As with Carey, I have in the past spoken about Eisenstadt v Baird , but want to talk a bit more about it here.
I will try not to repeat old ground too much, especially since I already commented about a predecessor in the last contraceptives entry. For instance, the 1917 opinion (see Eisenstadt itself) cited in the Supreme Court case) that stated in respect to the original law that the "plain purpose is to protect purity, to preserve chastity, to encourage continence and self-restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women."
As noted last time, unlike New York, Massachusetts did not have an exception for physicians, which caused problems after Griswold. The core of the opinion was that married couples have the right to use contraceptives, which at least suggested some right to obtain them. To skip ahead, Carey broadly protected use and distribution, even to unmarried minors, even by non-physicians (at least in respect to non-prescription contraceptives). The opinion (and the nose counting, including Justice Powell's concurrence, suggested a majority agreed) differentiated here from abortion, which very well might cause problems (such as if a medical assistant or nurse distributed an abortion pill) up to today.
Massachusetts, however, applied things in a more narrow way:
There is a wrinkle here though that curiously was not covered much at all (though the Supreme Court opinion referenced the matter) -- Massachusetts might have not provided any exception even for physicians regarding conception, but a follow-up case (1940) did note that prevention of disease is another matter. Thus, even if pregnancy would cause special dangers to a pregnant women, sale/distribution was blocked. But, the very same item could be provided to prevent the spread of disease, specifically venereal disease. The case involved a pharmacist being charged with sale of condoms so marked. No similar case in Connecticut was apparently decided and reference was made in the oral arguments that there were a few prosecutions involving the sale of condoms. But, there still seemed to be a general understanding that such practice was acceptable.
The physician only provision was upheld by the state supreme court by split decision in 1970 as a valid health measure. The discrimination against the unmarried was upheld by a narrow reading of Griswold, which even then was iffy given Stanley v. Georgia emphasized privacy exists for individuals too. And, CJ Burger in his solitary dissent (Rehnquist not there to join him) on some level seems to make a good case for this. Maybe, it was somewhat overbroad (condoms?) but as noted in the oral argument, even the foam at issue could cause rashes or the like.
There was a mostly forgotten First Amendment argument that only Justice Douglas addressed at the Supreme Court because he gave a sample after a lecture. The state judges took it more seriously, splitting the baby (the dissent wishing to go all the way) by protecting his display but not distribution (Douglas argues technically he was arrested before it was taken away; Burger notes Baird admitted he had the intent to have the woman take it away). The lower federal court upheld the distribution charge as non-protected action. The state court avoided deciding the Eighth Amendment argument since he was not sentenced at that time; the three months he later received was absurd.
The Supreme Court decision is mostly remembered as holding that there is an individual right to privacy here, so denying the right to birth control to the unmarried was unreasonable. It rested on equal protection grounds so did not formally say it was a fundamental right as such. But, it did say that it was an illegitimate public purpose to deny it to the unmarried on morals grounds simply because it is a bad choice. It was also deemed a bad fit to fight adultery (e.g., the punishment was clearly extreme vis-a-vis the punishment for adultery, "plus contraceptives may be made available to married persons without regard to whether they are living with their spouses or the uses to which the contraceptives are to be put. Plainly, the legislation has no deterrent effect on extramarital sexual relations").
But, what about that physician requirement? Baird had some medical training and worked for a contraceptives company for a time, but he was no physician. Plus, it wasn't on the record that the woman he gave it to was unmarried. During the oral argument, his attorney argued in part that the law clashed with federal policy that promoted contraceptive use for the poor, including at clinics where a physician was not available. The discriminatory effects on married women who could not afford physicians was also cited and in fact per an article I referenced before was actually in an original draft of the final opinion. But, Justice Stewart pressed to remove it, not wanting to raise more wealth discrimination claims.
The dissent in the state court and the lower federal court that did strike down his conviction basically argued the physician requirement was irrational and basically put there to fix the old statute to the minimal degree necessary to fit with Griswold. The law as a whole was really still a morals law. If physicians were needed for health reasons, why didn't the unmarried need to use them when obtaining them for health reasons? Plus, there were already laws in place regulating medical drugs and such; what specific about birth control needed this special rule? And, it was overbroad for some things, such as condoms.
