The Waterbury Democrat., 1940-03-20
Supreme Court Makes
 Important Decision
(Continued From Page 1)

From Page D
 ception for the reason that in the
 opinion of (the defendant) as 8
 physician, the preservation of the
 general health of said married wo-
 man, who had sought his advice as
 8 physician, required that she use
 said drug and device for the pur-
 pose of preventing conception" and
 "that thereafter the said married
 woman in consequence of said con-
 duct of (the detendanD did in fact
 use said drug and contraceptive de-
 vice for (thaD purpose"
 In the McTernan case the allega- tions of the three counts are sim.
 liar to the foregoing except that 1t | is alleged that the defendant is
 trained nurse and that she, in as-
 sisting, abetting and counseling use
 of said drug and device "was car-
 rying out the prescription of a duly
 qualified and licensed physician in
 whose professional opinion the pre-
 servation of the general health of
 (the) married woman, who had
 sought his advice as physician, re-
 quired that said married woman
 (so) use said drug and device" The
 grounds of demurrer are a general
 claim that 6246 constitutes an in-
 reference with the individual lib.
 erty of citizens and a deprivation
 thereof without due process of law
 violative of the federal and state
 constitutions, and, specifically, be-
 cause 1t applies where 8 married
 woman makes use of such drugs,
 articles or instruments for the pur-
 pose of preventing conception Gal
 upon the recommendation and ad-
 vice of a physician; upon such ad-
 vice (b) under circumstances in
 which all physicians would agree
 that 8 pregnancy would jeopardize
 her 1ife";; (c) where, for health reasons, the use thereof is necessary
 for such purpose; (d where such con 1 traceptive measures are necessary | to protect and procure the best pos- Sible state of health and well be-
 ing"; also that the statute is uncon- stitutiona1 if construed as being
 without an exception protecting the right of any physician to pre- scribe drugs, medicinal articles or instruments for the purpose of pre- venting conception" Additional grounds are that 6246 fails to fix 8 reasonably precise standard of guilt and that 1t fails to fix a max ilnum fine. The Superior Court held that the statute could not be construed as affording the above- mentioned exception as to physi- clans and that 1t was consequently unconstitutional.
 The concern of the courts is with the intent expressed by what the Legislature has said. we must con- strue the act as we find 1t. without reference to whether we think it would have been or could be im- proved by the inclusion of other provisions"
 Any intention on the part of the Legislature to allow such an excep- ion as would advantage the pres ent defendants is negatived not ,nly by the absolute language used origir ally and preserved ever since put also, signally, by its repeated ] md recent refusals to inject an ex- :eption. At each session from 1923 { o and including 1881 bill was in- reduced excepting from the opera ion of the statute General Stat- ( ltes, 1918, s 6399, General Statutes, .930, s 6246) use upon prescription g # 8 physician and sale to physicians I ,r upon their prescription, but in { ach instance the bill was rejected. g
 Justice Hinman concludes his de- iSion as follows: /Io
 we conclude that the statute is 4 lot unconstitutional in any of the z expects above mentioned. The stat f lte (s 6246) itself affords a Suffi- tent answer to the further claim u hat it does not fix a reasonably f 'recise standard of guilt. It is obvious hat there .S no merit in the princi- al claim advanced which is that e medicinal" may be construed as z "instrument" as well r s article" SO that use of a me- z hanical instrument would not be d and it is equally plain hat a calendar when referred to c or the purpose of the so-called n nn rythm system" for periodic absten- ion cannot be regarded as an "in- n trument" within the purview of the f tatute." < There is error, the judgments are in ct aside and the cases remanded to il he Superior Court with direction to s verrule the demurrers." n
 In this opinion the other judges a oncurred. W In the case involving the seizure a f the contraceptive material Jus e Ice Hinman says in part as follows: tj The States attorney for New Ha- n en County at Waterbury brought a w to Judge McEvoy of the e uperior Court alleging. under oath, n hat he "is informed and sus- fl ects and has reason to suspect that tl ooks, records, registers, intruments. 1, pparatus and appliances used and cl ept for the purpose of violating the W riIninhl laws Of this state and par- rl |cularly ths provisions of Sections D 246 and 0B61 Of the General Stat. n tes" we're kept and used in a spe- V filed building in Waterbury, and q iaklng application for 6 search larrafit therefor. Judge McEvoy sl spFeasiy found that probable earSe W 1lstea fog the complaint and A- Iel ted the warrant. Under it q ', uanslsy ef literature pertaining to irth control aud numerous Eiedl- Eel