Eisenstadt v. Baird (1972)

Editor's note: This article replaces a previous article on the same topic that was published in 2008.

On 22 March 1972, in Eisenstadt v. Baird (1972), hereafter Eisenstadt, the United States Supreme Court determined, in a six to one decision, that unmarried individuals have the same right to access contraceptives as married couples. Eisenstadt involved William Baird, a reproductive rights advocate who intentionally broke Massachusetts law in 1967 by giving a speech about birth control at Boston University in Boston, Massachusetts, and giving an unmarried, nineteen-year-old woman contraceptives. Baird argued that laws against unmarried people accessing contraceptives unfairly discriminated against unmarried people and denied them reproductive autonomy. Massachusetts law, however, stated that contraceptives could only be distributed by medical professions to married people. The case followed a similar legal challenge from 1965, Griswold v. Connecticut, hereafter Griswold, which found that married individuals have the right to access contraceptives based on a constitutional right to privacy in the US. Eisenstadt reinforced the constitutional right to privacy and equalized the accessibility to contraceptives for married and single individuals.

1. Background and Context
2. Arguments in the Case
3. The Court's Ruling
4. Impact of the Case

Background and Context

Eisenstadt strengthened the right to privacy that the Supreme Court outlined in 1965 with the decision in Griswold. That case involved a clinic in Connecticut that distributed and taught about contraceptives to married couples in violation of state law. The Supreme Court, in a seven to two decision, found that married couples have the right to access contraceptives and plan their pregnancies due to an implied right to privacy in the United States Constitution. In the majority opinion, the justices argue that the Constitution does not necessarily contain all rights afforded to US citizens, and some rights not mentioned in the text must exist regardless to meaningfully protect the rights that are written out. Although a general right to privacy is not mentioned in the Constitution, the Supreme Court ruled that it must exist nonetheless for someone to be able to exercise rights such as free association and speech. Justices argued that the right to protect personal liberties such as privacy extended to other issues, including the right to make decisions about pregnancy.

Approximately two years after Griswold, on 6 April 1967, Baird intentionally violated an 1879 Massachusetts law called “Crimes Against Chastity, Morality, Decency and Good Order,” which prohibited the distribution and exhibition of any medication or device intended to prevent or end a pregnancy. According to court arguments, Baird planned to violate the law, working in conjunction with students at Boston University. Boston University hosted a speech by Baird, where he discussed birth control in front of over 2,000 students. Following the speech, Baird gave a vaginal foam contraceptive to an unmarried female student. Unlike some other challenges to the law, Baird’s actions were not part of the strategy of a large state or nationwide organization. Police in five different states had arrested Baird eight separate times for violating laws against discussing birth control prior to his violation of the Massachusetts Law. Baird later explained his motivation for challenging laws against birth control and abortion, stating that he had witnessed an unmarried mother of eight die in Harlem Hospital in New York City, New York, from an attempted abortion with a wire coat hanger. Planned Parenthood, a nonprofit organization providing reproductive and sexual healthcare and education in the US, and other national organizations relating to reproductive rights initially attempted to distance themselves from Baird’s actions because Baird’s tactics cut against their national strategy.

Following his 1967 speech, the state of Massachusetts arrested and charged Baird and the Massachusetts Superior Court convicted Baird of two crimes, one for showing the contraceptives, and a second for distributing them. Baird appealed the decision to the Supreme Judicial Court in Massachusetts, which reversed the conviction for exhibiting contraceptives, stating that the lecture and demonstration was protected speech under the First Amendment. However, the Supreme Judicial Court affirmed the conviction for distribution of the materials, stating that Griswold allowed only qualified health professionals to distribute contraceptives. Since Baird was not such a professional, the court convicted and sentenced him to a three-month prison sentence.

In March 1970, while Baird was serving his three-month sentence for his actions during his Boston University lecture, he filed a petition to the district court in Massachusetts for a writ of habeas corpus, which is a request that a court order the release of an individual who is wrongfully imprisoned or detained. In his petition, Baird made several arguments. First, he argued that his lecture and presentation of the contraceptive products was protected speech under the First Amendment. Additionally, he stated that the length of his prison sentence violated the Eighth Amendment, which prohibits cruel or unusual punishment. The court did not rule in favor of Baird’s petition. In the decision, Judge C. J. Wilkins wrote that the Massachusetts law violated the First Amendment since Baird’s speech was not obscene, or any other type of non-protected speech, such as incitement to violence. However, according to Wilkins, the charge for illegally distributing drug materials did not violate the Constitution since the state of Massachusetts had a legitimate interest in deciding who could distribute medication. Thus, the district court dismissed Baird’s petition.

