Hyperlawhypertext legal database People v. Sanger 36 N.Y. Crim. 229

← Cases

People v. Sanger

36 N.Y. Crim. 229 Court COURT OF APPEALS. Decision date 1918-01-08 English

Delivered by Crane, J.:

Contents

Majority

p. 229
COURT OF APPEALS.
January 8, 1918.
THE PEOPLE v. MARGARET H. SANGER.
(222 N. Y. 192.)

Headnote

1. Constitutional law—Only person accused can plead unconstitutionally of A LAW.
The general rule applies in a criminal as well, as a civil case that no one can plead the unconstitutionality of a law except the person affected (thereby.
2. Same—PEnal Law, § 1142—Dissemination of information for prevention OF CONCEPTION.[1]
The provision of section 1142 of the Penal Law, which makes it a misdemeanor to sell, advertise or give information for the prevention of conception, does not violate the Constitution.
People v. Sanger, 179 App. Div. 939 , affirmed).
Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 31, 1917, which affirmed a judgment of the Court of Special Sessions of the city of Hew York convicting the defendant of a violation of section 1142 of the Penal Law.'
The facts, so far as material, are stated in the opinion.
Jonah, J. Goldstein for appellant.
Section 1142 violates both the Federal and State Constitutions, -as to individual liberty, because of its failure of regulation. It establishes an absolute inhibition of the dissemination of information to all persons, in that it fails to make provision for cases- of women who suffer from certain infirmities, whereby the statute endangers their lives and brings about a condition injurious to their health.
p. 230
The inhibition precludes physicians from giving any information even where conception would make pregnancy dangerous or fatal. (Fisher v. Woods, 187 N. Y. 90 ; Barry v. Vil. of Port Jervis, 72 N. Y. Supp. 120 .)
Harry E. Lewis, District Attorney (Harry G. Anderson of counsel), for respondent.
Section 1142 of the Penal Law is constitutional. (People v. Fegelli, 163 App. Div. 576 , 214 N. Y. 610 ; N. S. Bank v. Haskell, 219 U. S. 104 ; People v. Byrne, 99 Misc. Rep. 1 ; M. P. Co. v. Bell, 179 App. Div. 13 ; Ackley v. United States, 200: Fed. Rep. 217; Viemeister v. White, 179 N. Y. 235 ; People ex rel. Nechamcus v. Warden, 144 N. Y. 529 ; Armour v. North Dakota, 240 U. S. 510 ; Bertholf v. O’Reilly, 74 N. Y. 509 ; Bank of Chenango v. Brown, 26 N. Y. 467 .)

Section 1142 of the Penal Daw, among other things, makes it a misdemeanor for a person to' sell, or give away, or to advertise or offer for sale, -any instrument or article, drug or medicine, for the prevention of conception; or to give information orally, stating when, where or how such an instrument, article or medicine can be purchased or obtained.

The appellant was convicted in the Court of Special Sessions of the city of Flew York, borough of Brooklyn, for a violation of this section, and sentenced to- thirty days in the workhouse. She claims that the law is unconstitutional.

Some of the reasons assigned below- for the illegality of this act have now been abandoned and it is conceded to be within the police power of the Legislature, for the benefit, of the- morals and health of the community, to make such a law as this applicable to unmarried1 persons. But it is argued that if this law be broad enough to prevent a duly licensed physician from giving advice and help to his married patients in a proper case, it

p. 231
is an unreasonable police regulation, and, therefore, unconstitutional. There are two answers to ¡his suggestion.

In the first place, the defendant is not a physician, and the general rule applies in a criminal as well as a civil case that no one can plead the unconstitutionality of a law except the person affected thereby. (Collins v. State of Texas, 223 U. S. 288 , 296; People v. McBride, 234 Ill. 146 , 164; Isenhour v. State, 157 Ind. 517 , 520; State v. Haskell, 84 Vt. 429 , 441; Commissioners of Franklin Co. v. State ex rel. Patton, 24 Fla. 55 .)

Secondly, by section 1145 of the Penal Law, physicians are excepted from the provisions of this act under circumstances therein mentioned. This section read's: “An article or instrument, used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this article. The. supplying of such articles to such physicians or by their direction or prescription, is not an offense under this article.”

This exception in behalf of physicians does not permit, advertisements regarding such matters, nor promiscuous advice to patients irrespective of their condition, but it is broad1 enough to protect the physician who in good faith gives such help or advice to a married person to cure or prevent disease. “ Disease,” by Webster’s International Dictionary, is defined to be “ an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness ; sickness; disorder.”

The protection thus afforded the physician would also' extend to the druggist, or vendor, acting upon the physician’s prescription or order.

Much of the argument presented to us by the appellant touching social conditions and sociological questions are matters for the Legislature and not for the courts.

p. 232
The judgment appealed from should be affirmed.

Hiscock, Oh, J., Chase, Collin, Cabdozo and Andrews, JJ., concur; Hogah, J., concurs in result.

Judgment .affirmed.

Cases cited