Eisenstadt v. Baird: Contraception, Unmarried Couples and the Fornication Law

What was the Massachusetts law at issue?

The law at issue was chapter 272, section 21 of the Massachusetts General Laws, which made it a crime to exhibit or give away contraceptive articles and carried a maximum sentence of five years in prison ^[1]. The provision traced back to a statute of 1879 ^[1]. In 1966, a year after Griswold v. Connecticut, the legislature added section 21A, which allowed registered physicians to prescribe and registered pharmacists to supply contraceptives to married persons ^[1]. The federal appeals court, in a passage the Supreme Court quoted, read that amendment as the legislature's attempt to make exactly the accommodation Griswold seemed to require for married couples, and nothing more ^[1]. Griswold itself had concerned a Connecticut ban on the use of contraceptives, applied to a clinic that advised married persons ^[2].

The resulting scheme sorted people by marital status. A married person could obtain contraceptives through a physician or pharmacist, whatever use was intended, and even if the spouses lived apart ^[1]. An unmarried person could not obtain them for the purpose of preventing pregnancy, although articles intended to prevent disease could be given to anyone without controls ^[1].

The same chapter also contained the state's fornication offense, section 18, and its adultery offense, section 14 ^[1][4]. Fornication was a misdemeanor; the Court described it as punishable by 90 days, a figure that became central to its reasoning ^[1]. For the longer history of these statutes in the state, see Massachusetts and fornication, from Bible Commonwealth to repeal.

The Massachusetts provisions at the heart of Eisenstadt v. Baird

Provision	What it did in 1972	Penalty described by the Court	Status in 2026
G.L. c. 272, § 18	Made fornication a crime	A 90-day misdemeanor	Repealed by Acts 2018, c. 155, § 2
G.L. c. 272, § 21 (from 1879)	Barred exhibiting or giving away contraceptives, with exceptions	Up to five years in prison	Repealed by Acts 2018, c. 155, § 2
G.L. c. 272, § 21A (added 1966)	Let physicians and pharmacists supply married persons	Exception, no penalty	Replaced in 2018 by a new § 21A on authorized providers
G.L. c. 272, § 14	Made adultery a crime	Not at issue in the case	Repealed by Acts 2018, c. 155, § 2

How did William Baird's case reach the Supreme Court?

William Baird's case reached the Supreme Court through a federal habeas corpus petition after his conviction was upheld in state court. Baird gave a lecture on contraception to students at Boston University, displayed contraceptive articles, and at the end handed a young woman a package of Emko vaginal foam; the indictment dates the offense to April 6, 1967 ^[1]. He was convicted under section 21 both for exhibiting the articles and for giving one away ^[1].

The Supreme Judicial Court of Massachusetts set aside the exhibition count on First Amendment grounds but, by four votes to three, upheld the conviction for giving away the foam ^[1]. Baird then sought habeas corpus in federal court. The district court dismissed his petition, but the Court of Appeals for the First Circuit vacated that dismissal, and the Supreme Court reviewed and affirmed the appeals court's judgment ^[1].

The case was argued on November 17 and 18, 1971 ^[1]. Whether Baird, an unlicensed layman rather than a physician or pharmacist, could raise the rights of unmarried recipients was disputed. The Court allowed him to do so: enforcement of the statute materially impaired the ability of unmarried people to obtain contraceptives, those people were not themselves prosecuted and so had no forum of their own, and Baird was an advocate for access rather than a mere distributor ^[1].

Why did the Court dismiss fornication as the law's purpose?

The Court dismissed fornication as the law's purpose because the statute's own structure and penalties made that explanation implausible. One justification offered for the law was that it discouraged premarital sex. Justice William Brennan, writing for the Court, answered that the statute was riddled with exceptions: married people could obtain contraceptives regardless of their intended use, and anyone could obtain articles sold to prevent disease ^[1].

The penalties pointed the same way. The Court found it plainly unreasonable to assume that Massachusetts had chosen pregnancy and the birth of an unwanted child as the punishment for fornication ^[1]. It also compared the two sanctions. Fornication itself was a 90-day misdemeanor, while giving away a contraceptive could bring five years in prison, and the Court found it hard to believe that the legislature would punish the distributor so much more heavily than the conduct supposedly being deterred ^[1].

Health did no better as a rationale. The Court found that protecting health could no more reasonably be regarded as the statute's purpose than deterring premarital sex, and Chief Justice Warren Burger's dissent faulted the majority for setting aside the state court's health reading ^[1]. Having rejected both purposes, the Court concluded that no rational ground explained the different treatment of married and unmarried people.

This part of the opinion is the closest the Supreme Court came, before Lawrence v. Texas, to discussing a fornication statute directly. It did not hold that states could not punish fornication. It held only that a contraception law could not be justified as a disguised fornication law.

What did the Court say about married and single people?

The Court said that whatever rights people have to obtain contraceptives must be the same for the unmarried and the married. It held that by treating similarly situated married and unmarried persons differently, the statute violated the Equal Protection Clause of the Fourteenth Amendment ^[1]. The Court stated that it did not need to decide whether the law burdened a fundamental right, and it applied the rational-basis test rather than strict scrutiny ^[1].

