Earl Warren: Number 60, Paul Poe, et al., Appellants, versus Abraham S. Ullman, and Number 61, C. Lee Buxton, Appellant, versus Abraham S. Ullman. Mr. Harper.
Fowler V. Harper: Your Honor, may it please the Court. These three appeals derived from three cases, initiated simultaneously in the lower courts of the State of Connecticut, went to the Supreme Court of Errors and are here now on appeal under U.S.C. 1257. As a matter of fact, they were consolidated here for oral argument because they raised the same federal question, although the three cases raised them -- raised it in somewhat slightly different factual contents. Now, these are the cases, three cases, Your Honor, Doe versus Ullmant -- Ullman, Poe versus Ullman and Buxton versus Ullman. Now, these are the cases. Appellant Doe is a woman now 27 years of age, who lives in New Haven with her husband, 28. They have no living children. Four years ago, Mrs. Poe became ill with a cardiovascular ailment. She also became pregnant and developed toxemia pregnancy. In these circumstances, her physician, who was appellant Buxton, decided that the best way to save her life was to terminate the pregnancy. I might add that under law of Connecticut, it is lawful to terminate the pregnancy of a woman in order to save her life, although it is not lawful to advice and have her use a contraceptive to prevent her becoming pregnant. She was admitted to the Greystone Haven Hospital in this condition. Before they could carry out this procedure, however, appellant Doe suffered a severe cerebral hemorrhage. She was unconscious for two weeks in a critical condition for nine weeks, during which time it was necessary to carry out several lifesaving procedures. Now, in these circumstances, her physician came to the conclusion that the lesser risk for her life would be to let the pregnancy go full term rather than subject her to the operation to terminate her pregnancy. It did go full term. She delivered a stillborn fetus. She was subsequently discharged from the hospital, the same heart ailment, paralyzed partially, she has no use of her left arm, she wears a sling, she wears her left leg in a pulley clamp, she had to learn to talk all over because of paralysis of her face. Her physician has told her that another pregnancy will probably result in her death. She then asked Dr. Buxton to prescribe for her the best treatment for her -- a woman in her condition. Dr. Buxton said, "Yes, I have knowledge of the best medical treatment. It will be to prescribe for you and for -- to you to use certain drugs, medicinal articles and devices to prevent another pregnancy. "However, he said, "I cannot prescribe them because the appellee," State's Attorney here, "claims that this would be a violation of a Connecticut statute." That statute provides that this is a criminal offense for any person to use an article, drug or device to prevent conception. The appellee further claims, appellee Ullman, that he will prosecute any violation of this law, as indeed he has. In State versus Nelson, when he procured a conviction of a physician and two nurses, his assistants, for violating the accessory law, which makes a person a criminal in the same degree for aiding and abetting another person committing a crime.
John M. Harlan II: (Inaudible)
Fowler V. Harper: That's the basis. Yes, sir.
John M. Harlan II: (Inaudible)
Fowler V. Harper: That is a basis because prescribing -- the Court held in State versus Nelson that for a physician to prescribe for a woman, the use of a contraceptive device, was aiding and abetting her in the commission of a crime. And under a Connecticut statute, the general accessory statute, he is liable as the principal. There was on that basis the Dr. Nelson and the two nurses were convicted. Now, in these circumstances, appellant Doe claimed that she had a constitutional right to protect her life by the best medical treatment. And that these laws violated the Fourteenth Amendment of the Constitution of the United States. And she had a declaratory judgment action that asked the Connecticut court so to declare. Appellee Ullman demurred to the complaint, thus submitting all the facts which I've just related. The demurrer was sustained by the lower court, affirmed by the Court of Errors and the case is here on appeal. Now, in the case of Poe, it's somewhat similar but the factual situation is somewhat different. Mrs. Poe is a woman, 30 years old, her husband is 34. He's a businessman. They lived together in Connecticut. They have no living children. Mrs. Poe has been pregnant three times, each time delivering a child with mentally -- mentally defective and physically defective, with both mental and physical abnormalities inconsistent with life. Each of these children died within 10 days. Now, Mrs. Poe has asked appellee -- appellant Dr. Buxton to prescribe for her, and he's made the same answer to her that he made to Mrs. Doe. Appellant Poe then rather declaratory judgment action just as Mrs. Doe did, claiming that she had a constitutional right to use the best medical means to prevent the birth of further mongoloid children. And the emotional travail which it had already caused this couple three times. The same result, demur -- admitting all these facts sustained -- affirmed by the Supreme Court of Errors here on appeal. Dr. Buxton brings his action in his own right. He does not claim that this law deprives him under the Fourteenth Amendment, of his life or his liberty as to appellants Doe and Poe. Dr. Buxton claims that this deprives him of his property and his liberty without due process of law. Because he says, "I cannot practice medicine according to my oath, according to my conscience and according to the highest standards of medical science." Now, these are the three cases. Actually -- technically, I suppose they raised two questions, both under the Fourteenth Amendment. Does this Connecticut law forbidding the use of contraceptives, take the life and liberty of Doe's and Poe's without due process of law? The second technical question is, does the anti-contraceptive law, in connection with the accessory law, as applied to Dr. Buxton, deprived him of his property and his liberty without due process of law? Actually, they boil down to the same question. Because it is clear that if a law forbidding the use of a contraceptive device is constitutional, then certainly Dr. Buxton will be guilty under the accessory statute for prescribing these devices. On the other hand, if the anti-contraceptive law is unconstitutional, it's perfectly clear that Dr. Buxton will not be guilty of any crime by prescribing the use of these contraceptives. Now, Your Honors, the argument of these appellants can be stated rather simply as to its pattern. It depends upon four propositions. One, that if these laws constitute a serious threat to life and personal liberty, the State must justify. Secondly, these laws do constitute a serious threat to life and personal liberty. Third, there is no justifying, countervailing interest of the State. And fourth, notwithstanding these three propositions, if necessary, these appellants are perfectly willing to assume the burden of demonstrating that the serious threat to life and the outrageous invasions of personal liberty so up, so far out way any presumed or illusory or actual advantages of this law in the interest of public health or morality, that there is no reasonable basis whatever on which they can stand.
John M. Harlan II: Could I -- I'm sorry to interrupt you.
Fowler V. Harper: Not at all, sir.
John M. Harlan II: I want to make sure one point. There is no law in Connecticut, as I understand it, that prohibits the sale or the prescription of contraceptives independently of the accessory statute, is that right?
Fowler V. Harper: That's right, sir. Unaddended to that answer, I should like to make in due course.
Potter Stewart: Mr. Harper --
Fowler V. Harper: Yes, sir.
Potter Stewart: -- you don't need to answer this now, but is your -- is your argument directed to this statute as -- of course it is, as applied to these -- to these petitioners, to these appellants. But with respect to these appellants, the State has conceded that it would involve the health and perhaps the life of the first appellant, involved basically the mental health of the second. This would lead us, however, not necessarily to strike down the -- the statute as applied to other people whose health was not involved, who could not make a showing that the use of contraceptive was necessary to preserve their health or life?
Fowler V. Harper: Our position, Your Honor, is this. That the laws as applied to appellants Doe and Poe are unconstitutional on their face and/or as applied to them. Our position as far as Dr. Buxton is that the laws are unconstitutional as applied to him.
Potter Stewart: And presumably, he'd be called upon to be an accessory as the Connecticut calls him only with respect to somebody whose -- whose health is involved. Isn't that correct?
Fowler V. Harper: Precisely, sir.
Potter Stewart: So that your argument would not lead us to -- would it, necessarily to -- even if we accepted it all, it wouldn't lead us to -- to strike down the statute on its face as applied to everybody in Connecticut.
Fowler V. Harper: Our arguments, Your Honor, are two fold. One, that it is unconstitutional on its face. Secondly and alternatively, but if it is not unconstitutional on its face, it is unconstitutional as applied to these three appellants. Now, as to the first proposition, that these laws are serious threat to life and if so -- to life and personal liberty, the State must justify. I should like to refer and to be accurate, I shall quote Mr. Justice Stewart's opinion in the recent case of Bates against Little Rock, involving an Arkansas law, which required full listing of memberships of all organizations.
Earl Warren: Mr. Harper, before you get to that, I'd like to follow -- follow that up a little more of the question that Mr. Justice Stewart asked you. Is it your position that the -- that the State has -- has no business in this area at all?
Fowler V. Harper: That's our first proposition, Your Honor.
Earl Warren: Yes. That -- that's it, but they have no business in it at all. That it's -- it's --
Fowler V. Harper: That's the first proposition.
Earl Warren: -- only unreasonable that they should -- that they should attempt to -- to exercise any -- any control --
Fowler V. Harper: Yes, sir.
Earl Warren: -- in this area.
Fowler V. Harper: Yes, sir.
Earl Warren: I just want to -- I just want to be sure. And the other (Voice Overlap) --
Fowler V. Harper: That's our first proposition.
Earl Warren: Yes.
