly ameliorate those consequences by providing, for example, that a
minor may not be required to honor his bargain. It is almost unprecedented,
however, for a State to require that an ill-advised act by a minor give
rise to greater risk of irreparable harm than a similar act by an adult.1a
|||Common sense indicates that many young people will engage in sexual activity
regardless of what the New York Legislature does; and further, that the
incidence of venereal disease and premarital pregnancy is affected by the
availability or unavailability of contraceptives. Although young persons
theoretically may avoid those harms by practicing total abstention, inevitably
many will not. The statutory prohibition denies them and their parents a
choice which, if available, would reduce their exposure to disease or unwanted
|||The State's asserted justification is a desire to inhibit sexual conduct
by minors under 16. Appellants do not seriously contend that if contraceptives
are available, significant numbers of minors who now abstain from sex will
cease abstaining because they will no longer fear pregnancy or disease.2a
Rather appellants' central argument is that the statute has the important
symbolic effect of communicating disapproval of sexual activity by minors.3a
In essence, therefore, the statute is defended as a form of propaganda,
rather than a regulation of behavior.4a
|||Although the State may properly perform a teaching function, it seems
to me that an attempt to persuade by inflicting harm on the listener is
an unacceptable means of conveying a message that is otherwise legitimate.
The propaganda technique used in this case significantly increases the risk
of unwanted pregnancy and venereal disease. It is as though a State decided
to dramatize its disapproval of motorcycles by forbidding the use of safety
helmets. One need not posit a constitutional right to ride a motorcycle
to characterize such a restriction as irrational and perverse.
|||Even as a regulation of behavior, such a statute would be defective. Assuming
that the State could impose a uniform sanction upon young persons who risk
self-inflicted harm by operating motorcycles, or by engaging in sexual activity,
surely that sanction could not take the form of deliberately injuring the
cyclist or infecting the promiscuous child. If such punishment may not be
administered deliberately, after trial and a finding of guilt, it manifestly
cannot be imposed by a legislature, indiscriminately and at random. This
kind of government-mandated harm, is, in my judgment, appropriately characterized
as a deprivation of liberty without due process of law.
|||In Part V of its opinion, the Court holds that New York's total ban on
contraceptive advertising is unconstitutional under Bigelow v. Virginia,
421 U.S. 809, and Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council,
425 U.S. 748. Specifically, the Court holds that all contraceptive advertising
may not be suppressed because some advertising of that subject may be offensive
and embarrassing to the reader or listener. I also agree with that holding.
|||The Court properly does not decide whether the State may impose any regulation
on the content of contraceptive advertising in order to minimize its offensive
character. I have joined Part V of the opinion on the understanding that
it does not foreclose such regulation simply because an advertisement is
within the zone protected by the First Amendment.
|||The fact that a type of communication is entitled to some constitutional
protection does not require the Conclusion that it is totally immune from
regulation. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 65-71
(opinion of STEVENS, J.). An editorial and an advertisement in the same
newspaper may contain misleading matter in equal measure. Although each
is a form of protected expression, one may be censored while the other may
|||In the area of commercial speech - as in the business of exhibiting motion
pictures for profit - the offensive character of the communication is a
factor which may affect the time, place, or manner in which it may be expressed.
Cf. Young v. American Mini Theatres, Inc., supra. The fact that the advertising
of a particular subject matter is sometimes offensive does not deprive all
such advertising of First Amendment protection; but it is equally clear
to me that the existence of such protection does not deprive the State of
all power to regulate such advertising in order to minimize its offensiveness.
A picture which may appropriately be included in an instruction book may
be excluded from a billboard.
|||I concur in the judgment and in Parts I, II, III, and V of the Court's
|||JUSTICE REHNQUIST, Dissenting.
|||Those who valiantly but vainly defended the heights of Bunker Hill in
1775 made it possible that men such as James Madison might later sit in
the first Congress and draft the Bill of Rights to the Constitution. The
post-Civil War Congresses which drafted the Civil War Amendments to the
Constitution could not have accomplished their task without the blood of
brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor.
