Eisenstadt v. Baird

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Eisenstadt v. Baird
Seal of the United States Supreme Court.svg
Argued November 17–18, 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. LEXIS 145
Prior history Petition dismissed, 310 F. Supp. 951 (D. Mass. 1970); vacated, 429 F.2d 1398 (1st Cir. 1970)
Subsequent history None
A Massachusetts law criminalizing the use of contraceptives by unmarried couples violated the right to equal protection. Judgment of the Court of Appeals for the First Circuit affirmed.
Court membership
Case opinions
Majority Brennan, joined by Douglas, Stewart, Marshall
Concurrence Douglas
Concurrence White (judgment only), 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 Court case that established the right of unmarried people to possess contraception on the same basis as married couples and, by implication, the right of unmarried couples to engage in potentially nonprocreative sexual intercourse (though not the right of unmarried people to engage in any type of sexual intercourse).

The Court struck down a Massachusetts law prohibiting the distribution of contraceptives to unmarried people, ruling that it violated the Equal Protection Clause of the Constitution.


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 an unmarried 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 persons.

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 6–1 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 enforce its law against married couples and could not under Griswold v. Connecticut, 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, wrote that the right of privacy recognized in Griswold v. Connecticut extended to procreative decisions made by unmarried couples, as well as married couples. In doing so, he extended the right announced in Griswold to any procreative sexual intercourse: "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."

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.


Brennan's ruling recognizing rights of single people to procreate vel non (or not) on the same basis as married couples was not immediately taken to its logical conclusion: all sex between consenting adults is constitutionally protected. 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. Texas overruled 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]

See also[edit]


  1. ^ Eisenstadt v. Baird Summary
  2. ^ Personal account of Plaintiff Bill Baird at prochoiceleague.org
  3. ^ The Short History of Our Right to Contraceptives: Eisenstadt v. Baird 40 Years Later
  4. ^ Eisenstadt, Sheriff v. Baird
  5. ^ a b c d Lucas, Roy (Fall 2003). "New Historical Insights on the Curious Case of Baird v. Eisenstadt". Roger Williams University Law Review IX (1): 9. 

External links[edit]