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Eisenstadt v.

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Eisenstadt v. Baird

Supreme Court of the United States

Argued November 1718, 1971

Decided March 22, 1972

Full case name Thomas S. Eisenstadt, Sheriff of Suffolk

County, Massachusetts v. William F. Baird

Citations 405 U.S. 438 (more)

92 S. Ct. 1029; 31 L. Ed. 2d 349; 1972 U.S.


Prior history Petition dismissed, 310 F. Supp.951 (D.

Mass. 1970); vacated, 429 F.2d 1398 (1st
Cir. 1970)

Subsequent None


A Massachusetts law criminalizing the distribution of

contraceptives to unmarried persons for the purpose of
preventing pregnancy violated the right to equal protection.
Judgment of the Court of Appeals for the First Circuit affirmed.

Court membership

Chief Justice
Warren E. Burger

Associate Justices
William O. Douglas William J. Brennan, Jr.
Potter Stewart Byron White
Thurgood Marshall Harry Blackmun
Lewis F. Powell, Jr. William Rehnquist

Case opinions

Majority Brennan, joined by Douglas, Stewart,


Concurrence Douglas

Concurrence White, joined by Blackmun

Dissent Burger

Powell and Rehnquist took no part in the consideration or decision of

the case.

Laws applied

U.S. Const. amends. IX, XIV

Eisenstadt v. Baird, 405 U.S. 438(1972), is a United States Supreme Courtcase that established
the right of unmarried people to possess contraception on the same basis as married couples.
The Court struck down a Massachusettslaw prohibiting the distribution of contraceptives to
unmarried people for the purpose of preventing pregnancy, ruling that it violated the Equal Protection
Clause of the Constitution.


2Supreme Court decision
4See also
6External links

William Baird was charged with a felony for distributing contraceptive foams after lectures on birth
control and population control at Boston University.[1][2] The prearranged violation of the law occurred
on April 6, 1967 when Baird handed a condom and a package of contraceptive foam to a 19-year-old
woman.[3] Under Massachusetts law on "Crimes against chastity" (Chapter 272, section 21A),
contraceptives could be distributed only by registered doctors or pharmacists, and only to married
After Baird was convicted, an appeal resulted in partial overturn by the Massachusetts Supreme
Judicial Court, which concluded that the lectures were covered by First Amendment protections.
However, the SJC affirmed the conviction under contraceptive distribution laws. Baird filed a petition
for a federal writ of habeas corpus, which was refused by the federal district court. Upon appeal, The
Court of Appeals for the First Circuit vacated the dismissal and remanded the action with directions
to grant the writ, and dismiss the charge, reasoning that the Massachusetts law infringed on
fundamental human rights of unmarried couples as guaranteed by the Due Process Clause of the
Fourteenth Amendment. This ruling was then appealed to the United States Supreme Court, by
Sheriff Eisenstadt, who had prosecuted the case, on the ground that Baird lacked standing to
appeal, being neither an authorized distributor under the statute nor a single person.

Supreme Court decision[edit]

In a 61 decision[4] (Justices Rehnquist and Powell were not sworn in on time to participate in the
case), the Court upheld both Baird's standing to appeal and the First Circuit's decision on the basis
of the Equal Protection Clause, but did not reach the Due Process issues. The majority opinion was
written by Justice William J. Brennan Jr. and joined by three other justices, William O.
Douglas, Potter Stewart, and Thurgood Marshall. Brennan reasoned that, since Massachusetts did
not (and perhaps could not under Griswold v. Connecticut) enforce its law against married couples,
the law worked irrational discrimination by denying the right to possess contraceptives by unmarried
couples. He found that Massachusetts's law was not designed to protect public health and lacked a
rational basis.
Brennan, writing for the Court, made four principal observations:

1. Baird had standing to assert the rights of unmarried persons who wished to have access to
2. Although states could constitutionally prohibit and punish sex outside of marriage, the
Massachusetts law could not reasonably be held to advance that purpose, since a)
fornication was a misdemeanor in Massachusetts, and a state could not reasonably wish to
punish a misdemeanor by forcing an unwanted child on the fornicator; b) the state could not
reasonably wish to punish the distributor of contraceptives as a felon for aiding and abetting
the misdemeanor of fornication; c) the law did not prohibit the distribution of contraceptives
to unmarried persons for the purpose of preventing sexually-transmitted diseases, and d)
the law made no attempt to ensure that contraceptives legally obtained by a married person
for the purpose of preventing pregnancy would not be used in an extramarital affair.
3. The Massachusetts law could not reasonably be held to promote health, as whatever health
risks posed by contraceptives were just as great for married persons as unmarried persons.
4. The Massachusetts law could not be justified by the State's judgment that contraceptives are
immoral per se, because the morality of contraceptives does not depend on the marital
status of those who use it. It is possible that the Due Process right of privacy of married
couples to use contraceptives recognized in Griswold v. Connecticut means that married
couples have the right to have contraceptives distributed to them; if so, then unmarried
people have that same right. ("If the right of 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.") But even if Griswold does not imply a Due Process right of married couples to be
distributed contraceptives, the Equal Protection Clause prevents states from using the
immorality of contraception as a basis for denying to unmarried people the same access to
contraceptives as married people.
Justice Douglas, concurring, argued that since Baird was engaged in speech while distributing
vaginal foam, his arrest was prohibited by the First Amendment.
Justice White, joined by Justice Blackmun, did not join Brennan's opinion but concurred in the
judgment on narrower grounds. White and Blackmun declined to reach the issue of whether
Massachusetts could limit distribution of contraceptives only to married couples. They argued that
Massachusetts had asserted an implausible health rationale for limiting distribution of vaginal foam
to licensed pharmacists or physicians.
Chief Justice Burger dissented alone, arguing that there were no conclusive findings available to the
Court on the health risks of vaginal foam since that issue had not been presented to the lower
courts, and thus no basis for the Court's finding that the Massachusetts statute served no public
health interest. Burger also held that the Massachusetts statute independently advanced the state's
interest in ensuring couples receive informed medical advice on contraceptives.

While Brennan's ruling conceded that states may prohibit sex outside of marriage, later cases have
interpreted its most famous sentence"If the right of 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."as recognizing
the right of single people to procreate on the same basis as married couples, reasoning which would
eventually be extended to a more general right to engage in sexual activity. Carey v. Population
Services International, decided in 1977, struck down a New York law forbidding distribution of
contraceptives to those under 16 but failed to produce a majority opinion and thus is not widely
cited. Bowers v. Hardwick in 1986 rejected the claim of homosexuals to a fundamental right to
engage in sodomy. However, Lawrence v. Texasoverruled Bowers in 2003, citing Eisenstadt in
support of this ruling, and recognized that consenting adults had a right to engage in private,
consensual non-commercial sexual intercourse. Roy Lucas, a prominent abortion rights lawyer,
assessed the case as "among the most influential in the United States during the entire [20th]
century by any manner or means of measurement."[5] Eisenstadt v. Baird is mentioned in over 52
Supreme Court cases from 1972 through 2002.[5] Each of the eleven U.S. Court of Appeals Circuit,
as well as the Federal Circuit, has cited Eisenstadt v. Baird as authority.[5] The highest courts of all
50 States, the District of Columbia, and Puerto Rico have cited Eisenstadt v. Baird.[5]