EISENSTADT v. BAIRD

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Argument of Joseph D. Tydings

Chief Justice Warren E. Burger: In number 17, Mr. Tydings you may continue.

You have 28 minutes of your time left.

Mr. Joseph D. Tydings: Mr. Chief Justice and may it please the Court.

Yesterday afternoon, when the court recessed, we were discussing the only possible interest of possible reasons for the Massachusetts Statute and the first, would be the health reason and I was pointing out the absurd of these of the Statute and why it was not a health statute.

And you recall, I pointed out that it permitted a married woman to be examined by a Doctor, a Gynecologist, but not an unmarried woman.

It permitted the— really a rich married woman with easy access to a physician to get all the prescriptions she needed, but it discriminated against the poor married woman, because it required her to get a prescription for a non prescriptive or a non dangerous drug or contraceptive.

I might at this time, point out to the Court, that the Massachusetts General Law at chapter 270 section 3 at page 95 prohibits the giving away of medicines or drugs injurious to the user, and it incorporates the regulations promulgated by the Food and Drug Administration of the United States, and under those regulations, members of the Court, there are certain contraceptives which must in Massachusetts and every other State, be prescribed by a Physician, for instance the Pill, the IUD or the diaphragm.

But the non dangerous, the non prescriptive drugs are like the condom, like the foam, like the vagina jellies, they should be issued in Massachusetts like any other State.

If the Massachusetts legislature had an interest in the health, they would have put it in here, but they protected against the health.

This statute is purely and simply anti-contraceptive.

Let me give you some of the patent absurdities.

A married woman, who has been separated from her husband for three or four years, she can go, they prescribe and get a contraceptive for family planning purposes, despite the fact, she had not seen her husband for years, obviously for illicit purposes.

But the poor married woman does not have enough money to go to the doctor, she can not.

A bride, a girl about to be married, she can not go to a Gynaecologist and be prescribed a contraceptive, non prescriptive or any other type, until after the wedding ceremony and she dashes from the Church to the Gynaecologist, to the drug store and back to the wedding reception.

It is patently absurd.

Now, let us move on to the so called moral aspect of the statute.

And if you were to assume there was a moral reason, it would be I assume to restrain or deter fornication.

But how could they permit, if that was the desire, how can they draw a statute which would permit a married woman who had been either separated from the husband or wife had been away for two or three years, in the process of a divorce, a divorce decree not final, how could she go down and get a contraceptive for family planning purposes?

And a young married woman could not.

If there was really a deterring effect, why would not you increase the statute from a misdemeanor?

Fornication in Massachusetts is a misdemeanor, 90 days.

Whereas the selling of a non prescriptive, non dangerous contraceptive for family planning purposes to an unmarried person, that is five years.

It is a felony.

That they were really concerned with deterring the illicit or pre-marital intercourse, and they would increase the fornication statute from a misdemeanor 90 days, and they would enforce the law as it exists.

Chief Justice Warren E. Burger: Is adultery also a criminal offence in Massachusetts?

Mr. Joseph D. Tydings: In my understanding it is.

Chief Justice Warren E. Burger: But —

Mr. Joseph D. Tydings: And yet this —

Chief Justice Warren E. Burger: What is the punishment for that, do you know?

Mr. Joseph D. Tydings: I do not know.

Chief Justice Warren E. Burger: More or less than fornication?

You do not know?

Mr. Joseph D. Tydings: I can not answer that (voice overlap).

Chief Justice Warren E. Burger: It is of course, -- adultery under the law, this information is really available to an adulterer or an adulteress because by definition, they are married.

Mr. Joseph D. Tydings: That is right.

So, if adultery or the restrain of adultery is a purpose, it is completely vitiated by the language of the statute.

The real trust to the statute — may it please the Court is it is — it is a hold over from the Constakien(ph) days.

It was originally and until 1966, it was designed to prevent any person, married or unmarried from using a contraceptive in the State of Massachusetts.

After the Griswold case, they amended it as narrowly as possible to try and come within the contlines of the Griswold case.

But, it is not a health statute and it is really not a justifiable moral statute.

May it please the Court, I think the cases uniformly hold when you are dealing with a fundamental personal right, and I think there is a fundamental personal right here, namely, the right of an individual or woman not to have an unwanted pregnancy which maybe dangerous to her health or life, then you have got to show a compelling interest, and it has got to be narrowly defined in the State of Massachusetts, meets neither of these.

But even more, the Massachusetts statute violates the strong interest of society and the people of Massachusetts and that interest is to protect the health and safety of a mother and a child, be that mother married or unmarried, there is a strong interest to protect the health and safety of the child.

There is a strong interest to society in Massachusetts to prevent unwanted pregnancies and there is a strong interest in the State of Massachusetts to prevent unwanted and illegitimate children being brought in the world.

And look what the statute does?

I mean, look at the damage caused by unwanted pregnancies.

Take the mother to begin with, the mother and I might say that in the State or Massachusetts from the period of 1964, I think 1966-1968, 31% of the white children conceived in the State of Massachusetts where conceived out of wedlock, and 64% of the non white children where conceived out of wedlock.

