Baird v. Eisenstadt (429 F.2d 1398, 1970)

ALDRICH, Chief Judge.

Petitioner Baird brings this petition for habeas corpus to attack his conviction for viola*'on of Mass.G.L. c. 272 § 21, Commonwe* ’th v. Baird, 1969 Mass. A.S. 727, 247 iCE.2d 574, cert, denied 396 U.S. 1029, 90'S.Ct. 580, 24 L.Ed.2d 524, hereinafter L}aird, on the ground that the statute, insofar as it is directed against contraceptives, is unconstitutional. The facts aiS these. In April 1967 petitioner, pursi int to an invitation, addressed a group of students at Boston University on the subject of contraception. On a demonstration board he exhibited various contraceptive devices, and at the close of his talk he invited members of the audience to come and help themselves. He personally handed to an unmarried adult womáñ a' package of vaginal foam, a publicly advertised contraceptive. He was thereupon arrested and charged with a) exhibiting, and b) delivering, a contraceptive article.

Following a trial, and a finding of guilty on both counts, the Superior Court pursuant to a Massachusetts procedural statute requested review by the Supreme Judicial Court of the constitutionality of the statute. That court unanimously held that the conviction for exhibiting contraceptive articles violated petitioner’s First Amendment rights. By a 4-3 majority it upheld the constitutionality of the provision against delivery, holding, inter alia, that this went beyond free speech, and that the statutory proscriptions were severable. The court ruled that forbidding delivery of contraceptive articles was supportable as a legitimate protection of public health. Significantly, the majority said nothing on the subject of morals. Nor did the court address itself to the question why a married woman’s health was to be protected by requiring medical assistance, and an unmarried woman’s by denying it, a question more pressingly raised in Sturgis v. Attorney General, post.

The petition for habeas corpus was dismissed by the district court, with opinion. 310 F.Supp. 951. We issued a certificate of probable cause for appeal, and ordered petitioner released on bail.

Petitioner attacks the statute on a number of grounds. The first two need not detain us. £Ffis extensive argument that the First Amendment entitled him to deliver a contraceptive article as “symbolic speech” is less persuasive than the defendant’s claim in United States v. O’Brien that he could emphasize an anti-war speech by burning his draft card. Even there the Supreme Court, as well as, in this respect, ourselves, was unimpressed by the argument that the right of free speech justifies the performance of an act which ,has been reasonably prohibited on independent substantive grounds. United States v. O’Brien, 1968, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672. Equally unsupportable is the contention that the elimination of a small part of the statute, the provision against exhibition, destroys the statute as a whole. This is not an instance of judicial excision making the remainder difficult to interpret. Nor is this one of those “rarest of cases” where the statute has been so reduced in scope as to leave it pointless. See United States v. Raines, 1960, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524. The excision argument did not persuade the Massachusetts court, whose interpretation of the statute controls; nor does it us.

Petitioner’s more substantive claims need considerable rephrasing. The issue before us is whether the statute “bears a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.” Sperry & Hutchinson Co. v. Director, 1940, 307 Mass. 408, 418, 30 N.E.2d 269. Or, in the Commonwealth’s words, it must be shown that the statute “does not bear a reasonable relationship to a proper legislative purpose, or * * * js * * * arbitrary and discriminatory.” Nebbia v. New York, 1934, 291 U.S. 502, 537, 54 S.Ct. 505, 78 L.Ed. 940; Meyer v. Nebraska, 1923, 262 U.S. 390, 399-400, 43 S.Ct. 625, 67 L.Ed. 1042.

The Commonwealth asserts two general purposes, health and morals. In resting its decision on the former the court said in Baird,

“The Commonwealth has a legitimate interest in preventing the distribution of articles designed to prevent contraception which may have undesirable, if not dangerous, physical consequences.” 1969 Mass. A.S. at 733, 247 N.E.2d at 578.

