300 Mass. 372 | Mass. | 1938
It is provided by G. L. (Ter. Ed.) c. 272, §21, that "Whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away . . . any drug, medicine, instrument or article whatever for the prevention of conception” shall be punished. The penalty stamps the crime thus created as a felony. Violation of this statute at a specified time and place was charged against each of the defendants in these four cases. When the cases came on for trial it was agreed that the defence consisted of the facts set forth in the written statement of facts presented by them, and that there was no other defence. The trial judge then heard counsel upon the question of law whether this offer of proof constituted a defence. Each defendant, having waived the right to trial by jury, was convicted by the trial judge in the Superior Court and was sentenced to pay a fine. It was admitted at the trial that two of the defendants sold and gave away articles and medicine for the prevention of conception to various patients after another defendant, who was a physician, with the assistance of the fourth defendant, who was a nurse, had examined the patients, and that they were sold or given in accordance with instructions given by the physician either personally or through the nurse. The four defendants were present in the offices of the North Shore Mothers' Health Office in Salem, though not in the same room, when the examinations were made, the directions given, and the contraceptives prescribed and sold or given to the patients. The only defence was set forth in an offer of proof. Briefly summarized, it was there stated that the North Shore Mothers' Health Office was an association of persons which conducted the office where the acts charged in these cases took place. It is a charitable organization supported by charitable contributions. That association employed a doctor, who was a duly qualified physician and in charge of
The defendants contend that the statute does not apply to drugs, medicines, instruments, or articles for the prevention of conception when they are intended for such use only upon prescription by a duly qualified physician for the preservation of life or health according to sound and generally accepted medical practices, and that, otherwise, the statute is unconstitutional under both the State and the Federal Constitutions.
The terms of G. L. (Ter. Ed.) c. 272, § 21, already quoted,
The provisions of G. L. (Ter. Ed.) c. 272, § 21, first appeared in St. 1879, c. 159, in substantially the same words as are now used. That was the earliest enactment in this Commonwealth respecting the prevention of conception. In framing legislation under the police power the Legislature, without any denial of rights under either the State or the Federal Constitution, might take the view that the use of contraceptives would not only promote sexual immorality but would expose the Commonwealth to other grave dangers. Even though prevention of conception by medical advice and treatment was not unknown in 1879, and might have been the subject of an exception from the general legislative prohibition if the Legislature had deemed such an exception consonant with public policy, the Legislature had equal power to adopt the contrary view that such an exception would endanger the effectiveness of the statute. If any exception had been intended to the broad prohibition enacted, it would have been easy to give expression to it in the statute. In the State of New York, physicians are permitted by statute to prescribe contraceptives under limited and defined circumstances. New York Penal Law, § 1145. People v. Sanger, 222 N. Y. 192. The inference seems necessary that the moral and social wrongs arising from the prevention of conception appeared to the General Court so threatening in 1879, when the statute was originally enacted, that absolute and uncon
It was said in Somerset v. Dighton, 12 Mass. 383, 384-385: “in the exposition of statutes, such a construction should be given as will best effectuate the intention of the makers. In some cases, the letter of a statute may be restrained by an equitable construction; in others, enlarged; and, in others, the construction may be even contrary to the letter. For a case may be within the letter and not within the meaning of a statute.” Zoulalian v. New England Sanatorium & Benevolent Association, 230 Mass. 102, 105. Commonwealth v. Welosky, 276 Mass. 398, 403. Church of the Holy Trinity v. United States, 143 U. S. 457, 459. Sorrells v. United States, 287 U. S. 435, 446. Jacobson v. Massachusetts, 197 U. S. 11, 38, 39. That principle, in our opinion, is not applicable to the cases at bar, in view of the language of statute. There is nothing in the circumstances of the cases at bar, or in the history of the statute, to support the conclusion that physicians or those acting under their instructions were intended to be excepted from the operation of the statute.
The defendants rely upon decisions by Federal courts upon somewhat similar points. A suit for infringement of a trade-mark was involved in Youngs Rubber Corp. Inc. v. C. I. Lee & Co. Inc. 45 Fed. (2d) 103. The Federal statute there in issue was more or less obscure, but was interpreted to mean that it was intended to require a purpose that the article sent through the mails was to be used for illegal contraception. Stress was laid, in the opinion, upon New York Penal Law, §§ 1142, 1145, and People v. Sanger, 222 N. Y. 192, as showing that use of contraceptives by physicians was made lawful in the State of New York. This decision was followed in Davis v. United States, 62 Fed. (2d) 473. United States v. One Package, 86 Fed. (2d)
In each case the entry may be
Exceptions overruled.