In its decision in Eisenstadt v. Baird, 408 U.S. 438 (1972), the U.S. Supreme Court upheld the right of unmarried couples to use birth control under the equal protection clause. But a concurring opinion by Justice William O. Douglas said the case could have been more easily decided on the basis of the First Amendment.
The case arose after Bill Baird, an advocate for reproductive rights, gave a speech on contraception at Boston University in which he had advocated changes in state laws related to birth control. He was arrested for giving contraceptive foam, which did not apparently require a prescription, to one of the attendees.
State law made it illegal to give contraception to unmarried person
At issue was a Massachusetts law that made it a felony to give away an article for prevention of contraception except by a physician or pharmacist to a married person.
in Griswold v. Connecticut (1965), the Supreme Court had upheld the right of married couples to use contraception. The majority opinion in Eisenstadt by Justice William J. Brennan was based chiefly on the equal protection clause of the 14th Amendment as well as questions as to whether the Massachusetts law that prohibited the distribution of birth control devices by anyone other that medical doctors and licensed pharmacists served genuine health purposes.
In rendering its decision, the court, much as it had done by allowing Griswold to represent the interest of married couples in Griswold, decided that Baird had standing to challenge a law on behalf of unmarried individuals.
Justice Douglas said handing out birth control product was protected speech
Justice Douglas, who had written the majority opinion in Griswold, authored a concurring opinion in Eisenstadt, arguing that the case could more easily be decided on the basis of the First Amendment as applied to the states via the 14th Amendment than on the basis of the equal protection clause.
Citing the decisions in Murdock v. Pennsylvania (1943) and Thomas v. Collins (1945), Douglas viewed Baird’s conviction as an improper attempt to impose a licensing requirement on a speaker.
He further thought that allowing attendees to examine birth control products was part of the presentation. Douglas observed that “However noxious Baird’s ideas might have been to the authorities, the freedom to learn about them, fully to comprehend their scope and portent, and to weight them against the tenets of the ‘conventional wisdom,’ may not be abridged.”
Douglas further cited John Milton’s words his Areopagitica: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
Distinguishing this case from the decision regarding draft card burning in United States v. O’Brien (1968), Douglas argued that making the vaginal foam available was a protected form of symbolic speech, akin to picketing, sit-ins, and other such activities. He observed that “Handing out the article was not even a suggestion that the lady use it. At most it suggested that she become familiar with the product line.”
Justices Byron White and Harry Blackmun wrote additional concurring opinions, and Chief Justice Warren Burger issued a dissenting opinion.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.