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Mr. Justice WHITE, concurring in the judgment.
Griswald v. Connecticut
Court Cases
Index
Court's Opinion, Justice Douglas
Justice White's concurring opinion
Justice Harlan's concurring opinion
Justice Goldberg's concurring opinion
Justice Black's dissenting opinion
Justice Stewart's dissenting opinion
In my view this Connecticut law as applied to
married couples deprives them of 'liberty' without due process of law, as that concept is
used in the Fourteenth Amendment. I therefore concur in the judgment of the Court
reversing these convictions under Connecticut's aiding and abetting statute.
It would be unduly repetitious, and
belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed
by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of
this liberty. Suffice it to say that this is not the first time this Court has had
occasion to articulate that the liberty entitled to protection under the Fourteenth
Amendment includes the right 'to marry, establish a home and bring up children,' Meyer v.
State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed.2d 1042 and 'the liberty
. . . to direct the upbringing and education of children,' Pierce v. Society of Sisters,
268 U.S. 510, 534- 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070, and that these are among 'the
basic civil rights of man.' Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct.
1110, 1113, 86 L.Ed. 1655. These decisions affirm that there is a 'realm of family life
which the state cannot enter' without substantial justification. Prince v. Com. of
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645. Surely the right
invoked in this case, to be free of regulation of the intimacies of *503 the
marriage relationship, 'come(s) to this Court with a momentum for respect lacking when
appeal is made to liberties which derive merely from shifting economic arrangements.'
Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (opinion of
Frankfurter, J.).
The Connecticut anti-contraceptive statute
deals rather substantially with this relationship. For it forbids all married persons the
right to use birth-control devices, regardless of whether their use is dictated by
considerations of family planning, Trubek v. Ullman, 147 Conn. 633, 165 A.2d 158, health,
or indeed even of life itself. Buxton v. Ullman, 147 Conn. 48, 156 A.2d 508. The anti-use
statute, together with the general aiding and abetting statute, prohibits doctors from
affording advice to married persons on proper and effective methods of birth control.
Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582. And the clear effect of these statutes, as
enforced, is to deny disadvantaged citizens of Connecticut, those without either adequate
knowledge or resources to obtain private counseling, access to medical assistance and
up-to-date information in respect to proper methods of birth control. State v. Nelson, 126
Conn. 412, 11 A.2d 856; State v. Griswold, 151 Conn. 544, 200 A.2d 479. In my view, a
statute with these effects bears a substantial burden of justification when attacked under
the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220;
Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110; Schware v. Board of Bar
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; McLaughlin v. Florida, 379 U.S. 184,
192, 85 S.Ct. 283, 288.
An examination of the justification offered,
however, cannot be avoided by saying that the Connecticut anti-use statute invades a
protected area of privacy and association or that it demands the marriage relationship.
The nature of the right invaded is pertinent, to be sure, for statutes regulating
sensitive areas of liberty do, under *504 the cases of this Court, require 'strict
scrutiny,' Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, and 'must be
viewed in the light of less drastic means for achieving the same basic purpose.' Shelton
v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. 'Where there is a
significant encroachment upon personal liberty, the State may prevail only upon showing a
subordinating interest which is compelling.' Bates v. City of Little Rock, 361 U.S. 516,
524, 80 S.Ct. 412, 417. See also McLaughlin v. State of Florida, 379 U.S. 184, 85
S.Ct. 283. But such statutes, if reasonably necessary for the effectuation of a legitimate
and substantial state interest, and not arbitrary or capricious in application, are not
invalid under the Due Process Clause. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271.*
* Dissenting opinions assert that the liberty
guaranteed by the Due Process Clause is limited to a guarantee against unduly vague
statutes and against procedural unfairness at trial. Under this view the Court is without
authority to ascertain whether a challenged statute, or its application, has a permissible
purpose and whether the manner of regulation bears a rational or justifying relationship
to this purpose. A long line of cases makes very clear that this has not been the view of
this Court. Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623;
Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Douglas v.
Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Meyer v. State of Nebraska, 262 U.S. 390,
43 S.Ct. 625; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571; Schware v. Board
of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752; Aptheker v. Secretary of State, 378 U.S.
500, 84 S.Ct. 1659; Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271.
The traditional due process test was well
articulated, and applied, in Schware v. Board of Bar Examiners, supra, a case which
placed no reliance on the specific guarantees of the Bill of Rights.
'A State cannot exclude a person from the
practice of law or from any other occupation in a manner or for reasons that contravene
the Due Process or Equal Protection Clause of the Fourteenth Amendment. Dent v. State of
West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Slochower v. Board of Higher
Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v. Updegraff, 344 U.S. 183,
73 S.Ct. 215, 97 L.Ed. 216. And see Ex parte Secombe, 19 How. 9, 13, 15 L.Ed. 565. A State
can require high standards of qualification, such as good moral character or proficiency
in its law, before it admits an applicant to the bar, but any qualification must have a
rational connection with the applicant's fitness or capacity to practice law. Douglas v.
Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Cummings v. State of Missouri, 4 Wall.
277, 319-320, 18 L.Ed. 356. Cf. Nebbia v. People of State of New York, 291 U.S. 502, 54
S.Ct. 505, 78 L.Ed. 940. Obviously an applicant could not be excluded merely because he
was a Republican or a Negro or a member of a particular church. Even in applying
permissible standards, officers of a State cannot exclude an applicant when there is no
basis for their finding that he fails to meet these standards, or when their action is
invidiously discriminatory.' 353 U.S., at 238-239, 77 S.Ct. at 756. Cf. Martin v. Walton,
368 U.S. 25, 26, 82 S.Ct. 1, 2, 7 L.Ed.2d 5 (Douglas, J., dissenting).
*505 As I read the opinions of the
Connecticut courts and the argument of Connecticut in this Court, the State claims but one
justification for its anti-use statute. Cf. Allied Stores of Ohio v. Bowers, 358 U.S. 522,
530, 79 S.Ct. 437, 442, 3 L.Ed.2d 480; Martin v. Walton, 368 U.S. 25, 28, 82 S.Ct. 1, 3, 7
L.Ed.2d 5 (Douglas, J., dissenting). There is no serious contention that Connecticut
thinks the use of artificial or external methods of contraception immoral or unwise in
itself, or that the anti-use statute is founded upon any policy of promoting population
expansion. Rather, the statute is said to serve the State's policy against all forms of
promiscuous or illicit sexual relationships, be they premarital or extramarital,
concededly a permissible and legitimate legislative goal.
Without taking issue with the premise that
the fear of conception operates as a deterrent to such relationships in addition to the
criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the
ban on the use of contraceptives by married couples in any way reinforces the State's ban
on illicit sexual relationships. See Schware v. Board of Bar Examiners, 353 U.S. 232, 239,
77 S.Ct. 752, 756. Connecticut does not bar the importation or possession of contraceptive
devices; they are not considered contraband material under state law, State v. Certain
Contraceptive Materials, 126 Conn. 428, 11 A.2d 863, and their availability in that State
is not seriously disputed. The only way Connecticut seeks to limit or control the
availability of such devices is through its general aiding and abetting statute whose
operation in this context has *506 been quite obviously ineffective and whose most
serious use has been against birth-control clinics rendering advice to married, rather
than unmarried, persons. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064. Indeed, after
over 80 years of the State's proscription of use, the legality of the sale of such devices
to prevent disease has never been expressly passed upon, although it appears that sales
have long occurred and have only infrequently been challenged. This 'undeviating policy .
. . throughout all the long years . . . bespeaks more than prosecutorial paralysis.' Poe
v. Ullman, 367 U.S. 497, 502, 81 S.Ct. 1752, 1755. Moreover, it would appear that the sale
of contraceptives to prevent disease is plainly legal under Connecticut law.
In these circumstances one is rather hard
pressed to explain how the ban on use by married persons in any way prevents use of such
devices by persons engaging in illicit sexual relations and thereby contributes to the
State's policy against such relationships. Neither the state courts nor the State before
the bar of this Court has tendered such an explanation. It is purely fanciful to believe
that the broad proscription on use facilitates discovery of use by persons engaging in a
prohibited relationship or for some other reason makes such use more unlikely and thus can
be supported by any sort of administrative consideration. Perhaps the theory is that the
flat ban on use prevents married people from possessing contraceptives and without the
ready availability of such devices for use in the marital relationship, there will be no
or less temptation to use them in extramarital ones. This reasoning rests on the premise
that married people will comply with the ban in regard to their marital relationship,
notwithstanding total nonenforcement in this context and apparent nonenforcibility, but
will not comply with criminal statutes prohibiting extramarital affairs and the anti-use
statute in respect to illicit sexual relationships, a premise whose validity has not been
*507 demonstrated and whose intrinsic validity is not very evident. At most the broad
ban is of marginal utility to the declared objective. A statute limiting its prohibition
on use to persons engaging in the prohibited relationship would serve the end posited by
Connecticut in the same way, and with the same effectiveness, or ineffectiveness, as the
broad anti-use statute under attack in this case. I find nothing in this record justifying
the sweeping scope of this statute, with its telling effect on the freedoms of married
persons, and therefore conclude that it deprives such persons of liberty without due
process of law.
Griswald v. Connecticut
Court Cases
Index
Court's Opinion, Justice Douglas
Justice White's concurring opinion
Justice Harlan's concurring opinion
Justice Goldberg's concurring opinion
Justice Black's dissenting opinion
Justice Stewart's dissenting opinion
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