If those responsible for these Amendments, by feats of valor or efforts
of draftsmanship, could have lived to know that their efforts had enshrined
in the Constitution the right of commercial vendors of contraceptives to
peddle them to unmarried minors through such means as window displays and
vending machines located in the men's room of truck stops, notwithstanding
the considered judgment of the New York Legislature to the contrary, it
is not difficult to imagine their reaction. *fn1
|||I do not believe that the cases discussed in the Court's opinion require
any such result, but to debate the Court's treatment of the question on
a case-by-case basis would concede more validity to the result reached by
the Court than I am willing to do. *fn2
There comes a point when endless and illconsidered extension of principles
originally formulated in quite different cases produces such an indefensible
result that no logic chopping can possibly make the fallacy of the result
more obvious. The Court here in effect holds that the First and Fourteenth
Amendments not only guarantee full and free debate before a legislative
judgment as to the moral dangers to which minors within the jurisdiction
of the State should not be subjected, but goes further and absolutely prevents
the representatives of the majority from carrying out such a policy after
the issues have been fully aired.
|||No questions of religious belief, compelled allegiance to a secular creed,
or decisions on the part of married couples as to procreation, are involved
here. New York has simply decided that it wishes to discourage unmarried
minors under 16 from having promiscuous sexual intercourse with one another.
Even the Court would scarcely go so far as to say that this is not a subject
with which the New York Legislature may properly concern itself.
|||That legislature has not chosen to deny to a pregnant woman, after the
fait accompli of pregnancy, the one remedy which would enable her to terminate
an unwanted pregnancy. It has instead sought to deter the conduct which
will produce such faits accomplis. The majority of New York's citizens are
in effect told that however deeply they may be concerned about the problem
of promiscuous sex and intercourse among unmarried teenagers, they may not
adopt this means of dealing with it. The Court holds that New York may not
use its police power to legislate in the interests of its concept of the
public morality as it pertains to minors. The Court's denial of a power
so fundamental to self-government must, in the long run, prove to be but
a temporary departure from a wise and heretofore settled course of adjudication
to the contrary. I would reverse the judgment of the District Court.
|||* Briefs of amici curiae urging affirmance were filed by Melvin L. Wulf,
Judith M. Mears, and Rena Uviller for the American Civil Liberties Union;
and by Harriet F. Pilpel and Eve W. Paul for the Planned Parenthood Federation
of America et al.
|||*fn1 Section 6811(8) provides:
|||"It shall be a class A misdemeanor for:
|||"8. Any person to sell or distribute any instrument or article, or any
recipe, drug or medicine for the prevention of contraception to a minor
under the age of sixteen years; the sale or distribution of such to a person
other than a minor under the age of sixteen years is authorized only by
a licensed pharmacist but the advertisement or display of said articles,
within or without the premises of such pharmacy, is hereby prohibited."
|||After some dispute in the District Court the parties apparently now agree
that Education Law § 6807(b) (McKinney 1972) constitutes an exception
to the distribution prohibitions of § 6811(8). Section 6807(b) provides:
|||"This article shall not be construed to affect or prevent:
|||"(b) Any physician... who is not the owner of a pharmacy, or registered
store, or who is not in the employ of such owner, from supplying his patients
with such drugs as the physician... deems proper in connection with his
|||The definition of "drugs" in Education Law § 6802(7) (McKinney 1972)
apparently includes any contraceptive drug or device. See nn. 7, 13, and
23, and text, infra, at 697-699. See also 398 F. Supp. 321, 329-330, and
|||*fn2 In addition to PPA, the
plaintiffs in the District Court, appellees here, are Population Services
International, a nonprofit corporation disseminating birth control information
and services; Rev. James B. Hagen, a minister and director of a venereal
disease prevention program that distributes contraceptive devices; three
physicians specializing in family planning, pediatrics, and obstetrics-gynecology;
and an adult New York resident who alleges that the statute inhibits his
access to contraceptive devices and information, and his freedom to distribute
the same to his minor children. The District Court held that PPA and Hagen
had standing, and therefore found it unnecessary to decide the standing
of the other plaintiffs. Id., at 327-330.