Fowler V. Harper: The alternative one is --
Earl Warren: Yes.
Fowler V. Harper: -- that it has no business insofar as the context of these cases is concerned.
William J. Brennan, Jr.: Well, if -- if that's so, Mr. Harper, that's independent then of any special circumstances healthwise or otherwise, applicable of these -- through these plaintiffs, is that it?
Fowler V. Harper: The first proposition just suggested by the Chief Justice --
William J. Brennan, Jr.: Yes.
Fowler V. Harper: -- is independent of the condition of these women.
William J. Brennan, Jr.: Yes.
Fowler V. Harper: The second proposition includes in application limited to the women on these cases.
Felix Frankfurter: And you have said nothing about the infraction of free speech.
Fowler V. Harper: We're not -- there's no --
Felix Frankfurter: I agree to that.
Fowler V. Harper: -- there's no claim, Your Honor --
Felix Frankfurter: You mean by putting that --
Fowler V. Harper: -- that the statutes violate Dr. Buxton's freedom of speech.
Felix Frankfurter: By -- by requiring to keep his mouth shut, you don't say -- you make no claim that he is deprived of his area of freedom of utterance.
Fowler V. Harper: No, sir. No claim was made under the First Amendment, sir.
Felix Frankfurter: And why is that? I don't understand it.
Fowler V. Harper: Well, Your Honor, if you will permit me, there are three more cases pending in the Supreme Court of Errors, two of which raised First Amendment issues. Now, whether it was wise or unwise, Dr. Buxton not to claim it, he had a right to talk to his patients by way of giving them medical advice. That claim was not made and is not made in these cases.
Felix Frankfurter: But you don't have to spell out your argument in order to make a claim that something is invalid. I don't follow it, I must say. I don't understand it.
Fowler V. Harper: Well, Your Honor, if -- if were permissible for me to argue a free speech issue under the pleadings in this case, I should be very happy to do so. But actually in the Connecticut case of one and only one question was raised, namely, that these cases violate the Due Clause -- Due Process Clause of the Fourteenth Amendment because they deprived appellants Poe and Doe of their lives and their liberty without due process of law and they deprived appellant Buxton of his liberty and his property without due process of law. If I should be permitted in addition to argue, they violate freedom of speech as guaranteed by the First Amendment, I should be most happy to do so.
Felix Frankfurter: But I -- you are here under the Fourteenth Amendment.
Fowler V. Harper: Yes, sir.
Felix Frankfurter: And liberty in that, insofar as the protection of freedom of speech, protects freedom of speech.
Fowler V. Harper: Then if I may amend my statement, Your Honor, I say we will claim and shall claim and do claim.
Felix Frankfurter: It's not for me to decide how you should argue. [Laughter] It's nor for me to decide or suggest what you should or shouldn't argue. It is for me to try to understand the arguments that are made.
Fowler V. Harper: Well, the argument perhaps I'm about to make, may in part be an answer, although I assume it may not be an adequate one. The argument is this, but I -- the decision of Mr. Justice Stewart in his opinion in the Little Rock case, he took this position. And I'm quoting accurately, "The decision in this case has finally turned, therefore, on whether the cities, as instrumentalities of the State, have demonstrated so cogent an interest in obtaining and making public the membership list of these organizations, as to justify substantial abridgment of association of freedom, which such disclosures will affect. Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." Citing a number of cases. I might add to Mr. Justice Clark in the recent Don Juan case, his language implying precisely the same when he said, "It's not for this Court to limit the State in its selection of a remedy to be most effective to cope with such problem, absent, of course, a showing upon reasonable scriptures on individual liberty resulting from its application in particular circumstances. We expect to show serious threat to life as well as in invasion of civil liberties." Now, Your Honor, I realize that these statements and most of the cases supporting them are cases involving First Amendment liberties. Mostly -- for the most -- for the most part, freedom of speech. But it is submitted that the right to live is as important, at least, as a right to speak freely. After all, the right to speak freely is of little use to a person whose powers of utterance had been silenced by death. Moreover, there are other cases, and I should like to point -- point out that many of the cases involving property, business, freedom in the marketplace, in which this Court has imposed a burden upon the person's challenging the law, are not at all to be acquainted with the situation here involving an invasion of civil liberty, personal liberty and life itself, the threat to life itself. Now, appellee, in its brief, refers to Dr. Buxton in pointing out that his property really is negligible here, that the fees which he will derive from abetting a woman for vaginal diaphragm must be a negligible part of his income. And indeed, it is. Actually, it's no part of his income at all. Dr. Buxton does not receive the fees. They go to the clinic in the hospital. He's a professor upbringing on a salary. So, Dr. Buxton is not interested in fees. What Dr. Buxton is interested in is not property. Dr. Buxton is not selling insurance. He's not running a brokerage firm, not operating a series of billboards for advertising purposes. Dr. Buxton is interested in saving the life and preserving the health of his patients and fees have nothing to do with it. What he wants to do is to practice medicine according to his conscience and according to the highest standards of medical science. Now, the cases, therefore, involving property it seems to me are not applicable. Certainly, it requires a great deal of more important interest to justify the invasion of personal liberties as such in this case and that serious threat to life that it does in those cases, which involve only money. Now, secondly, do these laws constitute a serious threat to life or health and personal liberty? Appellant Doe will die of another pregnancy. It is conceded that the best methods to prevent another pregnancy are forbidden by these laws. Mrs. Poe will have another mongoloid child. This is interesting. This Court has held in Buck versus Bell that under of the Constitution of the United States, a State may, by compulsion, against the will of a feeble-minded woman, sterilize her in order to prevent her from having feeble-minded children. The State of Connecticut has a law which prevents a woman from using approved medical treatment to prevent her from having another mongoloid child. Certainly, the Constitution cannot be that erratic. Therefore, there are serious sentence here. What State of Connecticut says to these women is this, "Yes, you may try to save your life and your emotional and physical health, but only by the methods least likely to succeed." What are those methods? Well, in the Tileston case, the Court suggested that the safe period or rhythm period would not come within the band of these statutes. Now, the rhythm system as Dr. Rock, who studied these problems, has described it is one way people have children and the data appears to -- to vary amount. In a poll taken by Dr. Guttmacher over 3000 doctors, this is in the brief at page 15, only 1.4% of the doctors regarded the rhythm system as a reliable way to prevent conception, 1.4%. Now, as to abstinence, the Court in Tileston said that abstinence was a reasonable alternative and therefore, the law was not unreasonable. The Court said, "Do the frailties of human nature, the uncertainties of human passions render abstinence an unreasonable way to avoid conception?" The Court concluded that it did. But as you will notice in the same table that I just quoted, that 98.5% of the physicians polled disagreed with the Supreme Court of Connecticut on the medical treatment for women who will die with another pregnancy. In other words, only 1.5%, I should say negligibly fractional agreed with the Supreme Court of Connecticut. Now, Your Honors, I should like to clear a way a little beyond the brush in this -- in these cases. The court below, in its opinion disposing of all three of these cases, spent a good bit of time considering questions which have been raised in other cases, but not in this one. In -- in the first case, Nelson against the State, which came to this Court or which was -- has gone to the Supreme Court of Errors, the second case, Tileston versus Ullman, which did reach this Court but was dismissed on the ground that the doctor had no standing to sue. He was asserting the constitutional rights of his patients and not of his own. In both of those cases, it was urged by petitioners that the Court should lead an exception into the law as indeed it had read -- as indeed there was an exception expressly in the abortion law. Abortion was illegal except for the purpose of saving a life of a woman, of the mother. Now, it was argued, but certainly the legislature, in the much less serious matter of contraception, must have intended a similar exception there. That question was raised in both the Nelson and the Tileston case. Actually, the Supreme Court of Errors turned the argument back upon the petitioners and said, "The legislature expressed and stated the exception in the abortion statute, if it intended one here, it would've put it in." Now, that question was disposed of in two cases by the Supreme Court of Errors interpreting a Connecticut statute. These appellants did not raise that question. They accepted that interpretation of the court of Connecticut and the question of an exception being read in by the Court was never raised. Yet, the court below in its opinion spends substantial amount of the opinion discussing that. Also in that opinion, there are considerable discussions and -- concerning the three departments of Government and how one department cannot encroach on another and so forth. The court below, in its opinion in the Supreme Court of Errors, disposed of this case in one paragraph only. The substance of which was, we admit, that the forbidden contraceptives of the best medical treatment that abstinence is a reasonable alternative. And that, Your Honors, is a position taken by the Supreme Court of Connecticut. Now, as to abstinence itself, there's a great deal of evidence, medical evidence in our brief and the brief of amicus curiae, to indicate that abstinence is unhealthy as well as impractical. And as a matter of fact, they stated to which I just referred, only 1.5% of the doctors said that they would prescribe abstinence as a method of preventing conception for woman whose life would be in danger by another pregnancy. In other words, 1.5% of the medical profession according to this poll, over 3000 doctors, agrees with the Supreme Court of Errors that abstinence is a perfectly practical and a reasonable alternative.
