Eisenstadt v. Baird

William Baird, a professor at Boston University, was arrested and charged with distributing a contraceptive, specifically Emko Vaginal Foam, at the end of one of his lectures. Massachusetts law states that only licensed doctors can distribute contraceptives to married persons; only married persons may receive contraceptives. In 1972, the U.S. Supreme Court ruled 6-1 to strike down the Massachusetts law. Justice Brennan, joined by Justice Stewart and Justice Marshall, wrote the Opinion of the Court, while Justice White (joined by Justice Blackmun) and Justice Douglas each offered concurring opinions. Chief Justice Burger was the lone dissenter and Justices Rehnquist and Powell took no part in the decision.

In a stark contrast to Griswold v. Connecticut, which was just seven years earlier, the U.S. Supreme Court seems to shrink away from the issue of privacy. While the Griswold case was full of broad and bold language about privacy rights, Eisenstadt v. Baird barely touches on it. In a case that can clearly be seen as an issue about our fundamental rights to privacy, the Justices seem to actually try and avoid the subject. There is no talk of “zones of privacy” or “constitutional guarantees” (Douglas, J. Griswold v. Connecticut, 1965, Opinion of the Court). Instead the Justices look to technicalities and lack of evidence to make their decision.

In the Opinion of the Court, Justice Brennan seems to intentionally not address the issue of privacy. Instead, he takes the low road and uses the Fourteenth Amendment and it’s “equal protection” clause. He argues that single and married persons deserve equal protection under the law. He doesn’t use phrases like “fundamental personal rights” or “personal liberties” (Goldberg, J. Griswold v. Connecticut, 1965, concurring). Instead, his argument is simple and pragmatic: “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” (Brennan, J. Eisenstadt v. Baird, 1972, Opinion of the Court). Brennan’s argument is a seemingly simple and easy way to get out of having to deal with the burden of the penumbra of privacy issues.

In the other opinions the justices also avoid the issue of privacy rights. Even in Chief Justice Burger’s dissenting opinion he makes it perfectly clear that he is not going to deal with privacy rights. He just flat out says: “To my mind, the validity of this restriction on dispensing medicinal substances is the only issue before the Court” (Burger, C.J. Eisenstadt v. Baird, 1972, dissenting). Justice Douglas, who offers a concurring opinion, goes into a tangent about Baird’s First Amendment rights and the difference between “speech” and “conduct.” He also seems to try to dismiss Baird’s act of handing out contraceptives as just the utilization of a visual aid.

Justice White perhaps comes the closest to taking on the issue of privacy rights, but he takes a different angle. He approaches Eisenstadt v. Baird as a case dealing with public health vs. constitutional right to use contraceptives. Even here, where Justice White might have been tempted to use bold language, he manages to keep his statements focused and specific, leaving hardly any room for interpretation. He simply states that while the case may be different if the contraceptive required a prescription or was proven harmful, the Massachusetts law is not valid, given that Emko Vaginal Foam was not proven dangerous. For just a brief second, Justice White uses language that is remotely similar to that of Griswold when he says that: “to sanction a medical restriction upon distribution of a contraceptive not proved hazardous to health would impair the exercise of [a] constitutional right” (White, J. Eisenstadt v. Baird, 1972, concurring). White does not continue this train of thought, however, and simply moves on with another argument that does not expand into grand notions of public and private.