Tileston v. Ullman

20 A.2d 582, 129 Conn. 84, 1942 Conn. LEXIS 202

• Court: Supreme Court of Connecticut
• Decided: May 22, 1942
• Status: Published

Opinions

Ells, J.

The law of this state forbids the use by any person of any drug, medicinal article or instrument for the purpose of preventing conception; General Statutes, § 6246; and makes liable to prosecution and punishment any person who shall assist, abet, or counsel another to commit such an offense; § 6562.

In State v. Nelson, 126 Conn. 412, 11 Atl. (2d) 856, the claim was made that these sections should be so construed as not to prohibit a duly licensed physician from prescribing the use of contraceptive devices to a married woman when the general health and well-being of the patient require it. We held that any intention of the legislature to allow such an exception is negatived not only by the absolute language used originally and preserved ever since but also by its repeated and recent refusal to inject an exception. The opinion pointed out, however, that the issue was confined to situations where in the opinion of the physician the “general health” of a married woman requires the use of contraceptives, and said (p. 418), “Therefore there is no occasion to determine whether an implied exception might be recognized when 'pregnancy would jeopardize life’ similar to that usually expressly made in statutes concerning abortion.”

We are now called upon to decide that issue. The plaintiff, a licensed physician, brought the present action for a judgment declaring whether the designated statutes make it unlawful for him to prescribe the use of contraceptive devices for married women, living with their husbands, who come to him as patients in cases in which his professional judgment dictates that such treatment be given: (a) where a patient is suffering from high blood pressure so' that if pregnancy occurred there would be imminent danger of toxemia of pregnancy which would have a 25 per cent chance of killing her; (b) where the patient is suffering from an arrested case of tuberculosis of the lungs of an acute and treacherous type, so that if she should become pregnant such condition would be. likely to light up the disease and set back her recovery for several years, and might result in her death; (c) where the patient is in good health except in so far as she has been weakened by having had three pregnancies in about twenty-seven months and a new pregnancy would probably have a serious effect upon her general health and might result in permanent disability. Desiring to meet squarely the important issues involved, we have stated them in the very language used by the plaintiff in his brief, except that we have strengthened the third case and have pointed out more clearly than did the plaintiff that the patients are not now in danger as to life or health and in immediate need of medical or surgical treatment, as in abortion cases, but will be in such danger if they become pregnant.

Although the facts of the Nelson case involved the “general health” of the patient, and not health affected by a specific disease or condition, the reasoning of the opinion, and particularly the authorities cited, control the instant case and reject the claims now made by the plaintiff. Two judges dissented in the Nelson case, but it became the law of this state, and a change in the personnel of the court affords no ground for reopening a question which has been authoritatively settled. However, we consider the present case strictly upon its own factual situations and determine whether the statutes in question permit the plaintiff to prescribe drugs, medicinal articles or instruments to prevent the pregnancy of patients whose condition, due to specific disease, is such that pregnancy, if it occurs, may result in death or serious injury to health.

The plaintiff’s first claim is that § 6246, supra, was originally enacted in 1879 as part of a statute which was a law against obscenity only, and therefore had no reference to the medical situation now before us. It is sufficient to point out that it contained three prohibitions. One, it is true, was directed against obscene pictures and literature, but the second forbade the use of any drug, medicine, article, or instrument whatsoever for the purpose of preventing conception, and the third, the use of such articles for the purpose of causing unlawful abortion. Obviously, the latter two stamp the statute as having far wider scope than general obscenity. The argument then proceeds to contend that the legislative history of the statute since its enactment in 1879 is of no significance. We discussed and rejected this claim in the Nelson case (p. 417), where we considered in detail the repeated and recent refusals of the legislature to inject an exception. It is necessary to add only that since the decision a so-called medical birth control bill failed of enactment in the 1941 General Assembly. The result of all the attempts made to secure a change in these statutes is that no change whatsoever was made by the legislature. This is significant, for in the consideration of these bills year after year there was ample opportunity for the legislature to accept a compromise measure. It might have adopted a partial exception, as for instance, in cases where life might be in jeopardy if pregnancy occurred. Its refusal to make any change, in the light of its opportunity to do so, impels us to the conclusion that not even in such situations as are presented in the instant case did the legislature wish to permit exceptions. It is not our function to doubt the wisdom of these statutes or question their propriety. The manifest intention of the legislature of this state, to date, for all-out prohibition cannot very well be denied. For us now to construe these plainly worded statutes as inapplicable to physicians, even under the limited circumstances of this case, would be to write into the statutes what is not there and what the legislature has thus far refused to place there.

