Carey v. Population Services Redux

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.

I have talked about this case in the past and again will focus on specific matters here.  The opinion is one of those that dealt with a somewhat narrow issue (the reach is somewhat broad but especially with the exceptions cited and the realities of the situation as to enforcement, it was largely symbolic) but covered a lot of ground.  It reaffirmed privacy rights, including how it involved decisions (thus the importance of access), not just places.  It covered children.  And, reached commercial entities.

Finally, there are various asides (including in the concurrences) that are interesting reading.  Well, I find the whole thing fascinating on some level. And, this is a case where it is also well worth it to read the lower court opinion, which is now easily accessed.  When I started doing this, I had to go to the main branch down Manhattan to look at volumes to see lower court opinions.  The Supreme Court opinions were accessible in somewhat more places, including slip opinions in a college library.  Now, we have basically real time online release of those and easy access of a broad range of state opinions as well.  This without access to Lexis or Westlaw.

Four justices agreed to one section of the opinion involving the reach of privacy rights to minors, three others joining that in result (Burger dissented without opinion while Rehnquist dissented in a dismissive opinion worth comment -- see below).  That one section had over ten footnotes including on the reach of the problem of pregnancy for minors.  The last of those footnotes is one of those "Easter Egg" sort of things that makes those who see them smile (White did not join this portion so citing his concurrence protecting the right of a non-physician to distribute is important for that reason -- he would make it five):

The reason, of course, is that the abortion decision necessarily involves a medical judgment, while the decision to use a nonhazardous contraceptive does not. Eisenstadt v. Baird (WHITE, J., concurring in result).

(Cites partially omitted.)  Thus, we went from protection of use of contraceptives to protecting decisions of use for unmarried people to not only minors but a general principle that medical personnel was not needed here at all.  Perusing the footnotes, we also get some discussion on the purposes of the provisions here, including a reference to People v Baird, a New York lower court case in the 1960s decided after Griswold. Why, yes. That is the same guy who later was involved in the Supreme Court case.  There, the law against a non-physician having the right "to sell, lend, give, exhibit, or offer to sell, lend, give, etc. of any instrument or article or medicine for the prevention of conception" was upheld.  The judge in part noted with a twinkle in his eye probably:

The court has read with interest the defendant's memorandum of law in support of demurrer. The attorney is very eloquent and persuasive, but in the final analysis, he is still asking this court to enact new law rather than to interpret the laws on the books. It is apparent that the defendant is basing his contentions upon the social aspects, rather than the legal ones, but the court cannot do what only the Legislature can do — consider these changed social attitudes as justification to, in effect, repeal a statute. Certainly no Judge is equipped to appraise changes in social attitudes. For instance, it may be noted that strong pressure was brought to bear upon the Legislature in the recent amendments to the Penal Law, to eliminate the crime of adultery. This they declined to do, although there are many who now consider it as merely a trespass upon the socially accepted norms, and not a crime.

And, if we go back further, following a cite, we can look back to the Margaret Sanger case that upheld the physician exception :

This exception in behalf of physicians does not permit, advertisements regarding such matters, nor promiscuous advice to patients irrespective of their condition, but it is broad enough to protect the physician who in good faith gives such help or advice to a married person to cure or prevent disease. “Disease,” by Webster’s International Dictionary, is defined to be “an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness ; sickness; disorder.”

That broad meaning of "disease" sounds a bit familiar, huh? Yes, the Supreme Court would have a similarly broad meaning for "health" in the abortion context.  Such did not come from nowhere.  OTOH, as noted in a recent entry, Connecticut did not have such an exception, or at least, would not read one not expressly there. The same applied to Massachusetts [the Baird case arose there too] as referenced by the majority there.  Use, the court said, would "promote sexual immorality but would expose the Commonwealth to other grave dangers."  It cited an earlier case that upheld a prohibition that was there applied to distribution of birth control materials.  They were so touchy that only the titles were mentioned.

And, then there is the Rehnquist dissent.

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.

The opinion specifically noted that vending machines were an open question.  The breadth of the law did not merely cover such unsavory sounding sources.  It limited distribution to those over sixteen too. And, blocked advertisement generally.  One can ridicule any number of what might be seen of limited importance rights by this mechanism.  The sale of Peyton Place, e.g., was not exactly the core concern of those who died at Shiloh. But, basic matters involving choice of timing pregnancies was a basic concern, including for newly freed slaves. And, birth control information, including as part of commercial means, is rather important too.  So, maybe tone it down a tad, Bill.

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.

It does not "absolutely" do any such thing.  Yes, among the various means it might attempt to address premarital sexual behavior (noting this is not the only matter covered), it could not do this "one" thing.  Noting that in practice minors still had a statutory right to obtain them in certain ways, thus making the reach of the law narrower and more equitable than it might have been, overall it is problematic for the reason provided in the opinions to try to stop premarital sex by denying haphazardly access to contraceptives, including methods that could help stop VD.  

The other two provisions are not really defended (after all, "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")  though apparently reasons to defend them can be "imagined." Anyway, he "cannot believe that it could significantly impair the access to these products of a person with a settled and deliberate intention to procure them."  The majority made some effort, unrefuted to do just that.

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.

And, it does not say they cannot "concern" themselves. It is the means that is the problem.  Anyway, as in part referenced by Justice Powell if anything more strongly than the main opinion, blocking mail order of the type here very well impairs access. Such organizations are a major industry (see, e.g., Adam and Eve), especially for those too shy or whatnot to obtain things like condoms in person.  And, this very well is a matter of religious belief, since choices regarding childbirth do touch upon that in various ways. Since the law here seems to broadly cover "morality," the possible reach of the advertising ban can also cover other matters that also touch religious disputes such as homosexuality and other sexual matters.  Finally, lack of access is practice very well moves passed belief to in some fashion lead to compulsion to certain creeds in some fashion. 

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 (1975).

The main opinion also dropped a couple of footnotes (one in the portion joined by a majority) noting the reach of privacy as to consensual sex was an open question. And, in time, this would be deemed to not apply to homosexual relations until Lawrence v. Texas clearly held a constitutional right that broadly protected sexual relations for the unmarried.  But, the Supreme Court until then avoided clarifying the matter, Bowers v. Hardwick itself only addressing homosexuals though the specific statute broadly targeted sodomy overall.

Anyway, this annoyed Rehnquist too, but the citations really didn't refute the point.  The first summarily affirmed, without comment, a 2-1 lower court opinion involving an attempt by male homosexuals to have it  declare a law against sodomy unconstitutional.  They were not themselves prosecuted.  It is thus unclear, as noted by the lower court opinion in Bowers v. Hardwick, just what the Supreme Court was affirming, since the rule there is not to assume more than the result was upheld.  The other involved the sale of obscenity.  The possession of obscenity still being protected.  This underlines the possibilities left open.

The dissent has the character of some dismissive replies online that are so unimpressed by the rationality of the other side that they don't take the time to actually engage with the arguments and do so in such a way that is shall we say a tad slipshod in nature.  But, even there, there is a reason to read the opinions here. And, since we are inside more, we have more time to do so.