Eisenstadt v. Baird

PETITIONER:Eisenstadt
RESPONDENT:Baird
LOCATION:Leon County Courthouse

DOCKET NO.: 70-17
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 405 US 438 (1972)
ARGUED: Nov 17, 1971 / Nov 18, 1971
DECIDED: Mar 22, 1972

ADVOCATES:
Joseph R. Nolan – Argued the cause for appellant
Joseph D. Tydings – Argued the cause for appellee

Facts of the case

William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives.

Question

Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state instrusion by the Fourteenth Amendment?

Warren E. Burger:

We will hear arguments in number 17, Eisenstadt against Baird.

Mr. Nolan?

Joseph R. Nolan:

Mr. Chief Justice and may it please the Court.

The case comes to this Court on an appeal from the First Circuit the Court of Appeals.

This Court noted probable jurisdiction on March 1st, 1971.

The case started factually on April 6th of 1967, when the appellee Mr. Baird, addressed group of people, mostly students at Boston University, pursuant to an invitation.

Approximately 2,000 people were in attendance.

At that time, Mr. Baird used to give a demonstration boards in his lecture on “Contraception.”

These demonstration boards had various contraceptive devices and alongside of the lectern, there was a cotton box filled with various other contraceptive devices.

After the lecture, he invited the people to come to the lectern, and in grab bag fashion, take what they wish from this cotton.

He then, I repeat it was after the lecture, he then handed a can of Emko, an admittedly contraceptive device to a young lady.

Now, I do want to bring to the Court’s attention, an inaccuracy in the Appellant’s brief, in the reference made to this young lady as being unmarried.

The record does not indicate nor did the Commonwealth at this time introduce evidence tending to show that she was unmarried.

Warren E. Burger:

What page is that?

It first appear on you —

Joseph R. Nolan:

It is not significant however to the case.

Warren E. Burger:

Page four.

Joseph R. Nolan:

Page four on the statement of the case, Mr. Chief Justice.

Warren E. Burger:

Right.

Joseph R. Nolan:

It is not however, significant to the case, but I do want to point out the inaccuracy and the correction made by Mr. Balliro in his brief, the original brief, is well taken.

Repeatedly doing the lecture, the appellee, Mr. Baird, invited the police to arrest him.

He said, “Why do not you arrest me officers, I am violating your Massachusetts Law?”

Finally, when he handed this can of Emko to this particular young lady, the police complied with his wishes.

Now, the appellee was charged in two indictments returned by the Suffolk County Grand Jury, for the violation of Massachusetts General Law, Chapter 272, Section 21 which among other things prohibits the giving away and the exhibition of, to use the words of the statute, articles intended for the prevention of conception.

After the Trial in Suffolk Superior Court, jury waived he was found guilty and the Trial Judge reported the case to the Supreme Judicial Court.

One indictment charged, the defendant with exhibiting contraceptive devices in violation of the statute and the other charged him with the giving away.

Now, there are other words in there which are not important to us such as selling, lending and so forth.

Two words that are important, are exhibiting and giving away.

The Supreme Judicial Court reversed the conviction of that under the indictment charging him with exhibiting because in its opinion, it clearly violated his First Amendment rights, particularly the freedom of speech right.

However, by divided court, he had sustained the conviction under the indictment charging the giving away of the can of Emko.

Harry A. Blackmun:

Would there have been any difference in the case Mr. Nolan, if Mr. Baird had been a licensed physician?

Joseph R. Nolan:

Yes because I was going to call the Court’s attention in a moment that both statutes on pages two and three should be read together.

Chapter 272, Section 20 which is the Prohibition Statute and Chapter 272.

Harry A. Blackmun:

Maybe I did not read this very carefully.

21 (a) says a registered physician may administer to or prescribe for any married person drugs or articles.

Joseph R. Nolan:

Yes.

Harry A. Blackmun:

If Mr. Baird were a licensed physician, he was not at the time —

Joseph R. Nolan:

He was not a physician.

Harry A. Blackmun:

Well, if he were, suppose Mr. Baird were a physician —

Joseph R. Nolan:

Yeah.

Harry A. Blackmun:

— and was doing exactly as he did here.

Would he still be prosecuted under the statute?

