Peterson v. Widule

147 N.W. 966, 157 Wis. 641, 1914 Wisc. LEXIS 261

• Court: Wisconsin Supreme Court
• Decided: June 17, 1914
• Status: Published

Opinions

Winslow, O. J.

The ease presents simply the question whether the so-ealled eugenics law is constitutional. It was held unconstitutional by the trial court because (1) it is an unreasonable restriction upon the inalienable right of marriage; (2) it impairs the inherent right to enjoy life, liberty, and the pursuit of happiness; (3) it interferes with religious freedom.

Before taking up for discussion the specific objections to the law, some general, fundamental propositions, which are not open to question, may profitably be stated.

The power of the state to control and regulate by reasonable laws the marriage relation, and to prevent the contracting of marriage by persons afflicted with loathsome or hereditary diseases, which are liable either to be transmitted to the spouse or inherited by the offspring, or both, must on principle be regarded as undeniable. To state this proposition is to establish it. Society has a right to protect itself from extinction and its members from a fate worse than death. If authority be needed to support this proposition, reference may be made to Ereund on Police Power, § 124, and cases there cited.

When the legislature passes a constitutional law, that law establishes public policy upon the subjects covered by it, and that policy is not open to question by the courts.

The courts must sustain a law unless its unconstitutionality be beyond reasonable doubt. If the law be ambiguous or open to two constructions, that construction which will save it from condemnation and accomplish the legislative purpose is always to be adopted in preference to a construction which makes it unconstitutional.

Neither the legislative idea nor the legislative purpose in the passage of the present law can be a matter of serious doubt. The idea plainly was that the transmission of the so-called venereal diseases by newly married men to their innocent wives was a tremendous evil, and the purpose just as plainly was to remedy that evil so far as possible by preventing tbe marriage of men wbo upon examination were found to possess snob diseases.

An argument is made tbat tbe law is void because tbe classification is unreasonable, arbitrary, and discriminatory, in tbat it singles out men about to marry and mates a class of them, there being, as it is argued, no substantial differences wbicb suggest tbe propriety of different legislative treatment between men wbo are about to marry and women wbo are about to marry. Theoretically tbe argument is strong. Women wbo marry and transmit a loathsome disease to their husbands do just as much barm as men wbo transmit such a disease to their wives. If women were in fact doing this thing as frequently or anywhere nearly as frequently as men tbe argument could hardly be met. Tbe medical evidence in tbe case, however, corroborates what we suppose to be common knowledge, namely, tbat tbe great majority of women wbo marry are pure, while a considerable percentage of men have bad illicit sexual relations before marriage, and consequently tbat tbe number of cases where newly married men transmit a venereal disease to their wives is vastly greater than tbe number of cases where women transmit tbe disease to their newly married husbands. Classification is not to be condemned _ because there may be occasional instances in wbicb it does not fit tbe situation; it is proper if tbe great mass of situations to wbicb tbe law applies justify tbe formation of a class and tbe application of some special or different legislative provisions to. tbat class. Classification can rarely be mathematically exact. Tbe question is not whether in some individual instance there is any perceptible ■ distinction, but “whether there are characteristics wbicb in a greater degree persist through tbe one class than in tbe other,” and wbicb justify tbe different treatment. State v. Evans, 130 Wis. 381, 110 N. W. 241. Tbat there are such characteristics in tbe class of unmarried men is as certainly true as it is discreditable to tbe male sex.

It follows that legislation directed against males alone for tbe purpose of preventing the transmission of venereal diseases is clearly within the police power and just as clearly is not discriminatory. The only question to be considered is whether the law which attempts to accomplish the purpose is xmreasonable or unduly invades constitutional rights in its methods of enforcement.

In considering this question it will- be profitable in the beginning to determine what diseases the law covers. It will be noticed that the first subsection requires the prospective husband, within fifteen days previous to his application for license to marry, to be examined as to the existence in him of "any venereal disease.” The law then makes it unlawful for the county clerk to issue a marriage license to such person if he fails to present a certificate setting forth that he is free from “acquired venereal diseases,” and then prescribes the form of such certificate, which form contains the statement that the applicant is free from “all venereal diseases.”

