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." 283 First Amendment rights are not limited to verbal expression. Roy Lucas, a prominent abortion rights lawyer, assessed the case as "among the most influential in the United States during the entire [20th] century by any manner or means of measurement. Commonwealth v. Baird, 355 Mass. U.S., at 485 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.
U.S. 438, 440] 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.
[ A similar situation obtains here. U.S. 438, 461] the marital status of the recipient." Planned Parenthood Federation of America, Inc.; by Roger P. Stokey for the Planned Parenthood League of Massachusetts; by Melvin L. Wulf for the American Civil Liberties Union et al.
So far as I am aware, this Court has never before challenged the police power of a State to protect the public from the risks of possibly spurious and deleterious substances sold within its borders. U.S. 359 . The significance of the decision was apparent a year later when it was quoted six times in the Roe v. The gravamen of the offense charged was that Baird had no license and therefore no authority to distribute to anyone. ] In Giboney v. Empire Storage Co., 3 The Federal District Court was of the same view. A physician was forbidden to prescribe contraceptives even when needed for the protection of health. ; Meyer v. Nebraska, [405 355 Mass., at 753, 247 N. E. 2d, at 578. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. 951 (1970). It is true that in Griswold the right of privacy in question inhered in the marital relationship. It is revealing, I think, that those portions of the majority and concurring opinions rejecting the statutory limitation on distributors rely on no particular provision of the Constitution. 318 21 CFR 130.45. U.S. 229 Footnote 4 We affirm. of all articles "not dangerous per se" when the distribution is coupled with some form of speech, then I must confess that I have misread certain cases in the area. ] "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. But if further proof that the Massachusetts statute is not a health measure is necessary, the argument of Justice Spiegel, who also dissented in Commonwealth v. Baird, 355 Mass., at 759, 247 N. E. 2d, at 582, is conclusive: "It is at best a strained conception to say that the Legislature intended to prevent the distribution of articles `which may have undesirable, if not dangerous, physical consequences.' 381 ] See also Prince v. Massachusetts, , is cited. , the U.S. 438, 442] 4 746, 247 N. E. 2d 574 (1969). (1942). "In this posture," as the Court of Not being a physician he would still have been prohibited by 21 from `giving away' the contraceptive." ] Appellant suggests that the purpose of the Massachusetts statute is to promote marital fidelity as well as to discourage premarital sex. Here, appellant contends that Baird's conviction rests on the restriction in 21A on permissible distributors and that that restriction serves a valid health interest independent of the limitation on authorized distributees. NAACP v. Alabama, 381 The appellee has succeeded, it seems, in cloaking his activities in some new permutation of the First Amendment although his conviction rests in fact and law on dispensing a medicinal substance without a license. United States v. Raines,
See Brandenburg v. Ohio, U.S. 438, 473]. The contraceptive substance dispensed by appellee, vaginal foam, is thought to be between 70% and 80% effective.
U.S. 449 362 It is inconceivable that the need for health controls varies with the purpose for which the contraceptive is to be used when the physical act in all cases is one and the same. A violation of this law is punishable by imprisonment for one year, a fine of not more than $10,000, or both.
The Court of Appeals went on to hold, id., at 1402: If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. U.S. 131, 141
. On appeal, however, the Court of Appeals for the First Circuit vacated the dismissal and remanded the action with directions to grant the writ discharging Baird. Handing an article under discussion to a member of the audience is a technique known to all teachers and is commonly used. 319 Under 21A, "[a] registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. . While Brennan's ruling conceded that states may prohibit sex outside of marriage, later cases have interpreted its most famous sentence -- "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." Eisenstadt v. Baird, 405 U.S. 438 (1972) Eisenstadt v. Baird. 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. 429 F.2d, at 1401. 7, 29 N. E. 2d 151 (1940), cited with approval in Commonwealth v. Baird, 355 Mass., at 754, 247 N. E. 2d, at 579. : Had Baird not "given away" a sample of one of the devices whose use he advocated, there could be no question about the protection afforded him by the First Amendment. [ However, the SJC affirmed the conviction under contraceptive distribution laws. U.S. 479
The opinion of the Court today brushes aside appellee's status as an unlicensed layman by concluding that the Massachusetts Legislature was not really concerned with the protection of health when it passed this statute. Joseph D. Tydings argued the cause for appellee. . As interpreted by the State Supreme Judicial Chief Justice Burger dissented alone, arguing that there were no conclusive findings available to the Court on the health risks of vaginal foam since that issue had not been presented to the lower courts, and thus no basis for the Court's finding that the Massachusetts statute served no public health interest. . Section 21A was added to the Massachusetts General Laws by Stat. Held: BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, and MARSHALL, JJ., joined. Burger also held that the Massachusetts statute independently advanced the state's interest in ensuring couples receive informed medical advice on contraceptives. 6 U.S. 490 This construction of state law is, of course, binding on us. [405
379 Commonwealth v. Corbett, 307 Mass. [ See McGowan Moreover, a statutory classification is not invalid, Since the potential harmfulness of this particular medicinal substance has never been placed in issue in the Footnote 2 Footnote 6 The Court was there confronted with a statute flatly prohibiting the use of contraceptives, not one regulating their distribution.