Today in 1943: The Supreme Court dismisses challenge to anti-contraception laws

February 1, 2013

Today in Legal HistoryUsually, the most significant dates in Supreme Court history are found in June, at the end of its term when the vast majority of its landmark decisions are announced.

However, February 1 is somewhat of a milestone date for the Supreme Court.

Most notably, John Jay, the first Chief Justice, called for the Court to first assemble on February 1, 1790 at the Merchants Exchange Building in New York City, the Nation’s capital at the time.

However, because of transportation problems, the other two Justices – William Cushing and John Blair – couldn’t attend.  As such, Chief Justice Jay postponed the first meeting of the Court until the next day (at which time the two other Justices were sworn in).

One-hundred fifty-three years after, on February 1, 1943, the Supreme Court ruled on Tileston v. Ullman, which dismissed a challenge to the constitutionality of a set of Connecticut laws that outlawed contraceptives.

The laws, which specifically banned “the use of drugs or instruments to prevent conception,” and “the giving of assistance or counsel in their use,” were challenged by Wilder Tileston, a physician.

Tileston sought a declaratory judgment that the laws violated the Constitution’s prohibition against deprivation of life without due process, as found in the Fourteenth Amendment.

How was this “deprivation of life” alleged?

Tileston claimed that the laws “would prevent his giving professional advice concerning the use of contraceptives to three patients whose condition of health was such that their lives would be endangered by child-bearing.”

In short, Tileston argued that the laws interfered with his patients’ due process rights by preventing him from dispensing contraceptives; the Court didn’t buy this line of reasoning.

Instead, it found that Tileston lacked standing, and dismissed the challenge without addressing the constitutional question.

Now, you constitutional law buffs may have been reminded of another case when hearing about Tileston, one that also involved Connecticut and anti-contraceptive laws: Griswold v. Connecticut.

Griswold was decided 22 years later in June of 1965, and dealt with the successor laws to the ones challenged in Tileston.

Like in Tileston, Griswold’s plaintiffs also included a physician.

Unlike Tileston, however, Griswold’s physician was arrested and convicted for giving “information, instruction, and medical advice to married persons as to the means of preventing conception.”

Because the laws’ challengers in Griswold were actually criminally prosecuted for violating the law, the Court found that they had standing, distinguishing Griswold from Tileston.

Nevertheless, under current standing jurisprudence – and possibly even of that dating back to 1973’s Roe v. Wade – the challengers in Tileston would have likely passed the standing threshold since today’s standards looks not at whether someone has actually been criminally prosecuted, but whether they face the mere threat of prosecution.

Given the time in which Tileston was decided, it’s not surprising that the Supreme Court decided to effectively punt the issue by dismissing the case on standing grounds (as it also did in 1961’s Poe v. Ullman, a case extremely similar to Tileston).

In any case, the effect of the Court’s ruling in Tileston remains noteworthy: almost the exact same Connecticut contraception bans that were struck down in Griswold survived in Tileston.

It kind of makes you wonder whether the Supreme Court will soon strike down another set of state laws (<cough>same-sex marriage bans<cough>) that had survived previous SCOTUS rulings on jurisdictional grounds (<cough>Baker v. Nelson<cough>).