Joseph R. Nolan:

If this girl, and it would be at this point only that it would be significant as to whether she was married, he would not be prosecuted, certainly if she were a married woman.

Harry A. Blackmun:

My question goes little more deeply.

He may administer to or prescribe for, you feel he was administering to her and prescribing for her in his professional capacity, even though he was giving a lecture to a group of 2,000?

Joseph R. Nolan:

Yes, because well, many helped themselves.

In this particular instance, he gave this girl the Emko.

I do not suppose it would be silly of me to say that he was administering to, in the way a doctor would in handing it to her.

Well, it certainly is not that.

Harry A. Blackmun:

It is a different situation than the normally assumed –?

Joseph R. Nolan:

The doctor-patient relationship, yes.

The Trial Court then sentenced the defendant to three months in health correction, stayed that sentence pending appeal to the Supreme Judicial Court and a further stay was granted while a petition for certiorari was addressed to this Court to the Supreme Judicial Court and was denied and Mr. Baird then started serving his three months and I believe he served 34 or 35 days of that.

When the Second Court of Appeals, and I am getting ahead of myself, in addressing himself to a petition for writ of habeas corpus to the District Court, the District Court I might say denied the petition for the writ, Second Court of Appeals, for the First Circuit issued a stay for a probable cause and released the appellee on bail since he had served, I believe 34 or 35 days of his sentence.

This case then is in the posture of Appeal directly from that order of the First Circuit, and I would add that in both cases, the District Court Judge filed an opinion which we find in the appendix, and of course the Circuit Court filed an opinion.

Now, there are two questions that I think are addressed to this Court, and the first is, whether the Massachusetts Statute, and when I say statute, of course I must include a reading together of the two, whether or not the Massachusetts statute prohibiting it, the giving away of admittedly contraceptive substance, whether or not that is constitutional.

And secondly, whether or not the Massachusetts statute is unconstitutional as applied to William Baird, who was admittedly a married man and who was admittedly also not a physician nor a Nurse nor a Registered Pharmacist or clearly not a Public Health Agency.

I would like to address myself to the second question first and that is, the question of whether or not William Baird has standing to raise this question.

Now, he is admittedly a married man.

He is in effect asking this Court, and even cursive reading of the brief I think indicates this, he is asking this Court to declare unconstitutional a statute as it applies to others because clearly his constitutional rights are not invaded.

Harry A. Blackmun:

But might be, he is challenging a conviction?

Joseph R. Nolan:

Yes, he is.

I do not believe —

William J. Brennan, Jr.:

I should think he has got the — could he possibly have a greater interest?

Joseph R. Nolan:

Well, it is my understanding that merely because he was in jail, does not give him a tailor made standing as the way you (Voice Overlap).

William J. Brennan, Jr.:

I know — excuse me, I thought he filed a petition for Federal habeas corpus challenging the constitutionality of his detention by Massachusetts, on the ground of the underlying statute is unconstitutional.

Joseph R. Nolan:

Yes.

William J. Brennan, Jr.:

And you are suggesting he does not have standing to do that?

Joseph R. Nolan:

I am suggesting that he does not have standing as we know standing simply because he was convicted of the statute.

Now, perhaps, Mr. Justice Brennan, you are saying to me well, anytime there is a First Amendment problem here, he does not have to have the kind of standing, but I am a little ahead of myself, but I do not believe that he has First Amendments — First Amendment rights here.

I do not see where his rights have been invaded.

I do not see where his wife’s rights have been invaded.

Both of them can seek and receive contraceptive devices within the framework of Massachusetts Law.

I think the language in the Raines case is clearly opposite here, where this Court said that the rule that one to whom application of a statute is constitutional, will not be had to attack it because it is unconstitutional as applied to somebody else.

Byron R. White:

But he certainly has standing to say that my conviction here is unconstitutional because the statute which restricts the distribution of contraceptive devices to physicians is unconstitutional.

Massachusetts said he violated the Law among other things because he was not a physician?

Joseph R. Nolan:

Yes, Your Honor.

William J. Brennan, Jr.:

And he says, the Law may not restrict the distribution of contraceptive devices to physicians. It is unconstitutional in that respect (Voice Overlap)

Joseph R. Nolan:

Well, I would —

Byron R. White:

Certainly he has got standing to say that?

