U.S. Supreme Court Eisenstadt v. Baird, 405
U.S. 438 (1972) Eisenstadt v. Baird No. 70-17 Argued November 17-18,
1971 Decided March 22,
1972 405
U.S. 438 APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE FIRST
CIRCUIT Syllabus Appellee attacks his conviction of violating Massachusetts law
for giving a woman a contraceptive foam at the close of his lecture
to students on contraception. That law makes it a felony for anyone
to give away a drug, medicine, instrument, or article for the
prevention of conception except in the case of (1) a registered
physician administering or prescribing it for a married person or
(2) an active registered pharmacist furnishing it to a married
person presenting a registered physician's prescription. The
District Court dismissed appellee's petition for a writ of habeas
corpus. The Court of Appeals vacated the dismissal, holding that
the statute is a prohibition on contraception per se, and
conflicts "with fundamental human rights" under Griswold v.
Connecticut, 381 U. S. 479 .
Appellant, inter alia, argues that appellee lacks standing
to assert the rights of unmarried persons denied access to
contraceptives because he was neither an authorized distributor
under the statute nor a single person unable to obtain
contraceptives. Held: 1. If, as the Court of Appeals held, the statute under which
appellee was convicted is not a health measure, appellee may not be
prevented, because he was not an authorized distributor, from
attacking the statute in its alleged discriminatory application to
potential distributees. Appellee, furthermore, has standing to
assert the rights of unmarried persons denied access to
contraceptives because their ability to obtain them will be
materially impaired by enforcement of the statute. Cf.
Griswold, supra; Barrows v. Jackson, 346 U.
S. 249 . Pp. 405 U. S.
443 -446.

															2. By providing dissimilar treatment for married and unmarried
persons who are similarly situated, the statute violates the Equal
Protection Clause of the Fourteenth Amendment. Pp. 405 U. S.
446 -455.

															(a) The deterrence of fornication, a 90-day misdemeanor under
Massachusetts law, cannot reasonably be regarded as the purpose of
the statute, since the statute is riddled with exceptions making
contraceptives freely available for use in premarital sexual Page 405 U. S. 439 relations and its scope and penalty structure are inconsistent
with that purpose. Pp. 405 U. S.
447 -450.

															(b) Similarly, the protection of public health through the
regulation of the distribution of potentially harmful articles
cannot reasonably be regarded as the purpose of the law, since, if
health were the rationale, the statute would be both discriminatory
and overbroad, and federal and state laws already regulate the
distribution of drugs unsafe for use except under the supervision
of a licensed physician. Pp. 405 U. S.
450 -452.

															(c) Nor can the statute be sustained simply as a prohibition on
contraception per se, for, whatever the rights of the
individual to access to contraceptives may be, the rights must be
the same for the unmarried and the married alike. If, under Griswold, supra, the distribution of contraceptives to
married persons cannot be prohibited, a ban on distribution to
unmarried persons would be equally impermissible, since the
constitutionally protected right of privacy inheres in the
individual, not the marital couple. If, on the other hand, Griswold is no bar to a prohibition on the distribution of
contraceptives, a prohibition limited to unmarried persons would be
underinclusive, and invidiously discriminator. Pp. 405 U. S.
452 -455.

															429 F.2d 1398, affirmed.

															BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, and MARSHALL JJ., joined. DOUGLAS, J., filed a
concurring opinion, post, p. 405 U. S. 455 .
WHITE, J., filed an opinion concurring in the result, in which
BLACKMUN, J., joined, post, p. 405 U. S. 460 .
BURGER, C.J., filed a dissenting opinion, post, p. 405 U. S. 465 .
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case. Page 405 U. S. 440 MR. JUSTICE BRENNAN delivered the opinion of the Court.

															Appellee William Baird was convicted at a bench trial in the
Massachusetts Superior Court under Massachusetts General Laws Ann.,
c. 272, § 21, first, for exhibiting contraceptive articles in the
course of delivering a lecture on contraception to a group of
students at Boston University and, second, for giving a young woman
a package of Emko vaginal foam at the close of his address.
[ Footnote 1 ] The Massachusetts
Supreme Judicial Court unanimously set aside the conviction for
exhibiting contraceptives on the ground that it violated Baird's
First Amendment rights, but, by a four-to-three vote, sustained the
conviction for giving away the foam. Commonwealth v.
Baird, 355 Mass. 746, 247
N.E.2d 574 (1969). Baird subsequently filed a petition for a
federal writ of habeas corpus, which the District Court dismissed. 310 F.
Supp. 951 (1970). 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. 429 F.2d 1398
(1970). This appeal by the Sheriff of Suffolk County,
Massachusetts, followed, and we noted probable jurisdiction. 401
U.S. 934 (1971). We affirm.

															Massachusetts General Laws Ann., c. 272, § 21, under which Baird
was convicted, provides a maximum five-year term of imprisonment
for "whoever . . . gives away . . . any drug, medicine, instrument
or article whatever Page 405 U. S. 441 for the prevention of conception," except as authorized in §
21A. 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. [And a] registered pharmacist actually
engaged in the business of pharmacy may furnish such drugs or
articles to any married person presenting a prescription from a
registered physician. [ Footnote
2 ]"

															As interpreted by the State Supreme Judicial Page 405 U. S. 442 Court, these provisions make it a felony for anyone, other than
a registered physician or pharmacist acting in accordance with the
terms of § 21A, to dispense any article with the intention that it
be used for the prevention of conception. The statutory scheme
distinguishes among three distinct classes of distributees -- first, married persons may obtain contraceptives to
prevent pregnancy, but only from doctors or druggists on
prescription; second, single persons may not obtain
contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives
from anyone to prevent not pregnancy, but the spread of disease.
This construction of state law is, of course, binding on us. E.g., Groppi v. Wisconsin, 400 U.
S. 505 , 400 U. S. 507 (1971).

															The legislative purposes that the statute is meant to serve are
not altogether clear. In Commonwealth v. Bard, supra, the
Supreme Judicial Court noted only the State's interest in
protecting the health of its citizens: "[T]he prohibition in § 21,"
the court declared, "is directly related to" the State's goal
of

															"preventing the distribution of articles designed to prevent
conception which may have undesirable, if not dangerous, physical
consequences."

															355 Mass. at 753, 247 N.E.2d at 578. In a subsequent decision, Sturgis v. Attorney General, 358 Mass. 37, ___, 260
N.E.2d 687 , 690 (1970), the court, however, found "a second and
more compelling ground for upholding the statute" -- namely, to
protect morals through "regulating the private sexual lives of
single persons." [ Footnote 3 ]
The Court of Appeals, for reasons that will Page 405 U. S. 443 appear, did not consider the promotion of health or the
protection of morals through the deterrence of fornication to be
the legislative aim. Instead, the court concluded that the
statutory goal was to limit contraception in and of itself -- a
purpose that the court held conflicted "with fundamental human
rights" under Griswold v. Connecticut, 381 U.
S. 479 (1965), where this Court struck down
Connecticut's prohibition against the use of contraceptives as an
unconstitutional infringement of the right of marital privacy. 429
F.2d at 1401-1402.

