# Eisenstadt v. Baird/Concurrence White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Douglas White
* Dissenting Opinion Burger
Mr. Justice White, with whom Mr. Justice Blackmun joins, concurring in the result.
In Griswold v. Connecticut, 381 U.S. 479 (1965), we reversed criminal convictions for advising married persons with respect to the use of contraceptives. As there applied, the Connecticut law, which forbade using contraceptives or giving advice on the subject, unduly invaded a zone of marital privacy protected by the Bill of Rights. The Connecticut law did not regulate the manufacture or sale of such products and we expressly left open any question concerning the permissible scope of such legislation. 381 U.S., at 485.
Chapter 272, § 21, of the Massachusetts General Laws makes it a criminal offense to distribute, sell, or give away any drug, medicine, or article for the prevention of conception. Section 21A excepts from this prohibition registered physicians who prescribe for and administer such articles to married persons and registered pharmacists who dispense on medical prescription.
Appellee Baird was indicted for giving away Emko Vaginal Foam, a "medicine and article for the prevention of conception...." The State did not purport to charge or convict Baird for distributing to an unmarried person. No proof was offered as to the marital status of the recipient. The gravamen of the offense charged was that Baird had no license and therefore no authority to distribute to anyone. As the Supreme Judicial Court of Massachusetts noted, the constitutional validity of Baird's conviction rested upon his lack of status as a "distributor and not...the marital status of the recipient." Commonwealth v. Baird, 355 Mass. 746, 753, 247 N.E.2d 574, 578 (1969). The Federal District Court was of the same view.
I assume that a State's interest in the health of its citizens empowers it to restrict to medical channels the distribution of products whose use should be accompanied by medical advice. I also do not doubt that various contraceptive medicines and articles are properly available only on prescription, and I therefore have no difficulty with the Massachusetts court's characterization of the statute at issue here as expressing "a legitimate interest in preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences." Id., at 753, 247 N.E.2d, at 578. Had Baird distributed a supply of the so-called "pill," I would sustain his conviction under this statute. Requiring a prescription to obtain potentially dangerous contraceptive material may place a substantial burden upon the right recognized in Griswold, but that burden is justified by a strong state interest and does not, as did the statute at issue in Griswold, sweep unnecessarily broadly or seek "to achieve its goals by means having a maximum destructive impact upon" a protected relationship. Griswold v. Connecticut, 381 U.S., at 485.
Baird, however, was found guilty of giving away vaginal foam. Inquiry into the validity of this conviction does not come to an end merely because some contraceptives are harmful and their distribution may be restricted. 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.
Neither requirement is met here. Nothing in the record even suggests that the distribution of vaginal foam should be accompanied by medical advice in order to protect the user's health. Nor does the opinion of the Massachusetts court or the State's brief filed here marshal facts demonstrating that the hazards of using vaginal foam are common knowledge or so incontrovertible that they may be noticed judicially. On the contrary, the State acknowledges that Emko is a product widely available without prescription. Given Griswold v. Connecticut, supra, and absent proof of the probable hazards of using vaginal foam, we could not sustain appellee's conviction had it been for selling or giving away foam to a married person. Just as in Griswold, where the right of married persons to use contraceptives was "diluted or adversely affected" by permitting a conviction for giving advice as to its exercise, id., at 481, so here, to sanction a medical restriction upon distribution of a contraceptive not proved hazardous to health would impair the exercise of the constitutional right.
That Baird could not be convicted for distributing Emko to a married person disposes of this case. Assuming, arguendo, that the result would be otherwise had the recipient been unmarried, nothing has been placed in the record to indicate her marital status. The State has maintained that marital status is irrelevant because an unlicensed person cannot legally dispense vaginal foam either to married or unmarried persons. This approach is plainly erroneous and requires the reversal of Baird's conviction; for on the facts of this case, it deprives us of knowing whether Baird was in fact convicted for making a constitutionally protected distribution of Emko to a married person.
The principle established in Stromberg v. California, 283 U.S. 359 (1931), and consistently adhered to is that a conviction cannot stand where the "record fail[s] to prove that the conviction was not founded upon a theory which could not constitutionally support a verdict." Street v. New York, 394 U.S. 576, 586 (1969). To uphold a conviction even "though we cannot know that it did not rest on the invalid constitutional ground...would be to countenance a procedure which would cause a serious impairment of constitutional rights." Williams v. North Carolina, 317 U.S. 287, 292 (1942).
Because this case can be disposed of on the basis of settled constitutional doctrine, I perceive no reason for reaching the novel constitutional question whether a State may restrict or forbid the distribution of contraceptives to the unmarried. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348 (1936) (Brandeis, J., concurring).

#### Notes

* ↑ . Section 21 provides as follows:
* ↑ . The indictment states:
* ↑ . "Had § 21A authorized registered physicians to administer or prescribe contraceptives for unmarried as well as for married persons, the legal position of the petitioner would not have been in any way altered. Not being a physician he would still have been prohibited by § 21 from 'giving away' the contraceptive." 310 F.Supp. 951, 954 (Mass. 1970).
* ↑ . The Food and Drug Administration has made a finding that birth control pills pose possible hazards to health. It therefore restricts distribution and receipt of such products in interstate commerce to properly labeled packages that must be sold pursuant to a prescription. 21 CFR § 130.45. A violation of this law is punishable by imprisonment for one year, a fine of not more than $10,000, or both. 21 U. S. C. §§ 331, 333.