Paul and Pauline Poe, a married couple, and Jane Doe, a housewife, filed suits in federal court against the Connecticut state's attorney general, seeking a declaratory judgment as to the constitutionality of a Connecticut law forbidding the use of contraceptives.

Mr. Justice Frankfurter announced the judgment of the court and an opinion in which The Chief Justice [Warren], Mr. Justice Clark and Mr. Justice Whittaker join.

These appeals challenge the constitutionality, Under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that Court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse.

... The [first] complaint ... alleges that the plaintiffs, Paul and Pauline Poe, are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic, although the underlying "mechanism" is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely "disturbing to the physical and mental health of both husband and wife…. It is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these vices is indicated as the best and safest preventative measure necessary for the protection of plain health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney ... claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn. Gen. Stat. Rev. 1958, Sections 53-32 and 54-196.

... [Paul and Pauline Poe] ask a declaratory judgment that sections 53-32 and 54-196 are unconstitutional, in that they deprive the plaintiffs of life liberty without due process of law.

The second action ... is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children. Mrs. Doe recently under-went a pregnancy which induced in her a critical physical illness-two weeks’ unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought , are similar to those in the case of Mr. and Mrs. Poe.

Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy, of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims. *** But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. *** Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.

The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. *** During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson. *** The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State moved to dismiss the information. Neither counsel nor our own researchers have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process. The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores. Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite attention of enforcement officials than the conduct in which the present appellants wish to engage-the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anticontraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. "Deeply embedded traditional ways of carrying out state policy" *** — or not carrying it out -- are often tougher and truer than the dead words of the written text."

The restriction of our jurisdiction to case controversies, within the meaning of Article III Constitution, see Muskrat v. United States, *** is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional powers. The policy reflected in numerous case over a long period was thus summarized in the quoted statement of Mr. Justice Brandeis: "The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon decision.- *** In part the rules summarized in Ashwander opinion had derived from the historically defined, limited nature and function of courts and from the recognition that, within the frame our adversary system, the adjudicatory process most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity.*** In part they derive from the fundamental federal and tripartite character of our National Government from the role-restricted by its very responsibility-of the federal courts, and particularly this Court, within that structure. ***

These considerations press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." *** . . . "This can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here." *** "The party who invokes the power [to annul legislation on grounds of its unconstitutionality] must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result enforcement." ***

Insofar as appellants seek to justify the exercise of our declaratory power by the threat of prosecution, facts which they can no more negative by complaint and demurrer than they could by stipulation preclude our determining their appeals on the merits.*** It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting.*** If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press to enforcement of this ,statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows. To find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution, would be to close our eyes for reality.

Nor does the allegation by the Poes and Doe that they are able to obtain information concerning devices from Dr. Buxton, "for the sole reason that the delivery and use of such information and advice may or will be claimed by the defendant State's Attorney to constitute offenses;' disclose a necessity for present constitutional decision. It is true that tills Court has several times passed upon criminal statutes challenged by persons who claimed that the effects of the statutes were to deter others from maintaining profitable or advantageous relations with the complainants. *** But in these cases the ,deterrenteffect complained of was one which was grounded in a realistic fear of prosecution. We can not agree that if Dr. Buxton's compliance with these statutes uncoerced by the risk of their enforcement, his patients are entitled to a declaratory judgment concerning the statutes' validity. And, with due regard to Dr. Buxton's standing as a physician and to his personal sensitiveness, we cannot accept, as the chimerical of Constitutional adjudication, other than as chimerical the fear of enforcement of provisions that have during so many years gone uniformly and with out exception unenforced.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the result of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought. Both these factors justify withholding adjudication of the constitutional issue raised under the circumstances and in the manner in which they are now before the Court.

Dismissed.

Mr. Justice Black dissents because lie believes the constitutional questions should be reached and decided.

Mr. Justice Brennan, concurring in the judgment.

I agree that this appeal must be dismissed failure to present a real and substantial controversy which unequivocally calls for adjudication of the rights claimed in advance of any attempt by the State to curtail them by criminal prosecution. I a convinced, on this skimpy record, that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is the opening of birth-control clinics on a large scale; it is that which the State has prevented in past, not the not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged up when, if ever, that real controversy flares up again, Until it does, or until the State makes a definite concrete threat to enforce these laws against in individual married couples-a threat which it has made in the past except under the provocation of the litigation-this Court may not be compelled to exercise its most delicate power of constitutional adjudication.

Mr. Justice Stewart, dissenting ....

Mr. Justice Douglas, dissenting.

These cases are dismissed because a majority of the members of this Court conclude, for varying reasons, that this controversy does not present a justiciable question. That question is too transparent to require an extended reply...

Mr. Justice Harlan, dissenting.

I am compelled, with all respect, to dissent from the dismissal of these appeals. In my view the course which the Court has taken does violence to established concepts of "justiciability," and unjustifiably leaves these appellants under the threat of unconstitutional prosecution.... Between them these suits seek declaratory relief against the threatened enforcement of Connecticut's antibirth-control laws making criminal the use of contraceptives, insofar as such laws relate to the use of contraceptives by married persons and the giving of advice to married persons, in their use. The appellants, a married couple, a married woman, and a doctor, ask that it be adjudged, contrary to what the Connecticut courts have held, that such laws, as threatened to be applied to them in circumstances described in the opinion announcing the judgment of the Court violate the Fourteenth Amendment, in that they deprive appellants of life, liberty, or property without due process.

 The plurality opinion of the Court gives, as the basis for dismissing the appeals, the reason that, as to the two married appellants, the lack of demonstrated enforcement of the Connecticut statute bespeak an absence of exigent adversity which is posited as a condition for evoking adjudication from us, and as to the, doctor, that his compliance with the state s uncoerced by any "realistic fear of prosecution," giving due recognition to his "standing as a physician and to his personal sensitiveness." With these it appears that the concurring opinion agrees.

... In my view of these cases a present determination of the Constitutional issues is the only course which will advance justice, and I can find no sound reason born of considerations as to the possible adequacy or ineffectiveness of the judgment that might be rendered which justifies the Court’s contrary disposition....