Eisenstadt v. Baird (1972)
William Baird was convicted of violating a Massachusetts law
regulating the distribution of contraceptives. After giving a
lecture on contraceptives at Boston University, he offered
contraceptives to members of the audience and gave a package of
vaginal foam to an adult woman. Baird was charged with and
convicted of two violations of the law, one for exhibiting the
contraceptives and a second for distributing the vaginal
foam. On appeal, the Massachusetts Supreme Judicial Court
overturned, on First Amendment grounds, Baird's conviction for
exhibiting the contraceptives, but upheld his conviction for
distributing the foam. Baird thereafter filed a petition for
habeas corpus relief in federal district court. The
district court denied his petition, but the court of appeals
reversed and directed the district court to grant the writ.
Thomas Eisenstadt, the sheriff of the county in which Baird was
convicted, appealed the decision of the court of appeals to the
The Statute Under Review
Under the law in effect at the time of defendant's conviction,
it was a felony for anyone to give away "any drug, medicine,
instrument or article whatever for the prevention of conception."
Mass. Gen. Laws Ann. ch. 272, § 21. The law, however, was
subject to certain exceptions. Under § 21A, "[a] registered
physician may administer to or prescribe for any married person
drugs or articles intended for the prevention of pregnancy or
conception. [And a] registered pharmacist actually engaged in the
business of pharmacy may furnish such drugs or articles to any
married person presenting a prescription from a registered
physician." Mass. Gen. Laws Ann. ch. 272, § 21A.
Moreover, by court state decision, married or single persons could
obtain contraceptives from anyone for the purpose of preventing the
spread of disease.
The Court's Holding
By a vote of six-to-one (two justices not participating in the
decision), the Court struck down § 21 on the ground that it denied
single persons the equal protection of the law.
The Court's Reasoning
Justice Brennan wrote the opinion for a majority of the justices
participating in the case (four out of seven). Justice
Brennan first addressed defendant's standing. Although the
circumstances under which a party is permitted to assert the rights
of third persons is limited, the Court held that defendant had
standing to assert the rights of single persons to obtain
contraceptives to avoid pregnancy. The law did not prohibit
the use of contraceptives by single persons, only their
distribution to singles. Accordingly, single persons "are not
themselves subject to prosecution and, to that extent, are denied a
forum in which to assert their own rights."
Eisenstadt, 405 U.S. at 446. To protect their
rights, it was appropriate to recognize defendant's third party
Having disposed of the standing issue, Justice Brennan turned to
the merits of the case, to wit, whether there was a reasonable
basis to distinguish between married and single persons in the
availability of contraceptives. Justice Brennan said that it
would be "plainly unreasonable to assume that Massachusetts has
prescribed pregnancy and the birth of an unwanted child as
punishment for fornication, which is a misdemeanor [under state
law]." Eisenstadt, 405 U.S. at 448. Moreover,
he rejected the notion that the law could be upheld as a
means of preventing premarital sexual relations. That
justification was undermined by several considerations.
First, contraceptives were widely available-to both married and
single persons-to prevent the spread of disease. Id.
Second, contraceptives could be acquired by married persons without
regard to their intended use, including to prevent pregnancy in
sexual relations with unmarried persons. Id. Thus,
"[e]ven on the assumption that the fear of pregnancy operates as a
deterrent to fornication, the Massachusetts statute is so riddled
with exceptions that deterrence of premarital sex cannot reasonably
be regarded as its aim." Id. at 449.
The prohibition on the distribution of contraceptives to
unmarried persons had a "dubious relation to the State's criminal
prohibition on fornication." Eisenstadt, 405 U.S. at
449. At the time Eisenstadt was decided, fornication
was a misdemeanor punishable by a small fine or up to three months
in jail, while violation of the prohibition of distribution of
contraceptives to unmarried persons) was a felony, punishable by up
to five years in the state prison. The Court commented, "we .
. . cannot believe that . . . Massachusetts has chosen to expose
the aider and abetter who simply gives away a contraceptive to 20
times the ninety-day sentence of the offender himself."
Id. at 449-50. "The very terms of the State's
criminal statutes, coupled with the de minimis effect of [the law]
in deterring fornication, thus compel the conclusion that such
deterrence cannot reasonably be taken as the purpose of the ban on
distribution of contraceptives to unmarried persons."
Id. at 450.
The Court also rejected the argument that the ban on the
distribution of contraceptives to unmarried persons embodied was
motivated by any concern for health (regulating the distribution of
potentially harmful articles). Eisenstadt, 405 U.S. at
450-52. If the promotion of public health were the
purpose of the law, the law was both discriminatory and
overbroad. It was discriminatory because if there was a need
to have a physician prescribe (and a pharmacist dispense)
contraceptives for married persons, there was an equally great need
for them to prescribe (and dispense) contraceptives for unmarried
persons. Id. at 450. A physician who was
competent and qualified to prescribe contraceptives for married
couples was equally competent and qualified to prescribe them for
unmarried persons. Id. at 451. The law was
overbroad (with respect to an alleged interest in promoting public
health) because not all contraceptives pose dangers to their users
and, in any event, the safety of contraceptive drugs and devices is
regulated by the federal government. Id. at 451-52.
In light of the Court's conclusion that the law could not be
justified either as a means of preventing fornication or as a
public health measure, the question arose as to whether it could be
upheld as simply a prohibition of contraception.
