EISENSTADT v.

BAIRD 1
EISENSTADT v. BAIRD, 405 U.S. 438 (1972)
405 U.S. 438
EISENSTADT, SHERIFF v. BAIRD
APPEAL FROM THE UNITED STATES OURT OF APPEALS FOR THE FIRST IRUIT
N!. 70"17.
A#$%&' N!v&()&# 17"18, 1971
D&*+'&' M,#*- 22, 1972
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 prescriing it for a married person or (!) an active registered
pharmacist furnishing it to a married person presenting a registered physician"s prescription. The #istrict
$ourt dismissed appellee"s petition for a writ of haeas corpus. The $ourt of Appeals vacated the
dismissal, holding that the statute is a prohiition on contraception per se and conflicts %with fundamental
human rights% under &riswold v. $onnecticut, '(1 ).*. +,- . Appellant, inter alia, argues that appellee
lacks standing to assert the rights of unmarried persons denied access to contraceptives ecause he
was neither an authori.ed distriutor under the statute nor a single person unale to otain
contraceptives. /eld0
1. 1f, as the $ourt of Appeals held, the statute under which appellee was convicted is not a health
measure, appellee may not e prevented, ecause he was not an authori.ed distriutor, from attacking
the statute in its alleged discriminatory application to potential distriutees. Appellee, furthermore, has
standing to assert the rights of unmarried persons denied access to contraceptives ecause their aility
to otain them will e materially impaired y enforcement of the statute. $f. &riswold, supra2 3arrows v.
4ackson, '+5 ).*. !+- . 6p. ++'7++5.
!. 3y providing dissimilar treatment for married and unmarried persons who are similarly situated, the
statute violates the 89ual 6rotection $lause of the :ourteenth Amendment. 6p. ++57+;;.
(a) The deterrence of fornication, a -<7day misdemeanor under Massachusetts law, cannot reasonaly
e regarded as the purpose of the statute, since the statute is riddled with exceptions making
contraceptives freely availale for use in premarital sexual =+<; ).*. +'(, +'-> relations and its scope
and penalty structure are inconsistent with that purpose. 6p. ++,7+;<.
() *imilarly, the protection of pulic health through the regulation of the distriution of potentially harmful
articles cannot reasonaly e regarded as the purpose of the law, since, if health were the rationale, the
statute would e oth discriminatory and overroad, and federal and state laws already regulate the
distriution of drugs unsafe for use except under the supervision of a licensed physician. 6p. +;<7+;!.
(c) ?or can the statute e sustained simply as a prohiition on contraception per se, for whatever the
rights of the individual to access to contraceptives may e, the rights must e the same for the unmarried
and the married alike. 1f under &riswold, supra, the distriution of contraceptives to married persons
cannot e prohiited, a an on distriution to unmarried persons would e e9ually impermissile, since
the constitutionally protected right of privacy inheres in the individual, not the marital couple. 1f, on the
other hand, &riswold is no ar to a prohiition on the distriution of contraceptives, a prohiition limited to
unmarried persons would e underinclusive and invidiously discriminatory. 6p. +;!7+;;.
EISENSTADT v. BAIRD 2
+!- :.!d 1'-(, affirmed.
3@8??A?, 4., delivered the opinion of the $ourt, in which #A)&BA*, *T8CA@T, and MA@*/ABB, 44.,
Doined. #A)&BA*, 4., filed a concurring opinion, post, p. +;;. C/1T8, 4., filed an opinion concurring in
the result, in which 3BA$EM)?, 4., Doined, post, p. +5<. 3)@&8@, $. 4., filed a dissenting opinion, post,
p. +5;. 6AC8BB and @8/?F)1*T, 44., took no part in the consideration or decision of the case.
4oseph @. ?olan, *pecial Assistant Attorney &eneral of Massachusetts, argued the cause for appellant.
Cith him on the rief were @oert /. Fuinn, Attorney &eneral, 4ohn 4. 1rwin, 4r., and @uth 1. Arams,
Assistant Attorneys &eneral, and &arrett /. 3yrne.
4oseph #. Tydings argued the cause for appellee. Cith him on the riefs was 4oseph 4. 3alliro.
