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

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U.S. Supreme Court

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

Eisenstadt v. Baird

No. 70-17

Argued November 17-18, 1971

Decided March 22, 1972

405 U.S. 438


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 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.


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. 405 U. S. 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. 405 U. S. 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 405 U. S. 439

relations and its scope and penalty structure are inconsistent with that purpose. Pp. 405 U. S. 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. 405 U. S. 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. 405 U. S. 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. 405 U. S. 455. WHITE, J., filed an opinion concurring in the result, in which BLACKMUN, J., joined, post, p. 405 U. S. 460. BURGER, C.J., filed a dissenting opinion, post, p. 405 U. S. 465. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

Page 405 U. S. 440

Primary Holding

Unmarried couples have the right to use contraception, based on the Equal Protection Clause of the Fourteenth Amendment and the more nebulous constitutional right to privacy.


In a planned violation of a law against distributing contraceptives to unmarried people (Chapter 272, Section 21A of the Massachusetts penal code), a lecturer at Boston University gave a condom and contraceptive foam to an unmarried teenager who attended his lecture on birth control methods. The lecturer, William Baird, was convicted of conduct related to both the lecture and the distribution of the contraceptive materials. On appeal, the conviction related to the lecture was overturned, but the conviction related to the distribution was upheld.

Baird's petition for a federal writ of habeas corpus was denied at the district court level. The First Circuit vacated that decision under the belief that the law violated the fundamental rights of unmarried couples under the Fourteenth Amendment. A related issue that was raised on appeal to the Supreme Court was whether Baird met the procedural standing requirements. He was arguably not someone affected by the statute, since he was not unmarried and not an authorized distributor of contraceptives.

Procedural History

US District Court for the District of Massachusetts - 310 F. Supp. 951 (D. Mass. 1970)

Petition for a writ of habeas corpus denied.

US Court of Appeals for the First Circuit - 429 F.2d 1398 (1st Cir. 1970)

Vacated. A writ of habeas corpus was proper because the petitioner had been convicted of a law that was unconstitutional.

Issues & Holdings

Issue: Whether someone who is neither an authorized distributor or an unmarried person has standing to seek a writ of habeas corpus after being convicted under a law that prohibits distribution of contraceptives by parties other than authorized distributors and to parties other than married couples.
Holding: Yes.



  • William Joseph Brennan, Jr. (Author)
  • William Orville Douglas
  • Potter Stewart
  • Thurgood Marshall

The majority opinion resolved the standing issue and addressed the substantive matter on equal protection grounds without considering the due process argument. Brennan found that the law had no rational basis, since it could not be justified as furthering public health if contraception was fully available to married couples. This opinion simply extended the logic of Griswold v. Connecticut to all heterosexual intercourse, regardless of the marital status of the individuals involved.


  • William Orville Douglas (Author)

Douglas felt that the First Amendment protected both Baird's lecture and the expressive conduct of distributing the contraceptive materials.


  • Edward Douglass White (Author)
  • Harry Andrew Blackmun

This concurrence focused on the other prong of the law, which regulated distributors rather than recipients. White argued that there was no plausible health reason for this limitation to licensed professionals, and so the Court should not have needed to reach the issue of the distinction between married and unmarried couples to resolve the case.


  • Warren Earl Burger (Author)

Burger was reluctant to find that there was no public health interest protected by the law in the absence of factual materials covering the health risks of the foam. Whether or not this justification for the law existed, moreover, he thought that the state had an independent interest in ensuring that couples receive advice on contraceptives only from those who are credible sources of knowledge.


  • William Hubbs Rehnquist (Author)
  • Lewis Franklin Powell, Jr.

Case Commentary

This decision was based on the right to privacy and extended the logic of Griswold v. Connecticut, which granted contraception to married individuals. The trajectory of these cases likely can be extended to protect virtually any form of private sexual intercourse between consenting adults, although courts have been slow to take this step.

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