EISENSTADT v

EISENSTADT v. BAIRD

405 U.S. 438

November 17-18, 1971, Argued

March 22, 1972, Decided

Appellee attacks his conviction of violating Massachusetts law for giving a
woman a contraceptive foam at the close of his lecture to students on
contraception. That law makes it a felony for anyone to give away a drug,
medicine, instrument, or article for the prevention of conception except in the
case of (1) a registered physician administering or prescribing it for a
married person or (2) an active registered pharmacist furnishing it to a
married person presenting a registered physician's prescription. The District
Court dismissed appellee's petition for a writ of habeas corpus. The Court of
Appeals vacated the dismissal, holding that the statute is a prohibition on
contraception per se and conflicts "with fundamental human rights"
under Griswold v. Connecticut, 381
U.S. 479 . Appellant, inter alia, argues that appellee lacks standing to
assert the rights of unmarried persons denied access to contraceptives because
he was neither an authorized distributor under the statute nor a single person
unable to obtain contraceptives. Held:

1. If, as the Court of Appeals
held, the statute under which appellee was convicted is not a health measure,
appellee may not be prevented, because he was not an authorized distributor,
from attacking the statute in its alleged discriminatory application to
potential distributees. Appellee, furthermore, has standing to assert the
rights of unmarried persons denied access to contraceptives because their
ability to obtain them will be materially impaired by enforcement of the
statute. Cf. Griswold, supra; Barrows v. Jackson, 346
U.S. 249 . Pp. 443-446.

2. By providing dissimilar
treatment for married and unmarried persons who are similarly situated, the
statute violates the Equal Protection Clause of the Fourteenth Amendment. Pp.
446-455.

(a) The deterrence of fornication,
a 90-day misdemeanor under Massachusetts law, cannot reasonably be regarded as
the purpose of the statute, since the statute is riddled with exceptions making
contraceptives freely available for use in premarital sexual [405 U.S. 438, 439]   relations
and its scope and penalty structure are inconsistent with that purpose. Pp.
447-450.

EISENSTADT v

EISENSTADT v. BAIRD

405 U.S. 438

November 17-18, 1971, Argued

March 22, 1972, Decided

 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, and
Marshall, JJ., joined. Douglas, J., filed a concurring opinion. White, J.,
filed an opinion concurring in the result, in which Blackmun, J., joined.
Burger, C. J., filed a dissenting opinion. Powell and Rehnquist, JJ., took no
part in the consideration or decision of the case.

 

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellee William Baird was convicted at a bench trial in the Massachusetts
Superior Court under Massachusetts General Laws Ann., c. 272, 21, first, for exhibiting
contraceptive articles in the course of delivering a lecture on contraception
to a group of students at Boston University and, second, for giving a young
woman a package of Emko vaginal foam at the close of his address. 1 The Massachusetts
Supreme Judicial Court unanimously set aside the conviction for exhibiting
contraceptives on the ground that it violated Baird's First Amendment rights,
but by a four-to-three vote sustained the conviction for giving away the foam.
Commonwealth v. Baird, 355 Mass. 746, 247 N. E. 2d 574 (1969). Baird
subsequently filed a petition for a federal writ of habeas corpus, which the
District Court dismissed. 310 F. Supp. 951 (1970). On appeal, however, the Court
of Appeals for the First Circuit vacated the dismissal and remanded the action
with directions to grant the writ discharging Baird. 429 F.2d 1398 (1970). This
appeal by the Sheriff of Suffolk County, Massachusetts, followed, and we noted
probable jurisdiction. 401
U.S. 934 (1971). We affirm.

Massachusetts General Laws Ann., c. 272, 21, under which Baird was
convicted, provides a maximum five-year term of imprisonment for "whoever
. . . gives away . . . any drug, medicine, instrument or article whatever [405 U.S. 438, 441]
the prevention of conception," except as authorized in 21A. Under 21A,
"[a] registered physician may administer to or prescribe for any married
person drugs or articles intended for the prevention of pregnancy or

EISENSTADT v

EISENSTADT v. BAIRD

405 U.S. 438

November 17-18, 1971, Argued

March 22, 1972, Decided

MR. CHIEF JUSTICE BURGER, dissenting.

The judgment of the Supreme Judicial Court of Massachusetts in sustaining
appellee's conviction for dispensing medicinal material without a license seems
eminently correct to me and I would not disturb it. It is undisputed that
appellee is not a physician or pharmacist and was prohibited under
Massachusetts law from dispensing contraceptives to anyone, regardless of
marital status. To my mind the validity of this restriction on dispensing
medicinal substances is the only issue before the Court, [405 U.S. 438, 466]   and
appellee has no standing to challenge that part of the statute restricting the
persons to whom contraceptives are available. There is no need to labor this
point, however, for everyone seems to agree that if Massachusetts has validly
required, as a health measure, that all contraceptives be dispensed by a
physician or pursuant to a physician's prescription, then the statutory
distinction based on marital status has no bearing on this case. United States
v. Raines, 362
U.S. 17, 21 (1960).

The opinion of the Court today brushes aside appellee's status as an
unlicensed layman by concluding that the Massachusetts Legislature was not
really concerned with the protection of health when it passed this statute. MR.
JUSTICE WHITE acknowledges the statutory concern with the protection of health,
but finds the restriction on distributors overly broad because the State has
failed to adduce facts showing the health hazards of the particular substance
dispensed by appellee as distinguished from other contraceptives. MR. JUSTICE
DOUGLAS' concurring opinion does not directly challenge the power of
Massachusetts to prohibit laymen from dispensing contraceptives, but considers
that appellee rather than dispensing the substance was resorting to a
"time-honored teaching technique" by utilizing a "visual aid"
as an adjunct to his protected speech. I am puzzled by this third
characterization of the case. If the suggestion is that appellee was merely
displaying the contraceptive material without relinquishing his ownership of
it, then the argument must be that the prosecution failed to prove that
appellee had "given away" the contraceptive material. But appellee
does not challenge the sufficiency of the evidence, and himself summarizes the
record as showing that "at the close of his lecture he invited members of
the audience . . . to come and help themselves." On the other hand, if the