Potter Stewart: Mr. Harper --
Fowler V. Harper: Yes.
Potter Stewart: These cases --
Fowler V. Harper: Yes, Your Honor.
Potter Stewart: -- came to the Supreme Court of Connecticut and come here on demurrers to the --
Fowler V. Harper: Yes, sir.
Potter Stewart: -- to the complaint. Therefore, I suppose notice what you call evidence. None of these -- none of the -- none of these data were before the Supreme Court of Connecticut, were they?
Fowler V. Harper: That's right, sir. All of the data which I have cited is data which this Court knows because Mr. Justice Harlan said in Jacobson, what everybody knows, this Court knows that all scientific data are authenticated and documented.
Potter Stewart: I was wondering whether -- whether this was presented to this -- to the Connecticut court in at least the four (Voice Overlap) --
Fowler V. Harper: All of these materials -- most of these materials were presented to the Connecticut court.
Potter Stewart: Alright.
Fowler V. Harper: As -- so far as the physical facts are concerned, of course, we didn't prove those because a demurrer was filed in medical facts.
Potter Stewart: Yes.
Fowler V. Harper: Now, Your Honors, I should like to refer to the invasion of civil liberties, that is to say the liberty of the marital relation. Only last year, the Court of Appeals of New York decided that a man was entitled to a degree of separation from his wife on the grounds of abandonment because she declined to have sexual intercourse with him and the declamation was on religious grounds. It so happened that this couple had been married by civil wedding. The lady subsequently having been advised by her spiritual adviser that she was -- had not been married according to the Church, declined to have marital relationship with her husband until they had been married according to the Church. He declined -- the Court of Appeals granted him a separation on the ground that his wife had abandoned him. Judge Ford said sexual relations between men and women are given a socially and legalized sanction, only when they take place in marriage. And in turn, marriage is a self-distinguished from all other social relationships by the role of sexual intercourse between the parties placed in it. This being so, it may not be doubted, that a total and irrevocable negation of what is lawful in marriage and unlawful in every other relationship or what unmistakably and uniquely characterizes marriage in no other relationship, constitutes abandonment in the eyes of the law. I might add that only last year, the English court in Louis versus Lillie, I give you a citation because it's not in the brief, 30 English Reports 283, made a -- the same decision. Now, I'd also like to quote very briefly from Lord's Stairs Institute, this is a book which Dean Langdell has said once to have described as a comparatively recent textbook published in 1681. In Lord's Stairs Institute, we find this written, "So then, it is not the consent of marriage as it relateth to the procreation of children that is requisite, for it may consist, though the woman be far beyond that date, but it is the consent whereby ariseth that conjugal society which may have a conjunction of bodies as well as of minds, has the general end of the institution of marriage, which is the solace and satisfaction of man." In a case just a few years ago, Baxter versus Baxter in which the English court held that a marriage had been consummated even though the husband refused to have marital intercourse with his wife, except by the use of a shield -- sheath, a condom. He brought an action on the ground that the marriage hadn't been consummated. The court held that it had been in Baxter versus Baxter, Lord -- Chief Justice Jowitt quoted the passage which I've just read from the institutes and concluded his opinion with the words, "I am content to adopt these words as my own, so too are these appellants." Now, Your Honors, what has Dr. Buxton to say to Mrs. Doe, appellant Doe? He's to say to Mrs. Doe, "Yes, I have warned you that another pregnancy will cause you your life. Yes, I know the best medical treatment for you. That's sanctioned by all, but a negligible fraction for the medical profession. But I cannot so prescribe, the law forbids it, I will go to jail, probably lose my license if I give you the best medical advice for your difficulties." And he says, "I know you're only 27 years old, your husband's only 28. Well, all I can say is Mrs. Doe, the home is good a wife as possible, but never have marital intercourse with her as long as she'll live." And the Poes -- nothing wrong with the Poes except something wrong with the genes. The reason Mrs. Poe has these mentally defective children is because of some genetic problem, which the specialists have not been able to diagnose to the point of making an adequate prognosis and cure. Now, I suppose the Poes have suffered about the cruelest tragedies that any married couple can experience. And yet they are deprived of what men in all ages have found to be the greatest solace for life's extreme tragedies. And I don't suppose to be much of a consolation to Mrs. Poe. That if she was asked to read the opinion of the Court of Errors again, when the Court said that "The frailties of human nature and the uncertainties of passion do not make abstinence an unreasonable or impractical alternative." Now, to go further, Your Honors, and suggest that these laws mercilessly invade the privacy of a married couple. In Board of Education versus Barnette, Mr. Justice Jackson pointed out the flags of the case. Mr. Justice Jackson pointed out that the rights that these children wanted to assert refusal to go through the ceremony, did not affect the rights of any other person on Earth. That is something which pertained to them only and the State. His exact words, the freedom asserted by these appellees, does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State. But the refusal of those persons to participate in the ceremony does not interfere with or deny rights of others to do so. The sole conflict, Mr. Justice Jackson said, is between authority and the rights of the individual. And so here, Your Honors, the sole conflict is between naked authority and the rights of a married couple to live a normal married life and express their mutual love and affection to each other in a way that couples have done from time immemorial.
Potter Stewart: My Brother Frankfurter asked you a few minutes ago, Mr. Harper, whether you're going to make any free speech claim under the Fourteenth Amendment and I've heard your answer. How about of freedom to practice religion claim, is that in this case?
Fowler V. Harper: Well, the appellants in these cases have not asserted the -- the right to practice religion because as far as we know, there's nothing inconsistent that these laws and their particular religion, so far as we know.
Potter Stewart: Are there -- are there any religions that --
Fowler V. Harper: I beg your pardon, sir.
Potter Stewart: Is there at -- well, of course, there's no evidence in this record, but is there -- is that a possible issue in this --
Fowler V. Harper: It certainly is. Indeed it is a possible one because as almost everyone knows now, most of the Protestant denominations have come out not only improving artificial birth controls, the World Conference of Churches did so last summer. The National Council of Churches did so last week, approving of artificial birth control and taking the position that it is the moral responsibility of children -- the moral -- the moral responsibility of parents to be responsible in the number and spacing of their children, taking into consideration by many things such as the health of the mother and health of future children and the economic and social environment of the couple. Now, actually, there is a conflict, as everyone knows, between the position taken by the majority of the Protestant and Jewish denominations and the position taken by the Roman Catholic Church. This is our conflict. But as so often happens, when a reasonable man came far up to the areas of actual agreement, the dispute that is left becomes less important and ranker tends to disappear. Now, what do we have? A very wide area of agreement between these two tremendous groups. There is no important denomination that I know of in the western world which takes the position that absolute control of conception under and all circumstances is wrong. None. The Catholic Church does not take that position. None of the Protestant Church has taken. So far as I know, none of the Jewish denomination has taken. Now, the difference comes to this. The Protestant denominations take the position that contraception, by the most effective means, contraception is a personal matter, a matter of individual choice, to put it in terms of National Council of Churches before God in prayer, something individual. The Catholic Church takes the position that -- well, members of the faith are required to follow the teachings of the Church which does not, in unqualified terms, prevent the control of conception. That while members of the faith should follow the teachings of the Church, there are very loud and vigorous spokesmen today by Catholic scholars and members of the Catholic hierarchy who take the position that it is immoral and it would be immoral for either group to force by compulsion of law is for use upon the other group. In that, Your Honors, I think this is dispositive of this case. It's very difficult, Your Honors, to claim reasonable for a law, which so many thoughtful men regard as immoral. Now, insofar as there are supposedly advantages to this law, so far as the State is concerned, I should like to point out that there are practically none. So far as the purpose of the law is concerned, the only clue we have from the legislative history is that it had something to do with obscenity. Because the law was enacted in 1879 as a part of the crusade against lewdness and obscenity, a part of the Comstock and (Inaudible) legislation, but now, to come along ways so far to use Mr. Justice Brennan's phrase, so far as contemporary community standards are concerned, you come a long way since the Victorian prudery of 1879. Contraception is no longer a dirty word. Now, so far as the Court's concerned, the only suggested purpose of the law is to avoid immorality, namely, licentious sexual relations, presumably between unmarried persons, fornication, possibly adultery occasionally. Now, that is mentioned in two of the opinions. The purpose of the law is to promote morals by preventing sexual intercourse between unmarried persons. Now, the law does not accomplish this purpose and it cannot accomplish it for the simple reason that it is not unlawful in Connecticut for a person to use a contraceptive device for the purpose of preventing disease. The Court has cited Commonwealth against Corbett and Commonwealth versus Rolinski, the Massachusetts case which so decided, under their law, with the parent approval. And there is cited in our brief, a ruling by the Commissioner of Drugs, a formal ruling in a letter to the Bridgeport Pharmaceutical Association which asked the question, is it lawful for us to sell, when the advice of the -- prescription of a physician a vaginal diaphragm? And the Commissioner of Drugs made the formal ruling saying, "Yes, it has therapeutic purposes." In other words for the purpose of preventing disease or other therapeutic purposes, it is perfectly alright to sell the most effective contraceptive device in Connecticut. Therefore, it's clearly impossible for this law to achieve its ends. Now then, let us assume for the sake of argument that it does. It is submitted that the opinions of this Court which are completely dispositive of this case. In Butler versus Michigan, this Court struck down a law prohibiting the sale of magazine pictures and other types of literature tending to corrupt the morals of children. They struck it down because the law also prevented the sale of such literature to adults. Mr. Justice Frankfurter in his opinion in that case for this Court said, "Law goes too far." It reduces the reading matter for the adult public of Michigan to the level of that which is fit for children. Not only in -- not only in -- in the Butler case, but more recently, Mr. Justice Stewart in the Shelton