405 U.S. 438 (1972), 70-17, Eisenstadt v. Baird

Docket Nº:No. 70-17
Citation:405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349
Party Name:Eisenstadt v. Baird
Case Date:March 22, 1972
Court:United States Supreme Court
 
FREE EXCERPT

Page 438

405 U.S. 438 (1972)

92 S.Ct. 1029, 31 L.Ed.2d 349

Eisenstadt

v.

Baird

No. 70-17

United States Supreme Court

March 22, 1972

Argued November 17-18, 1971

APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Syllabus

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 [92 S.Ct. 1031] 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

Page 439

relations and its scope and penalty structure are inconsistent with that purpose. Pp. 447-450.

(b) Similarly, the protection of public health through the regulation of the distribution of potentially harmful articles cannot reasonably be regarded as the purpose of the law, since, if health were the rationale, the statute would be both discriminatory and overbroad, and federal and state laws already regulate the distribution of drugs unsafe for use except under the supervision of a licensed physician. Pp. 450-452.

(c) Nor can the statute be sustained simply as a prohibition on contraception per se, for, whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. If, under Griswold, supra, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible, since the constitutionally protected right of privacy inheres in the individual, not the marital couple. If, on the other hand, Griswold is no bar to a prohibition on the distribution of contraceptives, a prohibition limited to unmarried persons would be underinclusive, and invidiously discriminator. Pp. 452-455.

429 F.2d 1398, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, and MARSHALL JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 455. WHITE, J., filed an opinion concurring in the result, in which BLACKMUN, J., joined, post, p. 460. BURGER, C.J., filed a dissenting opinion, post, p. 465. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

Page 440

BRENNAN, J., lead opinion

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 [92 S.Ct. 1032] 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

Page 441

for 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 conception. [And 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.2

As interpreted by the State Supreme Judicial

Page 442

Court, these provisions make it a felony for anyone, other than a registered physician or pharmacist acting in accordance with the terms of § 21A, to dispense any article with the intention that it be used for the prevention of conception. The statutory scheme distinguishes among three distinct classes of distributees -- first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent not pregnancy, but the spread of disease. This construction of state law is, of course, binding on us. E.g., Groppi v. Wisconsin, 400 U.S. 505, 507 (1971).

The legislative purposes that the statute is meant to serve are not altogether clear. In Commonwealth v. Bard, supra, the Supreme Judicial Court noted only the State's interest in protecting the health of its citizens: "[T]he prohibition in § 21," the court declared, "is 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.

355 Mass. at 753, 247 N.E.2d at 578. In a subsequent decision, Sturgis v. Attorney General, 358 Mass. 37, ___, 260 N.E.2d 687, 690 (1970), [92 S.Ct. 1033] the court, however, found "a second and more compelling ground for upholding the statute" -- namely, to protect morals through "regulating the private sexual lives of single persons."3 The Court of Appeals, for reasons that will

Page 443

appear, did not consider the promotion of health or the protection of morals through the deterrence of fornication to be the legislative aim. Instead, the court concluded that the statutory goal was to limit contraception in and of itself -- a purpose that the court held conflicted "with fundamental human rights" under Griswold v. Connecticut, 381 U.S. 479 (1965), where this Court struck down Connecticut's prohibition against the use of contraceptives as an unconstitutional infringement of the right of marital privacy. 429 F.2d at 1401-1402.

We agree that the 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.

I

We address at the outset appellant's contention that Baird does not have standing to assert the rights of unmarried persons denied access to contraceptives, because he was neither an authorized distributor under § 21A nor a single person unable to obtain contraceptives. There can be no question, of course, that Baird has sufficient interest in challenging the statute's validity to satisfy the "case or controversy" requirement of Article III of the Constitution.4 Appellant's argument, however, is that

Page 444

this case is governed by the Court's self-imposed rules of restraint, first, that

one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional,

United States v. Raines, 362 U.S. 17, 21 (1960), and, second, the "closely related corollary that a litigant may only assert his own constitutional rights or immunities," id. at 22. Here, appellant contends that Baird's conviction rests on the restriction in § 21A on permissible distributors, and that that restriction serves a valid health interest independent of the limitation on authorized distributees....

To continue reading

FREE SIGN UP