Judicial Usurpation: Then and Now
Whether the issue is abortion or marriage, judges shouldn’t be policymakers.

Justice William Brennan in 1972 (Library of Congress)



This year marks the 40th anniversary of Eisenstadt v. Baird, a momentous, yet largely forgotten, Supreme Court decision — one worth revisiting in view of President Obama’s reelection and continuing national debates about marriage, abortion, and the administration’s contraception and abortion-drug mandates.

In Eisenstadt, the high court invalidated a Massachusetts statute banning the sale and distribution of contraceptives to unmarried persons, while paving the way for Roe v. Wade, which one year later swept away state laws prohibiting or meaningfully restricting abortion.

Eisenstadt was handed down just seven years after the Court’s decision in Griswold v. Connecticut, where the Court voided a statute prohibiting the use of contraceptives. Griswold argued that the law violated an unwritten and theretofore unimagined constitutional right of married couples to obtain and use contraceptives, alleged by Justice William O. Douglas (over two incredulous dissents) to be lurking in “penumbras formed by emanations” from various guarantees in the Bill of Rights.

This foray into constitutional metaphysics was presented as a modest, even conservative, ruling. The right that Douglas claimed to uphold in Griswold was described not as a libertarian freedom, but as a right of married couples as a unit — a “right of marital privacy.” Grounding the right in the importance of marriage as a social institution, he depicted the anti-contraception statute as threatening marriage by intruding into the intimate decisions of spouses.

Although most states had regulated contraceptives for decades — by restricting their sale, distribution, and advertising — Connecticut was in the 1960s the only state prohibiting their use. Griswold therefore had limited value as a precedent. The majority and concurring opinions essentially promised that this judicial intervention was going to be a one-time event, merely clearing out largely unenforced legal prohibitions.

In Eisenstadt, the central elements of Griswold were ignored or distorted beyond recognition. In his majority opinion, Justice William Brennan cited Griswold but now insisted that the right to use contraceptives belonged to individuals, not spouses. Here is the whole argument: “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.” Presto! An alleged constitutional right grounded (however implausibly) in a defense of marriage is transformed into a right of unmarried persons to have their lifestyle choices facilitated by the legal availability of contraceptives.

The justices weren’t finished. Having changed the right to marital privacy into a “me generation” lifestyle right, they pushed on to provide for the consequences of contraceptive failure, or the failure to use contraception. As scholar Rosalind Rosenberg concedes, the Court used Eisenstadt to generate the outcome it desired in Roe. The justices heard the first round of oral argument in Roe before announcing their decision in Eisenstadt, and Brennan’s language in the latter case was quoted by Justice Harry Blackmun in the Court’s opinion in Roe (which Brennan joined) to invalidate a Texas anti-abortion statute and impose a new policy on the whole country.

Brennan’s revised account of “privacy” was formulated with abortion in mind. He plainly wanted to say that the Constitution includes rights to abortion and sexual freedom for consenting adults. But he knew otherwise, and his opinion in Eisenstadt cannot be reconciled with the long history of state regulations of contraceptives. Those regulations had been used since the 1870s as a straightforward exercise of the “police power” — a state legislature’s broad constitutional authority to promote public health, safety, and morals.

By limiting access to contraception, legislators sought to discourage people from engaging in sexual relations outside the matrimonial bond. The regulations sought to reinforce cultural norms about the undesirability of having sex and children outside of marriage. Lacking anything approaching a ground for its decision in the text, logic, or original understanding of the Constitution, the justices in Eisenstadt simply substituted their moral and political judgments concerning these norms for the judgments of the Massachusetts legislature.