|||The appellants here, defendants in the District Court, are state officials
responsible for the enforcement of the Education Law provisions.
|||*fn3 Appellants contend that
PPA has not suffered "injury in fact" because it has not shown that prosecution
under § 6811(8) is imminent. Steffel v. Thompson, 415 U.S. 452, 459-460
(1974) is dispositive of this argument. PPA alleges that it has violated
the challenged statute in the past, and continues to violate it in the regular
course of its business; that it has been advised by the authorities responsible
for enforcing the statute that it is in violation; and that on at least
one occasion, it has been threatened with prosecution. The threat is not,
as in Poe v. Ullman, 367 U.S. 497, 508 (1961) (plurality opinion), "chimerical."
In that case, the challenged state law had fallen into virtual desuetude
through lack of prosecution over some 80 years, and plaintiffs alleged no
explicit threat of prosecution. Here, PPA has been threatened with legal
action, and prosecutions have been brought under the predecessor of §
6811(8) as recently as 1965. See, e.g., People v. Baird, 47 Misc. 2d 478,
262 N.Y.S. 2d 947 (1965).
|||*fn4 Indeed, the case for the
vendor's standing to assert the rights of potential purchasers of his product
is even more compelling here than in Craig, because the rights involved
fall within the sensitive area of personal privacy. In such a case potential
purchasers "may be chilled from... assertion [of their own rights] by a
desire to protect the very privacy [they seek to vindicate] from the publicity
of a court suit." Singleton v. Wulff, 428 U.S. 106, 117 (1976).
|||*fn5 Contrary to the suggestion
advanced in MR. JUSTICE POWELL's opinion, we do not hold that state regulation
must meet this standard "whenever it implicates sexual freedom," post, at
705, or "affect adult sexual relations," post, at 703, but only when it
"burden an individual's right to decide to prevent conception or terminate
pregnancy by substantially limiting access to the means of effectuating
that decision." Supra, this page. As we observe below, "the Court has not
definitively answered the difficult question whether and to what extent
the Constitution prohibits state statutes regulating [private consensual
sexual] behavior among adults," n. 17, infra, and we do not purport to answer
that question now.
|||*fn6 As MR. JUSTICE POWELL notes,
post, at 711, the prohibition of mail-order sales of contraceptives, as
practiced by PPA, is a particularly "significant invasion of the constitutionally
protected privacy in decisions concerning sexual relations."
|||*fn7 The narrow exception to
§ 6811(8) arguably provided by New York Educ. Law § 6807(b) (McKinney,
Supp. 1976-1977), see n. 1, supra, which permits a physician "who is not
the owner of a pharmacy, or registered store" to supply his patients with
"such drugs as ... deems proper in connection with his practice" obviously
does not significantly expand the number of regularly available, easily
accessible retail outlets for nonprescription contraceptives, and so has
little relevance to our analysis of this aspect of § 6811(8).
|||*fn8 We have taken judicial notice
that "not all contraceptives are potentially dangerous." Eisenstadt v. Baird,
405 U.S., 438, 451, and n. 9 (1972). See also id., at 463-464 (WHITE, J.,
Concurring in result).
|||*fn9 Indeed, in light of other
provisions of both federal and state law that comprehensively regulate hazardous
drugs and devices, see, e.g., 21 U.S.C. §§ 351-360, especially
§ 353(b); N. Y. Educ. Law §§ 6800-6826 (McKinney 1972 and
Supp. 1976-1977), especially § 6810, it is unclear what health-related
interest the State could have in nonprescription contraceptives. Eisenstadt
v. Baird, supra, at 452.
|||*fn10 Nothing in New York law
limits the employment of minors who work as sales clerks in pharmacies.
