In Carey v. Population Services International, 431 U.S. 678 (1977), the Supreme Court invalidated a New York law prohibiting the advertisement and display of contraceptives to consumers. The law also forbade the sale or provision of contraceptives to individuals under 16 years of age and limited the dispensing of contraceptives to adults to licensed pharmacists. The plaintiffs in this case included commercial distributors of contraceptive and birth control services and information that advertised their products and services in New York periodicals.

Citing its invalidation of state bans on the sale and dissemination of contraceptives in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), the Court held that the New York statute’s limiting distribution to pharmacists and disallowing advertising violated the right of privacy. Although conceding that not every regulation on contraception is unconstitutional, the Court in this case ruled that because New York’s limitation on access to contraception through licensed pharmacists included nonmedical contraception, it “clearly imposes a significant burden on the right of individuals to use contraceptives if they so choose.” It noted that the expertise of a licensed pharmacist is not required to protect citizens from nonmedical (and thus non-hazardous) contraception.

The Court also dismissed the state’s prohibition on providing contraception to minors under 16. First, an absolute ban on nonhazardous contraception failed to advance the state’s interest in the health of minors. Second, the state’s interest in discouraging adolescent intercourse by making contraception unavailable increased the hazards of sex for these young people, essentially making pregnancy (or a sexually transmitted disease) a state-prescribed punishment for teenage fornication.

In dismissing the advertising and display regulations of the statute, the Court employed the reasoning of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), which dealt with the regulation of commercial speech. The statute in the Virginia case, like the one in Carey, did not prohibit false advertising or the promotion of illegal activity. The statute also did not restrict speech based on legitimate considerations of time, place, and manner, which are permissible state interests in the regulation of commercial speech. Quoting from its holding in Virginia State Board of Pharmacy, the Court in Carey “held that a State may not ‘completely suppress the dissemination of concededly truthful information about entirely lawful activity,’ even when that information could be categorized as ‘commercial speech.’ ” Several years later, the Supreme Court extended Carey in Bolger v. Youngs Drug Products Corp. (1983), ruling that a state could not prohibit the unsolicited mailing of contraceptive advertisements.

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