Poe v. Ullman

The examples and perspective in this article **may not include all significant viewpoints **. Please improve the article or discuss the issue . (June 2020) (Learn how and when to remove this message )

Poe v. Ullman, 367 U.S. 497 (1961), was a United States Supreme Court case declining to exercise pre-enforcement judicial review of a Connecticut law banning the use of contraceptives and preventing doctors from recommending them. The lawsuit was deemed unripe because after the challenged law's 1879 enactment, it had only been cited in a single 1940 prosecution, and drug stores openly sold contraceptives. Five years later, Planned Parenthood League of Connecticut Executive Director Estelle Griswold appealed her conviction under this law, securing its overturning in Griswold v. Connecticut .

English Wikisource has original text related to this article:

**Poe v. Ullman **

Contents

• 1 Procedural history

• 2 Harlan's dissent

• 3 Douglas's dissent

• 4 Impact

• 5 See also

• 6 References

• 7 Further reading

• 8 External links

Procedural history

(https://en.wikipedia.org/w/index.php?title=Poe_v._Ullman&action=edit&section=1 "Edit section: Procedural history")

Plaintiffs appealed from the Connecticut Supreme Court of Errors (Buxton v. Ullman, 147 Conn. 48) which upheld that the use of contraceptive devices was prohibited and that, furthermore, doctors could not provide medical advice in the use of contraceptive devices, even for married couples, and even if pregnancy could constitute a serious threat to the health or life of the female spouse. A doctor and patients sought review of the law under Fourteenth Amendment concerns, by suing the State's Attorney. The trial court held that the state legislature had authority to pass the law (Conn. Gen. Stat. §§53-23 and 54-196) under its state police power to affect the public health, safety, morals, or welfare. The trial court cited its responsibility to obey the legislature's will and not weaken its legislative powers.

Harlan's dissent

(https://en.wikipedia.org/w/index.php?title=Poe_v._Ullman&action=edit&section=2 "Edit section: Harlan's dissent")

Justice Harlan dissented and, reaching the merits, took a broad view of the "liberty" protected by the Fourteenth Amendment 's Due Process Clause to include not merely state violations of one of the first eight amendments which had been held to be "incorporated" in the Fourteenth, but against any law which imposed on "liberty" unjustifiably. Harlan described the "liberty" protected by that clause as "a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

Justice Harlan summarizes his view of the scope and content of substantive due process protection is this passage:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. ... The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

Justice Harlan also noted that laws regulating homosexuality, fornication, and adultery could be permitted under this analysis:

Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, [367 U.S. 497, 546] but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420 . Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extramarital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.

Douglas's dissent

(https://en.wikipedia.org/w/index.php?title=Poe_v._Ullman&action=edit&section=3 "Edit section: Douglas's dissent")

Justice Douglas's general view that the Bill of Rights' guarantees, broadly construed, overlapped to produce social spheres and Associations insulated from government interference separate from the core political purposes of the Bill of Rights became the majority opinion in Griswold v. Connecticut.

Douglas addressed the First Amendment rights of doctors.

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. The leading cases on freedom of expression are generally framed with reference to public debate and discourse. But, as Chafee said, "the First Amendment and other parts of the law erect a fence inside which men can talk. The lawmakers, legislators, and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law." The Blessings of Liberty (1956), p. 108. The teacher (Sweezy v. New Hampshire, 354 U. S. 234) as well as the public speaker (Thomas v. Collins, 323 U. S. 516) is included. The actor on stage or screen, the artist whose creation is in oil or clay or marble, the poet whose reading public may be practically nonexistent, the musician and his musical scores, the counselor whether priest, parent or teacher no matter how small his audience -- these too are beneficiaries of freedom of expression. The remark by President James A. Garfield that his ideal of a college was a log in the woods with a student at one end and Mark Hopkins at another (9 Dict.Am.Biog., p. 216) puts the present problem in proper First Amendment dimensions. Of course a physician can talk freely and fully with his patient without threat of retaliation by the State. The contrary thought -- the one endorsed sub silentio by the courts below -- has the cast of regimentation about it, a cast at war with the philosophy and presuppositions of this free society.

Douglas next addressed the rights of married couples, contending that the Connecticut's Law barring the use of contraceptives would be impossible to enforce without violating the First, Third, Fourth, or Fifth Amendments.

The regulation, as applied in this case, touches the relationship between man and wife. It reaches into the intimacies of the marriage relationship. If we imagine a regime of full enforcement of the law in the manner of an Anthony Comstock , we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on. It is said that this is not that case. And so it is not. But when the State makes "use" a crime, and applies the criminal sanction to man and wife, the State has entered the innermost sanctum of the home. If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wife.

That is an invasion of the privacy that is implicit in a free society. A noted theologian who conceives of the use of a contraceptive as a "sin" nonetheless admits that a "use" statute such as this enters a forbidden domain. ". . . the Connecticut statute confuses the moral and legal, in that it transposes without further ado a private sin into a public crime. The criminal act here is the private use of contraceptives. The real area where the coercions of law might, and ought to, be applied, at least to control an evil -- namely, the contraceptive industry -- is quite overlooked. As it stands, the statute is, of course, unenforceable wi

…