3riefs of amici curiae urging affirmance were filed y /arriet :. 6ilpel and ?ancy :. Cechsler for the =+<;
).*. +'(, ++<> 6lanned 6arenthood :ederation of America, 1nc.2 y @oger 6. *tokey for the 6lanned
6arenthood Beague of Massachusetts2 y Melvin B. Culf for the American $ivil Bierties )nion et al.2 and
y *ylvia *. 8llison for /uman @ights for Comen, 1nc.
MR. .USTIE BRENNAN '&/+v&#&' 0-& !1+2+!2 !3 0-& !%#0.
Appellee Cilliam 3aird was convicted at a ench trial in the Massachusetts *uperior $ourt under
Massachusetts &eneral Baws Ann., c. !,!, !1, first, for exhiiting contraceptive articles in the course of
delivering a lecture on contraception to a group of students at 3oston )niversity and, second, for giving a
young woman a package of 8mko vaginal foam at the close of his address. 1 The Massachusetts
*upreme 4udicial $ourt unanimously set aside the conviction for exhiiting contraceptives on the ground
that it violated 3aird"s :irst Amendment rights, ut y a four7to7three vote sustained the conviction for
giving away the foam. $ommonwealth v. 3aird, ';; Mass. ,+5, !+, ?. 8. !d ;,+ (1-5-). 3aird
suse9uently filed a petition for a federal writ of haeas corpus, which the #istrict $ourt dismissed. '1< :.
*upp. -;1 (1-,<). An appeal, however, the $ourt of Appeals for the :irst $ircuit vacated the dismissal
and remanded the action with directions to grant the writ discharging 3aird. +!- :.!d 1'-( (1-,<). This
appeal y the *heriff of *uffolk $ounty, Massachusetts, followed, and we noted proale Durisdiction. +<1
).*. -'+ (1-,1). Ce affirm.
Massachusetts &eneral Baws Ann., c. !,!, !1, under which 3aird was convicted, provides a maximum
five7year term of imprisonment for %whoever . . . gives away . . . any drug, medicine, instrument or article
whatever =+<; ).*. +'(, ++1> for the prevention of conception,% except as authori.ed in !1A. )nder
!1A, %=a> registered physician may administer to or prescrie for any married person drugs or articles
intended for the prevention of pregnancy or conception. =And a> registered pharmacist actually engaged
in the usiness of pharmacy may furnish such drugs or articles to any married person presenting a
prescription from a registered physician.% ! As interpreted y the *tate *upreme 4udicial =+<; ).*. +'(,
++!> $ourt, these provisions make it a felony for anyone, other than a registered physician or
pharmacist acting in accordance with the terms of !1A, to dispense any article with the intention that it e
used for the prevention of conception. The statutory scheme distinguishes among three distinct classes
of distriutees 7 first, married persons may otain contraceptives to prevent pregnancy, ut only from
doctors or druggists on prescription2 second, single persons may not otain contraceptives from anyone
to prevent pregnancy2 and, third, married or single persons may otain contraceptives from anyone to
prevent, not pregnancy, ut the spread of disease. This construction of state law is, of course, inding on
us. 8. g., &roppi v. Cisconsin, +<< ).*. ;<;, ;<, (1-,1).
The legislative purposes that the statute is meant to serve are not altogether clear. 1n $ommonwealth v.
3aird, supra, the *upreme 4udicial $ourt noted only the *tate"s interest in protecting the health of its
citi.ens0 %=T>he prohiition in !1,% the court declared, %is directly related to% the *tate"s goal of %preventing
EISENSTADT v. BAIRD 3
the distriution of articles designed to prevent conception which may have undesirale, if not dangerous,
physical conse9uences.% ';; Mass., at ,;', !+, ?. 8. !d, at ;,(. 1n a suse9uent decision, *turgis v.
Attorney &eneral, ';( Mass. ',, GGG, !5< ?. 8. !d 5(,, 5-< (1-,<), the court, however, found %a second
and more compelling ground for upholding the statute% 7 namely, to protect morals through %regulating the
private sexual lives of single persons.% ' The $ourt of Appeals, for reasons that will =+<; ).*. +'(, ++'>
appear, did not consider the promotion of health or the protection of morals through the deterrence of
fornication to e the legislative aim. 1nstead, the court concluded that the statutory goal was to limit
contraception in and of itself 7 a purpose that the court held conflicted %with fundamental human rights%
under &riswold v. $onnecticut, '(1 ).*. +,- (1-5;), where this $ourt struck down $onnecticut"s
prohiition against the use of contraceptives as an unconstitutional infringement of the right of marital
privacy. +!- :.!d, at 1+<171+<!.
