Carey v. Population Services International/Concurrence White

by Byron White

Mr. Justice White, concurring in part and concurring in the result.

I join Parts I, III, and V of the Court's opinion and concur in the result with respect to Part IV.^[1]

Although I saw no reason in Eisenstadt v. Baird, 405 U.S. 438 (1972), to reach "the novel constitutional question whether a State may restrict or forbid the distribution of contraceptives to the unmarried," id., at 465 (concurring in result), four of the seven Justices participating in that case held that in this respect the rights of unmarried persons were equal to those of the married. Given Eisenstadt and given the decision of the Court in the abortion case, Roe v. Wade, 410 U.S. 113 (1973), the result reached by the Court in Part III of its opinion appears warranted. I do not regard the opinion, however, as declaring unconstitutional any state law forbidding extramarital sexual relations. On this assumption I join Part III.

I concur in the result in Part IV primarily because the State has not demonstrated that the prohibition against distribution of contraceptives to minors measurably contributes to the deterrent purposes which the State advances as justification for the restriction. Again, however, the legality of state laws forbidding premarital intercourse is not at issue here; and, with Mr. Justice Steve, "I would describe as 'frivolous' appellees' argument that a minor has the constitutional right to put contraceptives to their intended use, notwithstanding the combined objection of both parents and the State," post, at 713.

In joining Part V of the Court's opinion, I should also say that I agree with the views of Mr. Justice Stevens expressed in Part II of his separate opinion.

Notes

1. . There is no need for present purposes to agree or disagree with the Court's summary of the law expressed in Part II.