To the extent that minors employed in other retail stores selling contraceptive
products might be exposed "to undesirable comments and gestures," Brief
for Appellants 3-4, or otherwise corrupted by exposure to such products,
minors working as sales clerks in pharmacies are exposed to the same hazards.
|||*fn11 As the District Court
pointed out, while these interests are insufficient to justify limiting
the distribution of non-hazardous contraceptives to pharmacists, other restrictions
may well be reasonably related to the objective of quality control. We therefore
express no opinion on, for example, restrictions on the distribution of
contraceptives through vending machines, which are not before us in this
case. See 398 F. Supp., at 336.
|||*fn12 This part of the opinion
expresses the views of JUSTICES BRENNAN, STEWART, MARSHALL, and BLACKMUN.
|||*fn13 Subject to an apparent
exception for distribution by physicians in the course of their practice.
See n. 1, supra, and infra, at 697-699, and n. 23.
|||*fn14 Thus minors are entitled
to constitutional protection for freedom of speech, Tinker v. Des Moines
School Dist., 393 U.S. 503 (1969); West Virginia Bd. of Education v. Barnette,
319 U.S. 624 (1943); equal protection against racial discrimination, Brown
v. Board of Education, 347 U.S. 483 (1954); due process in civil contexts,
Goss v. Lopez, 419 U.S. 565 (1975); and a variety of rights of defendants
in criminal proceedings, including the requirement of proof beyond a reasonable
doubt, In re Winship, 397 U.S. 358 (1970), the prohibition of double jeopardy,
Breed v. Jones, 421 U.S. 519 (1975), the rights to notice, counsel, confrontation,
and cross-examination, and not to incriminate oneself, In re Gault, 387
U.S. 1 (1967), and the protection against coerced confessions, Gallegos
v. Colorado, 370 U.S. 49 (1962); Haley v. Ohio, 332 U.S. 596 (1948).
|||*fn15 This test is apparently
less rigorous than the "compelling state interest" test applied to restrictions
on the privacy rights of adults. See, e.g., n. 16, infra. Such lesser scrutiny
is appropriate both because of the States' greater latitude to regulate
the conduct of children, Prince v. Massachusetts, 321 U.S. 158 (1944); Ginsberg
v. New York, 390 U.S. 629 (1968), and because the right of privacy implicated
here is "the interest in independence in making certain kinds of important
decisions," Whalen v. Roe, 429 U.S. 589, 599-600 (1977), and the law has
generally regarded minors as having a lesser capability for making important
decisions. See, e.g., Planned Parenthood, 428 U.S., at 102 (STEVENS, J.,
Concurring in part and Dissenting in part).
|||*fn16 Planned Parenthood, however,
"does not suggest that every minor, regardless of age or maturity, may give
effective consent for termination of her pregnancy. See Bellotti v. Baird,
[ 428 U.S. 132 (1976)]. The fault of [the particular statute considered
in Planned Parenthood] is that it imposes a special-consent provision, exercisable
by a person other than the woman and her physician, as a prerequisite to
a minor's termination of her pregnancy... without a sufficient justification
for the restriction." Id., at 75.
|||*fn17 Appellees argue that
the State's policy to discourage sexual activity of minors is itself unconstitutional,
for the reason that the right to privacy comprehends a right of minors as
well as adults to engage in private consensual sexual behavior. We observe
that the Court has not definitively answered the difficult question whether
and to what extent the Constitution prohibits state statutes regulating
such behavior among adults. See generally Note, On Privacy: Constitutional
Protection for Personal Liberty, 48 N.Y.U.L. Rev. 670, 719-738 (1973). But
whatever the answer to that question, Ginsberg v. New York, supra, indicates
that in the area of sexual mores, as in other areas, the scope of permissible
state regulation is broader as to minors than as to adults. In any event,
it is unnecessary to pass upon this contention of appellees, and our decision
proceeds on the assumption that the Constitution does not bar state regulation
of the sexual behavior of minors.
|||*fn18 We note, moreover, that
other provisions of New York law argue strongly against any Conclusion that
the deterrence of illegal sexual conduct among minors was an objective of
§ 6811(8). First, a girl in New York may marry as young as 14, with
the consent of her parents and a family court Judge. N.Y. Dom. Rel. Law
§§ 15-a, 15(2), 15(3) (McKinney 1964 and Supp. 1976-1977). Yet
although sexual intercourse by a married woman of that age violates no state
law, § 6811(8) prohibits distribution of contraceptives to her. Second,
New York requires that birth control information and services be provided
to recipients of certain welfare programs, provided only that they are "of
childbearing age, including children who can be considered sexually active."