Now let us not say they were illegitimate, because the illegitimacy rate was I think 6% in Massachusetts.

But they were conceived out of wedlock.

So as far as any deterrent effect, it does not have any.

But look at the consequences to the unmarried mother.

First of all, she is likely — if she has — if she is so desperate that she does not — she can not have a child, she will go to some black abortionist, particularly if she is poor, perhaps, inflict on herself some grave and serious physical injury, she is likely to die.

If she does have a child then she is illegitimate.

It puts her in a cycle from which she may never recover.

You know, I think as well as I, the whole social problems of our Nation with respect to the poor, unwanted child in a welfare mother.

But once she gets in that cycle, it is almost impossible to get out.

Her whole life is committed from that point on.

The health consequences to the — particularly the poor unmarried mother are great.

You have a far higher, maternal death rate from the unmarried mother than you do from the married mother.

And, let us look at the child.

The child born out of wedlock, and the brief, may it please the Court by Mrs. Harriet Pilpel for the Planned Parenthood on from pages 20-26, very exquisite insights, all of the studies, HEW now for which backup the back to, I am going to just comment on you, I am sure that you know them anyway, but it is very excellent presentation in this brief.

But take the child, you got the higher death rate of children born out of wedlock, higher premature births, a higher infant mortality in the first year.

The greater likelihood of disease and mental retardation, and of course the most — the saddest and really the most tragic thing of all, the greater likelihood of child abuse, child beating and all the type of anti-social activities which contribute to making that child a ward of society from then on.

Now finally, and may it please the Court, it is the strong interest in society in the State of Massachusetts, to prevent unwanted, illegitimate children from being born, because these poor children, with many instances no father, many instances the mother maybe three or four illegitimate children already.

What chance do they have to make it in our life?

They just do not have a chance?

And if you look at the statistics in your institutions whether they are mental institutions, whether they are penal institutions, you will find that the prevalence of the unwanted child without the father is right up at the top.

And that was a whole trust and reasoning for the entire legislative program.

If the Congress is passed during the past six or seven years, beginning with the LEL Act in 64, the 67th Amendment, the Social Security Act, and finally, the Family Planning Act of 1970.

In May of this year, HEW announced in the State of Massachusetts, that they are going to fund four major projects for low income families and low Boston, Springfield and one other area in the State of Massachusetts under the 1970 Act, and the course the regulation say that if you cannot discriminate between married and unmarried.

Now, what happens if this statute is held constitutional?

You are going to mean that in the State of Massachusetts and all the nine hospitals involved for low income mothers.

You are going to say sorry to the unmarried mother who might to have four or five illegitimate children already.

The next birth may send her to cause grave physical injury, even death you can say, I am sorry, but we can not prescribe you because you are unmarried?

I mean, that is patently against the best interest of the State of Massachusetts, it is against the whole trust of federal legislation.

It is an outdated anachronism from a statute back in 1870's which has no business being on the statute books today.

Unknown Speaker: Let me — if I might, just make one or two other points.

I feel very strongly that the -- what the Griswold case really held was what Justice Harlan said in his dissent back in Poe v. Ullman, and that is if there are limits to the extent to which a legislatively representative majority may conduct experiments at the expense of the dignity and the personality of the individual.

Here, we are not only talking about the dignity and the personality of the individual, we are talking about the very rights, the life and health, not only of the individual mother herself, but to the possible unborn child that she may have or she may have some day.

And that these reasons, I would hope that the Court would find the Massachusetts statute on Constitution.

Chief Justice Warren E. Burger: Thank you.

I think you have probably about five minutes reserve for—no, no.

You have not used up of your full time.

You have five minutes left of it.

Unknown Speaker: Coming up, the Court has some questions, I have nothing further (voice overlap)

Chief Justice Warren E. Burger: I do not.

Mr. Nolan, you have five minutes left.

Argument of Joseph R. Nolan

Mr. Joseph R. Nolan: (voice overlap) I know we do not have any time we for rebuttal, but I would like to make one point.

Chief Justice, may it please the Court.

my brother is eluted to Griswold.

I think if there is any case that way while factually made the somewhat close to death, if any case was distinguishable with ease, if the Griswold case first of all, Griswold dealt in the main would use permitted the doctors of the directives of the Planned Parenthood in the clinic down there in Connecticut to use that but they where considered as they where permitted to bring the suit withstanding because theoretically, they might be aid as in a better that I think the Court said they are.

What I am making is that in Griswold, you are talking about use; secondly, you are talking about married people exclusively; and third, you are talking about advice given by qualified physicians.

Now, on the entire three basis here, the case is distinguishable from death, because in death, we are talking about the propriety of a statute, the bans on contraceptives to the unmarried.

We are not talking about use, we are talking about giving away or selling and third, we are taking about people like that who are not qualified.

So I do not — I think the Griswold in no sense aids the appellee here.

Chief Justice Warren E. Burger: Thank you Mr. Nolan.

Thank you gentlemen.

The case is submitted.