Good afternoon msean-ga!
As I cannot pinpoint exactly what law review articles discussed the
cases of Griswold v. Connecticut and Eisenstad v. Baird, I can give
you information on the following cases.
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GRISWOLD v. CONNECTICUT (1965)
Legislative conservatism is no doubt a reflection of public opinion in
most situations, but sometimes it is the result of cowardice. A
singular case in point is the refusal of the general assembly in
Connecticut to repeal a statute that outlawed the use of birth control
devices and prohibited advising anyone to use them. The U.S. Supreme
Court articulated that most famous of all unenumcrated rights alluded
to in the Ninth Amendment?privacy.
Phineas T Barnum, the famous circus impresario and representative from
Bridgeport to the Connecticut General Assembly, could hardly have
known that his sponsorship of the Comstock Law in 1879 would, eight
decades later, be at the center of a constitutional breakthrough that
virtually defined the 1960s. Anthony Comstock, a neighbor of Barnum's,
got the Connecticut legislature?and that of many other states?to
forbid the use of any drug or article to prevent conception, and also
forbid anyone to assist, abet, counsel, or hire in order to prevent
conception. The law, the fruit of the Victorian mind, did not outlaw
the sale of condoms or other birth control devices, and they were sold
more or less openly in Connecticut drugstores. But anyone who used one
faced a fifty dollar fine and a year in jail.
Meanwhile, thousands of married and unmarried women, mostly poor and
ignorant of birth control methods, bore children they could not care
for, patronized illegal and dangerous abortionists, and died from the
effects of childbirth. Out of these conditions was born Margaret
Sanger's birth control movement, the inspiration in 1923 for the
formation of the Connecticut Birth Control League, which became
Planned Parenthood of Connecticut.
PPC opened birth control clinics where devices and advice were
dispensed around the state, and for a few years carried on their work
unmolested by the long arm of the law. But in 1939, some zealous
policemen raided a clinic in Waterbury, and all the clinics shut down
in response.
For years, Connecticut PPC had been trying to get the birth control
law amended or repealed. But Connecticut's legislature, now
significantly peopled by urban Catholics, wouldn't touch it. It was
time to try a different tack, and the arrest of the physicians and
their aids in Waterbury opened the door to the judicial edifice.
Surely the court would strike down such an archaic statute. But it
didn't. On a calculated technicality the Connecticut Supreme Court
dismissed the charges and prevented an appeal to the U.S. Supreme
Court.
PPC executive director Estelle Griswold enlisted the aid of C. Lee
Buxton, the chairman of the Department of Gynecology and Obstetrics at
the Yale Medical School. Their attorneys were first, Fowler V. Harper,
a professor at the Yale School of Law, and, when he died in 1963, the
renowned First Amendment scholar Thomas I. Emerson, also of the Yale
Law faculty. So involved wereYalies that this effort to overturn the
Connecticut statute was known locally as the Yale Project.
Mrs. Griswold and Dr. Buxton were once again arrested, tried, found
guilty, and appealed to the state supreme court in 1964, which
predictably upheld the law?unanimously. The court held that the
Comstock Law was intended to discourage adultery, premarital
intercourse, and other immoral acts, and certainly the general
assembly had acted within its constitutional authority to support it.
But this time?on the eve of the great cultural revolution that
included calls for free speech and acts of free love?the U.S. Supreme
Court could no longer dodge the issue. Nor did most of its members
want to.
The seven-man majority struck down Connecticut's ancient Comstock Law
as an "uncommonly silly law" on June 7, 1965. Justice William Douglas
reflected the liberal activism of the Court and found more or less
comfortable support from Justices Warren, Goldberg, Harlan, White,
Brennan, and dark. Earlier courts had articulated the right of
association as a necessary implication of free speech and assembly;
and in those associations the right of privacy, too, surely was
implied. And too, zones of privacy grew out of the enumerated rights
to speech and thought; privacy was implied in the Third Amendment's
protection of the inviolability of the home, which was supported in
turn by the Fourth Amendment outlawing unreasonable searches. Even
Fifth Amendment protection against self-incrimination cast shadows
that overlaid those of the other relevant amendments. These were the
"penumbras, formed by emanations that give life and substance to ...
specific guarantees in the Bill of Rights," wrote Douglas. "Would we
allow the police to search the sacred precincts of marital bedrooms
for telltale signs of the use of contraceptives? The very idea is
repulsive to the notions of privacy surrounding the marriage
relationship." Finally, the Ninth Amendment, with its clear
implication of unenumerated rights, supported the whole logical
edifice.
Source:
Legal Services
(http://www.perlmonth.com/law/landmark_cases/griswold_v_connecticut.htm )
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Eisenstad v. Baird (1972): The right of privacy is the right of an
individual, married or single, to be free from unwarranted gov?tl
intrusion into matters so fundamental as deciding whether to bear or
beget children.
Source:
Constitutional Law II Outline
(http://www.asu.edu/clubs/cls/outlines/Constitutional%20Law%20II/Con%20Law%20II--Matheson%20F01.doc
)
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The extent to which major legal decisions affecting reproductive
rights are beginning to fade from public consciousness is astonishing.