															We agree that the goals of deterring premarital sex and
regulating the distribution of potentially harmful articles cannot
reasonably be regarded as legislative aims of §§ 21 and 21A. And we
hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the
Equal Protection Clause of the Fourteenth Amendment. I We address at the outset appellant's contention that Baird does
not have standing to assert the rights of unmarried persons denied
access to contraceptives, because he was neither an authorized
distributor under § 21A nor a single person unable to obtain
contraceptives. There can be no question, of course, that Baird has
sufficient interest in challenging the statute's validity to
satisfy the "case or controversy" requirement of Article III of the
Constitution. [ Footnote 4 ]
Appellant's argument, however, is that Page 405 U. S. 444 this case is governed by the Court's self-imposed rules of
restraint, first, that

															"one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it
might also be taken as applying to other persons or other
situations in which its application might be unconstitutional," United States v. Raines, 362 U. S.
17 , 362 U. S. 21 (1960), and, second, the "closely related corollary that a
litigant may only assert his own constitutional rights or
immunities," id. at 362 U. S. 22 .
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. Appellant urges, therefore,
that Baird's action in giving away the foam fell squarely within
the conduct that the legislature meant and had power to prohibit,
and that Baird should not be allowed to attack the statute in its
application to potential recipients. In any event, appellant
concludes, since Baird was not himself a single person denied
access to contraceptives, he should not be heard to assert their
rights. We cannot agree.

															The Court of Appeals held that the statute under which Baird was
convicted is not a health measure. If that view is correct, we do
not see how Baird may be prevented, because he was neither a doctor
nor a druggist, from attacking the statute in its alleged
discriminatory application to potential distributees. We think,
too, that our self-imposed rule against the assertion of
third-party rights must be relaxed in this case, just as in Griswold v. Connecticut, supra. There, the Executive
Director of the Planned Parenthood League of Connecticut and a
licensed physician who had prescribed contraceptives for married
persons and been convicted as accessories to the crime of using
contraceptives were held to have standing to raise the
constitutional rights of the patients with whom they had a
professional relationship. Page 405 U. S. 445 Appellant here argues that the absence of a professional or
"aiding and abetting" relationship distinguishes this case from Griswold. Yet, as the Court's discussion of prior
authority in Griswold, 381 U.S. at 381 U. S. 481 ,
indicates, the doctor-patient and accessory-principal relationships
are not the only circumstances in which one person has been found
to have standing to assert the rights of another. Indeed, in Barrows v. Jackson, 346 U. S. 249 (1953), a seller of land was entitled to defend against an action
for damages for breach of a racially restrictive covenant on the
ground that enforcement of the covenant violated the equal
protection rights of prospective non-Caucasian purchasers. The
relationship there between the defendant and those whose rights he
sought to assert was not simply the fortuitous connection between a
vendor and potential vendees, but the relationship between one who
acted to protect the rights of a minority and the minority itself.
Sedler, Standing to Assert Constitutional Jus Tertii in
the Supreme Court, 71 Yale L.J. 599, 631 (1962). And so here, the
relationship between Baird and those whose rights he seeks to
assert is not simply that between a distributor and potential
distributees, but that between an advocate of the rights of persons
to obtain contraceptives and those desirous of doing so. The very
point of Baird's giving away the vaginal foam was to challenge the
Massachusetts statute that limited access to contraceptives.

															In any event, more important than the nature of the relationship
between the litigant and those whose rights he seeks to assert is
the impact of the litigation on the third-party interests.
[ Footnote 5 ] In Griswold, 381 U.S. at 381 U. S. 481 ,
the Page 405 U. S. 446 Court stated:

															"The rights of husband and wife, pressed here, are likely to be
diluted or adversely affected unless those rights are considered in
a suit involving those who have this kind of confidential relation
to them."

															A similar situation obtains here. Enforcement of the
Massachusetts statute will materially impair the ability of single
persons to obtain contraceptives. In fact, the case for according
standing to assert third-party rights is stronger in this regard
here than in Griswold, because unmarried persons denied
access to contraceptives in Massachusetts, unlike the users of
contraceptives in Connecticut, are not themselves subject to
prosecution, and, to that extent, are denied a forum in which to
assert their own rights. Cf. NAACP v. Alabama, 357 U. S. 449 (1958); Barrows v. Jackson, supra. [ Footnote 6 ] The Massachusetts statute, unlike the
Connecticut law considered in Griswold, prohibits, not
use, but distribution.

															For the foregoing reasons we hold that Baird, who is now in a
position, and plainly has an adequate incentive, to assert the
rights of unmarried persons denied access to contraceptives, has
standing to do so. We turn to the merits. II The basic principles governing application of the Equal
Protection Clause of the Fourteenth Amendment are familiar. As THE
CHIEF JUSTICE only recently explained in Reed v. Reed, 404 U. S. 71 , 404 U. S. 75 -76
(1971):

															"In applying that clause, this Court has consistently recognized
that the Fourteenth Amendment Page 405 U. S. 447 does not deny to States the power to treat different classes of
persons in different ways. Barbier v. Connolly, 113 U. S.
27 (1885); Lindsley v. Natural Carbonic Gas
Co., 220 U. S. 61 (1911); Railway
Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U. S.
802 (1969). The Equal Protection Clause of that
amendment does, however, deny to States the power to legislate that
different treatment be accorded to persons placed by a statute into
different classes on the basis of criteria wholly unrelated to the
objective of that statute. A classification"

															"must be reasonable, not arbitrary, and must rest upon some
ground of difference having a fair and substantial relation to the
object of the legislation, so that all persons similarly
circumstanced shall be treated alike."

															" Royster Guano Co. v. Virginia, 253 U. S.
412 , 253 U. S. 415 (1920)."

															The question for our determination in this case is whether there
is some ground of difference that rationally explains the different
treatment accorded married and unmarried persons under
Massachusetts General Laws Ann., c. 272, §§ 21 and 21A. [ Footnote 7 ] For the reasons that
follow, we conclude that no such ground exists. First. Section 21 stems from Mass.Stat. 1879, c. 159, §
1, which prohibited, without exception, distribution of articles
intended to be used as contraceptives. In Commonwealth v.
Allison, 227 Mass. 57, 62, 116 N.E. 265, Page 405 U. S. 448 266 (1917), the Massachusetts Supreme Judicial Court explained
that the law's

															"plain purpose is to protect purity, to preserve chastity, to
encourage continence and self-restraint, to defend the sanctity of
the home, and thus to engender in the State and nation a virile and
virtuous race of men and women."

