Carey v. Population Services International

In Carey v. Population Services Int’l, the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

Lawrence v. Texas discussed the broadening protections of intimate association and conduct from married couples to individual women having the right to choose an abortion to that of minors to obtain contraceptives (and even to some degree an abortion, each parental consent/notification law requiring a "judicial bypass").  Carey is sort of the outer limit here before a temporary halt as to same sex sodomy (and perhaps other non-marital behavior) in Bowers whose author drew the line there in a separate opinion here as well.

The ruling was handed down in 1977 and split the Court though the basics were agreed upon by at least five justices except as to the particular details of the reasons why the particular law was unconstitutional as to minors.  I should add a case seven years later, before Bowers, which was also written by Justice Brennan.  This is an important case that seems to get not enough attention. It upheld a law involving requiring women at the Jaycees, a business organization deemed not intimate enough to be protected from such a requirement while women did not violate the expressive ends of the organization. This gave Brennan a chance to discuss both the right to expressive and intimate association. 

The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.

Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State.

Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty.

(Case citations omitted.)  As Justice O'Connor noted separately, the core of such rights entailed "marriage, procreation, contraception, family relationships, and child rearing and education,"  while it would take a while before the Supreme Court explicitly recognized sexual relationships outside of marriage.  Anyway, Carey also cited another recent case, which upheld a record-keeping law involving prescription drugs, but in the process usefully summarized what the "right to privacy" entailed:

The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.

The right of privacy, particularly in the home was discussed as well in Stanley v. Ohio, which secured the right to possess obscene materials, materials later found to be legitimately banned in public places.  The "sanctuary" concept, including the need to have a zone of privacy to truly freely formulate ideas and have the personal space for true "liberty" (protected by the Due Process Clause) was also discussed separately by Justice Douglas in his dissent for Poe v. Ullman, even if Justice Harlan's dissent is more often cited as expressing the liberty interest involved here.  Thus, the right to privacy or however one wishes to express it ("liberty" is favored now) is both an aspect of express constitutional provisions but also a general aspect of liberty that is important to fulfill them generally. This is the Griswold principle without the funny words ("penumbra" / "emanations"). 

Carey specifically connects the general principles to contraceptives: "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." The "decision" here is not just about private use (Griswold) but involves obtaining them, thus limits to distribution of nonprescription contraceptives to licensed pharmacists and barriers to mail order (useful for privacy; one might add online retailers) are problematic. As with abortion regulations, at some point, the intricacies of this judicial oversight might be problematic, but the general principles are valid.  Later on lower courts had to deal with public sale of sex toys, another means of sexual expression.

Carey also protected the First Amendment right to advertise contraceptives, something that once (even involving clear and honest promotion of advocacy) was deemed obscene. The last issue was blockage of distribution and sale to minors, argued to be legitimate to deter underage sexual practices.  Four justices was wary to bluntly say the latter was not protected but a majority at least agreed that denial of contraceptives was an illicit way to go about that.  Basically, the cure was worse than the disease.  And, it is doubtful is was very productive in the long run at any rate.

This overall collection of rights was later expressed in the same sex marriage cases as part of the right "to define and express identity."  A final thing to remember here is that the means used can at times be illicit to address a legitimate end.  An easy example of this principle would be that punishment is acceptable but it must not be "cruel and unusual."  Sometimes, people are confused -- not using a certain technique then is deemed "pro-criminal" or blocking the end of punishment when other means are possible, in practice (as with deterring minors from having sex here) often as good or better at the end of the day. 

Thus, we can debate just what teens should be allowed to do regarding "sexting" while determining prosecutions tend not to be a productive way to deal with the situation.