Joseph R. Nolan:

I would say he has standing there, if as a basis for saying that, the right to be a physician or the right, the accompanying right is the First Amendment right.

But, I do not see that —

Byron R. White:

First Amendment right?

Well, I would think that if he said that Massachusetts could not within the due process clause, for example, restrict the distribution of contraceptives to physician?

Joseph R. Nolan:

In answer to you well Mr. Justice, what I would say that he would have no more standing, he has no more standing here than if he went to practice medicine, was arrested for the illegal practice of medicine and then say well, that statute is unconstitutional, I do not think that this Court would say that he had standing because the practice of medicine is not a First Amendment right as such for a man who is obviously not (Voice Overlap)

Byron R. White:

I know, but the First Amendment is the only ground from which a state statute can be unconstitutional (Voice Overlap).

Joseph R. Nolan:

Well, the other grounds that he is talking about, mainly due process, I will take in a moment, but the due process that he is talking about is some right of privacy.

Warren E. Burger:

Mr. Nolan, suppose the Massachusetts set a statute and said that it was illegal for anyone to prescribe the use of or to hand to any person, any quantity of wheat germ, for example, or some other innocuous substance unless the person handing it or engaging in that act was a registered physician?

And when he gives some wheat germ away and he is arrested, he has standing to challenge that statute?

Joseph R. Nolan:

There is no problem with that at all.

Warren E. Burger:

It is different from this one in that respect?

Joseph R. Nolan:

Well, I would say I think it is trenchantly different, may it please the Court.

I think it is trenchantly different because from — and I hope that the Court will see from our brief that there are some very dangerous sidelights and side effects to the use of many contraceptives and I think an examination, I am ahead of myself, but I think an examination of the Senate Committee on Monopoly when the pill was being examined.

Warren E. Burger:

Now you are going to the merits, are you not, rather than just the question of standing

Joseph R. Nolan:

Well, I must need to go the merits.

I think to answer your wheat germ example, that is all.

I do not think that it is a good analogy.

Warren E. Burger:

His point of view, that is all I am addressing my hypothetical — from his point of view, perhaps the situation, a wheat germ is exactly the same?

Joseph R. Nolan:

Well, I think he may think so, but I do not believe that he is thinking this.

Warren E. Burger:

Do we reach the merits of the validity of your position about the possible harmful effect on just the standing question?

Joseph R. Nolan:

No, I do not believe you do.

No, I believe that, that has to be taken with respect to the constitutionality of the statute itself.

But I do believe that there is a serious problem here in standing because he himself and his wife are not prevented from the benefits of the Massachusetts Statute in receiving contraceptives or being prescribed contraceptives.

There is no right of privacy involved here with him.

This is not a Griswold situation who he keeps speaking about a right of privacy for example, but it is not his right of privacy.

I think the District Court Judge said that more eloquently than I did in his opinion.

He said in effect and I am just paraphrasing, it is in the record and he said that we would hear Mr. Baird if his right of privacy, but he is asking, you to hear him with respect to the right of privacy of the unmarried for example, and I do not believe that he has standing to do that.

It is interesting to take his brief and just some of the head notes I think are interesting on page five.

William J. Brennan, Jr.:

May I ask?

I read the opinion and am I correct that in the Court of Appeals for the First Circuit, the First Amendment arguments were rejected as an attack on the merits of constitutional question and the Court found that the statute was unconstitutional on quite different grounds.

No rational relation (Voice Overlap).

Joseph R. Nolan:

No reasonable relation to the excise of his power.

William J. Brennan, Jr.:

Well now, if that is correct, what moment is that — we urge again to turn this on First Amendment grounds, that the Court of Appeals was correct on the grounds it took, and then (Voice Overlap).

Joseph R. Nolan:

I raised the First Amendment Mr. Justice Brennan, only in response to the question of standing.

This Court has said that a person would have standing which he otherwise does not have.

William J. Brennan, Jr.:

He certainly not has standing, so a certain constitutional arguments that he did assert and in which he prevail in the First Circuit?

Joseph R. Nolan:

Well, of course the First Circuit found that he did have standing.