N.Y. Soc. Serv. Law § 350(1)(e) (McKinney 1976); cf. 42 U.S.C. §
602(a)(15)(A) (1970 ed., Supp. V). See also N.Y. Soc. Serv. Law § 365-a(3)(c)
(McKinney 1976); cf. 42 U.S.C. § 1396d(a)(vii)(4)(C) (1970 ed., Supp.
V). Although extramarital intercourse is presumably as contrary to state
policy among minors covered by those programs as among others, state law
requires distribution of contraceptives to them and prohibits their distribution
to all others.
|||*fn19 See, e.g., Settlage,
Baroff & Cooper, Sexual Experience of Younger Teenage Girls Seeking Contraceptive
Assistance for the First Time, Family Planning Perspectives, P. 223, Fall
1973; Pilpel & Wechsler, Birth Control, Teenagers and the Law: A New Look
1971, Family Planning Perspectives, P. 37, July 1971; Stein, Furnishing
Information and Medical Treatment to Minors for Prevention, Termination
and Treatment of Pregnancy, Clearinghouse Review, P. 131, 132, July 1971;
Reiss, Contraceptive Information and Sexual Morality, Journal of Sex Research,
P. 51, Apr. 1966. See also Note, Parental Consent Requirements and Privacy
Rights of Minors: The Contraceptive Controversy, 88 Harv. L. Rev. 1001,
1010, and n. 67 (1975); Jordan, A Minor's Right to Contraceptives, 7 U.
Calif. Davis L. Rev. 270, 272-273 (1974).
|||*fn20 See, e.g., id., at 271-273;
Kanter & Zelnick, Sexual Experience of Young Unmarried Women in the United
States, Family Planning Perspectives 9 (Oct. 1972).
|||*fn21 Although this is not
the occasion for a full examination of these problems, the following data
sketchily indicate their extent. According to New York City Department of
Health statistics, filed with the Court by the American Civil Liberties
Union as amicus curiae, in New York City alone there were over 6,000 live
births to girls under the age of 17 in 1975, as well as nearly 11,000 abortions.
Moreover, "eenage motherhood involves a host of problems, including adverse
physical and psychological effects upon the minor and her baby, the continuous
stigma associated with unwed motherhood, the need to drop out of school
with the accompanying impairment of educational opportunities, and other
dislocations forced marriage of immature couples and the often acute anxieties
involved in deciding whether to secure an abortion." Note, Parental Consent
Requirements and Privacy Rights of Minors: The Contraceptive Controversy,
88 Harv. L. Rev. 1001, 1010 (1975) (footnotes omitted). See also Jordan,
supra, n. 19, at 273-275.
|||*fn22 Appellants argue that
the statement in Ginsberg v. New York, 390 U.S.., at 641, that "it was not
irrational for the legislature to find that exposure to material condemned
by the statute is harmful to minors," is authority that the burden is appellees'
to prove that there is no connection between the statute and the asserted
state policy. But Ginsberg concerned a statute prohibiting dissemination
of obscene material that it held was not constitutionally protected. In
contrast § 6811(8) concerns distribution of material access to which
is essential to exercise of a fundamental right.
|||*fn23 There is considerable
doubt that appellants accurately identify the legislative purposes in enacting
Educ. Law §§ 6807(b) and 6811(8). Section 6811(8) (formerly Educ.
