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the Body Politic
Vol. 01, No. 11 - Nov/Dec 1991, Page 5
Copyright © 1991, 1998 by the Body Politic Inc.

Eisenstadt v. Baird

The Battle Continues

By Anne Bower

"If the right to 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."
Boston College in Massachusetts was the scene of a lecture by Bill Baird on population problems and birth control. According to Mr. Baird, he was invited to speak and went with the express purpose of challenging Massachusetts' prohibition of the dispensing of contraceptives to the unmarried and minors. After the lecture, a young woman from the audience took a tube of Emko foam, whereupon, Mr. Baird was promptly handcuffed and arrested under §§21 & 21A of the Massachusetts General Laws which state in part:

§21 "...whoever sells, lends, gives away, exhibits or offers to sell, lend or give away an instrument or other article intended to be used for self-abuse, or any drug, medicine, instrument or article whatever for the prevention of conception or for causing unlawful abortion....shall be punished by imprisonment in the state prison for not more than five years..."

§21A, enacted after Griswold v. Connecticut in 1965 (see October 1991, page 6) amended the original 1879 law to read in part:

§21A "A registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception."

This amendment also included pharmacists, public health agencies, registered nurses, and clinics as legitimate dispensers of contraception to married persons. Mr. Baird believed the right to privacy in reproductive decisions must be accorded to all, and thus began Eisenstadt v. Baird.

The ruling on March 22, 1972 indeed accomplished this goal. The majority opinion was reached by six justices, including Douglas, Brennan and White who were in the majority in Griswold. Justice Burger was the lone dissenter.

"A person giving a lecture on coyote-getters would certainly improve his teaching technique if he passed one out to the audience... I do not see how we can have a 'Society of the Dialogue' if time-honored teaching techniques are barred to those who give educational lectures."

The tension exhibited between the majority and dissenting opinions in this case is similar to the disputes in Griswold. The majority Justices believed the state law to be an infringement of constitutional rights -- First and Fourteenth. Justice Douglas used the argument that Mr. Baird was denied the right to free speech because he was arrested for handing out a sample of what he talked about during a lecture. Justice Brennan appealed to the Equal Protection clause of the 14th Amendment by saying that the court had determined that married persons may use birth control, and the state may not put unmarried persons in a separate category denying them access to the same exercise of rights.

Justice Burger's dissent focused on whether the state has the power to regulate the dispensing of medicine and held that the majority opinion "seriously invaded the constitutional prerogatives of the State." He did not see Griswold as having any authority in the Baird decision. The following quotes illustrate some of the arguments in this ruling.

Majority Opinions

After determining that Mr. Baird did indeed have standing to petition for the rights of unmarried persons as a class, Justice Brennan delivered the majority arguments.

Justice Brennan stated that the basic principles governing this case were those of the Equal Protection Clause of the Fourteenth Amendment.

"The question for our determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under Massachusetts General Laws..."

If the purpose of the law is the deterrence of premarital sex,

"It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as the punishment for fornication, which is a misdemeanor... Violation of the present statute is a felony, punishable by five years in prison. We find it hard to believe that the legislature adopted a statute carrying a five year penalty...for a ninety-day misdemeanor."

The Justice did also not believe that the purpose of §21A was to "serve the health needs of the community." The original 1879 law was contained in a chapter dealing with Crimes Against Chastity, Morals, Decency and Good Order.

"If health were the rationales of §21A, the statute would be both discriminatory and overbroad.... If there is need to have a physician prescribe (and a pharmacist dispense) contraceptives, that need is as great for unmarried persons as for married persons."

Justice Brennan in a charming footnote from the Court of Appeals verdict, addressed the issue of whether contraceptives are dangerous, since they are readily available in stores when used for prevention of disease.

"It is inconceivable that the need for health controls varies with the purpose for which the contraceptive is to be used when the physical act in all cases is one and the same... It is 200 years since Casanova recorded the ubiquitous article which, perhaps because of the birthplace of the inventor, he termed a 'redingote anglasi'. The reputed nationality of the condom has now changed, but we have never heard criticism of it on the side of health."

(Is this the first time the word condom was used in a Supreme Court decision?)

Then Justice Brennan returned to the Griswold verdict to reassert that contraceptives may not be banned from distribution.

"If the right to 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."

He then cites Stanley v. Georgia to sum up his concept of freedom.

Dissenting Opinion

Justice Burger began his dissent by upholding the ruling of the Supreme Judicial Court of Massachusetts convicting Mr. Baird of dispensing medicinal material without a license.

"To my mind the validity of this restriction on dispensing medicinal substances is the only issue before the Court, and appellee has no standing to challenge that part of the statute restricting the persons to whom contraceptives are available."

The Justice found no provision of the Constitution that could prevent the state from limiting who may dispense medicine.

"I see nothing in the Fourteenth Amendment or any other part of the Constitution that even vaguely suggests that these medicinal forms of contraceptives must be available in the open market. I do not challenge Griswold v. Connecticut, supra, despite its tenuous moorings to the test of the Constitution, but I cannot view it as controlling authority for this case."

