234 BROOKLYN LAW REVIEW [Vol. 41: 209 Justices White and Blackmun concurred in the result, but, in a separate opinion, based their concurrence on totally different grounds from those of the plurality. The two Justices reasoned that since the indictment had charged Baird with distributing contraceptives without authority, in that Baird was neither a physician nor a pharmacist, and since there was no proof on the record as to the marital status of the woman to whom he distributed the foam, Baird had been convicted because he had had no authority to distribute contraceptives to anyone, not because of the distributee's marital status. 129 Thus, according to Justices White and Blackmun, the plurality's equal protection reasoning was irrelevant. The real question was whether the State could limit the distribution of contraceptives to physicians and pharmacists without a showing that such limitation was necessary to protect the health of its citizens. Citing Griswold for the proposition that the rights of married persons to use contraceptives are fundamental rights which may not be abridged by the State without a strong showing of a compelling state interest, the two Justices stated: Our general reluctance to question a State's judgment on matters of public health must give way where, as here, the restriction at issue burdens the constitutional rights of married persons to use contraceptives. In these circumstances we may not accept on faith the State's classification of a particular contraceptive as dangerous to health. Due regard for protecting constitutional rights requires that the record contain evidence that a restriction on distribution of vaginal foam is essential to achieve the statutory purpose, or the relevant facts concerning the product must be such as to fall within the range of judicial notice. 130 The Justices found that no evidence had been adduced which would indicate any health reason for restricting the distribution of Emko-brand foam as distinguished from other contraceptives which were admittedly potentially hazardous. Thus, Baird's conviction would have to be overturned.131 As in Griswold, the Justices in Baird did not treat the ques Id. at 460-62. This was the position of the Supreme Judicial Court of Massachusetts (Commonwealth v. Baird, 355 Mass. at 753, 247 N.E.2d at 578) and of the federal district court (Baird v. Eisenstadt, 310 F. Supp. at 954). Chief Justice Burger, dissenting, also saw this as the only issue in the case, but would have upheld the statute as a valid health measure. Eisenstadt v. Baird, 405 U.S. at 465-72. 136 Eisenstadt v. Baird, 405 U.S. at 463-64. 131 Id. at 464-65. 1974] WOMEN AND THE SUPREME COURT 235 tion of the relationship between birth control and women's rights, 132 although such an inquiry would not have been out of place. Indeed, if the plurality in Baird was determined to decide the case on equal protection, rather than on due process, grounds, 133 it could have done so on the following theory: such statutes most seriously affected women. By force of those statutes, women who had not wished to become pregnant were faced with a choice between either the birth of an unwanted child or an illegal abortion, with the inherent hazards to health and life of either choice. Such an argument had been advanced in one amicus curiae briefs in Baird. Similar arguments had been sustained in race discrimination cases; however, the Supreme Court had declared race to be a suspect classification," while it had just recently declined to do so in regard to sex discrimination." 138 There are, moreover, other connections between birth control and sex discrimination which the various courts ruling on Baird's conviction could have seen had they focused their judicial vision on the realities behind the challenged statutes. As one commentator has queried: Despite the Court's refusal in Eisenstadt to take the argument seriously, isn't it clear that the Massachusetts statute did, indeed, prescribe "pregnancy and the birth of an unwanted child as punishment for fornication"?130 132 Of interest in this regard is Justice Douglas' statement in his concurring opinion: Under no stretch of the law as presently stated could Massachusetts require a license for those who desire to lecture on planned parenthood, contraceptives, the rights of women, birth control, or any allied subject, or place a tax on that privilege. 