“The Sponge” – Contraceptives

After Elaine hears that her preferred form of birth control, The Today Sponge, is going off the market, Elaine conducts a hard target search of the city, within a 25 block radius, to find as many sponges as she can. When she finally does find a store that has some left, she decides to buy the whole case that they still have in stock. Could the government make it illegal for Elaine to buy such a large quantity of Sponges in one purchase? Could the government regulate who, and who isn’t, sponge worthy?

At times in American history, birth control has been tightly regulated by law. The Comstock Laws of the late 19th century criminalized the use of the Postal Service to send contraceptives by interstate mail, and many individual States passed laws that either entirely criminalized the sale of contraceptives or created tight regulations around the sale and use of birth control. However, in the 1930’s and 1940’s, most State governments began to view birth control as a public health issue, and began to soften their statutes to allow for the sale and purchase of birth control. Changing societal attitudes towards sponge worthiness only further contributed to this.

In a monumental 1965 decision Griswold v. Connecticut, the Supreme Court ruled that a Connecticut Comstock Law criminalizing the use of contraceptives violated the U.S. Constitution. While this decision was limited in scope only to married couples, it is a critical case in Constitutional Law as it set the precedent for the right to privacy as being part of the “penumbra” of Constitutional rights. Despite not being strictly enumerated in the Constitution, the majority found that the right to privacy was a part of the Constitution, found within the 1st, 5th, and 14th amendments, among others. The Court’s 1972 decision in Eisenstadt v Baird broke open the Griswold decision like a bag of chips and expanded it to even non-married couples, as it would be against the Equal Protection of the 14th Amendment to have different legal treatment of married and non-married people. With this decision, the Court made it fully unconstitutional for a State or the Federal government to criminalize the use or distribution of birth control and contraceptives.

So how does this affect Elaine? We at Seinfeld Law do not think that Elaine could be prohibited from purchasing a war chest of contraceptives at one time. While State governments and the Federal government do retain regulatory powers over contraceptives, and could ban something from the market if it’s dangerous to health or going to “pollute the ocean,” a basic blanket ban on contraceptives would be violative of the Constitution.

As for whether the government could decide who is and isn’t sponge worthy? Well that would violate the Constitutional principle of Equal Protection. Elaine, however, is still fully within her rights to decide who she feels is sponge worthy, no matter how frustrated it makes George.