Baird appealed the district court dismissal, and a few months later, the Court of Appeals for the First Circuit agreed to hear the case in July 1970. Baird made three main arguments to the circuit court. First, he repeated one of the arguments from his petition, claiming that giving contraceptives was an extension of speech and thus protected by the First Amendment. Second, he posed that since Wilkins found that part of the Massachusetts statute unconstitutional, the entire statute must be ignored. Finally, he argued that Massachusetts’ argument that prosecuting Baird protected public health was flawed since the contraceptive foam was widely available without a prescription or medical consultation. In the circuit court decision, the judges state that Baird’s first two arguments did not convince them to support him. However, the circuit court agreed with Baird that the statute was arbitrary and discriminatory since it did not protect public health or morality as claimed by the state. The circuit court vacated, or annulled, the district court’s decision. Following the circuit court decision, Thomas Eisenstadt, Baird’s prosecutor and the sheriff of Suffolk County, New York, where Baird was imprisoned, appealed the decision to the United States Supreme Court.

Arguments in the Case

The Supreme Court listened to oral arguments in Eisenstadt in November of 1971. Joseph Nolan, who was an assistant district attorney in Suffolk County, argued on behalf of Eisenstadt, and Joseph Tydings, former US Senator and District Attorney, represented Baird. Nolan began oral arguments by describing the lecture that Baird gave, stating that he called out to the police to arrest him for violating the law, meaning that Baird admitted his guilt prior to arrest. Nolan also argued that Baird was not a physician, meaning that the Griswold decision did not protect him. Nolan also explained that although Baird’s attorneys mention the fact that the woman he gave contraceptives to was unmarried, the state did not find that fact to be relevant to his conviction. Tydings argued before the court that they should overturn the 1879 Massachusetts law based on preemption, which is when federal law supersedes state law. He stated that the Economic Opportunity Act of 1964, which specifically included funding for family planning clinics across the US to give out contraceptives without discrimination for marital status or income, indicates federal protection of contraceptive distribution. He also argued that contrary to the state’s claim that the law protected health, only allowing contraceptive access through doctors would endanger the health of low-income women who may have riskier pregnancies.

The Court's Ruling

On 22 March 1972, the Supreme Court, in a six to one decision, decided in favor of Baird. Justice William Brennan wrote the majority decision, joined by William Douglas, Potter Stewart, and Thurgood Marshall. Brennan first asserts that Baird has standing, or sufficient connection to the law being challenged, since the law imprisoned him, even though he was married and thus not subject to the law’s restriction on contraceptives. He then describes the Due Process Clause of the Fourteenth Amendment, which prohibits states from infringing on the rights of citizens without a fair process, such as a trial. He states that the Due Process Clause does not prevent states from treating different classes of people differently under the law; however, the treatment must not be arbitrary and must relate directly to the law. He finds the distinction between married and unmarried people in the 1879 Massachusetts law to be arbitrary. Furthermore, Brennan notes that the law does not further the claims of protecting health or morality as alleged by the state, nor does it prevent sexual relations among unmarried individuals, since Massachusetts had separate laws against fornication. Thus, the state did not have a compelling justification for maintaining the law. Brennan concludes the decision by mentioning privacy, arguing that the right to privacy is meaningless if it does not protect the individual’s right to decide if and when to have a child regardless of marital status.

In a concurring opinion, Douglas agrees with the majority, but also adds that the First Amendment speech protections do not include only verbal communication. He brings up United States v. O’Brien, hereafter O’Brien, which was a Supreme Court case that found that burning a draft card in protest of the Vietnam War was not protected speech under the First Amendment. O’Brien, according to Douglas, did not apply to Eisenstadt because conduct such as burning a draft card, while potentially supporting speech, also interferes with the rights of others. Douglas argues that Baird’s action of passing around a sample of a contraceptive served as a visual aid in conjunction with his First Amendment protected speech since Baird did not incite the woman receiving the sample to use it. Douglas states that speech includes non-verbal communication and expression, including the use of visual aids such as physical samples of contraceptives.

Justice Byron White also wrote a concurring opinion, joined by Harry Blackmun. In his opinion, White questions the necessity of answering the novel constitutional question of whether unmarried individuals have the same right to contraceptives as married couples. In the charges against Baird, there is no reference to the marital status of the woman who received the contraceptive from Baird. Rather, the illegality of Baird’s actions came from his lack of license to practice or distribute medicine. However, White agrees that since the vaginal foam that Baird distributed was widely available for purchase without a prescription, the state did not have a reasonable interest in protecting public health by preventing Baird from distributing the foam.