405 U.S. at 455. Whether Baird actually lectured on women's rights in addition to or in conjunction with this particular lecture on birth control (it is quite likely), Justice Douglas is the only Justice who linked the concepts of birth control and women's rights. 13 Gunther states that, “[i]n Eisenstadt v. Baird, the core of the challenge to Massachusetts' ban on the distribution of contraceptives was an effort to expand the boundaries of the amorphous right of privacy of Griswold v. Connecticut," but there was "considerable pressure to strair for grounds of invalidatior which would avoid the Griswold v. Connecticut issue." Gunther, New Equal Protection, supra note 68, at 29, 34. 134 See DAVIDSON, GINSBURG & KAY, supra note 17, at 344 n.1; KANOWITZ, SEX ROLES, supra note 26, at 131 n.2. 135 Brief for Human Rights for Women, Inc., as Amicus Curiae at 7; Eisenstadt v. Baird, 405 U.S. 438 (1972). 13 See, eg., Hunter v. Erickson, 393 U.S. 385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967). But cf. Jefferson v. Hackney, 406 U.S. 535 (1972). 137 See cases cited in note 6 supra. 13 Reed v. Reed, 404 U.S. 71 (1971). 130 DAVIDSON, GINSBURG & KAY, supra note 17, at 344 n.1. www/ 236 BROOKLYN LAW REVIEW [Vol. 41: 209 As we have noted," the Supreme Court plurality rejected the argument that the legislative goal behind the challenged statutes was to deter premarital sex. Yet those statutes were contained in a chapter of the Massachusetts General Laws entitled "Crimes Against Chastity, Morality, Decency and Good Order.""" That title alone certainly should have provided a clue to the purposes behind the statutes. Further, on two separate occasions, the Massachusetts Supreme Judicial Court had held that the regulation of morals was the purpose behind the statute as originally enacted and as modified in the wake of Griswold. 143 Nonetheless, the Court rejected the deterrence-of-premarital-sex argument. Why? The Court asserted that, on three grounds, [i]t would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication, which is a misdemeanor under [Massachusetts penal laws].1 Such an assumption would be unreasonable, the Court explained, first, because of "the scheme of values that assumption would attribute to the State."145 The Court did not elucidate this statement, but it really did not need to do so. It is undeniable that puritanical or Victorian moralistic attitudes were at least one force behind most anti-contraceptive laws." A woman was supposed to be pure until marriage, and, if she was not, the shame of bearing an illegitimate child was none too harsh a punishment for such lewd behavior. "If you play, you've got to pay" is an attitude which is still encountered far too often among so-called educated people, both male and female."47 Why, then, did the Supreme Court plurality deem such a legislative purpose "unreasonable"? Did it hope that by denying the obvious-that people are often unreasonable, especially when dealing with sexuality-it could ignore the real legislative history 140 See text accompanying note 1 supra. 141 MASS. ANN. LAWS Ch. 272 (1968). 142 Commonwealth v. Allison, 227 Mass. 57, 62, 116 N.E. 265, 266 (1917), cited in Eisenstadt v. Baird, 405 U.S. at 447-48. 14 Sturgis v. Attorney General, 358 Mass. 37, 260 N.E.2d 687 (1970), cited in Eisenstadt v. Baird, 405 U.S. at 442, 448. Eisenstadt v. Baird, 405 U.S. at 448. 14 Id. 14 See Dienes, The Progeny of Comstockery-Birth Control Laws Return to Court, 21 AM. U.L. REV. 1, 3-11 (1971). See, e.g., Jobin, Archaic Birth-Control Laws, Coronet May, 1972. 1974] WOMEN AND THE SUPREME COURT 237 of the Massachusetts statute, as had been done in Griswold visà-vis the Connecticut statute?148 It may simply be that the ability of Supreme Court Justices to deal with questions of sexuality (and questions of women's roles, which are mythically, historically, and psychologically intertwined with questions of sexuality) is no better than the ability of most people to deal with such questions.149 The second justification for the plurality's rejection of the deterrence-of-premarital-sex argument was that "the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective."150 The Justices reasoned that, since anyone could dispense contraceptives to anyone-married or unmarried-to prevent the spread of disease, and since contraceptives could be dispensed to married persons even if they intended to use them while engaging in sexual relations with unmarried persons, many person