In a somewhat forgotten portion of the Supreme Court opinion, a bit of this was also tossed in, though as Burger notes, not too much time is spent on it. But, as I said, yes, if it was just some health statute, it was done in a suspicious way taking it as a whole. Justice White (and Blackmun) simply said that there was a constitutional right of access and the law illegitimately burdened it as to non-prescription contraceptives. For something like a birth control pill, a physician requirement would likely be reasonable. The woman's marital status was unclear so that was besides the point. No need to reach out to deal with the issue of the right to privacy for the unmarried though White accepted it as precedent in his Carey concurrence.
I think you can craft some plausible reason for a physician requirement, if evenly applied, since they could counsel and advise patients on use. Griswold specifically protected use for married couples via a clinic that involved a physician. This might even be true as to condoms that were intended to be used for birth control reasons. The lower federal court ridiculed the physician requirement here because condoms are not deemed to be risky items but birth control clinics did not just prescribe things or insert (such as IUDs) as necessary. They also counseled on birth control. It might be somewhat unclear why this as compared to numerous other health related behaviors requires physicians even when non-prescription items were used. Legislative discretion and all that can be offered here.
And, there was some idea -- especially right after Griswold -- that there was not even a fundamental right for the unmarried to use contraceptives at all. Thus, as to them, the rules was open to more flexibility. And, the only item that seemed to be at issue in that third category are condoms which for the purpose of prevention of the spread of disease arguably needed less physician involvement. Plus, given the spread of disease was more directly a matter of preventing harm to third parties, a lesser barrier to use here would make some degree of sense. OTOH, though maybe it was covered in briefing, the opinions/oral argument did not so parse things.
This sort of heavy lifting was avoided, probably for good reason as a whole. Mixing the constitutional rights involved and the whole history involved, as seen in Carey, basically the decision to use birth control was being singled out and it was illegitimate to do so. A more carefully crafted law without such baggage might be imagined but was not present. And soon enough, a broader individual liberty interest was upheld to make the whole thing somewhat besides the point.
Until next time -- you know we will return to these cases again.
---
* To remind: “Disease,” by Webster’s International Dictionary, is defined to be “an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness; sickness; disorder.”
I will try not to repeat old ground too much, especially since I already commented about a predecessor in the last contraceptives entry. For instance, the 1917 opinion (see Eisenstadt itself) cited in the Supreme Court case) that stated in respect to the original law that the "plain purpose is to protect purity, to preserve chastity, to encourage continence and self-restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women."
As noted last time, unlike New York, Massachusetts did not have an exception for physicians, which caused problems after Griswold. The core of the opinion was that married couples have the right to use contraceptives, which at least suggested some right to obtain them. To skip ahead, Carey broadly protected use and distribution, even to unmarried minors, even by non-physicians (at least in respect to non-prescription contraceptives). The opinion (and the nose counting, including Justice Powell's concurrence, suggested a majority agreed) differentiated here from abortion, which very well might cause problems (such as if a medical assistant or nurse distributed an abortion pill) up to today.
Massachusetts, however, applied things in a more narrow way:
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.So, anyone can option contraceptives from anyone to deal with the spread of disease [the old law had no exception at all], single persons cannot obtain them from anyone to prevent pregnancy and married persons can but only from physicians. Recall again that "disease" was in New York given a broad meaning* that make the two categories basically overlap -- pregnancy is a "health" issue so preventing it is as well. Health/disease really have no basic difference here though talk of the "spread" of disease suggests the usage of condoms to prevent venereal disease.
There is a wrinkle here though that curiously was not covered much at all (though the Supreme Court opinion referenced the matter) -- Massachusetts might have not provided any exception even for physicians regarding conception, but a follow-up case (1940) did note that prevention of disease is another matter. Thus, even if pregnancy would cause special dangers to a pregnant women, sale/distribution was blocked. But, the very same item could be provided to prevent the spread of disease, specifically venereal disease. The case involved a pharmacist being charged with sale of condoms so marked. No similar case in Connecticut was apparently decided and reference was made in the oral arguments that there were a few prosecutions involving the sale of condoms. But, there still seemed to be a general understanding that such practice was acceptable.
The physician only provision was upheld by the state supreme court by split decision in 1970 as a valid health measure. The discrimination against the unmarried was upheld by a narrow reading of Griswold, which even then was iffy given Stanley v. Georgia emphasized privacy exists for individuals too. And, CJ Burger in his solitary dissent (Rehnquist not there to join him) on some level seems to make a good case for this. Maybe, it was somewhat overbroad (condoms?) but as noted in the oral argument, even the foam at issue could cause rashes or the like.
