Carey v. Population Services International

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1977 United States Supreme Court case

Carey v. Population Services International, 431 U.S. 678 (1977), is a landmark decision of the U.S. Supreme Court in which the Court held that it was unconstitutional to prohibit anyone other than a licensed pharmacist to distribute nonprescription contraceptives to persons 16 years of age or over, to prohibit the distribution of nonprescription contraceptives by any adult to minors under 16 years of age, and to prohibit anyone, including licensed pharmacists, to advertise or display contraceptives.

The Court held that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution does not allow a state to intrude on an individual's decisions on matters of procreation which is protected as privacy rights .

Background

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The appellants were New York state officials whose job was to enforce the revisions of the Education Law, including then-governor Hugh Carey . The Education Law stated that it was a crime:

a) for any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years

b) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over

c) for anyone, including licensed pharmacists, to advertise or display contraceptives

The main appellee was Population Services International , a nonprofit corporation that spread birth control knowledge and services. Population Services International owned the North Carolina corporation Population Planning Associates, Inc. This corporation sold and advertised contraceptives to New York primarily through mail-order retail sale of nonmedical contraceptive devices from their offices in North Carolina which was a violation of the enforced Education Laws in New York at the time. Other appellees were:

a) Rev. James B. Hagen who was a minister and director of a venereal disease prevention program that gave out nonprescription contraceptive devices.

b) Physicians who specialized in family planning , pediatrics , and obstetrics-gynecology.

c) An adult resident of New York held that the current law hindered his ability to access nonprescription contraceptive devices and information and his freedom to distribute them to his minor children. The appellees challenged the constitutionality of NY CLS Educ § 6811. The District Court assented with the appellees and declared the law unconstitutional in respect to where it applied to nonprescription contraceptives and ordered it to be rephrased.

Holding

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The Supreme Court held that the advertising restrictions violated the First Amendment.

The Court further held that:

a) the prohibitions on the distribution of nonprescription contraceptives violated the Due Process Clause of Amendment XIV .

b) minors were entitled to the same constitutional protections as adults.

c) each state has somewhat broader authority to regulate the activities of children than of adults.

d) the protection of the right of privacy included the right of an individual, married or single, to be free of unwarranted governmental intrusion in the area of personal decisions regarding intimate relations.

Majority opinion

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In the Court vote, there were 7 votes for Population Services International and 2 votes against. Justice William Brennan delivered the majority opinion of the court in five parts in which it affirmed the determination by a three-judge District Court for the Southern District of New York . Only three other justices (Stewart, Marshall and Blackmun) joined his opinion in full, and the reasoning in Part IV of his opinion did not command a majority of the Court. The Court declared the New York Educ. Law § 6811(8)unconstitutional in its entirety under Amendment I and Amendment XIV where it applies to nonprescription contraceptives.

The majority concluded that:

Part I

Appellee Population Planning Associates, Inc. (PPA) has standing to challenge the Education Law in not only its own right, but also on behalf of its potential customers which was settled by Craig v. Boren, 429 U.S. 190 (1976). Craig held that PPA is among the vendors who have been permitted to resist efforts at restricting their operations by acting as advocates for the right of third parties who seek access to their market or function.

Part II

Regulations imposing a burden on a decision as fundamental as whether to bear or beget a child may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.

Part III

The provision prohibiting distribution of nonprescription contraceptives to persons sixteen years or over except through licensed pharmacists clearly burdens the right of such individuals to use nonprescription contraceptives if they so desire. Moreover, the provision serves no convincing state interests. It cannot be justified by an interest in protecting health insofar as it applies to nonhazardous contraceptives or in protecting potential life. Nor can it be justified by a concern that young people not sell contraceptives. It cannot be categorized to serve as a quality control device or as enabling enforcement of the other provisions of the Education Law.

Part V

The prohibition of any advertisement or display of any contraceptives that seeks to suppress completely any information about the availability and price of contraceptives cannot be justified on the ground that advertisements of contraceptive products would offend and embarrass those exposed to them and that permitting them would legitimize sexual activity of young people. These are not justifications validating suppression of expression, which are protected by Amendment I . The advertisements in question simply state the availability of products that are not only entirely legal, but also constitutionally protected.

Plurality and concurring opinions

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Part IV of Justice Brennan's opinion was a plurality opinion for four of the Justices, not joined by Justice Stevens .

Part IV

The right to privacy, which is protected by the Due Process Clause in Amendment XIV , in connection with decisions affecting procreation extends to minors as well as to adults, and since a state may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of nonprescription contraceptives to minors is obviously illegal. Also, the argument that limiting exposure to advertisements of contraceptive products may discourage sexual activity has been rejected by the Court as a justification for restrictions on the freedom to choose whether to bear or beget a child.

Justices White, Powell and Stevens filed opinions concurring in parts of the Court's opinion and in the judgment.

Dissenting opinion

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Justice Rehnquist , who was one of the two Justices to vote against the appellees, filed a brief dissenting opinion in the case. He said the following:

a) no religious beliefs, compelled allegiance to a secular creed or a married couple's decision to procreate was considered in this court case.

b) New York ’s purpose of the Education Laws was to discourage minors under the age of sixteen from having premarital sexual intercourse with each other.

c) Women are given the right to choose to get an [abortion](https://en.wikipedia.o

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