Ce agree that the goals of deterring premarital sex and regulating the distriution of potentially harmful
articles cannot reasonaly e regarded as legislative aims of !1 and !1A. And we hold that the statute,
viewed as a prohiition on contraception per se, violates the rights of single persons under the 89ual
6rotection $lause of the :ourteenth Amendment.
1
Ce address at the outset appellant"s contention that 3aird does not have standing to assert the rights of
unmarried persons denied access to contraceptives ecause he was neither an authori.ed distriutor
under !1A nor a single person unale to otain contraceptives. There can e no 9uestion, of course, that
3aird has sufficient interest in challenging the statute"s validity to satisfy the %case or controversy%
re9uirement of Article 111 of the $onstitution. + Appellant"s argument, however, is that =+<; ).*. +'(, +++>
this case is governed y the $ourt"s self7imposed rules of restraint, first, that %one to whom application of
a statute is constitutional will not e heard to attack the statute on the ground that impliedly it might also
e taken as applying to other persons or other situations in which its application might e
unconstitutional,% )nited *tates v. @aines, '5! ).*. 1,, !1 (1-5<), and, second, the %closely related
corollary that a litigant may only assert his own constitutional rights or immunities,% id., at !!. /ere,
appellant contends that 3aird"s conviction rests on the restriction in !1A on permissile distriutors and
that that restriction serves a valid health interest independent of the limitation on authori.ed distriutees.
Appellant urges, therefore, that 3aird"s action in giving away the foam fell s9uarely within the conduct that
the legislature meant and had power to prohiit and that 3aird should not e allowed to attack the statute
in its application to potential recipients. 1n any event, appellant concludes, since 3aird was not himself a
single person denied access to contraceptives, he should not e heard to assert their rights. Ce cannot
agree.
The $ourt of Appeals held that the statute under which 3aird was convicted is not a health measure. 1f
that view is correct, we do not see how 3aird may e prevented, ecause he was neither a doctor nor a
druggist, from attacking the statute in its alleged discriminatory application to potential distriutees. Ce
think, too, that our self7imposed rule against the assertion of third7party rights must e relaxed in this case
Dust as in &riswold v. $onnecticut, supra. There the 8xecutive #irector of the 6lanned 6arenthood
Beague of $onnecticut and a licensed physician who had prescried contraceptives for married persons
and een 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. =+<; ).*.
+'(, ++;> Appellant here argues that the asence of a professional or aiding7and7aetting relationship
distinguishes this case from &riswold. Het, as the $ourt"s discussion of prior authority in &riswold, '(1
).*., at +(1 , indicates, the doctor7patient and accessory7principal relationships are not the only
circumstances in which one person has een found to have standing to assert the rights of another.
1ndeed, in 3arrows v. 4ackson, '+5 ).*. !+- (1-;'), a seller of land was entitled to defend against an
action for damages for reach of a racially restrictive covenant on the ground that enforcement of the
EISENSTADT v. BAIRD 4
covenant violated the e9ual protection rights of prospective non7$aucasian purchasers. The relationship
there etween the defendant and those whose rights he sought to assert was not simply the fortuitous
connection etween a vendor and potential vendees, ut the relationship etween one who acted to
protect the rights of a minority and the minority itself. *edler, *tanding to Assert $onstitutional 4us Tertii in
the *upreme $ourt, ,1 Hale B. 4. ;--, 5'1 (1-5!). And so here the relationship etween 3aird and those
whose rights he seeks to assert is not simply that etween a distriutor and potential distriutees, ut that
etween an advocate of the rights of persons to otain contraceptives and those desirous of doing so.
The very point of 3aird"s giving away the vaginal foam was to challenge the Massachusetts statute that
limited access to contraceptives.
1n any event, more important than the nature of the relationship etween the litigant and those whose
rights he seeks to assert is the impact of the litigation on the third7party interests. ; 1n &riswold, '(1 ).*.,
at +(1 , the =+<; ).*. +'(, ++5> $ourt stated0 %The rights of husand and wife, pressed here, are likely
to e 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 otains here. 8nforcement of the
Massachusetts statute will materially impair the aility of single persons to otain contraceptives. 1n fact,
the case for according standing to assert third7party rights is stronger in this regard here than in &riswold
ecause unmarried persons denied access to contraceptives in Massachusetts, unlike the users of
contraceptives in $onnecticut, are not themselves suDect to prosecution and, to that extent, are denied a
forum in which to assert their own rights. $f. ?AA$6 v. Alaama, ';, ).*. ++- (1-;()2 3arrows v.