In a dissent, the Chief Justice Warren Burger argued that the only issue that should concern the court in Eisenstadt is whether the state can restrict people without medical license from distributing medical materials, not whether single individuals have a right to contraceptives. He states that there is no ambiguity about Baird’s status as a layman, with no medical authority to prescribe contraceptives, and he agrees with the Massachusetts courts that affirmed Baird’s conviction, stating that the law serves to protect the state’s interest in public health. He emphasizes that the constitutional question of the legality of restricting contraceptives based on marital status is not before the court, and acting as though it is by allowing non-licensed individuals to give out contraceptives is endangering public health. Burger concludes his dissent by stating that the majority’s use of Griswold moved beyond protecting general implied rights in the constitution, into protecting the rights personally favored by the justices. Justices Lewis Powell and William Rehnquist had not been sworn in at the time of the case, and thus did not partake in arguments nor deliberations.

Impact of the Case

Baird found little support from national abortion advocates during the Eisenstadt case. Planned Parenthood, speaking on Baird’s actions specifically and the case broadly, stated there was nothing to be gained by pursuing a case using Baird’s tactics. Several prominent feminists, such as Betty Friedan and Robin Morgan, who were both feminist activists in the US, derided Baird and his activism, referring to him as a chauvinist and suggesting that the Central Intelligence Agency potentially planted him within the feminist movement to delegitimize it. Baird did have some advocates within the feminism and abortion rights movements, including the former president of the New York State branch of the National Organization of Women, Marilyn Fitterman, who acknowledged his activism and referred to him as a national treasure.

After the decision, Baird opened one of the first clinics in the US that offered abortion counseling in New York City. His clinic had been subject to attacks, including a firebombing that Baird claimed came from anti-abortion activists in 1979. Baird took two more cases before the Supreme Court, Bellotti v. Baird (1976) and Bellotti v. Baird (1979). Bellotti v. Baird (1976) involved two courts, one state and one district, simultaneously considering a case regarding the constitutionality of a law allowing parents to veto an abortion for their minor child. In 1974, before the state court had made a decision, the district court decided that adolescents do not have to secure parental consent to obtain an abortion. The Supreme Court reviewed that decision in 1976 and found that the district court did not have the right to make that decision, as it was under the jurisdiction of the state's Massachusetts Supreme Judicial Court. The Supreme Court thus upheld the Massachusetts law that parental consent was required for a minor to obtain an abortion. Bellotti v. Baird (1979) involved the same parental abortion veto law, which the Supreme Court determined to be unconstitutional. Following Bellotti v. Baird (1979), no state laws could allow parents to have an absolute veto on the issue of their child having an abortion.

Following Eisenstadt, female contraceptive use increased. According to a 1982 study by the US Department of Health, prior to Eisenstadt, in 1965, forty-one percent of married women used contraceptives. A 2018 study by the Centers for Disease Control and Prevention found that over sixty-five percent of women between the ages of fifteen to forty-nine currently used contraception. Two of the most common forms of contraception include the oral contraceptive pill and long-acting reversible contraceptives, both of which are accessible due to the ruling in Eisenstadt.

Eisenstadt was part of a series of cases that led to the expansion of reproductive rights in the United States beginning with Griswold in 1965. The year after Eisenstadt, in 1973, the Supreme Court decided Roe v. Wade, finding that states cannot prohibit access to abortion within the first trimester of pregnancy. The Supreme Court affirmed the ruling in Roe in 1995 with Planned Parenthood v. Casey, which found that states cannot restrict abortion access before fetal viability. The decision and reasoning in Eisenstadt were cited by the majority in both Roe and Planned Parenthood v. Casey, with the latter decision directly quoting from the Eisenstadt decision.

In 2022, the Supreme Court began to reverse decisions on reproductive rights with Dobbs v. Jackson Women’s Health Organization, which determined that there is no constitutional right to abortion. In a concurring decision, Justice Clarence Thomas explicitly named cases related to the right to contraception as ripe for overturning by the court in the future. In 2023, a district court judge in Amarillo, Texas, banned mifepristone, a medication used to induce abortion, stating that the Food and Drug Administration improperly approving the medication over twenty years prior. With growing scrutiny on abortion and reproductive health, and judges at all levels indicating a willingness to review and potentially overturn cases involving access to contraceptives, Eisenstadt and the related cases may likewise be vulnerable to reversal.