Decision: Tileston v. Ullman (1943), Poe v. Ullman (1961)
Contraception, Sexuality, and Privacy
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Should people be allowed access to drugs or devices designed to stop contraception, and thus be able to engage in sex without having to worry as much about pregnancy? There have been many laws in the United States which prohibited the manufacture, distribution, transportation, or advertisement of such drugs and devices. Those laws were challenged and the most successful line or argument stated that such laws interfered with a sphere of privacy which belonged to the individual.
Background Information
Connecticut prohibited the use of drugs or instruments to prevent conception, and the giving of assistance or counsel in their use. The statutes in question had been enacted in 1879 (and originally written by P.T. Barnum, of circus fame), but no one ever had been prosecuted with them except two doctors and a nurse, who were charged with operating a birth-control clinic. However, "the information against them had been dismissed after the State Supreme Court had sustained the legislation in 1940 on an appeal from a demurrer to the information."
In Tileston v. Ullman, a physician challeged the law, claiming that it would prevent him from giving professional advice concerning the use of contraceptives to three patients whose condition of health was such that their lives would be endangered by childbearing.
In Poe v. Ullman, two married women needed medical advice on the use of contraceptive devices for the protection of their health, but a physician was deterred from giving such advice because the State's Attorney would prosecute him.
Court Decision
Unfortunately, the plaintiffs here had not been charged with any crimes under the law, therefore the Court held:
Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations are merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims.
Since no one had been charged with anything and no one could demonstrate any damage from the law, the Court refused to rule on it. In his dissent in Poe v. Ullman, Justice Harlan wrote that
I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life ...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 extra-marital 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.
This dissent would play a role later on in Griswold v. Connecticut, and Harlan would refer to it in his concurring opinion in that case.
Significance
Ironically, at the precise time that the justices were debating the Poe case and deciding that it should be dismissed because there was no immediate threat that anyone would be prosecuted under the law in question, Thomas Coccomo was arrested and fined for breaking that law. A travelling salesman, he furninshed condoms wholesale to gas station owners. When someone complained, the merchandise was seized and destroyed and he was fined $75.
Rather than depolore the Poe decision, the plaintiffs stated that they "welcomed the recognition by the Court that the law has in fact become a nullity." They proceeded to move forward to set up clinics for dispensing birth control. Either they would we allowed to continue, or they would be arrested - thus providing a stronger basis for challenging the laws. This is exactly what happened.
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