Baird in Court

Brass Tacks

A MEASURE of the interest generated by Bill Baird's fight against Massachusetts birth control laws might be the scarcity of copies of the brief submitted in his defense.

Clerks for the state supreme court justices have grabbed up most of the briefs printed. I managed to get one of the secretaries working for Joseph J. Balliro, Baird's attorney, to lend me a copy for a day. A grey looking fellow in a charcoal three-piece suit cornered me in an elevator in the court building when he saw what I had in my hand and made me swear up and down that I could not tell him where to find another copy.

But for all the fuss, the brief deals only peripherally with the issues for which Baird has been fighting. A lawyer has to find constitutional excuses for what are more basically humanitarian questions.

Under an 89-year-old Massachusetts law, no one can sell, lend, give away, or exhibit birth control devices. The law was amended in 1966 to let doctors prescribe and pharmacists fill prescriptions for birth control devices for married persons.

Baird tested the law in April, 1967, by giving Emko foam to an unmarried woman before an audience of 1800 at Boston University. Six months later, he was found guilty of exhibiting contraceptives and of giving them to an unmarried woman.

Balliro's first argument is that "Massachusetts birth control laws violate due process of law in that they constitute an unwarranted invasion of privacy." The argument is convoluted and seems, to lay eyes, to stretch a number of constitutional amendments.

In a famous ruling in 1965, Griswold vs. State of Conn., the U.S. Supreme Court found that "...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance...." Among these penumbras was a zone of privacy--the marriage relationship. The Court ruled that a Connecticut birth control statute violated the Constitution by invading that zone.

BALLIRO claims that the "right to health, to social and economic well-being and, indeed, the right to life itself," also falls under this shadow--and he says the birth control statutes violate these rights.

The state supreme court may rule that the shadow which protects marriage does not reach "illicit intercourse." Balliro did not choose to predict that this argument will convince the court. But the argument does give Balliro a chance to list ways in which the laws impose frightening penalties upon those who are prevented from learning about or from taking advantage of birth control devices. The arguments take up only five pages of an 80-page brief, but a sample shows that they give the reasons behind most of the other legal reasoning:

Abstinence is no answer: illegitimate births have more than tripled since 1940. The death rate during childbirth for unmarried whites was, from 1955 to 1959, nine times as great as for married whites, largely because of the incidence of illegal abortions. The death rate is higher for illegitimate babies, illegitimate children are physically less healthy than legitimate, and illegitimate children tend to become a costly social burden.

And Balliro cites an extensive passage from Karl Menninger about the effects of "repressed maternal hatred" on the unwanted child: "This may show itself in a determined campaign or in a provocative program of attracting attention by offensive behavior and even criminal acts. Still more seriously it may show itself as a constant fear of other people or as a bitter prejudice against individuals or groups, through deep-seated, easily evoked hatred for them.... The importance of this factor in the psychology of war is even greater, in my opinion, than the economic factor arising from the increase in population.... The unwanted child becomes the undesirable citizen, the willing cannonfodder for wars of hate and prejudice...."

And even this is merely an appeal to the state's self-interest. It is crisp, numerical, clinical--only distantly related to the attempted abortions by wire coat hangers and steam from boiling turpentine that Baird is always so quick to talk about.

Balliro connects it to his argument by citing evidence that contraceptives tend to reduce illegitimate births, so that Massachusetts laws interfere with citizens' rights to protect their welfare.

BUT THE ARGUMENT Balliro predicted as likely to convince the court comes in another section of his brief. Since Baird exhibited contraceptives during a peaceful meeting in which he asked his audience to write their legislators to change the laws, Balliro claims that exhibiting the devices was an extension of Baird's rights under the First Amendment.

The First Amendment says, "Congress shall make no law...abridging the freedom of speech, or of the press; or of the right of the people to peaceably assemble, and to petition the Government for a redress of grievances."

If the exhibition charge is thrown out on these grounds, the distribution charge may also have to go, since the court can rule that the two laws are "non-separable": the court is unable to determine whether the legislature would have passed the second without the first.

But it is more likely that the court will uphold the law against distributing, while striking down the law against exhibiting, Balliro said.

If so, the verdict may be unsatisfactory to those who hold Baird's point of view. Because while Baird's exhibition of the pill may have been free speech, an exhibition in a pharmacy or department store is a more difficult case to justify. And the legislature might be able to reformulate the law so as to make it satisfactory to the court.

This is all speculation: the state supreme court will not hand down a ruling for at least a month, maybe two. If they rule in Baird's favor, it will be on the basis of privacy, free speech, or another of Balliro's arguments, that the statutes do not fall within the proper realm of legislation.

If they rule against Baird, they will have accepted the traditional arguments--that statutes against contraceptives inhibit illicit intercourse, and therefore properly aid the state in furthering morality in the Commonwealth. The arguments on that side are briefer: they make up a thirteen-page document by Assistant District Attorney Joseph A. Nolan.

There are plenty of copies. Just take the MBTA to the Government Center and ask the Messenger of the Court for one.