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Law 100: Persons and Family Relations


Thomas S. Eisenstadt, Sherrif of Suffolk County, Massachusetts, appellant

William R. Baird, appellee
Argued November 17 and 18, 1971. Decided March 22, 1972


William R. Baird was arrested and charged with a felony under Massachusetts General Laws Section
21A1 for:
(1) exhibiting contraceptive articles in the course of delivering a lecture on overpopulation and
contraception to a group of students at Boston University
(2) giving a young woman a package of Emko vaginal foam at the close of his address.
(NOTE: There was no evidence to ascertain whether the young woman to whom Baird gave
vaginal foam was married or unmarried.)

Massachusetts General Laws Section 21A makes it a crime to sell, lend, or give away any
contraceptive drug, medicine, instrument, or articles, except that physicians were permitted to
administer or prescribe contraceptive drugs or articles for married persons, and pharmacists were
permitted to fill prescriptions for contraceptive drugs for married persons.

How did the issue reach the Supreme Court? 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 sustained the conviction for giving away the foam. Baird subsequently
filed a petition for a federal writ of habeas corpus, which the District Court dismissed. 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 and dismiss the charge, reasoning that the Massachusetts
law infringed on fundamental human rights of unmarried couples as guaranteed by the due process
[NOTE: The US Supreme Court did not reach the due process issue in their decision, but only
decided the issue under the equal protection clause of the Fourteenth Amendment.]


1. Whether or not Baird has standing to assert the rights of unmarried persons denied access to

2. Whether or not the Massachusetts General Laws Section 21A violates the equal protection
clause under the Fourteenth Amendment2 in according different treatment to married and
unmarried persons


1. Yes, Baird has standing, because of the following reasons:

a. He was prosecuted for violating a state statute that makes it a crime to sell, lend or give
away any contraceptive or article on contraceptives

Section 21A provides punishment of imprisonment in state prison for not more than 5 years or in jail or house of
correction for not more than 2 ½ years or a fine of not less than $100 nor more than $1000.
See Appendix A for full text of Fourteenth Amendment with relevant clause highlighted

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Law 100: Persons and Family Relations

b. Baird’s relationship with those whose rights he seeks to assert (i.e. unmarried persons
seeking contraceptives) is that of an advocate of rights of persons to obtain
contraceptives and those who want to obtain contraceptives. That is, the very point of
his advocacy (for which he was prosecuted) was to challenge the state that limited
access to contraceptives since their ability to obtain them will be materially impaired
by the enforcement of the statute.
c. Unmarried persons denied access to contraceptives are not themselves subject to
prosecution. Thus, they are denied a forum in which they can assert their own rights. In
this case, the impact of the litigation on third-party interests is more important than the
nature of the relationship between Baird and those whose rights he seeks to assert.
d. If statue is not a health measure, Baird may not be prevented from attacking the state in
its alleged discriminatory application since he is not an authorized distributor.

2. Yes, the legislation violates the Equal Protection Clause under the 14th Amendment, on
the following grounds:
a. Purpose of state legislation – The Court held that the legislation cannot be upheld as
deterrent to fornication:
i. Does not prevent extramarital sexual relations -- the purpose of the legislation
cannot reasonably be assumed to promote marital fidelity nor deter extramarital
sexual relations, since the legislation still permits contraceptives to be made
available to married persons regardless of their reasons for using such
ii. Does not prevent premarital sexual relations – prevention of premarital sexual
relations cannot reasonably be assumed as the purpose of legislation, because it
would be unreasonable to assume that the state has prescribed pregnancy and
the birth of an unwanted child as punishment for fornication, and because the
statute does not regulate the distribution of contraceptives to prevent disease
iii. Dubious relation to criminal prohibition on fornication – a violation of the
statute is a felony punishable by 5 years in prison while fornication is only a
misdemeanor punishable by $30 fine or 3 months in jail, and the statute is
riddled with so many exceptions
iv. Not a health measure – Clearly not the objective of Section 21A since (a)
physicians are prevented from providing access to unmarried persons even for
health reasons, (b) unreasonable to assume that physician able to prescribe for
married persons does not have the skill to prescribe to unmarried persons, (c)
discriminatory against unmarried persons and overbroad against married
persons, (d) there are other state and federal laws that regulate dangerous
substances, (e) not all forms of contraceptive are potentially dangerous drugs
(e.g. condoms)
b. Classification is not reasonable – The equal protection clause provides that a statutory
classification must rest upon some ground of difference having a fair and substantial
relation to the object of the legislation, so that all persons similarly circumstanced shall
be treated alike. In this case, the Court held that since both unmarried and married
persons are similarly circumstanced (i.e. they are both looking for access to
contraceptives), classifying persons between married and unmarried gives differing
treatment to each group, thus violating the equal protection clause of the 14th
i. Statute cannot be sustained simply as a prohibition on contraception but rather
on distribution -- If the distribution of contraceptives to married persons cannot
constitutionally be prohibited (see Grisworld v Connecticut), a ban on

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Law 100: Persons and Family Relations

distribution to unmarried persons would be equally impermissible. If there is no

constitutional bar to prohibit distribution of contraceptives, a state may not
(under the equal protection clause) outlaw distribution to unmarried but not to
married persons.
ii. Right to Privacy – the right to privacy gives an individual, married or single, the
right to be free from unwarranted government intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child. This is a fundamental right.

Douglas, J. (concurring) would also base the decision on the First Amendment since passing a
contraceptive article to a member of audience could be regarded as merely a projection of the
appellee’s visual aid in his lecture and therefore permissible adjunct of free speech

White and Blackmun, JJ. (concurring) added that (1) the conviction should be overturned because
of the court’s inability to ascertain whether the appellee was in fact convicted for making a
constitutionally protected distribution of the foam to a married person (since the marital status of the
young woman is not known), and (2) there was no reason to reach the constitutional question whether
the state could restrict or forbit the distribution of contraceptives to unmarried persons

Burger, Ch J. (dissenting) stated that (1) the Massachusetts state validly required, as a health measure,
that all contraceptives be dispensed by a physician or pursuant to a physician’s prescription, (2) that
the marital status of the recipient of the contraceptive foam had no bearing on the present case, and (3)
that the appellee was properly convicted for dispensing medicinal material without a license.

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Law 100: Persons and Family Relations

Appendix A:

US Constitution Amendment XIV

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several states according to their respective numbers,
counting the whole number of persons in each state, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for President and Vice President of the United States,
Representatives in Congress, the executive and judicial officers of a state, or the members of the
legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of
age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or
other crime, the basis of representation therein shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male citizens twenty-one years of age in such

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President,
or hold any office, civil or military, under the United States, or under any state, who, having previously
taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any
state legislature, or as an executive or judicial officer of any state, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any state shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or
emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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