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diff --git a/76901-0.txt b/76901-0.txt new file mode 100644 index 0000000..8974635 --- /dev/null +++ b/76901-0.txt @@ -0,0 +1,11820 @@ + +*** START OF THE PROJECT GUTENBERG EBOOK 76901 *** + + + + + + TRANSCRIBER’S NOTE + + Italic text is denoted by _underscores_. + Bold text is denoted by =equal signs=. + + + Some minor changes to the text are noted at the end of the book. + + + + + BIRTH CONTROL LAWS + + SHALL WE KEEP THEM + CHANGE THEM OR + ABOLISH THEM + + BY + + MARY WARE DENNETT + + _One of the Founders of the National Birth Control League, + Formerly Director of the Voluntary Parenthood + League, Author of “The Sex Side of Life”_ + + [Illustration] + + FREDERICK H. HITCHCOCK + The Grafton Press + NEW YORK MCMXXVI + + + + + Copyright, 1926 + By MARY WARE DENNETT + + + + +INTRODUCTION + + +The scope of this book does not include any general discussion of the +merits of birth control, or its sociological and racial ramifications. +That has been amply undertaken in recent years by many able people; +and the birth rate in all high-grade communities and groups clearly +indicates that the subject, per se, is not now to any extent a moot +question. Birth control is not an if. It is an actuality. + +But what does need further discussion and thinking through to a sound +conclusion is the question as to whether laws affecting birth control +are necessary in the United States, and if so, just what the provisions +of those laws should be. We have laws on the subject already, and have +had them,—the same ones,—for over fifty years. They are increasingly +unenforced, and are generally acknowledged to be unenforceable. But it +is not wise to wait their slow and complete dissolution from disuse, +because the diseased and dying body of these laws creates a most +unsanitary morale in this fair land of ours. + +The question is shall they be done away with altogether, or shall they +be modified, and if so, how? This is a matter which potentially affects +every family in the country. The theory of laws in a democracy is that +they reflect the wishes of the people. This book therefore raises the +question as to what they really want, and tries to answer it, or at +least to give to the public in condensed and convenient form the facts +on which an answer may be based. + +In this field at present, there is much muddled reasoning, much jumping +at conclusions, much substituting of emotion for thought, and much +general assumption that reformers who agitate for birth control must +necessarily also be wise law-makers on the subject. To help clarify +public thought, and to help crystallize public responsibility as to the +legislation which is inevitably a part of the birth control question so +long as the present statutes remain on the books, is the aim of this +volume. + +The book is presented to American citizens in the hope that it may be +a useful service. It makes no pretense at literature and it is not +propaganda. It is not a legal brief nor a piece of academic research. +It simply talks over the subject in an untechnical fashion, from the +human standpoint, with the idea that most thinking, well-meaning people +want our laws to represent common sense, justice and practicability; +and that they want them to harmonize with our heritage of American +ideals of freedom and self-government. Although informal in its +presentation, every effort has been made to include only statements +for which there is authority from original sources. The main points +are given in the body of the book, and the appendices give detail and +authorities, for the use of those who are interested to check up and be +more thorough in their consideration. + +The first part of the book explains just what our present laws provide, +and how they happened to be the way they are. The second part analyzes +the various propositions that have been made for changing the laws, +and the reasons offered by their advocates. The third part makes an +effort to show the basis on which to differentiate between sound and +spurious legislation, and the tests by which it may be determined +what the people really want, underneath their upper layer of careless +acquiescence, inhibition or inertia. If the author did not have an +abiding faith in the fundamental sound sense, good intentions and +latent ideality of the average American citizen, this book would not +have been written. + + M. W. D. + New York City + 1926. + + + + +CONTENTS + + + PART I + + WHAT SORT OF LAWS HAVE WE NOW? + + CHAPTER PAGE + + I. THE SITUATION 3 + + The actual situation under federal and state law—Not even parents + can lawfully inform their married children about how to space their + babies—No doctor can lawfully or adequately study the control + of conception—Provisions of the federal law—Scope of state + laws—Clinics under state laws—Access to birth control information + not only criminal, but classed with obscenity—Control of conception + confused with abortion—Precise meaning of term birth control in + modern application—Not a crime to control parenthood but a crime + to find out how—What if that principle were applied to some other + scientific knowledge, making automobiles, for instance? + + II. HOW IT HAPPENED 19 + + How it came about that information concerning one item of science + became a criminal indecency—Anthony Comstock’s blundering bequest + to the people—Congress an unwitting partner—States hastily + followed suit—United States the only country to class contraceptive + information with penalized indecency—Legislation aimed at indecency + but hit science—Europe laughs at our “Comstockery”—Documentary + proof that Comstock and his successor, Sumner, did not expect + laws to prevent doctors from giving and normal people from using + contraceptive instructions. + + III. IS ENFORCEMENT POSSIBLE? 46 + + Relatively few indictments in over fifty years—Ulterior motive + in many of those—Post Master General Hays’s leaning toward + revision—Post Master General Work’s gesture for enforcement—Clinic + reports and medical research data unlawfully published and + mailed—Misleading criminal advertisements go unpunished—Government + itself breaks the law—Forbidden books found in Congressional + Library—Senators and Congressmen willing to break law, but hesitate + to revise it. + + + PART TWO + + WHAT CHANGES IN THE LAWS HAVE BEEN PROPOSED? + + I. THE TWO FIRST FEDERAL EFFORTS 63 + + The big repeal petition of 1876 started by National Liberal + League—Comstock’s obscenity exhibit wins again—Sanger arrests + crystallize growing movement for repeal of law—National Birth + Control League founded March, 1915, first organization of the sort in + the United States—Repeal bills drafted—Petitions circulated—Noted + English sympathizers help. + + II. BEATING AROUND THE BUSH WITH STATE LEGISLATION 72 + + Interest caused by Mrs. Sanger’s arrests caused much activity + despite war-time conditions—First repeal bill initiated by National + Birth Control League in New York Legislature—Law makers mostly in + favor privately, but publicly opposed or evasive—Dr. Hilda Noyes’s + experiment in New York village proving that ordinary people want + laws changed—Legislator justifies state repressive laws so long + as federal law stands as example—Bills introduced in New York, + California, New Jersey and Connecticut—The “doctors only” type of + bill appears—Further limitations—Efforts toward freedom stimulate + reaction toward stiffer repression in Illinois, Pennsylvania and + Virginia—All fail—Fallacy that limited bills win legislators more + than freedom bills. + + III. GOING TO THE POINT WITH A FEDERAL BILL 94 + + 1919 sees first concerted effort to repeal federal law—Initiated + by Voluntary Parenthood League, an outgrowth of National Birth + Control League—Disbanding of earlier organization and merging of + forces—Opposition from birth control advocates on “doctors only” + basis arises later—The long hunt for a sponsor—Cummins-Kissel + Bill introduced in January, 1923—Re-introduced in next + Congress as Cummins-Vaile Bill—Survey of six-year struggle + in Congress—Significant characteristics of Congressional + reaction—Fear and embarrassment inhibit even those in favor of + measure—Suggestions for keeping repeal “dark”—Alternate appeals to + logic and humanity—Public opposition (mostly Catholic) relatively + slight—Sponsor in Senate received 20 letters for bill to every one + against. + + IV. THE HEARINGS ON THE CUMMINS-VAILE BILL, AND THE AFTERMATH 123 + + Delay in arranging hearings analogous to delay in sponsoring + bill—Joint hearings by Senate and House Judiciary Sub-Committees + held on April 8 and May 9, 1924—Mr. Vaile in opening remarks + pleads for restoration of American freedom to acquire knowledge, + which was taken away 50 years ago—Birth rate in United States + proves that people want and get some information in spite of + law—Catholic speakers discuss birth control, not the bill—Wages + of government employees quoted as reason for passing bill—Prof. + Field shows historically that suppression does not suppress—Mrs. + Glaser argues for freedom for scientists to learn and teach regarding + control of human fertility—Mrs. Carpenter shows how federal law + operates to prevent Chicago Clinic—Prof. Johnson gives eugenic + view-point—Hearing reopened at request of Catholics—Lengthy + irrelevancies—Congressman Hersey heckles the witnesses—Report of + Senate Sub-Committee a sop to the workers for the bill—Unique effort + to get vote of full Committee before adjournment, as aid to reducing + inhibition in next Congress. + + V. WHY CONGRESS HAS BEEN SO SLOW 166 + + No one answer covers all reasons—Quiet request to Congress for + repeal might have succeeded twenty years ago, before sensational + law-breaking created prejudice—Laws defied without first attempting + their repeal—Speeches and writings of early agitation not calculated + to induce Congressional initiative—Struggle announced in advance as + likely to be long and bitter “fight”—Shortage of funds for publicity + on behalf of bill the second reason for slowness of Congress—Third + and most dominant reason found to be general embarrassment over + subject—Distaste, inhibition and fear, in varying degrees almost + universal among Congressmen—Striking instances—Fears covered + careers, colleagues, families and constituents—Fear on behalf of + young girls greatest of all—Political opposition to birth control + legislation misinterpreted by “radicals”—Abortive attempt in Harding + presidential campaign to use his tentative interest in this bill + against him—Club women afflicted with inhibitions similar to those + of members of Congress—It is leaders, not members, who hold back + endorsement by large organizations—Organized labor women endorse + repeal ahead of club women. + + VI. A “DOCTORS ONLY” FEDERAL BILL 200 + + “Doctors only” federal bill followed straight repeal bill just as + limited bills in states followed straight repeal bills—Advocated on + Margaret Sanger’s initiative—Provides medical monopoly of extreme + type—Arguments in its behalf analyzed and answered—Proponents + of “doctors only” bill do not live up to own demands for limiting + contraceptive instruction to personal service by doctors—Birth + control periodical carries thinly veiled advertisements for + contraceptives—Improved type of “doctors only” bill drafted by + George Worthington—Not so many loopholes and inconsistencies as in + first bill proposed, but still a special-privilege bill, and still + leaves subject classed with obscenity—Worthless as means of curbing + abuse of contraceptive knowledge—Clause permitting “reprints” + from medical and scientific journals practically breaks down all + restriction—Makes pretense at limitation a farce. + + + PART THREE + + WHAT SORT OF LAWS DO THE PEOPLE REALLY WANT? + + I. DO PHYSICIANS WANT A “DOCTORS ONLY” BILL? 219 + + Probably most physicians have not yet thought what sort of laws + they want—Resolutions by medical associations depend largely on + way subject is presented and by whom—Doctors have no interest in + retaining obscenity connection, as such—Only few want “doctors + only” bill for mercenary reasons—Endorsement proposed for American + Medical Association in 1920, side-tracked in department—President + of A. M. A. cordial to idea of straight repeal—American Institute + of Homoeopathy and various local medical associations endorse + Cummins-Vaile Bill—Only two medical associations have endorsed + “doctors only” bill—New York Academy of Medicine took “doctors + only” stand on recommendation of small sub-committee when many + members are for straight repeal—Conferences of doctors and lawyers + in Chicago and New York advise against all limited legislation—Dr. + Pusey, President of American Medical Association in 1924, warns + against “silly legislation”—Straight repeal the only recommendation + of conference of doctors and lawyers—Unfair to attempt to + hold medical profession legally responsible for moral use of + contraceptives—Doctors on the whole more interested in professional + prestige and credit for devising contraceptive methods than in any + exclusive control of their use. + + II. WHAT DO THE PEOPLE WANT? 241 + + People’s first individual want is reliable contraceptive + information—Strong probability that people prefer decent enforceable + laws to those which are dirty and unenforceable—Choice can not be + put up to United States town-meeting fashion—Reader asked to make + own choice by elimination of what he does not want—Do you consider + contraception indecent?—Should laws penalize the decent majority in + order to reach the depraved few?—Should the control of conception + itself be made a criminal act by law?—Abstinence as method of birth + control has no legal standing in the U. S.—Do you want unenforceable + laws?—Can “doctors only” laws accomplish their own aims?—Are + they enforceable?—Do all contraceptives require personal medical + instruction?—Proponents of “doctors only” bill admit that they do + not—English birth control organizations disapprove “doctors only” + stand—Best known English authority on birth control is biologist, + not M.D.—Are laws to curb improper advertising of contraceptives + practicable?—Average citizen too occupied to analyze legislative + proposals—Proponents of limited legislation backward about + explaining their bills to the public—They refuse to debate openly or + confer privately with proponents of freedom bill. + + III. CAN THE PEOPLE GET WHAT THEY WANT? 262 + + Congress will do what the people want if the request is made clearly + and forcibly enough—Inhibitions are waning—Later generations + will not bless birth control workers or Congress if legislation + is bungled now—Danger of blundering as Comstock blundered—Those + who mean well regarding legislation must do well—Present laws + unconstitutional—First class legal opinion deems all “doctors only” + laws unconstitutional also—Time to discard governmental distrust of + the people. + + APPENDICES 267 + + + + +PART ONE + +WHAT SORT OF LAWS HAVE WE NOW? + + + + +CHAPTER I + +THE SITUATION + + _The actual situation under Federal and State law: Not even parents can + lawfully inform their married children about how to space their babies: + No doctor can lawfully or adequately study the control of conception: + Present provisions of Federal law: Scope of State laws: Clinics under + State laws: Access to birth control information not only criminal but + classed with obscenity: Control of Conception confused with abortion: + Precise meaning of term birth control in modern application: Not a + crime to control parenthood, but a crime to find out how: What if that + principle were applied to some other scientific knowledge, making + automobiles for instance?_ + + +It is a crime under the Federal law for a mother to write to her +daughter a letter such as this: + + DAUGHTER DEAR: + + It wrings my heart to know that you are so terribly worried. I + have felt for a long time, that something was troubling you. You + are absolutely right in your determination to know all there is + to be known about how to have your babies when you want them + and not otherwise. Now that your own doctor has failed to give + you practicable advice, I realize more than ever that I should + have raised heaven and earth to see to it that you had adequate + information when you were first married. Somehow I blindly hoped that + you would never have to go through what I did, that you would be sure + to find out what I never properly knew in my married life, and that + you would be spared the terror of living in fear that the love which + brings you and your husband together should bring your babies so + rapidly that you can not possibly take care of them. I blame myself + that I let my inhibitions stand in the way of finding help for you + long ago, so that now you could help yourself. + + But I will do my best to make up. There must be no more worry and + uncertainty for you in this crisis. Now that he has lost his job and + his health at the same time, you must be sure that no more babies are + started for, say four years. I hope and believe that by that time you + may be able to have your fourth child in safety. But until then you + and he will need every atom of your vitality to make the little bank + balance tide you over to better times. + + Now here is help. (It makes my blood boil that your doctor should + have been so helpless when you took your problem to him, but there + is no use berating him, for it is probably not wholly his fault that + he knows so little on this subject. The laws won’t let him study + the matter.) I am sending you a wonderfully clear explicit pamphlet + which tells the best and simplest methods for regulating conception. + It is written by Doctor —— who has made a business of studying + this problem, law or no law, for over twenty-five years. The methods + recommended in it are practically the same as those taught by the + best authorities abroad. + + I am not stopping to tell you how I got the pamphlet. But I was a + “criminal” according to our State law when I got it. And I am a + “criminal” again according to Federal law, now that I am mailing it + to you. But I am willing to be that kind of a criminal a thousand + times over if only I can at this late date make up for letting you + go so long uninformed, and if only I can now put your poor tormented + mind at rest. + + With boundless love, + MOTHER. + +For writing such a letter and for sending the pamphlet to which it +refers, this mother could be sent to jail for five years and fined +$5000. That she would not be discovered is probable. It is also +likely that if discovered she would not be indicted. But that would +be due, not to the law but merely to the fact that the authorities +are almost wholly negligent in enforcing the law. The Federal law +makes no exceptions whatever. It is a crime for any one, even for +the best of reasons and in the greatest need, to send or to receive +by mail anything that tells “where, how or of whom” information may +be secured as to how conception may be controlled. The number of +unarrested “criminals” of the type of this mother is beyond knowledge +or computation, but they are everywhere. Many of them could not tell +exactly what the law is. They simply know that the whole subject is +under a cloud, that doctors are mostly unsatisfactory when asked for +instructions, and that whatever one learns has to be learned secretly. + +Here is another kind of letter which it would be a crime to mail. A +Philadelphia physician writes to an Iowa physician: + + DEAR DOCTOR: + + I can not answer your letter as I ought, because of the fool laws, + but I will do the best I can. I sympathize most heartily with you in + your need for authoritative data on the control of conception. My + experience has matched yours precisely, in that patients are asking + more and more for advice on methods. After some very humiliating and + disastrous experiences several years ago because my patients acted + on the half baked instructions I gave them, those being all I then + knew,—I determined to study the subject as thoroughly as I could. + Fortunately my trip abroad stood me in good service at the time, + for I was able to visit several of the scientists who have made a + special study of the subject and whose research covers a period of + many years. I got most of my material in England and Germany. By + sheer luck on my return, the customs officials did not inspect the + books and the notes I had on the subject. But they could, and indeed + they should under the law, have seized and destroyed them. The most + comprehensive of the books is by Dr. ——[1] of London, a biologist + of note who has done some exceptional research work. The book is + printed by the well known medical publishers, ——. You might try + ordering a copy, but the chances are that it would not come through, + and that you would be only wasting your time and money. So I will + send you my copy by today’s mail, insured, parcel post, and wrapped + very securely. Let me have it back inside of a month if you can, + for it is much in demand here. I am also sending with it a copy of + some particularly useful items from my notes based on the experience + of Drs. —— and ——, also a pamphlet which you may find more + helpful than any other one thing, this latter being the work of an + American physician, Dr. —— of ——. It can’t be signed of course on + account of the laws, and it has to be circulated secretly. I find it + excellent not only because of its brevity and soundness, but because + it serves very well as a handbook of information for my patients, to + supplement the instructions I give them personally. I think you will + find yourself wanting a quantity for distribution, especially among + your patients who ask your advice by letter, and who do not live near + enough to come to your office. + + + Of course you realize that I am a deliberate law-breaker in sending + you this letter and parcel, but I would rather take a chance on being + held up for it than to have you repeat my experience of advising + people without adequate knowledge as to method. According to the law + you will be just as bad as I, when you “knowingly” take from the mail + the parcel I am sending. And worse yet, your State of Iowa has a law + which makes it a crime to _have in your possession_ any instructions + for contraception! So be cautious. + + Let me know if I can be of any further use. + With best wishes, as ever + (Signed).................... + +Another bit of human “crime” is an actual instance which occurred in +the experience of a Washington man who has been active in the campaign +to change the laws regarding birth control knowledge. It was several +years ago, when the effort to introduce a bill into Congress was still +new. He dropped into the office of a certain Congressman whom he knew +well, his errand being on another matter, but in passing he mentioned +the work of the organization which had proposed the first Federal bill +on this subject, and inquired if he had yet met the Director. Instantly +the Congressman was alert. “No, but I would like to, and you are just +the man I want to see right now. I want you to tell me how to get all +the best information there is on this question of regulating the growth +of a family. I need it.” He outlined his own situation. He had four +splendid youngsters, all of them wanted and welcomed. But since the +birth of the last one his wife had not been well, and it was far from +wise for her to have another one soon, certainly not for several years. +Also he was not a man of means. He could not afford to rear a very +large family. The question of control had never been pressing before. +Now it was imperative. Strange as it might seem he was practically +without reliable information as to methods. Would Mr. —— be so mighty +kind as to put him in the way of getting proper instruction? He would, +and did. But it was utterly unlawful. However he was a cordially +willing criminal, and the Congressman likewise cordially appreciated +the friendly criminality. “Of course you can count on me to vote that +bill when it comes up in Congress,” he said with emphasis that was most +sincere. + +It is obvious from the foregoing examples, which might be multiplied +indefinitely, that the present status of our laws is profoundly at +odds with the beliefs and the needs of the people. What then do the +people need or want in the way of laws, if they need any at all, on +this subject? A necessary preliminary to answering that question is +to take account of the stock of laws we already have, to inspect them +open-mindedly, and then to add or subtract from them whatever common +sense, justice and self-respect may require. + +First of all we have the Federal law which affects the whole country. +Then we have State laws in all the States but two, which either +directly or by inference form a legal barrier between the people and +this knowledge. In just half of the forty-eight States there are +specific prohibitions. In all but two of the other half, the same +prohibition is feasible under the obscenity laws, by virtue of the +precedent of the Federal obscenity law and the obscenity laws of half +the States, for it is in these obscenity laws that the prohibition of +the circulation of contraceptives is found. The Federal law was passed +first and is the model on which all the State laws are framed. + +The Federal Criminal Code contains five separate sections dealing +with the subject, as follows. They are given in sequence according to +Section numbers, not according to the date of their enactment. + +_Section 102_ penalizes any government employee who aids or abets +anyone who violates the law which forbids the “importing, advertising, +dealing in, exhibiting, or sending or receiving by mail obscene or +indecent publications or representations, or means for preventing +conception or producing abortion, or other article of indecent or +immoral use or tendency.” Note the word “tendency,” and consider the +scope and power which it gives to government officials with a penchant +for suppressions. + +_Section 211_, the parent of all the United States obscenity laws, +declares unmailable any information or means for preventing conception. +The prohibition is well nigh limitless in scope, for it forbids any +information whether given directly or indirectly, and even includes any +“description _calculated_ to induce or incite a person to use or apply” +any means for the prevention of conception. + +_Section 245_ covers the same ground, but applies to transportation by +express or any other common carrier, from one state to another or to or +from any foreign country. + +_Section 312_ applies to the District of Columbia, which is under +the direct control of Congress. It is one of the most sweeping of +all the laws. It forbids any one to lend or give away any published +information, or even to “have it in his possession for any such +purpose,” or to write where, “how or of whom” information may be +secured. Some of the extraordinary infringement of this section by +members of Congress and officials at the Capitol will be described +later in the book. + +_Section 305_ of the Tariff Act of 1922 prohibits the importation from +any foreign country of any contraceptive information or means. Any such +may be “seized and forfeited.” + +The maximum penalty for infringements of these Federal statutes is five +years in jail or a fine of $5000 or both. + +The wording of all these laws is very similar, and like most laws +from the view-point of the layman, very repetitious and involved. It +is hardly worth while to reproduce them here in full, but it is well +for the reader to take the trouble to wade through the disagreeable +verbiage of one of them, in order to realize the essential factors in +the question under discussion. The now notorious Section 211 is the +most representative one. It is the unfortunately prolific parent of +the mass of legislation which has come to be called the Comstock laws, +because it was Anthony Comstock who saddled them on to the United +States, beginning in 1873 with this original Section 211. It reads as +follows: + + Every obscene, lewd, or lascivious, and every filthy book, pamphlet, + picture, paper, letter, writing, print, or other publication of an + indecent character, and every article or thing designed, adapted, + or intended for _preventing conception_ or producing abortion, or + for any indecent or immoral use; and every article, instrument, + substance, drug, medicine, or thing which is advertised or described + in a manner calculated to lead another to use or apply it for + _preventing conception_ or producing abortion, or for any indecent + or immoral purpose; and every written or printed card, letter, + circular, book, pamphlet, advertisement, or notice of any kind giving + information directly or indirectly, where, or how, or of whom, or + by what means any of the hereinbefore-mentioned matters, articles + or things may be obtained or made, or where or by whom any act or + operation of any kind for the procuring or producing of abortion + will be done or performed or how or by what means _conception may be + prevented_ or abortion may be produced, whether sealed or unsealed; + and every letter, packet, or package, or other mail matter containing + any filthy, vile, or indecent thing, device or substance and every + paper, writing, advertisement or representation that any article, + instrument, substance, drug, medicine, or thing may, or can be, used + or applied, for _preventing conception_ or producing abortion, or for + any indecent or immoral purpose; and every description calculated + to induce or incite a person to so use or apply any such article, + instrument, substance, drug, medicine, or thing, is hereby declared + to be a non-mailable matter and shall not be conveyed in the mails + or delivered from any post office or by any letter carrier. Whoever + shall knowingly deposit or cause to be deposited for mailing or + delivery, anything declared by this section to be non-mailable, or + shall knowingly take, or cause the same to be taken, from the mails + for the purpose of circulating or disposing thereof, or of aiding in + the circulation or disposition thereof, shall be fined not more than + five thousand dollars, or imprisoned not more than five years, or + both.” + +Now as to the State laws. They are very similar in import and +phraseology to the parent Federal law, Section 211, but they deal +with other ways of circulating contraceptive knowledge and means than +transportation by mail or express. The 24 States which have specific +prohibitions, variously forbid publishing, advertising or giving the +information. Fourteen States prohibit any one to tell. (Fancy trying +to enforce such a law!) In most of these States the statute is similar +to that in the District of Columbia, which even forbids the _telling_ +of anything that “will be _calculated_ to lead another” to apply any +information to the prevention of conception, and also makes it a crime +to have in one’s possession any instructions to lend or give away. +That is, the most ordinary channels for human relationship,—private +conversation and the sort of help one friend or relative naturally +gives to another,—become criminal where this subject is concerned. In +several States private property and personal belongings can be searched +by the authorities for “contraband” instructions. Colorado forbids +anyone to bring contraceptive knowledge into the State. (The hold-up of +traffic on the State line if that law were enforced, would be amazing +to contemplate.) But Connecticut surely deserves the booby prize, for +it has the grotesque distinction of being the one State to penalize the +actual utilization of contraceptive information; in other words, the +Connecticut law makes it a crime not only to find out how, but actually +to _control_ conception. The enforcement of that law fairly staggers +the imagination. What could have been in the minds of the legislators +who passed it is a question. + +New York has a unique sort of post-script to its State law, passed +in 1881, eight years after the first law. The main statute (Section +1142 of the Penal Code) is of the most sweepingly suppressive variety. +The added provision (Section 1145) declares that “An article or +instrument used or applied by physicians lawfully practicing, or by +their direction or prescription, for the cure or prevention of disease, +is not an article of indecent or immoral nature or use.” Just how an +_article_ can have an immoral or indecent _nature_ has never been +explained. However, this section has within the last few years been +judicially interpreted to mean that the giving of contraceptive advice +by a physician to a patient who was diseased or seriously threatened +with disease is not an act of criminal indecency. And under this +interpretation a Clinic has been established in New York City by the +American Birth Control League. It is now (1926) in its third year of +service and reports that during its first year it gave contraceptive +instructions to 3000 patients. Similar service is creeping gradually +into a few of the New York Hospitals, but it is being rendered quietly, +indeed almost furtively, so pervasive is the effect of the general +legal taboo. As recently as 1919 thirty of the chief hospitals in the +city officially stated that no preventive instructions would be given +even to seriously diseased women. + +These prohibitions, in the 24 States where they exist, are a part of +the _obscenity_ statutes, just as is the case in the Federal statutes. +They appear under such headings as “Obscene literature” and “Indecent +Articles.” In California the prohibition comes under a general +chapter heading,—“Indecent Exposure, Obscene Exhibitions, Books and +Prints, Bawdy and Other Disorderly Houses.” None of the laws define +contraceptive information as, per se, obscene, indecent, immoral, lewd, +lascivious, filthy, or any of the other revolting things named in the +statutes, but they list it along with these things, in most cases there +being no more separation from them than that which a comma affords. +Section 102 of the Federal law makes a still closer connection of +idea, for it prohibits “importing, advertising, dealing in, exhibiting, +or sending or receiving by mail obscene or indecent publications +or representations or means for preventing conception or producing +abortion, or _other_ article of indecent or immoral use or tendency.” +This knowledge is thus definitely classed as one among “other” things +of indecent or immoral use. + +Science and indecency are in fact hopelessly jumbled in the whole +mass of law affecting this subject. There is not the slightest +differentiation between what is scientific truth,—a part of the +world’s store of knowledge, and things which are the expression of +sexual depravity and perversion. + +To add to the mess, the laws link contraceptive knowledge so closely +with instructions for abortion that in some of the statutes there is +not even a comma between the two. In California the prohibition of +contraceptive information occurs in a statute entitled “Advertising to +produce miscarriage.” Of course the two ideas are actually separated +by an abyss that has no bottom. To control the inception of life must +forever remain a fundamentally different thing from the destroying of +life after it exists. Abortion may be birth control, but birth control +is not abortion. + +Just here it may be well to state precisely what is meant and what is +not meant by the term birth control in its modern application. _It +means the conscious, responsible control of conception. It does not +mean interference with life after conception has taken place, but +consists solely in the use of intelligence and scientific hygienic +knowledge to determine the wise times for conception to occur, and +to limit the possibility of conception to those occasions._ It seems +unfortunate that the term birth control was ever popularized, for the +more correct term is conception control. However birth control has +now become an accepted part of the language, and it is less and less +misleading as time goes on. + +Another extraordinary factor in our laws regarding this subject is +that (with the absurd single instance of Connecticut) the act of +controlling conception is nowhere declared a crime. It is only _finding +out how_ conception may be controlled that constitutes the crime. To +regulate the incidence of parenthood and the growth of one’s family +is a perfectly lawful procedure. Having once secured the knowledge, +which act is unlawful, one may then lawfully utilize it ad infin. The +preposterousness of such a principle as a basis for law is satirically +set forth in an article in the _Birth Control Herald_[2] (Jan. 12, +1923) from which the following is quoted: + + The futility as well as the hypocrisy of standing for laws that make + it a crime to secure knowledge which it is not a crime to use after + it is secured, shows up beautifully if one applies the idea to some + other phase of scientific knowledge than that concerning the control + of conception. Take for instance the principles upon which the + mechanism of the automobile is based. + + Fancy some obfuscated back-number in Congress, with a violent + personal prejudice against the whole notion of automobiles, and who + might love to make eloquent speeches about how man was intended by + God to be a horse-drawn creature, that come what might, he himself + would go about in his own victoria behind his own span of noble + steeds; and that moreover he would do his utmost to see to it that + everyone else should likewise adopt what he considers Nature’s true + plan for transportation,—the horse. + + Picture him then, as he sees the whole world tending to the ambition + to own at least a Ford, introducing a bill a la Comstock, which + would make it a crime to circulate any “book, pamphlet, picture, + paper, letter print or other publication” showing how automobiles + may be constructed, or any “article or thing designed, adapted or + intended” to aid in such knowledge, or “anything which is advertised + or described in a manner calculated to lead another to use or apply + it” to the making of automobiles, or “giving information directly + or indirectly how, where or of whom or by what means, any of the + hereinbefore mentioned matters, articles or things may be obtained,” + etc., etc. + + And while he could he could not help witnessing the daily increase + in automobile traffic, and while he might now and then, when + unobserved, use a taxi himself when circumstances made it desirable, + he certainly would not let that mar his feeling of righteous loyalty + to his general conviction that the spread of knowledge as to the + making of automobiles ought never to be sanctioned by the laws of our + great and glorious nation. + + “Blithering idiot” would be about as complimentary an epithet as such + a Congressman, if he existed, would receive from his fellow members. + But because the Comstock law deals with science pertaining to sex + instead of science pertaining to motors, some Congressmen do not + yet quite recognize the innate stupidity as well as the injustice + of any governmental attempt to put a “no admittance” sign over any + department of knowledge. + +As above stated, we have 24 States in which there is a specific +prohibition of the circulation of contraceptive information or means. +Now what is the situation in the other half of the States? In all but +two of them,—North Carolina and New Mexico,—there are obscenity laws +modeled very closely upon the Federal laws, but unlike them in that +they do not mention by name the subject of contraceptive information +or means. But just because the Federal laws and the laws of half the +States do name the subject among the penalized obscenities, these +22 other States have the strongest possible legal precedent for +prosecuting, _as an obscenity_, if they so desire, the circulation of +any sort of contraceptive information whatever, as something which is +against public policy. And just because obscenity itself has never +been defined in law, but can mean all sorts of things to all manner of +officials, judges and juries, there could be nearly as much opportunity +to prosecute those who give contraceptive information in the relatively +free States as in the States which have specific prohibitions. + +Indeed this is what has recently happened in the State of Illinois. +The Chicago Parenthood Clinic was organized in the fall of 1923 by a +special Committee and Council of well known public spirited men and +women of which Mrs. Benjamin Carpenter was the Chairman. Funds were +raised to support it; Dr. Rachel Yarros of Hull House was engaged as +the physician in charge; a building was equipped; and everything was +ready to function when Health Commissioner Bundensen refused to allow +a license to be issued. In stating his reasons for holding up the +project, Dr. Bundensen indicated that he was actuated not only by his +personal disapproval of birth control but that he felt amply justified +in his position because of the precedent of the Federal law. He said +that “advocating prevention of conception is contrary to public policy, +as clearly indicated by —— act of Congress.” + +The conservative and humanitarian purpose of the Clinic as outlined +by Mrs. Carpenter’s committee was “to extend advice and treatment to +married people only, and where the conditions are such as to make +the bearing of children dangerous or prejudicial to the health and +welfare of the wife or child; to prevent in every manner rational and +proper, recourse to abortion, now too prevalent, and to avoid as far +as is humanly possible, the burdening of the community with defective +children, and the ruination of the health of countless mothers.” In +an interview Dr. Yarros stated that the sponsors of the Clinic were +“opposed to sensational methods, and intended to present both negative +and positive information (that is to help overcome difficulties which +prevented parents from having children as well as to instruct those +who needed to avoid or postpone having children) and to inspire ideals +of family life and happiness.” Dr. Bundensen was adamant, however, +and he was backed by a considerable amount of vehement Roman Catholic +opposition to the Clinic. + +The case was taken to Court, and the decision of Judge Harry M. Fisher +of the Circuit Court of Cook County was in favor of granting a license +to the Clinic. But the opposition appealed the case. The decision of +the higher court in March, 1924, was that the granting of a license +was entirely within the discretion of the Health Commissioner. There +could hardly be a clearer instance showing the influence of the +precedent which the Federal law affords, to suppress contraceptive +knowledge in States which have no law against the giving of verbal +personal instructions. Had there been no legal precedent outside of +Illinois, in the absence of any suppressive law within the State, the +Health Commissioner would have had no basis for his action except his +personal opinion. That alone would, in all probability, not have been +deemed sufficient basis for suppressing the Clinic. However, as it was +only because the Clinic was to give _free_ service that it required +a license, the charging of a small fee enabled the same people to +arrange for the same clinical service under the name “Medical Center,” +and two of these are now operating in Chicago with marked success. +Shorn thus of his opportunity to suppress this service through his +licensing power, the Health Commissioner apparently does not consider +it worth while to institute proceedings against the Medical Center, as +he still might do if he wished to press the Federal precedent into use +again,—especially as the report of the first year’s work of the two +medical centers has now been published. (The substance of this report +is given in Appendix No. 3,—expurgated sufficiently to avoid making +this book “unmailable” under Section 211 of the Federal Criminal Code.) + +The question has often been asked why publishers do not sell books on +scientific contraceptive methods, in the 24 States where there are no +local laws to forbid it. There is great demand for such books, and the +present secret way of circulating the relatively few authoritative ones +in existence is most inadequate for the people’s need. As there are +nearly 50,000,000 people in these 24 States, why not give them what +they need and want now, without waiting for the slow and uncertain +action of Congress in repealing the Federal prohibition? The answer is +very illuminating. + +This is the situation which a publisher or book seller would be up +against, if he were to consider such a thing practically. He might +think first of importing a stock of books from England, for instance +the well-known little volume by —— (the law prohibits naming it) +which is so popular over there that it is now in its ninth edition. +But the Federal law would prevent that at the very start. For the +statute reads, “Whoever shall bring or cause to be brought into +the United States from any foreign country any ... book ... giving +information directly or indirectly,” etc. He could be fined $5000 or +jailed for five years for even trying it. Well then, how about printing +a special edition for, say Illinois, to be sold only in that State? +It sounds hopeful. But just as soon as he got the book printed the +trouble would begin. For he could not mail any announcement of the +book to anyone anywhere. He could not put a single advertisement in +any newspaper or magazine, because they are mailed to subscribers, and +the Federal law prohibits all mailing. He might put the books on sale +in the larger book shops, say in Chicago, but if he did so without +having them announced or advertised, they would not sell enough to +pay for publishing. However if they were also on sale in the shops of +other cities and towns of the State the aggregate sale might be worth +while from the point of view of human welfare if not from that of the +publishers’ purse. + +But even that would be impracticable because the books could not be +shipped from the bindery to any other town either by mail or by express +or freight, or by any sort of common carrier. The Federal law prohibits +all that. So there would be no way to get those books into circulation, +except for one person to tell another that they could be bought, and +for them to be transported from city to city by private vehicle or +messenger; or to advertise them by posters and handbills distributed +personally to individuals, which of course is an exorbitantly expensive +method. + +The conclusion is inevitable that the only practical thing to do is to +repeal the Federal prohibition, which is the root difficulty that lies +in the way of any adequate circulation of the knowledge, anywhere in +the United States. + +For a digest of the provisions of the State laws, see Appendix No. 1. + +For the effect of Federal law upon State laws, see Chart Appendix No. +2. + + + + +CHAPTER II + +HOW IT HAPPENED + + _How it came about that information concerning one item of science + became a criminal indecency: Anthony Comstock’s blundering bequest + to the people: Congress an unwitting partner: States hastily + followed suit: United States the only country to class contraceptive + information with penalized indecency: Legislation aimed at indecency + but hit science: Europe laughs at our “Comstockery”: Documentary + proof that Comstock and his successor, Sumner, did not expect + laws to prevent doctors from giving and normal people from using + contraceptive instructions._ + + +“The evil that men do lives after them,”—likewise their stupidity and +blunders. For over half a century the people of the United States have +been the victims of a great error which Anthony Comstock and Congress +unwittingly committed in connection with their commendable effort to +free the young people of the country from contamination by those who +were then trafficking extensively in smutty literature and inducements +to sex perversion. + +Their error in judgment was to include in Section 211 of the Penal Code +the two words “preventing conception.” In their eagerness to abolish +the promotion of the misuse of contraceptive knowledge in connection +with morbid and irregular practices, they rashly framed the law so as +to forbid all circulation of any knowledge whatever, thus making it in +the eyes of the law just as much a crime for high-minded responsible +married people to learn how to space the births in their families +wisely, as for the low, vicious or perverted few to spread information +about how to abuse this knowledge in abnormal, unwholesome ways. + +The Congressional Record of the short session of Congress which ended +on March fourth, 1873, shows beyond any reasonable doubt that Anthony +Comstock himself had no intention of penalizing _normal_ birth control +information. He was simply so bent upon wiping out the shocking +commerce in pornographic literature which disgraced that period that +he rushed headlong into the question of legislation without due +consideration as to the results, which have made the United States the +laughing stock of Europeans, and which have even prevented the lawful +circulation of medical works for the medical profession. + +The Record reveals the fact that the first draft of the bill contained +the following exemption after the prohibition of all information as +to the prevention of conception or as to abortion, “except from a +physician in good standing, given in good faith.” Why this exemption +was later omitted does not appear in the Record, but its original +existence proves that there was at least some glimmering of realization +somewhere that a wholesale prohibition was not the aim of the statute. +There is wide spread evidence that present day public opinion would not +be at all satisfied with any such exemption, even if it had been left +in the bill, because contraceptive knowledge is part of general hygiene +and education, and not a physician’s prescription as for disease, +though of course the knowledge emanates naturally from the professional +scientists who have made a study of this subject. + +A little sober forethought would not only have spared the country from +the unique disgrace of this careless legislation, but it would to a +considerable extent have spared the country from the need for a birth +control movement,—an advantage of no mean proportions! + +Not one of our Senators is in Congress now who was in Congress then, +not even the most venerable of them, but it would seem that the least +which this present Congress can do is to redeem the record of their +predecessors with all possible grace and speed. + +The Comstock bill was introduced on February 11, 1873, passed by both +Houses and signed by President Grant before the close of the session on +March fourth. + +The chronology of the history of the Bill in both Houses is very brief. +There was practically no discussion on the subject matter. There were +no speeches delivered, until _after_ the bill was passed. The measure +was granted unanimous consent action in the Senate, and was passed +under a suspension of rules in the House. There was no roll call on the +passage of the bill in either House. It slipped under the wire for the +President’s signature on the very last day of the session. And Comstock +went home happy. + +The sequence of events was as follows: + +The bill was sponsored in the Senate by Senator Windom of Winona, +Minnesota, and introduced on February 11th. The measure was referred to +the Committee on Post Offices and Post Roads, and reported out without +amendment two days later, on February 13th. No public hearings were +held. + +On February 14th the bill was recommitted to the Committee on motion +of Senator Buckingham of Connecticut who thereafter took charge of the +bill on the floor. It came promptly back the next day, amended and +approved by the Post Office Committee, but neither the bill nor the +amendment was discussed. The writer has personally inquired whether +there is an official report on the bill in the files of the Post Office +Committee, and was told that there is none. Senator Buckingham asked +unanimous consent to take up the bill, saying, “I think there will be +no objection to it.” Senator Thurman of Ohio protested that it was too +important to vote on without deliberate investigation, and asked that +it go over. It did, for two days. + +On the 20th, by unanimous consent the business of the “morning hour” +was extended for ten minutes to permit discussion of the bill. But +the discussion was remarkably unilluminating as to the merits of the +bill. Senator Buckingham offered an amendment which omitted the clause +providing exemption for contraceptive information on prescription of +a duly licensed physician, given in good faith. Two Senators asked +Senator Buckingham to explain the difference between the amended +version and the previous version. He evaded explaining. + +Senator Hamlin of Maine urged that the measure be accepted as approved +by the Committee and “not to tinker with it on the floor.” Senator +Conkling of New York insisted that the bill be printed as amended, “in +order that we may know something at least of what we are voting upon.” +He said, “For one, although I have tried to acquaint myself with it, I +have not been able to tell, either from the reading of the apparently +illegible manuscript in some cases by the Secretary, or from private +information gathered at the moment, and if I were to be questioned +now as to what this bill contains, I could not aver anything certain +in regard to it. The indignation and disgust that everybody feels in +reference to the acts which are here aimed at may possibly lead us +to do something which, when we come to see it in print, will not be +the thing we would have done if we had understood it and were more +deliberate about it.” + +When Senator Conkling thus cautioned the Senate to be careful in the +framing of the Comstock bill, he had what might be called almost +feminine intuition. For as history has conclusively proved, the Senate +did precisely that thing. It prohibited what it had no intention of +prohibiting,—the spread of scientific education of the wise spacing of +births in the human family. + +But the warning was unheeded and there was no further discussion. The +next day, February 21st, the bill was called up and passed. + +The history of the bill in the House is even more brief. On February +22nd a message was received from the Senate that the bill had been +passed and the concurrence of the House was requested. + +On March first Representative Merriam of Locust Grove, New York, +moved to suspend the rules and “take from the Speaker’s table and +put upon its passage the bill (S. 1572).” Mr. Kerr of Indiana moved +its reference to the Judiciary Committee, saying, “Its provisions +are extremely important, and they ought not to be passed in such hot +haste.” Mr. Cox of New York inquired if debate was in order. The +Speaker ruled that it was not. Mr. Merriam moved to suspend the rules +and pass the bill. The necessary two-thirds vote to suspend the rules +were polled, and the bill was passed without a roll call. + +_After the passage of the bill_, Mr. Merriam obtained leave to print +remarks on it in the Congressional Record. + +Can any candid reader of the record of how this measure was presented +to Congress and passed by the members without debate, possibly assume +that the bill was aimed at the complete suppression of access to +scientific knowledge for normal use? + +If that had been the aim of the bill, surely some of the members would +have been more insistent than they were upon discussing the provisions +of the bill. It is interesting in this connection to note how John S. +Sumner, Comstock’s successor, has attempted to refute the criticism +that the Comstock bill was passed in careless haste. In a letter which +he wrote to Senator Cummins on January 23, 1923, protesting against the +Senator’s bill to repeal the Comstock blunder, he gives as his first +proof that “this bill was thoroughly considered by some of the most +brilliant members of the Senate at that or any other time,” the opening +paragraph of Mr. Merriam’s “leave to print” remarks, and states that +it was “in the House of Representatives on March 1, 1873” that the +Congressman said them. We can give Mr. Sumner the benefit of the doubt +that he read the Congressional Record so carelessly that he did not +notice that the bill was passed before the Senate could possibly have +read Senator Merriam’s arguments urging its passage. But it is also +noteworthy that in this letter to Senator Cummins, he omits to state +the date (March first) on which the bill was passed. He simply says +that it was “subsequently passed by the Senate.” It is also significant +that Mr. Sumner puts the Merriam (unspoken) speech at the head of page +of excerpts he quotes from the Congressional Record, when as a matter +of fact it was the last occurrence in the Senate. It took place after +the bill was enacted, and was therefore no factor whatever in its +enactment. + +For some years previous, excellent publications containing +contraceptive instructions of a dignified and scientific sort had been +increasingly circulated in the United States, notably the book by Dr. +Trall which was sold in such quantity in the sixties that it would rank +well as a “best seller” in present days. It would also still rank high +as authoritative teaching regarding the control of conception if it +could be published in full today. + +The fact that the control of conception was not once mentioned by +any member on the floor of either House is most convincing evidence +that their minds were not taken up with that question, but that they +accepted on faith the general aim of the measure, which was to suppress +gross indecencies. In this connection a further quotation from Sumner’s +letter to Senator Cummins is noteworthy. Although he attempts to +convince the Senator that the Comstock bill had ample attention from +Congress and was thoroughly understood before it was passed, and that +it was also backed by the press of the country, he was unable to muster +a single quotation from a member of Congress or from the press that so +much as named the control of conception, much less discussed whether +information regarding it should be banned in the law. His contention +has no more strength than the mere statement that “each time the bill +came before Congress it was described as a measure for the suppression +of trade in and circulation of obscene literature and articles of +immoral use.” Nor are the few press items he quotes any more specific. +He tried to make them so by underlining the word _articles_ in each +one. But as there are various “articles” used or usable in abnormal sex +practices, the mention of “articles” does not connote the control of +conception, and certainly not the use of contraceptives in normal life. +So his contention is flimsy to the last degree. Congress knew that it +had voted to suppress indecent matter, but it did not know it had also +voted to suppress scientific knowledge. + +People who well remember Comstock’s procedure during the short session +of 1873 have described his very effective way of getting support +for his bill. He simply showed to the members of Congress whom he +interviewed, specimens of the disgusting pictures and publications +which were then in circulation and from which the publishers were +deriving large profits. The stuff was so obviously outrageous and it +was so revolting to know that it was being diligently spread among +the youth of the country, that the response of the Congressmen to his +proposed bill for making the matter unmailable was immediate. This is +the outstanding fact which accounts for the ease with which the bill +was put through without debate. In writing of his own work afterward, +Comstock said, “I am positive I personally presented the full facts to +the large majority, both in the Senate and House.” + +Below are extracts from the _only_ speech made in behalf of the +Comstock bill, and that speech was _never spoken on the floor of +the House_. “Leave to print” speeches have long been a peculiar and +questionable characteristic of American legislation, and this instance +is of exceptional peculiarity in that the “speech” was made _after_ the +bill was passed. + +In the whole long document of which only a brief portion is given here, +there is only one mention of the words “preventing conception” and that +is in a letter which Mr. Merriam quotes from Comstock and this _one +mention is solely in connection with indecencies and perversions_. + + “Mr. Speaker, the purposes of this bill are so clearly in the best + interests of morality and humanity that I trust it will receive the + unanimous voice of Congress. It is terrible to contemplate that + more than 6000 persons are daily employed in a carefully organized + business, stimulated to activity by all the incentive that avarice + and wickedness can invent, to place in the schools and homes of + our country books, pictures and immoral appliances, of so low and + debasing a nature that it would seem that the brute creation itself + would turn from them in disgust.” + +With this, his opening paragraph, Mr. Merriam proceeded to express his +confidence that Congress would so act and that “the outraged manhood of +our age” would condemn this traffic which sought to make “merchandise +of the morals of our youth.” Recent revelations had shown that no +school or home was safe from these “corrupting influences” and that +“the purity and beauty of womanhood has no protection from the insults +of this trade.” + +Mr. Merriam said further that this trade was worse than war, pestilence +or famine. Only this subtle influence, now revealed, could explain the +“crime and depravity in this our day.” He then praised the revelations +made by “one young man in New York whose hand with determined and +commendable energy is falling heavily upon the workers in this +detestable business,” referring to his exhibit of over 15,000 letters +received by dealers in this literature from students of both sexes in +all parts of the country. These and other letters in the Dead Letter +Office had exposed a regular circulating library of obscene books +and pictures. Most of the book plates had been recently seized and +destroyed. + +With the object of placing all the facts before Congress and the +country, Mr. Merriam placed in the Record as part of his remarks a +long letter which he had received from Anthony Comstock of New York. +The letter is dated January 18, 1873, and its first paragraphs are as +follows: + + “Dear Sir: I have the honor to acknowledge the receipt of your favor + of the 12th instant in which you ask for a statement from me in + reference to the traffic in obscene literature. + + “There are various ways by which this vile stuff has been + disseminated. First, by advertising in the above named papers. Some + weeks there is not a single advertisement in some of these papers + that is not designed either to cheat or defraud, or intended to + be a medium of sending out these accursed books and articles. For + instance, I have arrested a number of persons, one in particular, who + advertised a musical album to be sent for fifty cents. I sent the + fifty cents, and received back a catalogue of obscene books with the + following card attached: ‘The album is only a pretense to enable us + to forward you a catalogue of our fancy books. Should you order these + books your fifty cents will be credited.’ + + “It is needless to say I ordered, then arrested him, locked him up + in the New Haven Jail, and he has been indicted by the grand jury in + the United States Court of Connecticut and now is held in bail for + trial. In the same way, by advertising beautiful views or pictures of + some celebrated place or person, men receive answers from innocent + persons for these pictures, and among the pictures sent will be + one or more of these obscene pictures and catalogues of these vile + books and rubber goods. For be it known that wherever these books + go, or catalogue of these books, there you will find, as almost + indispensable, a complete list of rubber articles for masturbation or + for the professed _prevention of conception_. (The italics are ours.) + + “Secondly: The abominations are disseminated by these men first + obtaining the addresses of scholars and students in our schools and + colleges and then forwarding these circulars. They secure thousands + of names in this way, by either sending for a catalogue of schools, + seminaries, and colleges, under the pretense of sending a child to + attend these places, or else by sending out a circular purporting to + be getting up a directory of all the scholars and students in schools + and colleges in the United States, or of taking the census of all + the unmarried people, and offering to pay five cents per name for + list so sent. I need not say the money is seldom or never sent, but + I do say that these names, together with those that come in reply to + advertisements, are sold to other parties so that when a man desires + to engage in the nefarious business he has only to purchase a list + of these names and then your child, be it a son or daughter, is as + liable to have thrust into its hands, all unbeknown to you, one of + these devilish catalogues. + + “You will please observe that this business is carried on principally + by the agency of the United States mails, and there is no law by + which we can interfere with the sending out of these catalogues + and circulars through the mail, except they are obscene on their + face; and there are scores of men that are supporting themselves + and families today by sending out these rubber goods, etc., through + the mails, that I cannot touch for want of law. There are men in + Philadelphia, in Chicago, in Boston and other places who are doing + this business, that I could easily detect and convict if the law was + only sufficient.” + +Mr. Merriam then concluded as follows: + + “With the passage of this bill I shall have performed a most + uninviting duty. No man even when compelled by a conscientious + conviction of official duty, goes willingly down into the gutters of + human depravity to act as scavenger to root out moral deformities. + He fights to advantage who knows his enemy. The good men of this + country who regard their homes as their sanctuaries, warned by this + exposure, will act with determined energy to protect what they hold + most precious in life, the holiness and purity of their firesides.” + +So much for the story of how the Federal statutes happened to be +fastened upon American law. The example was contagious. A veritable +epidemic of State legislation in similar phraseology ensued, until +ere long, there were only two States without obscenity statutes which +echoed the Federal law and which, in many instances, went much further +than the Federal law in suppressive policy. American laws in this +regard stand unique among those of the nations of the world. In various +countries there are obscenity statutes and regulations, but in none +save the United States is contraceptive information, _per se_, classed +with penalized indecency. In no other country is science reduced to +the level of obscenity in the law. Bernard Shaw said twenty years ago, +“Comstockery is the world’s standing joke, at the expense of the United +States.” + +Some degree of praise and a deluge of denunciation has been poured +upon Anthony Comstock for the legislation he initiated, the arrests +and suppressions which he accomplished, and for the spying methods he +used, to entrap those whose activities he considered criminal. Any +final or complete estimate of his qualities, and the value of his work +to the people of the country would be out of place in this book, but +it may be of use, in considering what sort of legislation the country +should have, to get at something of the _why_ of Comstock’s efforts. +The fairest way to arrive at an unprejudiced conclusion about him would +seem to be to let him speak for himself, by quoting from his own books +describing his major work, and then to give the reader representative +glimpses of his work and his psychology through the words of both his +ardent supporters and his adverse critics. + +But first it is essential to bear in mind that the dent Anthony +Comstock made in American life was considerably due to the fact that +he was given special power both by Congress and by the New York State +Legislature to act as a government agent in securing arrests. This +power, coupled with the almost unparalleled energy of the man, made +his career exceptional. Had it not been for these two factors, it +might perhaps seem clear that his psychology was not so very different +from that of many less well known folk of his day and our own,—the +perfectly respectable, and to all outward appearance normal people, +who see sex as something innately nasty and dangerous: the only +difference being that while Comstock, armed with his governmental +power, translated his feeling into prodigious activity in the way of +suppressing people, the others, lacking his official power and his +energy, have remained rather inert. They have not therefore become +conspicuous characters. The Comstock psychology, in modified and milder +form, appears to be not at all a rarity. + +The way in which Comstock got his special power to enforce the +Federal law is described by his biographer, Rev. C. G. Trumbull in +his book, “Anthony Comstock, Fighter,” as follows: “Immediately after +the patience-taking passage of the bill in Congress ..., Senators +Buckingham, Windom, Ramsey, and Representative Merriam united in asking +Post Master General Jewell to appoint Comstock a special agent of the +Post Office Department to enforce the laws. The Post Office Bill was +still pending; the Post Office Committee offered this proposition as an +amendment, and it was passed with the bill.” The Post Master General +agreed to make the appointment, if an appropriation were voted for the +salary and per diem expenses. Comstock went before the Committee on +Appropriations and opposed the salary, on the ground that the position +would thus be kept out of politics. He was appointed and held the +office for thirty-three years. The Y. M. C. A. paid him $100 a month +“to compensate him for the time lost from his business.” He was still +ostensibly a grocery clerk. When Cortelyou was Post Master General, +he insisted that Comstock should take a salary and be a government +employee on a regular basis. At this time also his title of “Special +Agent” was changed to “Inspector.” This occurred in about 1910. +The duties of the office, as given by the Postal Laws, include the +following: the “investigation of all matters connected with the postal +service,” “alleged violations of law” and “when necessary to aid in the +prosecution of criminal offenses.” Postal employees are “subordinate +to post office inspectors when acting within the scope of their duty +and employment.” “Inspectors are empowered to open pouches and sacks to +examine the mail therein.” When authorized by the Post Master General, +they are empowered to “make searches for mailable matter transported in +violation of law,” to “seize all letters and bags, packets or parcels, +containing letters which are being carried contrary to law on board any +vessel or on any postal route.” + +Comstock’s special power under New York State law was in connection +with his position as Secretary of the Society for the Suppression of +Vice. This Society was incorporated by the New York Legislature in +May, 1873,—within six weeks of the passage of the Comstock bill by +Congress. Section 3 of the Act of Incorporation states the object of +the society to be “the enforcement of the laws for the suppression of +the trade in and circulation of obscene literature and illustrations, +advertisements, and articles of indecent and immoral use, as it is +or may be forbidden by the laws of the State of New York or of the +United States.” Section 5 contains an extraordinary provision, which +reads this way: “The police force of the city of New York, as well +as of other places, where police organizations exist, shall, as +occasion may require, aid this corporation, its members or agents, in +the enforcement of all laws which now exist or which may hereafter +be enacted for the suppression of the acts and offenses designed in +Section 3 of this Act.” Note that the police force was to aid the +Society, not the Society the Police. An almost incredible further +provision in the original Act of Incorporation was that “One half the +fines collected through the instrumentality of the Society, or its +agent, for the violation of the laws in this act specified, shall +accrue to its benefits,”—a provision which fortunately was soon +repealed. + +This unusual sharing of official responsibility for law enforcement +between government officials and private citizens was carried still +further, by the enactment, two years later, of Section 1145 of the New +York Criminal Code, which under the general heading of “Indecency” +is subtitled, “_Who may arrest persons violating provisions of this +article_” and reads thus: “Any agent of the New York Society for the +Suppression of Vice upon being designated thereto by the sheriff of +any county in the State, may within such county make arrests and bring +before any court or magistrate thereof having jurisdiction, offenders +found violating the provisions of any law for the suppression of the +trade in and circulation of obscene literature and illustrations, +advertisements and articles of indecent or immoral use, as it is or +may be forbidden by the laws of this State or of the United States.” +According to John S. Sumner, the present secretary of the Society, +Comstock “_was always deputized_” by the sheriff. “He liked the +arresting and all that sort of thing,” said Mr. Sumner with a rather +tolerant smile; “I don’t care much for it, myself.” + +This special power with which Comstock was vested by the State was +questioned, but never with sufficient force to revoke the act which +conferred it. Mr. Courtlandt Palmer, a lawyer of distinction, made a +most earnest criticism of the Comstock laws in the New York Observer +of April 26, 1883, in which he said, “These laws tend to confine +administration to certain classes. The district attorneys are the only +democratic prosecutors of the cases under consideration by the Society +for the Suppression of Vice.” He spoke of the Society as endeavoring to +“supplement and supplant the regular process of law by confiding the +machinery of justice to special and irresponsible associations upon +whom is conferred the unrepublican power not only of prosecution but of +arrest.” + +In selecting representative passages from Comstock’s own words, space +forbids the giving of any large number. Choosing is a bit difficult, +because Comstock’s style of expression was so redundant, so abounding +in detail, that concise quotations are not easy to provide. Selections +pertinent for our present use are first those which indicate his +general psychology,—the mental background on which he built his +career, and then those which show the place he gave in his own mind to +the subject of the control of conception. + +The titles of his two sizable books are “Frauds Exposed” and “Traps for +the Young.” They constitute his life story in his own words. He was +proud of having arrested 3873 persons, of whom 2911 were convicted. +Satan was to him a very live foe. He dramatized the combat with this +enemy to the highest degree. His reports of his adventures in making +arrests read, not like the recapitulations of a dutiful officer or of +a trained welfare worker, but rather like the dime novels which he so +roundly denounced. He wound up the story of one of his captures in +Boston with the exuberant exclamation, “Then ho for the Charles St. +Jail!” + +Satan to him was apparently the representative of obscenity; and +obscenity, if not completely synonymous with sex, was very nearly so. +At any rate the idea of obscenity as an enveloping enemy permeated +every other subject that Comstock touched upon. It seems as if he +felt that practically all roads led to obscenity, and that it was his +duty to block all the roads. In the opening chapter of “Traps for the +Young,” after describing in detail box traps, fox traps, partridge +snares, bear traps, rat traps, etc., he says: “Satan adopts similar +devices to capture our youth and secure the ruin of immortal souls ... +the love story and cheap work of fiction captivate fancy and pervert +taste ... rob the child of the desire to study.... There are grave +questions in the minds of some of our best writers and of our most +thoughtful men and women, whether novel reading _at its best_ does +not tend downward rather than upward.... Light literature then is a +devil trap to captivate the child by perverting taste and fancy.” (The +italics are ours.) + +Fear was apparently as great a factor in Comstock’s make-up as his +vigor. He seemed to have little trust in the self-reliant virtue of +people of any age and almost none at all in young people. Here is +another bit from the “Traps”: “Drop into the fountain of moral purity +in our youth the poison of much of the literature of the day, and +you place in their lives an all pervading power of evil. A perpetual +panorama of vile forms will keep moving to and fro before the mind, to +the exclusion of the good. _Evil influences burn themselves in._ Vile +books and papers are branding irons heated in the fires of hell, and +used by Satan to sear the highest life of the soul. The world is the +devil’s hunting ground, and children are his choicest game.” + +The Chapter headings which Comstock chose for the “Trap” book are +indicative of his mental trend. This is the list: + + I. Household Traps (light literature) + II. Household Traps continued (newspapers) + III. Half-dime Novels and Story Papers + IV. Advertisement Traps + V. Gambling Traps + VI. Gambling Traps continued + VII. Gambling Traps continued + VIII. Death Traps by Mail (Obscenity) + IX. Quack Traps + X. Free Love Traps + XI. Artistic and Classical Traps + XII. Infidel and Liberal Traps + XIII. More Infidel and Liberal Traps + +In a letter read on the fortieth anniversary of his Society, Comstock +said, “Let me emphasize one fact, supported by my nearly forty-two +years of public life in fighting this particular foe. My experience +leads me to the conviction that once these matters (obscenity) enter +through the eye and ear into the chamber of imagery in the heart of a +child, nothing but the grace of God can ever blot it out.” One wonders +how lively Comstock’s faith in the grace of God may have been, inasmuch +as he was willing to give it so few chances to function. His own +words and his actions seem to invite the conclusion that his fear was +considerably larger than his faith. + +In an interview with Comstock by Mary Alden Hopkins in Harper’s Weekly +of May 22, 1915, he asserted that the “existing laws are a necessity +in order to prevent the downfall of youth of both sexes.... To repeal +the present laws would be a crime against society and especially a +crime against young women.” Apparently he felt that young women were +especially weak in their power of resistance to obscenity. In the same +interview, speaking of the Federal law, Miss Hopkins asked, “Does it +not allow the judge considerable leeway in deciding whether or not a +book or a picture is immoral?” “No,” replied Mr. Comstock, “the highest +courts in Great Britain and the United States have laid down the test +in all such matters. What he has to decide is whether or not it might +rouse in young and inexperienced minds, lewd or libidinous thought.” + +Here we have at least one key to Comstock’s attitude. It is evident +from the passages already quoted and from his record as a prosecutor +of many persons of fine standing, good taste and high ideals, that +the things which he thought could arouse lewd or libidinous thought +were legion, and he detected that quality in all manner of instances +when it was not at all evident to others. For example, he describes +on page 163 of the “Traps,” how he made an arrest at what he called a +“free love convention.” He said he slipped into the hall unnoticed, and +“looked over the audience of about 250 men and boys. I could see lust +in every face.” If ever anyone had a sturdy belief in the fall of man, +it would seem to be Anthony Comstock. Human nature to him was innately +corrupt, or at least so large a part of it was corrupt that, in his +view, it warranted suppressive laws applying to everyone whether clean +minded or depraved. This attitude was plainly indicated in a later +part of the above mentioned interview with Miss Hopkins. She says, “I +was somewhat confused that Mr. Comstock should class contraceptives +with pornographic objects which debauch children’s fancies, for I knew +that the European scientists who advocate their use have no desire +at all to debauch children. When I asked Mr. Comstock about this he +replied,—with scant patience for “theorizers who do not know human +nature.” “If you open the door to _anything_, the filth will all pour +in and the degradation of youth will follow.” (The italics are ours.) + +That he dramatized himself as a hero and a martyr seems quite evident +all through his career. When the Hearing was held on the petition +to repeal his laws shortly after they were passed by Congress, he +describes the scene thus: “As I entered the Committee room, I found it +crowded with long-haired men and short-haired women, there to defend +obscene publications, abortion implements and other incentives to +crime, by repealing the laws. I heard their hiss and curse as I passed +through them. I saw their sneers and looks of derision and contempt.... +It was not the blackening of my reputation that weighed me down, so +much as the possibility that one of the most righteous laws ever +enacted should be repealed or changed.” + +His faculty for reading into things what was in his own mind was never +more clearly demonstrated than by his description in “Frauds Exposed,” +of the work of the National Liberal League, an organization formed in +1876, one of the chief objects of which was the repeal of the Comstock +laws. He devoted a long chapter to it, writing in great detail of how +“Infidelity” had “wedded Obscenity.” At the first convention of this +League, Comstock says, they “espoused the cause of nastiness” and +“considered means to aid and help the vendors of obscene publications.” +He asks, “Do infidelity and obscenity occupy the same bed? Are they +appropriately wedded?” He declared that at this convention they +“proclaimed the banns between Infidelity and Obscenity in the following +resolution, which he quotes as overwhelming proof of the nastiness of +the organization: + + _Resolved_, that this League, while it recognizes the great + importance and absolute necessity of guarding by proper legislation + against obscene and indecent publications, whatever sect, party, + order or class such publications claim to favor, disapproves and + protests against all laws which by reason of indefiniteness or + ambiguity, shall permit the prosecution and punishment of honest + and conscientious men for presenting to the public what they deem + essential to the public welfare, when the views thus presented do not + violate in thought or language the acknowledged rules of decency; and + that we demand that all laws against obscenity and indecency shall + be so clear and explicit that none but actual offenders against the + recognized principles of purity shall be liable to suffer therefrom. + + _Resolved_, that we cannot but regard the appointment and + authorization by the government of a single individual to inspect + our mails with power to exclude therefrom whatever he deems + objectionable, as a delegation of authority dangerous to public and + personal liberty, and utterly inconsistent with the genius of free + institutions.” + +“Therefore,” says Comstock triumphantly, “I charge that they defended +obscenity for the love of it.” + +A welter of adjectives was an outstanding feature of Comstock’s books. +He gives his reader very little opportunity to judge for himself as to +the character of the crimes his prisoners committed, for he does not +state concretely what they were, but he uses phrases about them such as +“diabolical trash,” “carrion,” “leprous influences,” etc. On only two +pages opened at random in the “Traps” book, were noted the following +words and phrases: “moral vulture,” “terrible talons,” “cancer,” “damns +the soul,” “frightful monster,” “homes desolated,” “whited sepulchres,” +“putrefying sores,” “immense cuttlefish,” “turgid waters,” “jackal,” +“pathway of lust,” “lust is the boon companion of all other crimes.” In +the light of modern psychology, this choice of language carried to such +extreme, betrays fear and sex obsession to a degree that would hardly +seem to fit a man for sound service either as a law maker or as an +enforcer of the law. + +However, now let us take a look at Comstock through the eyes of others. +His biographer, Rev. C. G. Trumbull, wrote of him thus toward the +close of his career: “Mr. Comstock today likes to dwell upon what he +calls the wonderful goodness of God in those early days of the fight +for purity. And it _is_ a story of God’s work, not man’s, when we +remember that it was an unknown clerk, twenty-eight years old, who had +hardihood to go to the national capitol with the idea of getting his +own convictions put into legislative action; that finding there two or +three other bills pending in the same field (one regarding the District +of Columbia instigated by the Washington Y. M. C. A., the other by Gen. +Benjamin F. Butler, amending the inter-state commerce law to prohibit +sending obscene matter from one State to another) he stuck to it till +all were merged in a single bill of five comprehensive sections; that +he prayed his bill through both houses in the strenuous closing hours +of the winter session, and that he returned home under appointment as a +staff officer of a cabinet officer of the United States!” Dr. Trumbull +adds that the Y. M. C. A. “gladly paid the expenses of the Washington +campaign.” + +That is the viewpoint of a friend and admirer. Now we turn to the +slant from which Comstock was viewed by one of his most severe +critics, D. M. Bennett of New York, editor of “The Truth Seeker” +and a leader in the agnostic and liberal group known as the National +Liberal League. Comstock alluded to this organization as “debauching +the public conscience,” and as “this pestilence which drags down +and never builds up.” Comstock secured the arrest and conviction of +Bennett on an obscenity charge, and Bennett wrote at great length +several articles to prove that Comstock’s real animus against him was +religious intolerance, and that the obscenity charge was a subterfuge. +Bennett served a sentence of several months in the Albany jail. In +his pamphlet, “Anthony Comstock,—His Career of Cruelty and Crime,” +published in 1878, Bennett says: “Far be it from the writer to deny him +any of the good he has performed, though the means by which he reaches +his ends, and by which he brings the unfortunate to punishment, are not +such as good men approve. Among a certain class of vile publishers, he +has accomplished a reform that must be placed to his credit, but the +system of falsehood, subterfuge and decoy-letters that he has employed +to entrap his victims and inveigle them into the commission of an +offense against the law is utterly to be condemned. + +“The want of discrimination which he has evinced between those who +were really guilty of issuing vile publications, and whose only object +was to inflame the baser passions,—and those who published and sold +books for the purpose of educating and improving mankind, has been a +serious defect with this man. While he suppressed much that is vile, +he has to a much larger extent, infringed upon the dearest rights of +the individual, thus bringing obloquy and disgrace upon those who had +a good object in view. And upon those who in a limited degree were at +fault, he has been severe and relentless to a criminal extent. He has +evinced far too much pleasure in bringing his fellow beings into the +deepest sorrow and grief; and under the name of arresting publishers +of and dealers in obscene literature, he has caused the arraignment of +numerous persons who had not the slightest intention of violating the +rules of propriety and morality.” + +Further on in the same pamphlet, Mr. Bennett says: “Being questioned +at a public meeting in Boston, May 30, 1878, where he was endeavoring +to organize a branch of the Society for the Suppression of Vice, +he was asked the following question by the Rev. Jesse H. Jones, a +Congregational minister: (1) ‘Did you, Mr. Comstock, ever use decoy +letters and false signatures?’ (2) ‘Did you ever sign a woman’s name +to such decoy letters?’ (3) ‘Did you ever try to make a person sell +you forbidden wares, and then when you had succeeded, use the evidence +thus obtained to convict them?’ To each of these questions Comstock +answered, ‘Yes, I have done it.’” + +One of the best known instances of Comstock’s decoy system for securing +arrests was that of William Sanger. As described by Mr. Sanger in a +written statement prepared for his trial and which the judge allowed +him to present only in part, the circumstances were these. On December +18, 1914, a man had come to his studio, saying that his name was +Heller, that he was a dealer in rubber goods and sundries, that he had +read Mrs. Sanger’s booklets “What Every Girl Should Know” and “What +Every Mother Should Know,” that he had enjoyed reading them and was +in sympathy with her work. He then asked for a copy of the pamphlet +on family limitation. Mr. Sanger said he had none. The man insisted, +asked if Mr. Sanger could not find one around somewhere for him, as +he wanted to reprint it in several languages for distribution among +the poor people he worked with and with whom he did business. Mr. +Sanger took the trouble to hunt about among his wife’s belongings and +found a single copy of the booklet, which he gave to the man. A month +later Anthony Comstock appeared and arrested him for having given +contraceptive information contrary to the New York law. The man who +came to him as Heller, was in reality Comstock’s spy. His real name +is Bamberger and he is still in the employ of the Society for the +Suppression of Vice. Mr. Sanger stated that Comstock on the day of his +arrest had offered to get him a suspended sentence if he would plead +guilty. Mr. Sanger declined and he was sentenced to thirty days in the +workhouse, which sentence he served. + +This leads logically to the next consideration, namely, the place +which Comstock gave in his own mind, and thus in the laws he framed, +to contraceptive knowledge. And again let him first speak for himself. +In a letter which he wrote on April 28, 1915, to Mrs. Clara Gruening +Stillman, Secretary of the National Birth Control League (the first +national birth control organization in this country) he said: “A +letter dated April 23, 1915, purporting to have been sent out by you +as Secretary of the Birth Control League, has been referred to this +office. In this letter you say, ‘The law, both State and Federal at +present makes it a crime even for physicians to give information as to +methods, no matter how essential such knowledge may be to the physical +and economic well-being of those concerned.’ There is not a word of +truth in this statement, and you cannot find a single case, since the +enactment of these laws, to justify such a statement on the part of +your League.” Further on in the same letter he says: “I challenge your +League to produce a single case where any reputable physician has been +interfered with or disturbed in the legitimate practice of medicine. +Do not make the mistake, however, of classifying the quack, and the +advertiser of articles for abortion and to prevent conception, with +reputable physicians. + +“You cannot safeguard the children on the public streets by turning +loose mad dogs, neither can you elevate their morals by making +it possible for them to sink themselves to the lowest levels of +degradation, by furnishing them with the facilities to do so.... I +shall be very happy to meet a representative of your League at any +time and show the laws in detail and the necessity for their existence +precisely as they are; and I can assure you that they will not be +changed either by the Legislature or by Congress.” + +Again in the interview with Comstock by Mary Alden Hopkins, from which +quotation was made above, he responded to her question, “Do not these +laws handicap physicians?” by this reply, “They do not. No reputable +physician has ever been prosecuted under these laws.... A reputable +doctor may tell his patient in his office what is necessary, and a +druggist may sell on a doctor’s written prescription drugs which he +would not be allowed to sell otherwise.” + +This is a baffling sort of mind to deal with. For either he did not +fully realize the meaning of the laws which he himself framed, or +else he hopelessly confused the actual wording of the laws with his +personal choices as to the people to whom they should apply. For +the Federal law as enacted by Congress and as it stands to this day +contains no exemptions or qualifications whatever, as to the giving of +contraceptive information. It is just as criminal for a conscientious +doctor to send needed contraceptive instructions to a patient, as +for a sex pervert to send an advertisement of contraceptive means +with his depraved literature. And in the District of Columbia and +in at least seventeen States it is just as criminal for a reputable +doctor to instruct a patient, even verbally in the privacy of his own +office, as it is for any low-minded person to peddle pornographic +stuff containing contraceptive directions. The language of these laws +is perfectly plain; they are flat, sweeping prohibitions and apply to +everybody alike. It would seem almost incredible that Comstock should +have dared to assert that they did not forbid physicians, or to assume +that because neither he nor the government officials chose to enforce +the laws on all offenders, that the laws, therefore did not apply to +all offenders. But perhaps his mind was so focussed on the fact that he +had not himself prosecuted any physicians whom he considered reputable, +that he assumed the impossibility of their being prosecuted by any one. + +However, it seems doubtful that he was quite so oblivious as to the +plain import of the law’s words, as to sincerely think they did not +mean what they said. It seems more likely that in planning laws as he +did with their sweeping prohibition, he was instinctively acting to +provide himself and those who were involved in the enforcement of the +laws, with an absolutely unhampered opportunity to decide who among +the law-breakers were “reputable” and what was “obscene,” “immoral,” +etc., and to pick out whatever offender they chose for prosecution. He +knew of course that complete enforcement was utterly impossible, but to +be able to make the law effective here and there according to his own +will, was a use of power that was very evidently to his liking. + +Comstock’s moral code on this matter would seem then to boil down to +about this, if he had presented it, shorn of all his adjectives and +settings: some perverts use contraceptives, therefore the law should +not allow any one at all to secure them or know anything about them, +and besides, as most of those who are not perverts can’t be really +trusted anyhow, hearing about or seeing contraceptives would be pretty +sure to make them go to the devil, especially young people, so the +complete prohibition is after all the safest; however, if you happen +to be decent and you can manage to get a doctor to give you some +information, I will not have the doctor prosecuted, that is, provided +he is _my idea_ of reputable. + +The question for present day citizens is as to whether they want to +retain laws framed by a man holding such a concept, and which laws +accurately reflect that concept, or whether they want to revise the +laws to reflect the concepts held by the majority of the fairly normal +wholesome-minded people of this country who have long ago proved their +belief in the control of conception by practicing it,—that is, as best +they can under the handicap of the laws. + +While Comstock’s successor, John S. Sumner, still echoes the Comstock +code, it is a considerably fainter echo than it was a decade ago. +Sumner’s expression of his views is much less hectic and denunciatory +than was Comstock’s. He concedes more than Comstock ever did, and +a good bit more than he did himself, when he first fell heir to +Comstock’s mantle. There are many New Yorkers who recall the crowded +meeting at the Park Avenue Hotel when Sumner was one of the speakers +in a symposium on birth control, and how he asserted that there was +no need for birth control knowledge in the world, because if there +got to be too many people, there would always be war, famine and +disease to counteract overpopulation, and how he was hissed for saying +it. Contrast that attitude of mind with what he wrote some eight +years after, in his previously quoted letter of January 23, 1923, to +Senator Cummins, in which he said, “There is no disputing the fact +that parents should use judgment in bring children into the world. +Questions of health, heredity, environment and economic situations make +this desirable.... The ever increasing number of social and medical +organizations and combinations of the two that have to do with the +welfare of the people are and will be more and more in position to +refer the individual family to the proper authoritative sources of +contraceptive information, under the present laws, namely to the proper +maternity hospital or physician.” Of course Mr. Sumner knows quite well +that “under the present laws” in many of the States this information +could not be lawfully given as he describes, and he also knows that no +physician anywhere in the whole country could lawfully send any such +instructions to a patient by mail. Later in the same letter is this +sentence: “The imparting of information regarding this subject should +be confined to reputable physicians after personal investigation of the +particular case.” (Just how the laws could be expected to operate to +compel the persons to whom the information is imparted by the physician +to keep it a dead secret, Mr. Sumner does not state.) + +These quotations suggest several important points for discussion +in connection with propositions for revising the laws, but their +usefulness for the moment is to provide documentary evidence that both +Comstock and Sumner, the latter more than the former, have not looked +upon the present laws as a means of preventing doctors from giving and +normal people from using contraceptive information. That they would +prevent it, if enforced, they could not deny, but that only proves +conclusively that the present laws are very ill-framed, even from the +view points of Comstock who initiated them, and of Sumner who, as yet, +does not want them changed. + + + + +CHAPTER III + +IS ENFORCEMENT POSSIBLE? + + _Relatively few indictments in over fifty years: Ulterior motive in + many of those: Post Master General Hays’s leaning toward revision: + Post Master General Work’s gesture of enforcement: Clinic reports and + medical research data unlawfully published and mailed: Misleading + criminal advertisements go unpunished: Government itself breaks the + law: Forbidden books found in Congressional Library: Senators and + Congressmen willing to break law, but hesitate to revise it._ + + +As noted in the last chapter, it was admitted by Comstock that the law +as he framed it, was essentially hypocritical with regard to the giving +of contraceptive information. According to his own records, relatively +few of the many arrests he procured, were for giving contraceptive +information, and a very small part of those were for that thing pure +and simple, but usually because contraceptive information was involved +in other matters or when it was the most convenient means of “getting” +a person, whose arrest was wanted for other reasons. Apart from the +prosecutions instigated by Comstock and his successor John Sumner, the +government officials in over fifty years have made almost no effort +to indict those who have broken the law,—certainly no effort that is +at all commensurate with the sweeping and unqualified character of +the prohibition. Diligent search has been made for a complete list of +the indictments in the United States for the giving of contraceptive +information, but so far, no such list has been found, and to extract +those few cases from the multitudinous court records would be almost +a life work. But enough search has been made to amply warrant the +statement that prosecutions have been few, and that infringements +have now mounted into the millions. And, like Comstock, the regular +government officials, have also been prone to utilize infringements of +the contraceptive ban as an excuse for indicting people whose arrest +was wanted otherwise. + +In Comstock’s own book “Frauds Exposed,” in which he recapitulates +his forty years of work in jailing people, the space given to +contraceptive cases is only about five per cent of the whole book. +His greatest emphasis and the bulk of his effort went to suppressing +general obscenity, gambling and fraud. A similar proportion is found +in his later book, “Traps for the Young.” In D. M. Bennett’s pamphlet +on “Anthony Comstock,—His Career of Cruelty and Crime,” 27 cases of +prosecutions initiated by Comstock are chronicled. Of these only 5 are +indictments involving the giving contraceptive information. In Theodore +Schroeder’s monumental volume, “Obscenity and Constitutional Law,” +which reviews obscenity prosecutions covering several generations, +there are found to be less than ten in which contraceptive information +was the probable main factor in the case. Appendix No. 4 gives a +list of 23 more or less well known cases of prosecutions with the +disposition of each case. Several of them were instances where the +birth control issue was obviously used as a cloak for an ulterior +motive in causing the arrest. + +This was notably true in the recent case of Carlo Tresca, the editor +of an Italian paper, “Il Martello,” published in New York City. The +facts in the case were, briefly, these: In the absence of Mr. Tresca +the advertising manager of the paper printed a two-line, small-print +advertisement of a pamphlet on birth control methods, by an Italian +physician, a publication which has been very popular and which has +been considerably advertised in other Italian papers; the Post Office +notified “Il Martello” that the advertisement rendered the paper +unmailable as it was an infringement of Section 211 of the Federal +Criminal Code; the two lines were accordingly deleted and the edition +was mailed; but shortly afterwards the advertising manager was arrested +and imprisoned for the infringement; Tresca also was arrested, though +he had not known of the advertisement at the time it was printed; he +was sentenced to “a year and a day” in the Federal penitentiary at +Atlanta. During and after his trial some illuminating testimony was +brought forth, showing that the birth control charge was merely a +handle for political persecution; it seems that Tresca in his paper and +otherwise had vigorously opposed the Mussolini regime in Italy, and +the Italian Ambassador while making a dinner address in Washington had +stated that there was a certain Italian paper in New York which ought +to be suppressed; “Il Martello” was subsequently subjected to many +petty annoyances from the Post Office, culminating in the arrest of the +editor on the birth control charge, _after_ the offending advertisement +had been promptly deleted in accord with the Post Office notification; +during the trial the prosecuting attorney admitted that the complaint +against the paper regarding the advertisement had come from the office +of the Italian Ambassador. + +These facts became widely known. Many letters of protest from well +known citizens were sent to the Attorney General and President +Coolidge, with the result that the President commuted the sentence to +four months. + +It is noteworthy that Tresca’s original sentence was the longest of +any on record in recent years, perhaps in any years, for this sort +of offense. The maximum of five years in jail and $5000 fine seems +never to have been imposed since the law was enacted. In the 23 cases +listed in Appendix No. 4, the imprisonment terms were as follows: +one for a year and a day, one for six months, two for sixty days, +four for thirty days, three for fifteen days, and seven were freed or +their cases were dismissed. As to fines,—there was one of $1000, one +of $100, three for $25 and one for $10. It is told of a judge in the +middle west that he imposed a fine of _one cent_ in a case of this +sort; the prisoner was guilty under the law, so the judge did his duty, +but he apparently also took occasion to register his opinion of the +value of the law. Margaret Sanger, the best known among birth control +“criminals,” has served but thirty days in jail, all told, though +arrested four times. Her nine indictments under the Federal law in +1914 were dismissed. She was freed after arrest in Portland, Oregon, +as was also the case when she was arrested at the Town Hall in 1921 +in New York when the police broke up the meeting before any one had +spoken at all. The charge in this instance was not giving contraceptive +information, but disorderly conduct and resisting the police. The one +sentence she served was that imposed for opening her “Brownsville” +Clinic for giving contraceptive instruction in New York in 1916. For +at least ten years past, the local police, the Post Office authorities +and John Sumner, Comstock’s successor, have known that Mrs. Sanger +was infringing both Federal and State law on a more or less wholesale +scale, but there has been no prosecution. In a lengthy letter which +Sumner wrote to all the members of the U. S. Senate Judiciary Committee +on February 18, 1921, and in an almost identical letter which he wrote +to Senator Cummins on January 23, 1923, in which he pleaded for the +continuance of the present laws without change, he twice mentions the +fact that Mrs. Sanger had “published a pamphlet entitled —— which +described various methods and articles for the prevention of conception +and their methods and use.” Yet he has not had her arraigned, as he +would be in loyalty bound to do, if his belief in the present laws were +thorough-going, as he assured Senator Cummins it was. In his letter +Mr. Sumner gives the title of the pamphlet, which makes him also an +offender against the Federal law, Section 211,—which forbids anyone to +mail any “written or printed card, letter, circular, book, pamphlet, +advertisement, or notice of any kind giving information, directly or +indirectly, where, how or of whom or by what means conception may be +prevented.” Mr. Sumner in his letter told the Senator “of whom,” and +he did so “directly.” He knew he did not risk arrest for doing it even +though his act was a “crime.” In all probability neither should we, if +we were to print the title of the pamphlet; but as both the author and +the publisher of this book are interested in the discussion of sound +legislation on this subject rather than in possibly precipitating one +more indictment under this good-for-naught law, we discreetly leave the +title blank. + +The conclusion seems quite obvious, judging by the light penalties, +the few prosecutions, and the blinking at infringements, that the +government, like most citizens, takes this law very lightly and has +no idea of living up to its obligation to enforce it. There has been +one Post Master General however in recent times who has made at least +a gesture toward enforcement, and another who made at least a gesture +toward a common-sense revision of the laws. + +The latter was Post Master General Hays, and had he not resigned his +position to go into the moving picture business, perhaps the United +States laws on this subject would now be renovated so as to be more a +reflection of the people’s beliefs and more true to American ideals. +The circumstances in the summer of 1921 were most propitious. Mr. +Hays had made several public statements that he was convinced that +the Post Office should not operate a censorship system. He had put +himself on record in unmistakable terms, and his words had been widely +published by the newspapers. So in August of that year, an interview +with Mr. Hays was secured by the Director of the Voluntary Parenthood +League, and the question laid before him as to whether the time was +not more than ripe to remove this particular censorship from the +laws which govern the Post Office. He received the suggestion with +marked cordiality, saying that it was very timely, for he had about +reached the conclusion that it was his duty to submit to Congress a +recommendation for the revision of all the Post Office laws which had +any bearing on censorship. He asked for a résumé of all pertinent +data on the laws affecting birth control knowledge, and he also asked +for specimens of good books and other publications on the subject +such as are used abroad. On being told that it would break the law +(Section 211) to mail such publications to him, he said, “Oh no, I +wouldn’t want that done, send them by express.” “Can’t be done,” was +the answer, “because Section 245 forbids that also.” “Well then,” said +the Post Master General, with an appreciative smile, “by messenger.” +The parcel was forthwith delivered to him by that method. But even +that was unlawful, for according to Section 312, it is a crime in +the District of Columbia to “lend or give away,” or to have in one’s +“possession for any such purpose, any book, pamphlet,” etc. Mr. Hay’s +plan to submit a revision to Congress was never carried out, perhaps +because his retirement from office followed too shortly after to make +it practicable. And apparently he was not of a mind to leave his plan +behind him as a recommendation to his successor, Dr. Hubert Work, +former President of the American Medical Association. Judging by later +developments, it would have been futile for him to have done so. + +When Dr. Work took office, he lost no time in making his gesture about +the enforcement of the obscenity laws; for only a few days after +he became Post Master General, the following official Bulletin was +conspicuously posted in all the Post Offices of the Country: + + + IT IS A CRIMINAL OFFENSE + + TO SEND OR RECEIVE OBSCENE OR INDECENT MATTER BY MAIL OR EXPRESS + + The forbidden matter includes anything printed or written, or any + indecent pictures, or any directions, drugs or articles for the + prevention of conception, etc. + + The offense is punishable by a _Five Thousand Dollar Fine or Five + Years in the Penitentiary or Both_. + + Ignorance of the law is no excuse. + + For more detailed information on this subject read Sections 480 and + 1078 of the Postal Laws and Regulations, which may be consulted at + any post office. + +The Birth Control Herald of July, 1922, commented as follows on this +Bulletin: + + If Dr. Work intends to enforce the laws, it does him credit. But + suppose he undertakes to prosecute all infringements? The relatively + low birth-rate in well-to-do families indicates wholesale breaking of + this law. How is he going to enforce it? Will he trail these several + million respectable, influential parents till it is discovered how + they learned the science of family limitation? + + There are about twenty-five million families in the country and, + roughly speaking, ten million of these are the well-to-do—those + above the income tax exemption. Suppose a tenth of these can be + convicted of having secured by mail or express the contraceptive + information on which their own family limitation is based. The + authorities would hardly imprison a whole million. It would mean + “standing room only in the jails.” An alternative would be to fine + them. One million law breakers, fined $5000 each would provide Uncle + Sam with a handy five billion in these days, when the national debt + stands at about eight billion. But, like the jail idea, this might + be a bit impracticable! What alternative is there then? The million + malefactors might be _acquitted_,—but that would make the officers + of the law look silly. So,—there it is, a large problem staring at + the new Postmaster-General. How will he meet it? + + Dr. Work’s Bulletin says “Ignorance of the law is no excuse.” + Similarly also, difficulty of enforcement is no excuse for him. So + long as the law stands he and the Department of Justice must carry it + out, or else be unfaithful and inefficient public servants. + + Possibly Dr. Work might welcome a practical suggestion, namely, that + he promptly request Congress to change this futile law which has + encumbered the Statute books since Anthony Comstock got it passed in + 1873. Any law that can’t be generally enforced should be repealed. + + How about the families below the income tax exemption? There are over + ten million of these also,—and they are the ones against whom this + laws works successfully. Their ignorance and poverty prevent their + securing the knowledge which the well-to-do get in spite of the law. + + This Bulletin of Dr. Work’s may well serve as a reminder that common + fair play for these ten million families demands that Congress shall + change the laws at once. Perhaps also this Bulletin will rub it into + the minds of the well-to-do parents that the knowledge by which they + space their own babies and regulate their own family birth rate is + legally classed as “obscene and indecent.” How much longer do decent + people care to submit to this governmental insult? + + Several of the best doctors who have done years of research work + on methods of controlling conception, are ready _now_ to write + books. One of the foremost publishing firms of America, with offices + in London also, is ready to bring out an American edition of the + excellent book on the control of conception, by a famous British + scientist,—a book which has gone through five editions in England, + and is the generally accepted text-book on the subject. Our law + prevents. + + It is time to do something beside talk. It is time to _end the need + for the birth control movement_, by demanding that Congress change + the laws. + +However neither under Dr. Work’s administration nor that of his +successor has there been evidence of any effort even remotely +approaching a genuine attempt at enforcement. In fact infringements +seem to be blinked at more and more as time goes on. Very significant +and interesting recent infringements are the publication and +circulation of the reports on contraceptive methods used in the clinic +operated by the Research Department of the American Birth Control +League (Dr. James F. Cooper, speaking at the recent Hearing on a bill +to amend the New York law stated that 5000 copies of this report had +been sold to physicians); also the report by Dr. —— of the research +work on contraceptive method, carried on by the New York Committee on +Maternal Health, and published in the “American Journal of —— and +——.” The latter report makes a survey of all the chief methods in use +at present both here and in Europe, with descriptions, and an estimate +of their relative merit. In neither instance has there been any +prosecution or suppression, though the publishers are forthright and +knowing breakers of the law. If the well known physician who wrote the +article in the above indicated medical journal and the also well known +medical publisher who issues the magazine can break the law so frankly, +and not be arrested, it would seem as if we might well do likewise +and give their names, but we leave them blank, not only to avoid the +remote possibility of arrest, but to give the reader one more means of +realizing that the present laws are legal nonsense. + +Another striking feature of the present situation is the blatantly +misleading advertisements of publications which contain no +contraceptive information, but which are advertised as if they did. +Margaret Sanger’s book, “Woman and the New Race” has been repeatedly +advertised by book dealers who lean to sensationalism, as if it +contained instruction in positive methods of birth control. Various +garish phrases have been used, such as “This daring woman has at last +told the real truth about birth control,” etc. The little pamphlet, +“Yes,—but,” published by the Voluntary Parenthood League, to answer +the objections and misunderstandings which were current several years +ago, was reprinted by a sensational publisher without permission, and +advertised as if it gave contraceptive information. Thousands of poor +worried parents have bought these books,—some of them, as the writer +well knows, having spent very hard earned pennies to do so,—only +to find that they had bought another “gold brick.” The book did not +give the one thing they wanted, and which was their sole reason for +ordering it. One of the worst of such instances is an advertisement +which appeared recently in one of the popular humorous weeklies. It is +exactly reproduced below: + +[Illustration: + _DON’T MARRY_ + + until you have read our wonderful book on Birth Control. Tells + simply and clearly all about =Birth Control=, Marriage; etc. + Discusses the following vital subjects: “=Private Advice to Women=; + =Birth Control=; =Too Many Children=; =Determination of Sex=; =Race + Suicide=.” Over 200 pages, cloth bound. =Also=, for a limited period + only, “What Every Mother Should Know,” by =Margaret Sanger=, great + Birth Control Advocate. =SEND NO MONEY.= Pay postman $2.50 and + postage for the two books. + + =PUB. CO.=, =Broadway, N. Y. C.=, + + _WHY PAY THE PRICE?_ +] + +The writer took the trouble to go to the address given, and to inspect +the book. It contained no contraceptive information whatever. It +distinctly _did not_ tell “all about birth control.” The man in charge +of the office, and who had been responsible for the advertisement, +admitted its deliberately fraudulent character, and frankly said he +used this method to make the book sell better, that personally he +did not like sensationalism, but “one must make a living somehow.” +The writer also inquired of the publisher of the paper in which the +advertisement appeared, as to how they dared and why they cared to +publish this sort of thing. Apart from the question of taste, it would +seem as if the advertisement warranted indictment for obtaining money +under false pretenses for one thing, and for another that it gave +“notice” ... “directly” ... “where” to obtain (contraceptive) birth +control information. The result of the inquiry was a letter from the +publisher’s office saying that the contract for the advertisement +would not be renewed. It also stated that every advertisement that had +ever appeared in their paper had “first had the endorsement of the U. +S. Postal authorities.” This last is surely an amazing statement. If +the Postal Authorities are willing to approve such crass, vulgar and +fraudulent advertisement of birth control information under the present +laws, it would seem not a wild thing to demand a change of the laws, so +that advertisements could be open, dignified and honest, as they may be +in England, for instance. One of the largest and most reliable of the +British chemists advertises its service by the simple words, “All birth +control requirements, —— and Co. —— London.” One of the best known +medical publishers of England announces the important new book on the +control of conception by Dr. ——, with the natural straightforwardness +that belongs to any scientific subject. One of their advertisements +reads as follows (except for the omissions compelled by our laws): + + + * * * * * + + ITS THEORY, HISTORY AND PRACTICE + + A Manual for the Medical and Legal Professions + + By ——, D.Sc., Ph.D., + (Fellow of University College, London) + + + _Contents_: + + Author’s Preface + + Introduction by Sir William Bayliss, F.R.S. + + Introductory Notes by Sir James Barr, M.D., Dr. C. Rolleston, Dr. + Jane Hawthorne and “Obscurus.” + + + Chapter + + I. The Problem To-day. + II. Theoretical Desiderata—Satisfactory Contraceptives. + III. Indications for Contraception. + IV. Contraceptives in Use, Classified. + V. Contraceptives in Use, Described and Discussed. + VI. Contraceptives in Use, Described and Discussed. (cont.) + VII. Contraceptives for Special Cases. + VIII. Some Objections to Contraception Answered. + IX. Early History of Family Limitation. + X. Contraception in the Nineteenth Century. + XI. Contraception in the Twentieth Century. + XII. Contraception and the Law in England, France and America. + XIII. Instruction in Medical Schools + XIV. Birth Control Clinics. + + Index. + + Description of Plates. + + Plates I to IV. + + Sir William Bayliss says: + + “It cannot fail to be a real service.” + + Dr. Rolleston says: + + “I predict a great success for the work, and I wish to record my + thanks to the author for her pioneer work in preventive medicine.” + + _This Book Is the First Manual on the Subject and Is Packed with Both + Helpful and Interesting Matter, and Much That Is New and Noteworthy._ + + + Order from your Bookseller or direct from the Publishers: + + * * * * * + +Just so long as our laws remain as they are, just so long will they +induce and encourage an atmosphere of hectic unwholesome excitement +about a subject that should be merely a part of the general fund +of hygienic knowledge which humanity utilizes for its welfare. And +just so long will that unwholesome atmosphere be reflected in vulgar +advertisements, which can not be properly antidoted by dignified decent +advertisements of the proper sources for contraceptive information and +means. + +Our government not only blinks at the numerous infringements of the +laws which ban birth control information, but the government itself +breaks the law. Government officials themselves are guilty of flagrant +violations, but no one puts them in jail. There are some very striking +instances. + +The Library of the Surgeon General in Washington, which is open to the +public, has received and is loaning to readers the November issue of +the American Journal of —— and —— published by the —— Company +of ——. It contains a report by Dr. —— on methods of controlling +conception. To mail the magazine from —— where it was published, and +to receive and loan it in Washington, are criminal acts under the law. + +The Congressional Library has received from England and has loaned to +readers the volume entitled —— by Dr. ——, published —— London. +It is the previously mentioned manual for the medical and legal +professions and is considered one of the best and most comprehensive +works on the subject in the world. To pass the book through the +customs, to transport it to Washington, to list it in the Library +catalogue and to lend it to readers are all criminal acts under the +law. This same volume has been borrowed by several members of the +Judiciary Committee,—again a criminal act. But not a single government +employee has been apprehended for these “crimes,” although the offenses +were clean cut infringements of the law. Dutiful and full enforcement +would mean the jailing for a five-year term of a score or so of the +government employees who are involved. + +A still more significant fact is that members of Congress who have +vehemently opposed the Cummins-Vaile Bill (to remove the words +“preventing conception” from the obscenity laws) have actually had +the presumption to ask the writer of this book (while working for +that measure) to get for them copies of “some of this forbidden +literature.” One of them added, “I’ll see that you are not prosecuted.” +An instantaneous refusal brought a rather shame-faced expression to his +countenance. He was a member of the Judiciary Committee, to which the +bill had been referred. It would be interesting to know whether this +member, who has flatly said he would vote against the bill, would be +willing to confess before the Committee that he was quite willing to +break the law, but unwilling to change it, and equally unwilling to +insist on its enforcement. + +Enforcement is all too evidently a farce, and will never be anything +else so long as the present laws are retained. A legal house-cleaning +seems the only hope for putting the country on either a self-respecting +or a democratic basis, so far as this subject is concerned. An +editorial in the Washington Post has said what needs to be said on how +to have laws respected: + +“_The enforcement of all law is necessary to the existence of the +States and the United States. The alternative is anarchy. But all law +must be constitutional, in accordance with the people’s expressed will. +The first duty of all citizens and of Congress is to ascertain the will +of the people. The second is to enforce and obey it._” + + + + +PART TWO + +WHAT CHANGES IN THE LAW HAVE BEEN PROPOSED? + + + + +CHAPTER I + +THE TWO FIRST FEDERAL EFFORTS + + _The big repeal petition of 1876 started by National Liberal League: + Comstock’s obscenity exhibit wins again: Sanger arrests crystallize + growing movement for repeal of law: National Birth Control League + founded March, 1915, first organization of the sort in the United + States: Repeal bills drafted: Petitions circulated: Noted English + sympathizers help._ + + +Three years after Congress enacted the Comstock bill, thousands of +citizens started a petition for its repeal. The number has been +variously estimated at from 40,000 to 70,000. Comstock credits it with +the latter figure in his book, “Frauds Exposed.” The petition was +initiated and the signatures collected by the National Liberal League. +There was much publicity concerning it, and mass meetings were held +in various cities. It was presented to Congress, early in 1878 by a +Committee of Seven, consisting of Robert G. Ingersoll of Illinois, +Chairman, Charles Case of Indiana, Darius Lyman of Ohio, J. C. Smith +of Massachusetts, Jonathan B. Wolff of New York City, W. W. Jackson of +Washington, D. C. and J. Weed Corey of Penn Yan, N. Y., Secretary. + +The petition was a comprehensive protest against the whole spirit +and content of the Comstock laws, as un-American, unjust and unwise. +Section 4 of the Petition read in part as follows: “Your petitioners +further show that they are convinced that all attempts of civil +government whether State or National, to enforce or favor particular +religious, social, moral or medical opinions, or schools of thought or +practice, are not only unconstitutional but ill-advised, contrary to +the spirit and progress of our age, and almost certain in the end to +defeat any beneficial objects intended. + +“That mental, moral and physical health and safety are better secured +and preserved by virtue resting upon liberty and knowledge, than upon +ignorance enforced by governmental supervision. + +“That even error may be safely let free, where truth is free to combat +it. That the greatest danger to a republic is the insidious repression +of the liberties of the people. + +“That wherever publications, pictures, articles, acts or exhibitions +directly tending to produce crime or pauperism are wantonly exposed to +the public, or obtruded upon the individual, the several States and +territories have provided, or may be safely left to provide, suitable +remedies. + +“Wherefore your petitioners pray that the statutes aforesaid may be +repealed or materially modified, so that they cannot be used to abridge +the freedom of the press or of conscience.” + +The petitioners asked Congress for action on the petition, and the +Committee of Seven requested a Hearing on it. After more or less +prodding, the House Committee on the Revision of Laws, granted a +Hearing. Comstock’s characteristic version of the insistence by the +Committee of Seven on being heard, was: “After six weeks of plotting +and scheming they at last secured a hearing.” + +Comstock and Samuel Colgate, one of the earlier officials of the +Society for the Suppression of Vice were the only ones appearing +against the petition. Comstock described the event in his book “Traps +for the Young,” and says that the House Committee reported its belief +that the “statutes in question do not violate the Constitution, and +ought not to be changed.” He also wrote of it in his letter of April +28, 1915, to Mrs. Clara Gruening Stillman, Secretary of the National +Birth Control League, from which quotation was made in Chapter Two of +Part One. This is the way he pictures it: “When the National Defense +Association in 1876, secured a petition 2100 feet long, containing +60,000 names, and presented it to Congress, following it up with +the most infamous attacks upon the efforts to enforce, all that was +required, in the face of all their opposition, supported as they were +at that time by the public press throughout the country, was to lay +the facts before the Congressional Committees and submit to them the +circulars which showed to them the system of the business then being +carried on, cursing the boys and girls of this country and leading them +from the paths of virtue, and both committees reported against any +repeal or change whatever.” This decision of the Committee was made on +May 1, 1878. + +If it was true, as Comstock says, that the press of the country at +that time was with the petitioners for the repeal, it is a point worth +bearing in mind. Evidently the actual sight of a collection of smutty +circulars describing sex depravity stampeded the Committee on the +Revision of Laws in the same way that it had the Committee on Post +Offices and Post Roads, when it reported favorably on the Comstock +bill three years previously, so that it blotted out of mind every +other consideration, except that obscenity must be made unmailable. +It prevented any serious thought about the injustice of depriving the +normal majority of access to scientific knowledge. All sorts of strange +things are done under the impetus of alarm, and fear can upset the +judgment of the best of men on occasion. But now that the country has +had the benefit for over half a century of the fears which Comstock so +successfully planted in the Congressional mind, the question is how +quickly can there be a restoration of calm judgment, and of democratic +faith in the people. + +After the failure of this petition, many years elapsed before any +concerted effort was again made to have Congress correct the Comstock +blunder. In the meantime, of course the laws were increasingly broken +and increasingly unenforced, so far as the circulation of contraceptive +information was concerned. Comstock utilized the laws for his campaign +to suppress fraud and general obscenity, and he occasionally included +a prosecution against someone for giving contraceptive information, +but that offense, per se, and uninvolved with obscenity or liberalism, +formed a very small part of his total activity. However it was two of +these latter arrests which touched off the spark that flamed into what +has been called in late years, the American birth control movement. +These were the arrests of Margaret Sanger and of William Sanger, her +husband. In September, 1914, Mrs. Sanger was indicted on nine counts +under the Federal law, for mailing her pamphlet on family limitation. +Mr. Sanger was arrested the following January, by means of Comstock’s +decoy system, for giving away a single copy of the pamphlet, as already +described in Part One of this book. Previous to Mrs. Sanger’s arrest, +there were many people who had become tremendously interested in her +activity and who were deeply stirred by her righteous indignation that +the poor mothers among whom she had worked as a district nurse, were +without any sort of adequate scientific information on the control of +conception, and by her burst of generous impulse when she determined to +get the information to the working people on a large scale, no matter +what the laws forbade, and no matter what hardship it might involve for +her. Some of the specially interested people helped Mrs. Sanger with +funds for her project and by securing mailing lists and so forth. She +compiled such information as she could find, and a very large edition +of the pamphlet was sent out. She then went to Europe in order to find +out more about contraceptive methods in Holland and in England, and to +publish some new revised pamphlets before facing trial under Federal +indictment. + +During this period the conviction was rapidly growing in the minds +of many who had been moved by Mrs. Sanger’s gallant zeal, that the +time had come to remedy the situation fundamentally by organizing a +movement to get the laws revised. Mrs. Sanger’s arrest added greatly +to the strength of this conviction. To tolerate the necessity for +a succession of martyrdoms such as appeared likely to occur as the +sequel of Mrs. Sanger’s spirit and her notable defiance of the law, +seemed folly, if by dint of vigorous concerted effort the laws could +be changed, so that no one would have to brave martyrdom. This +conviction crystallized into action in New York City in March, 1915, +when a meeting was held at the home of Mrs. Clara Gruening Stillman +at which the National Birth Control League was organized. Mrs. Sanger +was then abroad. On her return shortly afterward, she was invited to +be a member of the Executive Committee of the League. She declined, +stating that she did not think it wise to be officially a part of any +organization, as she was likely to have to go to jail, and she did +not want her mishaps to involve the activity of others, also that she +felt it to be her particular function to break the laws rather than to +spend effort at that time in trying to change them. Her point of view +was characteristically expressed in her leaflet called, “Voluntary +Parenthood,” which was published by the League. Describing her +feeling at the sight of the suffering due to unintended and unwilling +motherhood, she said, “I felt as one would feel if, on passing a house +which one saw to be on fire and knew to contain women and children +unaware of their danger, one realized that the only entrance was +through a window. Yet there was a law and penalty for breaking windows. +Would anyone of you hesitate, if by so doing you could save a single +life?” + +The declaration of principles adopted by the National Birth Control +League read as follows: + +“The object of the Birth Control League is to help in the formation of +a body of public opinion that will result in the repeal of the laws, +National, State or local, which make it a criminal offense, punishable +by fine or imprisonment, or both, to print, publish or impart +information regarding the control of human offspring by artificial +methods of preventing conception. + +“The Birth Control League holds that such restrictive laws result in +widespread evil. While they do not prevent contraceptive knowledge of a +more or less vague or positively harmful character being spread among +the people, these repressive laws do actually hinder information that +is reliable and has been