My reading of Eisenstadt v Baird

I find myself repeatedly discussing certain Supreme Court cases with lots of people around the blogosphere, and as they are often tangential to the point I'm making about stopping genetic engineering (not to mention even further off-topic to the thread I'm hijacking as it is), I thought maybe I should devote a blog post here to them, and just direct people to this post when they bring them up.

Eisenstadt v Baird is currently being touted by the commenter Carlo as declaring a right to have children outside of marriage in a long comment thread over at Opine Editorials. He cites the oft-cited passage that at first blush does seem to find such a right:
It is true that in Griswold the right of privacy in question inhered in the marital relationship.... If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Even though unmarried conception is irrelevant to my point about protecting conception rights within marriage, I think it is important to defend against the common idea that Eisenstadt declared a right for single people to bear children, and so struck down fornication laws in 1972.

Eisenstadt was about contraception, and I read it as saying that unmarried people have a right to use contraception to protect themselves from bearing or begetting a child, in case they lose self-control and make a regrettable spontaneous decision to have sex, or are raped. But I don't see it as saying that there is a right to have unmarried sex. Even that quote doesn't go so far as to say that single people have a right to actually bear a child - it only says that single people have a right to decide to bear a child, and presumably if they decide to, then they would go get married. It could have been written "matters so fundamentally affecting a person as bearing or begetting a child", but they added the words "the decision whether to", and opinions are carefully written, they don't add words just to conform to Iambic pentameter.

An analogy works pretty well here: a person without a motorcycle license has a right to decide whether or not to ride a motorcycle, right? But if they decide to, they either have to get a license, or risk getting caught and punished for riding without a license. The analogy to Eisenstadt would be that unlicensed riders have a right to wear helmets, states can't prohibited selling helmets to unlicensed people. Allowing unlicensed people to buy helmets doesn't endorse unlicensed riding, but it recognizes that prohibiting people access to helmets only puts them at greater risk if they ride anyway. The analogy seems strained because spontaneously riding a motorcycle is not as common a thing as "accidentally" going from making out to having intercourse in the heat of passion. What the court recognized was that respectable people DO sometimes have premarital sex (perhaps their own lovely daughters with their no-good boyfriends) and they should be allowed to protect themselves from rash passionate mistakes, or no-good boyfriends.

Also, note they allow for warranted government intrusion, and note that actually bearing and begetting a child is certainly NOT something that could be called "private", as a child is certainly a matter of public record, indeed a member of the public itself. So they would have to be out of their minds to think that bearing a child was a private matter - and clearly that's not what they were thinking. They were only thinking that unmarried people should have a right to protect themselves from pregnancy. I'd agree with that decision, but its a shame that they couldn't see that it would lead to more unmarried sex and therefore more unmarried pregnancies. Perhaps they thought that would be OK, what with new accurate paternity tests, etc.
Supporting my reading that they didn't strike down fornication laws in Eisenstadt is the fact that the court relied on Wisconsin's fornication law two years later to reach their decision in Zablocki v Redhail. And at the time of Eisenstadt, the case wasn't interpreted as striking down fornication laws or making unmarried sex legal, it was merely reported as being about access to contraception for unmarried people. It may seem like a hedge, but it's a legal distinction that is quite common, coming up in cases where property owners set lethal booby traps for robbers, and drug dealers sell lethal drugs to addicts - it shows that addicts and robbers have rights too, but those rights don't create a right to do drugs or rob.


Carlo said...

I find this to be a pretty stretched interpretation, to say the least, since it extends marital rights to (sexual) privacy from married individuals to unmarried individuals on equal protection grounds. Nor have you addressed the broader implications of Lawrence on the constitutionality of banning extramarital relations. But in any case, we've both agreed that this isn't directly relevant, so we can leave this issue aside.

I plan to take up our discussion again tomorrow, if I have time. Would you like to continue it here, or over at Opine Editorials?

Anonymous said...

And the point of this diatribe is...???