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[Cite as Poe v. Ullman, 367 U.S. 497, 515,
542-543 (1961). Note: This decision regards a Connecticut law
criminalizing contraceptive devices and information. The majority decision chose
not to decide the matter. In dissenting opinions it was said concerning the
Fourteenth Amendment, "The first eight Amendments to the Constitution have been
made applicable to the States only in part." (Douglass, J., P. 515) "This
'liberty' is not a series of isolated points pricked out in terms of the taking
of property; the freedom of speech, press, and religion; the right to keep and
bear arms; the freedom from unreasonable searches and seizures; and so on."
(Harlan, J., P. 543). Listing
the Second Amendment among individual rights is similar to Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897) and
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]
POE et al. v. ULLMAN, STATE'S ATTORNEY.
APPEAL FROM THE SUPREME COURT OF ERRORS OF
No. 60. Argued March 1-2, 1961.--Decided June 19,
These are appeals from a decision of the Supreme
Court of Errors of Connecticut affirming dismissals of complaints in three cases
in which the plaintiffs sued for declaratory judgments that certain Connecticut
statutes which prohibit the use of contraceptive devices and the giving of
medical advice on their use violate the Fourteenth Amendment by depriving the
plaintiffs of life and property without due process of law. The complaints
alleged that two plaintiffs who were married women needed medical advice on the
use of such devices for the protection of their health but that a physician, who
was the plaintiff in the third case, was deterred from giving such advice
because the State's Attorney intended to prosecute offenses against the State's
laws and he claimed that the giving of such advice and the use of such devices
were forbidden by state statutes. However, it appeared that the statutes in
question had been enacted in 1879 and that no one ever had been prosecuted
thereunder except two doctors and a nurse, who were charged with operating a
birth-control clinic, and that the information against them had been dismissed
after the State Supreme Court had sustained the legislation in 1940 on an appeal
from a demurrer to the information. Held: The appeals are dismissed,
because the records in these cases do not present controversies justifying the
adjudication of a constitutional issue. Pp. 498-509.
147 Conn. 48, 156 A. 2d 508,
Fowler V. Harper argued the cause and filed
a brief for appellants.
Raymond J. Cannon, Assistant Attorney General of Connecticut,
argued the cause for appellee. With him on the brief was Albert L. Coles,
Harriet Pilpel argued the cause for the Planned Parenthood
Federation of America, Inc., as amicus curiae, urging (p.498)reversal. With her on the brief were Morris L.
Ernst and Nancy F. Wechsler.
Briefs of amici curiae, urging reversal, were filed by
Whitney North Seymour for Dr. Willard Allen et al., and by Osmond K.
Fraenkel and Rowland Watts for the American Civil Liberties Union et
Mr. Justice Frankfurter
announced the judgment of the Court and an opinion in which The
Chief Justice, Mr. Justice Clark and Mr. Justice
These appeals challenge the constitutionality,
under the Fourteenth Amendment, of Connecticut statutes which, as
authoritatively construed by the Connecticut Supreme Court of Errors, prohibit
the use of contraceptive devices and the giving of medical advice in the use of
such devices. In proceedings seeking declarations of law, not on review of
convictions for violation of the statutes, that court has ruled that these
statutes would be applicable in the case of married couples and even under claim
that conception would constitute a serious threat to the health or life of the
No. 60 combines two actions brought in a Connecticut Superior Court
for declaratory relief. The complaint in the first alleges that the plaintiffs,
Paul and Pauline Poe,[498.1] are a husband and wife, thirty and twenty-six years
old respectively, who live together and have no children. Mrs. Poe has had three
consecutive pregnancies terminating in infants with multiple congenital
abnormalities from which each died shortly after birth. Plaintiffs have
consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is
Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic,
although the (p.499)underlying "mechanism" is
unclear. In view of the great emotional stress already suffered by plaintiffs,
the probable consequence of another pregnancy is psychological strain extremely
disturbing to the physical and mental health of both husband and wife.