ascertained by the most competent medical and +scientific authorities, being disseminated systematically among those +very persons who stand in greatest need of it. + +“This League specifically declares that to classify purely scientific +information regarding human contraception as obscene, as our present +laws do, is itself an act affording a most disgraceful example of +intolerable indecency. + +“Information, when scientifically sound, should be readily available. +Such knowledge is of immediate and positive individual and social +benefit. All laws which hamper the free and responsible diffusion of +this knowledge among the people are in the highest degree pernicious +and opposed to the best and most permanent interests of society.” + +The National Birth Control League then, constituted the first organized +and sustained effort in America to concentrate on the repeal of the +specific prohibitions regarding the circulation of birth control +knowledge. The petition to Congress in the seventies, had included +contraceptive knowledge in its protest, but was not circulated for that +reason alone. It was a protest against the general content of the +Comstock laws. The National Birth Control League at once set about the +publication of literature urging the repeal of the laws, and circulated +petition slips for the amendment of both State and Federal laws, which +read as follows: + + + _TO THE STATE LEGISLATURE_ + + As a voter of this State, I hereby urge you to secure the amendment + of the penal law, so that giving information concerning methods of + birth control by the avoidance of conception may no longer be classed + as a crime in the laws of this State. + + Name ............................... + + Address .......................... + + + _TO THE CONGRESS OF THE UNITED STATES_ + + As a voter, I hereby urge you to secure the amendment of the Federal + Penal Code so that the transportation of information concerning + methods of birth control by the avoidance of conception may no longer + be classed as a crime in the laws of this country. + + Name ............................... + + Address .......................... + +A committee of three lawyers, members of the National Birth Control +League, drafted the amendments which the League advocated for the +Federal statutes and for the New York State statutes. The provision was +similar in both cases. It first removed from the obscenity statutes +the words “preventing conception” wherever they occurred; then added a +clause to the effect that information as to or means for the control of +conception are not, per se, obscene or of indecent use. For Section 211 +of the Federal law, this added clause read as follows: “But no book, +magazine, pamphlet, paper, letter, writing or publication is obscene, +lewd or lascivious, or of indecent character, or non-mailable by reason +of the fact that it mentions, discusses or recommends prevention of +conception, or gives information concerning methods or means for the +prevention of conception; or tells how, where, or in what manner such +information or such means can be obtained; and no article, instrument, +substance or drug is non-mailable by reason of the fact that it is +designed or adapted for the prevention of conception, or is advertised +or otherwise represented to be so designed or adapted.” (The statutes +with the proposed amendments in full are given in Appendix No. 5.) + +It was not only within the United States that interest in amending our +laws grew apace. The matter got the attention of a very thoughtful and +distinguished portion of the British public also. When Mrs. Sanger was +in England, she met Dr. Marie C. Stopes (subsequently the founder of +the first birth control clinic in England) who was deeply indignant at +the situation threatening Mrs. Sanger by virtue of the American law. +This feeling found expression in a letter which Dr. Stopes wrote and +sent to President Wilson, and which was signed by several other well +known English citizens. It reads as follows: + + September, 1915. + + To the President of the United States, + White House, + Washington, D. C. + + SIR: + + We understand that Mrs. Margaret Sanger is in danger of criminal + prosecution for circulating a pamphlet on birth problems. We + therefore beg to draw your attention to the fact that such work as + that of Mrs. Sanger receives appreciation and circulation in every + civilized country except the United States of America, where it is + still counted as a criminal offense. + + We in England passed, a generation ago, through the phase of + prohibiting the expressions of serious and disinterested opinion on + a subject of such grave importance to humanity, and in our view to + suppress any such treatment of vital subjects is detrimental to human + progress. + + Hence, not only for the benefit of Mrs. Sanger, but of humanity, we + respectfully beg you to exert your powerful influence in the interest + of free speech and the betterment of the race. + + We beg to remain, Sir, + Your humble servants, + (Signed by): Percy Ames, L.D., F.S.A., Sec., Roy. Soc. Liter., London + William Archer, Dramatic critic and author + Lena Ashwell, Actress Manager + Arnold Bennett, Author and Dramatist + Edward Carpenter, Author of “Towards Democracy,” etc. + Aylmer Maude, Author of “Life of Tolstoy” + Gilbert Murray, M.A. Oxford, LL.D. Glasgow, + D.Litt. Prof. Greek, Oxford + Marie C. Stopes, D.Sc., Ph.D., Fellow and Lecturer, + U. Coll., London + H. G. Wells, B.Sc., J.P., Novelist. + +In this connection it may be added that the nine Federal indictments +against Mrs. Sanger were presently dropped. Whether it was due in +part to the weight of such messages as this, is not definitely known. +But the fact remains that the prosecution for the most forthright, +intentional and wholesale defiance of the Federal law that had ever +been undertaken up to date was not carried through to a conclusion. A +fair interpretation of this act would seem to be that the government +itself did not deem the Comstock laws in this regard, as worth +enforcing. + + + + +CHAPTER II + +BEATING AROUND THE BUSH WITH STATE LEGISLATION + + _Interest caused by Mrs. Sanger’s arrest caused much activity + despite war-time conditions: First repeal bill initiated by National + Birth Control League in New York Legislature: Law makers mostly in + favor privately, but publicly opposed or evasive: Dr. Hilda Noyes’s + experiment in New York village proving that ordinary people want + laws changed: Legislator justifies State repressive laws so long + as Federal law stands as example: Bills introduced in New York, + California, New Jersey and Connecticut: The “doctors only” type of + bill appears: Further limitations: Efforts toward freedom stimulate + reaction toward stiffer repression in Illinois, Pennsylvania and + Virginia: All fail: Fallacy that limited bills win legislators more + than freedom bills._ + + +The year 1915, as noted in the preceding chapter, saw the lines laid +down for the repeal of the Comstock blunder. The next four years saw +considerable progress in the way of rolling up expressed approval of +amending the law, also considerable fumbling around as to just how to +go about it. The fact that these four years included the war period +had a good deal to do with the latter. All social and civic projects +suffered a similar sort of stalling. Sporadic bursts of agitation were +easier and more in keeping with the general disorganization of life +than was any steady, constructive, fundamental, organized activity. +That so much was accomplished under such untoward circumstances, is +indication of the vital hold which the idea of doing something about +the birth control situation, had upon the thinking public. Or perhaps +one might better say the feeling public, for if as much force had gone +into thinking as has gone into feeling on this subject, the question of +repressive legislation would have been settled long ago. + +However, there can hardly be doubt that the great wave of emotional +interest which grew apace after the first Sanger arrests, and +particularly after Mrs. Sanger’s second arrest for opening her +contraceptive clinic in 1916, was useful in that it developed a +ferment from which presently some clear consistent procedure might +be forthcoming which would end the need for agitation. Local birth +control organizations sprang up in many parts of the country, many +of them being the results of Mrs. Sanger’s lecture tours. It was but +natural that local groups should tackle State laws first, as most of +the associations were loosely or feebly organized and slimly financed, +and Washington seemed far away and Congress formidable. The National +Birth Control League was somewhat in this status also. Its headquarters +were in New York, and most of its active members lived there, though it +had members scattered all over the country, and there were co-operating +committees in several cities. + +So it happened that its first actual legislative move was a State +bill undertaken in Albany in the winter of 1917. It was a straight +repeal bill to remove the words “preventing conception” wherever they +occurred in the obscenity statutes, and to add a new clause providing +that contraceptive information, per se, was not to be deemed obscene, +and that means used for the control of conception were not, per se, to +be deemed of indecent use. (See Appendix No. 5 for the full wording.) +The subject of the scientific control of conception was thus to be +rescued from its legally formed association with obscenity, and to be +safeguarded against the possible assumption that the subject was in +itself obscene,—an assumption which judges or juries of certain mental +caliber, might well make, in view of its long connection in the law +with indecency. The bill was introduced both by a Democratic and a +Socialist member of the New York Legislature,—an obvious disadvantage +in an overwhelming Republican body. A Hearing was held, but the bill +was killed in Committee. The pattern of the reaction of the legislative +mind to this sort of proposition, which afterwards was to become so +familiar to those working for the repeal of these laws, was for the +first time clearly visible. The reasons for the levity, the stupidity +and the irrelevance of the legislators were not so well understood then +as they came to be a few years later. + +But in this very first legislative try-out, the incongruity which +in subsequent legislative efforts become most striking, was already +evident,—namely, that what the various legislators said one by one in +conversation with those who went to Albany to work for the bill, was +quite different from what they said for publication or in the Committee +room. Individually, a large proportion of them readily admitted that +birth control already existed, that the laws were not enforced and +could not be enforced, and each one thought that it would not hurt +_him_ to know all there was to be known about the subject; but they +were far from willing to say anything of the sort publicly, or to take +that stand actively in the Legislature. Instead they went far afield +with all sorts of hypothetical conjectures, and professed all manner +of deep convictions that this knowledge, if lawfully accessible would +be dangerous to morals, a menace to the race and an assault upon +religion. This incongruity will be more fully dealt with in a later +chapter on “Why Congress has been slow to act.” For the moment, it is +enough to give a mere glimpse of legislative reaction to birth control +bills. The divergence between private opinion and public action was +again accentuated the following year when the National League sent a +set of queries to all the New York candidates for Congress and the +legislature, regarding their opinion of the proposed change in the +laws. The replies showed many more in favor of the bill than had been +found in Albany the preceding year. In fact not a single adverse answer +was received. And of those who replied eight per cent were in favor, +eleven asked for more light on the subject, and only three side-stepped +the question. + +Yet that rather encouraging indication did not prevent a repetition +of the same incongruous actions when a year later, the National Birth +Control League made another effort in Albany. It had to be checked off +to educational work, for it did not result even in the introduction +of the bill. The Legislators of the majority party, the Republicans, +shied off from sponsoring the bill, apparently because, in part at +least, it had previously been introduced by a Socialist and because +some of the speakers at the Hearing had been “radicals.” This served +as a first rate excuse, in the days when any excuse was a good excuse. +However, the educational work of that session was worth while both for +the Solons and for the proponents of the bill. It was particularly +illuminating for the latter, as subsequent events will show. The writer +of this book had charge of the work in Albany that year, and a picture +of the situation there is given in the following extracts from an +article she wrote at the time for “The Birth Control Review” (March, +1919). + + The Legislators of New York seem to be par excellence the leisure + class. They have achieved a six hour week! In these days of battling + for forty-eight and forty-four hour weeks, that is something of an + achievement. + + They convene Monday evening, usually with a two-hour session, and on + the three succeeding mornings, with sessions from one and one-half + hours to ten minutes in length. When out of session some few of them + are in committee but the majority are fled—it is hard to know where. + + For the ordinary citizen with a bill in hand which it is desired + to have introduced, such a situation is a problem. The whole + session is only ninety days—and with legislative week-ends lasting + from Thursday noon till Monday evening, the time available for + interviewing members and securing desirable sponsors for the bill is + reduced to an appalling minimum. + + However, like the public, the legislators are surely moving on toward + an understanding of what the Birth Control movement really means. Out + of the twenty-seven members interviewed in the last few days, only + one declared himself positively opposed to the bill, and he decided + after ten minutes’ discussion, that he might perhaps be open-minded + after all. + + It seems to take about three-quarters of an hour to answer all + the objections the average legislator can think of, and leave him + wondering what he can do next to live up to his preconceived notion + that he was opposed. More often than not, they end by cordially + admitting that they really have no arguments against the bill—merely + a vague aversion to the consideration of the subject as a matter of + public or legislative responsibility. + + They mostly ask the same questions and voice the same fears about + removing the law which tries (so vainly) to suppress birth control + information. + + They say, “Yes, but if everybody knows how to avoid having children, + there won’t be any children!” + + Then we carefully iron out their fears by showing them that + prophecies as to how it _might_ work out are not worth so much as + testimony on how it _does_ work out. We tell them of Holland and New + Zealand, the two prize birth control countries of the world,—how + Holland has had a ratio of increase in population next to that of + Germany and Russia—that New Zealand is a garden country for babies, + that they make a fine art of motherhood there, with their wonderful + chain of maternity hospitals, and that Holland and New Zealand have + the lowest general and baby death rates in the world. + + With the race suicide bogey out of the way, they go on to their + next fear, which is that there will be a terrifying drop in moral + standards if contraceptive information is easily available. Then + again we reassure them by citing the other countries which have no + shocking repressive laws like ours, but which nevertheless do not + show any records of general promiscuity and unbridled excess, or of + sexual laxity among the young. We go further, and remind them that + if it be true that the mass of our American young people would have + so little moral anchorage that we should fear to trust them with + knowledge, then something is awfully the matter with us of the older + generations who have reared them, and that it is for us to hasten to + develop a keener sense of responsibility for the education of _all_ + young people, as well as those of our families. And they all respond + to this appeal. They would obviously feel ashamed not to. + + Another idea they advance with confidence is that “practically + everyone can now get the information who really wants it.” And we + reply, “Well if that be true, and the law is already so much of a + dead letter as that, then why hesitate a moment to repeal it?” But + we tell them, of course, that it is not true that everyone has the + information who wants it, as is proven by the incessant stream of + desperate, ill and unhappy people who clamor for it, also that much + of the information which is now illegally and secretly circulated, + especially that which is verbal, is inadequate, unscientific and + even harmful, and that it is bound to be so till the medical schools + include this subject in their curricula and until the doctors can + give the information without evading the laws. + + Then they resort to the cynical conclusion that it wouldn’t do much + good to repeal the laws anyway, because the rich who oughtn’t to + use the information would do it even more than they do now, and the + result would be still fewer children, while the “ignorant poor,” who + ought to use it, wouldn’t, and the horde of “undesirables” would go + on increasing just the same. + + And again we present the instance of Holland where the rich average + larger, and the poor, smaller families than any other country in + Europe. And we gently remind them that the use of contraceptives + can never be made compulsory, nor can anyone frame legislation + which will open the eyes of the selfish rich to the joys and values + of parenthood. These results can come from education, not from + legislation. All that the laws can do is to give freedom of access + to knowledge, but the wise use of knowledge is a matter of mental, + moral, and spiritual growth. + + And they admit that too. + + They look very serious and responsible by the time they arrive at + saying, “Yes, but what methods do you propose to teach?” Some of + them even assume that somehow or other we think the law itself + can _establish good methods_! Whereupon we make it plain that the + question of methods is the sphere of the medical scientists, that + it is not for us laymen to presume to teach, and much less is it + possible for the laws to determine methods. All the laws can do is to + give freedom to the scientists to give the world the knowledge that + has been locked in their brains and only given out surreptitiously + on occasions. And all we ask is the opportunity to help to make the + knowledge of the scientists accessible to all who need it. + + Their final question is “who wants these laws changed, where is + the demand?” We tell them that practically everyone wants it who + understands it, and that brings up a most significant phase of the + birth control movement, which has a unique psychology, in that the + mass of people who want information and want the laws changed so + they can get it, do not and will not shout their wishes from the + housetops. The nature of the subject is one which largely inhibits + an _articulate_ demand. But that the majority of the people want it, + and are ready to say so, if they can do it without being conspicuous + is remarkably well proven by the article elsewhere in this issue, + entitled: “Do the People Want It?” + + We never fail to impress it on the legislative mind that in the + last analysis the present laws are absolutely inconsistent with the + principle of freedom to know, to think and to do, on which this + country is supposed to be founded and that it is outrageous that the + government should attempt to place any barriers between the people + and knowledge; that the government may rightly discipline people + whose abuse of knowledge infringes upon the rights of others, but + there it must stop. It can not curb the freedom of citizens to know + all there is to know. + + And they admit that, too. + + They are amusing in their demands upon us as to the proper way of + winning the change of the laws. Some tell us, “You just show us + enough demand for this thing and it will go through. If the people + want it, let them speak up.” Others say, “Now, if you would only see + that this thing is _quietly_ accomplished, with no noise, no public + hullabaloo, no newspaper headlines, no publicity, etc., it would be + a simple matter for us to put this bill right through as a matter of + obvious public welfare.” + + At a guess, probably two-thirds of those already interviewed will + vote in favor of our bill. + +In the light of much subsequent experience with the workings of the +legislative mind the writer considers that last sentence an innocently +rash prediction. It should have said “are in favor of our bill,” rather +than “will vote for our bill.” For this has proved to be one of the +questions on which belief and voting, also private practice and public +statement, can be poles apart. + +There could perhaps be no more fitting place than here to quote the +above mentioned article “Do the People Want It?” + + Here is a slice of public sentiment out of the middle of New York + State. + + Dr. Hilda Noyes, an expert on eugenics and baby feeding, and + incidentally the mother of six splendid intentional children, went to + a district in Oneida County, where she did not personally know the + people, chose at random two streets at right angles to each other and + visited fifty married women in succession. + + She explained to them just how the New York law reads which prohibits + Birth Control information. Most of them did not know that it is a + part of the obscenity laws and is entitled “Indecent Articles” or + that it is utterly sweeping in its provisions, so that even a mother + can not legally inform a daughter on her marriage as to how to have + her children come at intelligent intervals. They only knew in general + that whatever one knew about this subject must be learned secretly. + + She told them how it was proposed to change this law, and asked them + if they preferred to let the law remain as it is and has been for + over forty years, or to change it. + + Forty-eight out of fifty said “change it.” + +By far the most significant bit of experience gleaned from the +legislative effort of that year was what one of the more thoughtful +members of the New York Legislature said, when he was asked to consider +introducing the bill. “Why do you come up here asking us to consider +a bill of this sort when our National laws set us the example they +do on this subject? You say yourself that Congress decided that +this information was not ‘fit to print’; very well then, go down to +Washington and get Congress to reverse itself, and then you will have +a talking point when you come to us.” It may have been merely his +particularly clever form of excuse for not doing anything, but there +is no gainsaying that he hit upon a rather unanswerable point. It was +undeniably true that the action of Congress in passing the Comstock +bill in 1873 had influenced practically all of the States to follow +suit. The fact that the New York law on this subject preceded that +of Congress by a year, only indicates that Anthony Comstock happened +to live and do his work in New York. Both he and his biographer, the +Rev. C. G. Trumbull, said emphatically that his campaign of suppression +would have been a relatively futile effort without a comprehensive +Federal law. Comstock used keen sense when he determined to secure not +only the particular power to suppress the transportation of obscene +literature that a Federal law would give, but also the very great +impetus to his whole campaign which the Federal example would stimulate +in the States, for further means of suppression. + +The seed thus planted bore fruit within three months, by the +organization of a new association, the Voluntary Parenthood League, the +immediate object of which was the repeal of the Federal prohibition. +And within six months the Congressional work was started in Washington. +The story of the Federal bill is however the subject of the next +chapter. + +The purpose of this chapter is to survey the attempts at State +legislation which have been made both before and after the work on the +Federal bill was begun, and to make an appraisal of their value toward +the securing of freedom of access to contraceptive knowledge. + +More endeavors have been made in New York than in any other State. +The efforts which preceded the campaign for the Federal bill have +already been noted. Following that time, Committees, acting under the +leadership of Mrs. Sanger, went to Albany, during the legislative +sessions of 1921, 1923, 1924 and 1925. Bills were introduced in the +three latter years, and the ones introduced in 1923 and 1925 reached +the stage of a Hearing. No bill came to a vote on the floor of either +the Senate or the Assembly. + +This series of bills beginning in 1921 initiated a marked change in +the policy of the legislation. Instead of a straight repeal act, +limited bills began to appear, that is with qualifications which would +restrict those who could give contraceptive information to certain +groups only, and those who could receive it to certain classes only. +And another very striking change appeared also, namely that the subject +of the control of conception was not removed from its classification +with indecency, but the bill was framed to permit certain people to +give and to receive the information without being subject to the +penalties for indecency that would still apply to all others who +give it. That is, the right of access to knowledge as a fundamental +principle was abandoned and was replaced by the idea of permits and +privileges; and the platform that scientific truths are not per se +indecent was replaced by the inference that scientific facts are decent +only when stated by certain people and are otherwise indecent, or are +at least classed with prohibited indecencies. + +This is the proposed legislation which has come to be called, for +short, the “doctors only” kind of bill. But other limitations than +those applying to doctors have been included. With these successive +efforts in the New York Legislature, restrictions were added almost +every year that a bill was introduced. The measure first put forward +in 1921 limited access to contraceptive information to that given by +physicians or registered nurses; then the nurses were dropped out, and +no doctor could give information unless the individual applied to him +personally for it; and by 1923 the still further restriction was added +that access to the knowledge was lawful only for those who were married +or who had secured a license to marry. These later New York bills were +drafted by Prof. Samuel McCune Lindsey of the Legislative Bureau of +Columbia University. The full wording of the latest draft is given +in Appendix No. 6. All of them leave the main body of the obscenity +statutes just as it stands with its blanket prohibition of the giving +of contraceptive information by anyone to anyone, in any way whatever; +the amendment in each of these bills is an addition to the release +act of 1881, Section 1145 of the Penal Code, which states that an +article prescribed by a physician to cure or prevent disease is not “of +indecent or immoral nature or use”; these added parts merely declare +the doctor’s act in giving information or in making a prescription for +a preventive to be “not a violation of this article.” In other words +the old law of 1881 whitewashed the thing prescribed by the doctor, +and the proposed amendment whitewashes the doctor for prescribing it. +But it leaves the whole subject of knowledge about the control of +conception, still in the category of crime and indecency. The doctor +merely becomes a privileged character within this category. + +Under the same leadership, similar bills have been introduced into +the legislatures of Connecticut in 1923 and 1925 and of New Jersey in +1925. In Connecticut the bill, beside restricting access to information +to those who get it directly from a doctor or a registered nurse, +contained a section to repeal the old law which forbids the _use_ of +contraceptives, the law which has been the prize joke of the American +birth control movement. Appendix No. 7 gives the wording of the +Connecticut bill. The wording of the New Jersey law is notably absurd, +in that it forbids anyone to be obscene “without just cause,” and then +adds a clause forbidding anyone even to make a recommendation _against_ +the use of contraceptives, or to give information in any way as to how +or where “any of the same may be had or seen or bought or sold.” The +amendment proposed by the American Birth Control League merely adds +this sentence: “The contraceptive treatment of married persons by duly +practicing physicians, or upon their written prescription, shall be +deemed a _just cause_ hereunder.” Appendix No. 8 gives the wording in +full. Hearings were held in both Connecticut and New Jersey but in +neither State was the bill allowed to reach a vote in the Legislature. +In Connecticut the Committee advised against changing the laws “at this +time.” + +In California, a bill was introduced in 1917 by Senator Chamberlain +and Assemblyman Wishard to remove the words “prevention of conception” +from Section 317 of the Penal Code, which is entitled “Advertising to +Produce Miscarriage.” Dr. T. Perceval Gerson was head of the citizens +committee which initiated the effort. A hearing was held, but the bill +died in Committee, although it had excellent endorsement from some of +the women’s organizations and from the Los Angeles Obstetrical Society, +which passed the following resolution: + + _Resolved_, that it is the sense of the Los Angeles Obstetrical + Society that the effort being made in California by intelligent men + and women on behalf of scientific birth control is worthy of support + by all having the best interests of society and its individuals at + heart. + + _Resolved_, that the attention of the public be strongly drawn to the + fact that this movement for scientific birth control has no relation + to the production of abortion or miscarriage, which in fact it aims + to eliminate. + + _Resolved_, that this Society composed of physicians and surgeons + earnestly engaged in discussing those aspects of medical science + chiefly in the domain of obstetrics, gynaecology and pediatrics, + respectfully petition the California Legislature to amend by + elimination that portion of Section 317 of the Penal Code, reading, + “or for the prevention of conception.” + + _Further be it resolved_, that this Society at this date, go on + record as unqualifiedly approving such propaganda for birth control + by scientific contraceptive measures, because of the universal + benefits that will accrue. + +It is noteworthy that this Resolution by doctors did not take a +“doctors only” stand. A loop-hole in the California law has allowed +the establishment of a “Mother’s Clinic.” It started its service in +Los Angeles early in 1925 with Dr. H. E. Brainerd, former President +of California State Medical Association as Medical Director, and a +clinical and consulting staff of eight other physicians. The California +statute forbids anyone to _offer_ his services in any way, to aid in +the prevention of conception, but it does not forbid the giving of +information if _asked_. + +In three states effort has been made to introduce laws when none +existed before, forbidding the giving of contraceptive information, or +to make existing laws still more repressive. Illinois and Virginia were +instances of the former, and Pennsylvania of the latter sort. These +bills all died in Committee, thanks to the strong protests they aroused +from representative and influential citizens. + +The Illinois measure was modelled upon the New York law, and was +introduced in the winter of 1918. Professor James A. Field of Chicago +University and Dr. Charles Bacon of the Chicago Medical Institute, +both of them representing the Chicago Citizens Committee (for birth +control) appeared at the Hearing against the bill. The Illinois Medical +Society also sent Dr. C. L. Taylor and Dr. Deal to oppose it. Effective +lobbying was done before the Hearing, and by the time that was held, +the interest was so great that the session was carried over into the +evening. In conversation with members of the Legislature individually, +it was evident that they had no idea that the passage of the measure +would mean that it would be unlawful for anyone, even themselves to get +the simplest and most commonly used sorts of preventive such as are +sold at all drugstores. Professor Field and the physicians enlightened +them on this and many other points, with the result that the bill was +not reported out. It is significant that the way a measure of this sort +is presented to a legislator makes such a difference in his opinion of +its merit. A proposition to make obscenity less prevalent wins sympathy +at once, and if there is no mention made of the fact that it also will +forbid the securing of scientific hygienic information for utilization +in normal private life, the obscenity point carries the legislator +along to approve of the bill. But when he sees the real facts about +such legislation, he thinks twice, and thinks sanely. It seems like +a sound guess that Congress would likewise have thought sanely, if +Comstock and those who rushed his bill through had given the members a +chance to know the actual scope of the bill, and think twice. What a +pity that no Professor Field and no level-headed doctors were on hand +at the time to have saved the day in Washington in 1873, as they did in +Illinois in 1918! + +The effort to put Virginia into the black list of states which prohibit +contraceptive knowledge and means, was a very recent one. In the +legislative session of 1924 a bill was introduced which, according +to the _Birth Control Review_, would make it “unlawful to sell, give +away or possess any appliance or instrument for the prevention of +conception.” The Committee on Moral and Social Welfare to which it was +referred received many protests. So also did the sponsor of the bill, +Mr. Ozlin, with the result that he withdrew it from the calendar, +before it was discussed at all in the House. + +In Pennsylvania there have been two attempts to make the law more +suppressive than it already was, which was quite bad enough, for +Pennsylvania is one of the states which make it a crime to tell +any one, to have in one’s possession, to publish or to advertise +contraceptive information, and it prohibits the circulation of +contraceptive means. The first effort was in 1917, the Stern bill, +which far surpassed any previous legislation in comprehensive +suppression, for it even prohibited “attempting to impart” any +“knowledge or information _tending_ to interfere with or diminish the +birth of human beings.” If opinions have differed widely as to what +constituted obscenity, fancy how they would differ on what “tended” +to diminish human birth. Isador Stern, the sponsor of the bill, told +Mrs. Alice Field Newkirk of the Main Line Birth Control League, that +he wanted to “make it impossible to discuss birth control anywhere in +Pennsylvania,—in parlors or in public halls.” The bill was quietly +moved along through legislative routine till it passed both houses +and it was not until the eleventh hour that many people knew of its +existence. Then protests began to pour in to Governor Martin Brumbaugh, +urging him to veto it. This he did with a very strong and forthright +letter, in which he called it “one of the most reactionary enactments +attempted in years.” The veto is here given in full, as it contains +several points of importance in considering the question as to what +kind of laws on this subject Americans may want: + + + COMMONWEALTH OF PENNSYLVANIA + + _Executive Chamber_ + + HARRISBURG, JULY 16, 1917. + + I file herewith, in the office of the Secretary of the Commonwealth, + with my objection, House Bill No. 1643, entitled “An act forbidding + the advertising, publishing, selling, distribution, or otherwise + disseminating or imparting, or attempting to disseminate or impart, + knowledge or information tending to interfere with or diminish the + birth of human beings in the Commonwealth of Pennsylvania; defining + it as a misdemeanor and defining its punishment.” + + The bill forbids the publishing or otherwise disseminating of any + information by anybody concerning birth control in this Commonwealth. + The existing laws judiciously concern themselves with this matter. + This bill does not. It is by far the most drastic bill in regard to + birth control in this country. It is, by like token, one of the most + reactionary enactments attempted in years. + + The popular mind is filled—if I may judge this mind from the many + letters and telegrams before me—with all sorts of misconceptions + concerning the provisions of this bill. It is not a bill to regulate + the size of families, but an attempt to prevent anyone from doing + anything “to interfere with or diminish the birth of human beings + in this Commonwealth.” Just how anyone could diminish birth is not + made manifest. The language is viciously vague and indefinite in the + extreme. The bill might be construed to punish those that oppose the + marriage of the insane or feeble-minded. Indeed the Commonwealth’s + own acts in segregating these unfortunates in institutions like + Laurelton would come under the penalties of this bill. It is, in + other words, counter to the whole current of modern social endeavor, + and as has been pointed out, could be made a convenient club for + the black-mailer. It would deny a physician the duty, in defined + cases, of advising his patient. It would seal the lips of mothers + and fathers in counselling their children. It is an attempt to do by + legislation what should be done by education. It would be a law more + honored in the breach than in the observation. It is impracticable + and unenforceable. + + For these reasons the bill is not approved. + + MARTIN B. BRUMBAUGH. + +While it is not feasible to agree with Governor Brumbaugh that +“existing laws judiciously concern themselves” with this matter, one +may well forget that sentence in his letter in view of the forceful +truth of his last three lines. In differentiating the proper sphere +of education from that of legislation, he rendered a signal service. +So also when he emphasized the folly of proposing laws which are +unenforceable. + +Two years later, the very same bill was re-introduced into the +Pennsylvania legislature, by Representative Hickernell. But it did +not become a law this time either, thanks to the vigorous work of +Mrs. Newkirk and some of the Harrisburg members of the National Birth +Control League. The bill had been referred to the Committee on Health +and Sanitation, of which a physician was chairman. He was of the +opinion that such efforts to stamp out birth control belonged in the +class of “freak legislation,” and he let his opinion be known in the +Committee. The bill was never reported out. + +Just as limited or “doctors only” bills were proposed after the first +freedom bills were introduced in the states, so also were they proposed +for Federal legislation after the trail was first blazed to Congress +by a Federal freedom bill. The special import of the “doctors only” +idea in Federal legislation will be discussed in the next chapter in +connection with the story of the Federal bill, through fundamentally +the same considerations apply both to state and to Federal law. At this +point it may be clarifying to take a look at certain happenings when +the “doctors only” bills were being urged upon the state legislators, +and when the public was being urged to support them. + +Those who have pushed these efforts to achieve limited legislation have +repeatedly asserted that if the giving of information were restricted +to physicians, and possibly to nurses, and given only to the married, +and only on individual application, the legislators would be much more +likely to pass the measure than if it were an “unlimited bill,” that +is, a bill which would place this knowledge on just the same basis as +any other knowledge so far as the law is concerned. But prophecy is one +thing and history is another, and the facts in this case do not seem to +bear out the prophecy. + +When the first of the “doctors only” bills was proposed to the Albany +Solons in 1921, two years after the second straight repeal effort of +the National Birth Control League, the pattern of legislative objection +was not altered one whit. The situation was precisely the same as +it was when the bill asked for freedom for all instead of special +privilege for a group. Then and at every subsequent effort in any +state, the newspapers have reported the same old set of remarks made by +the few articulate objectors,—that it meant race suicide, that it was +the same thing as abortion, that it would induce immorality, and that +it was against religion. As late as the Hearing of 1925 the legislators +were still offering the objections of “race suicide,” and that it +would “increase immorality.” But in the later years the race suicide +bogey has become rather less prominent,—perhaps because Holland and +New Zealand were so often quoted that the legislators were obliged +to concede that birth control and large increase in the population +were compatible and often coincident. In every single instance there +has been the same vulgar levity on the part of a few legislators, the +same noisy objections from another small portion of them, and the +same favorable or tolerant opinions on the part of the majority, but +privately expressed rather than publicly, and the same hesitation to +let their votes in Committee or in the legislatures reflect either the +facts in their own private lives or their real opinion. + +What is chiefly in the mind of the legislators is not the terms of the +bill at all, but the thought, “What will it do to me and my career if I +have anything to do with such an embarrassing subject as this?” These +reactions are admitted as true and are so reported, even by those who +have been working for the limited legislation. For instance, in the +_Birth Control Review_ of May 1921, the “Legislative Committee formed +by the Margaret Sanger group to push a measure or amendment affecting +the present birth control laws in the State of New York” reported their +effort to secure a sponsor for the “doctors only” bill drafted by +Professor Lindsay. The report reads in part, as follows: “The Chairman +of the Health Committee seemed the most logical and best informed man +to approach and he was also a member of the medical profession. He +stated his absolute opposition to the repeal or amendment of the Birth +Control laws and his determination to fight any such measure.” + +So the “Doctors only” concession was quite wasted on him. The report +continues: “Several of the important men of the Assembly assured us +of their approval of this class of legislation, but did not care to +introduce the amendment.” + +The “doctors only” bait did not tempt them either. But hope was +rewarded, the report says, for + + On a second visit to Albany, W. F. Clayton of Brooklyn expressed + his approval and belief in the great benefit of such measure.... He + would sponsor the amendment he said.... After three weeks’ delay and + two more visits to Albany, a letter was received from him saying: “I + very much regret, but after consulting with some of the leaders of + the Assembly, I have been strongly advised not to offer your bill. I + am told it would do me an injury that I could not overcome for some + time. Now, while I am more or less in favor of your bill and if you + can get someone else to favor it, and they are able to get the bill + out of Committee, I am strongly inclined to think that I would be one + to vote for it, providing it had a ghost of a show. I regret that I + have had this bill so long, but I sincerely hope my keeping the bill + this length of time will not in any way prevent you from finding + someone to introduce it.” + +So the “doctors only” idea was no help here. The report proceeds: + + Our next effort was to get sufficient and important backing from + the medical profession of the State to influence Dr. Smith of the + Assembly to sponsor the amendment. We did get the Health Board of + the Academy of Medicine of New York City to endorse it. (The Academy + later denied having endorsed this particular bill.) Doctors of + national reputation wrote urging Dr. Smith to introduce it. Thousands + of slips were signed urging the measure. The amendment in the form + of petitions, was signed by doctors, judges, economists, editors, + department of health officials, nurses, settlement workers, prominent + philanthropists, clubs and club women and many hundreds of voters in + the State of New York. All these data were presented as a background + to the lawmakers. _Dr. Smith refused on the ground of levity from his + associates._ + +It seems to take more than a “doctors only” inducement to offset the +psychology which envelopes any proposition to legislate on birth +control. The report concludes as follows: + + Mrs. Sanger and the Committee approached Mr. Jesse of New York, a + very able and prominent member of the Assembly and also conversant + with the righteous and urgent need of such legislation. He considered + the question and finally decided that he could not sponsor the + amendment. This decision was given after he had consulted party + leaders in New York. Personally many of these law makers believe + the measure of great benefit, but the party whip cuts too deeply + for courageous action. The Session drew to a close without the + introduction of the amendment. + +Again when the Connecticut limited bill (restricted to doctors and +nurses) was up for its first Hearing, the newspapers were full of +the same old pattern remarks from the objectors, and again the _Birth +Control Review_ reported that the objections were that it “was against +the law of nature, that it was atheistic, that it struck at the +foundations of Christian family life, and that it was an insult to +womanhood.” There was no sign that the objectors lessened or modified +their opposition in any way because the proposed bill was a limited one. + +In 1923 when the Rosenman Bill, the most limited of any yet proposed, +was defeated by the Committee on Codes, Mrs. Annie G. Porritt, managing +editor of the _Birth Control Review_, made this comment in the magazine: + + “How can I wait for the laws to be changed? It means my life now. If + I don’t get help in a few years I shall be dead.” This is the cry + that comes to Mrs. Sanger from all parts of the United States. But + this cry had no effect on the Codes Committee of Albany, when in + executive session they killed the Rosenman Bill only a few minutes + after they had heard the most convincing arguments for its passage. + If the action of our legislators were swayed by reason there could + have been hope for a better outcome; but it is not reason but + politics to which the Assemblymen were giving heed. + +The alleged persuasive character of the “doctors only” bill over the +freedom bill was still undemonstrated, even with a married-persons-only +clause thrown in for good measure in the way of limitations. The men +were still afraid to stand for that or any other bill on the subject. +“Politics” was still afraid. And the cause of the fear seemed clearly +not to be that the bill provided this that or the other, in regard to +birth control information, but that the bill brought up the question +of birth control at all. That is the persistent sticking point with +the man in politics,—nothing else. He feels embarrassed by the +whole subject. He feels that it may possibly “queer him” or be used +against him by his opponents in some way. And if he reaches the point +where he admits the reasonableness of amending the laws to make them +reflect the actual practice of the people, and decides that he might +as well sponsor a bill for that purpose, then his more wary political +associates, his party leaders, step in with restraining advice,—not +because they have any really profound convictions on the question, or +because they have any sincere opposition, but just because, as a very +frank member of Congress explained it, “We have plenty of troubles +of our own,—why should we add to the complications by queering +ourselves with birth control?” And just here lies the crux of the whole +legislation problem. + +However even if all propositions for the amendment of State laws were +straight freedom bills, and even if the State legislators began to +lose their fears enough to act there is one outstanding reason why it +is folly to try to correct the conditions in the United States by a +series of State bills. There are too many states. And even under fairly +favorable conditions it would take too long, not to mention the effort +and money needed to make twenty-four separate legislatures go through +all the motions involved. Laws do not amend themselves. Many people +have to work and work hard to get it accomplished. From the view-point +of efficiency alone, State legislation is wasteful, so long as the +Federal law remains unchanged; State legislation at best would be a +slow enough process, but with the precedent of the Federal law still +extant, it would be bound to be slower still. From the view-point of +human suffering and ignorance, State legislation without Federal action +also, is hardhearted and unintelligent; why break down the barriers +to information slowly a state or two at a time and keep struggling +worried parents in all the other states waiting for the information +much of which they might have quickly by the passage of the Federal +bill? And why keep scientists waiting all over the country for the +right to import and otherwise order from publishers the books which +only the passage of the Federal bill will let them secure lawfully, +and subject them to picking up information locally or secretly? From +the point of view of public morals, legislating a state at a time, even +with straight repeal bills, is dabbing at a national blemish instead of +wiping it out. All of which considerations point directly to the need +for Federal legislation. + + + + +CHAPTER III + +GOING TO THE POINT WITH A FEDERAL BILL + + _1919 sees first concerted effort to repeal Federal law: Initiated + by Voluntary Parenthood League, an outgrowth of National Birth + Control League: Disbanding of earlier organization and merging of + forces: Opposition from birth control advocates on “doctors only” + basis arises later: The long hunt for a sponsor: Cummins-Kissel + Bill introduced in January, 1923: Re-introduced in next Congress + as Cummins-Vaile Bill: Survey of six-year struggle in Congress: + Significant characteristics of Congressional reaction: Fear and + embarrassment inhibit even those in favor of measure: Suggestions + for keeping repeal “dark”: Alternate appeals to logic and humanity: + Public opposition (mostly Catholic) relatively slight: Sponsor in + Senate received 20 letters for bill to every one against._ + + +The chief answer to the query “What changes in the laws have been +proposed?” is that in the summer of 1919 a major move toward redeeming +the whole United States from the Comstock blunder of 1873 was made by +taking the question to Congress and demanding a repeal of the words +“preventing conception” from the five Federal obscenity statutes +wherever they occur. This move was the culmination of four years of +agitational, educational, experimental and more or less handicapped +work, first by the National Birth Control League, and then by the +Voluntary Parenthood League, which was started in the spring of 1919, +with the primary aim of accomplishing this federal action. As described +in the previous chapter, the experience for two years with efforts at +State legislation was sufficient to demonstrate clearly that the one +time-saving, fundamental act was the revision of the Federal laws on +which all State laws were modelled, and which was originally and has +ever since been the legal source of the disrepute in which the subject +of birth control has been held. + +The initiation of this move to take the matter directly to Congress +was a direct outgrowth of the preliminary work done by the National +Birth Control League in circulating thousands of petition slips, and +much literature showing the need for amending the laws. The Voluntary +Parenthood League was in fact formed by members of the National League, +and they differed from the Executive Committee of that organization +only in that they felt the time to act had come, instead of being in +the distant future. They argued that Washington was only two hours +further away from the Headquarters than Albany, and that convincing +Congress was only a slightly bigger task, numerically speaking, than +convincing the New York Legislature, and that precisely the same +motions had to be gone through in either case; but that the great +difference was that for approximately the same effort, success in the +one case would mean altering the laws of only one state, and success +in the other case would mean altering the law which affects the whole +nation. That argument won; and within six months the National League +had practically disbanded and most of its members had joined the +Voluntary Parenthood League. + +This union of forces into one active national organization lasted until +November, 1921, when the American Birth Control League was organized, +of which Mrs. Sanger was president, and the limited State bills began +to appear, coupled with opposition to the Federal bill. This opposition +was not officially stated in the platform adopted by the new League +but was obvious from the statements of the leaders, the refusal to +co-operate and from various editorials in the _Birth Control Review_, +which became the official organ of the new League. Appendix No. 10 +gives some of the concrete indications of this opposition. Presently, +however, the opposition was modified to the extent of approving some +Federal legislation, that is, a “doctors only” bill which was announced +in March, 1924. An analysis of this proposed bill will be made further +on, but at this point a condensed story of the Federal repeal bill is +in order. + +This first concerted practical measure to rescue the whole United +States from the effects of the Comstock blunder has involved a six-year +struggle in Congress, and at the present writing, the end is not yet. +The preliminary interviews with members of Congress and the scouting +for a sponsor for the measure began in July, 1919. A sponsor was +secured the following March,—Senator H. Heisler Ball of Delaware, +who had been a practicing physician before he became Senator. After +delaying his promised introduction of the bill for nearly three months, +he broke his word and allowed Congress to adjourn without presenting +the measure. + +The sponsor hunt continued during the next session, the short and +last one of the 66th Congress. A succession of Senators all of whom +favored the bill took it under consideration. Each thought it better +for some one else to do it. Their various delays in deciding carried +the sponsor hunt over to the new Congress which convened in December, +1921. Meanwhile the question was carried to Post Master General Hays +who seriously considered including this amendment with his proposed +recommendation to Congress that all the laws relating to Post Office +censorship be revised. His consideration lasted from midsummer to the +following March when he retired from the office to go into the moving +picture business. His recommendation was never made in Congress. + +So the sponsor hunt was again continued, and lasted until January, +1923, when Senator Albert B. Cummins, President Pro-tempore of the +Senate, agreed to introduce the measure. He was the sixteenth Senator +who had been asked to sponsor the bill. He made good on his promise +promptly, and the bill was introduced on January 10th. On the same +day the bill was sponsored in the House by Congressman John Kissel of +Brooklyn, who answered what was practically an advertisement for a +“volunteer” statesman to render this service. A letter had been sent to +each member of the House asking if he were willing to take the lead in +the House to correct the Comstock blunder. Mr. Kissel responded at once +and with serious approval. + +The bill was a simple straight repeal of the words “preventing +conception” wherever they occur in the five Federal obscenity statutes, +as follows: + + _Criminal Code_, + + Section 102, _which penalized any government employee who aids + or abets_ in the violation of any law “prohibiting importing, + advertising, dealing in, exhibiting, or sending or receiving by + mail,” any obscene publication, etc. + + Section 211, _which makes unmailable_ all obscene publications, + writings, etc., and all articles used for obscene purposes. + + Section 245, _which prohibits bringing into the United States or + sending by express or any public carrier_, all the obscene things + listed in Section 211. + + Section 312, _which penalizes anyone who “shall sell, lend, give + away, or in any manner exhibit, or shall otherwise publish or offer + to publish ... or shall have in his possession for any such purpose_, + any of the obscene things listed in Section 211. (This section + applies only to territory under the exclusive jurisdiction of the + Federal government). + + _Tariff Act of 1922_, Section 305, _which prohibits the importation_ + of any of the obscene things, listed in Section 211 of the Criminal + Code. + +The introduction of the bill was during the short session of Congress +with the usual congested Calendar. There was fairly definite reason +to believe that a majority of the Judiciary Committee to which the +bill was referred were in favor of it, but they were unwilling to vote +it out, that is they evaded voting on it. The session ended without +action. + +The bill was reintroduced by Senator Cummins in the next Congress on +January 24, 1925 and on the following day it was introduced in the +House by Congressman William N. Vaile of Colorado. (Congressman’s +Kissel’s term of office had expired with the previous Congress, hence +the need of a new sponsor in the House.) The bill this time carried +an additional section providing that no contraceptive instructions or +means could be transported by mail or by any public carrier unless they +were certified by at least five lawfully practicing physicians to be +“not injurious to life or health.” The full wording of the entire bill +is given in Appendix No. 11. + +Two Hearings on the Bill were held on April 8 and May 9, 1924, before +joint meetings of the Senate and House Judiciary Committees. As in +the previous year, there was probable majority in both Committees in +favor of the bill, but as before there was great hesitation to act; +the few opponents were not aggressive enough to want to have the +measure reported out adversely; they merely wanted it pigeon-holed +in Committee. And those who favored the bill or who took a tolerant +attitude about it were not sufficiently energetic to do anything except +to acquiesce in the pigeon-holing of the bill. + +Some progress was made however during the next session, the last one of +the sixty-eighth Congress. For on January 20th the Senate Sub-Committee +of three decided to report the bill to the full Committee “without +recommendation.” Senator Norris was and always has been unqualifiedly +in favor. Senator Overman has always heard the arguments for the +Bill with sympathy and seems to have no objection to it, other than +a lingering fear that access to knowledge may encourage immorality. +He did not wish to hold back action on the Bill, and therefore +stood for reporting it “without prejudice.” Senator Spencer when +first interviewed regarding the Bill expressed his general approval +of its aim. Later he brought up various points about which he had +reservations. He decided, however, that they should not prevent him +from joining with the other two members in a report that would make +procedure possible. But no report was made by the full Committee before +Congress adjourned on March 4, 1925. The bill died, as do all pending +bills which are not enacted when the last session of a given Congress +adjourns. + +So much for a bare outline of the six years of effort in Congress. +This book is not the place for a full story of work, with its many +interesting ramifications. For the benefit of those who are interested +in the actual chronology of the events in this unique struggle, +Appendix No. 12 gives a tabloid story of the successive happenings. But +it will perhaps be a useful contribution to the basis for an answer +to the question as to what sort of laws the people really want, to +give the reader some extracts from the mass of recorded material about +this Congressional campaign; to turn the search-light upon certain +significant bits of it, with a view to utilizing the experience of the +past as a guide for the demands made upon Congress in the immediate +future. + +The aim of the writer is to put the reader in a position to determine +whether the trouble is with the bill, or with the way the Congressional +mind reacts to the bill, and what factors there may be that have +aggravated the situation so as to produce such an absurd incongruity as +that a body of men who have themselves achieved family limitation and +who represent constituents who likewise have to a great degree achieved +family limitation, should fuss around for six years over the simple act +of removing a statute that does not represent American life “as is.” + +The facts submitted in this survey of some of the high spots of the +campaign in Congress are for the most part gleaned from the writer’s +personal experience in Washington, in direct conversation with the +members of Congress. Where otherwise it will be so stated. Being +director of the work for the entire six years gave an opportunity for +first-hand observation of the vital factors in the situation, and +especially of those that were behind the scenes. + +The outstanding characteristic notable throughout the whole period +has been a general acknowledgment of the reasonableness of the +bill, coupled with fear to act. This fear has been occasionally +admitted frankly, but has mostly been covered over with all sorts of +“rationalizing.” And it has been almost as evident among the men in +Congress who were for the bill as among those who have opposed it, +or those who have stayed on the fence. Thorough-going opposition to +the bill has from the very beginning been almost nil, that is, in the +sense that a man believed in the prohibition of contraceptive knowledge +enough to want it applied to _himself_. No such member of Congress has +yet been discovered, though there have been a few found who have said +they thought the law as it stands is eminently suitable for application +to _other_ people. + +The first man interviewed when the work began in the summer of 1919 +was Congressman Andrew Volstead, then Chairman of the House Judiciary +Committee, to which Committee the bill would be referred, when +introduced. He was instantly alarmed, said the bill could never be +introduced; that if it were, the Committee would never report it out; +that if they did, no one would ever vote for it on the floor, and +so forth. He added however that he would arrange to give the bill a +hearing if it should be introduced. He was sure that the only way to +accomplish what we wanted was to revise the penal code and “quietly +omit it” (the prohibition of contraceptive knowledge). + +Later several of the Senators made similar suggestions that a bill be +introduced without a specific title, merely a bill to amend certain +sections of the Criminal Code, and simply omit the offending parts, +without explaining what was being done. Their idea was to let the bill +appear to be new legislation to suppress indecency, which would sound +commendable, and not say anything about the control of conception, +nor bring it up at all for discussion. As put by one of the Senators +who was not going to stand for re-election, “Most Congressmen are too +lazy to investigate reasons. If the words presented look plausible, +they will vote aye,—and let it go without bothering.” The members who +advised in this vein said that what the men would object to was not so +much doing the act of repealing this prohibition as having to discuss +it or having any one know they did it. The subject was “disagreeable.” + +A related phase of fear, and one met with repeatedly, was that they +would be made conspicuous in the newspapers if they got “mixed up” +with any of this “birth control talk.” They had a horror of the +possibility of flaming headlines that would somehow drag them into +“sensationalism.” They had a stiff aversion to “the whole business.” +Some of them had no other knowledge of the birth control movement +than that a woman named Sanger had “made a rumpus” and gotten jailed, +and that when they went up to New York for week ends, they saw the +sight-seeing automobile man point out “the birth control woman on +Broadway,” meaning Kitty Marion, who has become a familiar figure +selling the Birth Control Review on the New York streets. Some of them +confessed to a sneaking desire to get one of those magazines to see +what was in it, but they didn’t dare. They assumed that it contained +contraceptive information,—so little did they know about what the laws +really permit. + +The fear that they would be exploited in the newspapers was assuaged +as far as was possible by the assurance that they were not being +interviewed for publication, that what was wanted was the quickest and +quietest possible action by Congress, and that if they would simply +introduce and pass the bill, a large part of the impetus to and need +for agitation would be done away with, and then there would be no +“noise” to fear, and they would have the satisfaction of having done +a decent, needed act in a dignified way that would greatly redound to +their credit. This assurance helped perceptibly in many instances, +particularly in making them discuss the bill in private conversation +without embarrassment or discomfort. + +The policy of not exploiting the views of the individual members of +Congress in the newspapers, and especially of not giving the names of +the few opponents who have made themselves ridiculous in interviews has +been adhered to throughout the work. When they have put themselves on +record as some of them did in discussion at the public Hearings on the +bill, that is quite another matter. Also when the bill at the end of +six years of effort was allowed to die in Committee, a report of the +stand of each member of the Judiciary Committees was published in the +Birth Control Herald for the information of those who had supported the +campaign to pass the bill. + +It was not until February, 1922, that any newspaper articles on the +work in Congress were sanctioned. Then a feature article was written +for the New York (Sunday) Times and reprinted by arrangement in the St. +Louis Globe Democrat. The following excerpts from it shed light on the +situation as it was reported up to that date: + + The initial interviews served two purposes: one to give