Eisenstadt, 405 U.S. at 452. Justice Brennan
declined to address this "important question" because, "whatever
the rights of the individual to access to contraceptives may be,
the rights must be the same for the unmarried and the married
alike." Id. at 452. If, under Griswold v.
Connecticut, 381 U.S. 479 (1965), the States may not forbid
the use of contraceptives by married couples, then "a ban on
distribution to unmarried persons would be equally
impermissible." Eisenstadt, 405 U.S. at 453 ((for an
analysis of the constitutional issues decided in Griswold,
please see the summary for that case). Justice Brennan
recognized that in Griswold, "the right of privacy in
question inhered in the marital relationship." Id. In his
view, this was a distinction without a difference:
couple is not an independent entity with a mind and heart of its
own, but an association of two individuals each with a separate
intellectual and emotional makeup. If the right of privacy
means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether
to bear or beget a child.
Id. (citations omitted).
Even assuming that Griswold was not a bar to a
prohibition on the distribution of contraceptives, "the State could
not, consistently with the Equal Protection Clause, outlaw
distribution to unmarried but not to married persons."
Eisenstadt, 405 U.S. at 454. That is because, in
each case, "the evil, as perceived by the State [contraception],
would be identical, and the underinclusion would be
invidious." Id. The Court, therefore, held
that "by providing dissimilar treatment for married and unmarried
persons who are similarly situated, Massachusetts General Laws
Ann., c[h]. 272, [§§] 21 and 21A, violate the Equal Protection
Clause." Id. at 454-55. Accordingly, the Court
affirmed the judgment of the court of appeals. Id.
The Concurring And Dissenting Opinions
Justice Douglas joined in Justice Brennan's opinion for the
Court but wrote separately to express his opinion that the case
could have been decided on First Amendment grounds only.
Eisenstadt, 405 U.S. at 455-60 (Douglas, J.,
concurring). In Justice Douglas' view, the distribution of
the contraceptive foam was an integral part of the defendant's
presentation on contraception and, as such, was protected from
prosecution by the First Amendment. Id.
Justice White, joined by Justice Blackmun, concurred in the
result. Justice White noted that the record failed to
establish that the woman to whom he gave the contraceptive foam was
married or single; accordingly, the defendant's conviction had to
be based on the fact that he was not a physician or pharmacist
authorized to prescribe or dispense contraceptives.
Eisenstadt, 405 U.S. at 460-65. In the absence of
any evidence that the use of contraceptive foam (which is widely
available without a prescription), as opposed to the use of other
means of contraception (e.g. the "pill"), poses a health
risk, Massachusetts could not, consistent with Griswold,
bar its distribution to married persons. Id.
Chief Justice Burger dissented. In the Chief Justice's
opinion, the only issue before the Court was whether the State may
properly limit who distributes contraceptives.
Eisenstadt, 405 U.S. at 465 (Burger, C.J.,
dissenting). The majority opinion was unduly dismissive in
rejecting the State's asserted health concerns. First,
regardless of the law's placement in the chapter of state law
governing morals, the State may have valid health interests in
determining who may distribute contraceptives. Id. at
468. Second, the Court should have considered the health
interests underlying the law's restriction on who may
distribute contraceptives, as opposed to the marital status of
those to whom the contraceptives were
distributed. Third, the fact that the federal
government regulates contraceptives in statutes that do not purport
to preempt the field of regulation does not disempower the States
from regulating who may distribute them. Id.
Chief Justice Burger also took issue with Justice White's
separate concurrence. It would be unprecedented, in his
opinion, to require the State to present evidence concerning the
health risks of vaginal foam (if those risks were not otherwise
subject to judicial notice), particularly in a case in which the
defendant did not contest or present any evidence on the relative
safety of this method of contraception. Eisenstadt,
405 U.S. at 469-70 (Burger, C.J., dissenting). Whether there
is a dispute in the medical community as to the safety of vaginal
foam was of no relevance to the constitutionality of the statute
under attack. Id. at 470. Finally, even
assuming that there was a medical consensus that the use of vaginal
foam posed no danger to a woman, the law forbidding persons other
than physicians and pharmacists from prescribing and dispensing
contraceptives was still valid:
The choice of a
means of birth control, although a highly personal matter, is also
a health matter in a very real sense, and I see nothing arbitrary
in a requirement of medical supervision. It is generally
acknowledged that contraceptives vary in degree of effectiveness
and potential harmfulness. There may be compelling health
reasons for certain women to choose the most effective means of
birth control available, no matter how harmless the less effective
alternatives. Other might be advised not to use a highly
effective means of contraception because of their peculiar
susceptibility to an adverse side effect. Moreover, there may
be information known to the medical profession that a particular
brand of contraceptive is to be preferred or avoided, or that it
has not been adequately tested. Nevertheless, the concurring
opinion would hold, as a constitutional matter, that a State must
allow someone without medical training the same power to distribute
this medical substance as is enjoyed by a physician.
Eisenstadt, 405 U.S. at 470-71 (Burger, C.J.,
dissenting). Chief Justice Burger concluded his dissent by
expressing the view that nothing in the Constitution "even vaguely
suggests that these medicinal forms of contraceptives must be
available in the open market" without a prescription from a
physician. Id. at 472.