Joseph R. Nolan, Special Assistant Attorney General of Massachusetts, argued the cause for appellant. With him on the brief were Robert H. Quinn, Attorney General, John J. Irwin, Jr., and Ruth I. Abrams, Assistant Attorneys General, and Garrett H. Byrne.
Joseph D. Tydings argued the cause for appellee. With him on the briefs was Joseph J. Balliro.
Briefs of amici curiae urging affirmance were filed by Harriet F. Pilpel and Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.; by Roger P. Stokey for the Planned Parenthood League of Massachusetts; by Melvin L. Wulf for the American Civil Liberties Union et al.; and by Sylvia S. Ellison for Human Rights for Women, Inc.
Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician's prescription. The District Court dismissed appellee's petition for a writ of habeas corpus. The Court of Appeals vacated the dismissal, holding that the statute is a prohibition on contraception per se and conflicts "with fundamental human rights" under Griswold v. Connecticut, 381 U.S. 479. Appellant, inter alia, argues that appellee lacks standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under the statute nor a single person unable to obtain contraceptives. Held:
1. If, as the Court of Appeals held, the statute under which appellee was convicted is not a health measure, appellee may not be prevented, because he was not an authorized distributor, from attacking the statute in its alleged discriminatory application to potential distributees. Appellee, furthermore, has standing to assert the rights of unmarried persons denied access to contraceptives because their ability to obtain them will be materially impaired by enforcement of the statute. Cf. Griswold, supra; Barrows v. Jackson, 346 U.S. 249. Pp. 443-446.
2. By providing dissimilar treatment for married and unmarried persons who are similarly situated, the statute violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 446-455.
(a) The deterrence of fornication, a 90-day misdemeanor under Massachusetts law, cannot reasonably be regarded as the purpose of the statute, since the statute is riddled with exceptions making contraceptives freely available for use in premarital sexual relations and its scope and penalty structure are inconsistent with that purpose. Pp. 447-450.
(b) Similarly, the protection of public health through the regulation of the distribution of potentially harmful articles cannot reasonably be regarded as the purpose of the law, since, if health were the rationale, the statute would be both discriminatory and overbroad, and federal and state laws already regulate the distribution of drugs unsafe for use except under the supervision of a licensed physician. Pp. 450-452.
(c) Nor can the statute be sustained simply as a prohibition on contraception per se, for whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. If under Griswold, supra, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible, since the constitutionally protected right of privacy inheres in the individual, not the marital couple. If, on the other hand, Griswold is no bar to a prohibition on the distribution of contraceptives, a prohibition limited to unmarried persons would be underinclusive and invidiously discriminatory. Pp. 452-455.
429 F.2d 1398, affirmed.
Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, and Marshall, JJ., joined. Douglas, J., filed a concurring opinion. White, J., filed an opinion concurring in the result, in which Blackmun, J., joined. Burger, C. J., filed a dissenting opinion. Powell and Rehnquist, JJ., took no part in the consideration or decision of the case.