More recently the court has occasion to expand upon this statement. In Sturgis v. Attorney General, Mass.1970, 260 N. E.2d 687, plaintiffs, two qualified physicians specializing in gynecology, sought under Massachusetts practice a declaratory judgment that the statute is unconstitutional in that it prevents them from furnishing contraceptive assistance to their unmarried patients. The court, Justices Cutter and Spiegel dissenting as to the outcome, stated,

“[T]he Legislature is free to conclude that some harm may conceivably attend the employment of contraceptive devices * * [Hence] the prohibition against their distribution bears a real and subs'jtntial relation to the legislative purpose.”

The court went on t To preserve the statute as one directed towards health would necessitate judicial excision of the expressed distinction between unmarried and married users. Even then, there would be difficulties. Deletion of unsupportable overbreadth, encompassing articles not reasonably believed dangerous to health, would leave the statute with an element of vagueness, a burden we would be reluctant to impose upon the fundamental rights at stake here. Aptheker v. Secretary of State, 1964, 378 U.S. 500, 515-517, 84 S.Ct. 1659, 12 L.Ed.2d 992; see, Bouie v. City of Columbia, 1964, 378 U.S. 347, 362, 84 S.Ct. 1697, 12 L.Ed.2d 894. Where the statute, prior to its amendment, advanced no constitutionally permissible objective, and the amendment revealed no purpose except to preserve as much of the statute as possible in the face of supervening judicial authority, we must conclude that any finding of proper purpose would be mere pretense. Cf. Ho Ah Kow v. Nunan, C.C.Cal., 1879, 5 Sawy. 552, 12 Fed.Cas. p. 252, No. 6,-546. We see no basis for a presumption in the statute’s favor, see United States v. O’Brien, 1968, 391 U.S. 367, 383, 88 S. Ct. 1673, 20 L.Ed.2d 672; Goesaert v. Cleary, 1948, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163, or any reason why we should interpret it or attempt to remold it to achieve some other, legitimate objective.

In so holding we in no way suggest that the legislature may not enact a statute appropriately directed toward the protection of health, to guard married and unmarried persons alike. We observe further, that if the legislature is truly concerned with deterring fornication, it may increase the statutory penal-^ ty to mark the measure of its concern. It may not do so, however, by making the penalty a personally, and socially,y undesired pregnancy.

Finally, the Commonwealth says that petitioner has not shown that his own constitutional rights have been violated, and therefore that he has no standing to attack the statute. If only some application of the statute were constitutionally unwarranted, there might be merit in this position. We, however, have held the statute itself void. Petitioner is being jailed for a direct violation of that statute; he must have as much standing to protest as anyone else. In this connection we observe that by criticizing him for not seeking declaratory relief instead of acting so as to invite arrest, the Massachusetts court implicitly recognized petitioner’s standing and interest. 1969 Mass. A.S. at 735, 247 N.E.2d 574. We will do no less. The order of the District Court is vacated, and the action remanded thereto with instructions to grant the writ discharging the petitioner.

. The statute, which contains a second section as the result of a 1966 amendment, reads as follows.

“Except as provided in section twenty-one A, whoever sells, lends, gives away, exhibits or offers to sell, lend or give away * * * any drug, medicine, instrument or article whatever for the prevention of conception or for causing unlawful abortion * * * shall be punished by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years or by a fine of not less than one hundred nor more than one thousand dollars.” (§ 21).

“A registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. A registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician. * * *” (§ 21A).

Concededly petitioner was neither a physician nor a pharmacist.

. We note in passing that Griswold, in our opinion, in no way establishes “beyond doubt” that the present statute is constitutional. Even the statement on which the court relied came from the, concurring opinion of a single justice. (381 U.S. at 498, 85 S.Ct. 1678.)

. For a discussion of presumptions of permissible purpose see Note, Legislative Purpose and Federal Constitutional Adjudication, 83 Harv.L.Kev. 1887 (1970), centering around United States v. O’Brien, ante. It is true that in O’Brien the Court refused to invalidate a statute on the basis of an allegation of improper purpose based in part on what occurred on the floor of Congress during its passage. In O’Brien the Court pointed out that the statute was constitutional on its face. The present statute is not, and cannot be legitimized without both excision and revision. Where such action on our part would have to be undertaken in the light of a statutorily demonstrated impermissible intent, we consider the O’Brien teaching to be inapposite.