Caseflicks

Supreme Court of the United States • 1977

Carey v. Population Services International

431 U.S. 678 | 97 S. Ct. 2010 | 52 L. Ed. 2d 675 | 1977 U.S. LEXIS 104

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Takeaway

In short, this case held that States may not substantially restrict access to nonprescription contraceptives or completely suppress truthful contraceptive advertising without an adequate constitutional justification, and it invalidated New York's categorical restriction on distribution to minors under 16.

Background

New York Education Law § 6811(8) made it a misdemeanor to distribute any contraceptive to a person under 16, to distribute contraceptives to anyone 16 or older unless the distributor was a licensed pharmacist, or to advertise or display contraceptives. A related provision arguably allowed physicians to provide contraceptives to their patients in the course of medical practice.

Population Planning Associates (PPA), a North Carolina mail-order seller of nonmedical contraceptives, advertised in New York publications and mailed products to New York customers. State officials repeatedly told PPA that its advertising and sales violated the statute and threatened legal action. PPA and other plaintiffs, including family-planning providers and a parent, sued New York officials.

A three-judge District Court held the statute unconstitutional in its entirety as applied to nonprescription contraceptives under the First and Fourteenth Amendments and enjoined enforcement. The Supreme Court noted probable jurisdiction and affirmed.

Issues

Issue #1

Whether PPA had standing to challenge the New York contraceptive restrictions both for itself and for its prospective customers.

Holding

Yes. PPA suffered a direct injury from the statute and could also assert the rights of customers seeking access to contraceptives.

Reasoning

The challenged provisions directly regulated PPA's business. PPA had to either cease advertising and selling to New York customers, thereby losing business, or continue and risk criminal sanctions. The State's notices and threat of legal action made that injury concrete rather than speculative.

Under Craig v. Boren, vendors may challenge restrictions on their operations while acting as advocates for customers whose access to the vendor's goods is impaired. That rule was especially appropriate here because potential contraceptive purchasers might hesitate to bring their own suits precisely to avoid public exposure of private reproductive decisions.

Issue #2

Whether New York could limit the distribution of nonprescription contraceptives to licensed pharmacists.

Holding

No. As applied to nonprescription, nonhazardous contraceptives, the pharmacist-only restriction unconstitutionally burdened the protected decision whether to bear or beget a child.

Reasoning

The Fourteenth Amendment's protection of personal privacy includes independence in decisions about marriage, procreation, contraception, family relationships, and child rearing. Griswold, Eisenstadt, and Roe establish that the decision whether to bear or beget a child lies at the heart of this protected liberty.

The Court did not posit a freestanding fundamental right of access to contraceptives. Rather, access matters because substantial restrictions on obtaining contraceptives burden the underlying constitutional choice whether to prevent conception. Such a burden, like a direct prohibition, requires a compelling state interest and narrow tailoring.

Restricting sales to pharmacies made contraceptives less available, reduced the privacy of purchase, foreclosed mail-order sales, and limited price competition. These were meaningful burdens even though the law did not completely prohibit sales.

New York's asserted interests did not justify the restriction. Nonhazardous contraceptives did not implicate a substantial health interest; the record did not show that pharmacists were specially qualified to advise consumers about them or to prevent tampering; and administrative convenience in enforcing other provisions could not justify a substantial invasion of a fundamental right. The Court left open the possibility of properly supported regulations directed at genuine health or quality-control concerns.

Issue #3

Whether New York could prohibit distribution of contraceptives to persons under 16 years old, subject to the possible physician exception.

Holding

No. The Court affirmed invalidation of the under-16 distribution ban because the State did not adequately justify its burden on minors' reproductive privacy interests.

Reasoning

Part IV of Justice Brennan's opinion, joined by Justices Stewart, Marshall, and Blackmun, recognized that minors possess constitutional rights and that the privacy interest in decisions affecting procreation extends to them. States have broader authority over minors than adults, but a restriction on minors' privacy rights still must serve a significant state interest not present for adults.

The plurality reasoned that New York could not justify the prohibition as a way to discourage adolescent sexual activity. The State offered no evidence that reduced access to contraceptives would materially deter young people from having sex. The Court rejected the premise that the State could effectively make pregnancy, childbirth, or the dangers of abortion the punishment for sexual activity.

The narrow possibility that a physician could supply contraceptives did not save the law. A medical gatekeeping requirement significantly burdened access to nonprescription contraceptives without medical necessity, and it gave physicians broad discretion to impose their own moral views rather than a medically grounded judgment.

Although no single rationale for Part IV commanded a majority, the Court's judgment affirming invalidation of the under-16 ban rested on converging concerns. Justice Powell emphasized the statute's interference with parents who wished to guide their children and with married minors, while Justice Stevens concluded that a law aimed at discouraging sex by increasing the risks of pregnancy and disease was irrational and harmful.