Plaintiffs know that it is Dr. Buxton's opinion that the best and safest medical
treatment which could be prescribed for their situation is advice in methods of
preventing conception. Dr. Buxton knows of drugs, medicinal articles and
instruments which can be safely used to effect contraception. Medically, the use
of these devices is indicated as the best and safest preventive measure
necessary for the protection of plaintiffs' health. Plaintiffs, however, have
been unable to obtain this information for the sole reason that its delivery and
use may or will be claimed by the defendant State's Attorney (appellee in this
Court) to constitute offenses against Connecticut law. The State's Attorney
intends to prosecute offenses against the State's laws, and claims that the
giving of contraceptive advice and the use of contraceptive devices would be
offenses forbidden by Conn. Gen. Stat. Rev., 1958, §§ 53-32 and
irreparable injury and a substantial uncertainty of legal relations (a local
procedural requisite for a declaration), plaintiffs ask a declaratory judgment
that §§ 53-32 and 54-196 are unconstitutional, in that they deprive the
plaintiffs of life and liberty without due process of law.
The second action in No. 60 is brought by Jane Doe, a
twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband,
they have no children; Mrs. Doe recently underwent a pregnancy which induced in
her a critical physical illness--two weeks' unconsciousness and a total of nine
weeks' acute sickness which left her with partial paralysis, marked impairment
of speech, and emotional instability. Another pregnancy would be exceedingly
perilous to her life. She, too, has consulted Dr. Buxton, who believes that the
best and safest treatment for her is contraceptive advice. The remaining
allegations of Mrs. Doe's complaint, and the relief sought, are similar to those
in the case of Mr. and Mrs. Poe.
In No. 61, also a declaratory judgment action, Dr. Buxton is the
plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks
that the Connecticut statutes prohibiting his giving of contraceptive advice to
Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property
without due process.
In all three actions, demurrers were advanced, inter alia, on
the ground that the statutes attacked had been previously construed and
sustained by the Supreme Court of Errors of Connecticut, and thus there did not
exist the uncertainty of legal relations requisite to maintain suits for
declaratory judgment. While the Connecticut Supreme Court of Errors in
sustaining the demurrers referred to this local procedural ground, relying on
State v. Nelson, 126 Conn. 412, 11 A.2d 856, and
Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582, app. dism'd,
318 U.S. 44, we cannot say that its decision rested on it. 147 Conn. (p.501)48, 156 A. 2d
508. We noted probable jurisdiction. 362 U.S.
Appellants' complaints in these declaratory judgment proceedings do
not clearly, and certainly do not in terms, allege that appellee Ullman
threatens to prosecute them for use of, or for giving advice concerning,
contraceptive devices. The allegations are merely that, in the course of his
public duty, he intends to prosecute any offenses against Connecticut law, and
that he claims that use of and advice concerning contraceptives would constitute
offenses. The lack of immediacy of the threat described by these allegations
might alone raise serious questions of non-justiciability of appellants' claims.
See United Public Workers v. Mitchell, 330 U.S. 75,
88. But even were we to read the allegations to convey a clear threat of
imminent prosecutions, we are not bound to accept as true all that is alleged on
the face of the complaint and admitted, technically, by demurrer, any more than
the Court is bound by stipulation of the parties. Swift &
Co. v. Hocking Valley R. Co., 243 U.S. 281, 289. Formal agreement
between parties that collides with plausibility is too fragile a foundation for
indulging in constitutional adjudication.
The Connecticut law prohibiting the use of contraceptives has been
on the State's books since 1879. Conn. Acts 1879, c. 78.
During the more than three-quarters of a century since its enactment, a
prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A.2d 856. The
circumstances of that case, decided in 1940, only prove the abstract character
of what is before us. There, a test case was brought to determine the
constitutionality of the Act as applied against two doctors and a nurse who had
allegedly disseminated contraceptive information. After the Supreme Court of
Errors sustained the legislation on appeal from a demurrer to the information,
the State (p.502)moved to dismiss the
information. Neither counsel nor our own researches have discovered any other
attempt to enforce the prohibition of distribution or use of contraceptive
devices by criminal process.[502.3]
The unreality of these law suits is illumined by another circumstance. We were
advised by counsel for appellants that contraceptives are commonly and
notoriously sold in Connecticut drug stores.[502.4]
Yet no prosecutions are recorded; and certainly such ubiquitous, open, public
sales would more quickly invite the attention of enforcement officials than the
conduct in which the present appellants wish to engage--the giving of private
medical advice by a doctor to his individual patients, and their private use of
the devices prescribed. The undeviating policy of nullification by Connecticut
of its anti-contraceptive laws throughout all the long years that they have been
on the statute books bespeaks more than prosecutorial paralysis. What was said
in another context is relevant here. "Deeply embedded traditional ways of
carrying out state policy ..."--or not carrying it out--"are often tougher and
truer law than the dead words of the written text." Nashville,
C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369.