case, Shelton versus Tucker. Decided this term in discussing the listing of organizations required by the Arkansas statute made the same point. The statute, he said, requires the person to list without number, every conceivable kind of associational tie. Many such relationships could have no possible bearing upon the teacher's occupational competence or fitness. The end, he held, could be more narrowly achieved. Now, what does this law do? This law, in order to prevent fornication, perhaps in occasional case of adultery, prevents a woman who is likely to die with another pregnancy from following standard medical advice in obtaining standard medical treatment. In addition, this law prevents married couples, every married couple in Connecticut are deprived the right of sexual intercourse if, for any reason, if for any reason, the health of mother or the welfare of the children might be affected. Certainly, this is to burn down the house to roast the pig, throwing a baby out for the dishwater. The end could be, could obviously be achieved by much lesser means. So, Your Honor, it's suggested that Butler versus Michigan and the cases following it, could be dispositive of this case on an area ground I met but it couldn't be dispositive of the case. Now, Your Honors, we have undertaken the burden or said we're willing to undertake the burden of demonstrating upon the disadvantages when the threat to life and personal freedom and individual liberty are weighed against the so-called advantages. There's no reasonable basis for these laws at all. Now, the evils of abstinence have been pointed out from time to time. It has been said. Floyd, I quoted in the brief, has said many years ago that one's sexual passions have been aroused, in connection with the particular person, they are not to be stilled and if the normal outlet is stifled, they will found an -- find an outlet elsewhere. Therefore, to doom young people, such as the Poes and the Does, to abstinence is to invite more harm than it could possibly be avoided by the contraceptive statutes. Moreover, in the brief, we have cited a number of cases in which abortions are the result of unwanted children. Abortions are the result of children who're not wanted. And that they there show that most of the abortions performed, as a matter of fact, there is a medical -- in British Medical Journal, there's an article cited in the brief indicating that 90% to 95% of the abortion performed in England are illegal. And the opinions of the best experts in this country are to the same effect. Most abortions are illegal. As a matter of fact, the data indicated that there are relatively few operations admitted to the Presbyterian-Columbia Hospital and the Bellevue Hospital in New York, for illegal abortions, although there are hundreds of women who were brought in for post abortion care, as a result of illegal abortions. Now, it also happens, that the data show, that most -- these are also cited in the brief, most abortions are performed upon married women. It isn't solely a matter of a young woman finding herself unmarried and pregnant who are the victims of abortion. Most abortions are upon married women who do not want a child. In psychiatric evidence also cited in the brief indicates quite clearly, quite clearly that the unwanted child is one of the most unfortunate of human beings. As Dr. Manager said, "Sometimes the unwanted child will stimulate a certain amount of love and affection in the parents plus their feeling of guilt not wanting a child." But he says the parents may fool themselves and they may fool others but they can never fool the child. You will go through life always knowing and feeling unverbalized, though it maybe. He knows that somehow he was unwanted and any becomes a victim of all the prejudices, racial, social and otherwise that plagued this country. Now, Your Honors, I should like to ask my colleague, Mrs. Pilpel to stress some points which I have not been able to reach.
John M. Harlan II: How many prosecutions a year --
Fowler V. Harper: I beg your pardon, sir.
John M. Harlan II: How many prosecutions a year are brought by Connecticut under this statute? Either --
Fowler V. Harper: I do not know, Your Honor. Most physicians in Connecticut --
John M. Harlan II: Is the law really enforced?
Fowler V. Harper: Your Honor, I'm ignorant of the extent to which law is enforced. I have the feeling that so far as I know it has never been enforced against a person who used a contraceptive for rather obvious reasons. Police do not peek into people's bedrooms to see whether they're using contraceptives. And people do not go into a drugstore and ask for a box of condoms with the statement that I'm going to use these to prevent conception rather than prevent disease. And so actually, I know -- know a prosecution of an individual for use. Although there have been prosecutions of physicians. And this I do know that since Nelson versus State, there has been in Connecticut, no public or private clinic for the purpose of advising on contraceptions. Nelson versus State was a death knell because it closed the clinic which Dr. Nelson was operating. There have been nonsense and therefore, if we want to talk about how much the law is enforced, put it this way. The people in Connecticut who need contraceptive advice from doctors most, the people in the lower income brackets and the lower education brackets, the people who need it most do not get it because there are no clinics available.
Charles E. Whittaker: Are there other statutes just like this statute in other States?
Fowler V. Harper: There is no statute exactly like this, Your Honor, in any State. Massachusetts has a statute which comes the nearest to it. Massachusetts forbids the sale or disposition of any device intended to prevent conception.Our law in Connecticut prohibits the use of any device.
Earl Warren: Ms. Pilpel.
Harriet Pilpel: May it please the Court. There are many questions of death and disease to which the medical profession does not know the answer. However, these cases present situations where the medical profession in the person of Dr. Buxton does know the answer. However, he is not permitted by the laws of the State of Connecticut to give the answer which the State and the State Supreme Court can see, as medically speaking, the best and safest preventive measure for the plaintiffs to follow in order to avoid pregnancy. If Connecticut had passed a statute forbidding women for whom a pregnancy was counter indicated from -- from having sex relations, we submit that this would be a highly unreasonable enactment. Yet that is precisely the effect of what Connecticut has done in these cases. In each of these cases, Connecticut has imposed a choice upon the appellant Mrs. Doe either to risk death or renounced all marital relations. Mrs. Poe, to produce -- Mr. and Mrs. Poe to produce more monstrous babies incapable of survival were to renounce all marital relations. And Dr. Buxton perhaps the most difficult choice of all, namely, a choice between what he concedes to be his professional obligations, which I will show in a moment, is the overwhelming consensus of medical opinion and the law of the State where he practice his medicine. Surely, any approach to this problem in these cases is as Professor Harper has said, "To burn down the house to roast the pig" and especially so, since there are our aspects of these cases touching upon freedom of expression and freedom of religious worship which tie in to the untroubled unreasonableness. The State has not attempted to justify these drastic effects on the appellants beyond making generalizations about the police power. And that this Court has said in an earlier case's term, generalities expressing the State's unrestricted power do not help to resolve constitutional issues. It is my hope to show that the overwhelming consensus of medical opinions supports Dr. Buxton's claim and the admission of the appellees and the finding of the state court that the prescription of contraceptives in these cases is medically demanded. We submit further that this Court has always accorded great weight to medical opinion in medical matters where that opinion is, as here, substantially unanimous. We also submit that traditionally, neither this Court, nor the other courts to whom the question has come up for decision, have conceived that general prohibitions, constitutionally apply to medical practice backed by substantial consensus of medical opinion, as Professor Harper indicated that Connecticut then is unique. It is furthermore totally out of line with all federal and state legislative, judicial and administrative experience in this field with the possible exception of Massachusetts. And it is also totally out of line with the balance of Connecticut's own statutory scheme touching on the general subject of procreation. In other words, that virtually every guard close this Court looks at in due process cases, points toward the invalidity of these statutes as applied to these appellants. Dr. Buxton's opinion is amply confirmed by all the data available with reference to the opinion of the medical profession as a whole. The American Medical Association, several of its constituent sections including the section on obstetrics and gynecology, which is the section here involved and the section on mental and nervous diseases, other important national societies like the American Gynecological Society and the American Neurological Association and the American Health -- Public Health Association, medical societies of various States including the Medical Society of the State of Connecticut, all are in accord that in this type of case, contraception, meaning the prescription of drugs, medicinal articles or instruments for the prevention of conception, is generally recognized as a necessary and proper part of medical practice. This fact is further attested too by the authority cited in our and the appellants' brief and by the brief filed in this case by Mr. Whitney North Seymour on behalf of the heads of the department of obstetrics and gynecology in 66 of the 79 leading nonreligious medical schools in the United States. This Court, in a long line of cases, has upheld laws, which like this one, are affected with the medical interest, where it was shown that such laws were supported by a consensus of medical opinions. In almost all of these cases, the Court plainly implied that if the consensus were the other way, those enactments could not stand. Several of these cases are cited and discussed in our and in the appellants' briefs, among them the (Inaudible) Lambert against Yellowley and Jacobson cases. I should like also to call the attention of this Court to an additional case, namely, Price against Illinois, decided by this Court in 1915, where Mr. Justice Hughes said in connection with the claim that a statute prohibiting the use of boric acid as a food preservative was unconstitutional that that contention "could be granted only if it appeared that by a consensus of opinions, the preservative was unquestionably harmless". In our cases, the devices are not only unquestionably harmless, but they are also conceded to be the best and safest preventive measures necessary for the protection of Mrs. Doe and the Poes. It is most unusual to find a statute like this where a lay body substitutes its view for the view of a substantially unanimous medical profession. In the January 9th, 1961 issue of the New England Medical Journal, which was published after the brief in this case was filed, now, which is one of the nation's leading medical journals, the editorial right have carried the Connecticut decision here under review to its logical, and it seems to me, necessary conclusion if the decision stands. Pointing out that the State of Connecticut has, and I quote, "Apparently, not yet claim the right to decide whether to prescribe onion poultices or antibiotics for the treatment of pneumonia or to prescribe bedrest or surgery for gastric ulcer, but apparently, it claims to have that right. It is because of the absurdity of a lay body rejecting in the absence of conclusive information of any kind by the opinion of the medical profession." Now, traditionally, this Court has assumed that general medical prohibitions of this sort do not apply to proper medical practice.