the + Congressmen a realization that knowledge about the control of + parenthood is just the same simple human necessity for all the people + as it is for themselves and their own families; the other to enable + us to find an advantageous sponsor for the measure. + + Most members were quite ignorant to the exact provisions of the + present law and the way Anthony Comstock had originally lobbied the + measure through. They didn’t know that his proposition had been the + suppression of pornographic literature and pictures primarily, and + that there had been no discussion on the floor of the inclusion of + contraceptive knowledge in the bill, and that Congress as a whole did + not know it had voted for a law to suppress it. + + Some members needed to be assured that Congress is not being asked + to sanction the interference with life after it has once begun, but + merely to free the knowledge as to how the starting of new human + life may be controlled. This distinction relieved many Senatorial + minds. A fairly frequent worry among the Congressmen has been “race + suicide,” but they seemed relieved when told such facts as that + Holland, with its fifty-two birth control clinics and its established + contraceptive instruction which has been going on for more than forty + years, had—up to the war—the second highest ratio of increase in + population in Europe. + + A somewhat common type of Senator is he who fears that making + contraceptive knowledge legally accessible will result in its abuse, + particularly by the young. But he usually responds quite nobly to + such queries as: “If young people are safe only when ignorant, what + happens when somehow they get knowledge, as may occur any moment?” + “If American young people, as a whole, are prone to go to the devil + as fast as they acquire an understanding of this subject, whose + fault is it?” “What is the matter with us elders who have reared + them so poorly?” “Isn’t knowledge on all subjects capable of abuse, + and doesn’t safety lie on the far side, not on the near side, of + education?” + + However, the attitude of the large majority of those interviewed is + fairly represented by the letter President Harding wrote when he was + a member of the Senate Health Committee, in which he said, “I have + not had time to study carefully the provisions of your bill, but at + first reading find myself very much in its favor.” + + The one most arresting fact which the Congressmen were asked to face, + and which none could deny, was that Congress itself, like any other + group of well-to-do men in the United States, already represents the + achievement of family limitation despite the laws. The “Who’s Who” + section of the Congressional Directory does not report Congressmen + with families of eight, ten or twelve. Quite otherwise. + + A few weeks of quiet but energetic sampling of senatorial opinions + brought us to the point of choosing as the desired sponsor one of the + only two physicians of the Senate, a man who had heartily indorsed + the bill from the beginning and whose cultured dignity would insure + right handling for the measure. But it took him nearly three months + to reach the conclusion that he was too occupied with other important + issues to do this measure justice. Even then he did not refuse, but + merely said he could not yet see his way and urged that someone + else be asked. This refusal to refuse has been characteristic of + nearly all the fifteen Senators who have been invited in succession + to sponsor the bill. All of them believed in it, but in their + various ways, they have “passed the buck”—some convincingly, some + transparently, some gracefully, some awkwardly, but all of them + insistent that it was a job better suited to someone else. + + Several were “too busy”—among these was one who was not a member of + any major committee, who had introduced no public-interest bills, and + who, as observed from the Senate gallery, sits for hours on end in + undisturbed quiet. One assured us he was “too old,” another was sure + he was “too ignorant of the subject—it needs a man who can give all + the data in debate, as I can’t.” We promised him a perfect arsenal + of material all classified and condensed, but he felt sure he wasn’t + “equal to doing it well.” Another said he was interested, but better + not be the sponsor as—“well, candidly, I shall be up for re-election + next year, and you see, ...” + + And still another who is considered one of the pillars of the major + party in Congress, a physically big man, standing something like six + feet three, announced to the relatively small woman who invited him + to render this bit of public service,—“Really, I’d be afraid to + introduce that sort of bill.” On being told that he “hardly looked + the part,” he spent an energetic five minutes trying to blot out the + picture of himself as a coward. + + One man assured us that he was not “important enough in the Senate. + I don’t count,” he said. When the task was put up to one of the + _leading_ men, his answer was, “What you need for sponsor of a bill + of this sort is a man who isn’t active, someone who has nothing + to lose, someone whose bill wouldn’t be specially noticed.” Other + similar advice was to “get a lame duck to do it” in the short + session, that is some man who “is going out of politics anyway.” This + advice is a reminder of what Senator Thomas of Colorado said, in a + speech after his defeat, “the only independent Senators are those + just defeated or those just elected.” + + The short sessions being those which allow the “lame ducks” to + legislate just as if they had not been defeated for re-election, has + been dubbed the “don’t-care-a-damn” session, and it is generally + considered the heyday for “freak” legislation. This bill is placed + in that class by the scornful. But all the while the members were + acquiring a better understanding and a more obvious respect for + the measure. Almost every one who was consulted responded to our + suggestion that, apart from their individual views on the measure, + they would do everything possible to insure for the discussion of + the question in the cloakrooms, in committee and on the floor an + atmosphere of dignity and seriousness which the subject deserved. An + influential representative of the old guard Republicans said: “This + is a new idea to me as a subject for legislation, and I must give + it more thought, but I can see its social importance, and certainly + I can assure you right now that I will do my utmost to see that a + proper atmosphere for the discussion is established.” (This was the + Senator who turned the tide of refusals, and introduced the bill the + following year, Senator Albert B. Cummins of Iowa.) + + More and more men were found whose attitude was like that of a + Middle Western leader, who said, “I see no reason why I shouldn’t + support it.” The interviews frequently developed into perfectly + good “mothers’ meetings.” Even the “busy” men often settled down + in the big leather chairs of the Marble Room and grew domestically + reminiscent. One told how he himself had been “an unwanted baby,” a + fourth child born when the family lived in one room, and how several + of them died, and he became the main support. “And so,” he said, “you + see there may sometimes be a place for the unwanted ones after all.” + “Indeed, yes, because brave humans will always struggle to adjust and + triumph, but would you, because of that, deliberately perpetuate the + ignorance which keeps on producing unwanted babies?” And he answered + unhesitatingly, “No, certainly not.” + + The men with rural constituents have been specially interested + in the need of the country people for good reliable books on the + control of parenthood. The mothers and fathers who live miles from a + railroad, and who find the only doctor in the nearest village unable + or unwilling to give them useful instruction as to how to space their + babies, are very real characters to them, and it doesn’t take much + argument to make them see what our Federal measure will do for these + people, and how simple it will make it for them to order by mail, + from book stores in the big cities, practical books by the world’s + best authorities. + + The few instances of hot antagonism became more and more exceptional. + Our prize enemy even became friendly enough to suggest easy ways + of bringing the measure to vote. But in our first interview he had + blurted out remarks such as these, gleaned from our notebook: “You + ought to be ashamed, an intelligent American woman like you.” “You + ought to stay at home and take care of your children” (shades of the + early suffrage days!). He refused to be diverted from personal abuse + by statistics from the Children’s Bureau about the high baby death + rate where wages are low and families too large. His answer was that + statistics lied and he “wouldn’t read ’em.” He scoffed at the idea + that children needed a fair chance for education. “This education + business is overdone. What children need is work.” He countered all + facts and all logic with “I decline to argue.” + + On being invited to read a booklet giving the main reasons for our + measure he replied, “I will not. I don’t need to,” and he wound up + with the stentorian advice, “Young woman, you better go home and pray + for a clean heart.” But within a day or so he sent the following note: + + “My dear ——: + + “... Perhaps I was a little hasty with you when you called this + morning. You took me somewhat by surprise. If you should happen + over this way again, and could catch me when I am not very busy, I + should be glad to talk over matters with you more fully, and get + your viewpoint more clearly. + + “Yours very truly, + + “——.” + + And lo! the next time he was gentle and receptive. He chuckled over + the query as to whether the farmers in his State sowed wheat as thick + as the soil would hold it, and whether they planted potatoes 4 inches + apart or over 2 feet apart, and if babies didn’t need space just like + crops. He answered, “That’s so, that’s so,” and presently he was + advising us to get the Health Committee to commend the bill to the + Judiciary Committee, which would undoubtedly act on the advice. + + Our next most spontaneous and unique antagonist was one of the + leading orators of the Senate, who delivered this little speech on + the mere sight of our card bearing the name “Voluntary Parenthood + League”: “All these leagues and welfare organizations, no matter + how fair they look on the outside or how well they speak or write, + are all ‘Bolsheviks’ at heart, and what they really want is to + overthrow the Government of the United States.” The mild suggestion + that it might be rash to generalize brought a smile and the remark, + “Why, yes, that’s fair,” and he pocketed the offered literature and + promised to “investigate.” + + Speaking of “Bolshevism,” here is another item from the interview + notebook: + + M. W. D.—“Can the country expect level-headed citizenship from the + man whose maximum wage isn’t over $20 a week, and whose family has + increased annually for several years, whose wife is sick, and whose + babies are hungry and ailing?” + + Congressman X.—“No, certainly not. Those men get desperate. They are + ready to take up with any wild ideas.” + + It was just this point of view, plus the unemployment situation, + which led one of the foremost conservatives of the Senate to consider + for three weeks the sponsoring of our bill. He became convinced + that “when father is out of a job it is no time for mother to have + a baby,” and while he felt concerned that the rich don’t have more + children, he thought that was no excuse for victimizing the poor + by laws which try to keep them ignorant as to family regulation. + However, he begged off from shouldering the bill, saying he couldn’t + undertake it for so long that in fairness to us we should ask some + one else to introduce it. He was the fourteenth Senator asked, and + by that time the always sympathetic Chairman of the Health Committee + said we reminded him of Diogenes, except that instead of hunting for + an honest man we were merely hunting for a courageous man! + + An outstanding independent of the Senate, one of the truly “busy” + members, frankly explained what ailed most of them. “Congressmen + are such cowards,” said he. “Believe in it? Of course they do, and + privately they will all say so, but that’s mighty different from + sponsoring the bill. I know. I’ve been here twelve years.” + + A Catholic Congressman from an industrial district crowded with mill + workers, listened soberly to the figures of the baby death rate in + his home town (130 per 1000, as compared with New Zealand’s world + record of 50 per 1000). The conversation went about like this: + “Suppose we look at this thing practically. Do any mills in your + district raise a man’s wages every time he has a new baby?” “No.” “Do + you see any legislation ahead that will put wages on that basis?” + “I do not.” “Don’t most mill workers reach their maximum wages at + about the age of 30?” “I should say so.” “Is it fair, then, for the + government to deprive these fathers of the knowledge by which they + can keep their families somewhere near in proportion to their wages?” + He looked pained and said: “It is surely a serious question. I want + to think it over.” + + Very few Congressmen have even the partial excuse of belonging to + a church which disapproves the scientific control of parenthood. + In this connection it is interesting to note that a Catholic member + who began by saying, “Even if I had no religion at all I should + oppose your outrageous idea,” ended by asking for our literature and + admitting he was relieved to find that we did not seem to be, as he + had thought, an immoral lot who were assaulting marriage and the + home; and he recognized the fact that our proposed change in the law + was merely to make access to information legal, not to compel people + to use it, and that, therefore, the change would not be an intrusion + upon any one’s religious faith.” + +Sound argument and indisputable facts made very perceptible headway +for the bill as the interviews accumulated. But the one snag which has +always entangled the best of logic is the fact that the nature of the +subject embarrasses Congress and therefore inhibits action, even though +reason urges action. Over and over again have suggestions been made by +members of Congress for trying to accomplish the repeal without having +it show. Some of these suggestions have already been noted. Another +came from one of the Republican leaders in the House who said, “If +only you could think some innocuous _other_ way to _amend_ the present +statutes, you could slip your clause _out_ at the same time and it +would go easily.” Another prominent member of the House advised, “Get +your action at the same time that the proposed amendment is presented +to add moving picture reels to the list of articles proscribed in the +obscenity laws. While they add films, you quietly subtract ‘preventing +of conception.’” A very well known Senator thought it might be “slipped +through” as an amendment to the proposed bill to extend Post Office +censorship to race track betting news, if that measure should reach the +floor. (It died in committee.) + +None of these indirect methods has seemed wise procedure, partly +because the little subterfuge would not work, and when once discovered +would produce a situation even less to be desired than that induced +by plain lack of courage to introduce the straight bill, but chiefly +because indirection seems inherently unworthy, when it is devised +to cover an attitude that is not in itself thoroughly creditable. +Very great effort has been made to divert the members of Congress who +are suffering from this undue embarrassment by urging them to give +impersonal consideration to the justice and wholesomeness of the bill, +and by emphasis on the fact that the bill does not deal with a new and +untried idea but only reflects a condition in American life that has +long been an actuality. + +For instance in 1920 it was pointed out to every member of the +Judiciary Committee that if the bill dealt with anything which was +“advanced” or ahead of the times or out of harmony with the lives of +the average person, it would not have happened that one of the largest +of the women’s magazines (with a circulation of over two million +copies, and an advertising rate of $6000 per page) would have published +a feature article entitled “Has a Mother the Right to Decide How Many +Children She Will Have?”; nor would that magazine have spent thousands +and thousands of dollars as it did, to advertise this special article +in the newspapers of many large cities, using full and half pages for +the advertisements; for the editor of a popular magazine is always +canny enough not to give his readers anything which is very far in +advance of wide-spread public opinion. + +They were told also that this same magazine followed that article with +an editorial asking the opinions of the readers on the laws relating to +birth control. A digest of the replies was made, and the proportion of +those who were in any way opposed to the change of the laws was only +sixteen out of a thousand who unqualifiedly wanted them changed. + +To help the members of Congress to displace their own sense of +discomfort in merely considering this “disagreeable subject” with a +sense of the actual suffering of others whose ignorance made them the +victims of the present laws, the Voluntary Parenthood League followed +Comstock’s own method in Congress for the correction of his blunder, +that is by submitting sample instances showing the need for the +legislation proposed. The exhibit of 1873 was smut. The exhibit of 1923 +was pitiful suffering. + +The following petition was sent to every member of both Houses of +Congress, and was inserted in the Congressional Record of February 8, +1923, by Representative John Kissel, the Sponsor of the Bill in the +House: + + TO THE MEMBERS OF THE SENATE AND HOUSE OF REPRESENTATIVES. + + Gentlemen: + + Just fifty years ago this month, Anthony Comstock showed to your + predecessors specimens of the revolting, smutty literature which was + then being circulated by conscienceless publishers among the young + people of this country. + + The Bill he proposed for the suppression of this traffic got almost + instant support, as the abuse was flagrant and the proposed remedy a + natural one. But by an obvious blunder the Bill was drawn to include + all knowledge of contraception, when the aim of the Bill was only the + suppression of this knowledge in connection with sex-perversions—a + blunder which has meant injustice, hardship and insult to millions of + parents ever since. + + Now Congress is asked to correct that blunder, and just as Comstock + showed your predecessors samples of the disgraceful traffic of the + seventies, so we present to you herewith samples of the letters which + the League constantly receives in great quantity from suffering + parents whose lives are being made miserable by the error that was + unwittingly made fifty years ago. + + Just as Congress responded to the need presented to them in 1873, + we ask you to respond to the need now presented to you in 1923, and + to correct the blunder with as much speed as that in which it was + originally made. + + Yours very truly, + Voluntary Parenthood League.” + +(The original wording and spelling is given in these letters.) + + DEAR FRIENDS: + + You have no idea how bad I need your help. I am 38 years old and am + the mother of 6 living children and one dead. Have been married + twice. I have had a good many mis-carrages and in the last 6 years + I have had 4 children and when your letter came I was in bed from a + misshap. Now I am a poor woman live out on a farm 7 miles from no one + and if ony you could just visit my home you would not hold back the + information. Pleas do be kind and tell me just some little thing that + would help me out. I will promish not to tell no one about it. I have + not been able to leave this house for 2 years now and see hardly no + one if ony I could talk to you in person. + + We had only two milk cows and one of them brote a calf and died so + we have all the children to feed on the one cow and that cows calf. + I kno there is no one that needs any more help in this world than we + do to save the children we have without more coming. Please write and + tell me how much money you want as if I can help myself I must do so + at once. I will go hungry for the money to pay you if ony you will + help me. + + I would love to send $2.00 but am not able to do so but I wont to + read and have others read your leaflets. I do beleave that I need the + help that I want of you as bad as eny one on earth but I am a poor + woman and I gess it hant for the poor to have eny help on this earth. + + I beleave it must be stoped and I want to join you. It’s the most + needed help on earth. Pleas send me all the papers you can spare and + I will let my friends kno about you by giving your papers to them to + read. Do pleas write and tell me what you want for a little truth and + help. I will promish never to give you away so that the law will ever + get a hold of you through no falt of mine. + + Good by for this time + ____. + + DEAR FRIENDS: + + I was just reading a book called the Sex Searchlights and Sane Sex + Ethics, and in this book I found your address and seeing that you + will give people information on the topic you have in this book, + about helping people to keep from becoming mothers. If they increase + too rapidly. My case isn’t this. I have a little boy and the doctors + tell me not to have any more or I will not be here any longer. I + asked them how I was going to prevent this. All they said was find + out. My baby was taken with instruments and I was between life and + death. + + Hoping you will send me information on this topic at once, + + Yours truly, + ____. + + MY DEAR FRIENDS: + + Will you please tell me some simple remidy to prevent conception. I + am the mother of 6 children and soon to become the mother of another. + It is sapping my life and breaking down my health. If you cannot give + the information please tell me where I can get the information. + + Yours truly, + ____. + + MY DEAR MRS. DENNETT: + + All of the literature received by me from the V. P. L. strikes an + answering chord in my heart. I had so hoped that the Federal bill + would be passed early enough for me to get and pass on the much + needed information to the rural mothers, who are being broken down by + child bearing and hard work. + + As a Graduate Midwife delivering eight or ten babies a year, in the + course of my Public Health work I realize more than most nurses the + pressing need of contraceptive information. I came to this work June + 1st, 1918, and am leaving March 1st of this year because the doctor + has told me I ought not to finish out this year if I’m to keep my own + health. + + In these four years I have delivered six mothers of two children a + piece and one mother of four, twins the 1st June, 1918 and one Oct., + 1919, the fourth Feb., 1921. This woman is 23 years old and the + mother of six children. Naturally she is already breaking down and + the children can’t get proper care. It is pitiful! There are three + other women who have borne children so rapidly that they are on the + verge of physical or nervous break down. If I send them to their + family doctors they are given a tonic and told that they “will come + around all right.” They do, in about nine months with another baby. + + If you can devise any way to help us please do so and believe me your + grateful friend, + + ____. + + V. P. L. + + Rec’d your pamphlets, thank you ever so much. So sorry you couldn’t + give me the information I wanted so bad. For God’s sake, can’t you + help me somehow. Am married three years, I have a baby two years old + another five months old, and I am pregnant again. Can you imagine + anything more awful. If I could only devote the next five or six + years of my life to the raising of my darlings I am sure God would + reward anyone who would tell me. + + I swear if I become pregnant a fourth time I will do something + desperate. What I would say about my husband had better be left + unsaid. Please, please cant you give me the information I crave, just + one little line. I will pray for you every night of my life. May God + bless you and help you along in the wonderful work you are doing. I + thank you for anything you will tell me, and if you will not I thank + you just the same. Once more I ask for our dear Lord’s sake please, + please help me. + + One discouraged mother, + ____. + + Voluntary Parenthood League: + + I have received the literature you sent and wish to thank you + although it cannot help me at present. I may be able to help some + other poor sufferer. I would like to become a member or be able to + send some money but it is impossible at present. We are four months + in arrears in our rent, the children have scarlet fever, and my + husband was out of work for six months, then he invested the little + we had in a business but we cannot keep up with our bills. And now + this other expense coming again. + + I love little children but don’t like to see them suffer from lack of + attention and care. + + Sincerely yours, + ____. + + DEAR MADAM: + + I am writing to see if you can help me any. I have two children whom + we adore and I am living on the prairie, forty miles from a reliable + doctor, and no crops for five years. + + Before I married for several years I suffered with rheumatic + arthritis terribly, but was free from it for several years. When + my baby was two months old (two years ago) we took the “flue.” My + husband took it first and I struggled around to look after the + others. It was 45 below and we would have frozen to death if the + fires went out. I was so weak was only able to put on a handful at + a time and dare not take off my shoes or undress at all. My husband + was inclined to violence and was just crazy. We managed to put out a + flag but it was not seen for three days. At last help came after we + had been sick about ten days. The neighbors (men) took it in turns + to watch and nurse us in twos. Women are scarce here but one would + come in now and again as they could. I had pneumonia and dysentry + and I was unable to move in bed. Baby was taken away. She was nearly + starved to death unable to get any nurse from me and I did not know + it, poor little mite. We were able to get a nurse when we were + getting better but our kind friends said they had never seen anyone + so sick and live. + + I had been up a couple of weeks when I was taken with rheumatic + fever, every scrap of my hair came off and I’ve had rheumatism ever + since, and I have been unable to do the washing or clean the floors. + My husband has had to do it all and he is about run of his legs with + his own work. My right arm is crooked at the elbow, my right hand + all drawn out of shape and both wrists stiff. Oh if you could only + help me. I am terrified of the idea of having another baby when I can + so ill look after those we have, besides giving them a share of my + ailment. + + With my very best wishes for the noble fight you are making. + + Yours sincerely, + ____. + + MY DEAR MRS. DENNETT: + + After a long time that I have been looking for some one to help me, + I finally found a friend of mine, whom gave me your address, and + hoping you will be of great help to me. I am a girl of 25 years of + age. Been married four and a half years. Had two babies, both with + critical instrument cases. It meant either the child or my death. So + there for I was never able to see either one alive for they were dead + before I had opened my eyes, and confined to bed for 4 weeks after. + Am not in good health yet. If my last dear one was living it would be + one year old the last of this month. It was a little girl, and the + first one a boy. But you see I was left empty handed both times. Now + the doctor tells me if I should have another, it would mean my life, + as my bones are very small and wont give. And yet they wont tell me + how to prevent it. All they say is its against the law. And if they + would help me its very expensive, they say, as my husband is working + and his dayly wages will not permit us to spend to much. So will you + please advise me what to do. Of course its against the law. But I + don’t see why it would be in a case like this. + + If you do help me, it will be very much appreciated by me. I’ll remain + + Yours truly, + ____. + +In contrast with the struggles of the ignorant on whom the laws are +still an intolerable burden, the members of Congress were asked to +consider their own status, as revealed by themselves in the biographies +which the members provide for the Congressional Directory. + +The biographies in the Congressional Directory are not uniform in the +facts presented about the members, but a survey of those biographies +which mention the children at all, shows clearly that a restricted and +controlled birth rate is the general custom. + +The average number of reported births is found to be 2.7 per family. +The largest family recorded is 11, and these children were born during +a period of 23 years. Successive annual births simply are not found. + +In the 225 Congressional families noted, the number of children is as +follows: + + 1 family has 11 children + 2 families have 10 children + 1 family has 9 children + 3 families have 8 children + 1 family has 7 children + 7 families have 6 children + 16 families have 5 children + 22 families have 4 children + 40 families have 3 children + 80 families have 2 children + 46 families have 1 child + +Many of the Congressional families are smaller than the eugenists +usually consider desirable. But however much the members of Congress, +like others of the “fit” class, may be open to adverse criticism by +students of race progress, the fact remains that the old Comstock law +to enforce ignorance as to the control of parenthood, has long ago been +frustrated by Congress itself. + +Alternation of logic with appeal for simple fairness and human interest +has characterized the whole period of work in Congress. No single +approach to the subject affects all men alike. And while no appeal has +thus far overtopped the towering inhibition which has held them back +from acting, the combination of the different appeals has apparently +prevented them from being willing to kill the bill outright. Almost no +one in Congress wants to go on record against it, but they squirm at +going on record for it. + +The special reason for giving here some of the specimen appeals that +have been made, is in order to better facilitate an understanding of +the cause of the inhibitions. For in that understanding lies the clue +to their demolition. Toward the close of the session in the winter of +1923, when every effort was being made to bring out at least from the +Senate Judiciary Committee a favorable report on the bill, and when +there was only one day left on which the committee would meet before +the end of the session, the following letter was sent to each member: + + TO THE MEMBERS OF THE SENATE JUDICIARY COMMITTEE: + + In again urging you to report out the Cummins Bill (S4314) next + Monday (February 26th), on behalf of my league, I beg you to think of + the request in the most simple and human way possible. + + The Bill is _simple_ because it merely rectifies a blunder made by + Congress 50 years ago. It was contraceptive knowledge in connection + with sexual depravity that the original statute aimed to suppress, + not the knowledge for normal use. The proof of this statement has + previously been submitted to you. + + The logic of the measure is also _simple_, for the application of + this knowledge in controlling conception is not a crime, therefore it + is absurd to maintain a law which deems it a crime to learn what that + knowledge is. + + I beg you to be _human_ about it. Act on this measure as if the need + for knowledge were your own, instead of that of millions of poor + people. Suppose you were a young man on a small wage, with a frail + wife and more children already than your pay could support, would you + be patient on hearing that your Senators were “too busy” to spend the + five minutes it would take to send this Bill on its way to passage? + Suppose you had any one of the many good reasons that millions of + parents have for needing desperately to get this knowledge in + decent, scientific, reliable form, instead of from hearsay and in + abominable underground ways, wouldn’t you put that need first? + Would you stop to debate about the French birth-rate, or any other + irrelevant question? + + Without speaking personally of individual Senators, it is entirely + justifiable to assume what Senators _really_ think about this + question, for the average birth-rate in their families and their + children’s families has proven it long ago. Can you then be any + longer callous to the needs of millions of your poorer fellow + citizens who, unlike you, are struggling with poverty and the whole + train of worries induced by poverty? + + And most of all, can you not break through the _fear_, which has held + many of you back from acting promptly; fear not of public opinion but + of each other, the flippant, facetious comment that comes easily to + the lips of many men, even good and fine men—in their instinctive + effort to cover the embarrassment they feel because this question + touches upon sex? Many members have admitted that they were inhibited + by this fear. But can you not forget it, through sympathy for the + suffering of others? Isn’t it more precious to you to be just and + generous to your fellow citizens than to further indulge this fear, + which in the last analysis could never be a source of real pride to + you as a servant of the public? + + Gratitude and respect await your favorable action. + + Yours very truly, + ____. + + Director of the V. P. L. + +What followed is reported in the Birth Control Herald (March 8, 1923). + + As soon as possible after the Committee adjourned on the + twenty-sixth, we found Senator Cummins and said, “Well, please tell + us the worst.” He threw up his hands and replied, “I simply could + not get it brought up. When they were discussing the constitutional + amendment which was the subject of the meeting, I gave notice that as + soon as that was settled I should bring up the Birth Control Bill, + and by the time the amendment was disposed of they had simply faded + away.” “Leaving you like Casabianca on the burning deck alone?” “Yes.” + + We asked what members were present and he told us frankly. So + we know who “faded away.” And we know who did not attend at all. + The nearest approach to an excuse that any had who were in favor + of the Bill, is that some of them were not present at the moment + that Senator Cummins announced that he would ask the vote of the + Committee. But they all knew beforehand from us that the Senator was + going to ask the vote on that day, so the record stands squarely as + one of evasion. It is quite true that most of the Judiciary members + were genuinely busy, some of them very busy during the last few weeks + of the session. But that five minutes could not have been found for + allowing the probable favorable majority to vote to report out the + Bill is taxing credulity farther than most people are willing to + stretch it. + + Indeed Senator Cummins was quite candid in saying, “They simply + don’t want to vote on it.” We inquired if it was not chiefly because + the subject embarrassed them, and he assented. We discussed a bit + with him this curious fact that human sympathy did not overcome + embarrassment enough to just vote. We did not ask them to talk, + merely to act. The Senator granted that the effort had been very + educational. He added, “And, now as the farmers would say, you will + have to spit on your hands and go at it again. And next time you will + win.” + + We asked Senator Dillingham if anything mitigating could be said + regarding the statement of Senator Cummins that the Judiciary members + had “faded away” when they knew the vote on the Bill was to be called + for. He said, “No, Senator Cummins was absolutely accurate. That is + what they did do, fade away. And yours was not the only Bill they + did that to either. They did it to some of mine also.” He said he + was very sorry for our disappointment, and that the postponement + was inevitable in view of the fact that they all had so many other + irons in the fire, each one having a lot of special interests of + his own that absorbed most of his time, and that on top of their + preoccupation with other matters was their sheer distaste for a Bill + of this nature. + + We reminded both him and Senator Cummins that the “busy” excuse was + nothing new, that we had had that hurled at us at the very beginning + of the first session of the present Congress. But they both agreed + that with our bill introduced early in the next session and a Hearing + held we should be in a position to expect results in a fairly short + time. That many members of Congress anticipate the efficacy of our + persistence is indicated by a chance remark about another Bill that + was going hard, “Better get the birth control people to push it!” + +While the inhibition which has prevented action on this bill is still +powerful in Congress, the maintenance of it has become increasingly +awkward for the members, because the demand from citizens for the +passage of the bill have been so very much greater than the demands +for the retention of the present law. Two weeks after the first +introduction of the bill, in 1923, Congressman Kissel, its sponsor in +the House was asked, “How about letters in opposition?” Pointing to +the pile of letters he had received, he answered, “Not a single one +yet.” This fact was presently published in the Birth Control Herald and +elsewhere, with the result that fifty-six letters in opposition came +to the Congressman. Most of them were obviously from Roman Catholics, +and a large proportion of these were in stereotyped phrases almost +identical in wording. Some half dozen of them were alike word for word, +all written in the same writing, but signed with different signatures, +and without addresses. When Congressman Vaile introduced the bill, he +had a similar experience. One group of such letters came from a middle +western city in which the dictation from the shepherd of a church +flock had evidently been acted upon with absolute literalness, for the +wording was precisely the same in all, though some were on white and +some on pink, some on large and some on small sheets. All were hand +written, and all were signed by women. The formula for these letters +was the following: + + DEAR SIR: Believing that the purpose of the Cummins-Vaile Bill + is directly antagonistic to all Christian principles inasmuch as + it would legalize practices which are a perversion of the divine + object of marriage, and a direct insult to motherhood of America, I + therefore urge you to do all in your power to defeat this bill. + + Respectfully yours, + ____. + +The Birth Control Herald published the above letter with the following +editorial comment: + + What is the matter with the Catholics? Can’t they think or speak for + themselves, or can’t they be trusted to do so? Must they be dictated + to, even to the “respectfully yours”? And what is the matter with the + oracle who did the dictating? He seems to have issued his directions + without knowing what the provisions of the Cummins-Vaile Bill are. + There is nothing in the bill or back of it which is “directly + antagonistic to all Christian principle.” Quite the contrary inasmuch + as the bill merely aims to enable people to find out what is true + about the control of conception. And was it not the initiator of + Christianity who said, “Ye shall know the truth and the truth shall + make you free”? The bill takes no stand whatever on the application + of this knowledge. It leaves that entirely to the conscience and + judgment of the citizen. Catholics will be free to do as they are + taught. Others will be free to do as they think best. + + Again the Catholic oracle is in error about the bill, when he says + “it would legalize practices that are a perversion of the divine + object of marriage.” He obviously means the control of conception. + But the control of conception is entirely legal now in the United + States, everywhere, except in the State of Connecticut. The passage + of the Cummins-Vaile Bill will not affect its legal status a + particle. The only thing that is now illegal the country over is the + circulation of information as to how conception may be controlled. + That is, the act of controlling parenthood is no crime, but finding + out how is a felony. + + The bill a “direct insult to the motherhood of America.” How so? Are + mothers insulted by having an opportunity to gain knowledge? And + conversely, are they honored by being kept in compulsory ignorance? + +The Roman Catholics who spoke in opposition to the bill at the Hearings +in 1924, claimed to represent several millions of individuals, but none +of them gave any evidence that the individuals had been consulted, or +had taken any mass action in conventions, meetings or the like. Leaders +simply spoke for the members of the church, en masse, and assumed +their opposition to the Cummins-Vaile Bill because the Church teaching +has been that the control of conception is wrong. They discussed the +question of birth control rather than the issue of the bill, which +is only the right of the citizen to be able to find out, lawfully, +what birth control is. It does not necessarily follow that Catholic +citizens, who may most conscientiously believe and act upon what the +church teaches regarding the utilization of birth control knowledge, +are therefore opposed to freedom of access to the knowledge. Indeed +there are some striking examples to the contrary, including a Catholic +United States Senator. And the fact remains that the Church as such +has not officially taken any stand against this bill. It has merely +preached against birth control. It is interesting in this connection +to note that in the last Congressional election, one of the leading +Catholic clergymen in Denver openly advised his congregation to vote +for the re-election of Mr. Vaile as he was valued far more for his +stand on some other questions than he was disliked for his stand on +this one question. + +During the month which followed Senator Cummins’ first introduction of +the bill, he received but one protest against the measure and that was +from Anthony Comstock’s successor, John S. Sumner. The Birth Control +Herald had this to say regarding the letters the Senator received: + + Senator Cummins’ Secretary has courteously allowed the Voluntary + Parenthood League officers to review the letters which the Senator + has received regarding his Bill. It is a remarkably representative + collection containing commendation from every sort of American + citizen. The letters range from intellectual sociological + appreciation to stark human appeal. Some are on important + organization letterheads, and others are on poor paper in cramped + handwriting. They come from doctors, lawyers, clergymen, educators, + social workers, fathers, mothers, teachers, and just folks,—the + normal thinking responsible-citizen sort of people. The happy mothers + write, who are proud of their wisely spaced families, and they urge + the Senator to push his Bill hard so that all the other mothers may + have the knowledge that they have. The mothers who have been wrecked + by their own ignorant parenthood write too, and say pathetically, + “this Bill will help mothers of the whole country.” And the one most + insistent message in most of the letters, in one form or another, is + that the _thinking_ people want this Bill passed. + + At the bottom of the pile appears the eleven page letter from John + Sumner, consisting of elaborate irrelevancies, and many inaccuracies, + and, permeating it all is the revelation of his own cynicism + regarding the moral character of the mass of the people, particularly + the young people, who according to his idea, should be kept as + ignorant as possible on this subject, because he is sure they can not + be trusted with the knowledge. If John Sumner thinks to inspire the + young by thus handing them a wholesale insult, he will perhaps meet + an illuminating surprise ere long. + +A large batch of the letters Senator Cummins received after his second +introduction of the bill were similarly reviewed, and the proportion of +letters for the bill to those against it was twenty to one. + + + + +CHAPTER IV + +THE HEARINGS ON THE CUMMINS-VAILE BILL AND THE AFTERMATH + + _Delay in arranging hearings analogous to delay in sponsoring bill: + Joint Hearings by Senate and House Judiciary Sub-Committees held on + April 8 and May 9, 1924: Mr. Vaile in opening remarks pleads for + restoration of American freedom to acquire knowledge, which was taken + away 50 years ago: Birth rate in United States proves that people + want to get some information in spite of law: Catholic speakers + discuss birth control, not the bill: Wages of government employees + quoted as reason for passing bill: Prof. Field shows historically + that suppression does not suppress: Mrs. Glaser argues for freedom + for scientists to learn and teach regarding control of human + fertility: Mrs. Carpenter shows how Federal law operates to prevent + Chicago Clinic: Prof. Johnson gives eugenic view-point: Hearing + reopened at request of Catholics: Lengthy irrelevancies: Congressman + Hersey heckles the witnesses: Report of Senate Sub-Committee a sop to + the workers for the bill: Unique effort to get vote of full Committee + before adjournment, as aid to reducing inhibition in next Congress._ + + +The Hearings on the bill, and the circumstances connected with them +offer further light upon the workings of the Congressional mind, or +rather the reaction of Congressional feeling concerning this subject. +With all due allowance for the fact that the Congressional calendar +is always “crowded” and that most legislation in the nature of things +under the present system may, and usually does, move very slowly, +there has been every evidence that the impulse to postpone committee +consideration and action on this bill as long as possible was most +compelling in the Judiciary Committee of both Houses. It was a replica +of the hedging about sponsoring the bill, which had characterized the +few preceding years, when the various desired sponsors “passed the +buck” by saying at the beginning of a session that they were so very +busy getting their “important” projects started they could not stop to +consider taking on this measure too, and toward the close of a session +they were similarly so driven finishing up their “important” projects +that they couldn’t think of anything else, and in the middle of a +session they were just as able to find “alibis” as at any other time. +As Senator Cummins has repeatedly said, “The men dislike the thing so!” + +The last introduction of the bill was made fairly early in the first +session of the new Congress, that is on January 30th. Yet it was not +until the middle of March that the Chairman of the Senate Judiciary +Committee could be persuaded to appoint the necessary sub-committee in +order that a hearing might be held. And it was not till a week later +still that the Chairman of the House Judiciary Committee decided as to +which of the three standing sub-committees he would refer the bill. The +first Hearing was held on April 8th, jointly by the Senate and House +sub-committees as a time saving arrangement. The Sub-committee chairman +declined to ask their committees for a vote on reporting the bill until +after the testimony given at the hearing should be printed. Weeks of +delay followed before the printing was achieved. During this time it +became obvious that some plan was holding things up and presently +it appeared. The hearing was to be reopened at the request of the +Roman Catholics. At the first hearing the chairman had made the usual +inquiry, “Is there any other opponent of the bill that desires to be +heard?” There was no one. The opposition had exhausted its resources +with five speakers, so the hearing continued with the testimony of the +remaining four out of the ten speakers in favor of the bill. + +At the second hearing which did not come till May 9th no new points +were made, but a very long paper was read elaborating the Roman +Catholic arguments against birth control and emphasizing the fact that +the Catholics were not willing to trust their own people if access to +contraceptive information were made lawful. This delay carried over +consideration of the bill by the sub-committee so late into the session +that they claimed it would not be possible to make a report and have it +acted upon by the full Judiciary Committee previous to adjournment. And +the relief of some of the members over once more putting off action on +“the birth control bill” was plainly evident. This relief was covered +(in many instances unconsciously so) by all sorts of argument which was +quite irrelevant to the bill, but which served well enough as a means +of making the question seem vastly complicated and one over which a +conscientious law maker must ponder long and hard. In the strenuous +effort which was made to secure at least a committee report before the +adjournment of Congress, the following appeal to stick to the point was +sent by the Director of the Voluntary Parenthood League to every member +of the Judiciary Committee: + + Judging by conversation with members of the Judiciary Sub-Committee, + there seems to be a great temptation to discuss the Cummins-Vaile + Bill emotionally rather than logically. As all the members are + lawyers, I hope it will not be taken amiss to urge that, at the + meeting to decide on reporting the bill, the discussion will be + strictly limited to the LAW points. + + I respectfully venture this suggestion because of the short time + remaining in which to act during the present session, and not because + the ramifications of the subject of the bill are not important. They + are indeed. And we, who are specially voicing the public need for + this bill are, in common with the members of the Sub-Committees, + deeply interested in the problem of population, sex education, the + morality of the young, and all other questions allied to the control + of parenthood. But we realize that they are outside the practicable + and legitimate field of legislation. They are problems in sociology + and education. They therefore should not be entangled at this time + with the very simple reasons for reporting out this bill at once. + +(A brief résumé of the reasons followed which is not given here because +a similar and more comprehensive one is to be given later.) + + Congress might be excused for not repealing these defunct laws long + ago, on its own initiative. But now that large numbers of citizens + have, for five years, been definitely asking Congress to act, there + can be no tenable excuse for not making an immediate and favorable + report. + +But the temptation to postpone decision and to befog the issue with +irrelevancies won for that session, and the bill had to go over to the +short session the following December. + +The Hearings Report gives many significant side lights as to the +psychology of those who appeared for and against the bill, and of +certain members of the Judiciary Committee. It is impracticable to +quote lavishly here from the seventy-nine pages of the document. But a +few of the remarks which bear most pertinently on the salient points +for the bill and some which indicate the attitude of the committee +members may well be noted. + +The members of the Senate Sub-Committee were Senators Spencer of +Missouri, Norris of Nebraska and Overman of North Carolina, and the +members of the House Sub-Committee were Congressmen Yates of Illinois, +Hersey of Maine, Perlman of New York, Larson of Minnesota, Thomas of +Kentucky, Major of Missouri and O’Sullivan of Connecticut. Senator +Spencer presided. + +Mr. Vaile in his opening remarks said: “These bills do not propose +any new or strange legislation, and these bills themselves do not +propose to teach birth control.” He was at once interrupted by Mr. +Hersey who asked, “You said that this is no new matter. Is there any +legislation of this sort that has been passed hitherto?” To which Mr. +Vaile replied, “The legislation on this matter consists of our statutes +classifying contraceptives as obscene of themselves. We are the only +country in the world having this legislation. We did not have it prior +to 1873. The bill, therefore, proposes no new or affirmative doctrine. +It simply proposes to make lawful what was lawful in the United States +prior to 1873. It does not propose to do this by any new or affirmative +legislation, but by simply striking those provisions from five sections +of our Penal Code.” + +“Let me, at the outset, refer to a question which immediately bobs up +in the minds of everybody with whom you discuss this subject. They +say, “It will promote immorality.” Let me ask the committee, in all +fairness, if the morality of this country is strikingly superior now to +what it was before 1873. You can not pick up a daily paper, you can not +go into a church, you can not hear a subject of public morals discussed +to any great length by any speaker but what you will be advised that +we are at a lower stage of morals than we were 50 years ago. Fifty +years ago we did not have such a statute on our books. Certainly the +insertion of this proviso in our statutes has not noticeably increased +the morality of the United States. It is common knowledge that methods +of contraception are used by the educated, the well-to-do classes of +the community. Would anybody say that these classes are conspicuously +less moral than those who can not obtain this information and have +no knowledge of it? I think that would be a great reflection on many +people, with certainly a highly developed civic consciousness, people +prominent in every good work of the community, all of whom as a matter +of common knowledge, of which this committee can take judicial notice, +do have and use this information.... + +“I submit, in all fairness, by merely removing the provisions which we +put into the code 50 years ago, and which did not exist theretofore, we +won’t be rushing on a downward path, so far as we can judge by our own +experience of that of any other country. + +“Now, that raises another question. Is lack of knowledge the best +method or even a safe method to prevent vice? Would you insult your +daughters by insinuating to them that it is only because they can not +get such information as this that they remain good? Of course you would +not. Why, then, pass that insult to every other daughter in the United +States? + +“And, furthermore, if this knowledge can be obtained, though +unlawfully—and we all know that it can be obtained unlawfully, or at +least without the sanction of law—if it can be obtained, why, then, +merely to make it illegal is a very poor way to protect anybody’s +morality, because they can certainly get the information.” + +At the close of his remarks Mr. Vaile introduced the writer, who in +turn introduced the other witnesses for the bill. Her own remarks +included the following: + + If agreeable to the gentlemen of the committee, we will divide the + testimony that we will present to you under two different categories. + One, the direct reasons for the passage of this bill from the + point of view of law and the rights of citizens. The other bits of + testimony that we are ready to present to you if you desire and if + agreeable to you, are certain evidences that the utilization of this + knowledge in this country and throughout the world has tended toward + racial and individual welfare. + + This is not logically and directly speaking necessarily an argument + for the passage of this bill, but it is distinctly reassuring, I + should say, to Congress when it stands for this measure, to know that + the action is in harmony with what has been generally considered by + all impartial observers as something which makes for race progress + and race betterment. + + To begin with the logic, which is less human but possibly more + convincing to a committee made up exclusively of lawyers; the + continuance of the five statutes which this bill proposes to amend + seems to us not tenable, either on grounds of justice or public + policy, because first, the majority of the people do not approve of + the suppression of knowledge of the regulation of parenthood by the + control of conception. When I make this somewhat dogmatic statement + I offer to you the best and most conclusive proof there is, namely, + the official figures on the birth rate of our country. The birth + registration area, if I am correctly informed, covers 22 States, + but presumably the population of those 22 States is of about the + same character as the population of the remainder of the States, and + therefore the birth rate, so far as is recorded, is an exceedingly + valid argument. + + The birth rate for the country, averaging those States, stands at + 22.8 a thousand. A birth rate that I might call natural, that is + unguided by the mind of man and simply resulting from instinct + and physical impulse, would run from 50 a thousand up, and 50 is + an exceedingly conservative figure. Therefore, family limitation + by intention has already long been in the world, and for a very + long period, in spite of the fact that we have maintained for half + a century laws which theoretically keep our entire population in + absolute ignorance. + + No citizen, so far as I know, has yet come to Congress and said + this to his Representative or Senator: “Will you please keep these + present laws as they stand now? I personally consider the control of + conception rightly classed as indecency. I have no knowledge on the + subject, and I don’t want any. Moreover, I wish my ignorance legally + perpetuated because I do not think I should be trusted with it. I + need to have my Government protect me from the temptation to misuse + it.” + + No citizen, I take it, has thus far come to you with that plea on + his own behalf. The protests—and you have received some against + this measure—have seemed to be wholly on the ground that access to + this forbidden knowledge would be dangerous for somebody else, not + for the people who themselves protest. Unless it can be proved that + there are more citizens who deliberately ask to be kept in ignorance + than there are those who want access to this knowledge there can be + no justification for not passing this measure. In view of the proof + which the birth rate gives, that the majority believe in, because + they achieve family limitation, it is hardly likely that those who + want to be kept in ignorance can be anywhere near a majority. Asking + that others be kept in ignorance is not a valid argument for any + legislation. + + The abuse of knowledge should be handled in some other way than + attempting to maintain ignorance on the part of the population. + The present laws as they stand are predicated on distrust by the + Government of the mass of its citizens, which is an intolerable + principle for laws in a supposed democracy. It is a principle, + for instance, which no Member of Congress would care to expound, + I think, let us say, in a pre-election campaign. Fancy a Senator + or Congressman making a campaign address in which he would state + that he deemed his constituents too weak morally to be trusted with + scientific knowledge about sex matters. It is incredible. We do not + ordinarily cast a wholesale insult upon our fellow citizens. We think + too well of the average American to do that, and certainly no such + insult should be found in our laws. + +_Reverend John A. Ryan_, speaking on behalf of Catholics in general +said: + + We regard these practices about which information is proposed to be + given as immoral—everlastingly, essentially, fundamentally immoral, + quite as immoral as adultery, for instance, or rather a little more + so, because adultery, whatever may be its vicious aspects, does not + commit any outrage upon nature, nor pervert nature’s functions. + + We maintain that these practices are detrimental to the family; that + they are not in the interest of better families; that they mean the + promotion of selfishness within the family and a great reduction in + the capacity to endure, the capacity to face hardships, the capacity + to do little things, to do the things of life without which there is + no consistent achievement or any kind worth while. + +_Dr. Lawrence Litchfield_, former President of the State Medical +Society of Pennsylvania, testified that he had + + practiced medicine for 36 years. I have been interested + in international movements for the control of and the abating of + venereal diseases, child labor, and tuberculosis. All of these + problems for the benefit of the human race bring us back one after + another to the necessity for intelligent birth control. The human + race has the same right and need for scientific development that + other animals have. We have many laws and many books and many + theories that control the breeding of animals, but the breeding of + human beings is left entirely to chance. + + _Senator Spencer_: Is there any law in Pennsylvania against a + physician freely communicating to his patients? + + _Doctor Litchfield_: Yes. If a patient of mine whom I believe would + be seriously injured by not having the information to prevent + conception wrote me for such information I am legally unable to send + it to her. If she comes into my office and the doors are locked, I + tell her what I think is wise. + + _Senator Spencer_: Do the doors necessarily have to be locked? + + _Dr. Litchfield_: The information can not be given publicly. + + _Senator Spencer_: But I mean, there is no law in Pennsylvania is + there, which prevents a doctor from communicating information of this + sort to his patients? + + _Dr. Litchfield_: There is, as I understand it. I might say, further, + as a side light on this question, last summer in Europe my wife and I + found a book which we read and thought would be a very good thing for + our young married daughter to have, and I decided to import some of + these books and give them to my patients who were recently married. I + send an order to England and received an answer that the book could + not be imported, because it was regarded as obscene. + +_Mrs. S. J. Bronson_, Secretary of the Voluntary Parenthood League +spoke for the bill from the practical standpoint of the wage earner, +and said in part: + + Congress need look no further than to the vast arm of Government + employees to find ample reason for the immediate passage of this + measure. The human story revealed in the pages of dry figures of the + official register is most compelling. It shows that in the Federal + civil service alone there are 548,531 employees. The addition of + State and municipal employees would carry the figure into the + millions for the whole country. There seems to be no official + statement of what the average Government salary is; but the director + of the Voluntary Parenthood League has made an illuminating estimate + by taking 100 names in alphabetical sequence from the directory in + the official register. (It does not include Members of Congress, the + Army or Navy, or post-office employees.) These hundred employees + includes clerks, guards, charwomen, draftsmen, attendants, teachers, + firemen, laborers, machinists, accountants, customs inspectors, + watchmen, foremen, supervisors, a harness maker, a seamstress, and a + judge. The average salary proves to be $1605. There were only 5 who + get over $3000, and there were 18 getting below $1000. It is a fair + guess that any other 100 names taken from the book at random would + tell about the same story. + + Now, is it fair play for the Government to retain laws which try + to keep its own direct employees in utter ignorance as to how to + regulate their families somewhere in proportion to their earnings? + As the Government can never provide unlimited wages for its servants, + it ought at least to allow them legal access to the knowledge + by which they may, if they choose, safeguard themselves against + unlimited families. + + Please also bear in mind some representative facts about + non-Government wage earners. In the peak of what was called war + prosperity the average wage in the shipyards was only $1411, nearly + $300 short of the standard set by the War Labor Board. The average + wage of the railroad workers in the same period was $1137. Dr. P. P. + Claxton, former commissioner of education, gave $630 as the average + school teacher’s salary in 1918. The average weekly wage of the New + York factory workers before the after-war slump was $23.10, and in + 169 sorts of factory work in Massachusetts during the first year + of the war only a little over one-seventh of the adult males were + earning about $25 a week. + + At the same time health authorities agree that a growing child should + have a quart of good milk a day. Also that there is no adequate + substitute for milk. At 15 cents a quart the bill for milk alone + for six children would be over $6 a week. Of course, a man earning + $25 a week can not provide that and all the other necessities too, + and so his babies are puny. Or if they pull through it is at the + expense of the parents’ vitality, or else charity steps in to save + them. And when the children reach adolescence, the age when most + of all they need alert, intelligent parents, the father and the + mother—especially the mother—are worn out and dull, unfit to take + a strong hand in rearing a race that will have brains and brawn and + character. + + The point I urge is fair play for the millions. These, and other + millions to follow, will for an indefinite period make up the actual + majority in this country. They can not be left out of consideration. + They are “the people.” + + We are bound to believe that on the whole they are decent, normal, + responsible folks, who naturally love children and want as many as + they can wisely rear; but they can not afford so very many, nor have + them so close together that the family welfare depreciates beyond + redemption. That parents and children should be crushed by the very + things which ought to be the cause of their deepest happiness is too + ironic. Congress surely has the heart to look at this matter humanely. + + All too often young married couples start out in life with an + inadequate income even for the preparation of the first child, and + the young wife finds she must continue working for the first year + at least in order to help meet the expense which the birth of a baby + involves. No decent, self-respecting woman wants to become the object + of charity. + + Gentlemen, I ask you in particular to bear in mind the great army of + these young married people, who are facing life and parenthood with + high hopes and ambitions, and who have no background of financial + security, with nothing but their individual earning power to + safeguard themselves and their children. It is somewhat the fashion + nowadays to decry the young people, and doubtless some of the worry + is warranted, but also there are unnumbered thousands who long for + and are working for everything that is fine and beautiful, including + families of sturdy, well-born, and well-bred youngsters who will make + the next generation. On behalf of these young people I beg you to + enact this bill, so they may have free and proper access