															Although the State clearly abandoned that purpose with the
enactment of § 21A, at least insofar as the illicit sexual
activities of married persons are concerned, see n 3, supra, the court
reiterated in Sturgis v. Attorney General, supra, that the
object of the legislation is to discourage premarital sexual
intercourse. Conceding that the State could, consistently with the
Equal Protection Clause, regard the problems of extramarital and
premarital sexual relations as "[e]vils . . . of different
dimensions and proportions, requiring different remedies," Williamson v. Lee Optical Co., 348 U.
S. 483 , 348 U. S. 489 (1955), we cannot agree that the deterrence of premarital sex may
reasonably be regarded as the purpose of the Massachusetts law.

															It 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 General Laws Ann., c. 272, § 18. Aside from the
scheme of values that assumption would attribute to the State, it
is abundantly clear that the effect of the ban on distribution of
contraceptives to unmarried persons has, at best, a marginal
relation to the proffered objective. What Mr. Justice Goldberg said
in Griswold v. Connecticut, supra, at 381 U. S. 498 (concurring opinion), concerning the effect of Connecticut's
prohibition on the use of contraceptives in discouraging
extramarital sexual relations, is equally applicable here.

															"The rationality of this justification is dubious, particularly
in light of the admitted widespread availability to all persons in
the State of Connecticut, unmarried as well as married, of birth
control devices for the Page 405 U. S. 449 prevention of disease, as distinguished from the prevention of
conception." See also id. at 381 U. S.
505 -507 (WHITE, J., concurring in judgment). Like
Connecticut's laws, §§ 21 and 21A do not at all regulate the
distribution of contraceptives when they are to be used to prevent,
not pregnancy, but the spread of disease. Commonwealth v.
Corbett, 307 Mass. 7, 29 N.E.2d 151 (1940), cited with
approval in Commonwealth v. Baird, 355 Mass. at 754, 247
N.E.2d at 579. Nor, in making contraceptives available to married
persons without regard to their intended use, does Massachusetts
attempt to deter married persons from engaging in illicit sexual
relations with unmarried persons. Even on the assumption that the
fear of pregnancy operates as a deterrent to fornication, the
Massachusetts statute is thus so riddled with exceptions that
deterrence of premarital sex cannot reasonably be regarded as its
aim.

															Moreover, §§ 21 and 21A, on their face, have a dubious relation
to the State's criminal prohibition on fornication. As the Court of
Appeals explained,

															"Fornication is a misdemeanor [in Massachusetts], entailing a
thirty dollar fine, or three months in jail. Massachusetts General
Laws Ann. c. 272 § 1. Violation of the present statute is a felony,
punishable by five years in prison. We find it hard to believe that
the legislature adopted a statute carrying a five-year penalty for
its possible, obviously by no means fully effective, deterrence of
the commission of a ninety-day misdemeanor."

															429 F.2d at 1401. Even conceding the legislature a full measure
of discretion in fashioning means to prevent fornication, and
recognizing that the State may seek to deter prohibited conduct by
punishing more severely those who facilitate than those who
actually engage in its commission, we, like the Court of Appeals,
cannot believe that, in this instance, Massachusetts has chosen to
expose the aider and abetter who simply gives away a contraceptive
to Page 405 U. S. 450 20 times the 90-day sentence of the offender himself.
The very terms of the State's criminal statutes, coupled with the de minimis effect of §§ 21 and 21A in deterring
fornication, thus compel the conclusion that such deterrence cannot
reasonably be taken as the purpose of the ban on distribution of
contraceptives to unmarried persons. Second. Section 21A was added to the Massachusetts
General Laws by Stat. 1966, c. 265, § 1. The Supreme Judicial
Court, in Commonwealth v. Baird, supra, held that the
purpose of the amendment was to serve the health needs of the
community by regulating the distribution of potentially harmful
articles. It is plain that Massachusetts had no such purpose in
mind before the enactment of § 21A. As the Court of Appeals
remarked,

															"Consistent with the fact that the statute was contained in a
chapter dealing with 'Crimes Against Chastity, Morality, Decency
and Good Order,' it was cast only in terms of morals. A physician
was forbidden to prescribe contraceptives even when needed for the
protection of health. Commonwealth v. Gardner, 1938, 300
Mass. 372, 15 N.E.2d 222."

															429 F.2d at 1401. Nor did the Court of Appeals

															"believe that the legislature [in enacting § 21A] suddenly
reversed its field and developed an interest in health. Rather, it
merely made what it thought to be the precise accommodation
necessary to escape the Griswold ruling." Ibid. Again, we must agree with the Court of Appeals. If health were
the rationale of § 21A, the statute would be both discriminatory
and overbroad. Dissenting in Commonwealth v. Baird, 355
Mass. at 758, 247 N.E.2d at 581, Justices Whittemore and Cutter
stated that they saw

															"in § 21 and § 21A, read together, no public health purpose. If
there is need to have a physician prescribe (and a pharmacist
dispense) contraceptives, that need is as great for unmarried
persons as for married persons. Page 405 U. S. 451 The Court of Appeals added:"

															"If the prohibition [on distribution to unmarried persons] . . .
is to be taken to mean that the same physician who can prescribe
for married patients does not have sufficient skill to protect the
health of patients who lack a marriage certificate, or who may be
currently divorced, it is illogical to the point of
irrationality."

															429 F.2d at 1401. [ Footnote
8 ] Furthermore, we must join the Court of Appeals in noting
that not all contraceptives are potentially dangerous. [ Footnote 9 ] As a result, if the
Massachusetts statute were a health measure, it would not only
invidiously discriminate against the unmarried, but also be
overbroad with respect to the married, a fact that the Supreme
Judicial Court itself seems to have conceded in Sturgis v.
Attorney General, 358 Mass. at ___, 260 N.E.2d at 690, where
it noted that

															"it may well be that certain contraceptive medication and
devices constitute no hazard to health, in which event it could be
argued that the statute swept too broadly in its prohibition."

															"In this posture," as the Court of Page 405 U. S. 452 Appeals concluded,

															"it is impossible to think of the statute as intended as a
health measure for the unmarried, and it is almost as difficult to
think of it as so intended even as to the married."

