Eisenstadt v. Baird and Birth Control for Unmarried People

In the spring of 1967 a crowd of students packed a hall at Boston University to hear a lecture on birth control. The speaker, Bill Baird, was an activist from New York who had made it his business to break the country's contraception laws in public. Students had invited him because Massachusetts made it a crime to give birth control to anyone who was not married, and they wanted the law tested. Baird talked about contraception and overpopulation, held up devices and explained how they worked. At the end of the lecture he did the thing he had come to do. He handed a package of contraceptive foam to a young unmarried woman in the audience. Police were waiting. That small package would travel all the way to the Supreme Court.

In short: After Griswold v. Connecticut protected married couples' use of birth control in 1965, Massachusetts still made it a crime to give contraceptives to unmarried people. Bill Baird deliberately broke that law at a Boston University lecture in 1967, went to jail, and in 1972 the Supreme Court ruled that the state could not treat married and unmarried people differently on this question.

The gap Griswold left open

To see why Baird's foam mattered, start with what the Supreme Court had decided two years earlier. In Griswold v. Connecticut, in 1965, the Court struck down a Connecticut law that banned the use of contraception. But the opinion's reasoning leaned heavily on marriage. Justice Douglas wrote about the privacy of the marital bedroom and the intimacy of the marriage relationship. The ruling left open what a state could do to unmarried people.

Massachusetts had its own version of the old nineteenth-century laws. As amended in 1966, after Griswold, it allowed married people to get contraceptives, but only through a doctor's prescription or a pharmacist filling one. Giving contraceptives to unmarried people was a crime regardless of who did it. Violators faced up to five years in prison.

In other words, Massachusetts had adjusted its law just enough to comply with Griswold, and no further. A married woman in Boston could get a diaphragm from her doctor. Her unmarried sister could not, and anyone who helped her could go to prison.

A man who wanted to be arrested

Bill Baird was not a lawyer, a doctor or an elected official. He had worked for a pharmaceutical company and later described seeing a woman die after attempting her own abortion, an experience he said turned him toward activism. By the mid-1960s he was driving a van around poor neighborhoods in New York offering information about birth control and getting arrested for it.

The students at Boston University knew his reputation. They invited him because they wanted a test case and he was willing to be the defendant. The lecture was in April 1967. The act that led to his arrest had two parts, and the distinction became important. He displayed contraceptive devices during the talk, and at the end he gave a package of vaginal foam to an unmarried woman.

He was convicted under the Massachusetts law. The Massachusetts Supreme Judicial Court threw out the conviction for exhibiting the devices, holding that it was protected speech, but upheld the conviction for giving away the foam. Baird was sentenced to three months and served his time in the Charles Street Jail in Boston.

The sheriff whose name is on the case

Here is a small strange fact that tells you something about how cases get their names. Thomas Eisenstadt, whose name is on one of the most important privacy rulings in American history, was the sheriff of Suffolk County. He ran the jail where Baird was held. He did not write the law, did not arrest Baird, and did not prosecute him.

His name is on the case because of how Baird got to federal court. After losing in the state courts, Baird filed a petition for a writ of habeas corpus, the ancient legal tool that requires whoever is holding a prisoner to justify the detention. The defendant in a habeas petition is the jailer. So the case became Eisenstadt v. Baird, with the sheriff defending the state's law because he held the key.

A federal district court denied Baird's petition. The federal appeals court for the First Circuit reversed, ruling in his favor, and the state took the case to the Supreme Court. It was argued in November 1971.

Equal protection, not just privacy

The Supreme Court decided Eisenstadt v. Baird on March 22, 1972. The vote was 6 to 1. Only seven justices took part; the two newest members of the Court, Lewis Powell and William Rehnquist, had joined too late to participate. Justice William Brennan wrote the main opinion. Chief Justice Warren Burger dissented.

What makes Eisenstadt interesting as law is that it was not decided mainly as a privacy case. Brennan used the equal protection clause of the Fourteenth Amendment, which forbids states from treating similarly situated people differently without an adequate reason.

So the question became: what was Massachusetts's reason for treating married and unmarried people differently? The state offered several. It said the law discouraged premarital sex. Brennan pointed out that this made little sense: it was hard to believe the state had chosen an unwanted pregnancy as the penalty for sex outside marriage, and the law did little to deter it anyway, since contraceptives meant to prevent disease were available to anyone. The state said the law protected health. But if contraceptives were dangerous, they were just as dangerous to married people, and the law did not treat them that way. The state said the law was simply a ban on contraception as immoral. But after Griswold, a state could not ban contraception for married people, and Brennan concluded that whatever rights married people had to access birth control had to be the same for unmarried people.

Then came the sentence that has been quoted in nearly every privacy case since. Brennan wrote that "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."

Notice the shift. Griswold had described privacy as something that belonged to a marriage. Eisenstadt described it as something that belonged to a person.

The dissent and the case for leaving it to legislatures

Chief Justice Burger's dissent made a point that deserves fair consideration. He did not argue that the Massachusetts law was wise. He argued that the state's interest in health was legitimate, that requiring medical supervision for distributing contraceptives was a reasonable health regulation, and that Baird, who was not a doctor or pharmacist, had no business distributing them. On his view the Court was second-guessing a legislative judgment about public health and calling it constitutional law.