The next claim of the plaintiff is that the decision in the Nelson case is not inconsistent with the claims of this plaintiff. We have stated above our view of the significance of this case. It is also claimed that the weight of authority in other jurisdictions supports the plaintiff’s position. The only cases cited in the plaintiff’s behalf are decisions of federal district or circuit courts. The applicable ones are discussed and distinguished in the Nelson case and in the Massachusetts case which we later refer to. We have again reviewed the federal cases and find no sound reason for holding that they control the present situation. A case principally relied upon by the plaintiff is United States v. One Package, 86 Fed. (2d) 737. It concerned § 305 (a) of the Tariff Act of 1930 (19 U.S.C.A. § 1305[a]) which provides that “All persons are prohibited from importing into the United States from any foreign country . . . any article whatever for the prevention of conception or for causing unlawful abortion.” The question was (p. 738) “whether physicians who import such articles as those involved in the present case in order to use them for the health of their patients are excepted by implication from the literal terms of the statute.” Judge Augustus N. Hand’s opinion was careful to point out that the accused was a New York physician, that New York law, which makes it in general a misdemeanor to sell or give away any articles for the prevention of conception, excepts furnishing such articles to physicians who may in good faith prescribe their use for the cure or prevention of disease, and that it was conceded that the use of contraceptives was in many cases necessary for the health of women. We point out also that the decision reads into the statute an exception in behalf of physicians who might intelligently employ such articles for the promotion of the well-being of their patients, and that this is directly contrary to our holding in the Nelson case. Judge Learned Hand, in a brief concurring opinion, says (p. 740): “Many people have changed their minds about such matters in sixty years, but the act forbids the same conduct now as then; a statute stands until public feeling gets enough momentum to change it, which may be long after a majority would repeal it, if a poll were taken. Nevertheless, I am not prepared to dissent.” The opinions contain no record of repeated but unsuccessful attempts to change the statute, as in Connecticut.

The plaintiff’s final claim is that if § 6246, supra, should be construed according to its express language it would violate the state and federal constitutions. As we shall point out in our discussion of the Gardner case, infra, the Supreme Court of the United States has held to the contrary.

In Commonwealth v. Gardner, 300 Mass. 372, 15 N. E. (2d) 222, in an opinion written by Chief Justice Rugg, the court unanimously decided that it could not read into a similar statutory prohibition any exception permitting the prescription in good faith by physicians of contraceptives. The claim there made by the defendants was precisely the same as that made by the plaintiff in the instant case, that the statute does not apply to drugs, medicines, instruments or articles for the prevention of conception when they are intended for such use only upon prescription by a duly licensed physician for the preservation of life or health according to sound and generally accepted medical practices; and that, otherwise, the statute is unconstitutional under both the state and federal constitutions. The court said in substance that the terms of the statute are plain, unequivocal and peremptory, and contain no exceptions; that the statute was originally enacted in 1879 (as was ours) and that under the police power the legislature, without any denial of rights under either the state or the federal constitution, might take the view that the use of contraceptives would not only promote sexual immorality but would expose the commonwealth to other grave dangers; and that prevention of conception by medical advice and treatment was not unknown in 1879 and might have been the subject of an exception from the general legislative prohibition if the legislature had deemed such an exception consonant with public policy, but that it had equal power to adopt the contrary view that such an exception would endanger the effectiveness of the statute. It said that, if any exception to the broad prohibition enacted had been intended, it would have been easy to give expression to it in the statute, as was done by the legislature in the state of New York. It reviewed applicable rules of law—that in some cases the letter of a statute may be restrained by an equitable construction, in others enlarged, and in others the construction may be even contrary to the letter— but concluded that none of these principles applied, in view of the language and history of the statute and the circumstances of the case. The court also reviewed existing American authority. The opinion concludes: “The relief here urged must be sought from the law making department and not from the judicial department.”