to whatever + help science can give them in the vital task that is ahead of them. + +The Secretary of the National Council of Catholic Women, _Miss Agnes +G. Reagan_, claimed that the bill requested Congress “to open the +gates that information ruinous to Christian standards of family life +may stream through the mails and flood the land.” She asserted that +birth control methods are “all contrary to the moral law and forbidden +because they are unnatural,” that they were “intrinsically wrong,—as +wrong as lying and blasphemy.” As to the effect upon young people, she +said: + + I speak from a rather wide and perhaps a sad experience in + investigating conditions among young people who have become + delinquent, and in many cases their delinquency was due to the fact + that they could secure at the present time information concerning + such practices; and that that information will certainly be much more + widespread if this bill should be passed no one who has had dealings + with young people has the slightest doubt. The United States in + opening the mails to this sort of literature will do something that + would be fatal to our young people. + +_Professor James A. Field_ of Chicago University, speaking for the +bill, gave some historic proofs that legal attempts to suppress +knowledge, especially that connected with sex, only serve to stimulate +thought, increase curiosity and promote education. He instanced the +situation in England about fifty years ago when obscenity prosecutions +were instituted for circulating two hitherto relatively unknown +pamphlets (both as it happened written by Americans, “Moral Physiology” +by Robert Dale Owen who was a member of Congress from Indiana, and +“Fruits of Philosophy” by Dr. Knowlton of Boston). And then what +happened? The case (against Charles Bradlaugh and Annie Besant) came +before the greatest and highest court in England. + + What would happen if the same high jurisdiction in this country took + up a little pamphlet that nobody had heard of and such a pamphlet + were taken up and challenged as destructive to public morals? + Everybody would want to know what the pamphlet was all about. Well, + that is what happened in England. There the pamphlet had sold to a + small extent, really negligible in its extent, for 40 years. During + the progress of the trial it sold to the extent of 125,000 copies. + + The solicitor general prosecuted the case and admitted those figures. + He apologized to the jury; he said the case was a mischievous case in + its origin and bound to be mischievous in its results. He said he was + really sorry he had anything to do with it. + + The chief justice, in summing up, said everybody that had followed + the case would agree on that, that no more ill-advised and injurious + case had ever been brought before a court in his opinion. + + A competent observer remarked that that prosecution had put the + agitation forward by 25 years; and, in fact, so far as a great many + people were concerned, it created the situation as an agitation. A + great many people would never have known of it except for this and do + not know that except as having this origin. + + How about this country? There have been isolated cases, but so far + bringing it to the attention of the people generally in the last + ten years or so, that is due to what happened in New York within a + decade. A nurse was working among the poor in New York and she was + shocked to find that the mouths of physicians were stopped from + giving advice to women about avoiding the sort of misery into which + they had fallen. She found herself against the law. She started to + publish what she thought were messages of health for women, but she + found that was an infringement of the Federal postal laws, and her + publications were suppressed. She then withdrew to England, which had + passed this state of prosecution. She came back to this country with + new enthusiasm, and before the storm was over she started a clinic. + That was against the law of New York. Her sister was imprisoned in + that connection, and they had a hunger strike, and all this appeared + on the front page of the papers for 14 days or some such time, and + the thing flared over the country. And out of that has come definite + organization, definite propaganda, which I think quite frankly and + calmly we should not have at all in this country if it had not + been there was legal opposition against which people felt moved to + organize. Now, what has this law, 50 years of it, and of the State + laws that have copied it—what have they accomplished in this country? + + They have not stood in the way of birth control, which is widely + spreading, and a very widely approved practice; they have not stood + in the way of the sale of instruments of birth control. I think it + is fair to say that anybody that is aware of what is going on knows + that traffic flourishes for whoever chooses to take advantage of it, + in spite of the laws. But the law makes it relatively more difficult, + for people who are without reputation or character to get the sort + of information and medical advice, and sort of chance to think about + these things for themselves which the other people have. + +An exceptionally pertinent presentation of salient points was made by +_Dorothy Glaser_, who spoke also for her husband, Dr. Otto Charles +Glaser, who is the head of the department of biology at Amherst College: + + It seems to me that there is a slight misunderstanding on the part of + the various religious organizations here represented, especially the + Catholics, about the Vaile bill, and I would like to discuss it from + the scientific point of view. I feel that we only stand on our rights + as American citizens on this proposition. + + We do not object to the teachings of the Catholic faith on this + subject for their own people. But we do feel that it is up to their + own priests to advise them, instruct them, and keep them in order. + They have no right to ask Federal aid to help the priests in matters + of church discipline. I would make the same reply to any other sect. + Suppose, gentlemen, that the Christian Scientists came to you and + said that they could not keep their people from using doctors. Would + you then pass legislation to do away with medical knowledge at the + request of these Christian Scientists? We have no objection to their + taking any attitude on this matter, but we do object to their method + of forcing it on others. We wish to be free to create scientific + values without their interference. This is very difficult in the + field of birth control, because under the present law the scientist + is not free to work in this particular field. In every other than + the human species there is freedom. The United States Bureau of + Fisheries have a corps of scientists who work across the road from + us in the department’s laboratories at Woods Hole. They carry on + experiments at Government expense with huge tanks of eggs and sperm. + They limit the birth of the fish until such time as the temperature, + season, and other environmental conditions are right, so that the + young fish may have a square deal. But then America wants the best + possible fish. The Bureau of Animal Husbandry is carrying on work in + fertility, and I have a letter from Doctor Cole, the chief of this + department, indorsing the Vaile Bill. Now, however, if some one is + very much interested in problems of fertilization in his own species + and wants to work in this field, to create new material for the use + of the medical profession, what happens? He goes to his laboratory; + and suppose he makes a discovery; if he then tells anybody, if he + publishes what he has discovered, or whispers it through the keyhole, + he is in the position of Galileo, about 400 years ago. He is likely + to go to jail for giving his scientific knowledge to the world. In + fact, the law tells him that it is obscene. He can, however, publish + it in any other country in the world, except the United States. + + Of course, we can not agree with the point that has been made this + morning, that it is an interference with nature, nor grant that that + is a logical argument. For scientific discovery and all medicine is + an interference with nature, as are electric lights and plumbing. In + fact, it is when we do not know how to interfere with her that many + of our worst calamities befall us. The flu came so suddenly that + science could not help, and few of us enjoyed letting nature run + her course. In the case of yellow fever the Government scientists + stepped forward and through birth control of the mosquito, a rank + interference with nature, removed one of the greatest menaces to the + South. + + Again, I would like to emphasize the right of every American to all + the scientific information that we can give him and to insist that no + group have the right to keep it from him. The scientist has not found + that ignorance is bliss. Is it, then, unreasonable for him to ask why + his Government, which stands for free education and the public-school + system, should write into a law in this instance a faith in man’s + ignorance about himself? I plead, then, for the removal of this law + which would restrict man’s knowledge about himself. Have we not faith + enough in the people to let them have such information as we possess, + or are some fields of science to be kept for the favored few? + + Of course, the point of restriction of experimentation, had it come + up in other relations, would have been a serious thing for all of + us. As an example, the man who discovered insulin, the only known + control for diabetes, could never have made this discovery had he + been prevented by law from having free access to the material and + work done by others before him. There is much valuable material + being published in European laboratories. If, however, any scientist + or physician brings this material into our country for use in our + laboratories that we may advance our knowledge in this field, he is + likely to go to jail by reason of the fact that the law tells us it + is obscene literature. It can only be done on the boot-legging basis. + + We have at present students at Amherst going into all professional + fields, many to medical schools, but they may not be given any + information in relation to this subject, even though they may + ultimately want to use it for the control of venereal disease among + their patients. They, like the rest of us, must just find out what + they can as best they may. + + One other point I should like to touch on in regard to the scientific + point of view: We hear a great deal about “interference with nature” + and the “right of the child to be born.” To speak perfectly frankly, + for a scientist this is nonsense, for in the light of the facts + it leads to the reductio ad absurdum. I am sorry if I shocked the + reverend father, who has just told us that these are things not even + to be mentioned among Christians. The scientist must face all facts, + sex included. The recent studies of bubonic plague in China have been + unsavory and have been made at great personal risk. But some one must + have the courage to face all of life, not selected sections of it. + + It has been found that every human female has 3600 eggs and every + male liberates 2,500,000 sperm at a time. Now, if the “right of the + child to be born” means anything at all it must mean, then, the right + of the egg to be fertilized, for it does not become a child until it + does. Which, then, gentlemen, is the sacred egg? I would say that it + is that egg which is fertilized at a time when both parents are in a + position to give it a square deal; to give the child food, care, and + the sort of environment which goes to the making of a decent American + citizen. + + I say again, we have no antagonism to the churches. The scientist + would simply like to be left free to investigate his material and to + put it at the disposal of all the American people, without church + interference. We simply want the American people trusted with the + best information that we can give them about this matter; that all, + not some, may have the right to use it or not, as they see fit. + +_Mrs. Benjamin Carpenter_ showed how the precedent of the Federal law +had been utilized by the courts to suppress the Parenthood Clinic in +Chicago, even though Illinois has no State law prohibiting the giving +of verbal information, as elsewhere described in this book. Her closing +words were: + + I ask you, gentlemen, is it not a shameful thing that when women are + anxious to have children, and ask only for information as to how to + space their children so that they can recover from one pregnancy + before they are plunged into another one; or when they feel that + they have had all the children they can possibly bring up as good + citizens—and it is the women who bear the children—they want + information, and it is refused them; in this twentieth century is it + not shameful that any scientific information should be classed as + obscene? + +The point of view of the eugenicist was vigorously upheld by _Prof. +Roswell Johnson_ of Pittsburgh University, formerly investigator in +experimental evolution for Carnegie Institute, and teacher of biology +in the University of Wisconsin and Harvard University: + + I wish to call your attention to the very great importance of this + legislation for the future American racial composition. In my opinion + only the immigration law and the projects for international comity + can compare with this bill in so far as they affect the future of + this American stock. + + There are two kinds of children—welcome children and unwelcome + children. This bill will reduce to an important extent the number of + unwelcome children. It will increase to a considerable extent the + number of welcome children. + + Now, if the individual himself will cooperate in this matter, why + should we not seize on that opportunity? + + We talk in the eugenics movement of coercive legislation, of + sterilization, of segregation, and of the regulation of the marriage + laws; but here is a case where the individuals themselves, many + inferior individuals say, “I won’t have this child if you will show + me how not to have it.” + + So I urge you not to continue the present law, which will mean + absolutely and certainly a large continued contribution of inferiors + to our stock. + + Gentlemen, this is an urgent matter. If you let this go over for + two years, into the next Congress, you are bringing on a very large + number of inferior births that can be avoided. You know the number + that are concerned in the immigration bill now pending—367,000 a + year; 367,000 a year is no more than you are dealing with here. + Now, do you deliberately want to add to the American people 367,000 + individuals, we will say roughly, who will be, on the average, + inferior? + + _Mr. Hersey_: How do you prevent that—how does this bill prevent + that? + + _Mr. Johnson_: This bill will make it possible for individuals + who have difficulty in getting access to efficient birth-control + literature to get it. At present 80 per cent of the married women + are trying one way or the other to achieve birth control. The + less-informed women are blundering along with inadequate methods + that they employ for lack of better, but which they can not rely on. + Therefore by throwing open the distribution of literature, putting + this on a scientific basis, like any other science, anybody can go + and get material from authoritative sources and thus make it possible + for the individual of limited opportunities to get that reliable + information. + + _Mr. Hersey_: Do you not think that that information, if admitted, + would be found by the bad stock and good stock just the same? + + _Mr. Johnson_: Yes. + + _Mr. Hersey_: And are you not getting the proportion of good stock + really lower by this method instead of increasing it? + + _Mr. Johnson_: No; I do not admit that. Take Wellesley graduates, + for instance. Their birth rate is already very low. The existence + of birth-control methods has already had its effect. The scientific + group as a whole knows now relatively reliable methods. What we plead + for is their improvement and equalization of methods throughout the + population. + + The American stock is getting worse to-day, in my opinion, and that + is a very serious thing. But in view of the great disparity in birth + rates which we have relatively between the superior and inferior + stock— + + _Mr. Hersey_ (interposing): I want to know the practical side. + You claim this bill will increase the population in the matter of + superior stock and decrease it in the matter of inferior stock. Now, + how can you accomplish this by this bill? + + _Mr. Johnson_: It is accomplished in this way: If you decrease the + proportion of inferiors in the population you increase the general + economic and social welfare of the whole population. + + _Senator Spencer_: You increase the relative number of superiors? + + _Mr. Johnson_: Yes: and absolutely also. If we increase the social + welfare, then the superiors are willing to have more children and + will have more children. One of the things that prevents superiors + from having more children is the excessive reproduction of inferiors. + +The appraisal of the merit of any proposed legislation is often +facilitated by an inspection of the objections offered to it, and by +consideration of the circumstances under which the objections are +made. But to reproduce here the whole fifteen pages of closely printed +words that constituted the testimony of the chief opposition speaker +for whom the Hearing on the Cummins-Vaile Bill was reopened a month +later, would be quite as much of an imposition on the reader as it was +upon the Committee who had to listen to it, and upon the government +which had to print it. It is estimated that it costs 50 cents a word +to print the Congressional Record. Reports cost presumably about the +same. But in view of the grave inhibition as to action which afflicted +the Judiciary Committee, it may be that they felt grateful rather than +imposed upon, for the delay involved and the time consumed; it put off +the responsibility of doing anything just so much longer. It may be +significant that the Chairman of the Hearing said at the close of this +interminable statement, “We are very glad to have heard from you,” and +no such similar appreciation was expressed to any of the other speakers. + +The circumstances under which this second hearing was held are +noteworthy. It came on May 9th. Ten days previous it was discovered +that the reports of the first hearing were all ready to print, but +were being held on official order. On May 3rd the Director of the +Voluntary Parenthood League was told by the Secretary of the Chairman +of the House Sub-Committee that the Chairman of the full Committee +wished some additional material added to the Hearing Report, and that +the printing would be delayed on that account. As several written +statements had been filed as part of the testimony which there had not +been time to have read at the Hearing, the assumption was that this +material was another such statement. But by May 7th it was learned +that the Hearing was to be reopened on the 9th. There was no publicity +on the announcement and it was only at the eleventh hour that Mr. +Vaile himself was notified. Fortunately friends of the bill came on +telegraphed call, to be on hand to answer the opposition or the queries +of the Committee. + +Another noteworthy fact in the circumstances is that the chief speaker +for the opposition at this second Hearing was a young Catholic woman, a +social worker, Miss Sara E. Laughlin of Philadelphia, who three years +previously had joined the Voluntary Parenthood League, with professions +of great interest. She had paid regular annual membership dues, which +act, according to the membership blanks, constitutes endorsement of the +objects of the League, the first of which is the removal of the Federal +law which prohibits the circulation of contraceptive information. + +Most of her testimony was discussion of the morality of birth control +rather than the question of the right of the citizen to have access +to the knowledge, which is the point of the bill. It was a general +denunciation of the birth control movement and the procedure of its +advocates. The following excerpts are characteristic of the whole: + + _Miss Laughlin_: Mr. Chairman, in this instance I am representing + the International Federation of Catholic Alumnae. That organization + is exactly what its name implies—a federation of the alumnae of the + Catholic academies and colleges of the United States and some other + countries. + + I am here to-day because I am in the position at present of chairman + of the bureau of girls’ welfare in that organization, and therefore + I must be concerned about such matters of public welfare as are + involved in this bill. + + Because of a difference in training and a belief in the conserving + value of a decent reserve, we are not nearly so vocal as the + proponents of this bill, but see it as our duty to become more so, as + it seems that this is necessary to safeguard the moralities which we + believe to be involved in this question. + + Partly through the activities of the Voluntary Parenthood League + and the Birth Control League, sex relations and allied subjects + were removed from their proper place in medical textbooks and + necessary instruction in right conduct by proper authorities to + each new generation, and have become in many quarters matters of + general conversation even in mixed gatherings. As a professional + social worker who has dealt with a number of girls, I can not state + too strongly the unfortunate effect of this general stimulation + of discussion of sex matters, about which everybody admits from a + scientific point of view very little is known. + + Just as we have never shirked considering any phase of human nature + when human interests were to be served, we do not now evade our + obligation to state publicly our point of view on the proposed + measure, however much we regret the necessity. + + You are asked to “redeem the United States from the odium of being + the only country to penalize birth control as indecency.” We think + this is not an odium, but shows a wise concern for the mental and + moral health of our people. We think it preferable to the English + problem of recalling indecent and improper literature after it has + once been released. + + We do not advocate the dissemination of this knowledge any more + than we would advocate the dissemination of doses and methods + of administering deadly poison. This sort of knowledge is in + the possession of all physicians. We do not feel that we are + discriminated against because it is not made readily accessible to us. + + You are told that doctors advocate the passage of this bill because + they are not told about the control of conception in a medical + school, and their patients keep asking them for this instruction. You + are told frequently, too, that doctors are giving this instruction. + Yet you are told that they do not have it. + + You are told that “millions of self-respecting parents resent the + legal insult by which the information as to control of conception is + made unmailable.” We ask you to give your attention to the millions + who are grateful for this provision, because they are convinced of + the grave danger which would attend its removal. + + If we were concerned only for our own welfare, we would not raise our + voices now in opposition, but by refusing to discuss the measure lend + our passive assistance to its enactment. + + We belong to an organization which has stood the test of time better + than any other organization the world has seen. + + _Mr. Yates_: Meaning— + + _Miss Laughlin_: Meaning the Catholic Church. We could assume, + therefore, if we could be guilty of such callous indifference to + the effect on our fellow citizens, that this was a providential + measure intended to enable us to inherit the earth. Following this + line of reasoning, we could conserve our efforts and devote our + time to keeping our people as free as possible from this pernicious + propaganda, and reap the material rewards. Such a procedure would be + contrary to the spiritual and ethical principles we have accepted, + and abhorrent to any body of Christian people. + + I can not, as the organization proposing this measure presumes to + do, speak for millions, but I can speak from personal knowledge of + hundreds of mothers in whose homes I visit year after year in the + course of work with their children. They do not want this information + for their own use, and they do not want it circulated to be used as + an insidious snare for their children when they have reached maturity. + +Compare this last statement about not speaking on behalf of millions, +with the seventh item from Miss Laughlin’s testimony quoted above in +which she asks the Committee to consider “the millions” who are, she +asserts, “grateful for this provision” in the present law which denies +them access to knowledge. + +Compare also her statement of her individual experience with “hundreds +of mothers” who “do not want this information” with the experience of +both the New York and the Chicago Clinics, in which the proportions +of Catholic women who request contraceptive instructions is sizable. +The New York Clinic reports the percentage as thirty-two, and the +Chicago Clinic as thirty. However, any divergence of testimony that +there may be as to whether Catholics want or will utilize contraceptive +information is rather beside the point so far as Congress and the bill +are concerned. The issue is not as to whether individuals or groups +want this knowledge but as to whether anyone who does want it shall +have his right to get it recognized by law. + +The Chairman of the Hearing allowed a rebuttal to the Catholic +testimony by the Director of the Voluntary Parenthood League to be +filed as part of the Hearing report. It reads as follows: + + The question in the bill is not the control of conception but the + right of the citizen to have access to scientific knowledge. The + utilization of that knowledge is left entirely to the individual. + + Most of the testimony presented by the Catholic speakers is + irrelevant. They argued the question of birth control, which is not + per se before Congress. If the Catholics could persuade some one to + introduce a bill which would make the control of conception a crime, + the arguments against birth control would be genuine, but without + such a bill they are not. + + It would seem doubtful as to whether leaders in the Catholic Church + would wish, on second thought, to put themselves on record as opposed + to the principles of freedom as to belief and action in private life. + As they wish to conserve these principles as applied to their own + right to teach and preach their beliefs, they may well take thought + about trying to utilize law to suppress the right of others to do the + same. + + There are about 18,000,000 Catholics in this country. As, therefore, + they form less than one-sixth of the population, their protest + against the Cummins-Vaile bill amounts to a demand that the laws of + the country should be made to reflect the religious creed of a small + minority. + + Moreover, their protest against the bill implies a distrust of their + own church people that will prove embarrassing to the leaders if + persisted in. Since the teaching of the church is against the use of + contraceptive knowledge, are the leaders to announce thus publicly + that they have so little faith in the efficacy of church teaching and + so little trust in the moral rectitude of the church members that + they would wish to invoke the arm of the law to keep the people + in ignorance. If the church people can not be assumed to have the + loyalty and strength to live up to their own beliefs, it is surely + stretching the bounds of reasonableness for the Catholic leaders to + suggest that the non-Catholic population, which is five-sixths of + the whole, should go without this knowledge in order to protect the + Catholics from their own weakness. + + The inappropriateness of the Catholic attitude is well brought out + by the following excerpts from a recent letter from a member of our + league to the chairman of the Senate Sub-committee of the Judiciary: + + “You would not agree that, at the behest of the Methodists, or + the Elks, or the Young Men’s Hebrew Association there should be + passed a Federal law to apply to the whole American public, which + law represented merely a belief. You can not then, believe that a + law should fail to pass merely because it does not accord with the + Catholic belief. A law, being a rule of action, should not stand for + what is simply an article of faith. The Cummins-Vaile Bill does not + enjoin any action or the refraining from any action. It simply will + give legal status to certain scientific knowledge and means which are + now proscribed. No one will be compelled to learn the knowledge; no + one will be compelled to use the means. No belief will be interfered + with; no rule of action will be laid down. The principle of making + laws to satisfy a religious group, crystallizing religious beliefs + into rules of action for all the people, went out of this Government + with the adoption of the United States Constitution.” + +Various inaccuracies in Miss Laughlin’s statements regarding the +publications of the Voluntary Parenthood League were answered at the +Hearing, but that part of the report is not germane to the subject of +this book, except as to the correction on one point which led to a +series of question and answers which give light on the working of the +minds of some of the Committee. + + _Mrs. Dennett_: There are one or two other inaccuracies that it is + worth while to comment upon. One was that this knowledge is already + in the possession of all physicians. That is not the case. We have + here the president of one of the State medical associations, who will + be glad to give you further facts in regard to it. The fact that we + receive quantities of letters from physicians asking us to provide + them with such knowledge from our headquarters—a thing we can not do + legally,—of course, is sufficient to refute that statement. + + _Mr. Hersey_: You have just made a statement denying that this + knowledge of birth control, if that is the proper term, is in the + hands of the physicians of America to-day? + + _Mrs. Dennett_: On account of the laws, primarily. + + _Mr. Hersey_: Well, some one has got it. What proportion of the + physicians of America have that information now? + + _Mrs. Dennett_: It is quite impossible for us to tell. I do not know + that any survey has been made. + + _Mr. Hersey_: Who has thorough information upon this subject? + + _Mrs. Dennett_: Nobody, so far as I have yet heard, in the medical + profession, or among students of biology, claims to have final and + complete information. + + _Mr. Hersey_: Does the organization for birth control which you + represent possess the information that you want disseminated now to + the public? + + _Mrs. Dennett_: The organization consists of thousands of members. Do + you mean all the members, or the officers, or what? + + _Mr. Hersey_: Any part of your organization. + + _Mrs. Dennett_: It has some information, certainly. + + _Mr. Hersey_: Is that information perfect information? Do you know + anything about the remedy that you are asking for? + + _Mrs. Dennett:_ It is not claimed to be absolutely perfect. No. + + _Mr. Hersey_: Do you know what you are asking this committee to do, + madam? You are asking us to do this: To report out a bill here, + assuming from evidence before this committee that this committee + has definite information that there exists at the present time, in + somebody’s mind, this information that you say is so precious, to + be disseminated among the people, and which we know nothing about. + We have no evidence that anybody possesses the perfect remedy for + this evil of which you complain—the bearing of children. You do not + claim to have it yourself, and your organization does not claim to + have that perfect information. You can not point us to a doctor who + has it, and to whom we could go for the information. You ask us to + say that there is such a thing that the people can have if we pass + this bill. You can see the spectacle that we would make of ourselves + in the House if Members should get up and ask this committee: “Do + you know anything about this matter that you are asking us to adopt; + whether it is a remedy for this evil of childbirth, or whether it + is simply some quack that wants to sell something, and wants us to + remove the bar, which is the United States law, against sending this + knowledge through the mail or disseminating it among the people? You + want us to allow that information to be made public, through some one + who claims to have it, and you have not even an endorsement of the + American Medical Association that there is such a thing as a perfect + remedy for the evil of which you complain.” + + _Mrs. Dennett_: It would be, from our point of view, the height of + absurdity to expect busy committees in Congress to be themselves + authorities on questions of science; and for us to demand the passage + of a law that will allow scientists to perfect their own knowledge, + which now they can not perfect, because of the law— + + _Mr. Hersey_ (interposing): Why not perfect their knowledge? + + _Mrs. Dennett_: Because the law prevents. + + _Mr. Hersey_: No; it does not. Somebody has this knowledge, perfected + or not perfected. Is it perfected or not, now? + + _Mrs. Dennett_: It can not be perfected until scientists are legally + free to study it. + + _Mr. Hersey_: You must have your remedy before you can send it + through the mail. You are asking us to send through the mail + something that is not perfected. + + _Mrs. Dennett_: Research work can not be carried on legally on this + subject so long as the laws stay the way they are. That is the point. + + _Mr. Hersey_: Then, you claim that the research work has not + commenced yet on this matter? + + _Mrs. Dennett_: I do not. It has gone on sub rosa, illegally, and on + a bootlegging basis. That is a most undesirable basis for scientific + research work. There are no exemptions for the medical profession to + these Federal laws—none whatever—and I should be glad to submit to + the committee the statement in writing from the solicitor for the + Post Office Department, that there are no exemptions for individuals + or groups of any sort. The medical profession, therefore, is most + seriously handicapped. + + _Mr. Hersey_: Well, why does not the American Medical Association at + its annual meetings, recommend that Congress pass a bill like this to + relieve them of that difficulty? Why do they not go on record? Why is + it necessary for your organization of women to come in here, without + knowledge of what you are asking for? + + _Mr. Vaile_: May I make a statement, Mr. Chairman? + + _Mr. Hersey_: Yes; I should be glad to have you. + + _Mr. Vaile_: My understanding is, that there is reliable information + at present—not claimed to be very great, but reliable, as far as + medical science can get reliability at the present day—which we want + to be able to send through the mails. + + _Mr. Hersey_: Where is it? + + _Mr. Vaile_: Mrs. Dennett can tell you, I think. + + _Mr. Hersey_: I wish she would. + + _Mrs. Dennett_: There are admirable publications upon the subject + abroad. They can not be legally brought into this country. There + are some publications in this country being illegally circulated by + well known medical authorities, without the names attached. Their + names can not be attached until the law allows. Otherwise they are + criminal, indictable under the present laws. + + _Mr. Hersey_: Do you think there is some man of high medical standing + in America to-day who has this information? + + _Mrs. Dennett_: There are a great many. + + _Mr. Hersey_: Is it possible for you to find one of those medical men + of high standing in the profession to come before this committee and + say that his experience has shown that this remedy that he has, even + if secret, is all right? + + _Mrs. Dennett_: We have one here to-day, and I will gladly yield to + him—Doctor Litchfield of Pennsylvania. + + _Mr. Hersey_: We will be glad to hear from him. This legislation + asked for is to make available to the people something that will + prevent conception? + + _Dr. Litchfield_: There is not any one thing asked for. We ask for + the freedom of the mail to give suitable information to suitable + cases of methods that are applicable and desirable. + + _Mr. Vaile_: If the Chair will excuse a suggestion, I understand + that it is against the law in the District of Columbia, following + and going a little further than the Federal statute, to give, even + verbally, information concerning birth-control methods. + + _Mr. Hersey_: I am not asking for the information itself. I am asking + this doctor, who is presented here as a witness, as an expert, if he + knows— + + _Dr. Litchfield_ (interposing): I know several methods of + contraception that are reliable, harmless, and desirable in suitable + cases. + + _Mr. Hersey_: And you claim that you are about the only man in your + profession who has that knowledge? + + _Dr. Litchfield_: Not at all. There are millions that have. I studied + in Europe, as a large majority of the profession do. + + _Mr. Hersey_: Then your idea is that most physicians in practice know + what you know, is that it? + + _Dr. Litchfield_: No; I would not say that. + + _Mr. Hersey_: The best physicians would know it, would they not? + + _Dr. Litchfield_: Those who have studied abroad, and who have been + interested in this phase of preventive medicine, know it. + + _Mr. Hersey_: Is there anything in the law that you understand + prevents you from talking with a brother physician and giving him + your knowledge? + + _Dr. Litchfield_: Certainly there is. In some states you are + forbidden to give contraceptive knowledge to any one, either verbally + or through the mail. + + _Mr. Hersey_: Your remedy is effective, is it? + + _Dr. Litchfield_: Certainly; yes. + + _Mr. Hersey_: Are you the only one in Pittsburgh that knows about it? + + _Dr. Litchfield_: I do not know about that. + + _Mr. Hersey_: Where did you get this information? + + _Dr. Litchfield_: I got it in Europe. + + _Mr. Hersey_: How many kinds of information have you? + + _Dr. Litchfield_: I suppose there are a dozen different remedies. + Perhaps there are four, five, or six that are approved by those of + experience. Most of the methods would be covered by two or three. + + _Mr. Hersey_: Have you tested your method? + + _Dr. Litchfield_: I said I have; yes, sir. + + _Mr. Hersey_: Have you found them all right? + + _Dr. Litchfield_: I found them harmless and desirable. I will not say + that they are all right. Nothing is perfect in medical science yet. + We are progressing, and we want to progress still further, not only + for doctors, but biologists and scientists. + + _Mr. Hersey_: If this legislation is passed removing this ban, would + you publish your information? + + _Dr. Litchfield_: It would not be necessary for me to publish it. + Others directly interested in that work would publish the information. + + _Mr. Hersey_: Do you not think there would be more money in it for + you? + + _Dr. Litchfield_: If I were looking for money, I would not be here + to-day. + + _Mr. Hersey_: Who is going to publish the information? + + _Dr. Litchfield_: The physicians have been writing books on this + subject, devoting themselves to these particular branches of + medicine, and will publish the books as soon as the ban is removed. + + _Mr. Hersey_: Are you a member of the American Medical Association? + + _Dr. Litchfield_: I am. + + _Mr. Hersey_: Why have you not succeeded in getting them to adopt + this? + + _Dr. Litchfield_: The medical society has been very busy, but they + will do this eventually. The president of the American Medical + Association told me so. I met him in conference at Atlantic City, and + he said all the members were in favor of birth control, and it was + only a question of time that we should have it. I am not authorized + to give his name, but he stands as the first man in American medicine. + + _Mr. Hersey_: Where you felt you had a patient bearing a child, + who would be in danger of her life, there is nothing in the law at + present that would prevent you from pursuing your remedy, is there? + + _Dr. Litchfield_: There is something in the law of my State that + prohibits me. + + _Mr. Hersey_: The proponents of this measure contend, as I + understand, that some of them do not want to have the trouble with + the child, they do not want to have the child on account of the + annoyance. + + _Dr. Litchfield_: No; the statement that was made this morning that + morality depends on opportunity for conception is an insult to + American women. I have been practicing medicine for 25 years, and I + do not figure that the morality of the young American women would be + influenced in the slightest degree if contraceptive methods become + public property. I think morality is something higher, and I do not + think Congress is asked to pass statutes in favor of morality any + more than they are asked to pass a law that everybody should be a + Roman Catholic. + + _Mr. Hersey_: When was this ban fixed? + + _Dr. Litchfield_: 1873. + +(For five years Mr. Hersey like all members of Congress had been +receiving literature and data frequently, which gave the history of the +Comstock law, and all the pertinent facts concerning it.) + + _Mr. Hersey_: And the immediate thing desired here is the repeal of + the prohibition of the use of the mails for these methods? If this + law were passed you would be confronted by your State. + + _Dr. Litchfield_: We would have to have the State laws changed. + + _Mr. Hersey_: Do you mean to say that at the present time you are + prohibited by your State law of advising a patient or communicating + through another doctor methods of birth control? + + _Dr. Litchfield_: Yes, sir. + + _Mr. Major_: Do you not think that the main trouble in this country + now is lack of children, instead of having too many? + + _Dr. Litchfield_: Too many children in a certain strata is very + undesirable. + + _Mr. Major_: I remember the old poem, “There was an old woman who + lived in a shoe, who had so many children she didn’t know what to + do.” There was another old poem, “There was a woman who lived in a + shoe, who didn’t have any children; she knew what to do.” I have + heard that all my life. + + _Dr. Litchfield_: I do not think that knowledge will prevent the + average woman from having children. + + _Mr. Major_: But they do not have many children. I can remember my + grandmother and her three sisters, four women married before they + were 18, who raised over 11 children and lived to be over 80 years + of age. There are seven in my family. I have a daughter with two + children. If it keeps on, her daughter will not have any children. + That looks to be the trouble; the people that ought to have children + do not. A bill like this, to put this information around in news + stands, where it can be picked up anywhere, as these women say, I do + not know how you feel about it, but I have always felt the very fear + of consequences. I have felt that it would promote immorality. + + I want to say another thing to you, Doctor. I was State’s attorney + in my court and my county, which is one of the best in the world, + for six years, and during that time I suspect I had at least four + seduction cases a year. There has not been a seduction case there now + for 20 years. That looks like this information is leaking out in some + way. + + _Dr. Litchfield_: It is not getting in the right hands. + + _Mr. Major_: It is getting out. I do not think human nature is + changing, but those cases are only heard of when there is pregnancy + in a seduction case, and there has not been a seduction case there + for 20 years. When you go into different courts you do not hear + of it, and it used to be of frequent occurrence, and the only + explanation in my mind is that these people are securing from some + source the knowledge to prevent conception, and the effect of it is + that the people that ought to be having families, and I mean like + the lady that spoke this morning—my idea about the best people in + this country is that they should not bring up one or two spindley + children that do not know how to take care of themselves. They do + not have families any more where the girls hand down one dress to + another. That is past in this country. + +(The English in the above is unedited. It is reprinted exactly as it +appears in the government report of the Hearing.) + + _Dr. Litchfield_: I agree; but for every case of seduction there + are over 100 cases of worthy, industrious, virtuous, loving mothers + who are having their children too close together, and if they had + the knowledge to space their children and conserve their own health + it would be better than to raise such terribly big families and + themselves be broken down in middle life by too frequent pregnancy. + We are not working for the profligate who becomes easily seduced and + becomes pregnant. They are an inconsiderable number compared with + the worthy people that should have the protection that science can + give them. The enormous number of women who die before middle life on + account of too frequent pregnancy, whose health is broken down, so + that they leave a large family of motherless children, could be done + away with. + + _Mr. Yates_: Does that frequently occur? + + _Dr. Litchfield_: Yes. + + _Mr. Yates_: I have a daughter who had four babies, and she is fatter + and prettier now after having the four. + + _Dr. Litchfield_: She did not have one each year? + + _Mr. Yates_: No. Now, the question I have had in mind that has been + troubling me—would it not happen, if we removed the prohibition of + the use of the mail—in other words, if the mails were thrown open + would it not happen that every cheap publication in the country could + advertise to send 50 cents and they would get this information; would + not that be an evil, to have these things upon the news stands, in + depots, and places like that? + + _Dr. Litchfield_: I do not think so. + + _Mr. Yates_: I am referring to the masses. That is what I am talking + about. + + _Dr. Litchfield_: I feel that legitimate sources of information will + be the recognized source. I do not think that it will be a thing + peddled on the news stands. + + _Mr. Hersey_: What will hinder it? + + _Dr. Litchfield_: If it is peddled on the news stand it will not do + as much harm by reaching the immoral as good will be done by the + worthy, well-meaning, industrious citizens. The people deserve + health and protection, and the knowledge of science will give them + that protection. I got a book in England that I wanted to send my + daughter, and I was forbidden to bring it into the country because of + the mails. They would not allow it. + + _Mr. Hersey_: Could not you instruct your daughter without the book? + + _Dr. Litchfield_: No sir; my daughter is a citizen of Holland. I + would like to give this book to all young friends, patients of mine + who are about to be married. + + _Mr. Hersey_: Why not give it to the members of the committee? + + _Dr. Litchfield:_ The custom-house will not let it come in. + + _Mr. Hersey_: I would like to submit it to my home physician whom I + trust. + + _Dr. Litchfield_: Would you like me to smuggle a copy in? I know how. + + _Mr. Hersey_: You are asking us to pass something that we do not know + anything about. + + _Dr. Litchfield_: We want the freedom to use the mails. + + _Mr. Hersey_: Using the mails would bring it in? + + _Dr. Litchfield_: But we are liable to get caught. + +(If the reason for the verbal fencing on the part of the writer +under the heckling of Congressman Hersey is not readable between the +lines, it is well to say that it was for two reasons, one the natural +hesitancy of a layman to make specific claims as to just what the +medical profession knows, as such statements should come from the +physicians themselves; the other a desire to avoid being led into +giving any information which would render the reports of the Hearing +unmailable, under Section 211.) + + _Mr. Johnson_: It has been stated that this is a distasteful subject. + Gentlemen, it seems to me that even if true it is irrelevant. The + Judiciary Committee must deal with many things, distasteful. But I do + not believe it is true. How can anything which deals so fundamentally + with one of the three fundamental things of life be distasteful? That + is an utter inconsequential consideration. + + I wish to call attention to the fact that there is in some States a + law that says that a refusal to cohabit for one year is a ground for + divorce. + + A method of control of reproduction, which is sanctioned by a + large number of people, that by the “natural” method—that is, + abstinence at periods in the monthly cycle—is also prohibited as to + dissemination by the mails by this law. + + _Mr. Hersey_: You are giving us the secret? + + _Mr. Johnson_: That is one of the methods, and is considered + “natural” and hence not opposed by the opponents of this law. + + _Mr. Hersey_: Known to every woman in the world. + + _Mr. Johnson_: Yes; and it is very unreliable. + + _Mr. Hersey_: Is it as reliable as your method? + + _Mr. Johnson_: No. + + _Mr. Hersey_: Do you know the method advocated here? + + _Mr. Johnson_: Yes; there are several methods. + + _Mr. Hersey_: Better than that one? + + _Mr. Johnson_: Why, of course. + +Although Congressman Hersey was the one Committee member at the +Hearings who talked at length, his mental processes were by no means +representative of the Judiciary Committee as a whole. Most of the +others evinced clearer thought and a more wholesome view-point. But +many of them were willing enough to let Mr. Hersey “go on.” Some +confessed to getting amusement from it, and some were apologetic about +his “surprising ways,” but all of them who preferred postponement to +acting on the bill derived comfort from knowing that Mr. Hersey’s +antagonism would furnish excuse for further “consideration” for quite +some time. And it proved to be serviceable in this regard, for at last +accounts he was still saying that the bill would never be reported +out of Committee if he could help it; and the sixty-eighth Congress +adjourned without seeing the bill reported, that is, not by the House +Judiciary Committee, though the Senate Sub-Committee did give it a +unanimous report “without recommendation.” + +During the next session when every effort was being made to produce a +vote on the bill from the two full Judiciary Committees, the advocates +of the bill were offered _still further hearings_. This offer was made +by the Chairman of the House Sub-Committee and also by a member of +the Senate Judiciary Committee, both of whom gave as excuse for not +coming to a conclusion on the bill after five years of consideration, +that they were so “terribly busy”; the calendar in this short session +was so “jammed with important legislation”; there was so much “stuff” +to read about endless bills,—“I sent my secretary for the data on one +the other day, and would you believe it, Mrs. Dennett, there were seven +volumes,” implying that he had not had time to read the report of the +hearings on this bill. Yet they offered more hearings, by way of still +further congesting their own calendar. + +No one can deny the existence of a legislative jam in every session of +Congress, or that business piles up appallingly in every short session. +Three weeks from the end of the last session of the sixty-eighth +Congress, Senator Stanley said on the floor of the Senate, “Congress +has before it in the present session 17,946 bills, resolutions and +joint resolutions. As in most Congresses, the large majority of these +bills relate to private or local matters like individual pensions, +buildings bridges, etc., and relatively few deal with public questions +or national welfare.” The conduct of members of Congress under these +circumstances, and the choices made by the steering committees as to +which measures shall be scheduled for attention, and allowed a chance +on the floor, and also the number and character of the unscheduled +measures which are taken up and passed by unanimous consent, make +serious food for thought for citizens with inquiring minds. + +Near the close of the session, it was obvious that the Cummins-Vaile +bill would not be allowed any sort of a chance by the Senate steering +committee even if reported out by the full Judiciary Committee in +time for a vote on the floor without discussion. In fact the leading +member of the steering committee was quite explicit in saying so. It +looked as if the report (“without prejudice” as at first suggested +by Senator Overman, and “without recommendation” as finally filed by +Senator Spencer) had been only a sop to those who had labored for the +bill, a safe tribute to their “patience” and “hard work.” However, the +proponents of the bill, because of the inescapable conviction that the +chief reason for Congressional inaction had been the “general distaste” +of members for dealing with it openly, decided upon a plan for possibly +getting a favorable vote from the full Judiciary Committee of Senate +before adjournment, as a means of helping to break down the inhibitions +of the other members of the Senate, and so to pave the way in the next +Congress for easier and quicker passage of the bill. + +Senator Cummins, then Chairman of the Judiciary Committee, said +he would call for a vote of the Committee on the bill at any time +before the end of the session if a majority were willing to vote +for a favorable report. It would require nine votes to win the +report. The plan adopted was an unusual and informal one, a sort +of layman-citizen’s way of cutting through the tangle of business. +There were but twenty-six days left in the session including Sundays. +The carrying out of this plan was described as follows in The Birth +Control Herald (March 10, 1925) under these headlines: “A Mental Daily +Dozen Prescribed for the Judiciary Committee by the V. P. L. as an +Aid to Action on Cummins-Vaile Bill; Method Urged as Congressional +Minute-Saver in Legislative Rush Toward Close of Session”: + + Not to Walter Camp’s records, but to the tune of facts and reasoning + arranged by the Voluntary Parenthood Director, the members of the + Judiciary Committee in both Senate and House, were urged to stimulate + healthy thought on the Cummins-Vaile Bill, with a view to reaching + a Committee decision by the time the twelfth mental exercise was + finished. + + This dozen of “setting up” exercises were prescribed as an aid toward + overcoming the paralysis of the reasoning faculties, induced by + the embarrassment of sex consciousness, which seem to rise to the + surface in the minds of most of the members, when dealing with the + “birth control” bill. + + The “dozen” consisted of a daily sequence of notes to each member, + each note covering a single point for the bill, and so short + that it would take no more than two minutes to read. The plan + was offered as a first aid to minute-saving in the legislative + rush toward the close of the session. One reason a day keeps the + “no-time-for-consideration” argument away. There are spare minutes + despite the legislative jam,—observation from the galleries proves + it, says Director Dennett, after her long experience in watching + the members of Congress write, talk with each other, swap jokes, or + have forty winks, while their colleagues deliver themselves of their + views, at great length on the floor. + + The twelve notes are given below. To save space the introductory and + closing words of each note are omitted. + + February 6, 1925. + + _POINT ONE._—Accepting the probability that there will not be time, + before the close of the present session, to have the Cummins-Vaile + Bill discussed at length, either in the Judiciary Committee or on + the floor, we are asking each member of the Judiciary Committee + to consider _informally_, the very few simple points in the bill, + with a view to securing, if possible, a vote in committee without + appreciable debate. + + We sympathetically recognize the fact that, under the existing + Congressional system, _thorough_ consideration for all bills is a + physical impossibility for the individual Congressman, no matter how + conscientious he may be; also that group consideration in Committee + or by the whole House, is subject to great limitation. + + For these very reasons we ask that, as practicable procedure, a + decision on this bill be arrived at by the above suggested method of + informal discussion, with us and with other committee members, one by + one, as leisure moments during House sessions permit. + + Just as we sympathize with you in your impossible legislative + obligations, we assume your sympathy with us, a group of + representative citizens, who after nearly six years of effort, are + rightly asking action from the only body that can give it. So we ask + your tolerant and cooperative reception of the memoranda of single + points which will be presented to you in sequence during the next ten + days. + + The first one is given herewith, namely, the marked article in + the enclosed paper, showing that the main principle involved in + the Cummins-Vaile Bill has been previously well argued by two + distinguished members of the Senate Judiciary Committee. + + (The enclosure was a copy of the Birth Control Herald of January 20, + giving excerpts from the arguments of Sen. Borah and Sen. Stanley on + suppressing information about betting. See Appendix No. 13.) + + February 7, 1925. + + _POINT TWO._—Constitutionally guaranteed, old-fashioned American + liberty is the issue in the bill. “Birth control” is not. The latter + is properly a question for individual decision in private life. The + bill simply removes the legal barrier to knowledge as to what birth + control may be. In other words, it is a question of freedom of speech + and of the press. + + Members of the Judiciary Committee are credited with judicial minds, + and the ability to disassociate relevant from irrelevant argument. + Much of the previous discussion, both informally and at the two + Hearings, has been irrelevant; i.e., about birth control. + + The few facts which constitute the relevant arguments, have, so far + as I know, never been denied by any member of the Committee. + + February 9, 1925. + + _POINT THREE._—No law exists which defines information as to the + control of conception as, per se, obscene, indecent or in any way + immoral. + + This information therefore should not be legally classed with + penalized obscenity, indecency and immorality. The Cummins-Vaile Bill + removes it from this classification. But the bill leaves the five + statutes in question, amply empowered to suppress any particular + instance of this information, which is given in a way that warrants + judicial decision that it is obscene, indecent or of immoral import. + + The existing laws originally aimed at obscenity, not at science, but + because of hasty enactment, the scientific information was prohibited + also. The Cummins-Vaile Bill removes the error. + + February 10, 1925. + + _POINT FOUR._—The control of parenthood by the utilization of + contraceptive knowledge is an act which is entirely lawful, + throughout the whole United States (with the single exception of + Connecticut, where an obsolete law making it a crime still remains on + the books,—the only instance of the sort in the world). + + But _to secure or to give_ this knowledge, via any public carrier, + is a crime under Federal law (and also under the laws of twenty-four + States whose obscenity statutes have been modelled closely on the + Federal statutes). + + To deny to citizens the use of public carriers to convey knowledge + regarding an act which is in itself lawful, is a legal abnormality + that should long ago have been corrected. The Cummins-Vaile Bill will + do it. + + February 11, 1925. + + _POINT FIVE._—There is no denying that the control of parenthood is + already a general practice among educated Americans, including of + course members of Congress, as it is among educated people in all + countries. + + Our prohibitive laws obviously therefore do not reflect the policy of + what we call our best people. When the universal trend of intelligent + people is to get and make use of the contraceptive knowledge which + the laws forbid,—that is, to become lawbreakers,—is it not high + time to change the laws? + + The Washington Post, in an editorial recently said, “The first duty + of Congress is to ascertain the will of the people. The second is to + enforce and obey it.” + + February 12, 1925. + + _POINT SIX._—The portions of the present laws which the + Cummins-Vaile Bill will repeal, are unenforced and unenforceable. + + The prohibition of the dissemination of contraceptive knowledge is + probably the most broken of all the laws on the statute books. The + existing traffic in contraceptives is appalling, from the point of + view of law enforcement. + + If Congress does not believe in the existing laws enough to even + protest against the utter laxity of the authorities, whose duty it + is to enforce the laws, it surely should hasten to remove from the + authorities the obligations which they will not and can not fulfill. + + February 13, 1925. + + _POINT SEVEN._—One of the most shocking features of the + unenforceability of the present laws prohibiting the circulation of + contraceptive knowledge is the great and rapidly increasing volume of + underground information and means which circulates despite the laws. + + This information is almost wholly unauthorized by reputable + scientists, is largely unreliable and inadequate, is considerably + harmful and dangerous, and alas, is even vulgar and smutty in its + form. The means, which are camouflaged as for other purposes, are + an opportunity for conscienceless profiteering, and, like the + information, are uncertified by proper authorities. + + The only effective antidote possible is to make the circulation + lawful, so that it can be properly inspected and made subject to the + Drugs Act; and so that the first class medical experts may have a + lawful and decent opportunity to denounce the quacks and profiteers, + and to supplant their abominations with dignified, reliable, + scientific, hygienic information. + + The Cummins-Vaile Bill opens the way for this tremendously needed + effort on the part of our best doctors, who are now tied hand and + foot by the laws, or are obliged to resort to the undignified process + of boot-legging their scientific teaching. + + The doctors can save the day, if they are given a chance. Is it fair + for Congress to hinder any longer? + + February 14, 1925. + + _POINT EIGHT._—The St. Louis Times recently published the leading + editorial, which follows: + + + “_A Bill for Moral Health_ + + “Nothing comes closer to the minds and hearts of healthy Americans + than the begetting, bearing and rearing of children. Unfortunately + this subject has been relegated to the limbo of the unclean, the + indecent, the nasty jokesmith; and much teaching and thinking has + made it so. + + “A long step toward cleansing the people’s minds and hearts of the + prevalent false standards, clearing the visions and correcting + conclusions, has been taken by the Voluntary Parenthood League. But + it has taken this organization of influential citizens five years + to overcome the paralyzing fears that beset both rulers and people, + and get the Cummins-Vaile bill into Congress. + + “Honorable physicians and scientists have been blocked from + circulating wholesome information on contraception. Nevertheless, + charlatans flourish like weeds. Practically every boy and girl + can talk glibly of the subject, and their misinformation has come + principally from foul sources. + + “It is time to protect physicians and social workers, and save our + children from false, foolish and foul ideas of life, to make the + human body and its functions clean subjects of definite knowledge + and control. + + “Congress should pass the Cummins-Vaile Bill unanimously in the + interest of public health, morals and decency.” + + February 16, 1925. + + _POINT NINE._—As a member of the Senate Judiciary Committee has + recently brought up a point which frequently occurs in discussion, + it may be well to call it to the attention of the other members; + i.e., that the control of parenthood can be achieved without the + utilization of any scientific knowledge,—merely by abstinence from + the relationship which results in conception. + + This is offered as a reason for retaining the law which bans + knowledge of scientific methods. + + Apart from the question of the constitutionality, justice or + propriety of such prohibitive legislation, it must be remembered that + in the marital relation abstinence does not have the sanction of law. + In many States refusal to cohabit, as an element of desertion or of + cruelty and indignity is ground for divorce. Hence abstinence thus + penalized is no free or practicable alternative for the compulsory + ignorance decreed by the statute. + + Thus it follows that the only sort of parenthood which has + the thorough sanction of American laws is the irresponsible, + unintentional sort,—parenthood of no higher standard than that of + the wild animals. + + Is it not high time to make the laws catch up with civilization? + + February 18, 1925. + + _POINT TEN._—Government officials themselves are guilty of flagrant + violations of statutes prohibiting circulation of contraceptive + knowledge. But they are not indicted for their crimes,—one more + evidence that the government makes no valid effort to enforce the + laws on this subject. + + The following recent instances are noteworthy: + + 1. The Library of the Surgeon General has received and is loaning to + readers the November issue of the American Journal of —— published + by the —— Company of ——. It contains a report by Dr. —— on + methods of controlling conception,—the report being the result of + research by the New York Committee on ——. + + To mail the magazine from —— to receive and loan it in Washington + are criminal acts under the law. + + 2. The Congressional Library has received from England and has loaned + to readers the new volume entitled —— by Dr. ——, published by + —— London. It is a “Manual for the Medical and Legal Professions,” + and is considered one of the best and most comprehensive works on the + subject in the world. + + To pass the book through the customs, to transport it to Washington, + to list it in the library catalogue, and to lend it to readers are + criminal acts under the law. + + The same volume has been borrowed by several members of the Judiciary + Committee,—again a criminal act. + + 3. In considering these instances of official crime it is well to + note the recent utilization of the laws on this subject, to secure + the imprisonment of Carlo Tresca, who published in his Italian paper + in New York a two line advertisement of a book on birth control. + He was notified by the post office that his paper was thereby made + unmailable. The two lines were deleted and the edition was mailed. + But he was subsequently convicted for the offense. President Coolidge + yesterday commuted the sentence, after reviewing evidence showing + that Tresca had first been arrested on another charge instigated by + those who objected