															429 F.2d at 1401.

															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.' If
that was the Legislature's goal, § 21 is not required"

															in view of the federal and state laws already regulating the distribution of harmful drugs. See Federal
Food, Drug, and Cosmetic Act, § 503, 52 Stat. 1051, as amended, 21
U.S.C. § 353; Mas.Gen.Laws Ann., c. 94, § 187A, as amended. We
conclude, accordingly, that, despite the statute's superficial
earmarks as a health measure, health, on the face of the statute,
may no more reasonably be regarded as its purpose than the
deterrence of premarital sexual relations. Third. If the Massachusetts statute cannot be upheld as
a deterrent to fornication or as a health measure, may it,
nevertheless, be sustained simply as a prohibition on
contraception? The Court of Appeals analysis

															"led inevitably to the conclusion that, so far as morals are
concerned, it is contraceptives per se that are considered
immoral -- to the extent that Griswold will permit such a
declaration."

															429 F.2d at 1401-1402. The Court of Appeals went on to hold, id. at 1402:

															"To say that contraceptives are immoral as such, and are to be
forbidden to unmarried persons who will nevertheless persist in
having intercourse, means that such persons must risk for
themselves an unwanted pregnancy, for the child, illegitimacy,
and, Page 405 U. S. 453 for society, a possible obligation of support. Such a view of
morality is not only the very mirror image of sensible legislation;
we consider that it conflicts with fundamental human rights. In the
absence of demonstrated harm, we hold it is beyond the competency
of the state."

															We need not, and do not, however, decide that important question
in this case, because, whatever the rights of the individual to
access to contraceptives may be, the rights must be the same for
the unmarried and the married alike.

															If, under Griswold, the distribution of contraceptives
to married persons cannot be prohibited, a ban on distribution to
unmarried persons would be equally impermissible. It is true that,
in Griswold, the right of privacy in question inhered in
the marital relationship. 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. 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. See Stanley v. Georgia, 394 U.
S. 557 (1969). [ Footnote 10 ] See also Skinner v.
Oklahoma , Page 405 U. S. 454 316 U. S. 535 (1942); Jacobson v. Massachusetts, 197 U. S.
11 , 197 U. S. 29 (1905).

															On the other hand, if Griswold is no bar to a
prohibition on the distribution of contraceptives, the State could
not, consistently with the Equal Protection Clause, outlaw
distribution to unmarried, but not to married, persons. In each
case, the evil, as perceived by the State, would be identical, and
the underinclusion would be invidious. Mr. Justice Jackson,
concurring in Railway Express Agency v. New York, 336 U. S. 106 , 336 U. S.
112 -113 (1949), made the point:

															"The framers of the Constitution knew, and we should not forget
today, that there is no more effective practical guaranty against
arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon a minority must
be imposed generally. Conversely, nothing opens the door to
arbitrary action so effectively as to allow those officials to pick
and choose only a few to whom they will apply legislation, and thus
to escape the political retribution that might be visited upon them
if larger numbers were affected. Courts can take no better measure
to assure that laws will be just than to require that laws be equal
in operation."

															Although Mr. Justice Jackson's comments had reference to
administrative regulations, the principle he affirmed has equal
application to the legislation here. We hold that, by providing
dissimilar treatment for married and unmarried persons who are
similarly situated, Massachusetts Page 405 U. S. 455 General Laws Ann., c. 272, §§ 21 and 21A, violate the Equal
Protection Clause. The judgment of the Court of Appeals is Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.

															[ Footnote 1 ]

															The Court of Appeals below described the recipient of the foam
as "an unmarried adult woman." 429 F.2d 1398, 1399 (1970). However,
there is no evidence in the record about her marital status.

															[ Footnote 2 ]

															Section 21 provides in full:

															"Except as provided in section twenty-one A, whoever sells,
lends, gives away, exhibits or offers to sell, lend or give away an
instrument or other article intended to be used for self-abuse, or
any drug, medicine, instrument or article whatever for the
prevention of conception or for causing unlawful abortion, or
advertises the same, or writes, prints, or causes to be written or
printed a card, circular, book, pamphlet, advertisement or notice
of any kind stating when, where, how, of whom or by what means such
article can be purchased or obtained, or manufactures or makes any
such article shall be punished by imprisonment in the state prison
for not more than five years or in jail or the house of correction
for not more than two and one half years or by a fine of not less
than one hundred nor more than one thousand dollars."

															Section 21A provides in full:

															"A registered physician may administer to or prescribe for any
married person drugs or articles intended for the prevention of
pregnancy or conception. A registered pharmacist actually engaged
in the business of pharmacy may furnish such drugs or articles to
any married person presenting a prescription from a registered
physician."

															"A public health agency, a registered nurse, or a maternity
health clinic operated by or in an accredited hospital may furnish
information to any married person as to where professional advice
regarding such drugs or articles may be lawfully obtained."

															"This section shall not be construed as affecting the provisions
of sections twenty and twenty-one relative to prohibition of
advertising of drugs or articles intended for the prevention of
pregnancy or conception; nor shall this section be construed so as
to permit the sale or dispensing of such drugs or articles by means
of any vending machine or similar device."

															[ Footnote 3 ]

															Appellant suggests that the purpose of the Massachusetts statute
is to promote marital fidelity, as well as to discourage premarital
sex. Under § 21A, however, contraceptives may be made available to
married persons without regard to whether they are living with
their spouses or the uses to which the contraceptives are to be
put. Plainly, the legislation has no deterrent effect on
extramarital sexual relations.

															[ Footnote 4 ]

															This factor decisively distinguishes Tileston v.
Ullman, 318 U. S. 44 (1943), where the Court held that a physician lacked standing to
bring an action for declaratory relief to challenge, on behalf of
his patients, the Connecticut law prohibiting the use of
contraceptives. The patients were fully able to bring their own
action. Underlying the decision was the concern that "the standards
of case or controversy' in Article III of the Constitution
[not] become blurred," Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 481 (1965) -- a problem that is not at all involved in this
case. [ Footnote 5 ]

															Indeed, in First Amendment cases, we have relaxed our rules of
standing without regard to the relationship between the litigant
and those whose rights he seeks to assert precisely because
application of those rules would have an intolerable inhibitory
effect on freedom of speech. E.g., Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 97 -98
(1940). See United States v. Raines, 362 U. S.
17 , 362 U. S. 22 (1960).

															[ Footnote 6 ] See also Prince v. Massachusetts, 321 U.
S. 158 (1944), where a custodian, in violation of state
law, furnished a child with magazines to distribute on the streets.
The Court there implicitly held that the custodian had standing to
assert alleged freedom of religion and equal protection rights of
the child that were threatened in the very litigation before the
Court, and that the child had no effective way of asserting
herself.