An attempt was made to have the decision in thé Gardner case reviewed by the Supreme Court of the United States, but the defendants’ appeals were summarily dismissed “for the want of a substantial federal question.” (305 U. S. 559, 59 Sup. Ct. 90).

The plaintiff concedes, as he must, that the Gardner case is directly in point, but disapproves it, and claims that its force has been weakened by a later Massachusetts case, Commonwealth v. Corbett, 307 Mass. 7, 29 N. E. (2d) 151. This very recent case directly approved the Gardner decision. The prosecution failed because it had not been proven that the article in question was to be used “for. the prevention of conception.”

The sweeping decision of the Massachusetts court is believed by the plaintiff to be harsh and unreasonable. In the instant case the state urges a consideration not stated in the Massachusetts opinion. The prescription of contraceptives is not the only method open to the physician for preventing conception. He knows that intercourse would very likely result in pregnancy which might bring about the death of the patients. His problem is to advise them how to prevent conception. The common denominator of the opinions of the various medical authorities, made a part of the record, is the professional opinion that the safest medical treatment which could be prescribed for these patients would be to inform them of proper methods of preventing conception by means of drugs, medicinal articles and instruments which can be used by them safely and effectively to prevent conception and avert the unfortunate consequences which would flow from pregnancy. The sincere and well-reasoned opinion of all these authorities is that the use of contraceptives is the safest medical treatment for bringing about the desired and necessary result. The state claims that there is another method, positive and certain in result. It is abstention from, intercourse in the broadest sense —that is, absolute abstention. If there is one remedy, reasonable, efficacious and practicable, it cannot fairly be said that the failure of the legislature to include another reasonable remedy is SO' absurd or unreasonable that it must be presumed to have intended the other remedy also. The claim of the state on this point comes down, then, to a consideration of whether abstinence from intercourse is a reasonable and practicable method of preventing the unfortunate consequences. Certainly it is a sure remedy. Do the frailties of human nature and the uncertainties of human passions render it impracticable? That is a question for the legislature, and we cannot say it could not believe that the husband and wife would and should refrain when they both knew that intercourse would very likely result in a pregnancy which might bring about the death of the wife.

The legislature is the final forum. When the law it enacts comes to the courts, an implied limitation upon the operation of the statute may only be made in recognition of long existing and generally accepted rights (Kelley v. Killourey, 81 Conn. 320, 322, 70 Atl. 1031) or to avoid consequences so absurd or unreasonable that the legislature must be presumed not to have intended them. State v. Nelson, supra, 417; Dorman v. Carlson, 106 Conn. 200, 203, 137 Atl. 749; Jacobson v. Massachusetts, 197 U. S. 11, 39, 25 Sup. Ct. 358. The legislative history of § 6246, among other considerations, distinguishes the instant case from New Haven Savings Bank v. Warner, 128 Conn. 662, 25 Atl. (2d) 50.

The plaintiff relies upon a vaccination case. In Jacobson v. Massachusetts, supra, the Supreme Court of the United States upheld the constitutionality of a compulsory vaccination statute, but pointed out that there was nothing in the evidence to indicate that vaccination would in any way harm the plaintiff, and that the court was not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject for vaccination or that vaccination by reason of his then condition would seriously impair his health or probably cause his death. A similar situation is presented in abortion cases where the patient is in such condition that to allow pregnancy to continue would result in death. It has been intimated that such an exception exists although the statute does not express it. State v. Rudman, 126 Me. 177, 136 Atl. 817; 1 C. J. S. 322, § 13. In such cases, unless an exception was read into the statute, there was no alternative. The choice was either exception or injury. In the instant case there is an alternative which the legislature was entitled to believe was reasonable and practicable, and we are not permitted to read an exception into the statute. In New York there is such an exception, but it is expressed in the statute itself and is carefully limited and defined. New York Penal Law, § 1145.