The restriction of our jurisdiction to cases and controversies
within the meaning of Article III of the Constitution, see Muskrat v. United States, 219 U.S. 346, is not the sole
limitation on the exercise of our appellate powers, especially in cases raising
constitutional questions. (p.503)The policy
reflected in numerous cases and over a long period was thus summarized in the
oft-quoted statement of Mr. Justice Brandeis: "The Court [has] developed, for
its own governance in the cases confessedly within its jurisdiction, a series of
rules under which it has avoided passing upon a large part of all the
constitutional questions pressed upon it for decision." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341,
346 (concurring opinion). In part the rules summarized in the
Ashwander opinion have derived from the historically defined, limited
nature and function of courts and from the recognition that, within the
framework of our adversary system, the adjudicatory process is most securely
founded when it is exercised under the impact of a lively conflict between
antagonistic demands, actively pressed, which make resolution of the
controverted issue a practical necessity. See Little v.
Bowers, 134 U.S. 547, 558; California v. San Pablo
& Tulare R. Co., 149 U.S. 308, 314; United
States v. Fruehauf, 365 U.S. 146, 157. In part they derive from the
fundamental federal and tripartite character of our National Government and from
the role--restricted by its very responsibility--of the federal courts, and
particularly this Court, within that structure. See the Note to
Hayburn's Case, 2 Dall. 409; Massachusetts v.
Mellon, 262 U.S. 447; 488-489; Watson v. Buck,
313 U.S. 387, 400-403; Alabama State Federation of Labor
v. McAdory, 325 U.S. 450, 471.
These considerations press with special urgency in cases challenging
legislative action or state judicial action as repugnant to the Constitution.
"The best teaching of this Court's experience admonishes us not to entertain
constitutional questions in advance of the strictest necessity." Parker v. County of Los Angeles, 338 U.S. 327, 333. See
also Liverpool, N. Y. & P. S. S. Co. v. Commissioners,
113 U.S. 33, 39. The various doctrines of "standing,"[504.5]
and "mootness,"[504.7] which this Court has evolved with particular, though
not exclusive, reference to such cases are but several manifestations--each
having its own "varied application"[504.8]--of the primary conception that federal judicial power
is to be exercised to strike down legislation, whether state or federal, only at
the instance of one who is himself immediately harmed, or immediately threatened
with harm, by the challenged action. Stearns v. Wood, 236
U.S. 75; Texas v. Interstate Commerce Comm'n, 258
U.S. 158; United Public Workers v. Mitchell, 330
U.S. 75, 89-90. "This court can have no right to pronounce an abstract
opinion upon the constitutionality of a State law. Such law must be brought into
actual, or threatened operation upon rights properly falling under judicial
cognizance, or a remedy is not to be had here." Georgia, v.
Stanton, 6 Wall. 50, 75, approvingly quoting Mr. Justice Thompson,
dissenting, in Cherokee Nation v. Georgia, 5 Pet. 1,
75; also quoted in New Jersey v. Sargent, 269 U.S.
328, 331. "The party who invokes the power [to annul legislation on
grounds (p.505)of its unconstitutionality] must
be able to show not only that the statute is invalid but that he has sustained
or is immediately in danger of sustaining some direct injury as the result of
its enforcement ...." Massachusetts v. Mellon, 262 U.S.
This principle was given early application and has been recurringly
enforced in the Court's refusal to entertain cases which disclosed a want of a
truly adversary contest, of a collision of actively asserted and differing
claims. See, e.g., Cleveland v. Chamberlain, 1 Black
419; Wood-Paper Co. v. Heft, 8 Wall. 333.