The opinion then made a broader statement about privacy. Griswold had protected the marital relationship, but the Court observed that a marriage is made up of two individuals and that the right of privacy belongs to each of them rather than to the couple as such ^[1]. If the right of privacy meant anything, Brennan wrote, it was the right of "the individual, married or single" to be free from unwarranted government intrusion into decisions such as whether to bear or beget a child ^[1].

The logic was presented as a dilemma. If Griswold barred a ban on distribution to married people, a ban on distribution to unmarried people was equally impermissible. If Griswold did not bar it, a ban that reached only the unmarried was an arbitrary under-inclusion ^[1]. Either way, the marital line could not stand.

How did Eisenstadt shape later privacy cases?

Eisenstadt became the bridge between marital privacy in Griswold and the individual liberty recognized in Lawrence v. Texas. Griswold, decided on June 7, 1965, had struck down a Connecticut ban on the use of contraceptives by married couples, and one concurrence in that case had stressed that Connecticut separately prohibited adultery and fornication ^[2]. Eisenstadt took the protection beyond marriage while expressly leaving open whether the unmarried had a fundamental right of access to contraceptives ^[1].

When the Court decided Lawrence v. Texas on June 26, 2003, the majority described Eisenstadt as a case decided under the Equal Protection Clause that nonetheless stated a due-process principle about unmarried persons, and it quoted the "married or single" passage ^[3]. Together with later decisions on contraception and abortion, the majority said, Eisenstadt showed that Griswold's reasoning could not be confined to married adults ^[3]. Justice Antonin Scalia's dissent disputed that reading, stressing that Eisenstadt had rested solely on equal protection ^[3]. The Lawrence majority also recalled Carey v. Population Services International (1977), in which the Court invalidated a New York law restricting the sale of contraceptives to persons under 16, although no single opinion commanded a majority ^[3].

The case also produced a mix of separate opinions. Justice William O. Douglas joined the Court's opinion but wrote that he would have decided it on First Amendment grounds, as a lecture and a demonstration ^[1]. Justice Byron White, joined by Justice Harry Blackmun, concurred only in the result, because the record did not show that vaginal foam was hazardous and he preferred not to reach the marital-status question ^[1]. Chief Justice Warren Burger dissented, arguing that the health rationale was valid and that Baird, as an unlicensed layman, lacked standing ^[1].

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Court discussed Griswold, Eisenstadt, Lawrence and Obergefell and stated that its abortion ruling should not be understood to cast doubt on precedents that do not concern abortion ^[6]. For the decision that later built most directly on Eisenstadt, see Lawrence v. Texas and fornication laws.

What happened to the Massachusetts laws afterward?

Massachusetts formally repealed both the contraception ban and the fornication offense in 2018. Chapter 155 of the Acts of 2018, titled "An Act relative to reproductive health" and approved by the governor on July 25, 2018, repealed sections 14 and 18 through 21 of chapter 272 ^[4]. That block included the adultery offense, the fornication offense under which the Court had measured the state's claimed purpose, and section 21, under which Baird had been convicted ^[1][4].

The same act did not simply delete section 21A. It replaced it with a new section governing how authorized health care providers may prescribe contraceptives and how pharmacists may dispense them, and it barred dispensing through vending machines ^[4]. The state thus kept a regulatory framework for contraception while removing the criminal ban that Eisenstadt had already made unenforceable against unmarried people.

The state's trial court law libraries now state that sex between unmarried consenting adults is not against the law in Massachusetts, citing the 2018 repeal ^[5]. They also note that adultery can still matter in divorce proceedings, even though it is no longer prosecuted as a crime ^[5]. More than 46 years separated the Supreme Court's decision from the repeal of the statutes it had examined. This overview summarizes court decisions and statutes and is not legal advice.

Frequently asked questions

Who was William Baird?

William Baird was the advocate for access to contraception whose conviction gave rise to the case. In 1967 he lectured on contraception at Boston University and handed a young woman a package of contraceptive foam, which led to his prosecution under Massachusetts law. He was not a physician or pharmacist, the only people the law allowed to supply contraceptives, and then only to married persons.

Was Eisenstadt v. Baird a unanimous decision?

No. The Court ruled 6-1, with Chief Justice Burger dissenting, and Justices Powell and Rehnquist did not take part. Justice Brennan delivered the opinion of the Court, Justice Douglas added a concurrence, and Justices White and Blackmun concurred only in the result.

How is Eisenstadt different from Griswold?

Griswold (1965) protected married couples' use of contraceptives under a right of marital privacy. Eisenstadt (1972) extended equal access to unmarried people, relying on the Equal Protection Clause, and described privacy as belonging to the individual rather than to the marriage.

Did Eisenstadt make fornication legal?

No. The Court did not rule on the Massachusetts fornication statute; it only refused to accept deterring fornication as the purpose of the contraception law. The fornication offense stayed in the Massachusetts code until its repeal in 2018.

Is Eisenstadt v. Baird still good law?

Yes. It has not been overruled, and the Dobbs majority in 2022 discussed it alongside Griswold, Lawrence and Obergefell and wrote that nothing in its opinion should be understood to cast doubt on precedents that do not concern abortion. Lawrence v. Texas (2003) relied on it explicitly.

What does "married or single" mean in Eisenstadt?

It means that the right of privacy belongs to each person, not to the marital couple. Justice Brennan used the phrase to say that the government may not intrude without justification into an individual's decision whether to bear or beget a child, whatever that person's marital status.