Carey v. Population Services International, 431 U.S. 678 (1977)

Whether, and to what extent, minors should enjoy the same constitutional rights as adults is one of the most vexing and unsettled questions of constitutional law. In Carey v. Population Services International, the Supreme Court considered this question in the context of minors’ right to privacy.

In 1976, the Supreme Court decided, in the case of Planned Parenthood of Central Missouri v. Danforth, that a state may not impose a blanket requirement that a minor obtain parental consent before getting an abortion. One year later, in Carey, the Supreme Court considered a challenge to a New York law regulating access to contraceptives by individuals younger than sixteen.

The law had three provisions. First, it prohibited the distribution of contraceptives to individuals younger than sixteen, except by a physician. Second, it allowed only licensed pharmacists to distribute nonprescription contraceptives to individuals older than sixteen. Finally, the law banned the advertisement or display of contraceptives.

The Supreme Court struck down all three provisions. The Court concluded that the fundamental right of the individual to make decisions about whether to procreate, recognized by the Court in Griswold v. Connecticut and Eisenstadt v. Baird, was unconstitutionally burdened by the requirement that only licensed pharmacists could distribute condoms. Furthermore, the Supreme Court decided that the prohibition on advertising or displaying contraceptives was an unconstitutional restriction on free speech.

The portion of the Court’s decision striking down the prohibition on access to contraceptives by individuals younger than sixteen was joined by only four Justices, however. In that opinion, Justice Brennan rejected the argument that the prohibition could be justified by the state’s desire to protect minors’ health or morals. Justice Brennan found the state’s argument that the law served to deter sexual activity by teenagers to be unworthy of serious consideration, expressing doubts that this method of deterrence would actually work, and further asserting that it was illogical to try to protect teens by making the consequences of their sexual activity more severe and harmful. Justice Brennan noted there was no medical justification for allowing only physicians to distribute nonprescription contraceptives and reaffirmed the vitality of the Supreme Court’s earlier decision in Planned Parenthood of Central Missouri v. Danforth that the state cannot itself exercise, nor can it give to a third party, an arbitrary veto power over minors’ reproductive rights.

Justices White, Powell, and Stevens concurred in Justice Brennan’s decision but not his reasoning. Each expressed concern about the breadth of the privacy right recognized by Justice Brennan’s opinion and emphasized that states still have broad powers to regulate adolescents’ sexual behavior. Nonetheless, all three agreed that the means New York had used to regulate adolescent sexual behavior in this instance were unacceptable.

Thus, in Carey, the Court provided an important precedent affirming the right of individuals, including minors, to a realm of sexual and decisional privacy into which the government could not constitutionally intrude; at the same time, however, the Court did not go so far as to recognize an absolute right of sexual autonomy on the part of either minors or adults. B.

JESSIE HILL

References and Further Reading

• Cruz, David B., The Sexual Freedom Cases? Contraception, Abortion, Abstinence, and the Constitution, Harvard Civil Rights-Civil Liberties Law Review 35 (2000): 2:299–383
• Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, 600–704, New York: Macmillan, 1994
• Posner, Richard A., The Uncertain Protection of Privacy by the Supreme Court, Supreme Court Review (1979): 173
• Tribe, Laurence H. American Constitutional Law, 2nd ed., Mineola, NY: Foundation, 1988

Cases and Statutes Cited

• Eisenstadt v. Baird, 405 U.S. 438 (1972) 
• Griswold v. Connecticut, 381 U.S. 479 (1965) 
• Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) 

See also Birth Control; Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976); Privacy; Right of Privacy; Substantive Due Process