4ackson, supra. 5 The Massachusetts statute, unlike the $onnecticut law considered in &riswold,
prohiits, not use, ut distriution.
:or the foregoing reasons we hold that 3aird, who is now in a position, and plainly has an ade9uate
incentive, to assert the rights of unmarried persons denied access to contraceptives, has standing to do
so. Ce turn to the merits.
11
The asic principles governing application of the 89ual 6rotection $lause of the :ourteenth Amendment
are familiar. A* T/8 $/18: 4)*T1$8 only recently explained in @eed v. @eed, +<+ ).*. ,1, ,; 7,5
(1-,1)0
%1n applying that clause, this $ourt has consistently recogni.ed that the :ourteenth Amendment =+<; ).*.
+'(, ++,> does not deny to *tates the power to treat different classes of persons in different ways.
3arier v. $onnolly, 11' ).*. !, (1((;)2 Bindsley v. ?atural $aronic &as $o., !!< ).*. 51 (1-11)2
@ailway 8xpress Agency v. ?ew Hork, ''5 ).*. 1<5 (1-+-)2 Mc#onald v. 3oard of 8lection
$ommissioners, '-+ ).*. (<! (1-5-). The 89ual 6rotection $lause of that amendment does, however,
deny to *tates the power to legislate that different treatment e accorded to persons placed y a statute
into different classes on the asis of criteria wholly unrelated to the oDective of that statute. A
classification Imust e reasonale, not aritrary, and must rest upon some ground of difference having a
fair and sustantial relation to the oDect of the legislation, so that all persons similarly circumstanced shall
e treated alike." @oyster &uano $o. v. Jirginia, !;' ).*. +1!, +1; (1-!<).%
The 9uestion 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
&eneral Baws Ann., c. !,!, !1 and !1A. , :or the reasons that follow, we conclude that no such ground
exists.
:irst. *ection !1 stems from Mass. *tat. 1(,-, c. 1;-, 1, which prohiited, without exception, distriution
of articles intended to e used as contraceptives. 1n $ommonwealth v. Allison, !!, Mass. ;,, 5!, 115 ?.
8. !5;, =+<; ).*. +'(, ++(> !55 (1-1,), the Massachusetts *upreme 4udicial $ourt explained that the
law"s %plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to
EISENSTADT v. BAIRD 5
defend the sanctity of the home, and thus to engender in the *tate and nation a virile and virtuous race of
men and women.% Although the *tate clearly aandoned that purpose with the enactment of !1A, at least
insofar as the illicit sexual activities of married persons are concerned, see n. ', supra, the court
reiterated in *turgis v. Attorney &eneral, supra, that the oDect of the legislation is to discourage
premarital sexual intercourse. $onceding that the *tate could, consistently with the 89ual 6rotection
$lause, regard the prolems of extramarital and premarital sexual relations as %=e>vils . . . of different
dimensions and proportions, re9uiring different remedies,% Cilliamson v. Bee Aptical $o., '+( ).*. +(',
+(- (1-;;), we cannot agree that the deterrence of premarital sex may reasonaly e regarded as the
purpose of the Massachusetts law.
1t would e plainly unreasonale to assume that Massachusetts has prescried pregnancy and the irth
of an unwanted child as punishment for fornication, which is a misdemeanor under Massachusetts
&eneral Baws Ann., c. !,!, 1(. Aside from the scheme of values that assumption would attriute to the
*tate, it is aundantly clear that the effect of the an on distriution of contraceptives to unmarried
persons has at est a marginal relation to the proffered oDective. Chat Mr. 4ustice &olderg said in
&riswold v. $onnecticut, supra, at +-( (concurring opinion), concerning the effect of $onnecticut"s
prohiition on the use of contraceptives in discouraging extramarital sexual relations, is e9ually applicale
here. %The rationality of this Dustification is duious, particularly in light of the admitted widespread
availaility to all persons in the *tate of $onnecticut, unmarried as well as married, of irth7control
devices for the =+<; ).*. +'(, ++-> prevention of disease, as distinguished from the prevention of
conception.% *ee also id., at ;<;7;<, (C/1T8, 4., concurring in Dudgment). Bike $onnecticut"s laws, !1
and !1A do not at all regulate the distriution of contraceptives when they are to e used to prevent, not
pregnancy, ut the spread of disease. $ommonwealth v. $orett, '<, Mass. ,, !- ?. 8. !d 1;1 (1-+<),
cited with approval in $ommonwealth v. 3aird, ';; Mass., at ,;+, !+, ?. 8. !d, at ;,-. ?or, in making
contraceptives availale 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. 8ven 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 reasonaly e
regarded as its aim.