															[ Footnote 7 ]

															Of course, if we were to conclude that the Massachusetts statute
impinges upon fundamental freedoms under Griswold, the
statutory classification would have to be not merely rationally
related to a valid public purpose, but necessary to the achievement
of a compelling state interest. E.g., Shapiro v. Thompson, 394 U. S. 618 (1969); Loving v. Virginia, 388 U. S.
1 (1967). But just as in Reed v. Reed, 404 U. S. 71 (1971), we do not have to address the statute's validity under that
test, because the law fails to satisfy even the more lenient equal
protection standard.

															[ Footnote 8 ]

															Appellant insists that the unmarried have no right to engage in
sexual intercourse, and hence no health interest in contraception
that needs to be served. The short answer to this contention is
that the same devices, the distribution of which the State purports
to regulate when their asserted purpose is to forestall pregnancy,
are available without any controls whatsoever so long as their
asserted purpose is to prevent the spread of disease. 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.

															[ Footnote 9 ]

															The Court of Appeals stated, 429 F.2d at 1401:

															"[W]e must take notice that not all contraceptive devices risk
'undesirable . . . [or] dangerous physical consequences.' It is 200
years since Casanova recorded the ubiquitous article which, perhaps
because of the birthplace of its inventor, he termed a 'redingote
anglais.' The reputed nationality of the condom has now changed,
but we have never heard criticism of it on the side of health. We
cannot think that the legislature was unaware of it, or could have
thought that it needed a medical prescription. We believe the same
could be said of certain other products."

															[ Footnote 10 ]

															In Stanley, 394 U.S. at 394 U. S. 564 ,
the Court stated:

															"[A]lso fundamental is the right to be free, except in very
limited circumstances, from unwanted governmental intrusions into
one's privacy."

															"'The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the
significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They
sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against the
Government, the right to be let alone -- the most comprehensive of
rights and the right most valued by civilized man.' Olmstead v.
United States, 277 U. S. 438 , 277 U. S.
478 (1928) (Brandeis, J., dissenting)."

															" See Griswold v. Connecticut, supra; cf. NAACP v.
Alabama, 357 U. S. 449 , 357 U. S.
462 (1958)."

															MR. JUSTICE DOUGLAS, concurring.

															While I join the opinion of the Court, there is for me a
narrower ground for affirming the Court of Appeals. This to me is a
simple First Amendment case, that amendment being applicable to the
States by reason of the Fourteenth. Stromberg v.
California, 283 U. S. 359 .

															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.
As to license taxes on First Amendment rights we said in Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 11 :

															"A license tax certainly does not acquire constitutional
validity because it classifies the privileges protected by the
First Amendment along with the wares and merchandise of hucksters
and peddlers, and treats them all alike. Such equality in treatment
does not save the ordinance. Freedom of press, freedom of speech,
freedom of religion are in a preferred position."

															We held in Thomas v. Collins, 323 U.
S. 516 , that a person speaking at a labor union rally
could not be required to register or obtain a license:

															"As a matter of principle a requirement of registration in order
to make a public speech would seem generally incompatible with an
exercise of the rights Page 405 U. S. 456 of free speech and free assembly. Lawful public assemblies,
involving no element of grave and immediate danger to an interest
the State is entitled to protect, are not instruments of harm which
require previous identification of the speakers. And the right
either of workmen or of unions under these conditions to assemble
and discuss their own affairs is as fully protected by the
Constitution as the right of businessmen, farmers, educators,
political party members or others to assemble and discuss their
affairs and to enlist the support of others."

															" * * * *" ". . . If one who solicits support for the cause of labor may be
required to register as a condition to the exercise of his right to
make a public speech, so may he who seeks to rally support for any
social, business, religious or political cause. We think a
requirement that one must register before he undertakes to make a
public speech to enlist support for a lawful movement is quite
incompatible with the requirements of the First Amendment." Id. at 323 U. S. 539 , 323 U. S.
540 .

															Baird addressed an audience of students and faculty at Boston
University on the subject of birth control and overpopulation. His
address was approximately one hour in length, and consisted of a
discussion of various contraceptive devices displayed by means of
diagrams on two demonstration boards, as well as a display of
contraceptive devices in their original packages. In addition,
Baird spoke of the respective merits of various contraceptive
devices; overpopulation in the world; crises throughout the world
due to overpopulation; the large number of abortions performed on
unwed mothers; and quack abortionists and the potential harm to
women resulting from abortions performed by quack abortionists.
Baird also urged members of the audience to petition the
Massachusetts Legislature and to make known their feelings Page 405 U. S. 457 with regard to birth control laws in order to bring about a
change in the laws. At the close of the address, Baird invited
members of the audience to come to the stage and help themselves to
the contraceptive articles. We do not know how many accepted
Baird's invitation. We only know that Baird personally handed one
woman a package of Emko Vaginal Foam. He was then arrested and
indicted (1) for exhibiting contraceptive devices and (2) for
giving one such device away. The conviction for the first offense
was reversed, the Supreme Judicial Court of Massachusetts holding
that the display of the articles was essential to a graphic
representation of the lecture. But the conviction for the giving
away of one article was sustained. 355 Mass. 746, 247
N.E.2d 574 . The case reaches us by federal habeas corpus.

															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. A State may not "contract the
spectrum of available knowledge." Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 482 . See also Thomas v. Collins, supra; Pierce v. Society of
Sisters, 268 U. S. 510 ; Meyer v. Nebraska, 262 U. S. 390 .
However noxious Baird's ideas might have been to the authorities,
the freedom to learn about them, fully to comprehend their scope
and portent, and to weigh them against the tenets of the
"conventional wisdom," may not be abridged. Terminiello v.
Chicago, 337 U. S. 1 . Our
system of government requires that we have faith in the ability of
the individual to decide wisely, if only he is fully apprised of
the merits of a controversy.

															"Freedom of discussion, if it would fulfill its historic
function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of
society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88 , 310 U. S.
102 .

															The teachings of Baird and those of Galileo might be Page 405 U. S. 458 of a different order, but the suppression of either is equally
repugnant.

															As Milton said in the Areopagitica,"Give me the liberty to know,
to utter, and to argue freely according to conscience, above all
liberties."

															It is said that only Baird's conduct is involved, and United
States v. O'Brien, 391 U. S. 367 , is
cited. That case involved a registrant under the Selective Service
Act burning his Selective Service draft card. When prosecuted for
that act, he defended his conduct as "symbolic speech." The Court
held it was not.

