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ous, and this conclusion of a coequal branch of Government is not without significance to the question presently under consideration."95

Having declared sex a suspect classification, the four Justices proceeded to consider whether the Government had demonstrated a compelling reason for maintaining the discriminatory statutory scheme. They concluded that it had not, for two reasons: first, no evidence had been presented which would tend to show that the scheme resulted in a savings to the Government or, indeed, that it did not result in substantial losses;" and second, based on the Court's decision in Reed, something more than mere "administrative convenience" would have to be shown."7

This was the opinion that feminists had been awaiting; yet by one vote it missed being the decision of the Court and thus having precedential value. Additionally, the concurring opinion of Chief Justice Burger, joined by Justices Powell and Blackmun, indicated a fundamental insensitivity to the issue of sex discrimination in our society. These three Justices presented two reasons for their refusal to join in an opinion which characterized sex as a suspect classification. First, they believed it to be "unnecessary," since Frontiero could be decided on the authority of Reed." This reason is not without force, since judicial restraint mandates that a court go no further than it need go in deciding a case; if its decision can be made on the basis of prior cases alone, it is usually not desirable to set new precedent." However, the second reason advanced by the three Justices is highly questionable:

5 Frontiero v. Richardson, 411 U.S. at 687-88.

"Id. at 689. The Court pointed out that, since 43 per cent of all women over the age of sixteen were in the labor force, including 41.5 per cent of all married women, it is likely that many wives of servicemen would fail to qualify for benefits under a dependency test. Id. at n.23.

97 Id. at 691.

" Id. at 692.

"However, it can be argued that in a case of this nature, judicial economy would dictate that the Court set a new precedent. If sex should be treated as a suspect classification, yet the Court fails to articulate this standard, the lower courts will find it necessary to evaluate, using the rational relationship test, hundreds of cases of alleged sex discrimination. If the courts determine that the challenged statutes are valid tested by that standard, the plaintiffs will be forced to appeal (and they will appeal, because the Women's Rights Projects of the ACLU and State Civil Liberties Unions, in addition to NOW, LDEF, Inc., Human Rights for Women, Inc., and many other women's rights organizations are funding or directing sex discrimination suits). If, instead, the Court affirmed that the higher standard should be utilized in sex discrimination cases, then only those involving the most subtle or complex types of sex discrimination would have to be brought to the courts.

1974]

WOMEN AND THE SUPREME COURT

The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution.

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There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes."

100

The rights of minorities and oppressed peoples should, in an ideal society, be protected under a representative government. But if that government fails to do so, it is the role of the judiciary to extend that protection. This is one of the basic principles of our tripartite system of government, and it is usually recognized instantly in cases of race discrimination. No jurist would suggest that a court abstain from taking necessary steps to eliminate race discrimination on the ground that this decision should be up to "the elected representatives of the people." It is precisely those people who are depriving racial minorities of their rights, and who should not be permitted to continue such discrimination for one instant once the oppressed group has come to the courts for protection.

Obviously, the three Justices who joined in the concurring opinion in Frontiero did not recognize the absurdity of their reasoning. The roots of such thinking go back even further than Muller, a decision which had been based on a "widespread belief" of what women's role in society should be. 101 But it is sorely disheartening to realize that, in all the years since Muller, the Supreme Court's decisions have not been marked by increased enlightenment.

III. REPRODUCTION AND ITS CONTROL

Because women have wombs and bear children, and because

100 Frontiero v. Richardson, 411 U.S. at 692.

101 Muller v. Oregon, 208 U.S. at 420.

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technical control of the reproductive function has always been imperfect-as it still is today-society has ultimately always defined woman as a childbearer-that is, as she relates to children and to men, rather than as an individual.

Since her basic function has been to bear children, whatever "extra" activities the culture and the economy have allowed her to pursue, anything that alters social control over her reproductive capacities is deeply and fundamentally threatening to social and individual psyches: different reproductive roles are the basic dichotomy in humankind, and have been used to rationalize all the other, ascribed differences between men and women and to justify all the oppression women have suffered.

Without the full capacity to limit her own reproduction, a woman's other "freedoms" are tantalizing mockeries that cannot be exercised. With it, the others cannot long be denied, since the chief rationale for denial disappears.102

As we have seen, woman's "procreative function" lies at the core of society's belief in her proper role, and forms the basis of her oppression. A case which challenges a statute giving preference to a male in the administration of an estate or requiring a woman to show actual spousal dependence in order to receive dependents' benefits is only peripheral to the source of woman's oppression and therefore does not represent a great threat to society in general or to individual men in particular. But a case which challenges society's supposed right to control woman's procreative function and to deny her the means of being independent when she experiences pregnancy and childbirth is a very direct attack on the myth of male superiority and on the basic patriarchal structures of our society. Therefore, such a case is a real test of how far our society has progressed, or has failed to progress, toward real equality for women.

A. Early Birth Control Cases

The two most important birth control 103 cases prior to the

102 Cisler, Unfinished Business: Birth Control and Women's Liberation, SISTERHOOD IS POWERFUL 245-46 (Morgan ed. 1970) (emphasis added) [hereinafter cited as Cisler, Birth Control].

The term "birth control" includes both contraception and abortion and is not limited to the former, contrary to popular usage. Abortion is not, of course, a form of contraception, but it is a form of birth control. It is interesting to note that the IUD and the "morning-after pill" are probably abortifacients, not contraceptives, yet they are popularly referred to as contraceptives, indicating that the word "abortion" still has bad connotations to many persons.