Potter Stewart: Of course, as a matter of fact, that's probably not what happened here. Is this -- this statute is, what? 80 years old.
Harriet Pilpel: Since 1879.
Potter Stewart: And so, in enacting the statute, it -- probably it isn't factually correct to say that the legislature disregarded the unanimous medical opinion because apparently, there wasn't any such thing, is it not?
Harriet Pilpel: Well, Mr. Justice Stewart, actually, some of the authorities, which we cite in our brief, show that there was a considerable amount of medical opinion at that time and that it may have been not any way near as clear as it is now. But in -- for example, Mr. Glanville Williams' book on the Criminal Law and the Sanctity of Life, he points out that the medical profession at that time would have been in favor of the use of contraceptives, but whatever doubt might have existed, has certainly been resolved by the medical profession since and today, the situation is substantially unanimous. As far back as just 11 years or in the 21 years later than 1879, in 1900, this Court in Austin against Tennessee, a liquor regulation case said that "if the legislative body comes to the conclusion that a due regard for public safety and morals requires a suppression of the liquor traffic, there is nothing in the Fourteenth Amendment to prevent its doing so". But then it went on to say, "While perhaps, it may not wholly prohibit the use or sale of them for medicinal purposes, it may hedge about their use as a general beverage, such restriction as it pleases," and he added, "nor can we deny to the legislature the power to impose restrictions on the sale of noxious or poisonous drugs, such as opium and other similar articles extremely valuable as medicines, but equally harmful to the habitual user." This statute does not recognize any such distinction which has uniformly been recognized by legislatures and courts including this Court with reference to almost every prohibition of liquor, narcotics, drugs or other so-called noxious article. We haven't unable to find a single case other than these -- these cases and the Massachusetts cases where a general legislative prohibition has been applied to the severe detriment of individual patients in a manner directly contradictory to the overwhelming consensus of medical opinion. It should be noted that underlying the decision of lower courts, accepting medical practice from general prohibition, is obviously the belief that if they applied against the consensus of medical opinion, they might well be unconstitutional, so that a number of these cases, although they involved questions of statutory construction, were obviously resolved in terms of avoiding serious constitutional issue. This Court has made very clear that, for example, in the Sweezy case, the teachers and students must always remain free to inquire, to study, to evaluate, to gain new material in understanding, otherwise our civilization will stagnate and die. As it's pointed out in the amicus brief filed by Mr. Whitney North Seymour for the heads of the medical schools, he points out that it would be ironic indeed if the freedom to conquer new frontiers in medicine were jealously guarded, but the duty of physicians to give the public the benefit for such conquest would've be subject to legislative whims, which is what these statutes come down to in this case. In other words, the doctors, although they are free to learn and to teach, are not free to practice what they teach. Now, as we have said before, the Connecticut law on the use of contraceptives is unique. No other law has an impact on use. No other law prohibits use. They are unique, secondly, because most statutes in the field of contraception are not prohibitory. They are regulatory as the breakdown and analysis of the state statutes in our brief demonstrates. Even in the case of prohibitions which are absolute in their words, on their face as for example is the case of the federal statutes on this subject and some of the state statutes, the courts have interpreted these prohibitions not to apply the cases of medical necessity such as we have here presented. For example, Judge Augustus Hand in the Federal Court of Appeals for the Second Circuit in United States against One Package said that notwithstanding the wording of the federal statute, he could not believe and the Court held with him that things "which might intelligently be employed by conscientious and competent positions for the purpose of saving life or promoting the well-being of their patients could be prohibited especially since." And I quote again, "In many cases, this is advocated by such a weight of authority in the medical world." Now, speaking of contraceptive services that same court through Judge Learned Hand had earlier said in considering whether or not, a contraceptive clinic was a health service, that he could see no difference that this is confined to married women who were not to have children both for their own and their children's sake. He pointed out that health is as much at stake as all -- as though it attempted the general prevention of sickness. And he added, "Nor does it matter that there are those who thinks the cure, worse than the disease. There are people who object to venereal prophylaxis, docketed on a case called Slee against Commissioner in 42 F.2d, which is not cited in our brief.
Hugo L. Black: What page is that?
Harriet Pilpel: 42 F.2d 184. The varying state statutes on contraception with the exception of the Connecticut and Massachusetts statute has similarly been construed whether prohibitory on their face or not. Not to extend the medical practice in cases where life and health are at stake. Seven southern States including one where a statute reads like a flat prohibition provide -- provide contraceptive service as part of their program of infant and maternal public health. The Supreme Court of Michigan, which is fairly typical, has referred to contraceptive as wholly legitimate and "even essential to public health and welfare". The federal administrative authorities have followed the lead of the federal court. The Pure Food and Drug Administration passes upon contraceptive products. For example that requires prescriptions for vaginal diaphragm. This year, in fact last month, the Food and Drug Administration cleared for sale a contraceptive pill. It is interesting to note that the New York Times of January 19th, 1961 reported a study to determine whether the pill also had the effect of preventing cancer. The article stated that cervical and breast cancer appeared to be unusually infrequent among women taking the pill to prevent pregnancy. Clearly, whether if the study establishes that the pill is deterrent to cancer, women in Connecticut will be permitted to use it nor is the federal activity, with reference to this field, limited to the Food and Drug Administration. During the war, the War Production Board withheld that contraceptives for both men and women could continue to be manufactured at 100% of their 40, 41 production level. United States Armed Forces distributes contraceptive drugs, medicinal articles and instruments of one of the largest distributors. And a surgeon general of the United States has ruled that federal funds allotted to the States may be used for the purpose of carrying on Planned Parenthood programs by State and local health departments. Only in Connecticut, and perhaps in Massachusetts, would impediments be placed in the way of Dr. Buxton prescribing and Mrs. Doe and Mrs. Poe from using contraceptives. As a matter of fact, we have raised in our brief, as has Mr. Seymour, the question whether, if a doctor did not prescribe a contraceptive elsewhere in other States, it didn't have such a law, he might not be susceptible to claims of malpractice if he did not, at least, indicate that contraceptives were available if he had reason, religious reasons or others for not prescribing them. He probably would at least have had be to aware -- make the patient aware of their existence. Thus, the cases are pretty clear that where something is approved by a substantial consensus of medical opinion and a doctor does not prescribe that something, he maybe liable from malpractice, that -- those cases are discussed in our brief. I said before that the only law in Connecticut dealing with the subject of procreation which makes no exception for medical practice is this one that we're now considering. As Professor Harper pointed out, the Connecticut law forbids abortion, unless it is necessary to preserve, and this is the word of statute, "the life of the mother or that of her unborn child". The Connecticut law prohibits voluntarily sterilization, unless the same is a medical necessity. The Connecticut law prohibits the distribution of medicines, instruments or other devices for abortion and sterilization except to a licensed physician or to a hospital approved by the State Department of Health. Connecticut law, as a matter of fact, provides for the compulsory sterilization of inmates of mental institutions if, in the judgment of designated doctors, such person would produce children with an inherited tendency to crime, mental illness or mental deficiency.
Felix Frankfurter: What is the law regarding sterilization outside of state institutions?
Harriet Pilpel: That it maybe performed where it is a medical necessity.
Felix Frankfurter: So that Dr. Buxton could've served that (Inaudible) could he not?
