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July 2, 1975

Malcolm WILSON, Individually and as Governor of the State of New York, et al., Defendants

The opinion of the court was delivered by: PIERCE

PIERCE, District Judge.

Plaintiffs have brought this action seeking declaratory and injunctive relief against enforcement of Section 6811(8) of the New York State Education Law, McKinney's Consol.Laws, c. 16, insofar as that section applies to non-prescription contraceptives. *fn1" Plaintiffs claim that as applied to the aforesaid items, the statute violates the First, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution. Specifically, the plaintiffs claim, inter alia, that the statute violates the constitutional right of privacy of New York State residents, which embraces a right to obtain non-prescription contraceptives, and that it restricts the First Amendment right of New York State residents to receive information concerning such products, as well as the plaintiffs' own right to dispense such information. *fn2" The action is brought under 42 U.S.C. § 1983 and its jurisdictional counterpart 28 U.S.C. § 1343(3).

 Following oral argument before the Court, plaintiffs moved for summary judgment, pursuant to Rule 56 Fed.R.Civ.P., claiming that there is no genuine issue of material fact to be tried and that they are entitled to judgment as a matter of law. Defendants oppose the motion for summary judgment and have moved to dismiss the complaint.

 The challenged statute reads as follows:

"It shall be a class A misdemeanor for:
* * *
8. Any person to sell or distribute any instrument or article, or any recipe, drug or medicine for the prevention of conception to a minor under the age of sixteen years; the sale or distribution of such to a person other than a minor under the age of sixteen years is authorized only by a licensed pharmacist but the advertisement or display of said articles, within or without the premises of such pharmacy is hereby prohibited;" N.Y. Educ. Law § 6811(8) (McKinney 1972).

 Plaintiffs seek relief against each of the three provisions of the statute.


 Plaintiffs in this action are:

 1. Population Planning Associates, Inc. [ PPA ]. PPA is alleged to be a North Carolina corporation which maintains an office in the County, City, and State of New York. The supplemental complaint alleges that PPA is primarily engaged in the retail sale of non-medical contraceptive devices through the United States mails; that it publishes advertisements containing order forms for its products in national periodicals entering New York State and occasionally places such advertisements in periodicals published and circulated in New York State; that it approves and fills orders for its products, including orders from New York State residents, at its North Carolina office; and that PPA also mails contraceptive devices to New York State residents from that office.

 2. Population Services International [ PSI ]. Plaintiff PSI is alleged to be a North Carolina non-profit corporation with an office in the County, City, and State of New York. Its primary objectives are alleged to be discovering and implementing new methods of conveying birth control information and services to persons who do not now receive them, with the ultimate goal of reducing fertility, unwanted pregnancy, and population growth. Its activities, some of which are said to be performed within the State of New York, include development, test marketing, advertising and

 3. The Reverend James B. Hagen [ Hagen ]. Plaintiff Hagen is alleged to be an ordained minister of the Protestant Episcopal Church and Rector of a church in Brooklyn, New York. The supplemental complaint alleges that he is also coordinator of the Sunset Action Group Against V.D., which sponsors a program in which male contraceptive devices are sold and distributed to persons who are both over and under the age of sixteen, both at the church in Brooklyn, New York, and at a local retail outlet

 4. Dr. Anna T. Rand, Dr. Edward Elkin, and Dr. Charles Arnold. Doctors Rand, Elkin, and Arnold are alleged to by physicians active in family planning, pediatrics, and obstretics-gynecology. It is alleged that they treat sexually active adolescents both over and under the age of sixteen and that they advocate the distribution of non-medical contraceptives through non-pharmacy outlets.