to his political views, but who, unable to jail + him for those, resorted then to the charge of violation of the laws + prohibiting circulation of birth control knowledge. + + Do not such facts point conclusively to the obligation of Congress to + repeal these laws which are not and can not be justly enforced? To + accomplish this repeal is the object of the Cummins-Vaile Bill. + + NOTE: The names of the publishers and authors in the above letter + cannot be printed without infringing the Federal law. + + February 19, 1925. + + _POINT ELEVEN._—Fear to trust the people, especially young people, + with access to contraceptive knowledge, is practically the only + objection now offered to this bill, by members of Congress. + + Can it possibly be a sound objection in view of the following points: + + _a._ This country is founded upon faith in the people. Does Congress + wish to maintain laws which repudiate that faith. + + _b._ Can any member of Congress who expects, and rightly, that the + people should have faith in him to the extent of electing him, turn + around and distrust them? Surely every member of Congress would + trust himself with any known or yet to be discovered facts as to the + control of conception. Surely also he would not consider himself + unique in such trustworthiness. The American people can not be + divided into sheep and goats in this matter, with the assumption that + the majority are goats. + + _c._ One member of the Committee recently gave it as his opinion + that the large majority of young women in this country refrain from + illicit sexual relations only from fear of pregnancy. On being + asked if he would be willing to state this opinion publicly to his + constituents, he answered, “No, I do not think it would be wise to + do so.” Does not the fact that alarm is felt almost exclusively in + regard to young women and does not include young men, indicate that + the concern may be merely for conventions instead of for character? + + _d._ Even if the assumption were tenable that most young women are + “straight” through fear only, the indictment would fall primarily on + the parents, clergy and teachers who would have to stand convicted + of failure as sources of education, example and inspiration. Can + any member of Congress seriously hold an utter distrust of the + educational and moral facts in our civilization? + + As an opportunity for clean faith in the people this bill is + unexcelled. Can you be counted on to be one who will meet it squarely? + + February 20, 1925. + + _POINT TWELVE._—It has been repeatedly stated by many members of + Congress that the main reason why action on the bill has been delayed + is because of distaste for legislating on any subject that brings + sex considerations to mind. Granted the existence of a certain + embarrassment, does the Judiciary Committee wish any longer to stand + before the public as a body which will permit embarrassment to + displace reason and responsibility to the people? + + Members have told us that dread of being conspicuous in this matter + has inhibited them. Such feeling is somewhat natural, and may have + been more or less excusable as a reason for not acting when this + legislation was first proposed in 1919. But now in view of all the + data submitted, the long delay, and the fact that no substantial + arguments against the bill have been advanced by anyone, is it not + time to cast aside feeling and let common sense win? “Eventually, why + not now?” + + We wish to honor each member of the Committee with the assumption + that he will prefer to base his stand upon a courageous sense + of decency and justice to the people, rather than on either + embarrassment or fear. + + Regardless of whether there may or may not be opportunity for action + on the Floor during the session, are you not willing now to state + whether, in your individual opinion, the bill should have at least + favorable report from the committee on the merit of the question? + + We respectfully request your statement as to what your own stand is, + and enclose for your convenience, a slip and an addressed envelope. + If our twelve points for the bill, which have been submitted in + single notes since February 6th, are not now at hand, and you wish + duplicates of any or all of them for review, we will gladly supply + them on your request. The series will be made public, together with a + report on the stand of the members of the Committee. + + _The Enclosure_: + + I stand for a favorable report on the Cummins-Vaile Bill (S. 2290 + H. R. 6542). + + I am opposed to a favorable report on the Cummins-Vaile Bill (S. + 2290 H. R. 6542). + + I am not ready to state my stand on the Cummins-Vaile Bill (S. 2290 + H. R. 6542). + + (Kindly mark which line represents your opinion.) + + Signed ....................... + + Member of Judiciary Committee. + +The nine necessary votes in the Senate Judiciary Committee could not be +marshalled before the close of the session. One of the chief reasons +was that word had gone the rounds, emanating apparently from the small +group which controls the Senate program, that this bill was not to be +included among those scheduled for attention at this session, so the +Judiciary members felt little concern about deciding their own position +on the legislation. Above everything was the sheer distaste which most +of the members feel for dealing with this bill, officially. It touches +upon sex, which induces embarrassment, which creates inhibition, which +resulted in leaving the bill “on the table” where it was placed after +the report “without recommendation” by the Judiciary Sub-Committee of +three, before whom the two Hearings were held last Spring. + +In the House Judiciary Committee the situation was about the same. +The Chairman of the Sub-Committee before which the Hearings had been +held stated that he was sure that “not a single member of his committee +_wanted_ to vote on the bill.” He did not undertake to say whether they +approved or disapproved the bill, but merely that they did not want to +vote on it. He said he was not ready to express his own opinion on this +measure, that he had not yet made up his mind, and was “too busy” to +do so. But he offered to arrange _another_ Hearing if it were desired. +He was entirely agreeable to anything except action. But as to that he +said, “I don’t see the use of trying to make reluctant men act.” + + + + +CHAPTER V + +WHY CONGRESS HAS BEEN SO SLOW + + _No one answer covers all reasons: Quiet request to Congress for + repeal might have succeeded twenty years ago, before sensational + law-breaking created prejudice: Laws defied without first attempting + their repeal: Speeches and writings of early agitation not calculated + to induce Congressional initiative: Struggle announced in advance as + likely to be long and bitter “fight”: Shortage of funds for publicity + on behalf of bill the second reason for slowness of Congress: Third + and most dominant reason found to be general embarrassment over + subject: Distaste, inhibition and fear, in varying degrees almost + universal among Congressmen: Striking instances: Fears covered + careers, colleagues, families and constituents: Fear on behalf of + young girls greatest of all: Political opposition to birth control + legislation mis-interpreted by “radicals”: Abortive attempt in + Harding presidential campaign to use his tentative interest in this + bill against him: Club women afflicted with inhibitions similar to + those of members of Congress: It is leaders, not members who hold + back endorsement by large organizations: Organized labor women + endorse repeal ahead of club women._ + + +No one comprehensive answer can be given to the question as to why +Congressmen have not yet acted on the removal of the chief of a set of +laws which all of them know will inevitably be removed, and which all +of them admit are not enforced now and never could be, and which they +themselves, like most of the educated and privileged folk everywhere, +have proceeded to break with impunity. + +However, the answer is not a complicated one. Part of the answer +probably is that Congress was not quietly asked to do this thing many +years ago, say fifteen or twenty, before the birth control movement +had become a defiantly agitational matter, abounding in spectacular +law-breaking, denunciatory meetings, jail sentences, hunger strikes, +and general hullabaloo of the sort toward which most men in politics +feel a stiff aversion if not actual antagonism. The birth control +movement, as most of the Congressmen of the present generation have +witnessed it, did not begin with any request for a change in the laws, +but burst into flame about ten years ago with a sensational campaign to +induce defiance of the laws on a large scale. It cannot be wondered at, +since no one went to Washington then and concretely asked that a bill +be introduced to change the laws, that Congressmen did not step forward +on their own initiative and offer to do it. Their minds did not work +that way. Instead, they merely looked upon all the “noise,” so far as +they thought about it at all, as something with which they wanted to +having nothing to do. + +It seems a fair guess that if in 1905 or thereabouts, when the effort +of the seventies to repeal the entire Comstock obscenity statutes +was well in the past, some group of “solid citizens,” lawyers, +doctors, ministers and the like,—had gone to Washington and laid +before Congress the fact that Comstock had obviously blundered when +he included contraceptive information in the obscenity law, and that +it was a very simple matter to correct the blunder,—it might have +been done forthwith, without any particular self-consciousness or any +struggle. But, of course, such a guess is incapable of proof, since +no one tried the experiment at that time. And when it was tried in +1919, the later developments in the birth control movement had already +stimulated and aggravated the aversion and inhibition on the part of +the members of Congress which has ever since been the most serious +barrier to progress. + +In looking back at some of the writings and utterances which appeared a +decade ago, it is perhaps not surprising that many members of Congress +looked askance when in 1919 they were asked to tackle the birth control +question. For instance, “The Woman Rebel,” the paper which Margaret +Sanger published and edited in 1914 in New York as her first message to +the public, contained the following editorial announcements: + +“The aim of this paper will be to stimulate working women to think for +themselves and to build up a conscious fighting character. + +“It will also be the aim of the Woman Rebel to advocate the prevention +of conception and to impart such knowledge in the columns of this paper. + +“As is well known, a law exists forbidding the imparting of information +on this subject, the penalty being several years’ imprisonment. Is it +not time to defy this Law? And what fitter place could be found than in +the pages of the Woman Rebel?” + +These items were in the opening issue of the paper and were +unaccompanied by any request to Congress or the New York Legislature +to change the laws, or any appeal to the public to try to have them +changed. The launching of this message was also linked with other +matters, which were far from an inducement to average legislators to +volunteer to remedy the laws relating to birth control. For example in +that same first issue of the paper was this by the editor: + + _A Woman’s Duty._—To look the whole world in the face with a + go-to-hell look in the eyes; to have an ideal; to speak and act in + defiance of convention. + +Also this: “_The Rebel Women Claim_: + + The right to be lazy, + The right to be an unmarried mother, + The right to destroy, + The right to create, + The right to love, + The right to live. + +And this by a contributor, J. Edward Morgan: + + _My Song_—a prose poem. + I dwelt apart in a world of song, + But did not sing. + Biding my time, I listened to all + songs that I might sing, when my soul + should find its song. + + * * * * * + + One note clear, pure, lucid, + telling all, answering all, unanswerable, + the Song of Songs, + My Song, + the Song of the Bomb. + +This issue also published the I. W. W. preamble, which in those +days had more power to alarm than it has had since. The July number +contained “A Defense of Assassination” by Herbert A. Thorpe. Also this +editorial: + + The rich man places his wife on a pedestal and serves her with + docility in order that she may be admired and he, be envied. He has + raised her to the rank of queen. This deified woman is one of the new + idols at whose feet plundering plutocracy lays the shining gold wrung + from the sweat and blood of the toiling long-suffering masses.... + + If we do not strike the fetters off ourselves, we shall be + knocked about till we forget the fetters.... We have done with + your civilization and your gods.... Let us turn a deaf ear to the + trumpet-tongued liars clamoring for Protection, Patriotism, Prisons, + Police, Workhouses and Large Families. Leave them to vomit their own + filth, and let us take the good things mother earth daily offers + unheeded, to us her children. + +In the July issue there was also the announcement of the forming of +a Birth Control League, one of the objects of which was “to agitate +vigorously for the repeal of State and Federal laws against the +spreading of knowledge relative to methods for the prevention of +conception.” But no officers were announced other than a secretary; no +later notice of a program appeared; and the organization seems never +to have functioned enough even to begin carrying out any legislative +program. The magazine lasted less than a year, and over half the issues +printed were declared “unmailable” by the Post Office authorities. + +The strident tone which had characterized this publication was somewhat +modified by 1917 when Mrs. Sanger started the Birth Control Review and +became its editor, but her chief message was still to break the laws +rather than to get them changed. For instance in the opening number of +the new magazine, two signed editorials contained these statements: + + No law is too sacred to break. Throughout all the ages, the beacon + lights of human progress have been lit by the law-breaker. + + The law to-day is absolute and inexorable. + + The race has progressed but the law has remained stationary—a + senseless stumbling block in the pathway of humanity, a self + perpetuating institution, dead to the vital needs of the people. + + Against the State, against the Church, against the silence of the + medical profession, against the whole machinery of dead institutions + of the past, the woman of to-day arises. + + She no longer pleads. She no longer implores. She no longer + petitions. She is here to assert herself, to take back those rights + which were formerly hers and hers alone. + + If she must break the law to establish her right to voluntary + motherhood, then the law shall be broken. + + Shall the millions of women in this State bow their heads to the yoke + of slavery imposed by this law? + + Shall we sit quietly with folded hands and wait,—wait for our + gentlemen law-makers to consider our right to voluntary motherhood? + + Shall we not instead violate so brutal a law and thereby teach our + law-makers that, if they wish women to obey their man-made laws, they + must make such laws as women can respect? + +Assailing and defying the laws without taking steps to change +them, naturally induced a more dramatic situation than any quiet +business-like expedition to Washington or Albany could have brought +about. And as it is drama which attracts newspaper publicity, it was +inevitable that the birth control movement should have developed an +atmosphere of violence. And it was inevitable too, that Congressmen, +without having any accurate or consecutive knowledge of the events in +this drama, should sense the atmosphere of it, and stiffen accordingly, +and should retain an impression which was very difficult to antidote +later, when they were asked to use their common sense about repealing +the law. Common sense does not readily over-leap prejudice. + +Another factor in the atmosphere of the movement which was developed +at this same time, and which also seeped into Congress, and with quite +as much damaging reaction, was the cultivation of the idea that the +struggle was bound to be a very long and bitter one. In launching the +Birth Control Review, Mrs. Sanger addressed this broadside “To the Men +and Women of the United States: + + Birth control is the most vital issue before the country to-day. The + people are waking to the fact that there is no need for them to bring + their children into the world haphazard, but that clean and harmless + means are known whereby children may come when they are desired, and + not as the helpless victims of blind chance. + + Conscious of this fact, heretofore _concealed from them by the forces + of oppression_, the men and women of America are demanding that this + vitally needed knowledge be no longer withheld from them, that the + doors to health, happiness and liberty be thrown open, and they be + allowed to mould their lives, not at the arbitrary command of church + or State, but as their conscience and judgment may dictate. + + But those to whose advantage it is that the people breed abundantly, + well intrenched in our social and political order, _are not going to + surrender easily to the popular will. Already they are organizing + their resistance and preparing their mighty engines of repression + to stop the march of progress while it is yet time. The spirit of + the Inquisition is abroad in the land. Its gaunt hand may even now + be seen reaching out over bench and bar, making pawns of clergy and + medical profession alike._ + + _The struggle will be bitter. It may be long. All methods known to + tyranny will be used to force the people back into the darkness from + which they are striving to emerge._ + + The time has come when those who would cast off the bondage of + involuntary parenthood must have a voice, one that shall speak their + protest and enforce their demands. Too long have they been silent + on this most vital of all questions in human existence. The time + has come for an organ devoted to the _fight for birth control in + America_.... + + If you welcome this Review, if you believe that it will aid you in + _your fight_, make it yours.... + + Raise your voice, strong, clear, fearless, unconditionally to the + protection of womanhood, _uncompromisingly opposed to those who, to + serve selfish ends, would keep her in ignorance_ and exploit her + finest instincts. + + (The italics are ours.) + +The work of the birth control movement was here laid down in terms of +“fight”; bitterness and tyranny were predicted; the picture of a long +struggle was outlined. These were the days when Mrs. Sanger at her +many meetings was saying, “I have dedicated my life to this fight.” +The newspaper headlines were quick to reflect the tone of this kind of +thought. It unconsciously became more or less the habit of mind of the +thousands who read the newspapers, particularly of those whose reading +was limited mostly to headlines. And it was not at all unnatural that +it also became the view-point of many of those who were active in +the movement. For, sad but true, the world not only “loves a lover,” +but loves a fight. The instinct to dramatize life is so compelling +and so universal that it often leads to the overstating and even +mis-stating of a situation, and to action that produces excitement +and complication, which tends to postpone rather than facilitate +a solution. The leaders of movements as well as play-wrights are +sometimes not immune to the temptation to make a four act play out of a +one act plot. + +To appeal for preparations for a “long-fight” against the tyranny of +the “man-made laws” before the law-makers had been so much as asked +specifically to change the laws would seem to be not only the cart +before the horse, but a fairly sure way of prejudicing the case +in advance in the minds of the law-makers. And this tendency was +strengthened by the fact that so much was read into the retention of +these old Comstock laws that was not really there. Granted that the +attitude of legislators on this subject has warranted severe criticism, +ever since 1919, when it was first put squarely up to Congress to do +the thing that was fundamentally needed, it was simply “seein’ things” +in 1917 before any legislative effort had been made at all, except +the feeblest sort of a beginning in New York legislature to describe +the retention of the Comstock laws, as evidence of the “forces of +oppression” which were “organizing their resistance and preparing their +mighty engines of repression to stop the march of progress,” and to +predict that “all the methods known to tyranny will be used to force +the people back into the darkness from which they are striving to +emerge.” + +The actual average legislator, when talked with face to face, proved to +be the farthest removed from Mrs. Sanger’s vision of the “spirit of the +Inquisition” whose “gaunt hand may even now be seen reaching out over +bench and bar, making pawns of clergy and medical profession alike.” +Instead he was merely repelled by the racket of the birth control +movement, prejudiced because it had been linked with revolutionary +“radicalism” in general, and embarrassed by the fact that the subject +touched upon sex. Moreover he was found to be ridiculously ignorant +as to just what the Comstock laws provided anyhow. It never occurred +to him to demand their enforcement, and he was quite willing to +infringe them himself, if his personal need required it. He did not +in any way match up to the picture of an “oppressive force.” He was +just a man immersed in politics, who had never been directly asked to +repeal the Comstock laws, and had never dreamed of doing it by himself +without being asked, and who when asked, hastily shot off all the +“rationalizing” he could think up, to protect himself from having to +take any responsibility about a “disagreeable subject.” That was about +all there was to it. He would make a very poor showing in the rôle of +an aggressor; in fact many of them have shown rather absurd indications +of wanting to run. They were not in the least interested in the +enforcement of the law. They just wanted to let it alone, not because +they approved it, but merely because they found it uncomfortable to do +anything about it in any way. + +A demonstration of law-breaking has unquestioned effectiveness as +advertising for an idea; but its efficacy would seem more wisely +utilized as a protest against a refusal to change the law than as a +publicity appeal before any request for the change had been made. + +It seems regrettable that the experiment was not at least tried of +asking for the change of the laws first, and saving up the law-breaking +demonstration until either the legislators had refused or had delayed, +beyond reason, to act. However, it was not arranged that way in 1916, +and one may only guess at what might have happened if it had been. +Perhaps the illegal clinic and the jail sentences might all have been +avoided, and legal freedom for contraceptive knowledge through all the +natural channels for its circulation might by to-day have become a +matter of course. Who knows? + +However, circumstances being as they were, there was no choice but to +adjust as might be to them, and antidote, as rapidly and thoroughly +as possible, the prejudices which had been established. The writer’s +first experience in trying to do this was in Albany, when one of the +evasive legislators had suggested conferring with a leading official in +the State Health Department. The latter was not averse to the idea of +a revision of the Comstock law. In fact he admitted all the arguments. +But he was adamant when it came to recommending the Legislature to +act; for he could not make himself disassociate the reasons for the +repeal from his violent prejudice against the “wild” words and actions +of the birth control advocates. The things he “knew” about Mrs. Sanger +far exceeded anything the facts warranted: he had not stopped to find +out the truth, but had a settled conviction that could not be budged, +until at the very end of an hour’s earnest talk, when he managed to +admit that the proposition to revise the laws should be considered on +its own merit, regardless of anything else. + +Similarly in Washington, when various members of Congress cited the +“wild radicals” who had “agitated about this thing,” they had to be +laboriously diverted to the consideration of the fact that there was +nothing wild at all about the control of parenthood, that the most +conservative classes were those who had achieved it first and most, +and that Congress was being asked only to correct Comstock’s blunder +of banning science along with indecency, so that the law would reflect +the belief and practice of the educated normal men and women of the +country. It was far slower and harder work than it would otherwise +have been, just because of the “fighting” psychology which had been +established in the birth control movement. + +All of which leads to the second part of the answer to the question as +to why Congress has been so slow to act, and that is, that the group +working for the Cummins-Kissel and Cummins-Vaile Bills did not have +adequate funds for the constructive publicity work necessary to offset +the prejudices and dissipate the inhibitions of the members of Congress. + +But the third and last part of the answer is by far the dominant part, +and that is, as had doubtless been evident through all the previous +pages of this book, that the subject is embarrassing. It brings sex +considerations and sex consciousness to the surface. And this creates +varying degrees of fear and inhibition. It would have done that to a +certain degree, no doubt, even if the proposition had come to Congress +before the birth control movement flared into a sensational affair ten +years ago. But with the background of the modern movement as it has +been, the tendency has been greatly augmented, so that the fear of +being conspicuous in the matter has been the outstanding obstacle. The +inhibition has been very powerful in many instances. But there is much +reason for concluding that the six years of effort directly with the +members of Congress, together with the greatly increased articulateness +of the public, has worn the inhibitions so thin and lessened the fears +so much that they should evaporate in the very near future, and let the +latent common-sense of the majority of the members have an unimpeded +chance to function. + +An assertion of this sort, that sex consciousness and fear have been +the chief reason for the delay in Congress, needs the backing of proof, +especially as one dislikes to believe it and would prefer to assume it +to be impossible. It must be said at the outset, that probably the same +reaction would have been found among any other 435 men, if placed in a +similar position. The members of Congress are presumably representative +of American life and feeling. They are not unique. The attitude of +almost any average citizen with regard to birth control is that he +wants the information, but he does not want to make himself conspicuous +in getting it. Just so with members of Congress. And the sticking point +with them was that they would have to be conspicuous in regard to it, +if they sponsored the bill or voted it out of Committee. + +In giving various instances of the evidence of the fear and distaste +which have been so chronic among the members of Congress it is best, +for the purposes of this book, that they shall stand just as instances, +without names. It makes relatively little difference what particular +Senator or Representative said or did this or that. The only matter +of consequence is that this inhibition has been notably prevalent, +and that it is the one thing which has chiefly held back the bill from +passage. + + The general policy of the Voluntary Parenthood League has been to + report in its paper the character and episodes of the blockading + of the bill, and all official action regarding it, but not to make + public the revealing interviews with the individual members of + Congress. The one exception to this custom was at the close of the + 68th Congress in March, 1925, when a report on the stand of each + member of both Judiciary Committees was given in the Birth Control + Herald (March 10). It was prefaced as follows: + + “The following résumé of the stand of the members of the Senate and + House Judiciary Committee on the Cummins-Vaile Bill is compiled + from their own statements either in interviews or in letters. The + interviews have been promptly and carefully recorded immediately + after their occurrence, and are now on file in three volumes in the + office of the Voluntary Parenthood League. + + “When the League began its work in Congress in the summer of 1919, + no publicity was given to the interviews with the various members. + It seemed a wise policy at that time, for many reasons. But now + that nearly six full years have elapsed, and Congress still chooses + to delay action on the bill, and is willing to be a party to the + maintenance of laws which misrepresent the established practice and + policy of the people, it seems only fair to those who have given + their support to the bill, to present to them the record of the + Committee members up to date, so that responsibility, praise and + blame may be the more accurately allocated. + + “Since the first introduction of the bill, each member of both + Judiciary Committees has received from the V. P. L. about fifty + separate letters or publications in regard to the bill, beside the + many letters and telegrams which have been sent by individuals from + all parts of the country. They have all received the Report of the + two Hearings on the bill. They have all been interviewed, some of + them so repeatedly that the records cover many pages in the interview + books.” (_The Birth Control Herald._) + +Senator Cummins, as noted in a previous chapter, repeatedly said that +undue sex consciousness was the reason the men on the Committee tried +to shelve the bill and to avoid a vote on it. Senator Dillingham, who +died in 1923, said there was no question but that embarrassment was +the major difficulty which prevented the men from doing justice by the +bill. Space forbids even the jotting down of all the indications of +this fact, which were accumulated in the observation of Congress in six +years, but the following bits will serve as examples. + +The two Senators who returned literature sent to them, and marked it +“Refused.” The Senator who declined interviews on the ground that he +“would not discuss this bill with any _woman_.” The Senator who evaded +interviews for over two years, and who then vibrated between declaring +that he would not “say a word previous to a public hearing,” and +explaining his general fear of the whole question of birth control, and +who wound up a hectic dissertation on the subject, with this remark: +“If I were the Creator and were making the universe all over again, I +would leave sex out. It is too powerful, too dangerous.” The Senator +who said, “The whole subject is so damn nasty, I can’t bear to talk of +it or even think of it.” The Senator who said “This bill is practically +an invitation to lechery.” The Representative who construed it as a +personal insult that a digest had been made from the autobiographies +in the Congressional Directory showing the average number of children +in the families of the members of Congress, and who confessed in the +middle of a long tirade, that the reason Congress didn’t act on the +bill, was that the members were “afraid of it.” + +The evidences of fear were found to be numerous and various but all +of them seemed quite clearly due, directly or indirectly, to some +form or other of distrust of human capacity to integrate this phase +of sex knowledge into life, with safety, to morals or regard for +decorum. These fears were almost wholly in regard to or on behalf +of other people, not themselves; and the range of the fears covered +their colleagues in Congress, their families, their constituents, the +Catholics, the public in general, but most of all the young people. +The high school girl who is guaranteed to go to the devil from learning +what birth control information is, has been by all means the most vivid +character in the whole realm of birth control phantasy. Judging by the +extent of the expression of alarm felt on her behalf, it would seem as +if she constituted about seven-eighths of the entire population. At any +rate she has seemed to fill the whole horizon of many of the members of +Congress. No such concern was expressed regarding the young boys. + +The one fear, however, which did relate to the member of Congress +himself, was as to his own career, and the effect which taking an +interest in the bill might have upon it. In discussing the extent +of this fear, one of the senior Senators ventured the opinion that +“there never was a man in public life who did not consider his career +first,—he has to, if he is going to get anywhere.” More than one +Senator refused to sponsor the bill on the ground that it would give +too good an opportunity to political opponents to “have fun” at his +expense. The type of “fun” they anticipated was apparently somewhat +like that in which some of the Congressmen indulged when Mr. Kissel +first introduced the bill. A story which then went the rounds of +Congressional gossip was that “Kissel, being a lame duck, will be out +of a job in two months and so he has introduced the birth control bill +to pave the way for getting rich by manufacturing contraceptives.” +Mr. Kissel shed the jollying with good grace, and when one of his +colleagues inquired why he “wanted to do a thing like sponsoring +that bill” he came back cheerfully with, “because there were 434 +of you others who wouldn’t.” But there was a more serious side to +the possibilities of this sort of fun, as recognized by one of the +representatives who was facing a re-election campaign at the time when +he was asked to consider sponsoring the bill. He was very candid in +saying that he did not intend to be defeated, and that he knew he had +political enemies who would not scruple to use this bill against him +by circulating stories which it would cost him more to contradict and +explain than he cared to spend. And he added, “Maybe you will call that +political cowardice, and maybe it is, but anyway that is where I stand.” + +There seemed to be general agreement that “anything sexy” had special +power to damn a man in public life. “I can’t afford to touch it” was +an often heard remark, from men who thoroughly approved the bill. The +dread of facetious or vulgar comment from other members of Congress +was a very real and often indicated dread. A Senator who was defeated +for re-election, was horrified at the suggestion that he might help +the bill along as a service in the last session of his term. “If I +were to vote for this bill, my people wouldn’t let me come home,” +he said. Another Senator who sincerely wanted the bill to pass felt +very cramped in his advocacy of it, because of the fears of his +family, who thought the thing “not nice,” and that it was not good +for his reputation to have anything to do with it. In the case of one +Representative his fears loomed so large that they encompassed the +whole population. “Why,” he said, “if Congress should do such a thing +(as to pass the bill) the population would rise like a mob, and the +only reason they are not doing it now is because they don’t know it is +under consideration.” A Senator whose fear regarding “the fourteen year +old girls” was well nigh an obsession and who said, “You want to make +everybody prostitutes,”—was able when speaking seriously, to modify +his fears only to the extent of saying, “If this information could be +confined to the intelligent and cultured people, and kept out of the +hands of the vicious and ignorant, it might be another matter, but that +can’t be done.” From that, he argued that no one should be allowed to +have it, although he had admitted previously in the same conversation +that information did circulate anyway in spite of the law. + +The most striking element in the expression of all these fears has +been the way in which the fear, and the sex consciousness which is +back of it, seems to prevent the use of the mind in an ordinary +logical fashion. Two and two do not make four, but a hundred, or any +preposterous number. No conclusion is too absurd to jump at, when +impelled by this fuddled embarrassment and vague terror. Some of the +most squeamish members have taken refuge in the stout declaration that +they have never heard of the bill and don’t know anything about it, +or about the subject of birth control; and this in spite of the fact +that they had received many letters and much literature for over five +years. They have been so occupied in devising ways to wriggle out of +discussing the bill at all, that they failed to realize how they gave +themselves away, within a few minutes after they knew “nothing about +it,” by telling of how they had talked the matter over with other +members and they all agreed that “nothing can be done about it in this +session.” + +The general tendency of the members who have been beset with fear, has +been to avoid all talk and consideration as much as possible. But one +member of the House Judiciary Committee was an exception; he leaned to +loquacity. As his remarks give a vivid picture of the lengths to which +fear and super sex-consciousness can distort an otherwise reasonable +mind, the substance of one of the recorded interviews with him is given +here. + + “Hon. Mr. X of ——, + + “I hear you are going to make a speech against the bill, Mr. X.” + “Yes, if necessary I am, though I expect to kill the bill in + Committee. But I shall make a speech on the floor if I have to.” + “It is a great advantage to be a lawyer, if you are going to work + against this bill, Mr. X.” He agreed heartily to that, said it was an + advantage on any bill to be a lawyer. + + “Yes, for you will have the sort of mind that whittles away all + the irrelevant stuff, and puts attention on the real points of the + bill, and those are very simple as well as important.” “I see what + you are driving at, Mrs. D——, but to my mind the most important + consideration is the danger which this bill would make for young + girls, and I am against it for that reason.” + + “Do you then really distrust the majority of young girls?” He thought + he did,—that he had to, as a practical man, knowing the world and + its ways. + + “If you had been a lawyer, as I have, and tried quantities of + bastardy cases, you would see why.” Asked if he didn’t think a + lawyer’s experience was like a doctor’s, limited largely to the + pathological side of life, and that one had to consider the great + fairly normal majority. Well, he felt the majority were weak and + could be safeguarded only by their fear of “getting in a family way.” + + “Would you be willing to say that publicly, Mr. X? It is a pretty + serious thing for a man in public life, representing the people, + to say he distrusts them. I can understand your talking that way + privately, but would you want to say it openly.” “Yes, I would, for I + believe it.” + + “Suppose there were a public meeting in your district, Mr. X, and + you stood before an audience of your own constituents, and told + them that you believed that most of the young folks were better off + ignorant than with knowledge on this subject, because they couldn’t + withstand the temptation to misuse it, and so the laws that tried to + keep them from knowing were good laws. Then suppose someone else were + standing beside you, saying just the reverse, another Congressman who + might say, ‘My dear young friends, I believe in you. I know you are + human, with all the impulses that sway live people, and I know that + some people are swayed when they ought not to be, but I believe the + majority have the strength of mind and character to go right, even + if they do know how to go wrong and cover it up, and so I am against + all laws that try to keep knowledge away from you.’ Which man do you + think would get the response of the audience?” + + “Oh, of course it would be the one who said he believed in them, + that’s natural. They would want to believe in themselves, too, but + think how it would be that night, when the young girl goes out with + the boy, and she can’t help thinking, what difference will it make + if nothing ever shows? And then she will forget all about character, + and will let herself go, whereas if she was afraid of the practical + results, she wouldn’t. Yes, there are thousands of girls that are + held back just that way.” + + Then I asked if he didn’t know that there was such a lot of + contraceptive knowledge in circulation—and most of it bad too—that + the number of girls that could be protected by their ignorance was + diminishing every hour, and that there was absolutely no effort + at enforcement of the laws? He said people argued that way about + enforcing the prohibition laws, but he thought it ought to be + enforced and could be. He insisted he was “just being practical, + that’s all.” I insisted that I was the more practical, as I had faith + in knowledge and strength which were dynamic, and not in just fences, + which are dead. “Well, you certainly are a pretty talker, Mrs. D—— + and I may be wrong. Of course, if you can convince me....” “I don’t + think I can convince you, but I think you can convince yourself, if + you make a business of turning your face toward the light instead of + to the darkness.” + + “Well anyhow, you think what would happen in all these government + boarding houses over here,” pointing out the window to the wartime + buildings which still house hundreds of women clerks, “a lot of them + are confirmed old maids too, but I wouldn’t trust what would happen + to them, if they all knew they could do what they pleased and no one + would be the wiser.” + +The above instance is given, not because it represents the state of +mind of the average member of Congress, for it does not. It is an +extreme case. But it does give in exaggerated fashion, an indication +of what is the background of feeling and thought among a very large +number of members, though in a much milder and more dilute form. This +particular Congressman may prove to be pugnacious to the last, but the +majority show strong evidence that their fears and inhibitions can +be melted away by the sunlight of wholesome public opinion, frankly +expressed. + +It can not be too emphatically stated that the average member of +Congress would probably much rather be reasonable in this matter than +not, but he has not quite reached the point where it is as easy to be +reasonable as it is to be evasive. However, it has not been altogether +rare to find a perfectly untrammelled mind like that of one of the +leading Senators, who sailed into brisk consideration of the bill, +like a fresh breeze on a muggy day; “Of course, I don’t see how anyone +could vote against it.” On being told that some of the Senators on the +Judiciary Committee seemed too inhibited to want the bill reported out, +he said, “H’m,—prudes, are they?” and ran his eye over the list of +Committee members to locate the prudes. “There are Senator So-and-so, +and So-and-so, surely they will be for it,—just plain common sense.” +“And decency,” added the interviewer. “A combination of both, yes.” He +would speak to some of the members. He saw “no reason on earth why it +should not pass.” + +As the fear about the young people has been the most persistent of all +fears expressed by members of Congress, and the one about which their +minds have been most rutty, a special answer to it was prepared and +sent to every member of both Houses. _It_ was entitled; “_Yes, but +won’t it increase immorality? Isn’t letting down the bars dangerous?_” +and the substance of it was as follows: + + When Congressmen say, “Yes, but won’t this letting down the bars, + mean that the unmarried and the young will have nothing to deter them + from illicit relations?” We, in turn, make these queries: + + “Well, will it?” + + “Do you really believe that most people have no positive standards of + conduct?” + + “Are they kept what is called ‘straight’ only by their ignorance of + the fact that sex relations need not result in parenthood unless so + intended?” + + “Is it your sober opinion that fear of ‘results’ and ignorance as + the control of conception are the only deterrents from general + promiscuity?” + + When a Congressman voices this wholesale distrust of his fellow + citizens in regard to contraceptive knowledge, is it irrelevant to + inquire if the expressions of faith in the people such as appear + in pre-election campaign speeches are all mere platitudes: “If + you do really consider most people intrinsically unworthy in this + regard are you ready to go before your constituents and tell them + so? Are you willing to explain to them that your hesitation about + the Cummins-Vaile Bill is because you think they are so weak or so + vicious that they would abuse contraceptive knowledge if it were made + easily accessible?” + + A fair test of the validity, and even the sincerity, for any such + generalization as this, is to apply the idea to our own selves. + Surely we assume that our own lives are decently guided by something + beside mere fear of “consequences.” We can hardly consider ourselves + unique in this regard, either. We cannot think that we have any + personal monopoly of principles, moral standards or good taste. We + surely cannot picture ourselves as standing alone in the world on a + pedestal of superiority, with all the others below in a morass of + moral obliquity. If we dare trust ourselves with this knowledge, and + we know we do, must we not also dare to trust others? + + All these disconcerting inquiries are seldom pressed home, however, + with most Congressmen, for they usually think twice rather quickly, + and they admit that the tendency of a few to abuse knowledge is no + reason for trying to keep the mass of people ignorant. + + They admit when they stop to think, that knowledge of all kinds + can be abused and that it is abused every day by some people. + Even reading, writing and arithmetic are abused, by forgers, + embezzlers and the like, but that is no reason for not teaching + these pre-requisites of civilization to everyone. The elements and + natural forces can be dangerous for mankind as well as beneficent. + Fire, water and electricity can all do frightful damage if they get + out of hand, but under proper human control, they are blessings and + fundamental necessities. + + But it is the case of the young that stays longest in the mind of the + doubting Congressman as a cause of apprehension. Usually it is the + young girl whose “virtue” he thinks can be safeguarded by keeping + her ignorant. If he is asked, “Why the sex distinction?” he is apt + to admit that what is being safeguarded is convention rather than + virtue, as the girl’s lapse would become known while the boy’s need + not. + + However he is almost certain to end by admitting that it is a poor + kind of saint that does not know how to sin; that ignorance is not + synonymous with character; that it is an insult to young people in + general to assume that they cannot be trusted with knowledge; that + if he would not so insult his own children, he should not be ready + to insult other people’s children; that such protection as ignorance + may provide is ephemeral, for knowledge may reach the young person + any day; that it is primarily the fault of the older generation if + children have been so poorly reared that they naturally “go wrong” + instead of right; that finally it is better that those who insist + on promiscuity should not further add to the situation by bringing + innocent babies into the world. + + It is becoming more and more evident that those people, young or + older, who are strongly impelled to irregular relations are the sort + who most readily find ways to secure the forbidden information, and + it is folly to try to deprive the millions of wholesome, needy and + responsible parents who should have this knowledge, in a vain effort + to keep the irresponsible uninformed. Indeed, with birth control + knowledge, the undesirable elements in the population will tend to + die out faster than they otherwise would, by virtue of the fact that + they will not be reproducing their kind. + + In the last analysis, might it not be better for the race, if birth + control knowledge could be given to only one class of people, that it + should be made available first of all to the generally promiscuous? + They make very poor parents, and the sooner they die out the better. + + It can hardly be doubted that the people who bring up this immorality + bogie, as an excuse for holding back contraceptive knowledge from + the public, are unconsciously trying to divert their minds from + their own sense of discomfort and uncertainty regarding matters + pertaining to sex. They are advancing what the modern psychologist + calls “good reasons but not real reason.” They are “rationalizing.” + They can quite well fool themselves, too, into believing that they + are animated by a disinterested concern for social welfare. But + presently, if they are willing to think the thing through, they may + see that what they are really doing is trying to avoid or postpone + the responsibility which faces all normal adults, to meet the + fundamental problems of life squarely, and to help educate the human + race into a triumphant and thorough solution of them. + + The hope of the world lies on the far side, not the near side of + knowledge. + +A few years ago there was much heated assertion current among +“radicals” about how church and State, and especially how “big +business” wanted to suppress the knowledge of birth control; how the +church (meaning mostly the Roman Catholic church) wanted more souls +born, at no matter what cost, so they could be counted in the fold; +how the militarists wanted more “cannon-fodder”; how the “interests” +wanted more “wage-slaves” to exploit; and how the “government” wanted +more millions of citizens to build up and fight for a State that would +be dominant in the world; and how “politics,” the servant of all these +“tyrannies,” was the force which would hold birth control progress +back, in any attempted effort at legislation. + +But “politics,” as represented by the men in Congress, whose views +have been sampled in the last six years, does not act at all in accord +with the pattern laid out for it by the “radical.” Politics, that is, +political organization, re-acts just about as the individual men do. It +squirms at the idea of any constructive service regarding the release +of birth control information from legal ban, and the only use it has +for the subject at all is a means of damning a political opponent, or +rather to threaten to use it thus, in the event that other ammunition +fails. If the hypothesis of the “radicals” had been sound, there would +surely have been some evidence of it among the 435 men who constitute +Congress. Some interest would have been shown in having the present +suppressive laws enforced, but as a matter of fact, not a vestige +of any such interest has been found, and there has been a general +admission that the laws do not and cannot work. Occasional, feeble and +ignorant remarks about race suicide are the nearest approach to an +interest in making the laws effective, that has been discernible in +Congress. + +An extreme example of this false assumption as to why politics has thus +far balked at helping to repeal the suppressive laws, is found in an +editorial signed by Margaret Sanger, in the Birth Control Review of +May, 1921. It was written after the first short effort to induce the +New York Legislature to pass a “doctors only” bill, and was apropos +of the facts that one Assemblyman who had promised to introduce the +bill had backed out, “after consulting with some of the leaders of the +Assembly who strongly advised” him not to do it, as it would do him +“an injury” that he “could not overcome for some time”; that another +Assemblyman, who was a physician, had “refused on the ground of levity +from his associates”; and that a third had decided against doing +it “after consulting with party leaders in New York.” Part of this +editorial comment was as follows: + + To expect aid or even intelligent understanding of birth control from + the typical Albany politician; to be disappointed because of the + ignorance of these so-called “legislators”; to be discouraged because + of their failure to remove the coercive and criminally obscene insult + to American womanhood from the statute books[3]—this would be to + succumb to emotion rather than to profit by the invaluable knowledge + we have gained from our experience at Albany. The great fact is this. + We can expect nothing from the politician of today. If we must use + the weapon of politics to further the progress of birth control, it + must be the politics created by ourselves. + + When the first birth control clinic in America was declared a “public + nuisance” by the courts, we were advised by well-meaning friends + that the legal way, the political way, the legislative way, was the + only safe and sane method of propaganda. This has now been put to + the test. And we discover that the successful politician is not only + mentally unable to understand the aim of birth control, but moreover + he himself is the very product of those sinister forces we are aiming + to eradicate from human society. + + Your successful politician is the demagogue who knows the best tricks + to catch the greatest number of votes. He is the hypnotist of great, + docile, submissive, sheep-like majorities. He is interested in + number, not intelligence. Therefore to expect such masters, who by + hook or crook, ride roughshod into public office or slide into seats + of the State Legislature to understand or support a program which + aims at the creation of self-reliant, self-governing,[4] independent + men and women, would be to neglect one of the most important factors + among the resources of our opponents. But we did expect something + more among men elected to public office than the embarrassed giggle + of the adolescent, the cynical indecency of the gangster, in the + consideration of a serious sexual and social problem. + + Perhaps, moreover, we failed to take into consideration the vast + power wielded today by the politician in control and administration + of the public charities, hospitals, and “correctional” institutions + for the support and maintenance of the victims of compulsory + motherhood. + + “Our politicians today profit from human misery. They have an + interest, direct or indirect, in the production through uncontrolled + fecundity, of the unfit, the underfed, the feebleminded and the + incurably diseased. Their interest, financially, is in the increase + of our institution populations, with their insistent demands for + appropriations from the City and State. Most eugenists dub the + victims of our legal and social barbarism “the unfit.” The victims + are not the “unfit” but these blind leaders of the blind—the + politician, the profiteer, the war-making patriot, the criminal + moralist, who is urging men and women to “increase and multiply.” + +Statements of this sort were repeatedly made at public meetings for a +number of years. They came to be so widely circulated that they were +generally accepted among many of the groups which were agitating for +social revolution or reconstruction, without much of any analysis to +find out whether or not they were an accurate interpretation of the +opposition of “politics” to changing the laws affecting birth control +information. It is perhaps not strange that this sort of talk became +common, but it had two serious disadvantages, one that it shot wide +of the mark, and the other that it served to increase the prejudice +of law makers against the whole program for correcting the laws, and +added perceptibly to their distaste for taking a personal part in that +program. + +Every bit of direct experience with legislators augments the conclusion +that the chief reason the individual legislator hangs back is because +he is afraid it will “queer him” to stand for any action, and the +reason that “political leaders” advise the legislators to let the +subject alone is precisely the same. The subject is embarrassing, +that’s all. As one of them advised another, “Whatever you do, don’t get +mixed up in any sex stuff. No man in politics can afford that.” + +A striking proof of the foregoing point was an occurrence in the +presidential campaign in 1920. Senator Harding, when a member of the +Public Health Committee of the Senate (since abolished) had written +to the Director of Voluntary Parenthood League saying, “I have not +had time to study carefully the provisions of your bill, but at first +reading I find myself very much inclined in its favor.” This statement +was given to the press. Presently it was taken up by some of the +opposition campaign speakers who ran short of thunder, and they began +spreading the news that if Harding were elected president, “government +means would be used to enforce birth control.” No details were given +but it was insinuated that the project would be an unheard of intrusion +into private life. A representative from the Democratic Headquarters +was sent to the office of the Voluntary Parenthood League to secure a +photostat copy of the note which Mr. Harding had written. The young +man who bore the message happened to be interested in the work of +the League, and he frankly admitted that the errand was distasteful +to him, as the distorted use it was planned to make of this note was +such as would not only reflect discredit upon Mr. Harding, but upon +the League. He said he considered it most unwise campaign tactics, +and he was the more disturbed over it, because some of the campaign +managers had admitted that they themselves approved the bill, but +as they considered it a good handle for slurring Harding, they were +perfectly willing to use it in that manner for campaign purposes. Their +plan, however, was checkmated by some of the levelheaded women then +active in the Democratic campaign; they instantly notified the men +that it would never, never do. They reminded the men that no matter +how relatively silent the organized women of the country might have +been on this subject, there was no doubt whatever that they believed in +controlled parenthood; obviously, for they had achieved it; and any +discreditable slam at birth control would be nothing but a boomerang +for the Democratic campaigners. The whole idea was promptly abandoned. + +It has been frequently said, inside of Congress and out, that if the +“club women” had endorsed the Cummins-Vaile Bill, it would have been +passed by the last Congress. There is clearly no way to prove it, but +there are certain facts to be stated which throw some light on the +subject. In the first place the club women have not been completely +silent. In the next place, it is just as obvious that the club women +believe in the control of parenthood as that Congressmen do, and that +they have not and will not observe the laws which forbid access to the +information. The birth rate in both groups is prima facie evidence, +which no candid person would deny, as it is out of the question to +assume that the educated and more or less privileged class to which +both groups belong, are made up of people who are for the most part +either ascetic or sterile. The only possible inference is that control +of the growth of the family has been achieved by the utilization of +contraceptive knowledge. Congressmen are just as able to take note of +this situation as any other observers, but when they talk of waiting +for the club women to voice their opinions officially in a body, they +are merely exercising their ingenuity in thinking up one more form of +excuse for not acting. + +And the women, to the extent that have been backward about +acknowledging what their lives prove, seem to be motivated by exactly +the same sort of embarrassments and inhibitions as afflict the members +of Congress. And similarly also, their inhibitions are wearing thinner +all the time, and there is good reason to believe that ere long the +organized women who belong to the more or less privileged class will +follow the lead of the organized labor women who, in June, 1922, passed +the following resolution at the annual convention of the National +Women’s Trade Union League: + + _Whereas_ the effect of certain laws of the United States, both State + and Federal, is to withhold contraceptive information from the women + of the working classes, while it is in most cases readily available + to the well to do; and + + _Whereas_ it is important that in this, as in other matters, the best + scientific information should be available to the peoples’ need, + regardless of their economic standing: Therefore be it + + _Resolved_, That we, the National Women’s Trade-Union League, in + convention assembled, go on record as opposed to all laws, State and + Federal, which in effect establish censorship over knowledge which, + if open to one, should be open to all who care to secure it. + +However in fairness to the rank and file of the club women it must be +stated that two years earlier, in June 1920, they gave every evidence +of being willing and even glad to pass a resolution of protest against +the barriers to contraceptive knowledge, and it was only the timidity +of the leaders which prevented their having full opportunity to do so. +This circumstance occurred at the Biennial Convention of the General +Federation of Women’s Clubs at Des Moines, and was reported as follows +in the Birth Control Herald: + + At the Des Moines Convention in 1920, at the close of Mrs. Dennett’s + address to the Health Conference on “Children by Chance or by + Choice,” the delegates began a rapid fire of questions. Mrs. Dennett + asked if she might put just one question to the delegates, namely, + as to how many of them wanted the prohibitive laws of this country + regarding contraceptive knowledge to remain as they are now without + change. Not a hand was raised, whereupon Mrs. Dennett said “That is + interesting in view of the fact that your Resolutions Committee has + declined to report out a resolution on that question.” Instantly a + delegate asked the Chairman, Mrs. Elmer Blair, to have the resolution + read. The delegates listened hard. A second slow reading, was asked + for. Then without pause someone moved the adoption of the resolution + and it was carried _unanimously_ with a rising vote of thanks to the + speaker. Over 500 delegates were present, constituting about a third + of the whole Convention. + + The wording of the resolution was as follows: + + _Whereas_ one of the primary necessities for family and therefore + for public health, is an intelligently determined interval between + pregnancies, to be secured by regulating the inception of life and + not by interfering with life after it starts, and + + _Whereas_ the lack of knowledge as to how to secure such an interval + frequently results in serious disaster for mothers and babies and + indirectly for the entire family and community. + + _Be It Resolved_ that this Conference on Public Health urges the + speedy removal of all barriers, due to legal restrictions, tradition, + prejudice or ignorance, which now prevents parents from access to + such scientific knowledge on this subject as is possessed by the + medical profession. + +Of course it was evident that any resolution which was carried +unanimously by a third of the delegates would carry by at least a +good majority if submitted to all the delegates, and the rebuke thus +administered to the resolutions committee created quite a bit of +consternation among the officers of the Federation. But the resolution +was not submitted to the whole convention, nor has one been allowed to +come forth at any subsequent convention, although considerable effort +has been made to have it done. The nearest approach to it has been the +making of a recommendation by the officers, that the whole subject of +birth control be “studied by the clubs.” + + If, as some of the Club women say, the chief reason for not endorsing + voluntary parenthood is because the Catholic members are opposed, it + would seem a perfectly simple matter to remind the Catholic women + in the first place that they are a very small minority, and in the + second place, that there is nothing compulsory about the use of + contraceptive knowledge. If Catholics wish to remain ignorant on the + subject, they are, and should be entirely free to do so, but they + should not seek to enforce ignorance on others. (_B. C. Herald._) + +It is said that the Catholic Clubs have threatened to secede from the +Federation if a birth control resolution were passed, and that the +leaders are so concerned to keep up the membership in the federation +that they, like the political party leaders, have put organization +first and left fair play to the mass of citizens to take care of +itself as best it might. But there seems also evidence that the excuse +about the Catholics is in part at any rate, a cover for the underlying +excuse of embarrassment about dealing with the subject at all. + +Practically all roads of investigation in this matter lead back to +this one difficulty. If that were overcome, the minor obstacles would +seem inconsequential. A situation similar to that found in the women’s +clubs has developed in public welfare organizations of many sorts. The +members were ready to move, but the leaders and officials were full of +doubts and excuses. Ever since 1918, various members of the Social Work +Conference, which annually gathers together representatives from nearly +all the public welfare organizations of the country, who have been +clamoring to have the question of birth control placed on the official +program of the Conference, but thus far it has been relegated to “side +show” meetings. In 1922 the request was formally made in a resolution +passed with but one feeble dissenting vote, at a meeting with several +hundred delegates present, but the officers have still held back at all +the subsequent Conferences. + +This inhibition of leaders has been so persistent that a definite +effort was made by the Director of the Voluntary Parenthood League to +try to help them break through it, and release their naturally helpful +instincts so they could function without hindrance. It took the form +of a semi-open letter, which was marked, “Not for publication—at +present,” and read as follows: + + Dear Citizen: + + The Cummins-Vaile Bill has wide-spread, splendid and rapidly + increasing endorsement. But there are still some persons of + consequence, who believe in the aims of the legislation, who say, “I + do not feel free to express my opinion, on account of my position.” + They explain that as they are officially connected with this or that + organization, they are obliged to forego giving any endorsement, + though “personally in hearty sympathy.” They are fearful lest their + individual opinions should be deemed official. + + This attitude is noticeably frequent among leaders of women’s + organizations and welfare groups. They say, “Until my organization + speaks, I cannot do so.” But large organizations, as such, speak + their views only at annual, or even biennial conventions. So they are + often precluded from giving timely assistance to important moves for + social