Test for an Ancient Law

Twice before, Connecticut doctors had asked the Supreme Court to void the archaic law that bans the use of contraceptives in their state. In 1943, when one doctor said the law threatened his patients' lives, the court ruled against him because he failed to prove that it violated his own constitutional rights. In 1961, the court rejected another doctor's appeal for a declaratory judgment on the grounds that he presented an insufficient "controversy." Connecticut, the court told Yale's Dr. C. Lee Buxton, had never prosecuted anyone for violating the law and appeared unlikely to do so.

But the situation promptly changed, and last week the court indicated that Buxton has a case at last. Five months after the 1961 decision, police arrested Buxton and Mrs. Estelle Griswold, executive director of Connecticut's Planned Parenthood League. Fined $100 apiece for dispensing contraceptives at a birth-control clinic in New Haven, the defendants lost their appeal in the state's highest court. Then they went back to remind the Supreme Court of Justice William O. Douglas' sharp dissent in the 1961 case. "The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion."

Enacted in 1879, the law at issue says: "Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than $50 or imprisoned not less than 60 days nor more than one year, or be both fined and imprisoned." The law is obviously ignored and flouted by thousands every day, but doctors cringe at the penalty, which applies to them through the state's accessory law that makes a criminal out of "any person who assists, abets, counsels, causes, hires or commands" another to use contraceptives.*

The birth-control statute rests on the power of every state to regulate public morals, and it has until now been stoutly supported by the Roman Catholic clergy, whose flock comprises 46% of Connecticut's population. Dr. Buxton and his colleagues argue an overriding interest: that the law threatens health and life.

Not only does the law violate the Fourth Amendment guarantee against unreasonable search and seizure, says Yale Law Professor Fowler Harper, but the fact that it does exist and can be enforced threatens the Ninth Amendment's implied right of privacy or what Harper calls "freedom from coerced marital conformity in the bedroom." Silliest of all, says Harper, the law totally fails to attain its goal of "preventing licentious relations between unmarried persons, since the forbidden contraceptive devices may be obtained in practically all drugstores in the state."

*Though 29 states regulate birth-control devices and information, only Connecticut forbids the mere use of contraceptives.

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