															Whatever may be thought of that decision on the merits,
[ Footnote 2/1 ] O'Brien is
not controlling here. The distinction between "speech" and
"conduct" is a valid one insofar as it helps to determine in a
particular case whether the purpose of the activity was to aid in
the communication of ideas and whether the form of the
communication so interferes with the rights of others that
reasonable regulations may be imposed. [ Footnote 2/2 ] See Public Utilities Comm'n v.
Pollak, 343 U. S. 451 , 343 U. S. 467 (DOUGLAS, J., dissenting). Page 405 U. S. 459 Thus, excessive noise might well be "conduct" -- a form of
pollution -- which can be made subject to precise, narrowly drawn
regulations. See Adderley v. Florida, 385 U. S.
39 , 385 U. S. 54 (DOUGLAS, J., dissenting). But

															"this Court has repeatedly stated, [First Amendment] rights are
not confined to verbal expression. They embrace appropriate types
of action. . . ." Brown v. Louisiana, 383 U. S. 131 , 383 U. S.
141 -142.

															Baird gave an hour's lecture on birth control, and, as an aid to
understanding the ideas which he was propagating, he handed out one
sample of one of the devices whose use he was endorsing. A person
giving a lecture on coyote-getters would certainly improve his
teaching technique if he passed one out to the audience; and he
would be protected in doing so, unless, of course, the device was
loaded and ready to explode, killing or injuring people. The same
holds true in my mind for mousetraps, spray guns, or any other
article not dangerous per se on which speakers give
educational lectures.

															It is irrelevant to the application of these principles that
Baird went beyond the giving of information about birth control and
advocated the use of contraceptive articles. The First Amendment
protects the opportunity to persuade to action whether that action
be unwise or immoral, or whether the speech incites to action. See, e.g., Brandenburg v. Ohio, 395 U.
S. 444 ; Edwards v. South Carolina, 372 U.
S. 229 ; Terminiello v. Chicago, supra. In this case, there was not even incitement to action. [ Footnote 2/3 ] There is no evidence or
finding that Baird intended that the young lady take the foam home
with her when he handed it to her, or that she would not have
examined the Page 405 U. S. 460 article and then returned it to Baird, had he not been placed
under arrest immediately upon handing the article over. [ Footnote 2/4 ]

															First Amendment rights are not limited to verbal expression.
[ Footnote 2/5 ] The right to
petition often involves the right to walk. The right of assembly
may mean pushing or jostling. Picketing involves physical activity,
as well as a display of a sign. A sit-in can be a quiet, dignified
protest that has First Amendment protection even though no speech
is involved, as we held in Brown v. Louisiana, supra. Putting contraceptives on display is certainly an aid to speech and
discussion. Handing an article under discussion to a member of the
audience is a technique known to all teachers, and is commonly
used. A handout may be on such a scale as to smack of a vendor's
marketing scheme. But passing one article to an audience is merely
a projection of the visual aid, and should be a permissible adjunct
of free speech. Baird was not making a prescription, nor purporting
to give medical advice. Handing out the article was not even a
suggestion that the lady use it. At most, it suggested that she
become familiar with the product line.

															I do not see how we can have a Society of the Dialogue, which
the First Amendment envisages, if time-honored teaching techniques
are barred to those who give educational lectures.

															[ Footnote 2/1 ]

															I have earlier expressed my reasons for believing that the O'Brien decision was not consistent with First Amendment
rights. See Brandenburg v. Ohio, 395 U.
S. 444 , 395 U. S. 455 (concurring opinion).

															[ Footnote 2/2 ]

															In Giboney v. Empire Storage Co., 336 U.
S. 490 , the Court upheld a state court injunction
against peaceful picketing carried on in violation of a state
"anti-restraint-of-trade" law. Giboney, however, is easily
distinguished from the present case. Under the circumstances there
present,

															"There was clear danger, imminent and immediate, that, unless
restrained, appellants would succeed in making [state antitrust]
policy a dead letter. . . . They were exercising their economic
power, together with that of their allies, to compel Empire to
abide by union, rather than by state, regulation of trade." Id. at 336 U. S. 503 (footnote omitted; emphasis supplied). There is no such coercion in
the instant case, nor is there a similar frustration of state
policy, see text at 405
U.S. 438 fn2/4|>n. 4, infra. For an analysis of the
state policies underlying the Massachusetts statute which Baird was
convicted of having violated, see Dienes, The Progeny of
Comstockery -- Birth Control Laws Return to Court, 21 Am.U.L.Rev.
1, 3-44 (1971).

															[ Footnote 2/3 ]

															Even under the restrictive meaning which the Court has given the
First Amendment, as applied to the States by the Fourteenth,
advocacy of law violation is permissible "except where such
advocacy is directed to inciting or producing imminent lawless
action, and is likely to incite or produce such action." Brandenburg v. Ohio, supra, 405
U.S. 438 fn2/1|>n. 1, at 395 U. S.
447 .

															[ Footnote 2/4 ]

															This factor alone would seem to distinguish O'Brien,
supra, as that case turned on the Court's judgment that
O'Brien's "conduct" frustrated a substantial governmental
interest.

															[ Footnote 2/5 ]

															For a partial collection of cases involving action that comes
under First Amendment protection see Brandenburg v. Ohio,
supra, 405
U.S. 438 fn2/1|>n. 1, at 405 U. S.
455 -456 (concurring opinion).

															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 Page 405 U. S. 461 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 381 U. S.
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. [ Footnote 3/1 ] Page 405 U. S. 462 Appellee Baird was indicted for giving away Emko Vaginal Foam, a
"medicine and article for the prevention of conception. . . ."
[ Footnote 3/2 ] 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. [ Footnote 3/3 ] Page 405 U. S. 463 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. [ Footnote 3/4 ]
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 381 U. S.
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 Page 405 U. S. 464 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 381 U. S. 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 Page 405 U. S. 465 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 , 394 U. S. 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 , 317 U. S. 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 , 297 U. S.
345 -348 (1936) (Brandeis, J., concurring).

															[ Footnote 3/1 ]

															Section 21 provides as follows:

															"Except as provided in section twenty-one A, whoever sells,
lends, gives away, exhibits or offers to sell, lend or give away an
instrument or other article intended to be used for self-abuse, or
any drug, medicine; instrument or article whatever for the
prevention of conception or for causing unlawful abortion, or
advertises the same, or writes, prints, or causes to be written or
printed a card; circular, book, pamphlet, advertisement or notice
of any kind stating when, where, how, of whom or by what means such
article can be purchased or obtained, or manufactures or makes any
such article shall be punished by imprisonment in the state prison
for not more than five years or in jail or the house of correction
for not more than two and one half years or by a fine of not less
than one hundred nor more than one thousand dollars."

															Section 21A makes these exceptions:

															"A registered physician may administer to or prescribe for any
married person drugs or articles intended for the prevention of
pregnancy or conception. A registered pharmacist actually engaged
in the business of pharmacy may furnish such drugs or articles to
any married person presenting a prescription from a registered
physician."

															"A public health agency, a registered nurse, or a maternity
health clinic operated by or in an accredited hospital may furnish
information to any married person as to where professional advice
regarding such drugs or articles may be lawfully obtained."