welfare. Thus the leaders are prevented from letting their + individual opinions be of service at critical moments. + + Granted that it is a real problem for officials to determine what is + absolute wisdom in working out the dual functions of personal and + public life, is it not a mistake to assume that an officer of an + organization is of necessity so submerged in the office, as to lose + all personal identity and freedom of opinion? Officers are seldom + chosen unless they are persons of significance _apart_ from the + position. Office-holding should not be allowed to obliterate that + significance. + + In regard to removing the drastic laws which prohibit access to birth + control knowledge, I believe there are very few leaders of fine mind + and good heart like yourself, who can be satisfied to remain silent + any longer, if they realize the good they may do by speaking out. + + And further, I believe that an analysis of the probable other reasons + that doubtless account in many instances, for the silence up to date, + may make it easier to help in this important matter. + + Are you willing to think it out with me? + + Looked at quite simply, it seems to be just matter of generous spirit. + + It is plain that not only leaders, but a large majority of members + of social, civic and welfare organizations, are of the well-to-do + educated class which has already obtained and utilized birth control + knowledge, despite the laws. The birth rate in families of this + class is clear proof that the majority believe in family limitation. + Otherwise they would not so universally have achieved it. To assume + that sophisticated people who have learned enough of this legally + forbidden knowledge for the effective use in their own lives, are not + willing to let the millions of unsophisticated poor have legal access + to similar knowledge, is to assume a degree of conscious selfishness + that is unwarranted. They would not shut their hearts against the + multitudes of mothers, such as the wife of the rural delivery letter + carrier, who writes as follows: + + “I have searched far and wide for knowledge. I have been given + advice how to produce abortion, but life was too dear to risk + that. So I have stumbled along hoping some day to gain the desired + knowledge. In my thirteen years of married life I have given birth + to eight children, beside one miscarriage following an attack of + flu-pneumonia. I have five girls and two boys living, the oldest + girl is past twelve, just ready to pass into womanhood. It makes + me shudder to think of the possibility of her going through what + I have. I have tried to find out from doctors some preventive + measure, but a sneer is my answer. I am now only thirty-six years + old, far from being too old for pregnancy, but I feel I cannot + possibly bring any more into the world to suffer I know not what. + If I had not had one of the best husbands God ever made, I believe + I would not have been able to bear up under it all. With only an R. + F. D. carrier’s salary for living, it has been a struggle for us + both. But God willing, I am going to persevere till I find out how + to prevent pregnancy occurring so often, not only for myself, but + for my five girls, and also for countless other girls to take our + places in the future.” + + The consciousness of belonging to the privileged class which has + obtained at least some of this knowledge in spite of the laws, should + be enough, I sincerely believe, to make the leaders who have till now + held back their endorsement, feel that any further holding back is + unworthy of their true responsibility as leaders. A leader is one who + finding the way good and right opens that way to others. + + But something seems to inhibit this natural and generous response to + human need, something beside holding office. What is it? + + Let me tell you the situation, as we who are shouldering this work + for birth control legislation, have found it. I think that the + elusive something may be discovered and the barrier eliminated. + + In the first place officers are by no means consistent in refusing + to express opinions because subjects are outside the direct scope of + their organizations. So is it not a reasonable inference that, when + this excuse is offered in regard to birth control legislation, it is + unconsciously used to cover some other reason? + + The leaders often tell us that they would have had this subject + presented to their organizations, but they feel that “the time is not + yet ripe,” that “the members are not ready,” etc. Yet they well know + that the members believe in family limitation and spaced births, as + they achieve both. + + Is not this inconsistency and excuse what the psychologists call + a “defense mechanism”? And is not that mechanism unconsciously + built up to cover embarrassment? Sex taboo is still far reaching in + spite of modern education. So it is not uncommon to find people who + have long ago accepted and acted upon the principle of controlled + parenthood in their own lives, but who shrink from the possibility + of having that acceptance made publicly noticeable. They even dread + a discussion of the dire need of contraceptive knowledge among the + ignorant, lest it be too compelling. + + In other words, sex consciousness overwhelms conscience, which + otherwise would be sensitive to human need and responsive to public + welfare. + + If this seems to you a precipitate inference, just run over the + following résumé of our experience in various organizations. + + * * * * * + + It has been repeatedly proved at conventions that the members were + ready to adopt endorsing resolutions, if only the leaders would + permit their being discussed and voted upon. The story of the ways in + which organization opinion has been actually suppressed by leaders is + a significant phase of social history in this country. + + At one great convention, when the large and representative + resolutions committee had decided to recommend a resolution, the + officers, by dint of prolonged effort into the small hours of + the night, coerced the committee into reversing its decision. At + another, when it became evident that a resolution would be carried if + discussed on the floor, the officers, by appealing to administration + loyalty, succeeded in preventing a vote to permit discussion. At + another, after being refused by a small resolutions committee and + the board of directors, the resolution was brought up from the floor + when a full third of the delegates were present, and was carried + unanimously. At another, after the resolution had been carried by a + sizable majority of the members, the leaders manoeuvered a vote to + rescind. At another, over six hundred delegates voted to ask their + directors to put this subject on the official program of the next + year’s convention. It has not yet been done, though two years have + elapsed. + + Over and over at meetings of various sorts, the audience has been + asked, “How many of those present want the laws suppressing birth + control information retained.” And hardly a hand has been raised. + “How many want them repealed?” And nearly every hand has come up. + + Ironically enough, on several occasions, the very leaders who have + prevented any convention endorsements of legislation to free birth + control knowledge or even the recognition of the principle of + controlled parenthood, have not hesitated to come to the Director + of the Voluntary Parenthood League, with this sort of request. “Do + you mind telling me what are the most up-to-date contraceptives, and + what doctors give the best scientific instructions on methods?” They + hasten to add that personally they are in full sympathy with our + movement, and usually they want the information for a daughter or a + friend, or some one near and dear, whom they wish to have the best + knowledge. + + The above is a sad story, and the only reason for telling it is to + understand what it implies. + + _In the light of modern psychology_, it is understandable why groups, + i.e., audiences and delegates, are ready to vote for a resolution, + while leaders are loath to initiate or permit action. Whenever any + question induces the sort of embarrassment that emanates from sex + consciousness, it is inevitably easier to act as one of a group + than to act by one’s self. Yet leaders, just because they are such, + have exceptional opportunity to let their opinions be of service + to humanity. And is not the obligation of mature minds to see to + it that, so far as possible, such inhibitions are not allowed to + interfere with being just and generous to one’s fellows? + + The Congressmen who are now being asked to pass the Cummins-Vaile + Bill are tempted to move all too slowly, because they have + precisely these same inhibitions that have afflicted the leaders + of organizations. The one thing that will most easily inspire + Congressmen to move quickly in this matter, is to be relieved in + their own minds, by assurance from just such leaders as you, that + they will be doing wisely and well to vote for this bill. By shedding + your own inhibitions for the sake of others, you will distinctly help + Congressmen to shed theirs. + +The tests to which some of the leaders have been put, especially among +the women’s organizations, have brought forth some ludicrous moments. +For instance the National League of Women Voters has circulated “A +Pledge For Conscientious Citizens,” written by its President, Mrs. Maud +Wood Park, which included this item: “To obey the law even when I am +not in sympathy with all its provisions.” + +This pledge, if applied to the laws prohibiting access to contraceptive +knowledge, looks comic indeed, for the National League of Women Voters +is made up of women who very obviously have not the remotest intention +of abiding by those laws. They belong for the most part to the same +general class as that which formed the basis of the report issued by +the Bureau of Social Hygiene, of which Dr. Katherine Bement Davis is +the executive secretary; this report gave answers to a questionnaire +sent to 1000 married women, mostly college graduates, in which 74% said +they used contraceptive methods. + +When a National Conference on Law Enforcement was called in Washington +in 1924, in which representatives of all the leading women’s +organizations took part, inquiry was made of the program committee as +to whether there would be discussion of the enforcement of the law +which is more broken than any other in the United States, not excepting +the prohibition law, namely, the law forbidding access to contraceptive +knowledge. The inquiry produced consternation. The enforcement of +that law was not so much as mentioned on the program. The laxity of +officials and the indifference and criminality of citizens regarding +other laws came in for due attention, but not this one—horrors, no! +It reminds one of the little girl who had been brought up in luxury, +and who had never experienced any method of transportation except her +little perambulator and the family limousine. She was making her first +trip with her father in a street car, a very crowded one, and she piped +up, “Father, there are too many people in this car.” “Yes, my dear, +shall we get out?” “Oh, no, father, not _us_.” So the conscientious +women wanted thorough-going discussion of law enforcement, but not that +one. Perish the thought! + + + + +CHAPTER VI + +A “DOCTORS ONLY” FEDERAL BILL + + _“Doctors only” Federal bill followed straight repeal bill just as + limited bills in States followed straight repeal bills: Advocated + on Margaret Sanger’s initiative: Provides medical monopoly of + extreme type: Arguments in its behalf analyzed and answered: + Proponents of “doctors only” bill do not live up to own demands for + limiting contraceptive instruction to personal service by doctors: + Birth control periodical carries thinly veiled advertisements for + contraceptives: Improved type of “doctors only” bill drafted by + George Worthington: Not so many loop-holes and inconsistencies as in + first bill proposed, but still a special privilege bill and still + leaves subject classed with obscenity: Worthless as means of curbing + abuse of contraceptive knowledge: Clause permitting “reprints” + from medical and scientific journals practically breaks down all + restrictions: Makes pretense at limitation a farce._ + + +Four years after the first petition slips were circulated asking for +the repeal of the Comstock laws which ban contraceptive knowledge the +first “doctors only” bill was proposed. Three years after the first +State repeal bill was actually introduced, the first State “doctors +only” bill was introduced. A somewhat similar sequence occurred as to +Federal legislation. The first petitions to Congress for a straight +repeal were circulated in 1915, and the Federal “doctors only” +proposition first appeared in 1924; the first bill for a straight +Federal repeal was actually introduced in 1923, and by the time these +words are read a Federal “doctors only” bill may be before Congress. +At the present writing it is announced as a definite plan. The limited +legislation has in all these instances been initiated by Margaret +Sanger. + +It is a wide reach from her position of ten years ago, when breaking, +not correcting, the laws was urged, to her position of to-day when +limited, permissive legislation is being recommended to State +legislatures, to Congress and to the public. The former policy was +one of vehement scorn of the indecent laws and the object was to get +contraceptive information directly to the people in the quickest way +possible by published information and clinical service,—regardless +of the law; a striking contrast to the propositions of the last two +years for laws to keep the subject of contraception still classed with +obscenity and to let no one have it except those who personally apply +to physicians and to let no one give it except physicians. + +To account for Mrs. Sanger’s extraordinary swing of the pendulum from +revolutionary defiance of all law to advocacy of special-privilege +class legislation is not germane to the aim of this book. So far +as the public is concerned the explanation, whatever it may be, +does not matter. But what does matter is that there is destined to +be wide-spread appeal for this type of legislation, because the +organization which is back of it has more funds for publicity than have +ever been had before by any groups in this country working for birth +control progress; and the time is at hand for American citizens to put +on their spectacles and look thoughtfully at the basically different +types of legislation which they are urged to support, and to decide +what they want, with their eyes wide open. + +The main points for the straight repeal type of legislation have been +given in the previous chapters on the Cummins-Vaile Bill which has +been before Congress for over two years. The points for the proposed +“doctors only” type will be given as far as possible by excerpts from +the written or published words of the proponents, together with some +comparisons which may be of aid to the reader in making a sort of +mental parallel column for convenience in surveying the differences +between the two types. + +The first formulation of a Federal “doctors only” bill was announced in +the Birth Control Review of March, 1924, as the official stand of the +President (Margaret Sanger) and the Board of Directors of the American +Birth Control League. + + The Bill was drawn up for the League by Mr. Robert E. Goldsby with + the aid of Dr. J. P. Chamberlin of the Columbia Law School. Its + provisions cover communications from doctors to each other and to + their patients, and also the transport of Birth Control material + from manufacturer to dealer, and from wholesaler to retailer, and to + physicians. + +It adds to Section 211 of the Criminal Code the following amendment: + + Any article, instrument, substance, drug, or thing designed, adapted + or intended for preventing conception, or any written or printed + information or advice concerning the prevention of conception is + not non-mailable under this section when mailed by a duly licensed + physician (a) to another person known to him to be a duly licensed + physician or (b) to one of his bonafide patients in the course of his + professional practice. + + Any article, instrument, substance, drug or thing designed, adapted + or intended for preventing conception is not non-mailable under this + section when mailed in the regular course of legitimate business by: + + a. An importer to a manufacturer or wholesale dealer in drugs, or + by a manufacturer or wholesale dealer in drugs to an importer; + + b. A manufacturer to a wholesale dealer in drugs or by such + wholesale dealer to a manufacturer; + + c. A wholesale dealer in drugs to another such wholesale dealer + or a retail dealer in drugs, or by such retail dealer to such + wholesale dealer; + + d. A retail dealer in drugs to a duly licensed physician or to + another person upon the written prescription of a duly licensed + physician, or by such physician or person to such retail dealer. + + The proposed bill contains similar provisions for the amendment of + Section 245. + +This bill would thus amend but two of the five Federal statutes which +prohibit the circulation of contraceptive information or means. The +Cummins-Vaile Bill amends all five (as shown on page 97). + +It leaves the control of conception still classed with obscenity but +makes the information or means mailable under certain limitations, or +as the bill puts it, makes them “not non-mailable.” The Cummins-Vaile +bill entirely removes the subject, per se, from all legal connections +with obscenity. The article in the Birth Control Review announcing the +bill makes no mention of the fact that the proposed new bill leaves +the subject still classed with indecency. Great emphasis is laid upon +the advantages of making the doctors free to give the information, but +nothing is said about the fact that while the bill would permit the +doctor to dispense the obscene information without penalty, the person +who received it could not send that same information to anyone else +without being criminally indecent. + +This is frankly a “doctors only” bill of a most extreme sort, as +it would not only render illegal for circulation all contraceptive +information or means except such as were obtained personally from a +physician or on his direct prescription, but would create a complete +medical monopoly of the dispensing of the information; would give +doctors an economic privilege denied to anyone else; would treat +this one phase of science as no other is treated, that is, make +it inaccessible to the public, except as doled out via a doctor’s +prescription, as if the need for the knowledge were a disease. It is +the greatest possible contrast to the Cummins-Vaile Bill which requires +medical certification of methods, but creates no medical monopoly to +teach or sell, and which frees this item of science so it can take its +place in the world of science, like any other phase of hygiene. + +The editor of the Birth Control Review sets forth the reasons for +preferring fences to freedom as follows: + + The American Birth Control League, from its inception, has set itself + against the indiscriminate dissemination of so-called Birth Control + information. It holds that responsible controlled motherhood can only + be attained if women first receive practical scientific education + in the means of Birth Control. Scientific education implies the + individual treatment of each woman according to her physiological + needs, and this is impossible if she depends on advertisements or + printed matter which may or may not have been written with a thorough + knowledge of anatomy and physiology, of the biological factors in + conception, and of the nature and action of drugs and medicines. + +The implication seems to be that the repeal of the Federal ban would +release _only_ unreliable information, whereas it would likewise +release all the best and most authoritative information. All knowledge +has to compete with ignorance, and no laws can prevent the struggle. +What knowledge needs is an open field in which to make its effort to +overcome ignorance. + + Holding this view, the American Birth Control League was convinced + that a campaign for the repeal of these Federal laws was of secondary + importance until some educational work had been done. The first + object was to remove in the public mind the idea that Birth Control + implied one simple method that could be told by one person to another + over the back fence, that it was the same for everybody, and that + once told, nothing further remained to be done. + +It would surely seem as though a better demonstration of the futility +of unsuitable methods could be made if it were made lawful to discuss +and compare methods than if, as at present, it is a crime to circulate +anything which even names them. + + For the last two and a half years The American Birth Control League + has been working by means of conferences and of the _Review_ to + educate the public in the many aspects of the subject—sociological, + economic, social, biological, physiological and psychical. It has + worked for the establishment of Birth Control clinics in New York + State under the limitations of the New York law, which permits the + giving of Birth Control information in cases of disease, and in other + States where the State laws do not place this restriction on the + medical profession. + + The Federal law does not affect the internal affairs of the + individual States. It does not prohibit the establishment of Birth + Control Clinics or the giving of advice and prescriptions by doctors + in their public and private practice. + +But the Federal law does most emphatically “affect the internal +affairs of the individual States,” by making a precedent for classing +contraceptive information with obscenity. This precedent directly +affects 24 States, as shown in Chapter One of Part I. The Chicago +Health Commissioner held up the license of the Parenthood Clinic on +this very precedent, as previously described. + + The _object_ of the League is that all over the United States + there may be established clinics at which, under skilled medical + supervision, Birth Control advice and instruction will be given to + all women needing this care; and that the medical profession may be + freed from the restrictions now placed upon it by State enactments, + so that doctors may give Birth Control information both in their + private and their public practice. The Federal laws do not directly + affect this State legislation, and if all Federal restrictions on + the use of the mails and on common carriers and express companies + were removed, the medical profession would still, in all the States, + having anti-Birth Control laws on their statute books, be legally + prevented from giving oral Birth Control advice and prescriptions to + their patients. + +This statement fails to include the fact that the repeal of the Federal +ban would be the greatest possible incentive to the 24 States having +specific prohibitions, to follow suit and repeal their own repressive +laws; and that without the repeal of the Federal law, the physicians in +all States would be prevented from lawfully getting the books and other +publications and data on which they must base their “oral advice” and +their “prescriptions.” + + The result would be, that while women were debarred from real + scientific knowledge of the subject, they might through the mails + receive information entirely unsuited to their needs. + +It is an unwarranted assumption that instruction given personally would +be guaranteed to be scientific, while that which came by mail in a book +or a pamphlet might not be. The exact reverse might be the case in many +instances. In any event the repeal of the Federal law would not in +the least prevent anyone from securing personal instruction from any +physician who was willing or able to give it. + + From certain points of view, it has seemed to the President and + Directors of the American Birth Control League that little good and + even possible harm might accrue at the present stage of development + from an amendment of the Federal laws, eliminating all restrictions + on the carriage of Birth Control information and materials; + especially if this was done before sufficient data had been gathered + to justify such action, and before campaigns of education had been + carried on widely throughout the States, and especially before the + establishment of at least a few model Birth Control clinics, which + would serve not only as object lessons on the method of treating + Birth Control, but also for the collection of data necessary for the + use of the medical profession. + +Why progress slowly under hard and unlawful conditions, instead of +progressing rapidly as would be possible under freedom from legal +restriction? The latter part of the foregoing quotation is a reminder +of the famous official decision to build a new school house, and to use +the materials in the old one for building the new one, and to occupy +the old one until the new one was finished. + + The removal of the Federal restrictions would almost certainly be + followed by a flood of widespread advertising, of hastily written + and probably misleading books and pamphlets purporting to give Birth + Control information, and of supposed preventives which might or + might not prevent and which certainly could not meet the needs of + the numerous women who require personal physical examinations and + personal prescriptions to suit their individual idiosyncrasies. + +Any hastily written, inadequate or spurious information that might +be circulated would have to compete with all the best, carefully +written authoritative publications from abroad, and all the writings +of many excellent American physicians, who have long been ready to +publish their wisdom on the subject. There are at least a dozen well +known American physicians who have studied contraceptive methods for +twenty-five years or so, and who are ready to do their part toward the +education of the profession and of the public by publishing technical +books and pamphlets for the physicians and simplified hygienic +instructions for the laymen. + +The enactment of the Cummins-Vaile Bill would not prevent any one from +securing direct advice from a physician, such as individual needs may +require, but there would be every advantage in being able to supplement +the instruction of a local physician by reading good books or pamphlets +on the subject by some of the world’s best authorities, and vice versa. +To argue as if the removal of the Federal ban would interfere with +individual instruction is putting up a man of straw. + +Moreover if the opinion had been consistently held by the editor of +the Birth Control Review that no one should receive any contraceptive +instructions except those given to the individual by a physician making +a “prescription to suit the individual idiosyncrasies,” and after +making a “personal physical examination,” the Review would not have +carried, as it did for many months, advertisements of contraceptives +that were so thinly veiled as to deceive no one. They were advertised +as antiseptics. Five such advertisements were in the very issue which +contained the announcement of the new “doctors only” bill, and the +arguments that no one should have instructions except personally from +a doctor. Any reader of the magazine could order these contraceptives +by mail from the firms which advertised them, and the orders would +be filled, with no “personal prescription” or “physical examination” +and with no medical endorsement of the methods. All five of the +methods thus advertised may be very inadequate unless used in certain +circumstances and combined with other safeguards. Yet the Review +allowed its readers to run the risks, and took the profit from the +advertisements. These advertisements were presently discontinued, after +the magazine had been seriously criticized for publishing them. + +And further, one of these contraceptives was recommended by name in +Mrs. Sanger’s pamphlet on family limitation, in which she described +various methods. Since 1914 ten editions of this pamphlet have been +sold or distributed. Many thousands of them have been sent through +the mail. Mrs. Sanger herself stated at her Carnegie Hall meeting on +her return from the Orient, that she had arranged to have an edition +of this pamphlet printed in China. The Birth Control Review reported +the publication of it in England also, and protested most vigorously +because it had been suppressed under the British obscenity law. In +all this widespread circulation of contraceptive advertisement and +instruction, there was not even the endorsement of any physician +quoted, say nothing of “personal prescription.” If the theory +that there should be no information allowed except via a doctor’s +prescription for the individual, has been so little adhered to by the +very people who advance it, is it not futile to try at the eleventh +hour to embody that theory in legislation? If the very people who +advocate “doctors only” information are not willing to live up to it, +who else could be expected to do so? How could anyone expect such +legislation to be enforced? + + To begin the work for Birth Control by campaigning for unrestricted + use of the mails would seem more like sinking Birth Control to a + hopelessly commercial and empirical level than establishing it + on a firm scientific basis, with the prospect of ever-increasing + developments and improvements until the ideal contraceptives are + obtained. + +As the government does not attempt to regulate by law what shall +and what shall not circulate about other scientific subjects, there +is no tenable reason why it should undertake to guide or protect +this one part of science. Other scientific truths are not “reduced +to a hopelessly commercial and empirical level” by being free from +governmental barriers. A fair field and no favor is all that science +needs. + + Now the League has reached a point where some amendment of the + Federal law may aid rather than hinder its work. It has not worked to + have restrictions on the mails and express companies swept away. But + it does desire to free the medical profession for the new duties that + it is anxious to see the doctors undertake, by making it possible for + them to communicate freely with each other concerning facts and data + of Birth Control, and also by enabling them to secure the material + necessary for their prescriptions. + +Are laws made to “aid” the work of any particular organization, or are +they for the benefit of the whole people? + + To meet this new situation, which is developing out of the + establishment of clinics in various States, it has secured the + drawing up of a bill which, while not opening the mails to the + commercial exploitation of Birth Control, would free the hands of the + medical profession and enable the clinical data to be passed from one + group of doctors to another. + + It would facilitate the establishment and working of Birth Control + clinics, and it would aid the doctors in assuming the new duty of + giving Birth Control advice and prescriptions. + +What does the medical profession really want, an opportunity for +professional exploitation of birth control knowledge, or simply medical +and scientific freedom? + + It would leave the law as it now stands with regard to promiscuous + dissemination of Birth Control advice and the advertising of supposed + means of contraception. + +The use of the word “promiscuous” and the word “indiscriminate” (in +the first paragraph of this article, as above quoted) seems to connote +some other attitude than merely the desire that each person who needs +it should have individual medical advice. These two terms have been +frequently used by those who oppose or who are fearful about freedom of +access to contraceptive knowledge. The use of such words seems markedly +inappropriate in discussing contraceptive knowledge from the point of +view of health. Contraceptive methods are a part of hygiene, and the +public should have access to knowledge about them just as to any other +phases of hygiene. Instructions as to certain methods of brushing the +teeth or as to certain diets to produce certain effects, could just as +rightly be termed “promiscuous” and “indiscriminate.” But no one would +dream of using such language in that connection. + +But to return to the text of this proposed bill. Under its provisions, +no publishing of contraceptive knowledge or data would be practicable. +A doctor would not personally undertake the expense of printing books +and pamphlets, if he could send them only to other physicians or to +his patients. Nor would publishers, medical or otherwise, issue books +on the subject; because, being neither doctors nor “dealers in drugs,” +they could not ship their books to customers, not even if the customers +were physicians. A ridiculous situation in which the publishers +couldn’t and the physicians wouldn’t publish the data, without +which the medical profession as a whole can not adequately study +contraceptive science. Physicians would be deprived not only of what +American publishers are ready to print (when the laws will permit) but +they could not import the excellent books which are published abroad. +(Sec. 102 of the Criminal Code and Sec. 305 of the Tariff Act prohibit +all importations and these sections are not amended by the proposed +bill.) + +On detailed analysis the absurdity grows. The doctor could mail +instructions, a prescription or a contraceptive to his patient, but +patients could not recommend the doctor in a letter to any one else, +for that would be an “obscenity.” No magazines, not even medical +journals, could name the doctors who are good authorities on this +subject, for that too would be “obscene.” No scientists or health +authorities or welfare workers could write even privately to people +in dire need, listing the physicians who have made a specialty of +studying methods. No hospital or clinics could mail announcements +of their contraceptive service, for it would all be “obscene.” The +general public would have no way of ascertaining who the experts were +except by the very limited way of verbal inquiry. The bill would +permit importers, manufacturers and dealers in drugs to transport +contraceptives, though the importer could not import them! + +_But the final beneficiary of this traffic would be the physician._ The +whole commerce would have no other lawful outlet than via the doctor’s +prescriptions. If the dealers should fill retail orders for any one who +is not a doctor or who does not present a doctor’s direct prescription, +they would be criminals under the obscenity laws. + +Obviously the dealers would not keep their business within any +such prescribed lines. Even under the present laws dealers sell +contraceptives in ever increasing quantity. They are either camouflaged +as protection against venereal infection and as treatment for local +ailments, or are sold on a plain boot-legging basis. Any attempt to +keep this traffic within the bounds of this proposed bill would be just +so much paper. No responsible legislators could be expected to take +it seriously. The country is burdened with enough unenforceable laws +already. + +Not only will dealers sell contraceptives anyhow, but the one thing +individuals can be counted upon to do is to spread the news as to what +doctors give good advice, to repeat and copy their prescriptions ad +infin. Information exclusively by the doctor-to-patient system is +ruined at the start. No possible laws could enforce it. + +Due either to the criticisms on this proposed legislation or to unaided +sober second thought, this bill has recently been supplanted by another +“doctors only” bill, which is now supported not only by the officers +of the American Birth Control League, but by the New York Committee +on Maternal Health, a group made up mostly of physicians under whose +auspices, research work in contraceptive method is being carried on. +Dr. Robert L. Dickinson is its Chairman. This new bill is somewhat less +restrictive, and has fewer inconsistencies and loopholes than the first +proposed bill, but is none the less a medical monopoly bill in intent, +and is none the less class and special-privilege legislation. And like +the first one, it leaves the subject of the control of conception still +classed in the obscenities and penalized as a criminal indecency. +It also has the same stuttering provision which makes contraceptive +information and means “not non-mailable” under certain conditions. +These conditions are, when they come from or are sent to a doctor, +a medical publisher, an importer, manufacturer or dealer, and with +a final provision that the retail dealer can not send anything of +the sort to any one except a physician or some one who has a written +prescription from a physician. It provides for importing and exporting +under similar restrictions. + +This newest version of a “doctors only” bill has been drafted by George +E. Worthington, Acting Director of the Department of Legal Measures of +the American Social Hygiene Association. It reads as follows: + + Section 211, to be amended by adding the following: + + _Provided that_: + + Standard medical and scientific journals and reprints therefrom and + standard medical works which contain information with reference to + the preventing of conception are not non-mailable under this section. + + _Provided further that_: + + 1. Any article, instrument, substance, drug, or thing designed, + adapted or intended for preventing conception, or any written or + printed information or advice concerning the prevention of conception + is not non-mailable under this section when mailed by a duly licensed + physician to: + + a. another person known to him to be a duly licensed physician; + + b. one of his bonafide patients in the course of his professional + practice; + + c. a printer or publisher, or by a bonafide printer or publisher to + a duly licensed physician. + + 2. Any article, instrument, substance, drug or thing designed, + adapted or intended for preventing conception is not non-mailable + under this section when mailed in the regular course of legitimate + business by: + + a. an importer to a manufacturer or wholesale dealer in drugs, or + by a manufacturer or wholesale dealer in drugs to an importer; + + b. a manufacturer to a wholesale dealer in drugs or by such + wholesale dealer to a manufacturer; + + c. a wholesale dealer in drugs to another such wholesale dealer + or a retail dealer in drugs, or by such retail dealer to such + wholesale dealer; + + d. a retail dealer in drugs to a duly licensed physician or to + another person upon the written prescription of a duly licensed + physician, or by such physician or person to such retail dealer. + + Section 245, to be amended by adding the following: + + _Provided that_: + + Any drug, medicine, article or thing designed, adapted, or intended + for preventing conception, or any written or printed matter + concerning the prevention of conception may be imported into, or + exported from, the United States by a duly licensed physician, or may + be transported in interstate commerce within the United States if + consigned by a duly licensed physician: + + a. to another person known to him to be a duly licensed physician, + or + + b. to one of his bonafide patients in the course of his + professional practice. + + Any drug, medicine, article or thing designed, adapted, or intended + for preventing conception may be imported into or exported from + the United States by a person, firm, or corporation, including a + manufacturer, engaged in an established legitimate business of + importing and exporting drugs, or may be transported in interstate + commerce within the United States, if carried or shipped in the + regular course of legitimate business, by: + + a. an importer to a manufacturer or wholesale dealer in drugs, or + by a manufacturer or wholesale dealer in drugs to an importer; + + b. a manufacturer to a wholesale dealer in drugs or by such + wholesale dealer to a manufacturer; + + c. a wholesale dealer in drugs to another such wholesale dealer + or a retail dealer in drugs, or by such retail dealer to such + wholesale dealer; + + d. a retail dealer in drugs to a duly licensed physician or to + another person upon the written prescription of a duly licensed + physician, or by such physician or person to such retail dealer. + + Section 312, to be amended by adding the following: + + _Provided that_: + + The sale, loan, gift, exhibition or offer thereof, of any article, + drug, instrument or thing, designed, adapted or intended for + preventing conception, or the giving, writing or supplying of any + oral, written or printed information concerning the preventing of + conception, by a duly licensed physician to: + + a. another person known to him to be a duly licensed physician, or + to + + b. one of his bonafide patients in the course of his professional + practice; + + shall not be an offense under this section, nor shall it + be an offense for established wholesale or retail dealers in drugs to + sell, lend, supply, give away, exhibit, possess, or transfer, to one + another, in the regular course of legitimate business, or to a duly + licensed physician or to another person upon the written prescription + of a duly licensed physician, any article, drug, instrument, or + thing, designed, adapted or intended for preventing conception. + Any person obtaining any such article, drug, instrument, thing, or + information in pursuance of this section may lawfully possess and use + the same. + +The vital difference between this bill and the previous one lies in +the permission granted to medical publishers, and in the fact that +“reprints” from “standard medical and scientific journals” are to be +made “not non-mailable,” although they contain matter which is classed +as obscenity in the law to which this bill would add amendments. This +bill is technically much better drawn than the previous one, but while +it has filled some of the gaps in the other one—such as the provisions +regarding publishing and importing—and has ironed out some of the +absurdities, it still contains phrases like “bona-fide patient” and +“bona-fide printer or publisher” and “standard” medical works, no one +of which is defined by law. The enforcement of such a bill, if enacted +into law, would therefore be built upon shifting sands, which would +be just about as hopeless to deal with as have been the multitudinous +interpretations of “obscenity” by censors, judges and juries for +generations. What is a “bona-fide printer”? And what constitutes a +“_standard_ medical or scientific journal”? Whose standard would the +law sanction? Standards vary widely at any given moment, and from +decade to decade they vary prodigiously; indeed it is not so long ago +that it was not “standard” to relieve the suffering of childbirth—it +was not orthodox, it was “irreligious.” Perhaps there were some who +deemed it “obscene.” Laws should contain explicit terms, and not those +whose interpretation can vary so as not only to nullify the intent of +the law, but so as to result in limitless injustice to the public and +to the individuals against whom they are enforced. + +The inclusion in the bill of “reprints” from “standard medical and +scientific journals” practically breaks down any sort of practicable +restriction. For any one can make reprints. If reprints, as well as +the books and journals themselves are made mailable, it means that +almost any one who wants contraceptive information can get it, and +anyone who wants to can give it. And if, as has probably been the +case, there is any idea on the part of those who devised this form of +legislation, that restrictions of this sort will prevent “the wrong +people” from getting contraceptive information, or will prevent the +abuse of contraceptive knowledge, they might as well abandon the idea +at the start, as to try to inflict so unenforceable a statute upon +American citizens, who are already staggering under a huge mass of +unenforced and unenforceable laws. Those who are impelled to misuse +contraceptives, and to abuse the knowledge are quite clever enough to +utilize “reprints” from the best authorities on contraception. There +would be no such thing as keeping the knowledge within what anyone’s +notion of what proper bounds may be. There is no such thing now, even +with our sweeping and unqualified laws. + +This proposed bill makes the effort to limit the accessibility of +knowledge into a mere gesture. True it might fool many people who do +not stop to think or to analyze the bill, and it may even deceive +those who propose it; but can it fool all the people? And can it fool +Congress? That is the question for the American public to decide. +As such a statute could not possibly keep the information within +the bounds of the medical profession and those to whom the doctors +specially imparted it, and as information under such a statute would +circulate about as much as if a straight repeal of the ban were made, +why bother with a circuitous, undignified, impracticable law, when +a simple straight-forward repeal is possible, one which involves no +preposterous complications as to interpretation or enforcement, and one +which puts the subject of the control of conception, so far as the law +is concerned, on a clean and self-respecting basis? + + + + +PART III + +WHAT SORT OF LAWS DO THE PEOPLE REALLY WANT? + + + + +CHAPTER I + +DO PHYSICIANS WANT A “DOCTORS ONLY” BILL? + + _Probably most physicians have not yet thought what sort of laws + they want: Resolutions by medical associations depend largely on + way subject is presented and by whom: Doctors have no interest in + retaining obscenity connection as such: Only few want “doctors + only” bill for mercenary reasons: Endorsement proposed for American + Medical Association in 1920 sidetracked in department: President + of A. M. A. cordial to idea of straight repeal: American Institute + of Homeopathy and various local medical associations endorse + Cummins-Vaile bill: New York Academy of Medicine took “doctors only” + stand on recommendation of small sub-committee when many members are + for straight repeal: Conferences of doctors and lawyers in Chicago + and New York advise against all limited legislation: Dr. Pusey, + Ex-President of American Medical Association warns against “silly + legislation”: Straight repeal the only recommendation of doctors + and lawyers: Unfair to attempt to hold medical profession legally + responsible for moral use of contraceptives: Doctors on the whole + more interested in professional prestige and credit for devising + contraceptive methods than in any exclusive control of their use._ + + +Naturally the off-hand answer to such a question as “Do the physicians +want a ‘doctors only’ bill?” is that some do and some do not. There is +no accurate way of estimating the proportion of each kind, but there +are some significant points to be surveyed as to the reasons offered +by those who do stand for it. And it is even more significant that +probably the large majority of physicians have not yet thought whether +they do or do not. When asked individually, they are apt to say, as did +a former President of the California State Medical Association, when +he was asked for advice in the framing of a Federal bill, “Oh, I am a +physician, not a law maker. I must leave that to the experts.” But he +emphatically believes in birth control, and in the responsibility of +the medical profession toward the subject. In his retiring presidential +address he said, “It is up to the profession to urge the repeal of the +laws against birth control.” + +When the question of birth control legislation has been brought up at +meetings of medical associations, it is perhaps safe to say that more +resolutions have been killed in committee than have been submitted to +the members for a vote, the reasons being about the same as those which +have inhibited Congress, including “consideration” for the feelings +of Catholic members. The vote on those which have been submitted +has depended considerably on the way the resolution was worded, and +somewhat on who proposed the resolution. This is no disparagement +on medical associations. It might quite as truthfully be said of +almost any sort of organization. It is a human failing to vote aye +in meetings, on any proposition which has a generally good-sounding +purpose, or which is introduced by some one in whom the people present +have general confidence. It is only occasionally that resolutions are +dissected with care by any large body of people and voted upon with +full comprehension of their meaning. This human disability operates +just as effectively one way as another, unless the question at issue is +very clear-cut and the pro and con positions are very sharply defined. + +It seems more than likely that many medical associations would quite +readily endorse such a bill as that drafted by Mr. Worthington and +described in the last chapter, if some one were to present it with a +speech emphasizing the need of the people to have reliable scientific +information and to be protected from all manner of quackery and +commercialism, and if nothing were said about how the bill leaves +the subject of contraception still a criminal indecency, and how +such a law could not possibly be enforced to give the protection it +is aimed to provide, or how it would establish a class privilege in +the exploitation of birth control information. On the other hand it +is just as likely that many medical associations would endorse the +Cummins-Vaile Bill, if it were presented as a means for rescuing +contraceptive science from all legal connection with indecency, and +giving to the medical profession the opportunity it has long needed, +to study and teach the control of conception, on the same basis that +it teaches all other subjects which relate to health, that is, with +freedom; and also an opportunity to put out of business, by critical +publicity, the vendors of worthless or harmful contraceptives, who are +now carrying on camouflaged or boot-legging operations. Indeed such +endorsement has already been made by a number of medical associations, +as well as by hundreds of well known individual physicians. + +While resolutions in general may usually be taken with a grain of salt, +it is also fair to assume that neither medical associations nor any +other groups of intelligent American citizens would naturally take +a stand against the principle of freedom in education, if they once +recognized the issue clearly. + +That there is a small percentage of the medical profession which is +animated by a mercenary motive in regard to the giving of contraceptive +instruction and would therefore stand for a “doctors only” bill must +be regretfully admitted, but with the cheerful guess that it is a very +small proportion. There is one leading obstetrician known to the writer +who protested against his wife’s attending a parlor meeting on birth +control, on the ground that “if you encourage that sort of thing, you +know our income will be cut in two.” Instances are not unknown too, of +physicians who have recommended a “doctors only” law, and who have +profiteered quite shockingly in the contraceptives which they sell at +present unlawfully to their patients. The most forthright instance +known to the writer was that of a physician who was very strenuous +in advocating a “doctors only” law, so much so that he was the means +of having that recommendation formulated officially by a local but +large and important medical association. In private conversation he +admitted all the reasons for a complete repeal of the restrictive +laws; he granted that the subject was not obscene, that ignorance and +half knowledge made wide-spread suffering and disaster in family life, +that people should be able to get reliable scientific instruction, and +get it quickly. Yet he stuck to the “doctors only” idea, in its most +narrow form, that is, that no information should be available except by +personal consultation with a doctor. He was fearful lest the repeal of +the Federal ban would produce “a flood of quackery.” When asked if he +did not have confidence that the medical profession would rise to the +occasion, and to educate the public as it ought to be educated on this +subject, just as it rose to the occasion when the war came and educated +both the soldiers and the public on the matter of venereal disease, his +answer was, “What do you take us for? We are not reformers. We are busy +men with our livings to earn.” He was unwilling for the public to have +a chance for quick education on this subject by means of authoritative +books and pamphlets, but insisted upon their having it exclusively +dependent upon the slow process of being informed one at a time by a +visit to a doctor’s office. The first consideration was that nothing +should lessen the doctor’s opportunity for earning his living. + +Contrasted with this attitude is that of physicians like Dr. Lawrence +Litchfield of Pittsburgh, former President of the Pennsylvania State +Medical Society, who spoke at the Hearings in Washington on the +Cummins-Vaile Bill, and whose remarks have been quoted in a previous +chapter. Representative similar opinions are the following: + + Dr. George Blumer, of New Haven, Conn.—“It is better to enlighten + people by education than by legislation. I do not feel as a matter of + principle that the regulation of birth control should be entirely in + the hands of physicians ... there are many cases where the problem is + not a medical one at all.” + + Dr. Jerome Cook of St. Louis.—“No distinction should be made between + this and other forms of medical knowledge, and no restriction should + be placed upon the spread of knowledge....” + + Dr. Alexander Forbes of Harvard Medical School.—“The one thing I + feel sure of is that the principle in the present law, classifying + contraceptive knowledge as obscenity, is essentially hypocritical and + unsound.” + + Dr. A. B. Emmons 2nd, of Harvard Medical School.—“Education rather + than water-tight legislation. Censorship of manufactured articles. + A few good popular articles of sound advice and vigorous warning + against dangers and quacks by leading medical authorities is about + all that can be done. I believe in leading rather than prohibiting.” + + Dr. Alma Arnold of New York.—“Enlightenment by education rather than + by new laws. We have too many laws now. Logic and education of the + individual must take the place of snoopery by appointed guardians.” + + Dr. Charles S. Bacon of Chicago. “Any attempt to limit the teaching + of contraception to a class will be, I think, useless. Worthless + drugs and appliances will probably disappear in the course of + time, because of disappointments resulting from their use. If laws + regulating the sale of poisons do not suffice, they should be + amended.” + + Dr. J. E. Wallin, Director of Clinic for Subnormal and Delinquent + Children, Miami University, Ohio.—“I am unalterably opposed to any + sort of monopoly limited to any particular type of practitioner ... + who would be in a position to extort unreasonable fees.” + + Dr. B. S. Oppenheimer, of Mt. Sinai Hospital, New York.—“No + restrictive laws would work, and the education of the public by the + medical profession is the only way to get bad methods suppressed and + good ones adopted.” + +It is noteworthy that those who stand for the “doctors only” idea in +legislation are on the whole remarkably unable or unwilling to state +their case in any way that is analogous to that of those who stand for +the principle of freedom of access to knowledge. Their reasons are +hypothetical rather than specific, and seem to be based upon expediency +rather than upon principle. For instance a “doctors only” physician was +invited to present that side of the argument at an open meeting of the +Voluntary Parenthood League, and the points made were these: that a +“doctors only” law would better safeguard the public, though no proofs +of the assertion were offered; that it would be more easily passed +by Congress, though that also was an unsubstantiated assertion, and +experience with “doctors only” bills in State legislatures certainly +does not back it up; and that it would receive more general endorsement +from the medical profession, which again was a supposition that has not +been borne out by facts. The final point made by this “doctors only” +proponent was the advice to get a limited measure through Congress +first, and then to make a later separate campaign to remove the subject +from the obscenity statutes. (It was promptly suggested that any one +who was willing to propose _two_ long hard campaigns on this project +instead of one should be made chairman of a committee to finance them!) + +Another of the “doctors only” physicians has explained that he takes +that stand for diplomatic purposes only, that he is really a firm +believer in the ideal of clearing this subject from connection with +obscenity, but because “it _sounds_ so safe” to say, “keep it in the +hands of the doctors,” he believes it better to work for that sort +of law, that it would “reassure the public more,” and that the chief +thing to do is to get “permission to circulate medical publications,” +explaining how that had “a nice professional sound,” which would +prevent alarm, but that “of course it would amount to about the same +thing as an open law, only the worried folks wouldn’t know it.” + +The Chairman of the New York Committee on Maternal Health, Dr. Robert +L. Dickinson, although he has given his written personal endorsement +of the principle of a clean repeal on which the Cummins-Vaile Bill is +based, has of late decided to accept as a working basis the “doctors +only” bill drawn by Mr. Worthington, and is endeavoring to get it +endorsed by national medical organizations, on the supposition that +this is as far as they would be willing to go. It is noteworthy in +this connection that the national medical organizations have not yet +been given a chance by their officers to turn down the endorsement of +a freedom bill. It would seem that the presentation of a limited bill +might better follow than precede action on a freedom bill, as being a +fairer treatment of the members of the organizations. If endorsement of +the freedom bill were squarely refused after full and open discussion +of its provisions, the proposal to endorse limited legislation might +logically follow. That the reverse action seems to be the policy of +some of the leaders is a reminder of the way the officers in the +women’s clubs and some of the welfare organizations have held back the +submission of any resolution to the members. + +In 1920 an effort was made to have a straight repeal resolution +presented to the next Convention of the American Medical Association. +Dr. Frederick R. Green, Secretary of the Council on Health and Public +Instruction, at that time wrote to a physician member of the Voluntary +Parenthood League, + + What is needed, I think, is not any positive legislation authorizing + physicians to teach the public proper scientific facts on this + subject, but rather the repeal of the needless legislation that has + been enacted. + +In referring to Comstock as the source of this needless legislation, he +said: + + Comstock was a fanatical social reformer who carried his views + regarding purity to a ridiculous extent. In fact it is only in late + years since Freud has shown the real workings of this type of mind, + that we are able to understand the reason for some of Comstock’s + efforts. + +A few months later the Director of the Voluntary Parenthood League and +a physician member of the National Council had a personal conference +with Dr. Green with the result that he agreed to submit as a part of +the tentative report of his Council on Health and Public Instruction a +resolution favoring the removal from the obscenity statutes of the ban +on contraceptive knowledge. If the five other members of the Council +should approve of including the resolution in the report, it would +then be presented to the Convention of the whole American Medical +Association, and if accepted as read would stand as the endorsement of +the Association. The resolution was worded as follows: + + _Whereas_, one of the primary necessities for family and therefore + for public health, is an intelligently determined interval between + pregnancies, to be secured by regulating the inception of life and + not by interfering with life after it starts, and + + _Whereas_, the prohibition of the circulation of information on the + control of conception should never have been included in Federal or + State “obscenity” laws, + + _Be It Resolved_, that the House of Delegates of the American Medical + Association recommends the removal of this prohibition from the + “obscenity” statutes, and + + _Be It Further Resolved_, that for the protection of the public + against unhygienic information, new separate statutes be enacted, + providing that all information circulated and all materials sold for + the purpose of controlling conception, must bear specific endorsement + by duly licensed physicians.” + +For some unexplained reason the resolution disappeared from +consideration. The only indication of a reason was one which hardly +seems to be sufficient to be the whole cause, namely, that owing to +a delay in printing the tentative report, the members of the Council +on Health and Public Instruction received letters from interested +physician members of the Voluntary Parenthood League, urging the +adoption of the resolution, previous to their receiving from the +Secretary of the Council copies of the tentative report containing the +resolution. It seems unlikely that an unwitting mishap of this sort +would be the only thing which prevented procedure, if procedure was +what was wanted. Judging by letters from the interviews with members of +the Council, there was general hospitality to the idea embodied in the +resolution. + +When Dr. Litchfield spoke at the second Hearing on the Cummins-Vaile +Bill in May, 1924, it will be remembered that he replied to Congressman +Hersey’s question as to “why have you not succeeded in getting them +(the American Medical Association) to adopt this?” by saying, + + The medical society has been very busy, but they will do this + eventually. The President of the American Medical Association told + me so. I met him in conference at Atlantic City, and he said all the + members were in favor of birth control, and it was only a question of + time when we should have it. I am not authorized to give his name, + but he stands as the first man in American medicine. + +When Dr. William Allen Pusey became President of the American Medical +Association, he made a very forthright appeal for the utilization of +contraceptive knowledge, as imperative for health and social welfare, +and he is opposed to the retention of the Comstock laws. In his address +at the last International Neo-Malthusian Conference, in New York, he +said: + + The first prerequisite to satisfactory study of any subject is + free access to the knowledge of it, and that necessitates the + _unrestricted_ interchange of experience and information among + scientific men. That is not allowed now upon the subject of methods + of birth control. We are not in a position where we can freely + determine the merits and demerits of the subject. It is not that + methods of birth control are not discussed and practiced; they + are, everywhere. But the facts—and the fiction—are passed from + individual to individual, ignorantly, crudely, unsatisfactorily + and in ways that are often vicious. It is only scientific decent + discussion of the subject that is prevented, the sort of discussion + that is necessary and can only be had, when it is _untrammeled_ among + self-respecting men, who can bring to its consideration knowledge and + wisdom.... To see that this is brought about _as quickly as possible_ + is a thing worthy of the vigorous efforts in that direction that are + now being made. + + (The italics are ours.) + +The American Institute of Homeopathy, the national organization of the +Homeopathic School of Medicine, has already passed a resolution in +favor of the straight, clean repeal as provided in the Cummins-Vaile +Bill. Several State and local medical associations have done likewise. +And so far as the writer knows, there have been only two instances +where a medical association has gone on record in favor of “doctors +only” legislation. One was the Ohio State Medical Association, the +other the New York City Academy of Medicine. + +The latter organization forms a rather striking instance of the way +forceful leadership and minority opinions can be made to dominate a +membership which is either passive or holds other views. Early in 1920, +the Public Health Committee of the Academy was asked to endorse the +straight repeal measure, which later became the Cummins-Kissel Bill. +The Committee had twenty-nine members; the question was referred to +a sub-committee of five, which presently reported against endorsing +the bill, and the report was accepted by the Health Committee. The +subcommittee did not approve, + + On the grounds that such amendment would remove every obstacle to + the indiscriminate distribution of information relating to and + advertisements of methods for prevention of conception, both from + lay and professional sources; but we are in favor of amending the + existing law in such a way that it would contain the principle, that + nothing in the obscenity law shall apply to duly licensed physicians, + licensed dispensaries, and to the public health authorities in + connection with the discharge of their respective duties in + protecting the health of patients and of the community. + +It was known that there were many members of the Academy who were not +accurately represented by this decision, and who did want the subject +removed from the obscenity statutes, instead of merely permitting +physicians to infringe the law without being subject to penalty; indeed +some of the more prominent of the twenty-nine members of the Health +Committee had previously signed the statement of endorsement which +constituted the platform of the Voluntary Parenthood League, and which +contains the following paragraphs: + + We desire to help in supporting a body of public opinion, which will + lead to so amending the Federal and State laws that it will not be + a criminal offense to give out information on the subject of birth + control, and that such information will not be classed with obscenity + and indecency. + + We believe that the question as to whether or not, and when a + woman should have a child is not a question for physicians to + decide—except when a woman’s life is endangered—or for the clergy + or for the State legislators to decide, but a question for the + individual family concerned to decide. + +For these reasons the Health Committee was asked to reconsider, but +declined, although some of the members as individuals expressed +sympathy with the broader aims of the freedom legislation. + +A few months later, the new protective clause of the Cummins-Vaile +Bill, or at least the fore-runner of it, was formulated. This was to +provide a separate statute, quite apart from the obscenity sections, to +the effect that “no printed information as to methods of preventing +conception and no ingredients compounded for the purpose of preventing +conception shall be transportable through the mails or by any other +public carrier in the United States except such as bear endorsement +by duly licensed