Moreover, !1 and !1A on their face have a duious relation to the *tate"s criminal prohiition on
fornication. As the $ourt of Appeals explained, %:ornication is a misdemeanor =in Massachusetts>,
entailing a thirty dollar fine, or three months in Dail. Massachusetts &eneral Baws Ann. c. !,! 1(. Jiolation
of the present statute is a felony, punishale y five years in prison. Ce find it hard to elieve that the
legislature adopted a statute carrying a five7year penalty for its possile, oviously y no means fully
effective, deterrence of the commission of a ninety7day misdemeanor.% +!- :.!d, at 1+<1. 8ven
conceding the legislature a full measure of discretion in fashioning means to prevent fornication, and
recogni.ing that the *tate may seek to deter prohiited conduct y punishing more severely those who
facilitate than those who actually engage in its commission, we, like the $ourt of Appeals, cannot elieve
that in this instance Massachusetts has chosen to expose the aider and aetter who simply gives away a
contraceptive to =+<; ).*. +'(, +;<> !< times the -<7day sentence of the offender himself. The very
terms of the *tate"s criminal statutes, coupled with the de minimis effect of !1 and !1A in deterring
fornication, thus compel the conclusion that such deterrence cannot reasonaly e taken as the purpose
of the an on distriution of contraceptives to unmarried persons.
*econd. *ection !1A was added to the Massachusetts &eneral Baws y *tat. 1-55, c. !5;, 1. The
*upreme 4udicial $ourt in $ommonwealth v. 3aird, supra, held that the purpose of the amendment was
to serve the health needs of the community y regulating the distriution of potentially harmful articles. 1t
is plain that Massachusetts had no such purpose in mind efore the enactment of !1A. As the $ourt of
Appeals remarked, %$onsistent with the fact that the statute was contained in a chapter dealing with
EISENSTADT v. BAIRD 6
I$rimes Against $hastity, Morality, #ecency and &ood Arder," it was cast only in terms of morals. A
physician was foridden to prescrie contraceptives even when needed for the protection of health.
$ommonwealth v. &ardner, 1-'(, '<< Mass. ',!, 1; ?. 8. !d !!!.% +!- :.!d, at 1+<1. ?or did the $ourt
of Appeals %elieve that the legislature =in enacting !1A> suddenly reversed its field and developed an
interest in health. @ather, it merely made what it thought to e the precise accommodation necessary to
escape the &riswold ruling.% 1id.
Again, we must agree with the $ourt of Appeals. 1f health were the rationale of !1A, the statute would e
oth discriminatory and overroad. #issenting in $ommonwealth v. 3aird, ';; Mass., at ,;(, !+, ?. 8.
!d, at ;(1, 4ustices Chittemore and $utter stated that they saw %in !1 and !1A, read together, no pulic
health purpose. 1f there is need to have a physician prescrie (and a pharmacist dispense)
contraceptives, that need is as great for unmarried persons as for married persons.% =+<; ).*. +'(, +;1>
The $ourt of Appeals added0 %1f the prohiition =on distriution to unmarried persons> . . . is to e taken to
mean that the same physician who can prescrie for married patients does not have sufficient skill to
protect the health of patients who lack a marriage certificate, or who may e currently divorced, it is
illogical to the point of irrationality.% +!- :.!d, at 1+<1. ( :urthermore, we must Doin the $ourt of Appeals in
noting that not all contraceptives are potentially dangerous. - As a result, if the Massachusetts statute
were a health measure, it would not only invidiously discriminate against the unmarried, ut also e
overroad with respect to the married, a fact that the *upreme 4udicial $ourt itself seems to have
conceded in *turgis v. Attorney &eneral, ';( Mass., at GGG, !5< ?. 8. !d, at 5-<, where it noted that %it
may well e that certain contraceptive medication and devices constitute no ha.ard to health, in which
event it could e argued that the statute swept too roadly in its prohiition.% %1n this posture,% as the $ourt
of =+<; ).*. +'(, +;!> Appeals concluded, %it is impossile 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.%
+!- :.!d, at 1+<1.