 5. John Doe. John Doe is alleged to be an adult male resident of New York whose access to contraceptive products and information about them and whose freedom to distribute the same to his minor children under the age of sixteen are allegedly inhibited by the operation

 In connection with its above-described activities, plaintiff PPA has received three communications from the defendant Board of Pharmacy of the State of New York [Board] and defendant Albert J. Sica [Sica], the Board's Executive Director. The first, a letter dated December 1, 1971, informed PPA that its advertisement in a New York State college newspaper, which was alleged to have "solicited the sale of condoms to students", was in violation of the statute challenged here. The letter advised PPA of the three provisions of § 6811(8) and sought "future compliance with [the] law." The second, a letter dated February 23, 1973, asserted that PPA's offer to sell contraceptives for men through magazine ads was in violation of the subject law. After urging compliance with the law, the letter stated: "In the event you fail to comply, the matter will be referred to our Attorney General for legal action." The third, dated September 4, 1974, was a copy of a report made to the Board by its inspectors following a visit to PPA's New York office. *fn3" The report noted, inter alia, that PPA advertises male contraceptives. It indicated further that Philip D. Harvey, President of PPA, had been advised to stop selling contraceptives as it is a violation of the New York State Education Law for PPA to do so. Defendants deny that the inspectors directly threatened prosecution. But, it is undisputed that the inspectors said they would report the facts concerning PPA's alleged violation of the law to the Board of Pharmacy.

 The defendants in this action are the Governor and Attorney General of the State of New York, the Executive Secretary of the Board of Pharmacy of the State of New York, and the Board of Pharmacy itself. *fn4" These defendants challenge the right of any of the plaintiffs to bring the instant suit. Defendants claim that none of the plaintiffs has standing to challenge the statute at issue and that no case or controversy is presented to the Court for resolution. These claims will be considered in the first instance insofar as they relate to plaintiffs, PPA and Hagen.

 The initial question to be decided is whether plaintiffs PPA and Hagen have such a "personal stake in the outcome of the controversy" that there exists the "concrete adverseness" which courts require in considering issues presented for decision. See Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

 There can be no question that the statute at issue interferes with New York State residents' access to non-prescription contraceptives and that it prohibits certain dissemination of information about them. There is equally no question that whatever constitutional privacy right there may be to have access to such contraceptives, it is not a right that these two plaintiffs are asserting on their own behalf. Under certain circumstances, however, it is well established that plaintiffs may represent the constitutional rights of persons not before the court. See N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). The Supreme Court has found this doctrine applicable in several cases involving the right of privacy. See Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). The Eisenstadt decision is particularly instructive with respect to the present action.

 In Eisenstadt, the plaintiff Baird, an advocate of the use of contraceptives who had been convicted for illegally distributing a non-prescription contraceptive product, sought to challenge his conviction on the ground that the State statute under which he was convicted violated the right of single persons to obtain contraceptives. The defendants in that case challenged his standing because he was not a single person unable to obtain contraceptives. See Eisenstadt v. Baird, supra, 405 U.S. at 443, 92 S. Ct. 1029. The Court found the case an appropriate one for relaxing the usual rule against third-party standing. It allowed Baird to represent the rights of unmarried persons denied access to contraceptives, even though he was not such a person himself and had no professional relationship with such persons.

 In upholding Baird's standing, the Court stated that:

"[The] relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so." Id. 405 U.S. at 445, 92 S. Ct. at 1034. (emphasis added).

 The Court went on:

"[More] important than the nature of the relationship between the litigant and those whose rights he seeks to assert is the impact of the litigation on third-party interests. * * * Enforcement of the [challenged] statute will materially impair the ability of single persons to obtain contraceptives." Id. 405 U.S. at 445-46, 92 S. Ct. at 1035.

 Like Baird, plaintiffs PPA and Hagen are advocates of the privacy rights of those they seek to represent. They advocate the increased availability of non-prescription contraceptives to those whose ability to obtain them is impaired by § 6811(8). While such an advocacy role, standing alone, might not confer on these plaintiffs the right to represent the interests of third-parties, see Tileston v. Ullman, 318 U.S. 44, 63 S. Ct. 493, 87 L. Ed. 603 (1943), this role, combined with other factors which were also present in Eisenstadt, leads this Court to conclude that third-party representation is appropriate in this case. As was true in Eisenstadt, the statute challenged here prohibits not use, but distribution of contraceptive products. If distributors such as PPA and Hagen are barred from asserting the privacy rights of persons whose access to these products is impaired, this statute might well be immune from ...

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