Law § 6804-b and before that Penal Law § 1142(2)) was first enacted
in 1965 as a modification, apparently in response to Griswold v. Connecticut,
381 U.S. 479 (1965), of former Penal Law § 1142, titled "Indecent articles."
1965 N.Y. Laws, c. 637. This statute, which dated back at least to §
318 of the Penal Code of 1881, 1881 N.Y. Laws, c. 676, had made it a misdemeanor
for any person to distribute or advertise "any instrument or article, or
any drug or medicine, for the prevention of conception." Section 6807(b),
on the other hand, generally excepts the distribution of drugs by a physician
in the course of his practice from all the licensing requirements and restrictions
imposed on the practice of pharmacy by Education Law §§ 6800-6826
(subject to certain provisos not here relevant). Such a provision, in one
form or another and bearing several different numbers, has been included
in the article concerning the practice of pharmacy since that article was
first incorporated in the Education Law in 1927, see former Education Law
§ 1361, 1927 N.Y. Laws, c. 85, and before that a similar provision
was included in the statutes regulating pharmacy in the Public Health Law.
See, e.g., Public Health Law of 1893, § 187, 1893 N.Y. Laws, c. 661.
Thus, § 6807(b) and its predecessors long predate the inclusion of
§ 6811(8) in the Education Law.
|||Even more significantly, when § 6811(8) was first enacted as Penal
Law § 1142(2), it was not subject to the physicians' exception of §
6807(b). Rather, it was apparently subject to a different physicians' exception,
former Penal Law § 1145 ( § 321 of the Penal Code of 1881), which
|||"An article or instrument, used or applied by physicians lawfully practicing,
or by their direction or prescription, for the cure or prevention of disease,
is not an article of indecent or immoral nature or use, within this chapter.
The supplying of such articles to such physicians or by their direction
or prescription, is not an offense under this chapter."
|||This was interpreted by the New York Court of Appeals to permit a physician
"in good faith" to use contraceptives to treat "a married person to cure
or prevent disease," but not to permit "promiscuous advice to patients irrespective
of their condition." People v. Sanger, 222 N.Y. 192, 194-195, 118 N.E. 637,
637-638 (1918), appeal dismissed for lack of jurisdiction, 251 U.S. 537
(1919) (per curiam). See also People v. Byrne, 99 Misc. 1, 163 N.Y.S. 682
(1917); People v. Baird, 47 Misc. 2d 478, 262 N.Y.S.2d 947 (1965).
|||In light of this history, it appears that insofar as the legislature had
§ 6807(b) in mind at all when it transferred the prohibition of distribution
of contraceptives to those under 16 from the Penal Law to the Education
Law, it thought of that section as at most a narrow exception, analogous
to § 1145, permitting physicians, "in connection with practice," to
treat or prevent disease, rather than, as appellants assert, intending that
§§ 6807(b) and 6811(8) be read together as establishing a scheme
under which contraceptives would be freely available to those under 16,
but limiting the distribution function to physicians. The legislative history
of attempts in 1972 and 1974 to modify § 6811(8), to which appellants
refer, supports this construction. The legislators debating those bills
seem to have though of § 6811(8) as a flat prohibition of the distribution
of contraceptives to minors, and made no reference to § 6807(b).
|||*fn24 In Doe v. Bolton, 410
U.S. 179, 196 (1973), we doubted that physicians would allow their moral
"predilections on extramarital sex" to interfere with their medical judgments
concerning abortions. Here, however, no medical judgment is involved at
all; the State purports to commission physicians to engage in moral counseling
that can reflect little other than their private views on the morality of
premarital sex among the young. It seems evidence that many physicians are
likely to have views on this subject to a significant degree more permissive
or more restrictive than those of the State, the minor, or the minor's parents.
Moreover, nothing in § 6807(b) suggests that the role of the physician
is limited to such "counseling." The statute does nothing more than to permit
the physician to provide his patients with such drugs or devices as he "deems
proper." Such "absolute, and possibly arbitrary" discretion over the privacy
rights of minors is precisely what Planned Parenthood condemned. 428 U.S.,
|||*fn25 In cases involving abortions,
we have emphasized that the decision to terminate a pregnancy is properly
made by a woman in consultation with her physician. See, e.g., Roe
v. Wade, 410 U.S. 113, 153, 164 (1973); Planned
Parenthood of Central Misso uri v. Danforth, 428 U.S., at 75. No such suggestion,
however, has been made concerning the right to obtain or use contraceptives.
