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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 CONNECTICUT.

No. 60. Argued March 1-2, 1961.--Decided June 19, 1961.[497.*]

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, appeal dismissed.

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, Attorney General.

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 al.

Mr. Justice Frankfurter announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Clark and Mr. Justice Whittaker join.

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 female spouse.

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 54-196.[499.2] (p.500)Alleging 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. 987.

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] (p.504)"ripeness,"[504.6] 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. 447, 488.[505.9]

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, 344-345:

"... 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 legislative act."

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).
Proceed to pages 509-541 (Dissenting opinions).
Proceed to pages 542-543.
Proceed to pages 544-555]


[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 offender."

[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, 347.

[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 materialize.

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