Apparently, the fact that the contraceptive in question was indeed available on the open market for prevention of disease as Justice Brennan mentioned in the majority opinion, was not an issue for Justice Burger.

Justice Burger said that §§21 and 21A served the legitimate interest of the State in protecting the health of its citizens, and the fact that the original intent of the prohibition was protection of morals, does not invalidate the new restrictions on dispensing medicine.

"I fail to see why the historical predominance of an unacceptable legislative purpose makes incredible the emergence of a new and valid one."

The legislature may have too broadly restricted the class of who may obtain contraceptives, but that still does not remove the need to protect the health of citizens. He also did not buy the argument that a state has no need to restrict access to medicine that has been approved as safe by a federal agency because it is commonplace for a drug to be considered safe one day and harmful the next.

"I cannot believe that unanimity of expert opinion is a prerequisite to a State's exercise of its police power, no matter what the subject matter of the regulation... It is inappropriate for this Court to overrule a legislative classification by relying on the present consensus among leading authorities. The commands of the Constitution cannot fluctuate with the shifting tides of scientific opinion."

Justice Burger's dissent made no reference to the "right to privacy" of the married or single person. His overriding concern was with the United States Supreme Court striking down a State law of legitimate purpose which had been upheld by a State Court.

Majority Opinions

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man."

Justice Douglas, as he held in Griswold, viewed Mr. Baird's arrest as a violation of First Amendment rights. He allowed that Mr. Baird was lecturing with visual aids, and did not need a license to do so.

"The teachings of Baird and those of Galileo might be of a different order, but the suppression of either is equally repugnant."

As far as Mr. Baird handing out a sample was concerned, Justice Douglas said,

"A person giving a lecture on coyote-getters would certainly improve his teaching technique if he passed one out to the audience... I do not see how we can have a 'Society of the Dialogue' if time-honored teaching techniques are barred to those who give educational lectures."

Justice White's decision rested squarely on Griswold which found for a zone of "marital privacy" protected by the Bill of Rights. He said that since the Connecticut law addressed in Griswold did not take up the issue of manufacture or sale of contraceptives, the Supreme Court made no ruling in the matter.

Justice White defined the weight of Mr. Baird' offense as failure to possess a license to dispense contraceptives. He allowed as how the state had a legitimate interest in the health of its citizens, but giving away foam is not a health risk.

"Had Baird distributed a supply of the so-called 'pill', I would sustain his conviction under this statute... Our general reluctance to question a State's judgment on matters of public health must give way where, as here, the restriction at issue burdens the constitutional rights of married persons to use contraceptives."

Justice White said that Mr. Baird could not be convicted for giving Emko to a married person and the marital status of the young woman in question was never filed in the record.

"Because this case can be disposed of on the basis of settled constitutional doctrine, I perceive no reason for reaching the novel constitutional question whether a State may restrict or forbid the distribution of contraceptives to the unmarried."

Dissenting Opinion

"It is possible, of course, that some members of the Massachusetts Legislature desired contraceptives to be dispensed only through medical channels in order to minimize their use, rather than to protect the health of their users, but I do not think it is the proper function of this Court to dismiss as dubious a state court's explication of a state statute absent overwhelming and irrefutable reasons for doing so."

Justice Burger, unlike Douglas, also sees no infringement of Free Speech in Mr. Baird's conviction. He finds that the "using a visual aid" theory does not deny the fact that a contraceptive was given away. The Justice makes no mention of the fact that it was never entered in the record whether the recipient was married or not.

"The appellee has succeed, it seems, in cloaking his activities in some new permutation of the First Amendment, although his conviction rests in fact and law on dispensing a medicinal substance without a license. ...we could quite as well employ it for the protection of a 'curbstone quack'... who plied them with 'free samples' of some unproved remedy. Massachusetts presumably outlawed such activities long ago, but today's holding seems to invite their return."

As far as Justice White's argument that the State law interfered with the Griswold decision and the State had no legitimate reason to protect its citizens from contraceptive foam, Justice Burger disagreed on both counts.

Where the health of citizens is concerned, Justice Burger said,

"So far as I am aware, this Court had never before challenged the police power of a State to protect the public from the risks of possibly spurious and deleterious substances within its borders. Nonetheless, the concurring opinion would hold, as a constitutional matter, that a State must allow someone without medical training the same power to distribute this medicinal substance as is enjoyed by a physician."

For Justice Burger, the issue in this case was never the fact that unmarried persons and minors were denied a Constitutional right to privacy.

"...since the Massachusetts statute seeks to protect health by regulating contraceptives, the opinion invokes Griswold v. Connecticut, and puts the statutory classification to an unprecedented test: either the record must contain evidence supporting the classification or the health hazards of the particular contraceptive must be judicially noticeable. This is indeed a novel constitutional doctrine and not surprisingly no authority is cited for it."
"By relying on Griswold in the present context, the Court has passed beyond the penumbras of the specific guarantees into the uncircumscribed area of personal predilections."

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