An outstanding factor throughout the controversy in this court over these statutes is that, although our legislature has repeatedly refused to amend the law, we have been asked, by construction, to accomplish the purpose which it declined to sanction. It is the legislature which must determine the requirements of public policy for the state and, if the legislature is of the opinion that the broad provisions of these statutes should stand unchanged, for us to read an exception into- them' is to.pre-empt the legislative function. We may do: so- only ■ under ■ the' circumstances we have alréady stated; otherwise, we go outside the proper scope of the' judicial function as it exists under our form of government. The only basis upon which an exception can be read into the statutes is that the legislature, despite'the broad terms of the law, could not have-intended that they apply in a certain situation. The legislature has, by its refusal to amend the statutes,- indicated beyond doubt its intention that they should apply as they are’written, without the exception claimed by the plaintiff. The claim that when the legislature originally enacted this law. in 1879 it did not intend that' it should apply to the present situation, even if true, would not be controlling, because the law has been’ re-enacted repeatedly in the various revisions and it stands before us as a law which was approved by the legislature as late as the most recent revision, that of 1930.

■ ■ We say again that the courts are permitted to pass only upon the legal questions involved. When the legislature expresses the will of the people in a statutory- .enactment the language of which is plain and unambiguous; the law must stand unless it is clearly unconstitutional dr unless it is plain that the legislature must have intended- an exception which it did not express. Birth control is a highly controversial subject. Social thinking is- divergent. It finds frequent expression at legislative hearings. Then the legislature speaks. - In the statutes now under consideration it has infringed upon what a large body of intelligent citizens believe are their natural rights and privileges. The answer is that “ The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority . . . essential to‘the safety, health, peace, good order and morals of the community.’ ” The Supreme Court of the United States in Jacobson v. Massachusetts, supra, 26.

The argument presented to the legislature is moral, physiological, sociological. The questions presented to us in this case are wholly legal; we believe they áre not very difficult. • '

In order to decide the broad questions involved we have been willing to assume but not to decide that an action for a declaratory judgment is a proper procedure. We must, however, ■ point out certain difficulties attendant upon its use in this case. Two separate statutes are necessarily involved. Section 6246 penalizes “any person who shall use any drug, medicinal article or instrument for the purpose of preventing conception.” Section 6562 provides a penalty for “any person who shall assist, abet, counsel, cause, hire or command another to commit any offense.” The plaintiff specifically asks that he as a physician, under certain limited circumstances, be allowed to prescribe contraceptives. If we read this exception into § 6562, the other statute, § 6246, still stands, and prohibits any person from using them. If we read it into § 6246, or if we read it into the sections together, we allow the exception for persons in a very different situation from that of the plaintiff. The real difficulty, however, is that if, under the restricted conditions proposed, doctors are to be permitted to prescribe contraceptives by the process of reading an exception into the statutes, the limitations would be wholly ineffective unless implemented by further provisions as regards their use, and particularly their sale, such as a requirement that no druggist should sell them except'upon a written order of a licensed physician, and perhaps with the requirement, as in the case of narcotics, that the prescriptions be kept on file. No such restrictions can be imposed by any judicial decision we can make.

All questions propounded in the stipulation for reservation are answered, expressly or by implication, by saying that §§ 6246 and 6562 of the General Statutes prohibit the action proposed to be done by the plaintiff under the circumstances disclosed by the first, second and third counts of the complaint; and that these statutes are constitutional.

No costs will be taxed in this court.

In this opinion Maltbie, C., J., and Brown, J., concurred.