															"This section shall not be construed as affecting the provisions
of sections twenty and twenty-one relative to prohibition of
advertising of drugs or articles intended for the prevention of
pregnancy or conception; nor shall this section be construed so as
to permit the sale or dispensing of such drugs or articles by means
of any vending machine or similar device."

															[ Footnote 3/2 ]

															The indictment states:

															"The Jurors for the Commonwealth of Massachusetts on their oath
present that William R. Baird, on the sixth day of April, in the
year of our Lord one thousand nine hundred and sixty-seven, did
unlawfully give away a certain medicine and article for the
prevention of conception, to wit: Emko Vaginal Foam, the giving
away of the said medicine and article by the said William R. Baird
not being in accordance with, or authorized or permitted by, the
provisions of Section 21A of Chapter 272, of the General Laws of
the said Commonwealth."

															[ Footnote 3/3 ]

															"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).

															[ Footnote 3/4 ]

															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.

															MR. CHIEF JUSTICE BURGER, dissenting.

															The judgment of the Supreme Judicial Court of Massachusetts in
sustaining appellee's conviction for dispensing medicinal material
without a license seems eminently correct to me, and I would not
disturb it. It is undisputed that appellee is not a physician or
pharmacist, and was prohibited under Massachusetts law from
dispensing contraceptives to anyone, regardless of marital status.
To my mind, the validity of this restriction on dispensing
medicinal substances is the only issue before the Court, Page 405 U. S. 466 and appellee has no standing to challenge that part of the
statute restricting the persons to whom contraceptives are
available. There is no need to labor this point, however, for
everyone seems to agree that, if Massachusetts has validly
required, as a health measure, that all contraceptives be dispensed
by a physician or pursuant to a physician's prescription, then the
statutory distinction based on marital status has no bearing on
this case. United States v. Raines, 362 U. S.
17 , 362 U. S. 21 (1960).

															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. MR. JUSTICE WHITE acknowledges the
statutory concern with the protection of health, but finds the
restriction on distributors overly broad because the State has
failed to adduce facts showing the health hazards of the particular
substance dispensed by appellee as distinguished from other
contraceptives. MR. JUSTICE DOUGLAS' concurring opinion does not
directly challenge the power of Massachusetts to prohibit laymen
from dispensing contraceptives, but considers that appellee, rather
than dispensing the substance, was resorting to a "time-honored
teaching technique" by utilizing a "visual aid" as an adjunct to
his protected speech. I am puzzled by this third characterization
of the case. If the suggestion is that appellee was merely
displaying the contraceptive material without relinquishing his
ownership of it, then the argument must be that the prosecution
failed to prove that appellee had "given away" the contraceptive
material. But appellee does not challenge the sufficiency of the
evidence, and himself summarizes the record as showing that, "at
the close of his lecture, he invited members of the audience . . .
to come and help themselves." On the other hand, if the concurring
opinion means that the First Amendment protects the
distribution Page 405 U. S. 467 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. See,
e.g., United States v. O'Brien, 391 U.
S. 367 , 391 U. S. 376 (1968); Cox v. Louisiana, 379 U.
S. 536 , 379 U. S. 555 (1965); Giboney v. Empire Storage Co., 336 U.
S. 490 , 336 U. S. 502 (1949).

															My disagreement with the opinion of the Court and that of MR.
JUSTICE WHITE goes far beyond mere puzzlement, however, for these
opinions seriously invade the constitutional prerogatives of the
States, and regrettably hark back to the heyday of substantive due
process.

															In affirming appellee's conviction, the highest tribunal in
Massachusetts held that the statutory requirement that
contraceptives be dispensed only through medical channels served
the legitimate interest of the State in protecting the health of
its citizens. The Court today blithely hurdles this authoritative
state pronouncement and concludes that the statute has no such
purpose. Three basic arguments are advanced: first, since the
distribution of contraceptives was prohibited as a moral matter in
Massachusetts prior to 1966, it is impossible to believe that the
legislature was concerned with health when it lifted the complete
ban, but insisted on medical supervision. I fail to see why the
historical predominance of an unacceptable legislative purpose
makes incredible the emergence of a new and valid one. [ Footnote 4/1 ] See McGowan Page 405 U. S. 468 v. Maryland, 366 U. S. 420 , 366 U. S.
445 -449 (1961). The second argument, finding its origin
in a dissenting opinion in the Supreme Judicial Court of
Massachusetts, rejects a health purpose because,

															"[i]f there is need to have a physician prescribe . . .
contraceptives, that need is as great for unmarried persons as for
married persons."

															355 Mass. 746, 758, 247
N.E.2d 574 , 581. This argument confuses the validity of the
restriction on distributors with the validity of the further
restriction on distributees, a part of the statute not properly
before the Court. Assuming the legislature too broadly restricted
the class of persons who could obtain contraceptives, it hardly
follows that it saw no need to protect the health of all persons to
whom they are made available. Third, the Court sees no health
purpose underlying the restriction on distributors, because other
state and federal laws regulate the distribution of harmful drugs.
I know of no rule that all enactments relating to a particular
purpose must be neatly consolidated in one package in the statute
books, for, if so, the United States Code will not pass muster. I
am unable to draw any inference as to legislative purpose from the
fact that the restriction on dispensing contraceptives was not
codified with other statutory provisions regulating the
distribution of medicinal substances. And the existence of
nonconflicting, nonpreemptive federal laws is simply without
significance in judging the validity or purpose of a state law on
the same subject matter.

															It is possible, of course, that some members of the
Massachusetts Legislature desired contraceptives to be dispensed
only through medical channels in order to minimize their use,
rather than to protect the health of their users, but I do not
think it is the proper function of this Court to dismiss, as
dubious, a state court's explication of a state statute absent
overwhelming and irrefutable reasons for doing so. Page 405 U. S. 469 MR. JUSTICE WHITE, while acknowledging a valid legislative
purpose of protecting health, concludes that the State lacks power
to regulate the distribution of the contraceptive involved in this
case as a means of protecting health. [ Footnote 4/2 ] The opinion grants that appellee's
conviction would be valid if he had given away a potentially
harmful substance, but rejects the State's placing this particular
contraceptive in that category. 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. Moreover, a statutory
classification is not invalid

															"simply because some innocent articles or transactions may be
found within the proscribed class. The inquiry must be whether,
considering the end in view, the statute passes the bounds of
reason and assumes the character of a merely arbitrary fiat." Purity Extract & Tonic Co. v. Lynch, 226 U.
S. 192 , 226 U. S. 204 (1912). But since the Massachusetts statute seeks to protect health
by regulating contraceptives, the opinion invokes Griswold v.
Connecticut, 381 U. S. 479 (1965), and puts the statutory classification to an unprecedented
test: either the record must contain evidence supporting the
classification or the health hazards of the particular
contraceptive must be judicially noticeable. This is indeed a novel
constitutional doctrine, and, not surprisingly, no authority is
cited for it.