Harriet Pilpel: Well, presumably, he could have, but I think it would have been not bad medicine, Mr. Justice Frankfurter, because, as pointed out by the appellant in their brief and as is well known, many of the conditions such as those which equip the appellants in these cases maybe remedied, if time is given to remedy them. Medical science is advancing all the time. Women do become well when they become ill. Sterilization is an irreversible operation. We feel that for this statute to appear, as it does and was at Connecticut, is to present an -- an anomaly similar to that for detention to bar Judge Hand in the One Package case, where he pointed out, and I would like to quote this because it applies, it seems to me, right here, "That while it is true that the policy of Congress has been to forbid the use of contraceptives all together, if the sole purpose of using them be to prevent conception in cases where it would be injurious to the welfare of the patient or her offspring, it is going far beyond such a policy to hold that abortions which destroy and simply at life, maybe allowed in proper cases and yet that no measures can be taken to prevent conception even though a likely result would be to require the termination of the pregnancy by means of an operation. It seems unreasonable to suppose that the national scheme in this instance, the Connecticut scheme of legislation, involve such inconsistencies and requires the complete suppression of articles, the use of which in many cases is advocated by such a weight of authority in the medical world." It is, we submit, equally unreasonable to construe the Connecticut statute in this manner, in this case. And since they have themselves construed, we maintain that they are unreasonable and unconstitutional. Our reference was made before to the stand of various religious groups on the subject of contraception. I would like to point out, as did Professor Harper, that not only his medical opinion virtually unanimous in calling for the prescriptions made illegal in this -- these cases. Not only is the Connecticut statute unique, but virtually all religious groups in this country endure some method of contraception, some method of contraception in cases like this. While the Protestants and most of the Jewish denominations sanction all medically approved method of contraception, there are two religious groups who differed from the rest in this regard as to permissible methods and dissent on certain methods. These are the Orthodox Jews and the Roman Catholics. The Orthodox Jewish rabbis, speaking in a resolution of their rabbinical alliance, point out that Orthodox Judaism does not condone any artificial birth control measured by the male spouse in any circumstances. Only in cases where the health of the female is jeopardized, certain birth control measure is allowed and then only through a direct consultation between the medical and rabbinical authorities. Thus, both the Roman Catholics and the Orthodox Jews approves the use of certain contraceptive methods as a matter of religious faith and of course, those groups have a right to refrain from using these methods. That -- it is a matter of religious faith appears fairly clear. For example, the code of Catholic hospitals says their operations, treatments and devices designed to render conception impossible are morally objectionable. Whereas, therefore, these religious groups have the right to refrain from endorsing of -- in fact can go so far as to prohibit the members of those groups from using certain methods of contraception. We submit that neither they nor anyone else has the right to impose such matters of religious faith on other people. The question presented by this case goes not to religious faith to -- but to whether there is a secular interest or state interest that justifies the impact of these statutes on appellants. Now, the State has --
Felix Frankfurter: Before you -- before you move on, Ms. Pilpel, are you suggesting that these two groups are the minority in Connecticut and have imposed their minority use on the State or are you suggesting that they represent the majority of use in the State?
Harriet Pilpel: No, I would have no information about that, Mr. Justice Frankfurter.
Felix Frankfurter: Well, you think it's not a relevant question to the problem?
Harriet Pilpel: I don't think it's relevant to the problem, Your Honor
Felix Frankfurter: Why not?
Harriet Pilpel: Well, for several reasons. One reasoning is that this problem has to do with what I call a secular interest. And that I do not believe that a matter --
Felix Frankfurter: Wouldn't it not be the legislators who have refused to change the law, had cast secular votes in its favor or at least have upstate in using the secular vote against them?
Harriet Pilpel: Well, they have cast secular votes and I am not in the position to know whether secular reasons motivated their casting of their vote.
Felix Frankfurter: In order that's -- it's a secular machinery that has kept this statute on the statute.
Harriet Pilpel: That is correct. But we -- we have, I think, shown that there are no secular interest that justify the keeping of a statute on the book.
Felix Frankfurter: You're -- you're stating your judgment against fair judgment, aren't you?
Harriet Pilpel: Well, it isn't my judgment, Mr. Justice Frankfurter. It's the judgment of the substantially unanimous medical profession, which happens to be the group that is expert in this field.
Felix Frankfurter: To which the legislators of Connecticut have not responded.
Harriet Pilpel: If the legislators were free to disregard without reason, any expert opinion in any field to which they were operating, then presumably, there would be no function for the Due Process Clause. But it is our contention in this case that all of the rational considerations, all of those cognizable in terms of public interest and welfare are in the direction of declaring these laws invalid in these cases.
Felix Frankfurter: And your -- and your legal proposition is that whenever you can present to this Court the opinion of the overwhelming view -- overwhelming opinion of the medical profession as opposed to some existing law of a State, that, in and of itself, suffices to invalidate the legislation.
Harriet Pilpel: No, Your Honor. We recognize that we have the heavy burden in this case and always the proponent of a statute being unconstitutional has the burden. But we believe when the body of experts which has special knowledge in this field, which all the States in the Federal Government has set aside as the people best able to judge the rights and wrongs in terms of physical science in these matters, have taken the position they have, when the entire -- when the state and federal government courts, etcetera, have all followed suit that we have at least regarded any assumption that the statute is constitutional because the legislature passed it. And then it then becomes the duty of the State in the words of the Bates case that Mr. Justice Stewart used and I'm read with Your Honor has often used, it becomes the duty of the State to establish that there is some rational basis for the statute. We --
Felix Frankfurter: We suppose that the only question involved here is the question of physiology.
Harriet Pilpel: We do not believe that the only question imposed here is a matter of physiology, but we do believe that where drastic, physical impediments to the point possibly of death and certainly serious disease are opposed upon people against the direct and almost unanimous consensus of medical opinion that the State must show that there is some basis on which this extremely drastic result can be justified.
Felix Frankfurter: Even if I accept the very least you've said the last two minutes, the minute and a half, it would only apply to cases where the remedy involved life and death, where the unavailability of the remedy involves life and death. Would you -- would you invalidate the statute on its face?
Harriet Pilpel: I am arguing, Your Honor, with reference to these cases and I would simply like to say that I think life and death is a narrow way of putting it, I would prefer, if Your Honor will permit, to save life and health. In other words, it would apply to cases where life and health are involved and we submit that where life and health are involved, that they are in the case of these appellants in these circumstances, that the statute is unconstitutional. Thank you, Your Honor.
Felix Frankfurter: But restricted to these cases --
Harriet Pilpel: Yes, Your Honor.
Felix Frankfurter: -- even on your purpose.
Harriet Pilpel: My argument is restricted to these cases and that's the only argument I contend with.
Charles E. Whittaker: Do you -- does your argument go so far as it would mean that a State violates due process by -- when its legislature adopts a minority view?
Harriet Pilpel: No, Your Honor, most definitely not. I -- I am making the proposition only that where there are serious deprivations of life and health imposed upon people in the medical field, where that imposition is directly contrary to the overwhelming unanimity of medical opinions, where all other factors in the ,community such as the religious and others, are also against that terrific deprivation on these patients, that there must be demonstrated something more than some general language about the police power, to permit the statute's application in those cases.
Charles E. Whittaker: Well, now, the crux of that phrase, as I understand it, is the overwhelming opinion of medical authority. Would not the State legislature have the right to differ would the overwhelming majority opinion?
Harriet Pilpel: If the state legislature differs with the overwhelming majority of the medical opinion and imposes serious deprivations of life and health on the appellant, then I think there is a serious question under the decisions of this Court as to whether, unless like Mr. Justice Stewart called a subordinating interest, something as important that could be balanced against what we have just said, unless that is demonstrated, then it seems to me that the statute is unconstitutional as to those appellants.
Earl Warren: Mr. Cannon.
Raymond J. Cannon: May it please the Court. To further extend the review of this situation, it's been pointed out the Act was passed in 1879. And since then, it has been maintained on the books and enacted by and reenacted by legislature when they have adopted various provisions of the statute since that date. When these cases first were brought to my attention, it seemed to me that the problem had been conclusively resolved by the cases of State versus Nelson decided in 1940 and Tileston versus Ullman in 1942. Both of those cases, and particularly the Nelson case, I believe, prevented or presented situations exactly as they appear here on the claims of Poe and Doe. The court -- our Supreme Court of Errors also indicated in the Nelson case the fact that, and discussed it at some length, that since 1923, there have been periodical attempts to have this law changed or modified. And that every session of the legislature which meets two years -- every two years since 1923 up to and through as pointed out in the decision in the present cases, there has been bills presented of varying types before the legislature, some requesting repeal of the statute or modification of it. There have been any number of statutes and these are indicated in the notes and the decision of the Supreme Court and contained in the record in the Poe and Ullman case in the opinion filed by the Court. Now, I guess no one can argue that the legislature doesn't have the right to enact statutes which pertain to the field of moral. In the Nelson case, the Court indicated that this did involve public morals and because of that fact, they felt that even though it might have restricted the use of contraceptives in some instances, nevertheless, if that be deemed liberty which these people were entitled to have, the legislature, nevertheless, acting for the general good, had the right to make it -- the prohibition absolute. This also has been a very controversial problem in Connecticut, but that's been indicated at all the sessions and all the hearings that had before the legislature over the period of years. I might point out that in Connecticut, the House of Representatives -- there are two from each town, they're elected territorially, two from each town having a population of 5000 or more. So, a town with 5500 people could have two representatives in the State of Connecticut, whereas the City of Hartford has 180,000 people still has two, but the Senators are elected on the population basis. Most of these bills have been turned down in the Senate of the State of Connecticut. And the problems which are here today presented have been presented to the legislature, the medical problems, the public health problems and the fact that -- and the religious problems, too. Now -- the religious beliefs. Under their briefs, as I read them, submitted, it seemed to me that they were arguing that these laws did in fact represent the minority view of the Connecticut people. Our Supreme Court said that after all these attempts, obviously, would seem to be to represent the will of the people. There are factors now present before the present session of legislature, another bill to modify this legislation, as I understand it. Justice Learned Hand, in discussing a similar case involving some -- of the One Package case, he said people's minds change in relation to these subjects or use of contraceptives. And the statute that they were discussing at that time was also -- no statute past in neighborhood of 1879. But in that case he said, "The statute now forbids the same conduct that it prohibited when originally enacted. It takes time for people to a public opinion, to jell, to get enough force behind it, to cause their changes. It is our view that most of the arguments that are presented here are sociological or physiological, that they should belong in -- in proper places before the legislature, not before this Court.