Such cases may not be "collusive" in the derogatory sense of Lord v. Veazie, 8 How. 251--in the sense of merely
colorable disputes got up to secure an advantageous ruling from the Court. See
South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining
Co., 145 U.S. 300, 301. The Court has found unfit for adjudication
any cause that "is not in any real sense adversary," that "does not assume the
'honest and actual antagonistic assertion of rights' to be adjudicated--a
safeguard essential to the integrity of the judicial process, and one which we
have held to be indispensable to adjudication of constitutional questions by
this Court." United States v. Johnson, 319 U.S. 302,
305. The requirement for adversity was classically expounded in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339,
"... The theory upon which, apparently, this
suit was brought is that parties have an appeal from the (p.506)legislature to the courts; and that the latter are
given an immediate and general supervision of the constitutionality of the
acts of the former. Such is not true. Whenever, in pursuance of an honest and
actual antagonistic assertion of rights by one individual against another,
there is presented a question involving the validity of any act of any
legislature, State or Federal, and the decision necessarily rests on the
competency of the legislature to so enact, the court must, in the exercise of
its solemn duties, determine whether the act be constitutional or not; but
such an exercise of power is the ultimate and supreme function of courts. It
is legitimate only in the last resort, and as a necessity in the determination
of real, earnest and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the legislature
could transfer to the courts an inquiry as to the constitutionality of the
What was said in the Wellman case found
ready application in proceedings brought under modern declaratory judgment
procedures. For just as the declaratory judgment device does not "purport to
alter the character of the controversies which are the subject of the judicial
power under the Constitution," United States v. West
Virginia, 295 U.S. 463, 475, it does not permit litigants to invoke
the power of this Court to obtain constitutional rulings in advance of
necessity. Electric Bond & Share Co. v. Securities and
Exchange Comm'n, 303 U.S. 419, 443. The Court has been on the alert
against use of the declaratory judgment device for avoiding the rigorous
insistence on exigent adversity as a condition for evoking Court adjudication.
This is as true of state court suits for declaratory judgments as of federal. By
exercising their jurisdiction, state courts cannot determine the jurisdiction to
be exercised by this Court. Tyler (p.507)v. Judges of the Court of Registration, 179 U.S.
405; Doremus v. Board of Education, 342 U.S.
429. Although we have held that a state declaratory-judgment suit may
constitute a case or controversy within our appellate jurisdiction, it is to be
reviewed here only "so long as the case retains the essentials of an adversary
proceeding, involving a real, not a hypothetical, controversy, which is finally
determined by the judgment below." Nashville, C. & St. L.
R. Co. v. Wallace, 288 U.S. 249, 264. It was with respect to a
state-originating declaratory judgment proceeding that we said, in Alabama State Federation of Labor v. McAdory, 325 U.S. 450,
471, that "The extent to which the declaratory judgment procedure may be
used in the federal courts to control state action lies in the sound discretion
of the Court...." Indeed, we have recognized, in such cases, that "... the
discretionary element characteristic of declaratory jurisdiction, and imported
perhaps from equity jurisdiction and practice without the remedial phase, offers
a convenient instrument for making ... effective ..." the policy against
premature constitutional decision. Rescue Army v. Municipal
Court, 331 U.S. 549, 573, n.41.
Insofar as appellants seek to justify the exercise of our
declaratory power by the threat of prosecution, facts which they can no more
negative by complaint and demurrer than they could by stipulation preclude our
determining their appeals on the merits. Cf. Bartemeyer v.
Iowa, 18 Wall. 129, 134-135. It is clear that the mere existence of a
state penal statute would constitute insufficient grounds to support a federal
court's adjudication of its constitutionality in proceedings brought against the
State's prosecuting officials if real threat of enforcement is wanting. See
Ex parte La Prade, 289 U.S. 444, 458. If the
prosecutor expressly agrees not to prosecute, a suit against him for declaratory
and injunctive relief is not such an adversary case as will be reviewed here.
C.I.O. (p.508)v. McAdory,
325 U.S. 472, 475. Eighty years of Connecticut history demonstrate a
similar, albeit tacit agreement. The fact that Connecticut has not chosen to
press the enforcement of this statute deprives these controversies of the
immediacy which is an indispensable condition of constitutional adjudication.
This Court cannot be umpire to debates concerning harmless, empty shadows. To
find it necessary to pass on these statutes now, in order to protect appellants
from the hazards of prosecution, would be to close our eyes to reality.