Test it yourself. Ask anyone to name the decade in which the provision
of contraceptive methods to unmarried Americans became legal
nationwide. Few people - particularly those who came of age after the
1972 Supreme Court decision in Eisenstadt v. Baird - can even guess.
At a time when nine in ten women who are at risk of an unintended
pregnancy say they use a contraceptive method, such government
involvement seems out of the realm of possibility. Test it on the
World Wide Web and you will be similarly stymied, since a historical
perspective is missing from many of the reproductive health sites
where one might most likely be expected.
Nonetheless, as the constitutional notion of privacy is being
reinterpreted as a result of new technologies and electronically
shared personal data, Eisenstadt v. Baird as well as the more landmark
cases of Griswold v. Connecticut, Doe v. Bolton, and Roe v. Wade are
worth pursuing on the Web. Interestingly enough, they can be found
through a few sites that are remarkable and useful for other reasons
as well. (Note: in all cases, the URL is given for the exact location
of the court case, but the full sites are also worthwhile.)
Source:
On the Trail: Reproductive Rights Legal History on the Web, Beth Fredrick
(http://www.library.wisc.edu/libraries/WomensStudies/fc/fcwebfrd.htm )
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Eisenstadt v. Baird
405 U.S. 438 (1972)
Docket Number: 70-17
Argued:
November 17, 1971
Decided:
March 22, 1972
Subjects: Judicial Power: Standing to Sue, Personal Injury
Facts of the Case: William Baird gave away Emko Vaginal Foam to a
woman following his Boston University lecture on birth control and
over-population. Massachusetts charged Baird with a felony, to
distribute contraceptives to unmarried men or women. Under the law,
only married couples could obtain contraceptives; only registered
doctors or pharmacists could provide them. Baird was not an authorized
distributor of contraceptives.
Question Presented: Did the Massachusetts law violate the right to
privacy acknowledged in Griswold v. Connecticut and protected from
state instrusion by the Fourteenth Amendment?
Conclusion: In a 6-to-1 decision, the Court struck down the
Massachusetts law but not on privacy grounds. The Court held that the
law's distinction between single and married individuals failed to
satisfy the "rational basis test" of the Fourteenth Amendment's Equal
Protection Clause. Married couples were entitled to contraception
under the Court's Griswold decision. Withholding that right to single
persons without a rational basis proved the fatal flaw. Thus, the
Court did not have to rely on Griswold to invalidate the Massachusetts
statute. "If the right of privacy means anything, wrote Justice
William J. Brennan, Jr. for the majority, "it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion to matters so fundamentally affecting a person
as the decision to whether to bear or beget a child."
Source:
Oyez ? The Supreme CourtMutlimedia
(http://www.oyez.org/oyez/resource/case/630/ )
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Should people be allowed access to drugs or devices designed to stop
contraception, and thus be able to engage in sex without having to
worry as much about pregnancy? There have been many laws in the United
States which prohibited the manufacture, distribution, transportation,
or advertisement of such drugs and devices. Those laws were challenged
and the most successful line or argument stated that such laws
interfered with a sphere of privacy which belonged to the individual.
Background Information:
Massachusetts law made it a felony for anyone to give away a drug,
medicine, instrument, or article for the prevention of conception
except in the case of a registered physician administering or
prescribing it for a married person or an active registered pharmacist
furnishing it to a married person presenting a registered physician's
prescription.
Appellee William Baird was convicted under this law 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. Baird challenged the law as conflicting
"with fundamental human rights" under Griswold v. Connecticut.
Court Decision: On March 22, 1972 the Court ruled 6-1 in favor of
Baird, finding that the law violated the Equal Protection Clause of
the Fourteenth Amendment.
The State offered a number of arguments in their attempt to justify
the law. The Court rejected the claim that the deterrence of
fornication was reasonable purpose of the statute, since the statute
was riddled with exceptions making contraceptives freely available for
use in premarital sex. The Court also rejected the argument that the
protection of public health through the regulation of the distribution
of potentially harmful articles was reasonably the purpose of the law,
since, if health were the rationale, the statute would be both
discriminatory and overbroad.
In the decision, the Court found that not only did the principles
applied in Griswold have relevance here, but that they were stronger
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.
It might be objected that the finding in Griswold is related to the
unique status of the marital relationship, but the Court addressed
this and pointed out that the importance of the marital relationship
lay not simply within the vows, but within the importance given it by
the participants because they each have a realistic expectation of
privacy, away from the intrusion of the government:
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.
For this reason, the distinction made in the law between married and
unmarried couples was found to violate the Equal Protection Clause of
the Fourteenth Amendment.
Significance: Once more the Supreme Court upheld the idea that the
government is obligated to respect a sphere of privacy for each
individual, but this time the Court specifically focused on the
individual as an individual, rather than as a member of a family unit.
The conception of privacy at issue here is one which allows each
person to make decisions about their lives which the government should
not interfere with.
Source:
Decision: Eisenstadt v. Baird (1972) - Contraception and Privacy
(http://atheism.about.com/library/decisions/privacy/bldec_EisenstadtBaird.htm )
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I'm sorry I can not find the articles you want, hopefully another
researcher can, but I thought I'd leave you with the info I did find.
Nenna-GA
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