367 U.S. 497 (1961)
In 1961 two appeals reached the Supreme Court from judgments of the Connecticut Supreme Court of Errors sustaining demurrers and dismissing actions brought by Dr. C. Lee Buxton, a Yale professor of obstetrics and gynecology who also served as medical director of the Planned Parenthood Center in New Haven, together with married patients Paul and Pauline Poe and Jane Doe.1
The complaints sought declaratory and injunctive relief against enforcement of Conn. Gen. Stat. §§ 53-32 and 54-196.2 The women had consulted Dr. Buxton, who advised that contraceptive methods were medically indicated because of prior pregnancies that had resulted in stillbirths or critical illness.3 The statutes prevented them from obtaining or following such advice.4 The complaints further alleged that the New Haven County State's Attorney had made public statements threatening to prosecute violators of the statutes.5
The Connecticut Supreme Court of Errors held that the allegations failed to show any specific threat of prosecution against these plaintiffs.6 It also held that the plaintiffs had not committed or were about to commit acts subjecting them to liability.7 Therefore, the court dismissed the actions for lack of a justiciable controversy.8 The cases came to the United States Supreme Court on appeal.9 The Court noted probable jurisdiction.10
The challenged statutes had been on the books since 1879.11 In the more than eighty years since enactment, the only recorded prosecution was a 1940 test case against two doctors and a nurse at a birth-control clinic.12 That case ended when the State moved to dismiss the information after the state supreme court upheld the statutes.13 Contraceptives were commonly and openly sold in Connecticut drug stores.14 Yet no prosecutions for sale or use were recorded.15
Whether the plaintiffs established a justiciable controversy by alleging a threat of prosecution under Connecticut statutes prohibiting contraceptive use and advice without showing any actual enforcement against them or imminent prosecution?16
No. The complaints alleged only that the state's attorney had made public statements threatening to prosecute violators in general and that the plaintiffs had consulted Dr. Buxton regarding contraceptive advice due to health risks from prior pregnancies.19 The established facts reveal that the statutes had remained unenforced for more than eighty years except for a single 1940 test case that ended with dismissal of the information after the state court upheld the law.20 Contraceptives were commonly and openly sold in drug stores without any prosecutions.21 These facts demonstrate that the plaintiffs neither faced enforcement of the statutes against them nor showed any imminent prosecution.22
Therefore, the allegations failed to meet the requirement of a real and immediate threat.23
The plaintiffs did not establish a justiciable controversy, and the Supreme Court properly affirmed the dismissal of the actions.24
Related opinions on this issue
Justice Brennan concurred in the judgment of dismissal.25 He emphasized that the record failed to show these appellants as individuals were truly caught in an inescapable dilemma.26 The true controversy concerned the opening of birth-control clinics on a large scale.27
The state had prevented such clinics in the past.28 The controversy did not concern the private use of contraceptives by isolated married couples.29 He concluded it would be time enough to decide the constitutional questions when that real controversy flares up again.30
It would also be time enough when the state makes a definite and concrete threat to enforce the laws against individual married couples.31
Justice Douglas dissented.32 He argued that the device of the declaratory judgment is an honored one.33 These cases presented precisely the situation where the remedy is needed.34
The plaintiffs must violate the law to obtain a judicial determination.35 He rejected the majority's reliance on a supposed tacit agreement of nonenforcement.36 The legislature had twice re-enacted the statutes since 1940.37
Bills to repeal them had been rejected.38 The statutes remained at the center of continuing controversy.39
Whether the more than eighty-year history of nonenforcement of the statutes, including open sales of contraceptives and only one dismissed test-case prosecution, precludes adjudication of the constitutional claims in these declaratory judgment actions?40
The policy against premature constitutional decision requires that federal judicial power be exercised to strike down legislation only at the instance of one who is himself immediately harmed or immediately threatened with harm by the challenged action.41
Yes. The established facts establish that the statutes had been on the books since 1879 with no recorded prosecutions for use or distribution except the 1940 test case that was dismissed after the state court sustained the law.42 Contraceptives were commonly and notoriously sold in Connecticut drug stores without any enforcement action.43 This long history of nonenforcement, combined with the absence of any specific threat against these plaintiffs, rendered the controversies hypothetical.44
It deprived them of the immediacy required for constitutional adjudication in declaratory judgment proceedings.45
The history of nonenforcement precludes adjudication of the constitutional claims because it eliminates any real and immediate threat of prosecution.46
Related opinions on this issue
Justice Harlan dissented at length.47 He maintained that the absence of prosecutions after the Nelson case did not support an inference of renunciation by the state of its intention to enforce the statute.48 He read the Nelson prosecution as having been brought precisely to eliminate any doubt about the state's willingness to prosecute any person.49
This applied whether the person was a physician or layman who violated the law.50 Harlan concluded that the plaintiffs remained under a substantial threat of prosecution.51 The court's refusal to decide the merits left them subject to the unfettered whim of the prosecutor.52
Whether the Court may entertain a constitutional challenge to the statutes when the complaints fail to allege that the plaintiffs have engaged in or are about to engage in conduct subject to prosecution?53
A suit for declaratory relief challenging the constitutionality of a criminal statute requires allegations that the plaintiff has done or is about to do something that would subject him to prosecution under the statute.54
No. The complaints alleged only consultations with Dr. Buxton and medical advice that contraceptives were indicated.55 The complaints did not allege that any plaintiff had used a contraceptive device.56 They also did not allege that Dr. Buxton had provided such devices or advice in a manner that would violate the statutes.57 The established facts confirm that the complaints contained no assertion that the plaintiffs had committed or were about to commit acts subjecting them to liability.58
Without such allegations, the constitutional claims remained abstract.59 They could not be adjudicated.60
The Court may not entertain the constitutional challenge because the complaints failed to allege conduct subject to prosecution.61
Related opinions on this issue
Justice Stewart filed a separate dissent joining the opinions of Justices Douglas and Harlan.62 He agreed that the Court should reach the merits of the appeals rather than dismiss them on justiciability grounds.63 Stewart found the reasons advanced by his dissenting colleagues convincing demonstrations that a real and substantial controversy existed warranting constitutional adjudication.64
Although the appeals were dismissed, preventing full discussion of the constitutional issues, Stewart clarified that his joinder did not imply any divergence from the conclusions of Douglas and Harlan on the merits.65 His position underscored that the Court had improperly avoided deciding the important questions presented by the married couples and their physician regarding the statutes' validity under the Fourteenth Amendment.66