There was a mostly forgotten First Amendment argument that only Justice Douglas addressed at the Supreme Court because he gave a sample after a lecture. The state judges took it more seriously, splitting the baby (the dissent wishing to go all the way) by protecting his display but not distribution (Douglas argues technically he was arrested before it was taken away; Burger notes Baird admitted he had the intent to have the woman take it away). The lower federal court upheld the distribution charge as non-protected action. The state court avoided deciding the Eighth Amendment argument since he was not sentenced at that time; the three months he later received was absurd.
The Supreme Court decision is mostly remembered as holding that there is an individual right to privacy here, so denying the right to birth control to the unmarried was unreasonable. It rested on equal protection grounds so did not formally say it was a fundamental right as such. But, it did say that it was an illegitimate public purpose to deny it to the unmarried on morals grounds simply because it is a bad choice. It was also deemed a bad fit to fight adultery (e.g., the punishment was clearly extreme vis-a-vis the punishment for adultery, "plus contraceptives may be made available to married persons without regard to whether they are living with their spouses or the uses to which the contraceptives are to be put. Plainly, the legislation has no deterrent effect on extramarital sexual relations").
But, what about that physician requirement? Baird had some medical training and worked for a contraceptives company for a time, but he was no physician. Plus, it wasn't on the record that the woman he gave it to was unmarried. During the oral argument, his attorney argued in part that the law clashed with federal policy that promoted contraceptive use for the poor, including at clinics where a physician was not available. The discriminatory effects on married women who could not afford physicians was also cited and in fact per an article I referenced before was actually in an original draft of the final opinion. But, Justice Stewart pressed to remove it, not wanting to raise more wealth discrimination claims.
The dissent in the state court and the lower federal court that did strike down his conviction basically argued the physician requirement was irrational and basically put there to fix the old statute to the minimal degree necessary to fit with Griswold. The law as a whole was really still a morals law. If physicians were needed for health reasons, why didn't the unmarried need to use them when obtaining them for health reasons? Plus, there were already laws in place regulating medical drugs and such; what specific about birth control needed this special rule? And, it was overbroad for some things, such as condoms.
In a somewhat forgotten portion of the Supreme Court opinion, a bit of this was also tossed in, though as Burger notes, not too much time is spent on it. But, as I said, yes, if it was just some health statute, it was done in a suspicious way taking it as a whole. Justice White (and Blackmun) simply said that there was a constitutional right of access and the law illegitimately burdened it as to non-prescription contraceptives. For something like a birth control pill, a physician requirement would likely be reasonable. The woman's marital status was unclear so that was besides the point. No need to reach out to deal with the issue of the right to privacy for the unmarried though White accepted it as precedent in his Carey concurrence.
I think you can craft some plausible reason for a physician requirement, if evenly applied, since they could counsel and advise patients on use. Griswold specifically protected use for married couples via a clinic that involved a physician. This might even be true as to condoms that were intended to be used for birth control reasons. The lower federal court ridiculed the physician requirement here because condoms are not deemed to be risky items but birth control clinics did not just prescribe things or insert (such as IUDs) as necessary. They also counseled on birth control. It might be somewhat unclear why this as compared to numerous other health related behaviors requires physicians even when non-prescription items were used. Legislative discretion and all that can be offered here.
And, there was some idea -- especially right after Griswold -- that there was not even a fundamental right for the unmarried to use contraceptives at all. Thus, as to them, the rules was open to more flexibility. And, the only item that seemed to be at issue in that third category are condoms which for the purpose of prevention of the spread of disease arguably needed less physician involvement. Plus, given the spread of disease was more directly a matter of preventing harm to third parties, a lesser barrier to use here would make some degree of sense. OTOH, though maybe it was covered in briefing, the opinions/oral argument did not so parse things.
This sort of heavy lifting was avoided, probably for good reason as a whole. Mixing the constitutional rights involved and the whole history involved, as seen in Carey, basically the decision to use birth control was being singled out and it was illegitimate to do so. A more carefully crafted law without such baggage might be imagined but was not present. And soon enough, a broader individual liberty interest was upheld to make the whole thing somewhat besides the point.
Until next time -- you know we will return to these cases again.
---
* To remind: “Disease,” by Webster’s International Dictionary, is defined to be “an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness; sickness; disorder.”
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