who intended to engage in premartial sex would not, in fact, be deterred by the challenged statutes. Again, the Supreme Court plurality failed to recognize that the legislature might not have been acting entirely rationally or consistently in enacting the statutes-that the legislature might have wished to deter as much premartial sex as possible, even if it could not deter such activity entirely.151 Finally, the four Justices reasoned that, since violation of the challenged statutes was a felony punishable by five years in prison, while fornication was only a misdemeanor entailing a thirty-dollar fine or three months in jail, the purpose of the former could not have been to deter the latter. They recognized the possibility that the legislature might have intended to punish a dis 14 Griswold v. Connecticut, 381 U.S. 479, 497-98 (1965) (Goldberg, J., concurring). "See Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U.L. Rev. 675 (1971). 156 Eisenstadt v. Baird, 405 U.S. at 448. 151 Cf. Peterson v. Widule, 157 Wis. 641, 147 N.W. 966 (1914), excerpted in KANOWITZ, SEX ROLES, supra note 26, at 57-58, (requiring men but not women to be examined for venereal disease before marriage is not unreasonable because "the great majority of women who marry are pure, while a considerable percentage of men have had illicit sexual relations before marriage. ."). Kanowitz sees the statute in Peterson v. Widule as "another example of the American legal system's endorsement of society's double standard of sexual morality. KANOWITZ, Women and the LAW, supra note 26, 14-15. It must be noted that the Massachusetts statute's exception of contraceptives used to prevent the spread of disease from the general ban on the distribution of contraceptives primarily affected only one type of contraceptive--the condom. Permitting the distribution of condoms does not help women to control their own reproductive capacities; thus, it is not a threat to man's view of woman's place. 238 BROOKLYN LAW REVIEW [Vol. 41: 209 tributor of contraceptives more heavily than the actual fornicator; however, they refused to believe that such a large disparity in punishment could be explained in this manner. 152 More important than that narrow question, however, is the fact that the Justices, by rejecting the deterrence of premarital sex justification and the health justification for the challenged statutes, rejected as appropriate measures of the rationality of the means [which the legislature had chosen to carry out its purposes] two of the purposes in fact asserted by the State-rather than imagined by a deferential Court. . . . The only purpose [they] seemed to find credible was, ironically, an imputed one-a ban on contraceptives as such.153 All in all, Baird is an extremely thought-provoking case, but it does not provide us with much insight into the Court's view of women. The three most recent cases dealing with woman's control of reproduction are far more enlightening. B. The Abortion Cases [T]he real question is not, "How can we justify abortion?" but, "How can we justify compulsory childbearing?"154 Roe v. Wade 15 challenged the constitutionality of the Texas abortion statute, which prohibited all abortions except those "procured or attempted by medical advice for the purpose of saving the life of the mother [sic]." Its companion case, Doe v. Bolton, 157 challenged the Georgia abortion statute, patterned upon the American Law Institute's Model Penal Code. 158 The Georgia law proscribed all abortions except those performed by licensed physicians when necessary in their "best clinical judgment" because (1) continued pregnancy would endanger the 152 Eisenstadt v. Baird, 405 U.S. at 449-50. Not everyone would find it so hard to believe. A distributor of certain items who facilitated, say, a thousand people to commit a crime might be deemed to deserve a punishment twenty times as great as that of the principal himself or herself, especially if the commission of the actual crime were extremely difficult to detect, as in this case. Gunther, New Equal Protection, supra note 68, at 35. 154 Cisler, Birth Control, supra note 102, at 278. 155 410 U.S. 113 (1973). 150 Id. at 118 n.1. The inappropriate use of the words "mother," "maternal," and the like by courts and legislators is extremely significant. See note 234 infra. 137 410 U.S. 179 (1973). 15 Id. at 182. ALI MODEL PENAL CODE § 230.3 (proposed official draft) (1962). |