In June 1977, the U.S. Supreme Court declared a law that regulated the sale and advertising of contraceptives unconstitutional. In this noteworthy opinion, the Court addressed the constitutional protection afforded to decisions related to childbearing.
At issue in this case was a New York statute that made all of the following activities a crime:
For any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years
For anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or older
For anyone, including licensed pharmacists, to advertise or display contraceptives
A corporation that sold non-medical contraceptive devices challenged the constitutionality of the statute. On appeal, the issue was ultimately resolved by the U.S. Supreme Court.
Fundamental Right of Privacy
The U.S. Supreme Court has interpreted the Constitution to contain protections for certain fundamental rights. Various privacy rights, including, for example, decisions related to marriage, sexual relations, abortion and childrearing, are fundamental rights. In this case, the Court reiterated that “[t]he decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices.”
Applicable Standard: Strict Scrutiny
In general, when the Court addresses governmental action (e.g., a statute or a regulation) that potentially conflicts with a fundamental right, the Court will evaluate the law with “strict scrutiny.” This terminology refers to the standard of review the Court employs to analyze the particular government action at issue. Basically, governmental action that affects a fundamental right will be upheld only if it is necessary to protect a compelling interest. Here, because the New York statute impinged upon a fundamental right (“whether to bear or beget a child”), it could be justified only by a compelling state interest.
Prohibition of Distribution to Adults
The Court first addressed the constitutionality of the provision that prohibited the distribution of non-medical contraceptives to adults except through licensed pharmacists. It found that access to contraceptives was essential for an individual to exercise her fundamental right to decide matters of childbearing. By limiting the distribution of non-prescription contraceptives to licensed pharmacists, the Court found that the statute “clearly imposed a significant burden on the right of the individuals to use contraceptives if they choose to do so.” Ultimately, the Court found no compelling state interest to justify this burden, and struck this provision of the statute down as unconstitutional.
Prohibition of the Distribution of Contraceptives to Those Under 16 Years of Age
Next, the Court addressed the blanket prohibition of distribution of contraceptives to those under 16. The Court cited earlier cases where it had determined that a state may not wholly prohibit, nor require parental consent for, the termination of a minor’s pregnancy.
Since these earlier decisions prohibited a state from interfering with a minor’s right to an abortion (with minor exceptions), the court reasoned that interference with the distribution of contraceptives to minors was clearly encompassed by the earlier decisions’ prohibitions. As a consequence, the Court declared this provision unconstitutional as well.
Prohibition of Advertisement or Display of Contraceptives
Finally, relying on an earlier case dealing with a similar statute, the Court held that the prohibition of any “advertisement or display” of contraceptives was unconstitutional. In the previous case, the Court had declared a statute that completely suppressed any information about the price and availability of contraceptives unconstitutional.
Here, the Court stated that the advertisements at issue “merely state the availability of products and services that are not only entirely legal, but constitutionally protected.” Further, in cases that do not deal with obscenity, the Court has “consistently held that the fact that protected speech may be offensive to some does not justify its suppression.”