Margaret Sanger, "The Birth Control of a Nation," 1937.
Typed Article. Source: Margaret Sanger Papers, Library of Congress , Library of Congress Microfilm 128:520. .
Handwritten additions made by an unidentified author have been omitted.
Birth control is legal at last in the United States. The right to provide contraceptive information and service under medical direction is finally recognized under the Federal law as now interpreted, and it also is legal under state laws in all but two States, Mississippi and Massachusetts--and the Massachusetts law is vulnerable on constitutional grounds.
The road to victory has been long--and hard. But the goal now has been gained, and a new era has dawned for birth control.
It is one of the anomalies of modern civilization that the forces of bigotry, reaction and legalism could so long have kept on the statute books a law which classed contraceptive information with obscenity and was interpreted to prevent physicians from prescribing contraceptives. Year after year this vicious law legally tied the hands of reputable physicians while quacks and purveyors of bootleg contraceptives and “marriage hygiene” articles and formulas flourished. It was an absurd situation in which the Federal law in effect nullified the laws of practically every State.
But now mothers can be told! The story of how motherhood ultimately was rescued from bondage is an absorbing one. It required two-thirds of a century to remove the Federal fetters placed upon birth control by Anthony Comstock and a “reform” group which induced a timid and over-awed Congress to pass the overreaching law. That famous, or rather infamous, law--Section 211 of the U.S. Penal Code--and supplementary laws, prevented the dissemination of birth control information even by a physician, and barred anything pertaining to the subject from the mails. Nor could supplies be sent by express or other common carrier. Other sections were even more rigid, forbidding even the permission of any article for preventing conception--and there were no exceptions. While the original bill carried the exemption, “except on a prescription of a physician in good standing, given in good faith,” these words were omitted from the bill which firmly became law. Violations of the law were punishable by fines of from $2,000 to $5,000, or imprisonment for five years, or both.
The laws made no distribution between contraception and abortion, though they are as far apart as the poles. Birth control is the conscious control of the birth rate by scientific means which prevent conception. It is not interference with life after conception has taken place.
And the law had teeth. Many supplies and much literature were confiscated and destroyed. Even if no outstanding, distinguished physicians were actually prosecuted for violating the law, it was mainly because they would not publicly do so. They were intimidated and kept in fear of persecution.
With Federal and State laws is conflict and confusion, a physician might legally dispense information under State statutes, but it was illegal for him under a literal interpretation of the Federal statutes, to send or to receive the necessary technical information and medical supplies. The law hampered the progressive physician, eager to adopt preventive health measures, and willing to advise his patients privately, but reluctant to take a similar stand in public practice because of confusion as to his legal rights in this field of medicine.
The Comstock laws not only thwarted efforts to protect mothers from excessive child bearing and children from being born sick, weak, unwanted and unprovided for, but were responsible, directly or indirectly, for the deaths of a million mothers during the six decades they were enforced. These deaths occurred needlessly among mothers who were the victims of abortions or of bearing children when in unfit physical condition.
Even today the situation is still appalling ↑in↓ some respects. Out of every few mothers who dies in America, one death is due to abortion. Out of approximately 15,000 mothers ↑each year↓ who die from causes due to child-birth or pregnancy, a large percentage are “poor maternity risks” from the start.
As for infant mortality, statistics of the U.S. Children’s Bureau tell their elegant, but unheeded story. When the interval between births is too shorts, death rates climb. Babies born one year apart die at the rate of 147 per thousand; babies born two years apart have a mortality rate of only [96?] per thousand. These figures are a challenge to the nation.
For many years efforts to induce Congress to amend the Comstock laws were unavailing, but sentiment for changing them increased rapidly from 1880 onward. In the campaign undertaken by the National Committee on Federal Legislation for Birth Control, Inc., nearly 1,000 organizations with approximately twenty millions of members eventually endorsed the lifting of Federal restrictions, and $25,000 individual endorsements were filed with Congress. Few causes have won the adherence of such a vast number of active supporters.
The decision which finally freed contraception from its Federal fetters represents basically the triumph of facts and public opinion over archaic law, ignorance and prejudice. Through a liberal Court this informed and potent public opinion finally found expression. One of the Justices, in a separate opinion, observed: “A statue stands until public opinion gets enough momentum to change it, which may be long after a majority would repeal it, if a poll were taken.”
The National Committee on Federal Legislation for Birth Control had proceeded along both legislative and legal lines of battle. As confiscations of books and materials increased, a particularly strong test case was instituted by the Committee in behalf of Dr. Hannah M. Stone, Medical Director of the Birth Control Clinical Research Bureau in New York. The U.S. Government, through the Bureau of Customs, had seized a package containing 120 pessaries to prevent conception, which the government alleged had been imported contrary to Section 305 (a) of the Tariff Act of 1930, which originated from the Comstock law of 1873. These pessaries had been sent to Dr. Stone by a physician in Japan for trial in her practice, and she had been asked to give an opinion as to their usefulness for contraceptive purposes. Dr. Stone testified at the trail that she prescribed the use of pessaries in cases where it would not be desirable for a patient to undertake a pregnancy.
