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Is it really illegal to sell me condoms?

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ADistantPlanet asks:

This may be a bit of a strange question, but my attempts at researching this question have yielded very few results. I'm 16 years old, and the other day, I went into a gas station near my home in Michigan to buy some condoms. I'm on the Pill, but I use condoms every time with my boyfriend due to my paranoia of pregnancy. When I brought the condoms to the counter, the woman behind it informed me that there is a law that forbids the selling of condoms to those under 18. This didn't really sound plausible to me, considering that the age of consent in Michigan is 16 and it would be rather counterproductive to ban condoms for 2 years, however, the woman vehemently refused to sell them to me. Is there any sort of law (in Michigan or a national law) that forbids stores from selling condoms (or pregnancy tests, etc.) to minors?

Heather Corinna replies:

It's not a strange question, but it certainly is an infuriating issue.

That woman was either dishonest with you or unknowingly mistaken. In the United States, all 50 of them, minors may purchase condoms just like legal adults can. That also includes minors who are not above a given state's age of consent.

Some states have some policies or proposals that limit contraceptive services or prescriptions for minors in certain ways (though those policies cannot be applied to services through Title X clinics or Medicaid), but purchase of over-the-counter methods like condoms or spermicides are not part of those laws or legal policies.

Legally, full access to condoms and other contraceptives regardless of age or marital status was first established in 1972 with the famous case Eisenstadt v. Baird (Baird being William R. Baird, Jr., one of the most amazing contraception activists ever). Before then, methods of contraception were not lawful for unmarried couples of any age. But that Supreme Court case ruling established the right of unmarried people to possess contraception on the same basis as married couples. Later on, in 1977, with Carey v. Population Services International, it was made very clear that included unmarried minors, not just adults. The Equal Protection Clause of the Constitution is something else that backs up your rights here.

However, gas stations and other stores are private entities, and can reserve the right to refuse service to anyone at all, often on any basis. Some will even have signs posted on the doors that say as much. So, while it would not have been unlawful for her to sell condoms to you, she clearly -- or the store she works for -- did not want to, based on either that store's policies, her own ignorance or a personal agenda. And because a store is a private entity who can often refuse to serve anyone (though people refused service based in discrimination certainly can file suit against such parties), if the store is on board with what she did, there may be little you could have done right there and then to get those condoms.

This happens to minors all too often. In addition, some drugstore chains or independent stores keep condoms locked up behind a counter, where a person has to ask for them, which is yet another barrier to access for many young people. What you and I know they are all doing, is endangering the health of young people (which is also endangering the health of everyone, when it all comes down to it), on top of treating young people with some seriously profound disrespect and age discrimination.

For many teens, not being able to get condoms does not mean that person or their partner will elect not to engage in the sexual activity they were going to with condoms. It just makes it far more likely they will do so without using condoms. For some, not having condoms means being wide open to sexually transmitted infections. For others, that means not reducing those infection risks AND not reducing the risk of unwanted pregnancies. In fact, some of what I'm talking about here was stated by a couple of the Justices in the Carey Vs. Population Services International case:

MR. JUSTICE POWELL concluded that the prohibition against distribution of contraceptives to persons under 16 is defective both because it infringes the privacy interests of married females between the ages of 14 and 16 and because it prohibits parents from distributing contraceptives to their children, thus unjustifiably interfering with parental interests in rearing children.

MR. JUSTICE STEVENS concluded that the prohibition against distribution of contraceptives to persons under 16 denies such persons and their parents a choice which, if available, would reduce exposure to venereal disease or unwanted pregnancy, and that the prohibition cannot be justified as a means of discouraging sexual activity by minors.

You may have caught the irony that much of what those Justices said sounds very forward-thinking at this point in time, despite being said over thirty years ago. But I digress.

The fact that someone like you who is already using a reliable method of birth control, but looking to back up your protection and practice safer sex is not being supported in being that smart and safe just blows. By the way? Using condoms with a hormonal method doesn't mean you're being paranoid. These possible outcomes are very real, and doubling up is wise. Of course, for all that cashier knew, condoms were all you had to use, which makes her refusal particularly insidious.

When something like this happens, you have a few choices, depending on how proactive you want to be, and how comfortable you feel in the moment. Just know that while I think standing up for yourself and being proactive is great, I don't think it should come before your personal safety. If your intuition tells you the best thing to do is just to walk out, by all means, that's the best thing to do. You can always go back and take a stand later if you want to.

Even though this is done for now, in case you want to address it with the gas station, or in case it happens again to you or anyone else, I'll tell you what I'd suggest. Knowing in advance how to deal with this is also really helpful to others should they find themselves in the same scenario, which, unfortunately, is not all that uncommon.