															Since the potential harmfulness of this particular medicinal
substance has never been placed in issue in the Page 405 U. S. 470 state or federal courts, the State can hardly be faulted for its
failure to build a record on this point. And it totally mystifies
me why, in the absence of some evidence in the record, the factual
underpinnings of the statutory classification must be
"incontrovertible," or a matter of "common knowledge."

															The actual hazards of introducing a particular foreign substance
into the human body are frequently controverted, and I cannot
believe that unanimity of expert opinion is a prerequisite to a
State's exercise of its police power, no matter what the subject
matter of the regulation. Even assuming no present dispute among
medical authorities, we cannot ignore that it has become
commonplace for a drug or food additive to be universally regarded
as harmless on one day and to be condemned as perilous on the next.
It is inappropriate for this Court to overrule a legislative
classification by relying on the present consensus among leading
authorities. The commands of the Constitution cannot fluctuate with
the shifting tides of scientific opinion.

															Even if it were conclusively established once and for all that
the product dispensed by appellee is not actually or potentially
dangerous in the somatic sense, I would still be unable to agree
that the restriction on dispensing it falls outside the State's
power to regulate in the area of health. The choice of a means of
birth control, although a highly personal matter, is also a health
matter in a very real sense, and I see nothing arbitrary in a
requirement of medical supervision. [ Footnote 4/3 ] It is generally acknowledged that
contraceptives vary in degree of effectiveness Page 405 U. S. 471 and potential harmfulness. [ Footnote
4/4 ] There may be compelling health reasons for certain women
to choose the most effective means of birth control available, no
matter how harmless the less effective alternatives. [ Footnote 4/5 ] Others might be advised not
to use a highly effective means of contraception because of their
peculiar susceptibility to an adverse side effect. [ Footnote 4/6 ] Moreover, there may be information
known to the medical profession that a particular brand of
contraceptive is to be preferred or avoided, or that it has not
been adequately tested. Nonetheless, the concurring opinion would
hold, as a constitutional matter, that a State must allow someone
without medical training the same power to distribute this
medicinal substance as is enjoyed by a physician.

															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. I
see nothing in the Fourteenth Amendment or any other part of the
Constitution Page 405 U. S. 472 that even vaguely suggests that these medicinal forms of
contraceptives must be available in the open market. I do not
challenge Griswold v. Connecticut, supra, despite its
tenuous moorings to the text of the Constitution, but I cannot view
it as controlling authority for this case. The Court was there
confronted with a statute flatly prohibiting the use of
contraceptives, not one regulating their distribution. I simply
cannot believe that the limitation on the class of lawful
distributors has significantly impaired the right to use
contraceptives in Massachusetts. By relying on Griswold in
the present context, the Court has passed beyond the penumbras of
the specific guarantees into the uncircumscribed area of personal
predilections.

															The need for dissemination of information on birth control is
not impinged in the slightest by limiting the distribution of
medicinal substances to medical and pharmaceutical channels, as
Massachusetts has done by statute. 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. I am
constrained to suggest that, if the Constitution can be strained to
invalidate the Massachusetts statute underlying appellee's
conviction, we could quite as well employ it for the protection of
a "curbstone quack," reminiscent of the "medicine man" of times
past, who attracted a crowd of the curious with a soapbox lecture
and then plied them with "free samples" of some unproved remedy.
Massachusetts presumably outlawed such activities long ago, but
today's holding seems to invite their return.

															[ Footnote 4/1 ]

															The Court places some reliance on the opinion of the Supreme
Judicial Court of Massachusetts in Sturgis v. Attorney
General, 358 Mass. ___, 260
N.E.2d 687 (1970), to show that § 21A is intended to regulate
morals, rather than public health. In Sturgis, the state
court rejected a challenge by a group of physicians to that part of
the statute prohibiting the distribution of contraceptives to
unmarried women. The court accepted the State's interest in
"regulating the private sexual lives of single persons," that
interest being expressed in the restriction on distributees. Id. at ___, 260 N.E.2d at 690. The purpose of the
restriction on distributors was not in issue.

															[ Footnote 4/2 ]

															The opinion of the Court states, in passing, that, if the
restriction on distributors were, in fact, intended as a health
measure, it would be overly broad. Since the Court does not develop
this argument in detail, my response is addressed solely to the
reasoning in the opinion of MR. JUSTICE WHITE, concurring in the
result.

															[ Footnote 4/3 ]

															For general discussions of the need for medical supervision
before choosing a means of birth control, see Manual of
Family Planning and Contraceptive Practice 47-53 (M. Calderone
ed.1970); Advanced Concepts in Contraception 22-24 (F. Hoffman
& R. Kleinman ed.1968).

															[ Footnote 4/4 ] See U.S. Commission on Population Growth and the
American Future, Population and the American Future, pt. II, pp.
38-39 (Mar. 16, 1972); Manual of Family Planning, supra, at 268-274, 316, 320, 342, 346; Jaffe; Toward the Reduction of
Unwanted Pregnancy, 174 Science 119, 121 (Oct. 8, 1971); G. Hardin,
Birth Control 128 (1970); E. Havemann, Birth Control (1967). The
contraceptive substance dispensed by appellee, vaginal foam, is
thought to be between 70% and 80% effective. See Jaffe, supra, at 121; Dingle & Tietze, Comparative Study of
Three Contraceptive Methods, 85 Amer.J.Obst. & Gyn. 1012, 1021
(1963). The birth control pill, by contrast, is thought to be
better than 99% effective. See Havemann, Birth Control, supra. [ Footnote 4/5 ] See Perkin, Assessment of Reproductive Risk in
Nonpregnant Women -- A Guide to Establishing Priorities for
Contraceptive Care, 101 Amer.J.Obst. & Gyn. 709 (1968).

															[ Footnote 4/6 ] See Manual of Family Planning, supra, at 301,
332-333, 336-340.

Summary: The Supreme Court ruled that a Massachusetts law prohibiting the distribution of contraceptives to unmarried people was unconstitutional, violating the Equal Protection Clause of the Fourteenth Amendment. The law treated married and unmarried people differently despite being similarly situated in terms of access to contraception. The court rejected arguments that the law aimed to deter fornication or protect public health, finding it discriminatory and inconsistent in scope. The court also held that the appellee had standing to challenge the law on behalf of unmarried persons denied access to contraceptives, as their ability to obtain them would be impaired by the law's enforcement.