It was in this case, on November 30, 1936, that birth control under medical direction was finally recognized as legal. The United States Circuit Court of Appeals for the Second Circuit rendered a decision that the Federal obscenity laws do not apply to the legitimate activities of physicians, and that they may prescribe contraceptives in the interests of the health and general well being of their patients. That enlightened decision brought birth control tot he goal it had long sought through legislation and was an emancipation proclamation to the motherhood of America. With its objective won, the National Committee disbanded.
With sharp, surgical precision the historic decision cut through the tangled confusion of Federal laws. It removed the shadow of illegality and the stigma of obscenity and brought the Federal statutes into conformity with most State statutes. In the few States remaining where outmoded statutes still await reinterpretation by the Courts, the decision is a beacon-light for other Courts to follow.
The decision constitutes a Bill of Rights for the medical profession in the field of contraception, [several words illegible] . The nation owes a debt of gratitude to the wisdom, the logic and the humanity of Justices Augustus N. Hand, Thomas W. Swan, and Learned Hand, whose far-seeing interpretation of the Federal statues brought to an end the 53-year reign of muddle and tyranny inaugurated by the Comstock legislation.
It was on January 6, 1938, that Judge Grover Moscowitz, of the United States District Court, Southern District of New York, in a very lucid decision, held that contraceptives imported for a lawful purpose did not come within the restrictions of the statue.
The government appealed the case, but Justice Moscowitz's decision was affirmed by the United States Circuit Court of Appeals for the Second Circuit, which held that physicians importing such articles, in order to use them for the health of their patients, were exempted by implication from the literal terms of the statute.
The most significant passage of this decision read:
“. . . . While we may assume that Section 305 (a) of the Tariff Act of 1930 exempts only such articles as the Act of 1873 exempted, yet we are [convinced?] that this statue, as well as all the acts we have referred to, embraced only such articles as Congress would have [denounced?] as immoral if it had understood all the conditions under which they were to be used. Its design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients.”
Homer S. Cummings, Attorney General of the United States, announced that the government would rest its case and not carry it to the United States Supreme Court. Thus the decision of the Circuit Court of Appeals became the law of the land, and the Treasury Department thereupon issued instructions to Customs authorities to admit contraceptive supplies addressed to physicians.
For the ultimate victory we are also deeply grateful to Morris L. Ernst, counsel for Dr. Stone and the Committee, for his gallant and successful fight, as well as for his constant championship of civil liberties and clarification of obstructive laws.
Medical, as well as legal sanction for birth control at last exists. Less than a year after the legal decision, and following a long investigation by a special committee, the American Medical Association, in June 1937, approved birth control as an essential part of medical practice and education, and urged the necessity for informing physicians of their legal rights in relation to the use of contraceptives. A resolution declared that
“. . . it seems fair. . . to assume that the State Courts, if called upon to construe the statues relating to the dissemination of contraceptive information, will adopt lines of reasoning similar to these followed in the case cited (U.S. vs. One Package) and in other cases decided by the United States Courts, leaving physicians free to give information concerning contraception when required to meet the medical needs of patients.”
This reference was to the Dr. Hannah Stone case. The public may now look to the Association to carry on research in contraception and to promote the teaching of birth control in medical schools.
Birth control, therefore, from a national standpoint is at last freed. The Federal statutes are no longer a stumbling block.
However, there is need for clarification of State statutes in the few States where the literal wording of the law may still be involved unless public opinion makes the force felt.
In the past some States followed the land of the Federal Government in enacting and clinging to obsolete statutes restricting the dissemination of contraceptive knowledge, but, fortunately, these statutes contain exemptions of many types and degrees as regards the medical profession. There are 24 States with statutes of this character. Some of them are confused, outmoded conglomerations of provisions aimed indiscriminately at birth control, obscenity, indecency, abortion, miscarriage, lotteries, nostrums, drops, pills, tinctures, compounds, poisons, drugs, prophylastics, lust, crime, and “sex exciting devices.”
Some of the States are still in the daguerreotype days in the phrasing of their laws about birth control. Under the Indiana and Wyoming State laws “daguerreotypes and stereoscopes” are literally verboten as media of contraceptive information! Almost as quaint phraseology meets the eye in some of the other State statutes, and no rhyme or reason is discernable in their provisions. Nevertheless, these statutory relics of the past do not impose any obstacles for the medical profession. The situation may be summed up as follows:
There are 21 States, as well as the District of Columbia and the Territories of Alaska, Hawaii, Philippine Islands and the Virgin Islands, where the prevention of conception has not been classed with obscenity. A modern law permitting contraception was recently enacted in Puerto Rico. The 21 States whose codes do not refer to contraception comprise Alabama, Arkansas, Florida, Georgia, Illinois, Kentucky, Maryland, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and West Virginia.