This seems quite confusing. According to the medical testimony and the dictionaries, there are three separate diseases (which, however, may coexist) generally known as “venereal diseases,” viz. gonorrhea, chancroid (or local contagious ulcers), and syphilis. While some of the physicians say that syphilis is not a venereal disease in the scientific sense, especially when it is inherited or affects parts of the body other than the sexual organs, it. seems to be quite well agreed that it is a venereal disease in. the generally accepted use of that term, and hence is included within the provisions of the law in question. There is a distinct form of syphilis, however, termed inherited, which’ is or may be present in the children of syphilitic parents, and so it is true that there are in fact two well recognized forms of syphilis, i. e. the acquired and the inherited, the acquired being understood in medicine as that form which “is obtained otherwise than by inheritance or during the process of birth.” This distinction throws considerable light on the meaning of the law. The word “acquired” has, it seems, a meaning in medical science. Possibly it is not a technical word within the meaning of sub. 1 of sec. 4971, Stats., but certainly when it is deliberately used in a statute which deals with medical subjects it would seem that it must carry its accepted meaning in medical science. This conclusion becomes more satisfactory when the history of the law is examined. As first introduced in the senate (Bill No. 611 S.) it did not contain the word “acquired,” but provided that the applicant must obtain and present to the county clerk a certificate that he is free from venereal diseases. In substance the first section then provided that an applicant for a marriage license must first be examined as to the existence or nonexistence of any venereal disease, obtain a certificate that such person is free from “venereal diseases as near as,” etc., and that the form of the certificate must contain the words “free from all venereal diseases so nearly as can be determined.” The bill received several amendments in the senate, among which was an amendment inserting the word “acquired.” It would be idle to argue that this amendment was unimportant or immaterial. It must have had a serious and definite purpose. It unquestionably meant to eliminate from the operation of the act all forms of venereal diseases which were inherited and limit the examination and the certificate to those which were acquired.

The fact that the wording of the certificate was not changed at the same time is unfortunate, but not necessarily fatal to the legislative purpose. When, as here, that purpose is made clear by the history of the bill, confusion and even contradiction in language will not hinder the court from giving effect to that purpose. We deem it clear that the act as passed was intended to cover only acquired venereal diseases as understood ip. medical science, and that the form of physician’s certificate in the act is to be construed as covering only such diseases.

The principal objection made to the act and the objection which the circuit judge found to be fatal is the objection that it requires in every case the use of a very delicate and expensive blood test, known as the Wassermann test, before the certificate required can be signed. It is claimed, and rightly, claimed, under the evidence that this test is a highly technical test, requiring special training and the use of complex laboratory equipment not possessed by more than twenty-five practitioners in the state; that no physician could make such a test for the statutory fee of $3 or anywhere near that sum, on account of the time, technical knowledge, and equipment required; and that to require a physician to make the test for that fee would be an unreasonable requirement. All this was substantially conceded by the state in the present case, and the concession seems to have been advisedly made. If the law in fact requires the Wassermann test to be made in case of every applicant for a marriage license, the argument is very strong that it requires .the absolutely unreasonable. But does it require that test ? The very facts relied on by the petitioner tending to show the technical, delicate, and expensive character of the test and that the great body of the practitioners of the state cannot make it, raises a more or less robust doubt as to the legislative intent to require .the use of that test. The more difficult and -expensive that test is shown to be, the more serious becomes the doubt. Now it must of course be assumed that the legislature had general knowledge of the delicacy, difficulty, and expensiveness of the Wassermann test, as well as of the fact that very few of the general practitioners of the state could make it. The bill was very thoroughly debated in both houses, met strenuous opposition, was the subject of numerous amendments, upon some of which disagreements arose between .the houses which were only settled by committees of conference, and it seems quite certain that the provisions of the bill must have been well understood. It must be assumed also that the legislature had a definite and certain end in view, tliat they did not intend to place a prohibition on marriage, but intended rather to safeguard it by the use of practicable and reasonable means.

