Baird v. Eisenstadt, Misc. Civ. No. 70-16.

• Decision Date: 20 March 1970
• Docket Number: Misc. Civ. No. 70-16.
• Citation: 310 F. Supp. 951
• Parties: William R. BAIRD, Petitioner, v. Thomas S. EISENSTADT, as he is Sheriff of Suffolk County, Massachusetts, Respondent.
• Court: U.S. District Court — District of Massachusetts

310 F. Supp. 951

William R. BAIRD, Petitioner, v. Thomas S. EISENSTADT, as he is Sheriff of Suffolk County, Massachusetts, Respondent.

Misc. Civ. No. 70-16.

United States District Court, D. Massachusetts.

March 20, 1970.

Joseph J. Balliro, Boston, Mass., for petitioner.

Robert H. Quinn, Atty. Gen., Lawrence P. Cohen, Asst. Atty. Gen., Boston, Mass., for respondent.

OPINION

JULIAN, District Judge.

William R. Baird, who is presently in the custody of the respondent serving a three-month sentence imposed by the Massachusetts courts, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 claiming that he is in custody in violation of the Constitution of the United States.

The facts are briefly these: The petitioner, pursuant to invitation, addressed a group of approximately 2,000 students in Hayden Auditorium at Boston University on April 6, 1967. The address was approximately one hour in length and consisted of a discussion of various contraceptive devices, displayed with diagrams on two demonstration boards or contained in a cardboard box, and an exposition of their respective merits. During the address he stated that he was violating the statute and invited arrest. At the close the petitioner invited the members of the audience to come to the stage and to help themselves to the contraceptive articles. The petitioner personally handed to a young lady a package of Emko vaginal foam, an admittedly contraceptive substance. The petitioner was thereupon arrested by a police officer and taken to police headquarters.

Petitioner was prosecuted and convicted in the Massachusetts Superior Court on two indictments charging violations of Mass.G.L. c. 272, § 21, one for unlawfully exhibiting certain articles for the prevention of conception, the other for unlawfully giving away an article for the prevention of conception. On appeal the Supreme Judicial Court reversed the conviction for exhibiting the articles,¹ but affirmed the conviction for giving away the article.² Petitioner was thereupon sentenced to imprisonment for the term of three months. On January 12, 1970, the Supreme Court of the United States denied certiorari. Baird v. Massachusetts, 396 U.S. 1029, 90 S.Ct. 580, 24 L.Ed.2d 524.

The material part of Mass.G.L. c. 272, § 21, as amended through St.1966, c. 265, § 3, is:

"Except as provided in section twenty-one A, whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away * * * 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 or in jail or the house of correction for not more than two and one half years or by a fine of not less than one hundred nor more than one thousand dollars."

The exception in § 21 referring to § 21A was inserted by St.1966, c. 265, § 3.³ Section 21A was set forth in c. 265, § 1, which reads in relevant part:

"A registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. 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. A public health agency, a registered nurse, or a maternity health clinic operated by or in an accredited hospital may furnish information to any married person as to where professional advice regarding such drugs or articles may be lawfully obtained."

The Supreme Judicial Court considered the effect of Griswold v. Connecticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, and of St.1966, c. 265, upon § 21 and concluded that "the Griswold case and the ensuing statutory amendments swept away the ground of decision in Commonwealth v. Gardner, 300 Mass. 372, 15 N.E.2d 222 (1938), which upheld convictions of individuals who were charged with selling or giving contraceptives to married women even if `intended to be used for the prevention of conception only upon prescription by a duly qualified physician when necessary for the preservation of life or health according to sound and generally accepted medical practice' (p. 374, 15 N. E.2d p. 223). They did not, however, repeal the prohibition against laymen furnishing information or providing contraceptives, and they did not enlarge the group who might be so informed or thus provided. Unmarried individuals are still excluded. There is nothing in § 21 purporting to prohibit giving advice, discussing, or lecturing on the subject of contraceptives." This construction by the highest Court of Massachusetts is binding upon this Court, so that factually petitioner's conduct is clearly proscribed by statute. No showing was made either in the State courts or before this Court that petitioner has ever been a physician or pharmacist or was otherwise professionally qualified to prescribe or dispense contraceptives.

To support his position, petitioner presents several constitutional arguments: that the statute lacks a legitimate legislative purpose; that it infringes his right of free speech; that it is unconstitutionally vague; that it is not severable; and that it violates a right of privacy.

Considering his arguments seriatim, the first question is whether there is a legitimate legislative purpose justifying the statute. On this issue the Supreme Judicial Court stated:

"Since St.1879, c. 159, § 1, the public policy of this Commonwealth, as legislatively declared, has included a prohibition against distribution of articles for the prevention of conception. Not until the recent amendment by St.1966, c. 265, § 3, was any exception made in favor of doctors and others who by training or occupation might be deemed to have acquired a special qualification as distributors. The Commonwealth has a legitimate interest in preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences. * * *

"Therefore, we do not declare that a statute preventing distribution by indiscriminate persons is beyond legislative power. Unlike the legislation in Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 424-426, 204 N.E.2d 281, the prohibition in § 21, as applied to the defendant petitioner in this case, is directly related to a legitimate legislative purpose. The legitimacy of the purpose depends upon a distinction as to the distributor and not as to the marital status of the recipient."

247 N.E.2d at 578. This Court accepts as valid and binding the construction placed upon § 21 by the State court.

Had § 21A authorized registered physicians to administer or prescribe contraceptives for unmarried as well as for married persons, the legal position of the petitioner would not have been in any way altered. Not being a physician he would still have been prohibited by § 21 from "giving away" the contraceptive.

A legislature has the constitutional power to limit the practice of medicine to qualified physicians. The statutes under attack deal with the distribution of contraceptive drugs and devices. It is a matter of common knowledge that contraceptive substances may have harmful effects on the health of those who use them and for that reason are still the subject of extensive medical research.⁴ The statutes in question have a clear relationship to the legislative purpose of safeguarding the health of members of the community by placing the distribution of such substances exclusively in the hands of registered physicians and pharmacists. The statutes therefore can reasonably be regarded as furthering an important and substantial governmental interest.

Petitioner claims that the "giving away" of the contraceptive was constitutionally protected protest and speech. This Court, however, adopts the view taken by the Supreme Judicial Court that the bestowal of the contraceptive upon the young woman in the audience "added nothing to the understanding of the lecture, and was not an exercise of a right guaranteed under the First Amendment." This conclusion is in accord with recent pronouncements made by the Supreme Court of the United States in this area of constitutional law. Thus, in Cox v. Louisiana, 1965, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, the Court stated:

"We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. * * * We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra, 336 U.S. 490 at 502, 69 S.Ct. at 691, 93 L. Ed. 834, that `it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.'"

And again in United States v. O'Brien, 1968, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672:

"O'Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of burning his registration certificate was protected `symbolic speech' within the First Amendment. His argument is that the freedom of expression which the First Amendment guarantees includes all modes of `communication of ideas by conduct,' and that his conduct is within this definition because he did it in `demonstration against the war and against the draft.'

"We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it

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