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Eisenstadt v. Baird (1972)

In Depth


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 Supreme Court.

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 standing.

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:

[T]he marital 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. at 455.

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.

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