In this situation, the first thing I would have said is that no, it is not illegal or that, as you thought, you just don't think that's true. You can always ask someone who is telling you something is illegal to tell you what law they're referencing, too. As in, "I don't think that's so: can you tell me what law you're talking about?" If she still said it was, or still refused to sell you condoms, I'd have asked if I could speak with her supervisor. I'd have the same sort of conversation with them and see where it went. If they ask the cashier to sell them to you, then it's done. If they said it was illegal, too, you could correct them and ask them what law they're talking about. The fantasy moment would, of course, be to suddenly cite cases like Eisenstadt as they'd hardly be expecting that and would probably hand the condoms right over in a decent state of shock. For anyone reading this in advance of an event like this, you can live that dream. Obviously, though if they just say no to selling them to you full stop, no matter their explanation, you're at the end of that particular line for right then.

If you still needed the condoms, you'd have to make another stop somewhere, and while it's not okay for you to have to go all over to try and get them, you probably can find somewhere else to buy or get them. Perhaps even more obviously, if there were just no condoms to be had that night, you could just opt out of the kinds of sex for then where you wanted or needed condoms.

The thing is, no one should have to make their sexual choices based on someone else's bias or discrimination. There are a lot of sound, fair criteria to make our sexual choices with, but this isn't one of them. So, I'd like to pitch a few other ideas to you.

This particular evening is past, but you still could return to that gas station of you wanted and initiate one of those conversations with the cashier or her supervisor. There is also some other activism you could do around this, especially if you don't get a satisfactory response from the manager or owner of that station. You could write a letter to the head of the chain or to your city's leaders, referencing the address of this particular station and let them know what occurred there, filling them in with some research on the actual law (or lack thereof, in this case) and comments about why both denying young people condoms and giving them the idea they can't access them legally both puts teens in potential danger and also stomps on your constitutional rights. You could make a small printout of these case laws and distribute them to all the other teens you know so they have them handy. An op-ed letter to your school or local newspaper is another option. Yet more would be to have an in-person sit-in at that gas station with your peers and adult allies, or to arrange for a whole bunch of teens to keep going in and trying to buy condoms, educating anyone who works there or comes into the station during these actions about what's going on. Organizing a boycott is one more possibility. These kinds of civil disobedience are very effective ways to forge change.

One thing to remember is that one of the ways adults figure they can get away with discriminating against youth is that they assume you won't advocate for yourselves or assume they know everything better than you do (and that you buy into that, without question). Many think that teens aren't informed and will just meekly walk away, or just do something they can easily write off like flipping them off or walk away calling them a name. I'd encourage you not to let them get off that easy. I personally think one important thing young people have to offer all of us is telling adults who are being adultist where to stick it. When teens and young people aren't doing that, I feel like the world is out of balance: your voice is important and needed.

Sometimes teens do know better than adults and you're also actually supposed to be rebellious: there's a lot of great cultural precedent for that through history, and differentiating yourself from adults is an important part of your development. It gets tougher to rebel as you get older, so now's also a great time to do it. Plus, if you're going to rebel? Fighting for a civil rights issue beats sleeping with a creep your parents don't like -- for good reason -- or drinking yourself sick, and the outcome of this kind of rebellion is also likely to be a lot more positive. If you need an extra nudge, Oscar Wilde (and do excuse his oversight in gendering this otherwise perfect string of words) had a good one when he said, "Disobedience, in the eyes of anyone who has read history, is man's original virtue. It is through disobedience that progress has been made, through disobedience and through rebellion."

Obviously, what, if anything, you do around this is going to depend on you, but this kind of event -- which may seem small in some ways, but which really isn't, when it all comes down to it -- is often how great activists get started: it's personal, you know it's going to impact more than just you, and it's an important civil rights and public health issue. As a lifelong activist and advocate myself, I'd encourage you to at least consider taking some kind of action around this. It may not only result in better condom access for you and everyone else you know, it might turn a situation which really sucked into something very powerful and positive for you and other young people in your area.

Just so you're aware, this one gas station doing this is craptastic, but it doesn't mean you can't get condoms elsewhere. Many clinics, including Planned Parenthood clinics, provide condoms for free which you can get just by walking in: you don't even have to be a patient of theirs or pay for any services. Many pharmacies and megastores also should not present problems in your getting condoms. You can also order condoms online via many different suppliers.

Usually, when I provide links at the end of an answer, they're to other articles on Scarleteen. But instead, I want to link you up with a few good avenues for this kind of activism. They are good places where you can put your righteous indignation to very good use if you've the desire to. But by all means, get the condoms you need first. :)

written 14 Jul 2009 . updated 13 Jan 2014

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