Eisenstadt v. Baird, 405 U.S. 438 (1972)

Appellee Baird delivered a lecture on contraception to a group of college students in which he displayed contraceptive materials and then gave one of the students a package of contraceptive foam in violation of a Massachusetts law. The law at issue criminalized the distribution of contraceptives. Yet, the statute provided, in part, that a ‘‘registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception’’ (Eisenstadt v. Baird [1972]). Appellee, having been charged with violation of the Massachusetts law, challenged its constitutionality in a writ of habeas corpus upon his conviction.

The question presented was whether there was some ground of difference between married and unmarried persons that rationally explained their different treatment under the law. The Supreme Court invalidated the statute on equal protection grounds. It held that the statute, viewed as a prohibition on contraception, per se, violated the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment. As the Court indicated, the legislative intent of the statute, as explained by the state courts, was unclear. One state court found that the prohibition was directly related to the state’s goal of ‘‘preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences’’ (Commonwealth v. Baird [1969]). Another Massachusetts court, however, found that ‘‘a second and more compelling ground for upholding the statute’’ was to protect morals through ‘‘regulating the sexual lives of single persons’’ (Sturges v. Attorney General [1970]. The state further argued to the Supreme Court that the purpose of the statute was to promote marital fidelity.

The Supreme Court rejected all of these purported goals of the statute at issue. As written, in making contraceptives available to married persons without regard to their intended use, the statute did nothing to prohibit the illicit sexual activities of married persons. With regard to the purported goal of discouraging premarital sexual intercourse, the effect of the statute would be to make the birth of an unwanted child the punishment for fornication. Clearly, such an outcome would be at odds with the proffered objective. Finally, with regard to the purported goal of protecting individuals from dangerous consequences, the statute forbade physicians from distributing contraceptives even when needed to protect the patient’s health.

Writing for four members of the Court, Brennan explained that although the Court has recognized that the Fourteenth Amendment does not prohibit states from treating different classes of persons in different ways, the Equal Protection Clause does prohibit the state from doing so arbitrarily. A classification must be reasonable and must rest on some grounds having a fair and substantial relation to the object of the legislation. Similarly situated persons must be treated alike. As discussed above, in this case, the evils that the statute purported to address applied equally to both married and unmarried persons. Therefore, the discrimination against unmarried persons was found to be invidious. Although Griswold v. Connecticut found a right to privacy only in the marital relationship, a married couple is an association of two people each with a separate intellectual and emotional makeup (striking down a law that forbade the use of contraceptives by married persons). The right to privacy, thus, is a right of the individual ‘‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’’ (Eisenstadt).

Although decided on equal protection grounds, the Court’s language was consistent with the noneconomic substantive due process cases of 1920s and 1960s. Eisenstadt continues to be cited inmost cases addressing abortion and an individual’s right to privacy. Indeed, the right to privacy found in Griswold and Eisenstadt paved the way for Roe v. Wade (1973); City of Akron v. Akron Ctr. for Reproductive Health (1983) (relying in part on Eisenstadt in invalidating ordinance requiring all second trimester abortions to be done in a hospital). Most recently, the Supreme Court relied on Eisenstadt in striking down a state law criminalizing sodomy, stating, ‘‘the right to make certain decisions regarding sexual conduct extends beyond the marital relationship’’ (Lawrence v. TexasS.Ct. [2003]).

EMILY R. FROIMSON

Cases and Statutes Cited

• City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416 (1983)
• Commonwealth v. Baird, 355 Mass. 746, 247 N.E.2d 574 (1969)
• Eisenstadt v. Baird, 405 U.S. 438 (1972)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Lawrence v. Texas, 123 S.Ct. 2472, 2477 (2003)
• Roe v. Wade, 410 U.S. 113 (1973)
• Sturges v. Attorney General, 358 Mass. 37, 260 N.E.2d 687 (1970)