Hugo L. Black: May I ask, what is the case to which you refer by Judge Hand?
Raymond J. Cannon: It's the One Package case, I guess you -- Your Honor please. United States versus One Package, 86 F.2d 7 --
Hugo L. Black: I beg your pardon.
Raymond J. Cannon: 86 F.2d. 737.
Earl Warren: Mr. Cannon, may I ask this question please? If -- if this diagnosis of Mrs. Doe is accurate and if her life is to be endangered, unless she asks medical advice and medical -- medical treatment, do you -- do you believe that the State has sufficient interest in -- in this statute in enacting the statute to prevent her from giving that necessary medical advice?
Raymond J. Cannon: Well, I look like -- I had it like this, Mr. Chief Justice --
Earl Warren: Presuming that this -- assuming that -- that this is accurate to what they say that for her to -- to conceive again, would be exceedingly perilous to life. Now, if that is accurate, does the State have sufficient interest in the enactment of this statute to prevent her from getting necessary medical advice?
Raymond J. Cannon: It is our view, if it may please Your Honor, that it is the problem primarily for the legislature to determine what is the greater good and how to accomplish the greater good. There, perhaps, isn't a very few statutes in the police power that they do not hurt somebody at sometime or another. But there is no authority that I know of that that in and of itself is sufficient ground to hold a statute which is otherwise constitutional -- unconstitutional.
Earl Warren: And that -- that lead you to the -- to the physician that even if it was conceded by all that this lady would die if she had -- had another child that the State has -- has a right through a statute of this -- this kind and for the reasons that you assigned for it to prevent her from getting medical -- medical care knowing that she'll die.
Raymond J. Cannon: Yes, Mr. Chief Justice. That plus this other added feature, if I may. Of course, when she seeks this advice under the allegations of this complaint, she's not then and there suffering from any disease which affects her health. They alleged in their complaint that it's necessary to have, because of their marital status, continued sexual intercourse and that Dr. Buxton knows the best method whereby conception might be prevented. So at that time, when she consults Dr. Buxton, pregnancy does not enter into the picture. She has a choice then. He can advise here and probably did advise her that for you to become pregnant, will, probably, result in serious consequences. There are a number of situations, the health situations where we have resulting of those type particularly in persons with ulcers or gallbladder and doctors prevent the use of food.
Earl Warren: And that's medical -- that's medical advice that they're giving (Voice Overlap) --
Raymond J. Cannon: Medical advice.
Earl Warren: You wouldn't prevent a doctor from giving that kind of advice certainly.
Raymond J. Cannon: No, we don't prevent him either. He has the right to tell her that a future pregnancy might cause her trouble. But he can't tell her or advise her under the statute to use contraceptives or artificial contraceptives for the purpose of preventing conception. Now, while we're in the --
Potter Stewart: It's like -- it's like permitting a doctor to tell a patient that he has appendicitis, if he doesn't have it removed, he's going to die, but -- but they're not allowing the -- any -- any surgeon to remove the appendix, isn't it?
Raymond J. Cannon: Well, Mr. Justice, I don't -- this case here, she's not been at the time pregnant whereas, on the supposition, the client or the patient does have the appendicitis. That is the point in the Supreme Court or our Supreme Court indicated that, too, in discussing a phase of this. That although it might be considered a species of treatment, it's in the nature of advice because the patient then and there is not suffering from any condition which he needs this particular advice to use contraceptives. It would be a condition which might flow from the basic bill health. I would like to point out at this time also that the demurrer admits the allegations and the complaint, of course, and there -- that's on the basis of the Nelson and Tileston cases. But despite that fact, there is medical authority to the contrary of all these allegations and substantial medical authority. The fact that there's proper ways to prevent conception through the natural means which they call rhythm and -- but I do not think -- we hold that is not for this Court to conduct an investigation as to what is the proper or improper way to do it. That is the legislature's problem. So long as this Court is aware of the fact that there's two views and it's a highly controversial issue, our Supreme Court in both -- in all three cases, I believe, that it has noted it's a highly controversial issue in Connecticut and the legislature has adopted one system. The legislature is free to adopt whichever system it sees fit provided it's reasonable for the purpose at which the law is intended. Now, there's -- there's contrary medical advice to all the arguments or facts that have been presented here this afternoon. I have noted in my brief, may it please the Court, some statistics from the medical society in Connecticut. The Connecticut Medical Society has a committee to investigate all maternal deaths and they filed a five-year report. The last report which they filed covered the years 1951 through 1955. And that five-year period, there were 75 maternal deaths in Connecticut with all thousands of children that were born. They go further than that, this committee of the Medical Society in the State of Connecticut, they say out that -- out of those 75%, 65% could have been avoided, had the patient had proper medical care or had the patient had taken care of herself and followed doctor's order. Even Dr. Guttmacher, who is chairman of the medical section of the Plan Federation of America, I believe it was in August, I also mentioned this in the brief that in August of 1960, Dr. Guttmacher was featured in an article which advocated a relaxation and an extension of the abortion laws in the various States in the country. And he said there, "Because of that article," that was a quotation, in view of the advancements made by medical profession in the last 20 years, "it is now very -- very rare to require or have an abortion on a mother because of a serious heart, lung or kidney disease. It is a very, very rare situation today." The doctors and the doctors in Connecticut probably -- this statute may or may not have had something to do with it, but the fact is that when they are confronted with situations like this and they know the wishes and wants of people, that progress is made and the doctor who filed that report said that Connecticut, I think it ranked about 15 or a 5-year period in proportion to the number of deaths in the State, but they are fast, quickly in reaching irreducible minimum of maternal deaths of -- in the State of Connecticut.
Felix Frankfurter: I'm not sure I followed that argument. What is the bearing of these incidents of maternity deaths to fatalities or miserable lives not leading in -- not leading to births, I don't -- that's -- I misunderstand your argument.
Raymond J. Cannon: My argument is -- I cited that simply for the purpose of contravening some of the medical statistics were then advanced by the appellants here to show that the situation is not as grave as it might seem at first blush. And that they have, to a great extent, harbored many of the problems that are involved in pregnancy situation. So that that -- that there are two sides to the medical problem involved and it being a controversial issue, the State of Connecticut through the legislature so -- so that --
Felix Frankfurter: How do those -- how do those figures bear on the claim that potential pregnancies are a great danger to health of an undefined, but presumably, a considerable percentage of women in Connecticut?
Raymond J. Cannon: They bear indirectly, if I may please Your Honor, in this respect because I have quoted a --
Felix Frankfurter: So the few women, relatively few women are happy -- the small number of women die in -- in childbirth in Connecticut. Isn't that right?
Raymond J. Cannon: Very few, Your Honor.
Felix Frankfurter: That's all these figures show.
Raymond J. Cannon: Yes. But there must -- in those figures, there must be several many, with comparable situations such as -- set out by Poe and Doe because they were the same physical conditions portrayed in the Nelson and Tileston cases. And the medical profession years ago would say that a pregnancy would be quite dangerous to a mother suffering with serious heart, lung or kidney complications.
Felix Frankfurter: Of course, your figures might consistent with a general disregard of the prohibitory laws of Connecticut. If nobody pays any attention to these laws or if relatively few people pay attention, then the same result would be achieved, namely, no danger ensue, isn't that true?
Raymond J. Cannon: Well, I can't subscribe to that, if Your Honor please.
Felix Frankfurter: I'm not suggesting that they should violate the law. I'm suggesting that, in fact, an absence of figures showing death from the -- of the Mrs. Poe and the Mrs. Doe may indicate that other people may not be as scrupulous as apparently the Poes and the Does were.
