Eisenstadt v. Baird

405 U.S. 438 (1972)
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The Respondent was convicted under chapter 272 of the Massachusetts General Laws (Crimes Against Chastity, Morality, Decency and Good Order) (the Act) for exhibiting contraceptive articles while presenting a lecture on contraception to a group of university students, and for providing a contraceptive article to a young woman after the lecture. Section 21 of the Act made it a felony to give away “any drug, medicine, instrument or article whatever for the prevention of conception,” except as authorized by section 21A, which allowed registered physicians to administer or prescribe contraception to married persons and registered pharmacists to furnish contraceptives to married persons presenting a prescription from a registered physician.

The statutory scheme distinguished among three distinct classes of recipients:

  • Married persons could obtain contraceptives to prevent pregnancy, but only from doctors or pharmacists on prescription;
  • Single persons could not obtain contraceptives from anyone to prevent pregnancy;
  • Married or single persons could obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease.

Respondent’s conviction for exhibiting contraceptive articles during a lecture was unanimously set aside by the Massachusetts Supreme Court on the ground that it was an infringement on the right to free speech under the First Amendment. The second conviction for providing a woman with a contraceptive was sustained.

The Court first considered whether the Respondent had standing to assert the rights of unmarried persons denied access to contraceptives. The Court declared that the rule against the assertion of third party rights must be relaxed in this case as it was in Griswold v. Connecticut, 381 U.S. 479 (1965). The Court recognized the relationship between the Respondent as an advocate for the protection of the rights of minorities—persons wishing to obtain contraceptives in this case—and the minority itself. Furthermore, the Court held that the very act of giving away the contraceptive article was to challenge the Act that limited access to contraceptives.

The Court also considered the impact of the litigation on third-party interests. It found that enforcement of the Act would materially impair the ability of single persons to obtain contraceptives. The Respondent was held to be in a position with adequate incentive to assert the rights of unmarried persons denied access to contraceptives; therefore he had standing to do so.

The Court held that the different treatment accorded to married and unmarried persons under the Act was unconstitutional under the Equal Protection Clause. It stated that “if under Griswold, the distribution of contraceptives to married persons [could not] be prohibited, a ban on distribution to unmarried persons would be equally impermissible” under the Equal Protection Clause. The Court held that “in each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious.”

The Court considered the following issues in determining whether there was a rational explanation for the distinction between married and unmarried persons under the Act.

It first considered whether the purpose of the Act was to discourage pre-marital sexual intercourse, i.e., fornication. The Court found that this could not have been the purpose of the Act. The Court noted the “dubious relation” between section 21 and the State’s criminal prohibition on fornication: fornication was a misdemeanour in Massachusetts at the time punishable by a $30 fine, whereas violation of section 21 was a felony punishable by five years in prison. The Court “found it hard to believe that the legislature adopted a statute carrying a five-year penalty for its possible, obviously by no means fully effective, deterrence of the commission of a ninety-day misdemeanour.” It further held that the State could not, consistent with the Equal Protection Clause, “regard the problems of extramarital and premarital sexual relations as evils of different dimensions and proportions requiring different remedies.”

The Court next considered whether the purpose of the Act was to serve the health needs of the community by regulating the distribution of potentially harmful articles. It held that this also could not have been the purpose of the Act. The Court affirmed the holding by the Court of Appeals, which held that if health was the rationale of section 21 then the Act would invidiously discriminate against the unmarried, and be overbroad with respect to the married, noting that not all contraceptives pose a potential hazard to health. The Court further held that in enacting section 21 the legislature could not have had the intention of preventing the distribution of articles which may have undesirable, if not dangerous, physical consequences because this purpose was already directly addressed by federal and state laws regulating the distribution of harmful drugs.

Lastly, the Court considered whether the Act could be sustained simply as a prohibition on contraception. It held that the Act could be not be upheld simply as a prohibition on contraception because the right to privacy recognized in Griswold extended to procreative decisions made by unmarried couples, as well as married couples.

“[T]he goals of deterring premarital sex and regulating the distribution of potentially harmful articles cannot reasonably be regarded as legislative aims of §§ 21 and 21A. And we hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment.” 405 U.S., p. 443.

“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 Massachusetts General Laws Ann. [] Aside from the scheme of values that assumption would attribute to the State, it is abundantly clear that the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective.” 405 U.S., p. 448. 

“[W]e must join the Court of Appeals in noting that not all contraceptives are potentially dangerous. As a result, if the Massachusetts statute were a health measure, it would not only invidiously discriminate against the unmarried, but also be overbroad with respect to the married, a fact that the Supreme Judicial Court itself seems to have conceded . . . [when] it noted that ‘it may well be that certain contraceptive medication and devices constitute no hazard to health, in which event it could be argued that the statute swept too broadly in its prohibition.’” 405 U.S., p. 451.

“If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the 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.” 405 U.S., p. 453.

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