I have discussed this lead-up to Roe v. Wade before though it continues to be interesting. Found this article by one of the early pro-choice advocates and a couple comments come to mind. One can put the article's personal sentiments on one side. An interesting discussion involved a 1930s case, Commonwealth v. Gardner, that challenged a law denying even physicians to distribute contraceptives. The case wound up in the U.S. Supreme Court and it declared there was no substantial federal question, merely citing some cases regulating vaccinations, medicinal use of alcohol and the like. This might be a result of a poorly framed due process argument (cannot really tell) and/or the fact in the 1930s, such an individual liberty argument was premature. The case appears simply to be ignored (though it was referenced in the oral argument) by all opinions in Griswold.
Also, it at one point singles out Justice Douglas as supporting the 1A argument, but the dissent in the state case did cover that comprehensively (the dissents were referenced in the oral argument). As I noted earlier, the case was a mixed privacy and free speech matter though the federal case below rested on substantial due process. It rejected the free speech argument, deciding that the government could legitimately regulate the distribution of contraceptives. The state court split the baby, recognizing a right to display the contraceptives, but not to distribute them as part of a demonstration. The dissent (referenced in the Supreme Court oral argument) thought both aspects protected by the 1A. Free speech also arose in earlier contraceptive cases with Justice Douglas covering it in part of his Poe v. Ullman dissent while Justice Black briefly noted in his later dissent that distribution of contraceptives is not protected speech (it was argued overbreadth warranted tossing the whole law but he didn't buy it; a limited case involving mere patient/physician discussion might have been treated differently by him).
Justice Douglas joined the majority opinion but also saw the case as a basic free speech matter, using a curious example: "A person giving a lecture on coyote-getters would certainly improve his teaching technique if he passed one out to the audience; and he would be protected in doing so, unless, of course, the device was loaded and ready to explode, killing or injuring people." An over the counter can of contraceptive foam or a condom is not quite akin to such a device and it's a dubious reference if perhaps understandable giving the author's environmental interests.
The article, taking a potshot at Douglas' last decade of work, was rather impressed with the argument. I too thought it worthwhile though it might be seen as a tad open-ended. The article notes that Baird had a pre-med background and had been clinical director of Emko (the foam). But, either way, it was clearly a expressive demonstration and handing out one can of an over the counter product (Justice White separately drew a line there, suggesting contraceptives by prescription might only be provided by a doctor) reasonably enough would be seen as protected there. It was a way to dispose of the case on limited grounds though it might have open-ended implications.
The Supreme Court made it an equal protection case but in a way that shows the two-step process often involved. Some, for example, argue that the same sex marriage cases should have been decided on equal protection grounds. SCOTUS instead made it a right to marry case. This case was cited, e.g., to address the wider right at issue: "these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." The case here has a discussion on privacy and how ultimately it is an individual right, the earlier contraceptives case involving a married couple. As noted in the article, it is well cited.
The state had an older law against contraceptives but Griswold required an update. But, Massachusetts did not widely allow distribution. Married couples could get them by prescription (this applies even to over the counter materials), unmarried people could not get them at all and either can get them from anyone to prevent disease. The majority opinion here held this was an unreasonable discrimination against unmarried people. Two justices somewhat more broadly held that it was illegitimate burden on the right to contraceptives, the marital status of the person involved in fact not known given the facts in the record.
Either way, it didn't make sense as a health measure and it is apparent it was not.* The state was just trying to retain its old morals law as much as it could. And, this is where the majority opinion brought up that the right to privacy (here involving contraceptives) applied to single people too. If we determine that the right to marry applies to same sex couples, you have to respond to those who say by definition marriage does not apply to them. And, the opinion (as an earlier opinion did) discusses how equal protection and due process often overlap in this fashion. The definition issue arose here as well. A case can be made that marriage specifically involves sexual intercourse, but even if the state could ban sex before marriage, there still would be the choice not to get pregnant. Anyway, the facts of the law was shown to be excessive if it was a means to stop fornication. Plus it was arbitrary particularly since the items could be obtained to prevent disease. The Supreme Court ultimately in Lawrence v. Texas directly protected sexual intercourse among the unmarried.
As with Douglas' free speech article, this did have an open-ended character that very well might concern a liberal Republican type like Stewart. Likewise, he was among the five (White in dissent) that did not accept a constitutional argument that school funding by local property taxes. The most direct connection here would be the Hyde Amendment cases, six justices (five when therapeutic abortions were involved) ultimately allowed selectively funding health benefits when abortion was not involved. Wealth discrimination was addressed in a limited fashion such as for poll taxes or in various civil and criminal procedural matters.
These days the Supreme Court is more concerned with denying people the right to obtain birth control, or at least making it harder to do so even when it is part of a comprehensive scheme of health insurance tied to public employment. A selective respect of (religious) liberty there. Happy Labor Day!
---
* The dissent was no fan of Griswold, but ultimately thought the state could obviously regulate medicine in this fashion. But, it was done in a suspicious way. The opinion discusses how it looks like the state was trying to retain as much of the pre-Griswold rule as possible, including by means of an overly restrictive regulation even as applied to married couples. This aspect of the case suggests it is not merely a matter of equal protection and ultimately the opinion did have a broader reach. Such a restrictive policy involving distribution of such products as foam and condoms, even if evenly applied, would be deemed illegitimate.
** "And the clear effect of these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, those without either adequate knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control."
