Consortium in Connecticut

Late every night in Connecticut, lights go out in the cities and towns, and citizens by tens of thousands proceed zestfully to break the law. The law thus flouted, probably more intensively than ever Prohibition was, undertakes the ineffable task of forbidding anyone to use "any drug, medicinal article or instrument for the purpose of preventing conception.'' The penalty can be rough (a $50 fine and as much as a year in prison). And. of course, there is always a witness to the crime--but as though to make the law completely unenforceable Connecticut forbids spouses from testifying against one another.

Another state law makes a criminal of "any person who assists, abets, counsels, causes, hires or commands" another to use contraceptives.* Last week these two laws--and the irrationality and paradoxes that come in their wake--were put up for test in the U.S. Supreme Court.

Mrs. Doe & Mrs. Poe. The plea was made by Dr. Charles Lee Buxton, 56. chairman of the department of obstetrics and gynecology at Yale University and of the obstetric services at Grace-New Haven Community Hospital. He made his case by citing the plights of two of his patients, pseudonymously listed as Mrs. Doe and Mrs. Poe.

Jane Doe, 27, was pregnant when she was admitted to the hospital in 1957 and found to have high blood pressure, heart disease, overactive adrenal glands, and a mysterious, often fatal blood condition called toxemia of pregnancy. Doctors decided to end the pregnancy, but before they could operate on Mrs. Doe. she had a stroke that left her partly paralyzed. Then her baby was stillborn. She still has severe right-side paralysis, heart disease, kidney damage, impairment of speech and emotional instability. It is Dr. Buxton's judgment as a physician that another pregnancy might easily kill Mrs. Doe. He wants to advise heras he could in 49 states--to use contraceptive devices.

Pauline Poe. 28, has had three pregnancies, all of which ended in the birth of grotesquely malformed babies that died in a few days or weeks. "Another pregnancy would be extremely disturbing to the Poes' physical and mental health.'' in Dr. Buxton's professional opinion.

For himself. Dr. Buxton pleaded that he was being unconstitutionally deprived of a valuable property right--to practice the best modern medicine. On her part. Mrs. Doe claimed that she was being deprived of her constitutional right to life.

Appealing against rulings by Connecticut's Supreme Court of Errors, the Buxton-Doe-Poe plaintiffs argued before the full nine-man U.S. bench that:

P:Connecticut's horse-and-buggy law prohibits the most effective methods of contraception but encourages the least effective and least desirable (rhythm system, douche, coitus interruptus, abstinence). "The State of Connecticut says to these women. 'You may try to save your life or emotional health by methods least likely to succeed.' " said Yale Law Professor Fowler Harper, plaintiffs' counsel.

P:The laws, supposedly intended to dis courage promiscuity, fail because devices forbidden for contraception are actually on general sale "to prevent disease." and are easily available even to the unmarried.

P:"The mainstream of scientific thought" holds that limitation of births all over the world ("of which Connecticut is a part") is desirable for health and necessary to the survival of the human race.

P:As an alternative to having unwanted children, the laws "deprive married people of the benefits of consortium" (legalese for marital intercourse).

P:Connecticut's laws "interfere mercilessly with the most intimate and sacred experiences of life" and "are a hazard to lives and health."

"Police Power." For the defense, Assistant Attorney General Raymond J. Cannon argued that the laws are "a proper exercise of the police power of the state." Said Roman Catholic Cannon: "A state has exclusive jurisdiction over the morals of its people." He got a rough grilling.

Chief Justice Earl Warren asked: "If Mrs. Doe's life is endangered unless she receives the treatment sought to be prescribed, do you believe" the state should prevent her getting such treatment?" Cannon hedged. The Chief Justice pressed again: "Even if it is conceded that the lady would die?" Obviously unhappy, Cannon said yes.

"That." said Justice Potter Stewart, "is like telling a patient he has appendicitis and will die unless his appendix is removed, but not allowing its removal."

Justice William J. Brennan. a Roman Catholic, noted that the law's most serious effect was to prevent operation of birth-control clinics: the last one in Connecticut was shut down in 1939 after two doctors and a nurse were prosecuted under the 1879 law-Cannon also argued that in virtually every session of the state legislature since 1923, bills to amend or repeal the 1879 law have been introduced and all have failed. Therefore, contended Cannon, the law "represents the will of the people." That was a way of saying that Connecticut politicians of whatever creed cringe before the presumed power of the Roman Catholic Church, which counts 1.138,600 adherents (45.2% of the state's population ) and campaigns openly in favor of retaining the law-even though it takes no law whatever not to practice birth control. But in Connecticut as elsewhere, many Catholics defy the hierarchy and use medical contraception.

Collectors' Items? It was Justice Felix Frankfurter who brought down the court--and the house. "Can you go into any drugstore in Hartford, as you can in the wicked city of New York, and buy contraceptives?" Not to his personal knowledge, replied Cannon cannily. The operative word was "personal."' Virtually every Connecticut drugstore sells condoms freely, and most sell diaphragms and spermicidal jellies and creams right along with teddy bears and cosmetics.

Frankfurter persisted, deadpan. How did anybody know what the devices were bought for? "A person might not buy them for use." he mused. "Some people might just want to collect them. People collect all sorts of queer things. Some people collect matchboxes. I know a man who collects sausage containers."

When the spoofing was finished, the court took the case under advisement. Whether it would ever issue a ruling was not certain. Frankfurter had laid the basis for an opinion that the case was hypothetical, since nobody had been punished under the law. But the unenforceable law would remain on the books unless the court acted. There are two repeal bills in the Connecticut legislature, but neither seems to have a chance of passage.

*In forbidding the use of contraceptive devices, Connecticut is unique among the 50 states, and the laughingstock of all of them.

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