(dissenting in part) I agree with the opinion with respect to the indictment charging the defendant with unlawfully exhibiting “certain articles for the prevention of conception.”
I agree also that proceedings for declaratory relief would have been far preferable to this needless public demonstration. Such proceedings would have been an orderly method of raising the substantial constitutional issues and could have been so framed in behalf of persons having unquestioned standing as to present adequate facts for adjudication.
*759I do not concur with the majority’s views on the indictment for “unlawfully . . . [giving^ away a certain medicine and article for the prevention of conception.”
First, I am unable to discern the distinction the majority draw between the defendant’s exhibiting and the defendant’s distributing. As the opinion points out “these acts occurred during, and incidental to, a lecture to students.” Each of these acts was “implementing conduct ... in the nature of advocacy.” National Labor Relations Bd. v. International Longshoremen’s Assn. 332 F. 2d 992, 999 (4th Cir.). Basically the distribution should be considered part of constitutionally free speech and protest. See Cox v. Louisiana, 379 U. S. 536.
Second, I do not believe that §§21 and 21A reveal the “legitimate legislative purpose” claimed by the majority. The Legislature undoubtedly has the right to protect the health and safety of the public. However, I cannot infer or determine such an intent from a statute which limits the procurement of contraceptive devices to married persons. The adoption of § 21A permitting married persons to receive birth control devices with a prescription can only be interpreted as an attempt to save §§20 and 21 from the edict of the Supreme Court of the United States in the case of Griswold v. Connecticut, 381 U. S. 479. It is at best a strained conception to say that the Legislature intended to prevent the distribution of articles “which may have undesirable, if not dangerous, physical consequences.” If that was the Legislature’s goal, § 21 is not required. See G. L. c. 94, § 187A; Federal Food, Drug & Cosmetic Act, 21 U. S. C. § 353 (1964).
Nor do I believe that the purposes set forth by this court over fifty years ago in the case of Commonwealth v. Allison, 227 Mass. 57, 62, are valid today.1 Even if we disregard *760the mores of the era in which we live, intervening Federal decisions have overridden any intended desire to control contraceptive information as obscenity. The recent exception for married persons eliminates the propagation of a “virile and virtuous race” as a likely legislative purpose. In the case of Commonwealth v. Corbett, 307 Mass. 7, 8-9, this court rejected as a legislative purpose of § 21 the punishment of illicit sexual intercourse. Although in that case reference was made to the “spreading] unchecked” of venereal disease, we should also reject the thesis that “the Legislature intended pregnancy ... to serve either as a restraint upon illicit affairs or as punishment for them.” State v. Baird, 50 N. J. 376, 383. I am not convinced that the Legislature intended to risk the undesirable effects of an unwanted pregnancy. See U. Anderson and others, The Medical, Social, and Educational Implications of the Increase of Out-of-Wedlock Births, 56 Am. J. Pub. Health, p. 1866 (1966); U. S. Bureau of Public Assistance, Illegitimacy and Its Impact on the Aid to Dependent Children Program (1960); Fox, Abortion Deaths in California, 98 Am. J. Obstet. & Gync. p. 645 (1967). The serious risk of an undesired pregnancy and the unwanted child, disastrous alike to the married as to the unmarried parents and to society as a whole, is utterly disproportionate in harm to any slight public benefit to be gained from a probably ineffective attempt to discourage fornication. It seems to me that § 21 arbitrarily and capriciously affects individual liberties and freedom of behavior and bears no “reasonable relation to some purpose within the competency of the State.” See Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418; Mansfield Beauty Academy, Inc. v. Board of Registration of Hairdressers, 326 Mass. 624, 627; Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422-425; Meyer v. Nebraska, 262 U. S. 390, 399-400; Griswold v. Connecticut, 381 U. S. 479, 485.
Third, even if I were not concerned with the two previous points discussed, I am convinced that the question of dis*761tribution cannot be severed from the other provision of § 21 which the maj ority agree is un constitutional. See Pedlosky v. Massachusetts Inst. of Technology, 352 Mass. 127. I am not satisfied that the “only word which is affected by . . . [the majority] opinion is ‘exhibits’ as it applies to the defendant in giving the lecture.” As used in the section, the word is “vague and uncertain” (see Herndon v. Lowry, 301 U. S. 242, 259) and has a “chilling effect upon the exercise of First Amendment rights.” See Dombrowski v. Pfister, 380 U. S. 479, 487, 490-492. In addition, I think that the opinion casts grave doubts on the constitutionality of the portions of § 21 which prohibit advertising and printing, to say nothing of its effect on § 20 as it relates to contraceptive devices. Furthermore, the distinction drawn by the Legislature between married and unmarried persons is of questionable validity. Such a distinction cannot be read out of the statute. Cf. Commonwealth v. Gardner, 300 Mass. 372, 377. Even without the distinction the original purposes of § 21 can no longer be carried out by the section as amended by the Legislature and interpreted by this court. Its scope of application is indefinite and vague (see Alegata v. Commonwealth, 353 Mass. 287) and is a “hodgepodge” of uncertainties. See Hall-Omar Baking Co. v. Commissioner of Labor & Indus. 344 Mass. 695.
I am impelled to conclude that § 21 is incapable of being cut into segments which would be constitutionally valid without, in effect, performing judicial surgery.
“Manifestly . . . [the statutes] are designed to promote the public morals and in a broad sense the public health and safety. Their plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women.” Commonwealih v. Allison, supra, at 62.