Also, it at one point singles out Justice Douglas as supporting the 1A argument, but the dissent in the state case did cover that comprehensively (the dissents were referenced in the oral argument). As I noted earlier, the case was a mixed privacy and free speech matter though the federal case below rested on substantial due process. It rejected the free speech argument, deciding that the government could legitimately regulate the distribution of contraceptives. The state court split the baby, recognizing a right to display the contraceptives, but not to distribute them as part of a demonstration. The dissent (referenced in the Supreme Court oral argument) thought both aspects protected by the 1A. Free speech also arose in earlier contraceptive cases with Justice Douglas covering it in part of his Poe v. Ullman dissent while Justice Black briefly noted in his later dissent that distribution of contraceptives is not protected speech (it was argued overbreadth warranted tossing the whole law but he didn't buy it; a limited case involving mere patient/physician discussion might have been treated differently by him).
Justice Douglas joined the majority opinion but also saw the case as a basic free speech matter, using a curious example: "A person giving a lecture on coyote-getters would certainly improve his teaching technique if he passed one out to the audience; and he would be protected in doing so, unless, of course, the device was loaded and ready to explode, killing or injuring people." An over the counter can of contraceptive foam or a condom is not quite akin to such a device and it's a dubious reference if perhaps understandable giving the author's environmental interests.
The article, taking a potshot at Douglas' last decade of work, was rather impressed with the argument. I too thought it worthwhile though it might be seen as a tad open-ended. The article notes that Baird had a pre-med background and had been clinical director of Emko (the foam). But, either way, it was clearly a expressive demonstration and handing out one can of an over the counter product (Justice White separately drew a line there, suggesting contraceptives by prescription might only be provided by a doctor) reasonably enough would be seen as protected there. It was a way to dispose of the case on limited grounds though it might have open-ended implications.
The Supreme Court made it an equal protection case but in a way that shows the two-step process often involved. Some, for example, argue that the same sex marriage cases should have been decided on equal protection grounds. SCOTUS instead made it a right to marry case. This case was cited, e.g., to address the wider right at issue: "these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." The case here has a discussion on privacy and how ultimately it is an individual right, the earlier contraceptives case involving a married couple. As noted in the article, it is well cited.
The state had an older law against contraceptives but Griswold required an update. But, Massachusetts did not widely allow distribution. Married couples could get them by prescription (this applies even to over the counter materials), unmarried people could not get them at all and either can get them from anyone to prevent disease. The majority opinion here held this was an unreasonable discrimination against unmarried people. Two justices somewhat more broadly held that it was illegitimate burden on the right to contraceptives, the marital status of the person involved in fact not known given the facts in the record.
Either way, it didn't make sense as a health measure and it is apparent it was not.* The state was just trying to retain its old morals law as much as it could. And, this is where the majority opinion brought up that the right to privacy (here involving contraceptives) applied to single people too. If we determine that the right to marry applies to same sex couples, you have to respond to those who say by definition marriage does not apply to them. And, the opinion (as an earlier opinion did) discusses how equal protection and due process often overlap in this fashion. The definition issue arose here as well. A case can be made that marriage specifically involves sexual intercourse, but even if the state could ban sex before marriage, there still would be the choice not to get pregnant. Anyway, the facts of the law was shown to be excessive if it was a means to stop fornication. Plus it was arbitrary particularly since the items could be obtained to prevent disease. The Supreme Court ultimately in Lawrence v. Texas directly protected sexual intercourse among the unmarried.
This analysis points to an additional invidious discrimination that the Massachusetts statute, viewed as a health measure, effects, and that is the discrimination against the poor. We have already taken judicial notice that Emko vaginal foam is not a prescriptive drug .... By authorizing only doctors and druggists on prescription to dispense contraceptives, Massachusetts has, therefore, unjustifiably made it impossible for those who cannot afford the physician's fee to obtain contraceptives, regardless of their health needs. We conclude, accordingly, that if §§ 21 and 21A are regarded as health measures, they deny the unmarried and the poor the equal protection of the laws.The last thing the article flags is that an examination of Supreme Court documents -- which bring out a lot of interesting material involved in crafting opinions -- shows that Justice Stewart wanted a reference to wealth discrimination removed from the draft opinion. This reflected a broad theme that the possible expansive constitutional protection in this area never reached its true potential. Note how the law even requires married people to get a prescription for contraceptives, even something that for other purposes (a condom used to prevent disease) could be done over the counter. This unnecessary layer of expense is discriminatory. The theme popped up (see White's opinion**) earlier when public contraceptive clinics were blocked while realistically private physicians could still distribute them.
As with Douglas' free speech article, this did have an open-ended character that very well might concern a liberal Republican type like Stewart. Likewise, he was among the five (White in dissent) that did not accept a constitutional argument that school funding by local property taxes. The most direct connection here would be the Hyde Amendment cases, six justices (five when therapeutic abortions were involved) ultimately allowed selectively funding health benefits when abortion was not involved. Wealth discrimination was addressed in a limited fashion such as for poll taxes or in various civil and criminal procedural matters.
These days the Supreme Court is more concerned with denying people the right to obtain birth control, or at least making it harder to do so even when it is part of a comprehensive scheme of health insurance tied to public employment. A selective respect of (religious) liberty there. Happy Labor Day!
---
* The dissent was no fan of Griswold, but ultimately thought the state could obviously regulate medicine in this fashion. But, it was done in a suspicious way. The opinion discusses how it looks like the state was trying to retain as much of the pre-Griswold rule as possible, including by means of an overly restrictive regulation even as applied to married couples. This aspect of the case suggests it is not merely a matter of equal protection and ultimately the opinion did have a broader reach. Such a restrictive policy involving distribution of such products as foam and condoms, even if evenly applied, would be deemed illegitimate.
** "And the clear effect of these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, those without either adequate knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control."
No comments:
Post a Comment
Thanks for your .02!