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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, December 22, 2015

Eisenstadt v. Baird

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.
A word on this case that played a minor role in the process of deciding Roe v. Wade. The case involved a person giving a lecture that involved exhibiting and handing out contraceptive foam by a non-physician to an unmarried woman. The exhibiting conviction was struck down below on First Amendment grounds and Justice Douglas here would have also used that approach to deal with handing it out in the promotion of giving a lecture.  This would in part turn on the safe nature of the item, which (along with no evidence being submitted an unmarried person was actually involved here) was the approach of Justice White (with Blackmun; White to remind concurred in Griswold, which was relied upon). 

To see just what was involved this summary is useful:
The statutory scheme distinguishes among three distinct classes of distributees -- first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent not pregnancy, but the spread of disease.
The portion about married people was a result of updating the laws in the face of Griswold v. Connecticut, which involved usage by by married couples.  The opinion leaves open a requirement that married couples need to get a prescription, which could have damned the person here in some fashion.  So, a state can require a prescription for an "abortion pill" as much as a "kidney stone pill."  On this point, the concurring opinion is somewhat more broad since it sets forth a limit though did note that the state didn't even offer evidence on the point.

This opinion turned on the second factor -- it was an equal protection ruling that the classification was irrational, only more so on the length of the punishment (up to five years but Baird actually received three months, rather ridiculous given his "crime").  This was flagged last night by the dissenting guest as well as others. But, we see again the way equal protection and liberty work together -- there was a special concern here because fundamental rights were not being applied equally. So, both matters are quite relevant though the breadth of protection of unmarried individuals here would be more fully secured only in time (particularly Lawrence v. Texas in 2003). The length of the criminal sentence as compared to things like fornication was used to argue this was not a "health" measure as such but one to burden the rights of individuals to privacy choose to use contraceptives. And, the exception for spreading disease and broad one for marriage [even if the person used it to aid and abet affairs, which arguably would not violate the letter of Griswold]  shows the statute was not just concerned with extramarital sex.

The opinion was important to show how the right to privacy, particularly in respect to birth control and related matters, was not just a "marital" right but broader in scope.  There was some intent, bound to be a lost cause given the true reach of Griswold  (at the very least, consider the right to not have a child to avoid starting a family, including the then often assumed need to be married to do so), to limit its reach. The right to privacy, however, arose from a range of cases, including those involving individuals being protected from unreasonable searches and seizures -- see, e.g., the language in Mapp v. Ohio.

It was noted by the dissenting voice that the "bear and beget a child" was crafted with Roe v. Wade in mind, as if this was a major reveal.  Others have pointed out the approach here, including The Brethren book.  It is true that Justice Brennan knew what he was doing there, but such "Easter eggs" that are crafted with later opinions in mind is not that novel.  Somewhat less so then as now, the Supreme Court has the power to take only a limited number of cases (they can take more, they choose not to do so) and are often concerned with dealing with broad questions. The case here could have been decided narrowly in another fashion but did touch upon wider issues.  And, the choice to "bear" or "beget" is at the core of the contraceptive decision.

The opinion turned out not to be that important in the immediate case while being more so as part of a series of cases showing the true breadth of the rights at issue. The opinion noted that "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."  A significant point, especially for the other guest on the episode last night given her concerns in her writings about the right not to be married.  The possible reach of this statement is therefore broad and was not truly applied by the justices in question; e.g., they did not ultimately protect unmarried sexual relationships from all punishments.  The opinion however had a narrower reach as seen by the discussion on how this specific crime was different from the minor penalty for fornication:
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.
On this point, single or married, there was a broad liberty including to use contraceptives and soon have an abortion. And, in time, the difference between married (and the range of marriages allowed overall) and unmarried would decrease further. 

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