This is I suppose —

William J. Brennan, Jr.:

Well, they have rejected his First Amendment ground, I suggest by reading the appendix

Joseph R. Nolan:

Yes.

That is right.

William J. Brennan, Jr.:

And they turned it on an entirely different constitution in terms as they saw it.

Joseph R. Nolan:

That is right.

William J. Brennan, Jr.:

And they — is there any suggestion on your part, they did not have standing to raise these other constitution contentions?

Joseph R. Nolan:

Yes, I am stoutly contenting that he does not have standing for the very reason that he does not have a First Amendment freedom or right involved here.

William J. Brennan, Jr.:

I am sorry.

Do that again.

I just do not follow you, so.

Joseph R. Nolan:

Well, on page eight.

William J. Brennan, Jr.:

I do hope that you are going to get to the ground that the Court of Appeals did rely on in holding the statute?

Just in a moment I would.

Joseph R. Nolan:

He was first abstinence for example on page eight, it says it is an abstinence somatic answer.

He refers to maternal mortality on page nine, or infant mortality, but it is not, I repeat open to him.

Again, he purports to be the voice of somebody else in this particular question.

He is asking you to overrule or to strike the statute because the statute effects other people not him.

Health characteristics on page 10, the unwanted child and so forth.

I repeat, I think that he does not have in the stricter sense the standing that he should have here to raise these other related questions whatever, I am not questioning the various findings and the statistics that he has in the brief, that is not my point.

Now, to come to the first question which is raised, and namely the constitutionality of the statute itself, it prohibits among other things, a person who is not a Doctor reading the statutes together from giving away and it prohibits a person who is not a Nurse or a Registered Pharmacist giving any advice or information.

I think it is critically important at this juncture to examine what the issue is not.

You are not being called upon in this case to determine whether or not a statute making it crime to use a contraceptive would be unconstitutional because use is certainly not prohibited.

You are not being asked to rule on the wisdom of the Legislature in prohibiting because I suggest respectfully that is beyond the power of this Court is to whether or not it is wise for the Massachusetts Legislature to have it.

You will certainly not sit as a super legislature to determine whether it is wise to do it.

You are not being asked to determine whether or not contraception is per se evil or in violation of the natural law.

Though, it is interesting to note that certainly the statute was enacted in 1879, clearly a Public Morality Statute and while for the last few years, there has been a solid attack on the question of the natural law or whether or not it is violative, still some — few of us who believe it is also against the natural law, but that is not the issue.

You are not being called upon to determine the intrinsic evil of contraception.

Harry A. Blackmun:

Was the sentence first placed on the book in 1879?

Joseph R. Nolan:

1879, Your Honor.

Harry A. Blackmun:

Yes.

Joseph R. Nolan:

You are not being called upon to decide whether the Legislature of Massachusetts should improve the lot of the unmarried by allowing the untrammeled distribution of contraceptives.

Mr. Justice Black speaking for this Court in the Ferguson and Skrupa case said that courts do not substitute their social and economic beliefs for the judgment of Legislative bodies who are elected to pass Laws.

Byron R. White:

I take it your argument is in a way that if a State wants to channel the distribution of a particular commodity into a certain group of licensed people that may constitutionally do so?

Joseph R. Nolan:

Particularly where the commodity has a certain health, potential for danger.

Byron R. White:

For health?

Joseph R. Nolan:

Yes, Your Honor.

Byron R. White:

But, in terms of the due process clause, arguably a state could say that well we are going to take bread and we are going to give a monopoly to the distribution of bread to a certain group of people?

Joseph R. Nolan:

I do not suppose they are not supposed to do that, no I am not suggesting —

Byron R. White:

Well, I do not know as far as the due process clause is concerned, it may not be able to do it in the violation of anti trust laws as far as due process is concerned?

Joseph R. Nolan:

Well, even in effect the due process, bread seems to be such a innocuous thing that (Voice Overlap).

Byron R. White:

Well, I know, but it does not — well, so you are saying that if it is really innocuous, it would violate the due process clause, is that it?

Joseph R. Nolan:

It would with bread or wheat germ or something like that, I do not know that I would be able to muster much of an argument to say that a state would require a doctor to do it.