Nor does the allegation by the Poes and Doe that they are unable to
obtain information concerning contraceptive devices from Dr. Buxton, "for the
sole reason that the delivery and use of such information and advice may or will
be claimed by the defendant State's Attorney to constitute offenses," disclose a
necessity for present constitutional decision. It is true that this Court has
several times passed upon criminal statutes challenged by persons who claimed
that the effects of the statutes were to deter others from maintaining
profitable or advantageous relations with the complainants. See, e.g.,
Truax v. Raich, 239 U.S. 33; Pierce
v. Society of Sisters, 268 U.S. 510. But in these cases the deterrent
effect complained of was one which was grounded in a realistic fear of
prosecution. We cannot agree that if Dr. Buxton's compliance with these statutes
is uncoerced by the risk of their enforcement, his patients are entitled to a
declaratory judgment concerning the statutes' validity. And, with due regard to
Dr. Buxton's standing as a physician and to his personal sensitiveness, we
cannot accept, as the basis of constitutional adjudication, other than as
chimerical the fear of enforcement of provisions that have during so many years
gone uniformly and without exception unenforced.
Justiciability is of course not a legal concept with a fixed content
or susceptible of scientific verification. Its utilization is the resultant of
many subtle pressures, [paragraph continues next page]
[Currently at pages 497-508 (Majority opinion).
pages 509-541 (Dissenting
Proceed to pages 542-543.
Proceed to pages
[497.*] Together with No. 61, Buxton v. Ullman, State's
Attorney, also on appeal from the same Court.
[498.1] Plaintiffs in the two cases composing No. 60 sue under
fictitious names. The Supreme Court of Errors of Connecticut approved this
procedure in the special circumstances of the cases.
[499.2] As a matter of specific legislation, Connecticut
outlaws only the use of contraceptive materials. Conn. Gen. Stat.
Rev., 1958, § 53-32 provides:
"Use of drugs or instruments to prevent
conception. Any person who uses any drug, medicinal article or instrument
for the purpose of preventing conception shall be fined not less than fifty
dollars or imprisoned not less than sixty days nor more than one year or be
both fined and imprisoned."
There are no substantive provisions dealing with
the sale or distribution of such devices, nor with the giving of information
concerning their use. These activities are deemed to be involved in law solely
because of the general criminal accessory enactment of Connecticut. This is
Conn. Gen. Stat. Rev., 1958, § 54-196:
"Accessories. Any person who assists,
abets, counsels, causes, hires or commands another to commit any offense may
be prosecuted and punished as if he were the principal
[502.3] The assumption of prosecution of spouses for use of
contraceptives is not only inherently bizarre, as was admitted by counsel, but
is underscored in its implausibility by the disability of spouses, under
Connecticut law, from being compelled to testify against one another.
[502.4] It is also worthy of note that the Supreme Court of
Errors has held that contraceptive devices could not be seized and destroyed as
nuisances under the State's seizure statutes. See State v.
Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863, decided
on the same day as the Nelson case.
[504.5] See, e.g., Braxton County Court
v. West Virginia, 208 U.S. 192; Yazoo &
Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217; Fairchild v. Hughes, 258 U.S. 126; Tileston v. Ullman, 318 U.S. 44; United
States v. Raines, 362 U.S. 17. Cf. Owings v.
Norwood's Lessee, 5 Cranch 344.
[504.6] See, e.g., New Jersey v.
Sargent, 269 U.S. 328; Arizona v. California,
283 U.S. 423; International Longshoremen's Union v.
Boyd, 347 U.S. 222. Cf. Coffman v. Breeze
Corporations, 323 U.S. 316.
[504.7] See, e.g., San Mateo County v.
Southern Pacific R. Co., 116 U.S. 138; Singer Mfg.
Co. v. Wright, 141 U.S. 696; Mills v. Green, 159
U.S. 651; Kimball v. Kimball, 174 U.S. 158;
Tennessee v. Condon, 189 U.S. 64; American Book Co. v. Kansas, 193 U.S. 49; Jones v. Montague, 194 U.S. 147; Security
Mutual Life Ins. Co. v. Prewitt, 200 U.S. 446; Richardson v. McChesney, 218 U.S. 487; Berry v. Davis, 242 U.S. 468; Atherton
Mills v. Johnston, 259 U.S. 13.
[504.8] Mr. Justice Brandeis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341,
[505.9] The Mellon cases involved what is technically
designated as the problem of "standing," but the concern which they exemplify
that constitutional issues be determined only at the suit of a person
immediately injured has equal application here. It makes little sense to insist
that only the parties themselves whom legislation immediately threatens may sue
to strike it down and, at the same time, permit such suit when there is not even
a remote likelihood that the threat to them will in fact