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POPULATION SERVS. INTL. v. WILSON

October 23, 1974

POPULATION SERVICES INTERNATIONAL et al., Plaintiffs,
v.
Malcolm WILSON, Individually and as Governor of the State of New York, et al., Defendants



The opinion of the court was delivered by: PIERCE

OPINION AND ORDER

 PIERCE, District Judge.

 Plaintiffs in this action seek a judgment declaring Section 6811(8) of the McKinney's Consol.Laws, c. 16, Education Law of the State of New York to be unconstitutional as violative of the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution, to the extent that the section is applied to non-prescription contraceptives. They also seek preliminary and permanent injunctions against enforcement of the section to that extent. Jurisdiction is grounded on 28 U.S.C. §§ 1331, 1343(3) and (4), 2201, 2202, 2281 and 2284, and 42 U.S.C. § 1983.

 Plaintiffs have moved this Court for an order empanelling a three-judge district court to hear the case. Defendants oppose the motion and, in addition, have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (FRCP). For the reasons detailed below, the plaintiffs' motion is granted and the defendants' motion is denied.

 The complaint contains a single count. Seven plaintiffs are named. Plaintiff, Population Services International (hereinafter PSI), is alleged to be a North Carolina non-profit corporation whose primary objectives are to discover and implement new methods of conveying birth control information and services to persons not now receiving them with the ultimate goals of reducing unwanted pregnancy, fertility and population growth. Its activities include test marketing, product development, advertisement and display of contraceptives. Its activities occur in the United States, including the State of New York. Part of its funds for educational, scientific and research activities is allegedly received from federal grants and contracts.

 Plaintiff, Dr. Anna T. Rand, is a physician licensed to practice medicine in New York State. She is alleged to be the Director of Family Planning at Albert Einstein College of Medicine and at Bronx Municipal Hospital, both in New York City. Her family planning programs include the distribution of contraceptives. Her patients in such programs include sexually active persons who are under the age of sixteen.

 Plaintiff, Dr. Edward Elkin, is a physician licensed to practice medicine in New York State. It is alleged that he practices medicine as a pediatrician and physician for adolescents at the Adolescent Clinic at Mount Sinai Hospital in New York City, where he treats sexually active adolescents under and over the age of sixteen.

 Plaintiff, Dr. Charles Arnold, is a physician licensed to practice medicine in New York State. It is alleged that his primary professional interests include family planning and the establishment of programs for the distribution of contraceptive devices to sexually active adolescents over and under the age of sixteen.

 Plaintiff, Reverend James B. Hagen, is an ordained minister of the Protestant Episcopal Church. He is alleged to be the Coordinator of the Sunset Action Group against V.D., the sponsor of a program in which male contraceptive devices are sold and distributed, both at the church and at a local retail outlet which is not a licensed pharmacy, to residents of Brooklyn, New York, who are over and under the age of sixteen.

 Plaintiff, John Doe, alleges that he is forty-three years of age, is married, has four children and engages actively in sexual conduct.

 Plaintiff, Population Planning Associates (hereinafter PPA), is a North Carolina corporation which maintains an office in the County, City and State of New York. It is alleged to be primarily engaged in the retail sale of nonmedical contraceptives through the United States mails. PPA advertises its products in national periodicals entering New York State and occasionally places such advertisements in local periodicals in New York State.

 The challenged statute reads:

 
"Sec. 6811. Misdemeanors
 
It shall be a class A ...

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