The issue then is whether or not Massachusetts may within the framework of the police power, enact a statute that I submit to you does more than just indirectly touch the public welfare, morals, safety, health of the community.

Now, I think it is almost factious to say that there is no connection.

A great deal of my brother’s brief as given over to saying I think just a bit of advice always (Inaudible) I suppose to paraphrase your brother’s argument, but I think the gist one of the arguments is, that the prohibition against the unmarried having this has absolutely nothing to do with public morality, nothing at all to do.

I would be the first to concede the lack of success that this statute has had with respect to what the founders or the legislature thought in 1879 and the language that was used in the Allison case for a solid and moral citizenry, I am the first to admit that it has certainly not succeeded, but I do question whether or not the lack of success of the statute is any reason for declaring it unconstitutional.

I think it is factious I repeat to say that it does not have a logical albeit perhaps unsuccessful connection with public morality not to mention public health.

I think to say that, to lift the ban to say that because I can think of only of quick parallel, but I do not suppose anybody would seriously contend that because gambling goes on, illegal gambling goes on in 80% of the, let us say variety stores or bar rooms in Massachusetts that therefore the gambling statute is unconstitutional because it is not working out for the anti-gambling statute and I think the analogy is not too far from here.

My brother has pointed out many social evils, all of which I think we’re acquainted with, the unwanted child, the illegitimacy rate.

Now, all of these things, as facts of course must go controverted.

I am not suggesting if there is anything inaccurate in my brother’s brief.

I think however, where he fails is, in asking you to draw a nexus between the failure, for example, the high illegitimacy rate.

Now, conspicuously absent from his brief, is any study that would indicate that in jurisdictions where the Legislature has seen to relax the law on contraceptions and permit a free distribution of contraceptives, that in those jurisdictions, the illegitimacy rate is any better or any lower and that is significantly absent I think conspicuously so from my brother’s brief.

He is putting forth these social evils, all of which we — and I think would — but failing to tie them in with the ban of this Massachusetts Statute has on the free distribution of contraceptives.

The other argument that I would and I think is important here is, he keeps stressing the fact that nobody pays any attention to it anyway, and I have alluded this moments ago, but I would say that, I think it is important enough to repeat that, that cannot be the measure of whether or not this statute is within the framework of the police power, the Massachusetts has, it just cannot be.

Now, there is one argument that I would like to address with respect to the supplemental brief, in appendix, through no fault of my brother, I did not receive this until Monday, in the supplemental brief of the appellee, there was one argument advanced here with respect to an Act of the Congress, a law that was passed in December of 1970, entitled Family Planning Services and Population Research Act of 1970.

Now, the gist of the argument here is that the Supremacy Clause of the Sixth Amendment, now will make the Massachusetts law on this totally inoperative of something of an occupation of the field argued.

Now, I fail to see and I repeat, I confess that I have not researched this because I have not had the time, but in reading the preamble here to the Congressional Act to promote public health and welfare by expanding, improving in better coordinating with family planning service and population research activities of Federal Government, and for the purposes, I feel to see where the Congress intends here to occupy the field to the exclusion of a statute in Massachusetts that has been enacted under the police power.

I fail to see the connection between the supremacy clause and the Congressional Act.

Warren E. Burger:

I thought Mr. Nolan, that your strongest point really was that the Police Power was being exercised here with the State of Massachusetts to protect people from harmful substances at the hands of non-physicians.

You do not contend that, do you?

Joseph R. Nolan:

No, I do not and that is pleaded in my brief and a quotation even from the planned parenthood as to the dangers, not only with respect to the pill Mr. Chief Justice, but also related contraceptive devices, warnings, even on the can of Emko, there is a warning that if there is any irritation, see your doctor.

Warren E. Burger:

Mr. Tydings we will give you an option if you would prefer not to put your arguments today and tomorrow, 10 minutes today, we will let you begin in the morning.

Warren E. Burger:

What is your choice in the matter?

Joseph D. Tydings:

I think, I would prefer to, may it please the Court to begin now, Mr. Chief Justice.

Warren E. Burger:

Very well, do that.

Joseph D. Tydings:

I would like to call the Court’s attention to the dissenting opinion in the Massachusetts Supreme Judicial Court.