Raymond J. Cannon: Well, I -- I would perhaps have to confess that there are people that are not probably as scrupulous as Poe and Doe or alleged to be. We find that in every field. I might point out the motor vehicle regulation, the speeding laws and things of that type are violated, but that is no reason why --
Felix Frankfurter: Well, do you -- do you challenge the claim that -- that a practical -- practically speaking, the medical profession is unanimous in thinking that this statute as the -- the true enactments of Connecticut are a standing menace to women in Connecticut? And secondly, do you challenge the statement that there is no feasible, no alternative that isn't worse than a disease but at least as equally bad in its result?
Raymond J. Cannon: I challenge both statements --
Felix Frankfurter: Challenge both of them.
Raymond J. Cannon: -- because --
Felix Frankfurter: If -- if both of them are challengeable, then you raise the -- then you deal specifically instead of at large with the question whether this is a contested problem in moral, in physiology as to which ignorant layman's judgment in the legislature has the right to make an ignorant choice. That's what people elect legislatures for, not to be ignorant, but in a democracy, they have a right to elect even ignorant people or inadequately -- scientifically inadequately informed people to be -- to sit in the seats of legislation, for legislation. Is that what you're challenging? I haven't heard any of the statistics except the one you've just given me that --
Raymond J. Cannon: I have --
Felix Frankfurter: -- the maternity death rate in Connecticut is -- is happily low.
Raymond J. Cannon: I have given these figures, Your Honor, to show that there is a controversial problem. I've given these figures to show that they were presented time after time before the legislature. Now, if the legislature made no change in the law, overall the period of these years, then it seems to be natural and one logical that won't -- we would expect that under our system of Government, sooner or later, after all these years, people would elect representatives who would represent their views.
Felix Frankfurter: That all depends whether -- whether the views -- the religious views that have been put before us are the views of the majority in the State and if they are the views of the majority in the State, presumably, the legislators reflect those views or that there's an authority and the power outside of the electoral power that coerces or influences the legislators to take a minority view because they don't want to offend that outside authoritative power.
Raymond J. Cannon: Well, I -- I -- if Your Honor please, I don't believe there's any outside power in Connecticut influencing the legislature.
Felix Frankfurter: Alright, then -- then the alternative --
Raymond J. Cannon: I think --
Felix Frankfurter: -- must be that these reflect a majority view of the people year after year, turn back legislators who don't want to change this law. That's your contention.
Raymond J. Cannon: I believe it does reflect the majority view of the legislature.
Earl Warren: Mr. Cannon (Voice Overlap) --
William J. Brennan, Jr.: Mr. Cannon, may I ask. You suggested earlier, I think, that there may be a sale in Connecticut of contraceptives without violating the statute provided the sale is for the prevention of disease. Is that fact under your position?
Raymond J. Cannon: No, Your Honor. I do not know of any situation. I don't know how that can be reconciled in view of our statutes. There are --
William J. Brennan, Jr.: Is there -- are you familiar with what Mr. Harper told us about, namely, the opinion, I think, he said in the Attorney General of Connecticut?
Raymond J. Cannon: Yes, I -- Your Honor, I -- it wasn't the opinion of the Attorney General. It was the Commissioner personal opinion of a drug and food commissioner. And when I mentioned that in the brief and when Mr. Harper received that brief, it was accompanied by a letter and said the present Commissioner does not subscribe to these views. The question was never presented -- that specific problem was never presented to our office for an opinion by -- on a sale for the prevention of disease. We have in Connecticut a statute forbidding fornication as a crime in Connecticut. Lascivious carriage is a crime. Adultery is a crime. We have a statute here that no one, the one in question, no one can use contraceptives to prevent conception. That applies to married and unmarried people. Now, anybody who buys, uses a contraceptive device --
William J. Brennan, Jr.: Or sells.
Raymond J. Cannon: -- or sells for a known currently use is an accessory to the crime of fornication or adultery whichever it might be, if it's beyond the marriage status. But if it's in the marriage or -- status, why this -- they are also included into this law. But also --
William J. Brennan, Jr.: Well then, what you're -- what you're telling me then is that the law of Connecticut is that a sale for the purpose of prevention of disease would be a violation of the statute.
Raymond J. Cannon: I think it would, Your Honor. And I know of two cases that happened several years ago. They were in the minor police courts in Connecticut. There were no appeals taken, whereof the state police picked up in ice cream marts, vending machines for selling conceptives or contraceptives and they were arrested and represented. They were in different parts of the State. And no appeals from those cases were taken and they were represented by a good counsel, we thought. And I -- I -- in view of the fact that all these acts are forbidden, it doesn't seem to me logical that one could urge that it's proper to use them for the prevention of disease. The very act in itself is forbidden, it's a crime. There's no law or decision on that matter other than the ones I just cited that I know of.
Earl Warren: Mr. -- Mr. Cannon, may I ask you this -- this question? Do you know or can you point out for us any comparable situation in law and medicine where a doctor has a patient whose life is in danger and who, according to the best opinion of the medical profession, needs medical advice and he is prohibit -- that is, it needs medical advice to protect her life and the doctor is prevented from giving?
Raymond J. Cannon: No, Your Honor, I don't think I could point out a specific case --
Earl Warren: Alright. Yes, I don't say there isn't any such situation --
Raymond J. Cannon: -- in law or menace.
Earl Warren: -- but I just don't --
Raymond J. Cannon: I do not know.
Earl Warren: -- I can't conjure up one in my own mind so I thought I would (Voice Overlap) --
William J. Brennan, Jr.: Well, Mr. Cannon, am I wrong? Aren't there some States abortion statutes, well, to make abortion a crime, which don't provide an exception that even where the abortion is performed to save lives?
Raymond J. Cannon: I do not know, Justice. I haven't explored that field. But in -- in this case here, it's -- similar statutes have been before the courts, in various courts of New Jersey, Massachusetts, New York and then on the federal statute. I do not know of any one decision which even intimates the statute controlling or regulating the use of contraceptives that has been held to be unconstitutional. Every single one of them has held they're constitutional.
Felix Frankfurter: Mr. Cannon, would you please tell me why you think that this is not a fair statement of the case before us that the State of Connecticut forbids Dr. Buxton from speaking professionally to a patient who consults him in regard to a situation which he deems critically serious for life to that patient. And it prevents him from stating that to her because in the generality of cases, their life would not be at stake, he's forbidden to tell what the State says he mustn't speak. Is that a fair statement of the case?
Raymond J. Cannon: I don't know -- I -- I wouldn't quite subscribe to it, Your Honor. I'm sorry.
Felix Frankfurter: That's why I put it to you.Suppose you modified or --
Raymond J. Cannon: Because I would say on the freedom of speech or other freedom to talk or that sort, I don't think Dr. Buxton or anyone else has the right to advise some person to avoid a law which is otherwise valid.
Felix Frankfurter: Let's begin. He is forbidden to say something which he professionally wants to communicate, is that right?
Raymond J. Cannon: That's correct.
Felix Frankfurter: Alright. Then the question comes up whether this statute bars him for making professional utterance. That's correct, too.
Raymond J. Cannon: That's -- that's correct.
Felix Frankfurter: Would you now say it is -- the State may so bar such utterance. Is that correct?
Raymond J. Cannon: I say so.
Felix Frankfurter: And I -- going to give you -- give us the reason why it may so barred in this particular case.
Raymond J. Cannon: Because the statute is all inclusive or permits no exceptions and it has been held by our Supreme Court of Connecticut on three different occasions to be constitutional and within the police power. And I don't believe that he or anyone else has the right to urge a violation of a statute which is properly within the police power. He certainly, if he will practice -- practicing, he wouldn't acquire any property rights and fees or any of that nature advising the client to disregard a statute and do what is forbidden and in the nature of a crime, I think the same would apply to the speech factor so far as the doctor is concerned.
John M. Harlan II: What you're saying in effect is that the States got a paramount interest from preventing this. It overrides the rights that Dr. Buxton has viewed that advice. That's what you're saying, aren't you?
Raymond J. Cannon: That is correct, Your Honor. I say the State has the right to solve, regulate liberty as --
John M. Harlan II: It doesn't advance to borrow money to throw it in terms of free speech. That's what you're saying.
Raymond J. Cannon: I beg your pardon?
John M. Harlan II: It doesn't advance the case to put it in terms of free speech. That's what you're saying. (Voice Overlap) --
Raymond J. Cannon: That's correct. I say free speech and liberty and property rights are in the same basis, that if it's a law, it's properly enacted to safeguard and they borrow for the community. And that's what this has been held to be several times. Then, it's a proper regulation of that freedom of liberty speech or -- or it doesn't deprive a person of property contrary to the Fourteenth --
John M. Harlan II: Were you given --
Felix Frankfurter: All the -- all offense were freedom of speech is in the hierarchy of constitutional values, doesn't it?
Raymond J. Cannon: Thank you.
Earl Warren: You may answer that in the morning. [Laughter]
Raymond J. Cannon: Thank you.