(dissenting in part) 1. We concur in the first part of the majority opinion, viz. that Baird cannot be convicted constitutionally under § 21 for unlawfully exhibiting contraceptive articles. We also agree that raising these issues of constitutionality by declaratory proceedings would have been more appropriate than the course pursued by Baird.
2. We concur with what Mr. Justice Spiegel says in point First (set out in the fourth paragraph) of his dissenting opinion concerning the propriety of treating Baird’s distribution of articles as constitutionally protected protest and speech.
3. We dissent from so much of the majority opinion as holds that Baird may be convicted under § 21 of distributing contraceptive articles, because we think (a) that § 21, read with § 21A, has been so much eroded in the last half century as to be now unconstitutionally vague, and (b) that the prohibition of distributing found in § 21 is not severable from invalid portions of the section.
First — Section 21 was designed (see Commonwealth v. Allison, 227 Mass. 57, 62, concerning a predecessor statute) to prohibit essentially all assistance of birth control. The section was described in Commonwealth v. Gardner, 300 Mass. 372, 374-375, as “plain, unequivocal and peremptory” and as containing “no exceptions.” Its scope, however, has been cut down greatly since the Allison decision in 1917 in the following ways.
(1) In Commonwealth v. Corbett, 307 Mass. 7, 12, it was held that there could not be a conviction under § 21 for the *757sale of an article, susceptible of use to prevent disease as well as for contraception, without proof that, in a particular case, the latter use was intended.
(2) Any use of the statute to prohibit serious discussion and assistance of birth control by speech, on the ground that it is inherently obscene, has become constitutionally impossible because of decisions of the Supreme Court of the United States referred to in the first part of the majority opinion.
(3) Griswold v. Connecticut, 381 U. S. 479, has greatly limited the possible application of § 21.
(4) The enactment of § 21A has permitted, subject to some limitations, the furnishing (by specified persons) of contraceptive articles and information to married persons.
(5) It remains uncertain to what extent § 21 may be constitutionally applied to prohibit advertising and manufacturing of contraceptives.
(6) The opinion in the present case concerning the invalidity of the prohibition of exhibiting contraceptives makes unenforceable a major provision of § 21. We think that the statutory prohibition of exhibiting necessarily applies to so many persons and so invades their freedom of speech as to make this prohibition unconstitutional on its face.
The consequence of these inroads or possible inroads on § 21 leaves it, when read with § 21A, of highly uncertain content and scope. We regard what remains of § 21 as comparable to the statutes held void for vagueness in Alegata v. Commonwealth, 353 Mass. 287, 293, 297-298, 300-301. See Hall-Omar Baking Co. v. Commissioner of Labor & Indus. 344 Mass. 695, 708.
Second — It is also uncertain what legislative purpose now supports § 21, read with § 21A.
(1) Any valid purpose to Suppress obscenity is gone, as the majority opinion shows.
(2) Any general purpose to prevent birth control no longer exists as a result of § 21A.
(3) To say that the legislative purpose is to restrain non-marital intercourse would attribute to the Legislature an *758intention to use the risk of pregnancy as a deterrent to, or punishment of, such intercourse. To do so would be contrary to the result and reasoning in Commonwealth v. Corbett, 307 Mass. 7, 8-12. See State v. Baird, 50 N. J. 376, 383. For reasons pointed out by Mr. Justice Spiegel in his dissent, with which we agree in large measure, the damage caused by an undesired pregnancy to the unmarried parents, to the unwanted child, and to society as a whole, is so disproportionate to any possible benefit as to raise grave constitutional doubts about the validity of such a deterrent if intended.
(4) We see in § 21 and § 21A, read together, no public health purpose. If there is need to have a physician prescribe (and a pharmacist dispense) contraceptives, that need is as great for unmarried persons as for married persons. This circumstance suggests that the only purpose of § 21A was to meet what were believed to be the minimal requirements of the Griswold case, 381 U. S. 479.
All these considerations lead us to the conclusion that the crimes originally defined in § 21, and the legislative purposes originally there reflected, are largely gone. There seems to us to be no rational basis for using what little is left of a statute designed to prevent all assistance of all birth control merely to deter nonmarital intercourse. We also see no such basis for severing and separately applying the prohibition of distributing contraceptives, when what remains of the statute of which this prohibition forms a part has become so uncertain. See Pedlosky v. Massachusetts Inst. of Technology, 352 Mass. 127.