CAREY v. POPULATION SERVICES INTERNATIONAL 431 U.S. 678 (1977)

By a 7–2 vote the Supreme Court in Carey invalidated three New York laws restricting the advertisement and sale of birth control devices. Justice william j. brennan wrote for a majority concerning two of the laws. First, he read griswold v. connecticut (1965) and roe v. wade (1973) to require strict scrutiny of laws touching the "fundamental" decision "whether to bear or beget a child." New York had limited the distribution of contraceptives to licensed pharmacists, and had not offered a sufficiently compelling justification. Second, he read the first amendment to forbid a law prohibiting the advertising or display of contraceptives. (See commercial speech.)

The Court was fragmented in striking down the third law, which forbade distribution of contraceptives to minors under sixteen except under medical prescription. Justice Brennan, for himself and three other Justices, conceded that children's constitutional rights may not be the equivalent of adults' rights. Yet he found insufficient justification for the law in the state's policy of discouraging sexual activity among young people. He doubted that a limit on access to contraceptives would discourage such activity, and in any case the state could not delegate to doctors the right to decide which minors should be discouraged. Three concurring Justices expressed less enthusiasm for minors' constitutional rights to sexual freedom but found other paths to the conclusion that the New York law as written was invalid.

Chief Justice warren e. burger dissented without opinion, and Justice william h. rehnquist filed a short dissent that was unusually caustic, even by his high standard for the genre.

Carey was not the last word on the troublesome problem of minors' rights concerning reproductive autonomy; the Court has repeatedly returned to the issue in the abortion context. Yet Carey 's opinion invalidating the law limiting contraceptives sales to pharmacists was important for its recognition that Griswold v. Connecticut stood not merely for a right of marital privacy but also for a broad freedom of intimate association.

Kenneth L. Karst
(1986)