Tileston v. Ullman , 129 Conn. 84 ( 1942 )

In the case of State v. Nelson, 126 Conn. 412, 11 A.2d 856, it was held by a majority of this court that the sections of the General Statutes above referred to should be so construed as to prohibit a duly licensed physician from prescribing the use of contraceptive devices to a married woman when, in the opinion of the physician, the general health and well-being of the patient necessitates it. In that case it was held (p. 418) that there was "no occasion to determine whether an implied exception might be recognized when ``pregnancy would jeopardize life' similar to that usually expressly made in statutes concerning abortion."

The decision in the Nelson case is based principally upon the opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Gardner,300 Mass. 372, 376, 15 N.E.2d 222, where that court refused to read into a similar statutory prohibition any exception permitting the prescription in good faith by physicians of contraceptives, even for the preservation of life. Our court also considered significant the fact that attempts had been made in our legislature to amend these statutes in various sessions since 1923, without success.

In construing a statute, the cardinal principle of construction is to ascertain the intent of the legislature. If an act passed by the legislature is within its constitutional power, it is not the business of the court to attempt to twist the interpretation of the law to conform to the ideas of the judges as to what the law ought to be or to attempt to make the law coincide with their ideas of social justice. The judicial function should not invade the province of the legislature. In its endeavor to ascertain the legislative intent, the court in construing the meaning of the law takes into consideration not only the language of the law but the circumstances existing when the law was made by the legislature and the purpose sought to be accomplished by it. Where circumstances have arisen not within the contemplation of the legislature when a law was passed so that a literal interpretation of the statute would work a result not contemplated or intended by the legislature which enacted it, courts have frequently recognized implied exceptions to legislative acts. "The letter of a law is not in all cases a correct guide to the true sense of the lawmaker. Statutes general in their terms are frequently construed to admit implied exceptions." Kelley v. Killourey, 81 Conn. 320, 321,70 A. 1031. "General terms descriptive of a class of persons made subject to a criminal statute may and should be limited where the literal application of the statute would lead to extreme or absurd results, and where the legislative purpose gathered from the whole Act would be satisfied by a more limited interpretation." United States v. Katz, 271 U.S. 354, 362,46 Sup. Ct. 513. "To construe statutes so as to avoid absurd or glaringly unjust results, foreign to the legislative purpose, is . . . a traditional and appropriate function of the courts. Judicial nullification of statutes, admittedly valid and applicable, has, happily, no place in our system. The Congress by legislation can always, if it desires, alter the effect of judicial construction of statutes." Sorrells v. United States,287 U.S. 435, 450, 53 Sup. Ct. 210. This principle has been recently recognized in this state in the case of New Haven Savings Bank v. Warner, 128 Conn. 662,668, 25 A.2d 50. We held that General Statutes, 4929, directing commissioners on insolvent estates to inquire into and report to the court the cash value of any security which a creditor of such an estate may have for his claim, did not apply to commissioners on solvent estates, notwithstanding the provision of General Statutes, 4920, that commissioners on solvent estates shall have "all the powers and duties" concerning such a claim appertaining to commissioners appointed upon insolvent estates.

General Statutes, 6246, was passed as Chapter 78 of the Public Acts of 1879. It was entitled "An Act to Amend an Act concerning Offences against Decency, Morality, and Humanity." It provided: "Every person who shall sell, or lend, or introduce into any family, college, academy, or school, or shall have in their possession, for any such unlawful purpose or purposes, any obscene, lewd, or lascivious book, pamphlet, paper, picture, print, drawing, figure, or image, or other publication of an indecent nature, or who shall manufacture, sell, advertise for sale, or have in their possession, for any such unlawful purpose or purposes, any article, thing, or instrument designed, or intended and adapted for, any indecent and immoral use, purpose, or nature or use any drug, medicine, article, or instrument whatsoever, for the purpose of preventing conception, or causing unlawful abortion, shall be fined," etc. Prior to this amendment, the statute read: "Every person, who shall purchase or introduce into any family, college, academy or school, any printed or engraved matter containing obscene language, prints, or descriptions, or any drawing or figure of an obscene character, shall be fined . . . ." General Statutes, 1875, p. 513, Tit. 20, Chap. 8, 4. The act of 1879 followed very closely in its language the Comstock Act, passed by Congress in 1873. 17 Statutes at Large 598, Chap. 258; Dennett, Birth Control Laws, p. 19. Both the federal and the state acts were passed principally for the purpose of preventing obscenity and the dissemination of obscene and lewd literature. In the revision of our General Statutes in 1888, the obscenity law was broken up into several sections, and the section of the statute dealing with contraceptives was made into a separate section. General Statutes, 1888, 1539.