With these presumptions in mind it seems very hard to reach the conclusion that they intended that the Wassermann test should be a prerequisite to the granting of every certificate, for this would mean a practical embargo on marriage. Nor do we think that the language of the act necessarily forces us to this conclusion. The act requires physical examination and “the application of the recognized clinical and laboratory tests of scientific search.”

As to the meaning of the terms “clinical and laboratory tests,” we adopt the definitions given by one of the physicians who testified for the petitioner. He says:

“The term 'clinical’ is a term which is dependent upon the meaning of the word 'clinic.’ Clinos or clinurn in Latin means a bed, and the clinical tests of any disease are those that may be observed by the bedside or when the patient is in the office. Scientific and laboratory tests are tests of anything that may come under the purview or the examination of a scientific man which call for proofs by means of instruments, apparatus, or chemical reactions, which are incapable of imagination or sentiment. All the things that can be discovered at the bedside or upon the general examination of a patient when none of the tests that are dependent upon the use of instruments, apparatus or chemical examinations that are incapable of being influenced by imagination or sentiment are one thing and deal entirely with the imagination or opinion of the examiner. Those that are laboratory tests are such as bring out absolute and unquestionable proofs which are incapable of being influenced by sentiment or imagination.”

It seems also that a clinical examination takes into consideration such parts of the history of the case as are credible and not probably lies on the part of the patient, and covers as well the objective symptoms which/ as said by one of the physicians, are protéan thousands in form. The term “physical examination” explains itself. It includes, of course, a careful examination of the whole body, especially the sexual organs and the joints. As to the laboratory tests, it appears from the evidence of the physicians that in the case of gonorrhea there is a test called the Gram stain which is universally used and considered practically conclusive, certainly so when the objective symptoms are present. In the case of chancre or the primary stage of syphilis there is an examination of the discharges from the primary sore for treponema pallida with the Dorfield illuminator and the several so-called stains. In the secondary and tertiary stages of -syphilis there is the Wassermann test and another called the Luetin test, sometimes called the Noguchi test, which is applied to the skin of patients suspected of syphilis. One physician calls these the only common tests, although another is named as experimentally used to some extent, called the Lange gold chloride test.

It is not claimed in this ease that the Luetin test is included within the statutory command, although it seems to he a recognized test. Strict logic would seem to require the administration of the Luetin test if it requires the Wassermann test.

On this question as to whether the words “recognized laboratory tests” include all the tests which are in common use, some help may perhaps he obtained from the legislative history of the bill. As introduced the bill provided for the appointment by the board of health of special examiners not exceeding ten in each county (except Milwaukee, where the maximum was fixed at twenty-five). These examiners were to be licensed physicians of good moral character and scientific attainments, at least thirty years of age. Evidently it was contemplated that the examiners, as compared with the great body of the profession, should be experts, and, as the bill at that time provided for an examination covering inherited syphilis as well as acquired, it may be admitted as probable that it was in contemplation of its authors that all the known tests should be applied. The legislature, however, made two radical changes in the hill, both of which seem very significant on this question: first, they took out of its purview inherited syphilis, thus removing a very large field of eases in which the Wassermann test is specially valuable, if not practically indispensable, and removed the feature requiring the appointment of examiners. By this last change the legislature empowered every licensed physician over thirty years of age in the state to make the examination when called upon to do so by a male applicant for marriage. We say this because we must regard every licensed physician as presumptively a person of good moral character and scientific attainments. The board of medical examiners has no authority to license those who do not possess these qualities. Secs. 14356, 1436e, Stats.