There is a genuine principle here. Courts should be cautious about striking down health regulations because they disagree with a legislature's balance. But the majority's answer was strong: the law's own structure showed it was not really about health. Massachusetts did not restrict contraceptives because they were dangerous; it restricted them for some people and not others based on marital status, and the only consistent explanation was moral disapproval of sex outside marriage. A state may hold that disapproval. It may not enforce it through a law that keeps one class of people from a medical product that another class can freely get.

The Comstock shadow behind the Massachusetts law

Laws like the one Baird broke had a common ancestor. In 1873 Congress passed the Comstock Act, named for Anthony Comstock, a crusader against vice who was then appointed a special agent of the Post Office to enforce it. The law made it a crime to send obscene materials through the mail, and it defined obscenity to include articles and information for preventing conception or producing abortion. Many states then passed their own versions, which became known as little Comstock laws. Connecticut's and Massachusetts's statutes were part of that family.

The federal law was chipped away over time. In 1936, a federal appeals court in New York, in a case known as United States v. One Package, held that the law did not bar doctors from importing contraceptives for legitimate medical use. In 1971, a year before Eisenstadt, Congress removed the references to contraception from the federal statute altogether.

But Congress did not remove the provisions about abortion. Those words are still in the federal code. For decades they were treated as a dead letter, since Roe made abortion legal nationwide. After Dobbs, some opponents of abortion argued that the old statute forbids mailing abortion pills, which would reach far beyond the states that ban abortion. In 2022 the Justice Department's Office of Legal Counsel issued an opinion concluding that the law does not prohibit mailing such drugs when the sender does not intend them to be used unlawfully. A later administration could read the statute differently. It is a strange fact of American law that a Victorian-era postal statute is again at the center of a live fight.

The cases that came after

Eisenstadt was not the last word on contraception. In 1977, in Carey v. Population Services International, the Supreme Court struck down a New York law that barred anyone other than a licensed pharmacist from selling nonprescription contraceptives and banned their sale to people under 16. The Court extended the reasoning of Griswold and Eisenstadt to cover access in practice, not just the formal right, and applied it in part to minors.

That progression matters. A right that exists only on paper, with no lawful way to buy the product, is not much of a right. The contraception cases moved step by step from the marital bedroom, to the individual, to the pharmacy counter.

Why the case still matters in 2026

Eisenstadt came down ten months before Roe v. Wade. Roe cited it, and the move from marriage to the individual that Eisenstadt made was essential to Roe's reasoning: a pregnant woman's decision was hers, not her marriage's.

When the Supreme Court overruled Roe in Dobbs in 2022, the majority wrote that nothing in the opinion should cast doubt on precedents that do not concern abortion. That included the contraception cases. But Justice Thomas, in a concurrence, called for the Court to reconsider all its substantive due process decisions. Eisenstadt was decided under the equal protection clause, which arguably puts it on different footing from Griswold. Lawyers disagree about how much protection that gives. It is a question worth watching rather than a settled answer.

In the years since Dobbs, efforts to put a right to contraception into federal law have stalled in Congress. Several states have passed their own laws protecting access. Some of those state laws were adopted with support from members of both parties, which is a reminder that birth control is, in most of the country, not a divisive issue among voters at all.

What one person can do

Bill Baird was one man with a van, a lecture and a package of foam. He did not have an organization behind him on the scale of Planned Parenthood, and he sometimes clashed with established groups. He spent three months in jail for something that today would get a shrug in any drugstore.

It is also worth remembering the student who took the foam. She was never the defendant, and her name is not the one history kept. Test cases depend on ordinary people who agree to stand in the spot where the law will land, and most of them stay anonymous. The young woman at Boston University in 1967 is part of the reason that unmarried Americans can buy birth control today without anyone asking about their marital status.

The lesson is not that everyone should get arrested. It is that unjust laws often survive because enforcing them is rare and challenging them is costly, so nobody bothers. A person willing to bear that cost, publicly and deliberately, can force the system to answer a question it would rather ignore.

What you can do

The right Baird won is broadly popular, but it rests on court decisions rather than federal statute. Here are some ways to help make it sturdier.

• Learn what your state already guarantees. The IVF, contraception and women's rights page tracks state laws and court cases on birth control access, including the ones that build on Eisenstadt.
• Ask your legislators to put access in writing. The representatives lookup finds your state legislators and members of Congress from your address, with their phone numbers, contact forms and recent votes. A specific ask, such as support for a state law protecting the right to obtain contraception, is easy for staff to log.
• Watch for the next challenge. Court Watch carries the Supreme Court's opinions with the Court's own summaries and the emergency docket, so you will see quickly if a case touching the contraception precedents reaches the justices.
• Check the federal rules that shape coverage. The public comment page lists federal rules open for comment, closing soonest first, grouped by issue, with guidance on how to write a comment. Rules on insurance coverage for contraception periodically come up for comment, and agencies must read what the public sends.