See Griswold v. Connecticut, supra; Eisenstadt v. Baird, 405 U.S. 438 (1972).
The reason, of course, is that the abortion decision necessarily involves
a medical judgment, Roe v. Wade,
supra, at 164, while the decision to use a non-hazardous contraceptive does
not. Eisenstadt v. Baird, supra, at 463-464 (WHITE, J., Concurring in result).
See also n. 24, supra.
|||*fn26 The prohibition of advertising
and display of contraceptives is invalid as to prescription as well as nonprescription
contraceptives, at least when the advertising is by persons who are licensed
to sell such products. Virginia Pharmacy Bd. v. Virginia Citizens Consumer
Council, 425 U.S. 748 (1976).
|||*fn27 Indeed, as the Court
recognized in Virginia Pharmacy Bd., much advertising is "tasteless and
excessive," and no doubt offends many. 425 U.S., at 765.
|||*fn28 Appellants suggest no
distinction between commercial and noncommercial speech that would render
these discredited arguments meritorious when offered to justify prohibitions
on commercial speech. On the contrary, such arguments are clearly directed
not at any commercial aspect of the prohibited advertising but at the ideas
conveyed and form of expression - the core of First Amendment values. Cf.
Linmark Associates, Inc. v. Willingboro, ante, at 96-97.
|||*fn29 We do not have before
us, and therefore express no views on, state regulation of the time, place,
or manner of such commercial advertising based on these or other state interests.
|||* There is no need for present purposes to agree or disagree with the
Court's summary of the law expressed in Part II.
|||1 MR. JUSTICE STEVENS recently provided the following examples, deeply
rooted in our traditions and law:
|||"Because he may not foresee the consequences of his decision, a minor
may not make an enforceable bargain. He may not lawfully work or travel
where he pleases, or even attend exhibitions of constitutionally protected
adult motion pictures. Persons below a certain age may not marry without
parental consent. Indeed, such consent is essential even when the young
woman is already pregnant." 428 U.S., at 102.
|||2 The particular provision at issue makes it a crime for "ny person to
sell or distribute any instrument or article, or any recipe, drug or medicine
for the prevention of contraception to a minor under the age of sixteen
years...." Educ. Law § 6811 (8) (McKinney 1972). For the reasons stated
in the text, this provision unjustifiably infringes the constitutionally
protected interests of parents and married female minors, and it is invalid
in those two respects. Although the prohibition on distribution might be
sustained as to other individuals if the restrictions on parental distribution
and distribution to married female minors could be treated as severable,
the result "would be to create a program quite different from the one the
legislature actually adopted." Sloan v. Lemon, 413 U.S. 825, 834 (1973).
I therefore agree with the Court that the entire provision must be invalidated.
See Dorchy v. Kansas, 264 U.S. 286, 291 (1924); Dollar Co. v. Canadian C.
& F. Co., 220 N. Y. 270, 279, 115 N.E. 711, 713 (1917).
|||3 As long as access is available through parents, I perceive no constitutional
obstacle to state regulation that authorizes other designated adults - such
as physicians - to provide relevant counseling.
|||4 Absent some evidence that a restriction of outlets to registered pharmacists
heavily burdens the constitutional interests of adults, there would be no
basis for applying the standard of review articulated in Griswold and Roe.