Now the legislature did not say “all of the recognized tests,” but simply “the recognized tests.” Of course these latter words frequently and perhaps logically mean all, but do they as used in this law ? Here is a case where the legislature must be presumed to know that only an occasional medical practitioner can make the Wassermann test, and yet provides for the application of the recognized tests by every practitioner over thirty years of age. When we consider this fact in connection with the other fact that there are recognized laboratory tests, to wit, the stains which can be made by all physicians with a well equipped laboratory, it seems quite impossible to believe that the Wassermann test was considered a sine qua non.

As has been before said, if the act is capable of two constructions, one of which will condemn it and the other save it from condemnation, we must give it the latter construction. Now we have in this case the following circumstances which are entitled to be considered in arriving at the intention of the legislature in using the words “recognized tests:”

First, inherited syphilis is not within the purview of the law; second, all gonorrhea can be absolutely detected by the physical examination and by the laboratory microscopical or Gram stain test, which can he applied by any physician with a well equipped laboratory; third, chancre or syphilis in its primary stage is easily discernible by physical examination; fourth, syphilis in its secondary stages is very easy of diagnosis by reason of the physical symptoms, the enlargement of glands, eruptions on the shin, and other changes; fifth, syphilis, after the secondary stage has passed, has either accomplished the ruin of the health, so that there is little or no possibility of marriage, or else has been so far cured as to be practically nontransmissible; sixth, the great majority of the cases of venereal disease (estimated by one physician at eighty per cent.) are cases of gonorrhea, leaving but twenty per cent, for cases of syphilis; seventh, the cases where the Wassermann test is really necessary for the detection of the disease are practically either cases of inherited syphilis or cases in which the disease has been so far controlled that physical manifestations are wanting and there is very small danger of transmission. The Wassermann test can be made absolutely of no avail by the patient himself, either by the so-called salvarsan treatment, or by the use of whisky for twenty-four hours before the blood is taken from the person.

In view of all these facts and in view of the fact that the legislature wished to reach practical and possible results, it seems unreasonable to suppose that they intended to prescribe tests which the great majority of the official examiners were not able to make. We prefer to construe the words “recognized tests” as intended to refer to the tests recognized and used by the people who were to make them. This construction sustains the law, makes it r'easonable, accomplishes its evident purpose, and provides for a guard to marriage fully as effective in the vast majority of cases as the application of the Wassermann test.

We have not been able to appreciate the force of the contention that the law interferes in any respect with religious liberty. We know of no cbnrcli which desires its ministers to profane tbe marriage tie by uniting a man afflicted with a loathsome disease to ah innocent woman.

In case of refusal of the certificate the law does not provide for a jury trial of the question, but only for a trial before the county judge, and it has been suggested rather than argued that this is a denial of due process of law. We find nothing in the objection. If it be, as we hold, within the police power to prohibit a marriage until the fact of the absence of venereal diseases. in the male is ascertained, the power to determine that fact must be vested in some competent body or person, and the exercise of the police power does not wait upon the slow processes of jury trials. It might be; argued with much force that a law which should attempt to make the right to marry absolutely and solely dependent on the determination of a single individual, even though a physician and an expert, would be unreasonable. In view of that possibility doubtless the provisions of sub. 4 were in-' serted in the present law, and we perceive no good reason for holding that they do not afford sufficient protection to the applicant. If the state can refuse to permit the diseased to marry, it must, of course, provide a means of ascertaining the fact, and if it provide a means which can reasonably be expected under all ordinary circumstances to ascertain the fact in accordance with truth, that must be sufficient. In our judgment the law before us provides such a means.

It is said that the fee provided by the law is entirely insufficient, even if the Wassermann test be not required. Upon this question there is a difference of opinion among the physicians. We incline to the opinion that the fee is a very meager one. We should not, however, feel justified in holding the law unconstitutional on this ground. The penalties provided by sub. 6 of the law are said to be extreme. This may he so. We do not feel required to pass on that .question in this case. In any event, we cannot suppose that these penalties are an indivisible portion of the law, or form in any sense a compensation for the other clanses.

By the Court. — Judgment reversed, and action remanded with directions to quash the alternative writ.