3ut if further proof that the Massachusetts statute is not a health measure is necessary, the argument of
4ustice *piegel, who also dissented in $ommonwealth v. 3aird, ';; Mass., at ,;-, !+, ?. 8. !d, at ;(!,
is conclusive0 %1t is at est a strained conception to say that the Begislature intended to prevent the
distriution of articles Iwhich may have undesirale, if not dangerous, physical conse9uences." 1f that was
the Begislature"s goal, !1 is not re9uired% in view of the federal and state laws already regulating the
distriution of harmful drugs. *ee :ederal :ood, #rug, and $osmetic Act, ;<', ;! *tat. 1<;1, as
amended, !1 ).*.$. ';'2 Mass. &en. Baws Ann., c. -+, 1(,A, as amended. Ce conclude, accordingly,
that, despite the statute"s superficial earmarks as a health measure, health, on the face of the statute,
may no more reasonaly e regarded as its purpose than the deterrence of premarital sexual relations.
Third. 1f the Massachusetts statute cannot e upheld as a deterrent to fornication or as a health measure,
may it, nevertheless, e sustained simply as a prohiition on contraceptionK The $ourt of Appeals
analysis %led inevitaly to the conclusion that, so far as morals are concerned, it is contraceptives per se
that are considered immoral 7 to the extent that &riswold will permit such a declaration.% +!- :.!d, at
1+<171+<!. The $ourt of Appeals went on to hold, id., at 1+<!0
%To say that contraceptives are immoral as such, and are to e foridden 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 =+<; ).*. +'(, +;'> for society, a possile oligation
of support. *uch a view of morality is not only the very mirror image of sensile legislation2 we consider
that it conflicts with fundamental human rights. 1n the asence of demonstrated harm, we hold it is
eyond the competency of the state.%
EISENSTADT v. BAIRD 7
Ce need not and do not, however, decide that important 9uestion in this case ecause, whatever the
rights of the individual to access to contraceptives may e, the rights must e the same for the unmarried
and the married alike.
1f under &riswold the distriution of contraceptives to married persons cannot e prohiited, a an on
distriution to unmarried persons would e e9ually impermissile. 1t is true that in &riswold the right of
privacy in 9uestion inhered in the marital relationship. Het the marital couple is not an independent entity
with a mind and heart of its own, ut an association of two individuals each with a separate intellectual
and emotional makeup. 1f the right of privacy means anything, it is the right of the individual, married or
single, to e free from unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to ear or eget a child. *ee *tanley v. &eorgia, '-+ ).*. ;;, (1-5-). 1<
*ee also *kinner v. Aklahoma, =+<; ).*. +'(, +;+> '15 ).*. ;'; (1-+!)2 4acoson v. Massachusetts,
1-, ).*. 11, !- (1-<;).
An the other hand, if &riswold is no ar to a prohiition on the distriution of contraceptives, the *tate
could not, consistently with the 89ual 6rotection $lause, outlaw distriution to unmarried ut not to
married persons. 1n each case the evil, as perceived y the *tate, would e identical, and the
underinclusion would e invidious. Mr. 4ustice 4ackson, concurring in @ailway 8xpress Agency v. ?ew
Hork, ''5 ).*. 1<5, 11! 711' (1-+-), made the point0
%The framers of the $onstitution knew, and we should not forget today, that there is no more effective
practical guaranty against aritrary and unreasonale government than to re9uire that the principles of
law which officials would impose upon a minority must e imposed generally. $onversely, nothing opens
the door to aritrary 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 retriution that might e visited upon them if
larger numers were affected. $ourts can take no etter measure to assure that laws will e Dust than to
re9uire that laws e e9ual in operation.%
Although Mr. 4ustice 4ackson"s comments had reference to administrative regulations, the principle he
affirmed has e9ual application to the legislation here. Ce hold that y providing dissimilar treatment for
married and unmarried persons who are similarly situated, Massachusetts =+<; ).*. +'(, +;;> &eneral
Baws Ann., c. !,!, !1 and !1A, violate the 89ual 6rotection $lause. The Dudgment of the $ourt of
Appeals is
Affirmed.