479 GRISWOLD v. CONNECTICUT. STEWART, J., dissenting. 529 not even been argued that this is a law "respecting an establishment of religion, or prohibiting the free exercise thereof." " And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." No soldier has been quartered in any house. There has been no search, and no seizure." Nobody has been compelled to be a witness against himself." The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U. S. 100, 124, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that U. S. Constitution, Amendment I. To be sure, the injunction contained in the Connecticut statute coincides with the doctrine of certain religious faiths. But if that were enough to invalidate a law under the provisions of the First Amendment relating to religion, then most criminal laws would be invalidated. See, e. g., the Ten Commandments. The Bible, Exodus 20:2-17 (King James). U. S. Constitution, Amendment I. If all the appellants had done was to advise people that they thought the use of contraceptives was desirable, or even to counsel their use, the appellants would, of course, have a substantial First Amendment claim. But their activities went far beyond mere advocacy. They prescribed specific contraceptive devices and furnished patients with the prescribed contraceptive materials. U. S. Constitution, Amendment III. 5 U. S. Constitution, Amendment IV. 6 U. S. Constitution, Amendment V. 530 OCTOBER TERM, 1964. STEWART, J., dissenting. 381 U.S. the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder. What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.' At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial "Cases like Shelton v. Tucker, 364 U. S. 479 and Bates v. Little Rock, 361 U. S. 516, relied upon in the concurring opinions today, dealt with true First Amendment rights of association and are wholly inapposite here. See also, e. 9., NAACP v. Alabama, 357 U. S. 449; Edwards v. South Carolina, 372 U. S. 229. Our decision in McLaughlin v. Florida, 379 U. S. 184, is equally far afield. That case held invalid under the Equal Protection Clause, a state criminal law which discriminated against Negroes. The Court does not say how far the new constitutional right of privacy announced today extends. See, e. g., Mueller, Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose, however, that even after today a State can constitutionally still punish at least some offenses which are not committed in public. 479 GRISWOLD v. CONNECTICUT. STEWART, J., dissenting. 531 duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books." See Reynolds v. Sims, 377 U. S. 533, 562. The Connecticut House of Representatives recently passed a bill (House Bill No. 2462) repealing the birth control law. The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7. Part 6 Medical and Scientific Consideration [From the Washington Star, Mar. 21, 1976] MARIHUANA EASES CANCER SUFFERING (By Chrisine Russell) BOSTON-The Sidney Farber Cancer Center scientists had informally heard descriptions of the medicinal magic of marihuana from patients undergoing chemotherapy for cancer. When conventional antivomiting drugs had proven unsuccessful, smoking marihuana helped control the violent nausea and stomach upset which frequently were side-effects of their anti-cancer treatments. To find out whether these anecdotes about marihuana's therapeutic effects were folklore or fact. Drs. Stephen Sallan, Norman Zinberg, and Emil Frei III decided to conduct a controlled study of the principal chemical ingredient in marihuana-delta-9-tetrahydrocannabinol, or THC. They took a group of 22 hospitalized cancer patients for whom nothing else worked and, in a controlled experiment, provided them with oral doses of either THC or placebo (sugar pills) when they were undergoing the cancer-countering but nausea-producing chemotherapy. Each person was to serve as his own control, assessing nausea, vomiting and food intake on the day after treatment through the use of a self-administered questionnaire. The results were dramatic. No person vomited while experiencing a subjective “high.” Overall, significant reduction in nausea and vomiting was observed at least 70 percent of the time with THC, but occurred in none of the placebo tests. The Boston researchers presented these findings last fall in the prestigious New England Journal of Medicine. Since the study was published, Sallan has heard from dozens of physicians anxious to find a better way of treating their own cancer patients. He has heard from the families of cancer patients. And he has heard from the patients themselves. In each case Sallan has necessarily given the same unsatisfactory reply. Since the drug is illegal, he cannot provide it to those who want to try its medicinal properties. Writes Sallan: "I regret to inform you that because tetrahydrocannabinol is a Schedule I drug, it is not available by prescription . . . I appreciate your dilemma and am aware of one's suffering and helplessness in the face of the severe nausea and vomiting associated with chemotherapy. I wish I could be of more help to you at this time, but I am only licensed to use the drug within our institution under very tightly controlled circumstances. Hopefully, in the near future, this situation will change." But Sallan is pessimistic about the prospect of extending THC to cancer patients on a widespread basis. He's worried that the politics of policing marihuana will continue to interfere with legitimate attempts to put the drug into prescribed medical use. For his own dealings with the federal agencies overseeing marihuana research have been discouraging, filled with distressing delays and obstructions. Other scientists interested in investigating the drug have had similar experiences with the endless red tape, discouraging enough to lead Dr. William Regelson of the Medical College of Virginia to conclude "that the hassle just isn't worth it." Because of what he called "overregulation," Regelson doesn't want to work with the drug any more, despite the encouraging results of his preliminary study on an advanced cancer population which indicated that THC seemed to have beneficial effects on depression, pain, nausea, and appetite. (2685) |