Issue #4

Whether New York could impose a total ban on the advertising or display of contraceptives.

Holding

No. The blanket ban violated the First Amendment's protection of truthful commercial speech about lawful products and services.

Reasoning

Virginia Pharmacy Board had recently held that a State may not completely suppress truthful commercial information about lawful activity. New York's law similarly suppressed all information about the availability and price of contraceptives, including products and transactions protected from unjustified state interference.

The statute was not limited to false, deceptive, or unlawful advertising, nor was it a time, place, or manner regulation. A listener's possible offense or embarrassment at contraceptive advertising did not justify suppressing protected speech, and the advertisements in the record did not incite unlawful sexual conduct.

The Court did not decide whether a State could adopt carefully tailored time, place, or manner regulations of contraceptive advertising. It held only that New York could not impose a complete prohibition.

Concurrences

Justice White

Reasoning

Justice White joined the standing, adult-distribution, and advertising portions of the Court's opinion and agreed with the judgment on the under-16 restriction. He treated Eisenstadt and Roe as sufficient precedent for invalidating the pharmacist-only rule, but he expressly declined to endorse the broader privacy discussion in Part II.

For minors, Justice White agreed principally because New York had not shown that denying contraceptives measurably advanced its asserted goal of deterring adolescent sexual activity. He stressed that the case did not decide the validity of laws prohibiting premarital intercourse, and he rejected the proposition that a minor has a constitutional right to use contraceptives over the combined objection of parents and the State.

Justice White also agreed that the complete advertising ban was invalid, while endorsing Justice Stevens's view that the State could retain some authority to regulate the time, place, or manner of contraceptive advertising.

Justice Powell

Reasoning

Justice Powell agreed that PPA had standing and concurred in the judgment, but he rejected the plurality's broad use of strict scrutiny. In his view, Griswold and Roe required compelling justification only for direct, substantial, or heavy interferences with constitutionally protected decisions; they did not subject every regulation touching sexual activity to the most demanding review.

He also believed States have substantial latitude to regulate minors because minors often lack the maturity to make consequential decisions. New York could constitutionally encourage adolescents to seek parental advice and could impose some carefully framed regulations on contraceptive distribution to minors.

Nevertheless, this particular under-16 provision was defective because it prevented parents from supplying contraceptives to their own children and burdened married girls between 14 and 16, even though New York permitted their marriages and the marital sexual relationship. Those defects could not simply be severed without creating a program materially different from the one the legislature enacted.

Justice Powell agreed that the pharmacist-only rule could not stand because its principal asserted purpose was to help enforce the invalid restriction on younger minors, and because its prohibition of mail-order distribution substantially invaded adults' privacy. He agreed that the total advertising ban was unconstitutional but would permit carefully tailored restrictions aimed at the impact of commercial advertising on young people.

Justice Stevens

Reasoning

Justice Stevens joined the Court's standing, privacy, adult-distribution, and advertising analysis, but not its reasoning on minors. He did not regard the abortion cases as dispositive: an already pregnant minor faces a choice between childbirth and abortion, whereas a nonpregnant minor may avoid pregnancy by abstaining from sex.

He accepted that New York had an important interest in discouraging sexual activity by unmarried minors and rejected any suggestion that minors have an unrestricted constitutional right to use contraceptives despite both parental and state objection. He also agreed with Justice Powell that the statute was defective as applied to parents distributing contraceptives to their children and to married minors.

For Justice Stevens, the statute was independently invalid because it attempted to convey the State's disapproval of adolescent sex by increasing the risks of unwanted pregnancy and venereal disease. Because many minors would engage in sexual activity regardless of the prohibition, withholding contraceptives inflicted avoidable harm rather than rationally protecting minors' welfare.

Justice Stevens agreed that New York could not ban all contraceptive advertising merely because some viewers might find it offensive. But he emphasized that First Amendment protection for commercial speech does not make it wholly immune from carefully tailored time, place, or manner restrictions designed to reduce offensiveness.

Dissents

Chief Justice Burger

Reasoning

Chief Justice Burger dissented without a separate written opinion. The reported decision therefore supplies no independent explanation of his reasoning.

Justice Rehnquist

Reasoning

Justice Rehnquist would have reversed. He regarded the Court's result as an unjustified extension of privacy and commercial-speech precedents to protect commercial sellers who wished to market contraceptives to unmarried minors, including through advertising and displays.

In his view, New York was pursuing a traditional and legitimate police-power objective: discouraging promiscuous sexual intercourse among unmarried persons under 16. The Court improperly prevented the State's elected legislature from implementing its moral judgment after public debate, even though the Court did not deny that the subject was one in which the State could properly take an interest.

Justice Rehnquist also objected to the Court's suggestion that the constitutional status of private consensual sexual conduct among adults remained unresolved. He believed prior decisions had definitively sustained the facial validity of criminal statutes prohibiting certain consensual sexual acts.