Argued December 10, 1917
Decided January 8, 1918
Jonah J. Goldstein for appellant.
Harry E. Lewis, District Attorney ( Harry G. Anderson of counsel), for respondent.
Section 1142 of the Penal Law, among other things, makes it a misdemeanor for a person to sell, or give away, or to advertise or offer for sale, any instrument or article, drug or medicine, for the prevention of conception; or to give information orally, stating when, where or how such an instrument, article or medicine can be purchased or obtained.
The appellant was convicted in the Court of Special Sessions of the city of New York, borough of Brooklyn, for a violation of this section, and sentenced to thirty days in the workhouse. She claims that the law is unconstitutional.
Some of the reasons assigned below for the illegality of this act have now been abandoned and it is conceded to be within the police power of the legislature, for the benefit of the morals and health of the community, to make such a law as this applicable to unmarried persons. But it is argued that if this law be broad enough to prevent a duly licensed physician from giving advice and help to his married patients in a proper case, it is an unreasonable police regulation, and, therefore, unconstitutional. There are two answers to this suggestion.
In the first place, the defendant is not a physician, and the general rule applies in a criminal as well as a civil case that no one can plead the unconstitutionality of a law except the person affected thereby. ( Collins v. State of Texas, 223 U.S. 288, 296; People v. McBride, 234 Ill. 146, 164; Isenhour v. State, 157 Ind. 517, 520; State v. Haskell, 84 Vt. 429, 441; Commissioners of Franklin Co. v. State ex rel. Patton, 24 Fla. 55.)
Secondly, by section 1145 of the Penal Law, physicians are excepted from the provisions of this act under circumstances therein mentioned. This section reads: "An article or instrument, used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this article. The supplying of such articles to such physicians or by their direction or prescription, is not an offense under this article."
This exception in behalf of physicians does not permit advertisements regarding such matters, nor promiscuous advice to patients irrespective of their condition, but it is broad enough to protect the physician who in good faith gives such help or advice to a married person to cure or prevent disease. "Disease," by Webster's International Dictionary, is defined to be, "an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness; sickness; disorder."
The protection thus afforded the physician would also extend to the druggist, or vendor, acting upon the physician's prescription or order.
Much of the argument presented to us by the appellant touching social conditions and sociological questions are matters for the legislature and not for the courts.
The judgment appealed from should be affirmed.
HISCOCK, Ch. J., CHASE, COLLIN, CARDOZO and ANDREWS, JJ., concur; HOGAN, J., concurs in result.