Ten States have limited laws, but physicians are exempt and drug stores are permitted to sell contraceptives. These are Colorado, Indiana, Ohio, Delaware, Iowa, Montana, Wisconsin, Wyoming, Oregon and Idaho.
Three States permit physicians to prescribe contraceptives, but druggists are not mentioned. They are New York, Nevada and Minnesota. The New York law has held by a decision of the Court of Appeals in 1918 to be “broad enough to protect the physician who in goo faith gives such help or advice to a married person to cure or prevent disease... the protection thus afforded the physician would also extend to the druggist, or vendor, acting upon the physicians’ prescription or order.” A similar ruling exists in Minnesota.
Six States have statutes aimed at against advertising and the indiscriminate distribution of material. They are Arizona, California, Louisiana, Maine, Michigan and Washington.
One State, New Jersey, allows the dissemination of contraceptive information “for just causes.”
One State, Kansas, exempts medical text books, and by implication the medical profession.
Three States, Missouri, Nebraska and Pennsylvania, exempt chartered medical schools and medical text books, and by implication, the medical profession.
There remains then, three States. In one, Connecticut, the use of contraceptive is forbidden. This statute, incapable of enforcement, has long subjected Connecticut to ridicule, but this blue-law relic has remained as part of the code, despite earnest and repeated efforts by the enlightened citizens of Connecticut to amend it. Nevertheless, seven birth control clinics are in operation in Connecticut.
Mississippi makes no exceptions in its statues, which ban even oral information.
In Massachusetts the State laws have been challenged. While they make no exception of any kind, eight birth control clinics directed and sponsored by outstanding medical and civic lenders of the State have served the public for many years without legal hindrance. Meanwhile, repeated efforts have been made to modernize the Massachusetts laws, but without success. In the summer of 1937 three Massachusetts birth control clinics were raided. Doctors, nurses, social workers and officials were arrested, convicted and fined. Their cases are being appealed to the higher courts and pending decision all clinics in the State have closed.
Contraceptives are forbidden in Massachusetts under a blue law entitled “Crimes Against Chastity, Decency, and Good Order.” Commenting on the closing of the clinics in Salem, Dr. Hannah Stone said: “The day of witch hunting has passed. It is no more possible to stem the flow of contraceptive knowledge then to stem the tides of the ocean that wash the shore of Massachusetts.”
The reactionary step taken in Massachusetts is a warning to all who cherish liberty, that while prohibitory laws of the type existing in that State remain on the statue books, they constitute a continuing threat to the freedom of the medical profession and the welfare of mothers. Therefore the outcome of the appeals will be awaited with interest throughout the country.
Oregon holds the distinction of being the first State to divorce contraception from abortion and obscenity. It is the first State also to attempt to safeguard its citizens by setting up a control of contraceptive products and advertising under its State Board of Pharmacy. To North Carolina goes the honor of being the first State to provide birth control clinical service through its State Department of Health and county physicians. As above stated, Puerto Rico has also enacted progressive birth control legislation.
What lies ahead? It is not enough merely to establish the rights of physicians through the Courts. This ethical gain must be used. We have taken a great step forward, but other hurdles must be cleared. With birth control legalized by national statutes, all States should now completely catch up with public sentiment, judicial ___interpretation and the demand for contraceptive services by clarifying and modernizing the laws. All State laws should be positive, not vague or negative. They should clearly and affirmatively declare and assure the right of medical birth control, not merely fail to forbid it, or limit it.
Therefore I ask all who have so loyally made our legal and medical victories possible, to join efforts with us again in the most important objective--the inclusion of birth control service in local, State and national health programs. In this way only can those mothers most desperately in need of this information secure it through reliable, medical channels. Help make it known to hospitals, relief agencies, philanthropic and public health officials, that the Federal decision has freed their hands. Challenge all plans for the reduction of maternal and infant mortality that ignore the basic need for including contraceptive service in such programs.
We must move fast, for women and children are dying needlessly. Individual and group effort can point the way, and can do immeasurable good. But those guiding our programs for relief, for the reduction of maternal and infant mortality, and for the control of syphilis, must recognize that the provision of scientific birth control information is essential to the success of all such programs. Next steps in making contraceptive information and service actually as well as legally available to the mothers of America call for modernization of State laws and the incorporation of birth control into medical practice, preventive medicine and public health administration everywhere.
Today there are more than 380 birth control centers in the country. Ten times that number are required to meet the need. There are 7,000 hospitals and 10,000 other agencies where medical aid is sought by mothers too poor to pay the fees of private physicians which ought to provide contraceptive service. And medical-charging service ought to bring birth control to thousands of forgotten women on farms and in isolated districts remote from medical centers. Their plight and pleas are among the most poignant of all.*Footnote:“Federal and State laws Pertaining to Birth Control,” a pamphlet containing the complete State and Federal statutes may be obtained from the Birth Control Clinical Research Bureau. 17 West 16th Street, New York City. [two words illegible] .
Copyright 2003. Margaret Sanger Project