There was no judicial interpretation of this statute in this state until the Nelson case in 1940, sixty-one years after its enactment. The fact that the legislature on various occasions refused to amend the statute is of no significance as to what was meant by it when it was adopted in 1879. "The legislature cannot authoritatively declare what the law is or has been; that is a judicial function and appertains to the courts." Lewis' Sutherland, Statutory Construction (2d Ed.), 358. But, even if it be conceded that some weight should be given to the action of the legislature in refusing to expressly amend the statute since 1923, it might as plausibly be argued that its refusal indicated its belief that no amendment was necessary and that the act was not intended to and did not apply to physicians. State v. Kemp, 126 Conn. 60, 66, 9 A.2d 63; State v. Hayes, 127 Conn. 543, 578, 18 A.2d 895. Abortion statutes, although general in their terms, have been held not to prevent physicians from performing such operations when necessary to preserve the life of the mother. Commonwealth v. Sholes, 13 Allen (95 Mass.) 554, 558; State v. Rudman, 126 Me. 177, 181,136 A. 817. "Though the letter of the statute would cover all acts of abortion, the rule of giving a reasonable construction in view of the disclosed national purpose would exclude those acts that are in the interest of the national life. Therefore a physician may lawfully use the mails to say that if an examination shows the necessity of an operation to save life he will operate, if such in truth is his real position." Bours v. United States, 229 F. 960, 964, 144 C.C.A. 242.

In the federal courts, medical books and treatises are not considered as obscene matter, although they might fall literally within the definition of the law. United States v. Dennett, 39 F.2d 564, 568; United States v. One Obscene Book Entitled "Married Love," 48 F.2d 821, 823; United States v. One Book Entitled "Contraception," 51 F.2d 525, 527. The federal courts have also uniformly held that contraceptives used for medical purposes did not come within the purview of statutes prohibiting their importation or distribution through the mails. Youngs Rubber Corporation v. C. I. Lee Co.,45 F.2d 103, 108; Davis v. United States, 62 F.2d 473,475. In the unreported case of United States v. Belaval (U.S. District Court, Puerto Rico, 1939), it was held that the federal Comstock Act, as applied to the territories of the United States or the District of Columbia, did not prohibit the use of contraceptives when prescribed by physicians for patients suffering from diseases which, in the judgment of the physicians, might make it not only humane to prescribe such devices but necessary to their lives.

In United States v. One Package, 86 F.2d 737,739, the question before the court was whether the importation by a physician of certain devices for preventing conception violated the provisions of the Tariff Act of 1930, 19 U.S.C.A. 1305(a). In the opinion of the Circuit Court of Appeals, delivered by Augustus N. Hand, it was said: "It is true that in 1873, when the Comstock Act was passed, information now available as to the evils resulting in many cases from conception was most limited, and accordingly it is argued that the language prohibiting the sale or mailing of contraceptives should be taken literally and that Congress intended to bar the use of such articles completely. While we may assume that section 305(a) of the Tariff Act of 1930 (19 U.S.C.A. 1305[a]) exempts only such articles as the act of 1873 excepted, yet we are satisfied that this statute, as well as all the acts we have referred to, embraced only such articles as Congress would have denounced as immoral if it had understood all the conditions under which they were to be used. Its design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients. The word ``unlawful' would make this clear as to articles for producing abortion, and the courts have read an exemption into the act covering such articles even where the word ``unlawful' is not used. The same exception should apply to articles for preventing conception. While it is true that the policy of Congress has been to forbid the use of contraceptives altogether if the only purpose of using them be to prevent conception in cases where it would not be injurious to the welfare of the patient or her offspring, it is going far beyond such a policy to hold that abortions, which destroy incipient life, may be allowed in proper cases, and yet that no measures may be taken to prevent conception even though a likely result should be to require the termination of pregnancy by means of an operation. It seems unreasonable to suppose that the national scheme of legislation involves such inconsistencies and requires the complete suppression of articles, the use of which in many cases is advocated by such a weight of authority in the medical world.

"The Comstock Bill, as originally introduced in the Senate, contained the words ``except on a prescription of a physician in good standing, given in good faith,' but those words were omitted from the bill as it was ultimately passed. The reason for amendment seems never to have been discussed on the floor of Congress, or in committee, and the remarks of Senator Conklin, when the bill was up for passage in final form, indicate that the scope of the measure was not well understood and that the language used was to be left largely for future interpretation. We see no ground for holding that the construction placed upon similar language in the decisions we have referred to is not applicable to the articles which the government seeks to forfeit, and common sense would seem to require a like interpretation in the case at bar."

