Relitigating Forty Years of History

March 22, 1972:

 Eisenstadt v. Baird decision by the United States Supreme Court allows unmarried persons the right to contraceptives. Eisenstadt v. Baird, 405 U.S. 438 (1972), was an important United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples and, by implication, the right of unmarried couples to engage in potentially nonprocreative sexual intercourse (though not the right of unmarried people to engage in any type of sexual intercourse).
The Court struck down a Massachusetts law prohibiting the distribution of contraceptives to unmarried people, ruling that it violated the Equal Protection Clause of the Constitution.
William Baird was charged with a felony for distributing contraceptive foams after lectures on population control at Boston University. Under Massachusetts law on "Crimes against chastity" (Chapter 272, section 21A), contraceptives could be distributed only by registered doctors or pharmacists, and only to married persons.
After Baird was convicted, an appeal resulted in partial overturn by the Massachusetts Superior Court, which concluded that the lectures were covered by First Amendment protections. However, the court affirmed the conviction under contraceptive distribution laws. Baird filed a petition for a federal writ of habeas corpus, which was refused by the court. The Court of Appeals for the First Circuit vacated the dismissal and remanded the action with directions to grant the writ, and dismiss the charge, reasoning that the Massachusetts law infringed on fundamental human rights of unmarried couples as guaranteed by the Due Process Clause of the Fourteenth Amendment. This ruling was then appealed to the United States Supreme Court, by Sheriff Eisenstadt, who had prosecuted the case, on the ground that Baird lacked standing to appeal, being neither an authorized distributor under the statute nor a single person.
In a 6-1 decision (Justices Rehnquist and Powell were not sworn in on time to participate in the case), the Court upheld both Baird's standing to appeal and the First Circuit's decision on the basis of the Equal Protection Clause, but did not reach the Due Process issues. The majority opinion was written by Justice William J. Brennan Jr. and joined by three other justices, William O. Douglas, Potter Stewart, and Thurgood Marshall. Brennan reasoned that, since Massachusetts did not enforce its law against married couples and could not under Griswold v. Connecticut, the law worked irrational discrimination by denying the right to possess contraceptives by unmarried couples. He found that Massachusetts' law was not designed to protect public health and lacked a rational basis.
Brennan held that the right of privacy recognized in Griswold v. Connecticut extended to procreative decisions made by unmarried couples, as well as married couples. In doing so, he extended the right announced in Griswold to any procreative sexual intercourse: "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."
Justice Douglas, concurring, argued that since Baird was engaged in speech while distributing vaginal foam, his arrest was prohibited by the First Amendment.

Now Republicans seem interested in relitigating the issue.  I'll pass.