See Part I, supra. Indeed, in the absence of such evidence there would be
no reason to set aside a legislative judgment that enforcement of constitutionally
permissible limitations on access for minors, see Part II-A, supra, warrants
a reasonable limitation on the means for marketing contraceptives. Without
some limitations on the number and type of retail outlets it would be difficult
- if not impossible - to effectuate the state interest in assuring that
minors are counseled before purchasing contraceptive devices. As pharmacists
are licensed professionals, the State may be justified in relying on them
to act responsibly in observing regulations applicable to minors.
|||5 It is not a satisfactory answer that an individual may preserve anonymity
as one of a number of customers in a retail outlet. However impersonal the
marketplace may be, it does not approach the privacy of the home. There
may be some risk that mail distribution will occasionally permit circumvention
of permissible restrictions with respect to children, but this does not
justify the concomitant burden on the constitutional rights of adults.
|||6 The State argues that unregulated commercial advertisement of contraceptive
products would be viewed by the young as "legitimation" of - if not an open
invitation to - sexual promiscuity. The Court simply finds on the basis
of the advertisements in the record before us that this interest does not
justify total suppression of advertising concerning contraceptives. The
Court does leave open the question whether this or other state interests
would justify regulation of the time, place, or manner of such commercial
advertising. Ante, at 702 n. 29. In my view, such carefully tailored restrictions
may be especially appropriate when advertising is accomplished by means
of the electronic media. As Judge Leventhal recently observed in that context,
"here is a distinction between the all-out prohibition of a censor, and
regulation of time and place of speaking out, which still leaves access
to a substantial part of the mature audience. What is entitled to First
Amendment protection is not necessarily entitled to First Amendment protection
in all places. Young v. American Mini Theatres,Inc., 427 U.S. 50... (1976).
Nor is it necessarily entitled to such protection at all times." Pacifica
Foundation v. FCC, 181 U.S. App. D.C. 132, 157, 556 F.2d 9, 34 (1977) (dissenting
|||1a Only two other States have adopted similar legislation. Family Planning,
Contraception and Voluntary Sterilization: An Analysis of Laws and Policies
in the United States, Each State and Jurisdiction, A Report of the National
Center for Family Planning Services 76 (1971) (DHEW Pub. No. (HSA) 74-16001).
This publication contains a comprehensive survey of state laws in this area.
The authors were aware of "no case in which either a doctor or a layman
has been successfully prosecuted under any criminal statute for providing
contraceptive information or services to a minor or has been held liable
for damages for providing contraception to a minor without parental consent."
Id., at 70. This survey also indicated that "the clear trend is toward the
removal of all such barriers to the sale and distribution of contraceptives."
Id., at 59. By 1971 there were 34 States with no law restricting or regulating
distribution of contraceptives, ibid., and 33 States with no restrictions
on advertising or display. Id., at 60.
|||2a Appellants make this argument only once, in passing. See Brief for
Appellants 20. In the District Court, appellants candidly admitted that
"there is no evidence that teenage extramarital sexual activity increases
in proportion to the availability of contraceptives...." See 398 F. Supp.
321, 322. Indeed, appellants maintain that it is a "fact that youngsters
will not use contraceptives even where available...." Reply Brief for Appellants
|||3a The fact that the State admittedly has never brought a prosecution
under the statute, id., at 2 is consistent with appellants' position that
the purpose of the statute is merely symbolic.
|||4a Appellants present no empirical evidence to support the Conclusion
that the State's "propaganda" is effective. Simply as a matter of common
sense, it seems unlikely that many minors under 16 are influenced by the
mere existence of a law indirectly disapproving of their conduct.
|||1 As well as striking down the New York prohibitions of commercial advertising
and sales to persons under 16, the Court holds invalid the State's requirement
that all sales be made by licensed pharmacists. Whatever New York's reasons
for this particular restriction on distribution - and several can be imagined
- I cannot believe that it could significantly impair the access to these
products of a person with a settled and deliberate intention to procure
|||2 I cannot, however, let pass without comment, the statement that "the
Court has not definitively answered the difficult question whether and to
what extent the Constitution prohibits state statutes regulating [private
consensual sexual] behavior among adults." Ante, at 688 n. 5, 694 n. 17.
While we have not ruled on every conceivable regulation affecting such conduct
the facial constitutional validity of criminal statutes prohibiting certain
consensual acts has been "definitively" established. Doe v. Commonwealth's
Attorney, 425 U.S. 901 (1976). See Hicks v. Miranda, 422 U.S. 332, 343-344
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