That decision was four to three, found on the page 26 of the opinion.

I think, it is a very fine dissent.

Warren E. Burger:

Which one?

Joseph D. Tydings:

That is on the Supreme Judicial Court of Massachusetts.

Harry A. Blackmun:

I think there are two opinions out in this.

Joseph D. Tydings:

Now, this is the first when the case originally went up and it was held four to three that the —

Harry A. Blackmun:

Yes, but there are two dissenting opinions.

Joseph D. Tydings:

Well, I was referring the one by Judges Whittemore and Cutter found on page 26, and I also in regard to standing, I would like to call the Court’s attention to the fact that Supreme Judicial Court of Massachusetts implicitly recognized the standing of the appellee and it is stated on page 26 there.

The issue was never raised until oral argument before the First Circuit.

When a man is in jail, convicted, serving time because of an unconstitutional statute, I fail to see how he could better have a standing to challenge the constitutionality of it.

Now, may it please the Court, the brief which I filed and which my brother just referred to, describes with some particularity the legislative history in the background of the Family Planning Acts before the Congress of the United States.

He failed to mention, and we are talking about the supremacy clause here with respect to three separate statutes.

The first one was the OEO Statute in 1964, which authorized Family Planning Clinics to be operated throughout this country, the contraceptives to be distributed to married and unmarried, rich and poor without discrimination to protect against the unwanted pregnancy.

In 1967, that Act was amended to specifically make it a program of emphasis and earmark funds in OEO that it had to be used for that purpose.

In 1967, we amended Title IV and Title V of the Social Securities Act to provide that 6% of all funds appropriated for maternal and child care, had to be expended in State Family Planning Clinics, for the distribution of information and contraceptives to married and unmarried and the like and the regulation specifically said that a state could not discriminate between married and unmarried.

In Title IV, we specified that every woman receiving public assistance, certainly on welfare, have to have the opportunity, married or unmarried, rich or poor, to have Family Planing (Voice Overlap).

William J. Brennan, Jr.:

Is it the preemption argument?

Joseph D. Tydings:

Yes.

William J. Brennan, Jr.:

That has been made in your brief?

Joseph D. Tydings:

Yes.

This is the whole substance of my brief.

The one Joseph D. Tydings, David Rapstien, number 70-17.

William J. Brennan, Jr.:

I do not have that.

Joseph D. Tydings:

Supplemental briefs in attendance?

William J. Brennan, Jr.:

Well excuse me, I do not have it.

I did not get it.

Joseph D. Tydings:

I am sorry, Mr. Justice Brennan.

I wish you did.[Laughter]

William J. Brennan, Jr.:

Well, that is why I am just not familiar with the preemption argument?

Joseph D. Tydings:

The Fourth Statute was the Family Planning and Services Act of 1970 which my brother referred to, which specifically I might say in a very first clause of the Act, Section 2, it is a purpose of this Act, to assist in making comprehensive voluntary Family Planning Services readily available to all persons desiring such services.

The President, when he signed that Act, and two parts of his massage, referred to adequate Family Planning Services within next five years to all those who want them.

This Act merely significantly increased the amount of funds available.

But clearly, Mr. Chief Justice, if the Massachusetts Statute stands and the Wisconsin Statute stands, they block the carrying out of this statute and of the 1964 Act and the 1967 Amendments of the Social Securities Act in Massachusetts and the State of Wisconsin.

Byron R. White:

Would it be contrary to the Federal Act for a State to attempt to comply — to be consistent with the Federal Act if it said that all distribution of material of — contraceptive materials would be through physicians?

Say, it will be available to married and unmarried and the like but our family planning clinics are going to be manned solely by Doctors, no one else is entitled to dispense contraceptives?

Joseph D. Tydings:

I am afraid that it would break down the whole trust of the operation of the program for the reason that first of all, you are talking about non-prescriptive and prescriptive (Voice Overlap)

Byron R. White:

It may not work, but would it be contrary to the face of the Federal Act, the Federal Regulation?

Joseph D. Tydings:

Well, it would be, certainly it would break down the whole trust of the Act.

I would say, if I were the administrator, I would let them have the money.