The argument is advanced by the state that in no case is it necessary to prescribe contraceptives in order to save the life of the patient. It is argued that in all cases it is possible for a married woman to avoid conception by a policy of continence and abstention from marital intercourse. Even if it be conceded that such a course of conduct is reasonably practicable, taking into consideration the propensities of human nature, the resort to such a practice would frustrate a fundamental of the marriage state. The alternative suggested in the argument of the state against permitting qualified physicians to give proper medical advice upon this subject would tend in many cases to cause unhappiness and discontent between parties lawfully married, would stimulate unlawful intercourse, promote prostitution, and increase divorce. According to the theory of the state, it is not lawful for a physician to prescribe articles so as to prevent conception, in the case of married women whose health will not permit them to bear children; but it is lawful in case such women do become pregnant to perform abortions upon them when necessary to preserve their lives. It is difficult to believe that the legislature in 1879, in passing the present statute as part of an act concerning offenses against decency, morality, and humanity, contemplated such a situation or that the law would be given such a construction. A proper respect for the legislature forbids an interpretation which would work such a result and be so contrary to human nature. A reasonable construction of the statute, considering its history and the circumstance under which it was enacted, requires that it be so interpreted as to permit duly licensed physicians to prescribe to married women contraceptive devices and information necessary to prevent conception when in the judgment of the physician conception would imperil the life or health of the patient. In the Massachusetts case of Commonwealth v. Gardner, supra, the federal cases are referred to and brushed aside as either distinguishable or not persuasive. In State v. Nelson, supra, 419, the same position was taken by the majority of this court, but in neither of these cases is any reason given why the arguments advanced in the federal cases are not convincing or why an interpretation should be given to a law passed in 1879 which the legislators at that time did not think of or allude to.

The case of Commonwealth v. Gardner was not only contrary to the position taken by the federal courts but in its practical application has been greatly weakened by the subsequent decisions in Commonwealth v. Corbett,307 Mass. 7, 29 N.E.2d 151, and Commonwealth v. Werlinsky, 307 Mass. 608, 29 N.E.2d 150. While in the Gardner case the Massachusetts court held (p. 375) that their statute provided "absolute and unconditional prohibition against the sale, gift, or loan of contraceptive drugs, medicines, or articles for that end," in the later cases it was held that notwithstanding the absolute prohibition in the language of the statute the seller of an article which could be used to prevent conception but also could be used to prevent the spread of venereal disease could not be convicted under the Massachusetts statute without proof that in selling the article he sold it with the intent that it be used to prevent conception. By these later decisions, the Supreme Court of Massachusetts not only read an exception into their statute not recognized in the Gardner case but did this in such a manner as to render the statute as a practical matter wholly nugatory so far as preventing the sale of certain kinds of contraceptive devices is concerned. It is difficult to understand that the legislature of Massachusetts intended to authorize the indiscriminate sale of the filthy devices described in the Corbett case and at the same time intended to prohibit licensed physicians from giving advice in regard to the use of contraceptives to married women when such advice was required to conserve the life or health of their patients.

The majority take the position that if the physician gave the patient information upon this subject it would violate General Statutes, 6246, for the patient to avail herself of the information and use the articles prescribed. In advancing this opinion, the majority is attempting to decide a case not before us. No authority is given for its position. If the case were before us for decision, it is believed that what the physician may lawfully prescribe the patient may lawfully use and that the exception which should be made to the statute in the case of the physician should also be made in the case of the patient acting upon the advice of the physician.

The majority also state that the patient could not obtain the requisite drugs and appliances because their sale is unlawful. It is agreed by the parties in the stipulation that if the plaintiff physician may lawfully do so he "will cause to be procured and delivered to said patients such drugs, articles and instruments, and will as a physician instruct, or cause them to be instructed, how to use the same in a safe, sanitary and effective manner." The majority also overlook the fact that the manufacture of such articles is quite general¹ and that they may be transmitted by mail to physicians for their lawful use. Davis v. United States,62 F.2d 473, 475.

It follows that as to all the cases specified in the reservation the answer should be that the physician may lawfully give such advice so far as in his professional judgment it is required in the interest of the life or health of the patient.

In this opinion JENNINGS, J., concurred.