Poe v. Ullman, 367 U.S. 497 (1961)

Poe v. Ullman challenged the constitutionality of Connecticut’s 1879 law that prohibited using or giving advice about contraceptive devices, but it is best known for its definition of justiciability or the authority of courts to decide only bona fide cases and controversies. A number of separate challenges to the anticontraception law were combined under this single title: one involving a married couple who had given birth to three children, all of whom died shortly after birth due to congenital abnormalities; a second involving a married woman who had been pregnant once and suffered a critical illness as a result, leaving her partially paralyzed and with impaired speech; and a third initiated by an obstetrician who alleged that he could not prescribe appropriate Birth Control materials for fear of prosecution. All asked that the U.S. Supreme Court declare the law invalid.

The five-justice majority chose not to decide the constitutionality of the case, but rather refused to hear it because it was not a real and substantial controversy involving adversarial parties. Justice Felix Frankfurter called the lawsuits unreal because of the lack of immediacy of any threat of prosecution. He noted that though the law had been on the books for more than three quarters of a century, there had only been one prosecution because of a seeming tacit agreement whereby Connecticut did not enforce the statute. The case was, therefore, abstract and hypothetical and not a truly adversarial contest involving honest antagonistic assertions of rights. Neither the doctor nor the individuals bringing suit had any realistic fear of prosecution. It did not, in short, qualify as a real case or controversy as required by Article III of the Constitution.

Justices Harlan, Douglas, Stewart, and Black disagreed and would have decided the cases on their merits. Justice Douglas argued in his dissenting opinion not only that the cases met all of the requisites for legitimate cases or controversies, but also that the concept of ‘‘liberty’’ in the Fourteenth Amendment’s due process clause extended to rights not included in the first eight amendments to the Constitution. The right to travel and the right to marry and have children were not enumerated rights and yet had received judicial protection from an intrusive state. Justice Harlan’s dissent also argued that the case was not a hypothetical, friendly, or feigned suit and that it did not lack ‘‘ripeness.’’ He also would have struck down the law since ‘‘making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy’’ and prohibited by the due process clause of the Fourteenth Amendment.

Notably, just four years later, the same gynecologist– obstetrician was involved in another challenge to the anticontraception statute, Griswold v. Connecticut, 391 U.S. 145 (1965), for which Justice Douglas wrote the majority decision; the statute was declared unconstitutional as a violation of the right to privacy.

MARY L. VOLCANSEK

Cases and Statute Cited

• Griswold v. Connecticut, 391 U.S. 145 (1965)