Byron R. White:

I know, but where in the Federal Act and Regs that say that the States may not use physician solely or that someone besides physicians must be permitted to dispense?

Joseph D. Tydings:

It does not say that anywhere.

But the trust of the Act, Mr. Justice White, the trust of the Act is to provide these family planning services and contraceptives to the poor, to the unmarried mothers who need them, to provide them in clinics, and you just cannot possibly afford to have a doctor in every clinic.

And then, when you tie on top of that, you make no distinction between prescriptive and non-prescriptive drugs, dangerous and non-dangerous drugs. In Massachusetts, it is perfectly alright, to sell a condom to a man if he says “I am unmarried man” if he is going to use it for purposes of venereal disease protection, but if he is going to use it for family planning protection then, it is a felony.

William J. Brennan, Jr.:

Now, your time is running out Mr. Tydings because it is afternoon, but I just want to ask a few questions, I just got it at the top of your brief then?

I take, if the state has not answered to this additional question, have they?

Joseph D. Tydings:

No, it has not.

William J. Brennan, Jr.:

And I gather this argument was not made in any court below, was it?

Joseph D. Tydings:

That is correct, Mr. Justice Brennan.

The right to make a decision to protect one’s life or to protect one’s health, is a fundamental personal constitutional right within the number and certainly of the Fourth and Fifth Amendments and the Ninth Amendments as described in Judge Goldberg’s decision in the Griswold case.

I think the right not to expose one’s life, risk one’s life to death or to risk one’s health by being forced to have an unwanted child, is a constitutionally protected right.

Now, the Massachusetts statute is arbitrary, capricious and has no reasonable relation to a proper legislative purpose because it violates a fundamental personal right with no compelling state reason and would not a narrowly defined statute.

And then, we go one step further if I might.

There are two possible reasons for the Massachusetts statute.

The first would be health and yet how can you argue this is a health statute, if you permit a married woman to receive advice and prescriptions from a gynecologist and you do not permit an unmarried woman.

Warren E. Burger:

Is that an issue any longer?

Joseph D. Tydings:

Well, it is still an issue on the Massachusetts Statute?

Warren E. Burger:

Well, on this particular case though.

There is no evidence in the case we have find now about the marital status of the person to whom the delivery of this substance was made.

Joseph D. Tydings:

No.

There is no evidence, but there was before college audience — may it please, Mr. Chief Justice.

Warren E. Burger:

Well, it is not the offense, I thought the offense was confined to the act of delivery to this one person?

Joseph D. Tydings:

Well, it is.

The offense was there, but the question of whether or not he was married or unmarried relates to the validity of the statute.

This statute, is inherently unconstitutional because there is no compelling State reason for it, and if I may continue, I will show some of the absurdities and the contradictions, which put it clearly behind any justification either as a health statute or a moral statute.

For instance, this statute —

William J. Brennan, Jr.:

I think that is the ground that the Court of Appeals took?

Joseph D. Tydings:

That is correct, Mr. Justice Brennan.

William J. Brennan, Jr.:

That the only possible justification because that would be held for morals and on the Court of the Appeals an analysis was needed, therefore it was completely void?

Joseph D. Tydings:

Exactly.

Let me take it a step further Mr. Chief Justice.

This statute says, that you cannot get a prescription for a non-prescriptive, non-dangerous contraceptive like Emko Foam or a condom unless you go to a doctor, unless the sole purpose is for venereal disease.

So the poor mother, let us say, the poor married mother for the time being, without regard to the unmarried woman, she is not going to have $5 or $10 to go down to a doctor and get a prescription, and go down and get a can of Foam.

I mean, that cuts off any opportunity for her to protect her own health.

She might have had four or five children, it might be very risky for her to have another one, and yet this statute, it just arbitrarily discriminates against her.

You have got the situation where until 1966, Mr. Chief Justice, this statute did not even hold out any relationship to health whatsoever.

It said that no woman, married or unmarried could receive a contraceptive from anyone.

Now, they put in that second statutory clause about a married woman and a doctor’s prescription and so forth, after the Griswold decision, but they try to tailor it absolutely as closely as they could without any relationship to a health measure.

Warren E. Burger:

We will resume at that point in morning.