72-889 O 76 Pt. 2 - 13

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abortion cases 104 were Griswold v. Connecticut105 and Eisenstadt v. Baird.10 Each was of far-reaching significance and helped to set the stage for the abortion cases, but neither was of great importance in regard to constitutional equality for women per se.

In Griswold, the United States Supreme Court overturned State statutes which prohibited the use of contraceptives and prescribed sanctions not only against the user but also against anyone who assisted or counseled a person to use contraceptives. The case is best known for the "right of privacy" doctrine, espoused by four of the Justices, 107 which provided part of the basis for the abortion decisions.108 Such a doctrine supposedly had its roots in prior decisions of the Court 109 and, seen in its proper context, was hardly a radical one:

[T]his case was argued, and won, on the grounds that doctors were being hampered in their practice of medicine and that the right of marital privacy was being violated. Once more the Sanctity of the Home was preserved. . . .110

The right to use contraceptives, upheld in Griswold, extended only to sexual partners married to one another. Further, Griswold

14 Roe v. Wade, 410 U.S. 113, rehearing denied, 410 U.S. 959 (1973); Doe v. Bolton, 410 U.S. 179, rehearing denied, 410 U.S. 959 (1973).

In choosing to discuss only Griswold and Baird, I do not mean to imply that other cases, most notably United States v. Vuitch, 402 U.S. 62 (1971), were of no import. In relation to the abortion cases, see especially Justice Douglas' opinion, concurring and dissenting in part, in Vuitch (402 U.S. at 74) and the Court's comment in Roe that it had already decided in Vuitch, if only implicitly, that the fetus is not a "person" within the fourteenth amendment's meaning of that word. 410 U.S. at 159.

105 381 U.S. 479 (1965).

10% 405 U.S. 438 (1972).

107 Justice Douglas delivered the opinion of the Court; Chief Justice Warren and Justices Brennan and Goldberg concurred in his opinion, but added a separate opinion in which they expanded on the right of privacy in relation to the ninth amendment. I See Roe v. Wade, 410 U.S. at 152-56.

100 See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944); Skinner v. Oklahoma, 316 U.S. 535 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). But see criticism of these cases as "right to privacy" cases in Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 931 n.79 (1973) [hereinafter cited as Ely, Comment on Roe v. Wade].

Justices Black and Stewart, in their dissent, charged that the plurality's right to privacy doctrine stemmed entirely from the law review article of that name written by Warren and Brandeis in 1890 (4 HARV. L. REV. 193). Griswold v. Connecticut, 381 U.S. at 510 n.1. See also Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). It is ironic that the same Mr. Brandeis of Muller v. Oregon fame should have been (or should have been thought to have been) a moving force behind a case such as Griswold, which did, in fact, have a substantial effect on laws which hindered women from controlling their own bodies.

Cisler, Birth Control, supra note 102, at 250.

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did not deal with laws limiting the sale, prescription, or display of contraceptives; obviously, a woman's right to use contraceptives is not very valuable if their availability to her is highly restricted.""I

However, without the groundwork laid by Griswold, the decision in Eisenstadt v. Baird would have been unlikely. The Baird case had its genesis in an April 1967 lecture on overpopulation and contraception presented by Bill Baird, a birth control activist, at Boston University. At the close of the lecture, Baird invited the audience to help themselves to the contraceptives which he had been displaying and discussing. He personally handed a package of Emko-brand vaginal foam to a young, allegedly unmarried113 woman. Baird was arrested and convicted" under provisions of the laws of Massachusetts which made it a crime to give away "any drug, medicine, instrument or article whatsoever for the prevention of conception"115 except if the actor was a physician administering to, or prescribing for, married persons or a pharmacist furnishing contraceptives to married persons with doctors' prescriptions.11

The United States District Court for the District of Massachusetts dismissed Baird's petition for a writ of habeas corpus, 117 but the United States Court of Appeals for the First Circuit vacated and remanded with instructions to grant the writ.118 On appeal, the United States Supreme Court affirmed the judgment of the First Circuit.11

The Supreme Court decision was 6-1 for affirmance, but only four Justices joined in the opinion of the Court. 120 In that opinion, Justice Brennan, after disposing of the issue of standing, turned to a consideration of the legislative purposes which the statute

See note 14 supra.

112 405 U.S. 438 (1972).

13 There was no evidence in the record that the woman was unmarried. See Eisenstadt v. Baird, 405 U.S. at 440 n.1 and 462 (White and Blackmun, JJ., concurring).

114 Commonwealth v. Baird, 355 Mass. 746, 247 N.E.2d 574 (1969). Baird had handed out the foam for the express purpose of challenging the contraceptive law. Eisenstadt v. Baird, 405 U.S. at 445.

115 MASS. ANN. LAWS ch. 272, § 21 (1968).

116 MASS. ANN. LAWS ch. 272, § 21A (1968).

117 Baird v. Eisenstadt, 310 F. Supp. 951 (D. Mass. 1970). Baird v. Eisenstadt, 429 F.2d 1398 (1st Cir. 1970).

Eisenstadt v. Baird, 405 U.S. 438 (1972).

120 Justices Powell and Rehnquist took no part in the consideration of the case; Justices Brennan, Douglas, Marshall, and Stewart joined in the opinion of the Court; Justice Douglas filed a concurring opinion; Justice White filed an opinion concurring in the result, in which Justice Blackmun joined; and Chief Justice Burger filed a dissenting opinion.