physicians or public health authorities.” It was +thought by the officers of the Voluntary Parenthood League that such an +addition to the bill would meet the views of those who wanted medical +restrictions for the sake of protection to the public, at the same time +that it was not class or privilege legislation, and it was consistent +with the main part of the bill by which the subject was removed from +the obscenity laws. So once more the Health Committee of the Academy +of Medicine was asked to consider. The answer this time was that the +Secretary did not “believe that the Committee would care to take up +the matter of amendments anew.” In conversation later the secretary +said that it was not the function of the Committee “to determine exact +legal phraseology, but merely to express broad principles” which they +had sufficiently done previously, when they adopted the report of their +sub-committee. He did, however, express his own interest in the fact +that the League seemed to have “come around” to the view of the Academy +Committee. He evidently did not grasp the wide difference in principle +and see that the Academy Committee recommendation would establish a +medical monopoly of the distribution of information, while the new +protective section proposed by the League would secure medical sanction +for methods, but without the possibility of monopoly. + +In 1921, when the first “doctors only” bill was introduced into the New +York legislature, as result of Mrs. Sanger’s effort, the newspapers +and the Birth Control Review announced that the Health Committee of +the Academy had endorsed the bill, but it was subsequently denied in +the press. The original stand against freedom and for privilege and +for retaining the obscenity classification seems to be the status quo, +officially; but many of the members are also members of the Voluntary +Parenthood League and are hearty endorsers of the freedom bill. And +what is more significant still, is that many of the members of the +Academy do not know what stand their own organization has taken on this +legislation, and would be at a loss to define the difference between +the freedom bill and the “doctors only” sort of bill. + +Such inattention to organization policy is by no means peculiar to this +one medical society. It seems to be a very general characteristic of +all sorts of organizations, including even those for birth control. +People join organizations because of the general object, and their +own general interest in that object, but that is not at all the same +thing as taking careful note of the means propounded for achieving +that object. So it happens that a few active members like chairmen of +sub-committees can commit whole organizations to a policy that would +never be adopted if the individual members had all the facts in hand +and took the time to weigh the merits of differing propositions. And +when once a decision has been officially adopted, it is considerably +difficult to have it changed. Esprit de corps is often called in to +back up a decision that has been adopted by the whole body without +investigation upon the recommendation of a very small minority, with +the result that the latent wisdom of the membership at large does not +function on the question at all. + +In the instance of the New York Academy of Medicine, just described, +the workings of this sort of esprit-de-corps conscience were not +without a humorous side. The several members of the Health Committee +who had previously signed an endorsement of the aim to remove the ban +on birth control information from the obscenity laws, found themselves +committed, by the adoption of the sub-committee report, to the policy +of leaving the subject in the obscenity laws. Moreover the endorsement +they had signed had explicitly averred that “the question as to whether +or not or when a woman should have a child is not for physicians to +decide,” yet by the acceptance of the sub-committee report, they +were committed to the idea of leaving the giving of contraceptive +information to the discretion of physicians and health authorities. +Loyalty to their organization superseded loyalty to their own judgment, +and they proceeded to request the Voluntary Parenthood League not +to quote them as endorsers. Some of them were careful to explain in +private that they had not altered their views at all, but that it was +not best for them to be quoted as having them or as having had them. +Their request was acceded to; their names were omitted from subsequent +lists of endorsers, but obviously they could not be withdrawn from +lists circulated previously. + +All this occurred five years ago. Since that time a marked change +has seemed evident in the medical profession as a whole. A much more +keen feeling of responsibility for sound legislation has developed, +especially within the last year. In the late autumn of 1924 some +leading doctors and lawyers had conferences on the subject, and +analyzed with care all the proposed sorts of legislation which had been +devised to protect the public from harmful contraceptives and to render +access to sound scientific information lawful and equitable. These +conferences were called to determine whether wording of the protective +section of the Cummins-Vaile Bill could be improved. One of them was +held in Chicago, and one in New York. Dr. Pusey was present at the +former. + +The consensus of opinion at both conferences was against all “doctors +only” types of legislation and for straight freedom for science. +The doctors as a whole were of the opinion that an unencumbered +clean repeal of the contraceptive prohibition laws would give the +medical profession a larger chance to serve the public well than +any other proposed measure. The lawyers emphasized the fact that no +possible statutes can guarantee sound instruction for the public, +that only education can approximate that result, and law can not and +must not prescribe education. The conferences even advised against +the protective section of the Cummins-Vaile Bill, as inadequate and +sure to be meaningless in many instances of its application. There +was general opinion that the existing Food and Drug Act will apply +effectively to suppress fraudulent contraceptives, when the ban against +the circulation of contraceptives is removed. These conferences were +reported in the Birth Control Herald, from which the following excerpts +giving salient points are taken. + + The “doctors only” type of legislation heretofore has had sincere + approval from a considerable number of physicians who were + unquestionably beyond the appeal of mere money making, in the giving + of contraceptive instructions. They were bent upon having good + methods taught, knowing full well how harmful and fraudulent methods + are being secretly and illegally circulated at present. + + But now, while there is far more medical interest and conscience + than ever before regarding the need for authentic instruction, there + is also a very widespread conclusion that the so-called “doctors + only” type of legislation would be not only futile as a means of + accomplishing what the best doctors most want, but that it would + actually stand in the way of their giving to the public the service + they would like to render. + + The doctors have buckled down to considering the question of + legislation as never before, and in co-operation with some of the + best lawyers, the conclusion has been reached that the simple clean + repeal of the words “preventing conception” is the best and biggest + thing to be done, and that the Cummins-Vaile Bill should consist of + just that and nothing more. + + * * * * * + + The physicians present at the Chicago conference were Dr. William + Allen Pusey, President of the American Medical Association, Dr. + Herman Adler, Dr. Charles Bacon, Dr. Raphael Yarros, Dr. John Favill, + President of the Mississippi Branch of the American Birth Control + League, and Dr. Clara Davis, head of the Pediatric Division of the + Mt. Sinai Hospital in Cleveland. + + Discussion was informal, but to the point. The boiled down sense of + the meeting was in favor of the straight repeal to remove the subject + from the obscenity statutes, leaving the protection of the public to + education by the medical profession, and the Food and Drug Act. + + All the chief propositions for securing substantial protection by + legislation were taken up and found wanting. They were turned down as + illusive and inadequate, and even as stumbling blocks to progress. + + * * * * * + + Dr. Pusey, whose forthright views on birth control became widely + known when he discussed the subject in his presidential address + before the Convention of the A. M. A. last June, greatly aided + clear thinking on the question of legislation. He said the main + point in the Cummins-Vaile Bill was the chief thing to accomplish, + that is, the removal of the subject from the obscenity laws. He did + not wish to say definitely that no sort of protective legislation + was a possibility, for he had not had the time to consider all the + alternatives to the vanishing point. + + But he did lay down some general principles. He said the chief + thing to remember is that all sorts of miserable, inadequate and + even dangerous contraceptive information is going the rounds _now_, + in spite of the absolutely sweeping prohibition of the Comstock + law; that no real attempt is being made to stop it legally, and + that no such attempt will ever be made. If there is such wholesale + law-breaking now, it stands to reason that no sort of “doctors only” + laws could be enforced. They would only serve to deceive the public. + He said great care must be taken to avoid any more “silly laws” or + laws that can not be enforced. “We have too many of those already.” + + * * * * * + + Members of the Executive Committee and a representative group of + doctors and lawyers, combined their efforts, in person and by letter + at the Headquarters of the Voluntary Parenthood League, to solve the + question of protective legislation. + + * * * * * + + After discussion from all angles and earnest effort for the best, + the conference voted to reaffirm the main point of the Cummins-Vaile + Bill, i.e., the clean removal of the words “preventing conception” + from the five Federal statutes where it occurs; and to recommend the + withdrawal of the present five-doctor certification section; and to + appoint a committee of three to re-investigate the present Food and + Drug Act, with power to draft an amendment specifically covering + contraceptives, if such were deemed necessary. The Committee chosen + was Mr. Engelhard, Chairman, Dr. D. George Fournad and Mrs. Dennett, + thus representing the legal and medical professions and the League. + + * * * * * + + The Committee appointed by the Conference worked at once, and + formulated a report based on a thorough investigation of the powers + of the Food and Drug Act. The finding coincides with a previous legal + opinion, written last year by Clarence Lewis, of New York, a lawyer + who was formerly on the V. P. L. Executive Committee. The opinion is + that there is ample power now in the Food and Drug Act to suppress + all fraudulent contraceptives which contain drugs or chemicals. + + _The pertinent parts of this Act are given in Appendix No. 14._ + + * * * * * + + The Committee points out that while the Food and Drug Act can take + care of fraud in drugs and compounds, neither it, nor any other + legislation, can efficaciously apply to contraceptives as regards + their harmlessness or harmfulness. For that depends upon the case. + Some drugs are harmful if used in some ways, but not so in others. So + also contraceptives which are not drugs or chemicals or compounds, + but are articles. Their usefulness or harmfulness depends largely + upon the conditions of their use. For discrimination as to methods + in these particulars, the public would be dependent upon getting + instructions from good scientific sources, just as they are in regard + to any other matters of hygiene. + + It is not the business of the law to prescribe either methods in + hygiene or to prescribe the sources from which the public shall + receive instruction in hygiene. But it can and does protect the + public from flagrant profiteering and fraud, in drugs and the like, + by means of the Food and Drug Act. + + * * * * * + + Only one physician urged the old plea for “doctors only” legislation. + The Conference was heartily with her in wanting people to have only + the best instruction and to have it from competent doctors, but no + restrictive legislation will achieve that goal. Proposals of this + sort thus far have been open to the objection of being either class + privilege, unenforceable, and inadequate even as a means of making + knowledge available for the doctors themselves. She conceded that she + could not herself devise any “doctors only” plan that would not be + special privilege legislation. The next day she telephoned that she + was convinced that education would have to be the main dependence. + + This doctor mentioned having consulted an English medical journal + containing elaborate data on contraceptives, in the library of one + of the New York Medical Societies. “But it was illegally put there,” + said the conference members almost in unison. The law forbids all + importation. “Medical boot-legging,” added the chairman. + +Letters were read from distant physicians, some of whose opinions have +already been quoted on page 223. + + Dr. Udo J. Wile, Professor of Dermatology and Syphilology, University + of Michigan, wrote, “I trust nothing will come out of the conference + which will confuse the main issue, namely to get the Cummins-Vaile + Bill passed. It appears to me that the matter under consideration + (protective legislation) is of minor importance. + + “James F. Morton (lawyer) said that all the ‘doctors only’ laws would + be unconstitutional anyhow, and that the only legislative choice lies + between the present abominable, unenforced and unenforceable laws and + complete freedom of access to knowledge.” + +Below is given a résumé of all the chief legislative proposals to +protect the public from harmful and fraudulent contraceptives, and +the reasons why they were turned down by the conference, and were not +considered as material to be recommended for the Cummins-Vaile Bill. + + + CERTIFICATION OF CONTRACEPTIVES BY FIVE LICENSED PHYSICIANS + + The protective section as it now stands in the Cummins-Vaile Bill + reads as follows: + + “The transportation by mail or by any public carrier in the United + States or in territory subject to the jurisdiction thereof, of + information respecting the means by which conception may be + prevented, or of the means of preventing conception, is hereby + prohibited except as to such information or such means as shall + be certified by not less than five graduate physicians lawfully + engaged in the practice of medicine to be not injurious to life or + health.” + + The doctors themselves consider this a weak and unreliable safeguard + because, unfortunately, medical opinions can be too easily secured. + The certification might therefore in many instances be meaningless. + + Dr. W. A. Pusey, President of the American Medical Association, in + this connection said: + + “We are only human. So large a body as the medical profession would + be bound to contain some undesirables.” + + + CERTIFICATION BY BOARDS OF HEALTH + + (Suggested by Sen. Spencer and others.) + + Government health officials are not, as such, necessarily well + informed as to the merits or demerits of contraceptives. A few might + happen to have valuable judgment, but merely being a public official + would be no guarantee. + + There is wide-spread disapproval of anything that smacks of “State + medicine” or governmental administration of the practice of medicine. + + + CERTIFICATION BY CITY HEALTH COMMISSIONERS + + (Suggested by one of them.) + + He admitted, however, that he had very little reliable information + on this subject. Although a physician, he turned to a layman + (the Director of the V. P. L.) for advice as to the best sources + for knowledge about contraceptive methods. If one of our best + known Health Commissioners could be but a beginner in this study, + their group would hardly seem the right one to be given exclusive + jurisdiction as to the circulation of contraceptives. + + + CONTRACEPTIVES AUTHORIZED BY MEDICAL BOARDS + + (Suggested tentatively by Sen. Cummins and others.) + + This would be class legislation which is against American principles + and would rouse the antagonism of scientists who do not belong to the + medical associations, whose Boards would be given such jurisdiction. + + + CERTIFICATION BY THE DEPARTMENT OF MEDICAL AND CHEMICAL RESEARCH OF + THE NATIONAL PUBLIC HEALTH SERVICE + + (Suggested at the Chicago Physicians’ Conference.) + + This received less opposition than any other proposition to vest + authority in any group, but it was subject to more or less the same + objection that held in regard to the proposal to vest authority in + public officials or medical Boards. + + + MARGARET SANGER’S PROPOSED “DOCTORS ONLY” LEGISLATION + + This is suggested Federal legislation by which the Obscenity Statutes + would not apply to doctors giving contraceptive instructions or + prescriptions to other physicians or to their bona fide patients, nor + to manufacturers and dealers in drugs who execute the physician’s + prescriptions. This proposition was disapproved on several counts. + + _First_, because it leaves the subject of contraceptive science + still classed with obscenity. + + _Second_, it is merely a permit to physicians to do what would be a + crime under the obscenity law, for anyone else to do. + + _Third_, it would establish a medical economic monopoly of the + circulation of contraceptive knowledge. + + _Fourth_, it would substantially deprive the medical profession + of the very opportunity it purports to provide, namely, to study + contraceptive science for the benefit of the public and the + perfection of methods. + + _Fifth_, it does not make medical publishing on contraceptives any + more practicable than it is under the present law. + + _Sixth_, it would not permit the importation of scientific + contraceptive data from abroad. + +The conference took place before Mrs. Sanger had abandoned this form +of “doctors only” bill in favor of the form subsequently drafted by +Mr. Worthington, as described in the previous chapter. Some of these +criticisms are not applicable to the Worthington draft, but the first +and second ones do apply. + + Testing out all these propositions in the light of Dr. Pusey’s + warning that the United States should avoid any more “silly” laws on + this subject, all but one are open to further objection in the ground + of wholesale unenforceability. The present protective section of the + Cummins-Vaile Bill is the least unenforceable, with its provision for + certification of methods by at least five licensed physicians. Under + that provision there would be relatively little temptation to evade + the law. But all the others would be more or less unenforceable, the + Sanger proposition most of all. + +Out of all the dust of discussion, the straight repeal emerges clear +and clean. The doctors said it was the only practicable legislation and +the lawyers that it was the only sound legislation. + +It has been noticeable that physicians in discussing birth control +legislation if they have leaned at all toward laws to keep the +imparting of information exclusively in medical hands, have done so +with a view to safeguarding the people from harmful or fraudulent +methods, and have not urged it as a means for regulating morals. But +laymen, notably club women, quite frequently have jumped at a hasty and +thoughtless conclusion that somehow if the knowledge is kept by law +in the hands of the doctors only, and is given out by them according +to their discretion, it will be kept from reaching those who want to +utilize it in illicit relationships. This assumption is the flimsiest +kind of self-deception. The notion that doctors as a whole can see to +it that they give instruction only where the use of it will stand the +highest test of ethics and wisdom is nonsense. The function of the +medical profession is to cure and prevent disease. It is not to act +as arbiter of morals and ethics. Any pretense that it should do so is +built on shifting sand. + +It is utterly unfair to the doctors to expect them to serve in any +such capacity, and to propose laws that would impose upon them any +such responsibility. Occasionally, of course, the doctor is not only +physician but friend to his patient, and is therefore in a position +to give moral advice without intrusion, but that relationship is +incidental to his profession and not inherent in it. Laws that would +try to empower physicians to act as inquisitors into the private +lives of their patients and to be responsible for the ethical use +of contraceptive instructions, would be an imposition both upon the +physicians and upon the people. + +There is no evidence that the profession wants any such spurious +responsibility thrust upon it. Medical men in general are sufficiently +high grade human beings to have a high regard for morals, and as +individuals they can make their influence felt, but that is an entirely +different thing from foisting upon them as a class a law-imposed task +of managing other people’s private lives. Legislators, citizens and +physicians alike must recognize that the source of moral stability is +individual character, and that no repressive or paternalistic laws can +ever produce the desired results. + +There are many indications that medical men have an instinct for +protecting the status of the profession as the natural source of +scientific information on this subject, and it is not exceptional to +find physicians who lean toward favoring a “doctors only” bill as +a recognition of medical prestige, but this impulse is not at all +synonymous with a mercenary desire to have exclusive control of the +dissemination of knowledge. They quite naturally want credit for +devising good contraceptive methods, but relatively few are interested +to retain any monopolistic advantage in the utilization of them. The +writer recalls a conversation with a physician who, after some years +of experiment, had devised an extremely simple and very inexpensive +contraceptive. His rather inexplicable reservations in talking about +it led to the frank inquiry as to whether he planned to make money by +controlling the sale of his compound. His answer was a most emphatic +“No, certainly not.” But he added, “I do, however, want credit for it. +I have worked on this thing for five years, and have proved that it +is simple, harmless, efficacious and cheap. It has solved the problem +for my own patients and will do the same for thousands of others. All +I want is that the formula shall stand as a part of my professional +record.” He solidly approves the freedom idea in legislation. + + + + +CHAPTER II + +WHAT DO THE PEOPLE WANT? + + _People’s first individual want is reliable contraceptive + information: Strong probability that people prefer decent enforceable + laws to those which are dirty and unenforceable: Choice can not be + put up to United States town-meeting fashion: Reader asked to make + own choice by elimination of what he does not want: Do you consider + contraception indecent? Should laws penalize the decent majority to + reach the depraved few? Should the control of conception itself be + made a criminal act by law? Abstinence as method of birth control has + no legal standing in the U. S.: Do you want unenforceable laws? Can + “doctors only” laws accomplish their own aims? Are they enforceable? + Do all contraceptives require personal medical instruction? + Proponents of “doctors only” bill admit they do not: English birth + control organization disapproves “doctors only” stand: Best known + English authority on birth control is biologist, not M.D.: Are laws + to control improper advertising of contraceptives practicable? + Average citizen too occupied to analyze legislative proposals: + Proponents of limited legislation backward about explaining their + bills to the public: They refuse to debate openly or confer privately + with the proponents of the freedom bill._ + + +What do the people want? No doubt the first conscious want of most +people so far as birth control is concerned, is simple reliable +information about methods. It is largely their own needs and wants +which have made people pay attention to and develop the birth control +movement, or realize just how the laws forbid their getting what they +want. On the latter point they are apt to be much more vague than on +the former. Some people, and unfortunately they are numerous, having +managed to get what they want in spite of the laws, are prone to +forget the plight of others who are not sophisticated enough or lucky +enough to be successful law-breakers, and thus they feel little direct +responsibility about getting the laws revamped so that they shall +not stand in the way of any one who needs access to the information. +But on the whole, these careless and self-centered people would, if +they stopped to think about it, agree with those who have a heart for +others and are public spirited, and they too would prefer decent, +just and practicable laws to those which are dirty-minded, unjust and +unenforceable. + +Suppose a real conference of the whole people were possible, and +they could put their minds on deciding what laws they wanted on this +subject, after looking over the statutes we have now, and after +scrutinizing all the proposals that have been made for revising them, +what sort of a decision would they be likely to make? What would their +conclusion be, if left entirely to their own devices, with no “experts” +to tell them what to say, and with the whole responsibility on their +own shoulders? They would doubtless be deficient in putting their +ideas into legal phraseology—the technician might have to be called +on for that; but would they be likely to vote any sort of suppression +or restrictions upon themselves? Is there any precedent in history for +a body of people ever doing that? Have people ever united to express +their lack of faith in themselves and said, “Let us have laws to keep +us from knowing this and that, as we can not trust ourselves to use the +knowledge rightly”? On the contrary, whenever people unite in demands +_for themselves_, are those demands not always for freedom rather than +for repression? + +But since a United States town-meeting on this subject is a wild +hypothesis, perhaps the next best thing would be for the reader to look +upon himself as the one person upon whom the answer to this question +rested—with the responsible knowledge that whatever he really wanted +would forthwith become the law of the land; and realizing also that +what he basically wants is, probably ten to one, what most everybody +else wants too. + +The simplest way to reach a conclusion about this law question would +seem to be by elimination. First then—do you want the laws related +to birth control to remain as they are now? Do you approve the legal +company the subject is in—under such law classifications as “Obscene +literature,” “Indecent articles,” and entangled with such adjectives as +“lewd,” “lascivious,” “filthy,” and “immoral”? No? You wish it rescued? +Then the bill to repeal those two words “preventing conception” from +all the obscenity statutes is what you want. + +But wait—it may not be so simple as that. How about those who do feel +that the control of conception is more or less indecent, the people +who have somewhat Comstocky minds, to whom _any_ reminder of sex is a +danger? Are they anything like a majority. If so, would you want to +let the laws remain as they are in deference to their feelings? Though +no one can prove it, they are probably nothing like a majority, but +even if they were, should the normal, clean-minded people be penalized +for their sake? And further, is it the proper function of government +to maintain laws to protect people’s _feelings_ about sex or anything +else? Those who want to may feel as indecent as they please about +the control of conception. They do not need laws to help them do it. +The function of law is to protect people’s rights. As no one’s mere +feelings are an intrusion upon another’s rights, it is no concern of +the law to deal with them. The laws as they stand now are a gratuitous +insult to the great mass of the people who do not consider the control +of conception indecent. Do you want that legal insult maintained? + +Then how about those whose chief interest in the control of conception +is in connection with actual sex depravity and perversion and who wish +the information for that purpose? Do you want the obscenity laws to +remain as they are, for the sake of trying to make them apply to those +people? Hardly, because they are undoubtedly a small minority anyway, +and they are quite clever enough to break the laws successfully, +besides; and further, any circulation of contraceptive information +which is put in indecent language or involved with inducements for sex +depravity would be just as subject to prosecution under the obscenity +laws _after_ the removal of the words “preventing conception” as it +is now. The indictment would be for _obscenity_, and that can cover +improper contraceptive information or anything else that the judge or +jury in a given case choose to make it cover. Obscenity, throughout +the whole history of law in modern times has been an extraordinarily +pliable term. + +Is there then any propriety or justice in keeping this subject per se, +legally enmeshed with penalized obscenity? If you agree that there is +none and if you want it removed from the obscenity laws, what next? + +Do you, by any chance, think that the control of conception regardless +of any connection with obscenity, should _itself be declared by law +to be a criminal act_? This is a crucial question absurd as it may +sound. There are many people who believe that the scientific control +of parenthood is wrong, though not necessarily obscene. This has been +the teaching of the Catholic Church, and on this ground Catholics +have opposed the repeal of the legal ban on knowledge concerning it. +They have not asked Congress to amend the Comstock law by making +it a criminal act to control conception. But is not this the only +logical thing for them to do, if they presume to, ask the government +to continue to deny people access to the knowledge on the ground that +the utilization of the knowledge is wrong? Ought not they and any +others who are like-minded, to get themselves together and tackle this +question straight from the shoulder in Congress? If they consider it +at all appropriate to appear at a Hearing and urge Congress to try to +keep the people from knowing about this wrong thing, is it not more +fitting to ask for laws which will forbid the thing itself, instead +of knowledge about the thing? They can perfectly well proceed on this +course if they wish to undertake it. It is noteworthy that thus far, +none of them have done so. No one has gone to Congress and pointed with +pride to that unique statute in Connecticut, the only one of its sort +in the world—which makes it a crime to control conception—and asked +to have a Federal law of the same sort enacted. But if the Catholics +and what few other opponents there are, do not wish to undertake this +task, and if they persist in asking for laws to prevent others from +learning how to do what they—the Catholics, et al., consider wrong, +they will be treading upon ground which may menace the maintenance of +their own liberty to teach and preach and practice what they believe +to be right. The tables are likely to be turned upon them, so that +they will have to fight for the same sort of liberty which they now +seek to deny to others. Indeed this is what did happen in the case of +the Oregon School law, which would be in operation today if the United +States Supreme Court had not declared it unconstitutional. (Appendix +No. 15 gives further information on this subject.) + +In getting at an answer to the question as to what sort of laws are +really wanted, it clears the air considerably to get rid of this point +about the distinction between a law which prohibits an act and a law +which prohibits _information about an act which in itself is perfectly +lawful_. The latter is the sort of law we now have, and it is not good +law either for those who believe in the control of conception or for +those who do not. Both groups should join to repeal it. And then those +who wish to have their belief that birth control is wrong incorporated +into the law of the land would have an open field in which to make the +effort. That they would fail is a foregone conclusion, and they know +it of course, which no doubt accounts for their rash insistence on the +retention of the present law. + +The next point to eliminate is that in regard to the application of the +present law to the _one method_ of birth control which is sanctioned by +the Catholics and the few others who deem the utilization of scientific +knowledge an affront to God or nature, namely, abstinence from sex +relations. The writer has a letter from Rev. John A. Ryan, Director +of the National Catholic Welfare Council in which he says, “There is +no question of the lawfulness of birth restriction through abstinence +from the relations which result in conception.” This assertion has been +repeatedly made by other opponents, but that it is a mistaken assertion +was pointed out by Congressman Vaile and by Prof. Roswell Johnson at +the Hearings on the Cummins-Vaile Bill. Mr. Vaile said: “If abstinence +from the sexual relation were practiced, either spouse could get a +divorce.” Abstinence itself is not sanctioned by law. + +According to common law precedent, the wife gives her “services” to her +husband in exchange for her “necessaries.” “Services” are interpreted +to mean household services and “consortium,” or sex-relations. +“Necessaries” are interpreted to mean food, clothes and shelter. + +The law does not sanction a wife’s withholding her “services,” either +household or sexual. If she does, it is deemed desertion, and in many +States desertion is a ground for divorce. + +Thus it seems that abstinence is not only illegal, because it is a +method of birth control, the giving of information about which is +prohibited by law, but it is also illegal because it is withholding +the “services” which a wife is by law bound to give in return for her +“necessaries.” + +In other words, so far as the law is concerned, there is no room for +abstinence. It follows therefore that the only sort of family which is +_legally_ approved in these United States is that in which there are as +many children as it is physically possible for the parents to produce. +This legal situation constitutes a downright poser for the so-called +“purists” who advocate the abstinence of marital sex relations except +for procreation. + +For abstinence is one method of birth-control. It certainly prevents +conception. + +To teach any method for the prevention of conception is prohibited by +law throughout the United States. Yet the “purists” teach their method. + +Therefore the “purists” are guilty of breaking the law. Query: Why +are they not prosecuted? This question then becomes a poser for the +government. Silence has been the only answer. + +This leads to the next point to be cleared away, in the process of +finding out what laws are really wanted or what ones it is worth while +to want; that is, as to enforceability. Clearly the present laws are +not enforced. The government has not the remotest idea of trying to +enforce them. And if it tried, it would fail. It might mean jailing at +least half the population. It simply can not be done. The knowledge +is circulating whether or no. The cat is out of the bag, and it is +quite useless to wave the empty bag any longer, as if somehow the cat +could be persuaded back. Better cast the old bag aside, as it is full +of holes anyway, and let the cat be given a decent home, instead of +being obliged to skulk furtively in alleys and eat from garbage pails. +Moreover it is a cat that has not only the proverbial nine lives, but +more nearly ninety million lives. It can not be caught or killed, much +less bagged. Do you, or does anybody really want unenforceable laws? +The question answers itself. + +If the principle of enforceability is a prerequisite for law, and +if the present law is abandoned because it does not live up to that +principle, is anything more needed than merely to put the old law +in the waste basket, in other words, just to remove those two words +“preventing conception” from all the obscenity statutes in which +they occur? Is any further legislation needed? And if so, is there +any sort which, first of all, meets this fundamental requirement of +enforceability, and which also will achieve the ends for which it is +desired? And if those ends are not achievable by laws which can be +enforced, then they will have to be achieved, will they not, by some +other agency than law? + +The two ends to be achieved for which other legislation has been +proposed are, first, that only authoritative scientific contraceptive +information shall be given to the people, and second, that all +information on the subject shall be kept away, so far as may be +possible from those who would misuse it, or who might be tempted +to misuse it, so that immorality and depravity may not be thereby +increased. + +Suppose, for the moment, that you feel so strongly about the +desirability of both those ends that you are inclined to favor any +legislation which is aimed to achieve them. Then bearing in mind the +basic requirements of enforceability and efficacy, you scan with a +fresh eye and a responsible spirit the legislation which has been +proposed. You find in it two principles, one that all contraceptive +information and means which are circulated shall bear authoritative +medical certification that they be “not injurious to life or +health,” that is, the certification shall be by lawfully practicing +physicians; the other principle, that contraceptive information may +lawfully emanate only from a certain class of the people, the medical +profession, and be given only to people who qualify in certain ways, +that is, those who are physicians or those who receive it personally +from physicians as “bona fide” patients of the same, and that +contraceptive means may be sold only to those who personally present a +physician’s written prescription for the same. + +These two principles you find are very far apart. One requires medical +sanction for methods, as somewhat of a protection to the public +against harmful or fraudulent contraceptives, and while it by no means +guarantees wholly satisfactory protection, as it would be subject to +the possible inadequacies of the certifying physicians, it would be +at least enforceable, and it establishes untrammelled freedom in the +access to information and the securing of means. + +The other is class legislation, and establishes a monopolistic, +monetary privilege for physicians in the dispensing of information and +an impracticable restriction upon those who sell contraceptive means: +in so doing it by no means guarantees protection against harmful or +inadequate contraceptives, as it would protect only to the extent that +individual physicians were competent and conscientious, and it would +be even less enforceable than our present law. For if information +now leaks through the bars of the present law to a very considerable +extent, it stands to reason that the leakage would be greatly increased +if the bars of the law are lessened at all, and if the bars are placed +very far apart as they would be by the latest “doctors only” bill +proposed (the Worthington draft as given on page 212) the leakage would +be so great as to reduce the efficacy of the bars to the vanishing +point. It would be patently absurd to expect such a sieve-like law to +allow all the worthy people to get information and to keep it away from +all the unworthy ones, or even any tiny proportion of the unworthy ones. + +So, if the final effect of this last proposed “doctors only” bill would +be about the same as the freedom bill, so far as access to information +is concerned, why go all round Robin Hood’s barn to achieve it, instead +of doing it directly and simply? Why try to fool oneself or anybody +else into thinking that any law can possibly be devised that will +allow many millions of people to learn certain facts, and which will +at the same time keep those facts a profound secret from the balance +of the people? Does not such a proposition seem to be the outcome of +mental processes somewhat akin to those of the man who cut two holes +in the barn door, a big one for the old cat and a little one for the +kitten? + +Glance back to the changes in limited legislation which have been +proposed since 1881, when the first one appeared, long before the +modern birth control movement. It was in New York State, and it +permitted doctors to give any instructions (including by inference +contraceptive instruction) to “cure or prevent disease.” In 1919 began +the rapid succession of limited bills by which some of the legal bars +were to be removed. First doctors and nurses were to be allowed to give +information. Then the bars were thickened by eliminating the nurses, +leaving the doctors in sole possession of the special privilege. Then +to thicken the bars still further, the doctors could give it only to +the married or to those having a license to marry. Then came the first +Federal “doctors only” proposition, by which doctors could inform +other doctors and their “bona fide” patients, and dealers could fill +contraceptive prescriptions from doctors; but no publications or +importation of publications were to be allowed. Then, as the force of +criticism began to be felt, and the Cummins-Vaile Bill progressed to +the point of being reported out by the Senate Judiciary Sub-Committee +in Congress, the bars began to be thinned out again, and in 1925 the +Worthington draft appeared, which would permit doctors to inform +each other and their patients, and allow dealers to fill physicians’ +prescriptions, and would also permit medical and “scientific” +publications, and “reprints” from the same. You find that these +legislative proposals have swung all the way from a tight “doctors +only” bill to a bill that is framed in the language of a “doctors only” +bill but which actually would not function as such. + +The point has almost been reached when, by the removal of bar after +bar in the “doctors only” type of bill, one might say that “things +equal to the same thing are equal to each other,” inasmuch as the +last version of the “doctors only” idea would be practically the same +in effect as the Cummins-Vaile Bill, so far as the accessibility of +contraceptive information is concerned. That being the case, is not the +very fact that the limited bill proposition has been pared down till +it would release information about as completely as a freedom bill, +a most forceful reason for scrapping it now in favor of the freedom +bill? If the restrictions are so riddled with exemptions as to be only +the shadow and pretense of restriction, why go through the motions of +keeping them? If such pretension at restriction should fool anyone +into thinking they were genuinely efficacious, it would but serve to +make the law an arrant hypocrisy. If they would not so fool anybody, +why bother to try to put them into law? Is it not time to bear in mind +Dr. Pusey’s advice to avoid framing “silly legislation,” as we have +more than enough of that kind on the statute books already? Why add to +the welter of laws we have, when we can better achieve what we want by +merely subtracting errors from the existing laws. As “Life” observed: + + Thirty-eight thousand eight hundred and forty-four laws were proposed + in the United States last year, of which 10,809 were actually + enacted. Our national sport used to be baseball. + +Probably most if not all of the “doctors only” proponents would be +quite willing and even glad to have this subject removed from the +obscenity classification in law, if they could see a feasible way to +keep the “doctors only” provision at the same time. But that would +force them to propose a law that would frankly be a legal permit for +class privilege. It would be too obvious to attempt with decorum. So +they try to accomplish the same end by the indirect method of providing +exemptions for doctors under the existing obscenity statutes. But +just as a rose by another name would smell as sweet, is not a wrong by +another name just as offensive? + +This thought brings up the next point for consideration as to the sort +of laws it is worth while to want. Even if the latest form of “doctors +only” bill does break down the restrictions so that they would be a +mere gesture rather than a genuine law, do you want any laws passed +which are based on the idea of privilege? If so, would you be willing +to be quite candid about it? Would you be willing to ask a member of +Congress to introduce a bill which would be a legal permit for certain +people to give contraceptive information and certain people to buy and +sell contraceptives, and would forbid all other people to do the same? +If you would shrink from such a blatant betrayal of democratic American +principles as that, are you not in all conscience bound to stand for a +law which would be true to those principles? If you were not willing +to do openly and directly a thing which you knew to be unsound in +principle, could you possibly persuade yourself to do it indirectly? + +Suppose then you have a healthy scorn of pretensions, legal and +otherwise, and you find yourself averse to any legislation that could +be rightly deemed double-faced, and you proceed in your survey of +legislative proposals. You may find that the point about the need for +personal prescription of contraceptives which is so stressed in behalf +of the “doctors only” bills, still troubles you. You wonder perhaps, if +there is not some sound way to make a legal provision that would work +out so as to give the people just what they individually need in the +way of contraceptives and protect them from means that are unsafe or +ineffective. + +If so, there are these facts to consider. There is doubtless great +advantage in having the personal advice of a thoroughly well informed +physician as to contraceptive method. It is reassuring if nothing +else, even if not imperatively needed in most cases. For average +individuals with normal physique a professional prescription is by +no means always necessary. But exceptional physical conditions do +need special attention, such as only the doctor or an experienced +nurse can give. Under the present handicap of the laws, advice from a +competent physician is of especial use because he can warn his patient +against the many worthless and even harmful methods which are being +secretly advocated. But when publications on the subject can be openly +circulated, the difference between the good and bad methods can be made +clear by authoritative spokesmen, and the general public can learn the +main facts about this sort of hygiene in the same natural way that they +learn about dental and dietetic hygiene, and so forth. There is no need +to make a medical mystery of this knowledge, or to assume that the +public will be lost in hopeless ignorance unless a doctor prescribes +specially for each individual. The simplicity of some of the best +methods makes such an attitude an absurdity. + +At the last Hearing in the New York Legislature on a “doctors only” +bill, the Birth Control Review reports Mrs. Sanger as saying that +“the Clinical Research Department of the American Birth Control +League teaches methods so simple that once learned any mother who is +intelligent enough to keep a nursing bottle clean can use them.” Dr. +Robert L. Dickinson, head of the New York Committee on Maternal Health +has said that the method most favorably regarded does not require the +instruction of a physician preceding its use. “The New Generation,” +one of the two outstanding birth control periodicals in England, and +official organ of the Neo-Malthusian group of birth control advocates, +published in January, 1925, the following editorial against the +“doctors only” position. + + + MEDICAL MONOPOLY + + We deeply sympathize with our American friends in their difficulties + with the Comstock Act, but we fear that Mrs. Sanger’s proposed + compromise—to give the doctors a monopoly of knowledge—would only + be a step from the frying pan into the fire. Mrs. Sanger thinks that + contraception must in any case be a subject for medical experts, so + it does not matter much whether they have a monopoly or not. There we + differ from her. We cannot admit that contraception must necessarily + be a medical question. We admit that the kind of contraceptive most + fashionable at present has to be fitted by a doctor or nurse, but + science may easily evolve a better one which will render doctors and + nurses entirely needless. The results of eighteen months’ experiment + in Mrs. Sanger’s own clinic are the best proof of this. One of the + most successful devices employed there was a —— paste which needs + no doctor to fit it. Its percentage of failure was as small as that + of any other tried method. From the standpoint of the public it is + devoutly to be hoped that some simple method which needs no doctors + will turn out to be the best. But such a result would be directly + opposed to the interests of the medical profession. If the doctors + had a legal monopoly of knowledge, they would be under the strongest + temptation to develop and improve those methods which demand the + assistance of doctors, and to discourage all research which would + make doctors unnecessary. + +The official stand of the Society for Constructive Birth Control +and Racial Progress, in England is also against the “doctors only” +position. This is the Society of which Dr. Marie C. Stopes, founder of +the first English birth control clinic, is the president. + +A striking bit of evidence which is related to this point is that the +best known authority on this subject in England, and the one from whom +many physicians both abroad and in this country have learned most of +what they know about the control of conception and who has written a +large volume of the subject, is a biologist, who has scientific degrees +but who is not an M.D. So the framing of laws which would place the +giving of information exclusively in the hands of physicians becomes an +absurdity for that reason if for no other. + +“Floods of advertisements” streaming through the mails, +commercializing, cheapening and degrading contraceptive science—this +is one of the bogies held before the eyes of the public by those who +want limited legislation in place of freedom legislation. You may +consider this a point well taken as a possible reason for “doctors +only” legislation. Certainly decent people do not want any such thing +to happen. The question is how to prevent it. Can it be achieved by +law? If so, then would it not be better to have a separate statute on +the subject of advertising contraceptives, than to try to accomplish +the curbing of improper advertising in a round about back-handed way +via a “doctors only” bill? Of course a blanket prohibition of all +advertising would not be appropriate for that would rule out the +publisher’s announcements of the “standard medical works and reprints +therefrom” which are to be allowed according to the latest form of +“doctors only” bill. It is hard to see where any line could be drawn, +as “standard medical” and “scientific” publications are not defined +by law. What conceivably might be done is to pass laws similar to the +obsolete one in Holland which forbids the display of contraceptives +in shop windows, and so forth. But on the whole would it not be best +to have the laws simply provide an open field, and let the dignified +authoritative scientists compete with the quacks and the spurious +folk, with faith that eventually the best would win, very much as the +increased public knowledge of general hygiene is steadily putting +quackery into the background? + +The writer of this book believes whole-heartedly that the American +public wants sound legislation on the subject of birth control. The +difficulty in getting it lies in the fact that people in general +are so concerned with each day’s doings that there is scant time or +opportunity to dig out from all manner of sources the few facts that +are the basis of sound legislation. The tendency of busy people is to +“let the experts decide.” The tendency of average citizens is to vote +yes on any project that claims to carry out ideas to which he gives +general approval. The tendency of birth control enthusiasts is to +assume that the sincere and self-sacrificing leaders of an agitation +are automatically wise at framing laws on the subject. But, as Heywood +Broun said in the New York World, anent another subject and a different +sort of organization: + + I am quite ready to be convinced that many of its members are + dangerously sincere and are utterly convinced that the objects for + which they work will save the Nation. What of it? Where on earth did + the notion come from that sincerity was a sort of police pass which + would admit the bearer through all restraining lines and permit him + to pour kerosene on the conflagration? Would you have your appendix + out at the hands of a sincere surgeon or ask a passionate architect + to design the foundations of your cellar? + +And one of the chief difficulties for the interested citizen in +this particular matter is that the proponents of the “doctors only” +legislation give such a small part of the salient facts to the public +in asking for support for their bills. Much is omitted which might +radically alter the response to the request for endorsement, if it were +but known. For instance, the public is being asked in widely circulated +appeals to endorse the bill drafted by Mr. George Worthington, which is +to be introduced into Congress as soon as possible. It may very likely +be before Congress by the time these words are read. The statement +which accompanies the request for endorsement is this: + + The object of this amendment (to Section 211 of the Penal Code) is + to permit the mailing of contraceptive information and scientific + reports by duly licensed physicians to bona fide patients, physicians + and printers,—and to permit bona fide druggists, manufacturers and + physicians to mail articles of contraception. + +A copy of the Worthington amendment is given. That is all. There is +not a word about the fact that this is an amendment to the obscenity +law, and that the subject of birth control is still left, a penalized +indecency in that law. There is no suggestion given that this amendment +is permissive legislation for a class privilege. There is no inkling +given that it is legislation that could not possibly be enforced so as +to exclude others beside those listed from using the mailing privilege. +There is no statement explaining that there is no such thing in law +as a definition as to what constitutes a “bona fide” “patient,” or +“printer” or “manufacturer.” The public is merely asked to say yes +to what looks, at first glance, like a most desirable thing. And +apparently the public is being counted upon to say it, without a second +glance or a pause for thoughtful inquiry. + +Indeed, on the part of some of the proponents of limited legislation +there seems to be a definite intention not to let the public realize +that there is or could be a choice as to the type of bills which our +legislators are asked to pass. A striking example of this tendency +has appeared in New Jersey. Circular letters are going the rounds +asking the public to endorse a “doctors only” and married-people-only +bill, as shown in Appendix No. 8. The State organizer of the American +Birth Control League who has charge of this work, was asked if he had +“ever considered submitting a choice of bills to the public” he was +“circularizing to see which they would prefer asking the Legislature +to pass, a limited measure or a simple repeal act?” He answered thus: +“It is a hard enough job to educate the public to see the necessity for +birth control as a general proposition, without confusing the issue by +asking them to express an opinion or choice as between two possible +measures, about neither of which they know very much. Even if such a +questionnaire were possible, I would not make it.” It is noticeable +that the letters which are being circulated asking for endorsement +do not inform the New Jersey people much of anything even about the +limited bill proposed. Yet the endorsement which these New Jersey +citizens send in will be used to convince the Legislature that the +people want this particular bill, as proved by their endorsements. It +goes without saying that those who collect the endorsements will not +then state that they did not trust the people to know what they wanted +themselves. + +Further indication of unwillingness on the part of the “doctors only” +group to have the public get a full and free comprehension of the two +radically different types of legislation that have been proposed, has +been the repeated refusal of the “doctors only” proponents to debate +the subject in open meeting. The proponents of the freedom bill on the +other hand have made many efforts to pool the points held in common +between the two groups, and to iron out the differences so that a sound +joint legislative platform would be the result. It may be illuminating +to the reader to see the terms of a recent effort on the part of the +proponents of the freedom bill to get together with the proponents of +the exemption bill drafted by Mr. Worthington. They are embodied in a +Memorandum which was sent by the freedom bill group to the exemption +bill group preliminary to a proposed conference. The exemption bill +group refused to confer. The Memorandum reads as follows: + + 1. _Proposed legislation should be tested_ for its _soundness_ as + law, its _enforceability_, and its _adequacy_ to meet the people’s + need. + + 2. It can be assumed that everyone sincerely interested in the birth + control movement, from whatever angle, will want all laws to meet + these tests. + + 3. Conversely, it can be assumed that no one would, wittingly, + approve laws which are unsound, that is, unsuitable for a democracy, + or untrue to the letter or spirit of the Constitution; or laws which + are unenforceable, that is, which are a mere gesture, calculated to + have a discretionary or educational effect on the public, but are not + intended for genuine execution; or laws which are inadequate, that + is, which do not permit the widest and speediest opportunity for the + largest possible number of people to have access to contraceptive + knowledge. + + 4. It can be assumed also, that in the effort to find a legislative + platform which the public and all who are specially interested in + the birth control movement can be asked to support, there should be + no provisions proposed which are based upon personal, organization, + or professional partisanship; that the platform should represent + only intrinsic merit, regardless of priority of effort, individual + reputation in leadership, or of professional prestige. + + 5. If all concerned will agree then, as to what _not to do_, they can + the more readily determine what _to do_. + + 6. The basic elements which all hold in common seem to be; + + a. Recognition that contraceptive knowledge is not obscenity + and that it is all gain and no loss to remove it from that + classification in law, and that the demand for a clean legal status + for the subject is in itself a very valuable educational process + for the public. + + b. Desire that all who need contraceptive instruction shall receive + it from the best possible sources, and through the best possible + channels. The best sources are generally conceded to be the medical + and biological scientists. + + 7. Point _a_ can easily and properly be achieved by legislation. + It involves only striking out “Preventing Conception” from all the + obscenity statutes, wherever they occur. + + 8. But point _b_ presents great difficulty if not impossibility of + achievement via legislation, _not, however_, via publicity and a + campaign of education. + + Thus far no legislative proposal on this point _b_ has successfully + met any of the three tests named in the first paragraph of this + Memorandum as fundamental necessities. + + They have either been class legislation, or permits for special + privilege, or have been unenforceable, or inefficient as means for + allowing the accomplishment of the desired aim. + + 9. Unless there is some genius who can now frame a law that is + adequate to provide for point _b_ and which at the same time is + free from the serious legal sins noted above, is it not the part of + wisdom for all who are working in the birth control movement, to + join in approving legislation to achieve point _a_ and then work in + their many various ways to achieve point _b_ by a vigorous publicity + campaign, that will be so wide-spread and effective that all America + will shortly know that the best way to get contraceptive instruction + is to consult the best medical and biological authorities? + + 10. People can be successfully advised and guided along paths that no + laws can _compel_ them to take. + + 11. The _result_ is what every one wants, that is _education_. Then + why not concentrate on education straight, instead of trying to + secure it by laws? _And why not depend on legislation for the simple + purpose of removing the barriers to education?_ + + 12. The obligation resting upon those who undertake to frame + legislation is serious. They must see to it that the enthusiasm + of the large groups interested in birth control is not wrongly + capitalized. Most of these people are not innately law-makers, + and, legally speaking, they think very superficially. They do not + differentiate between enthusiasm for a humanitarian project and + providing the legal processes that clear the road for the achievement + of the project. + + 13. Knowing as we all do, that large numbers of people will endorse + any sort of proposed birth control laws out of sheer enthusiasm for + the big cause, it behooves the few who devise legislative procedure, + to hand to the legislators and to the public, propositions that are + thoroughly sound, just and efficacious. We must carefully safeguard + our country, at least so far as our movement is concerned, against + the addition of any more laws that are superfluous, spurious or + ineffective. + + 14. We shall do well to bear in mind, that education is the great + thing, but that it needs an open road in order to progress rapidly, + which the repeal embodied in the Cummins-Vaile Bill would accomplish. + +If such a thing were possible that the people really wanted, knowingly, +the enactment of a “doctors only,” special permit exemption bill, and +also knowingly, did not want the enactment of a freedom bill, then they +ought to have what they want. Democracy is government by the people. It +is not necessarily good government. But at least the people should know +what sort of legislation they are choosing when they sign endorsement +slips and petitions. Many of these have been circulated in the past, +and many are being circulated now. There is a notable difference +between the two sorts. Those circulated in behalf of the freedom bill +have plainly stated that the bill was to remove the ban from the +obscenity laws, so that any one who signed could know that he was +expressing his approval of that act. Those which are being circulated +on behalf of the special-permit, exemption, “not non-mailable” bill +_do not state_ that the subject is being _left_ in the obscenity laws. +If the assumption is that the people would approve leaving the subject +in the indecency classification in laws, then it would seem to be only +fair and square to ask them to say so explicitly. For it is a good +deal of an assumption. It needs proof before it can be believed. In +justice to themselves also, should not the proponents of the limited +legislation state clearly what their proposed law would do and would +not do, in order that no one should have opportunity to charge them +either with carelessness or with duplicity? + + + + +CHAPTER III + +CAN THE PEOPLE GET WHAT THEY WANT? + + _Congress will do what the people want if the request is made clearly + and forceably enough: Inhibitions are waning: Later generations + will not bless birth control workers or Congress if legislation + is bungled now: Danger of blundering as Comstock blundered: Those + who mean well regarding legislation must do well: Present laws + unconstitutional: First class legal opinion deems all “doctors only” + laws unconstitutional also: Time to discard governmental distrust of + the people._ + + +The people can get just what they want from Congress and the State +Legislatures regarding the birth control question, if they make +their wants known definitely enough. If they leave it wholly to the +relatively few citizens who take the trouble to go down to Washington +and worry bills through Congress, they may wake later to find that +misguided enthusiasm has done for this generation what Comstock did +for his generation—enacted laws which were well meant, but which have +worked ill. Some senator of our day may have to warn Congress as did +Senator Conkling in 1873, lest we “do something which when we come to +see it in print, will not be the thing we would have done if we had +understood it.” It is doubtful if any thoughtful members of Congress +or any clear-headed citizens could be proud if it should happen that +the laws affecting birth control were amended so as to create a special +privilege in access to knowledge instead of freedom for all; if they +established monopoly instead of equal opportunity; or if they created +paternalism instead of democracy. No one in later years would bless +Congress for passing another batch of unenforceable laws. And it is +safe to say also that American citizens would not bless any birth +control advocates who, after endless talk and the expenditure of time +and money which Congressional work requires, should persuade Congress +to leave the subject of birth control still mired in the obscenity laws +where Comstock (and Congress meekly acquiescing) placed it over half a +century ago. + +Much water has gone under the bridge since birth control corrective +legislation was first proposed. Congressional inhibitions have +considerably lessened. The whole subject in press, pulpit, fiction and +private life is on a more wholesome plane than ever before. The time is +ripe to have that improvement reflected into sound legislative action. +Congress will just as willingly do the fine thing as the flimsy thing, +if the people demand it. Congress will help to take birth control out +of the laws, instead of putting it into further spurious laws, if the +people say so. + +It is up to the public to let the birth control workers know what is +wanted, and for both the birth control workers and the public to let +Congress know what is wanted—and wanted with the best that is in +people’s minds and hearts, not what is dictated by their superficial +fears, their doubts and their shames. + +Professor Raymond Pearl has said: “The cure for the defects of birth +control, paraphrasing the old remark about democracy, is more and +more democratic birth control.” And surely the cure for the defects +of legislation regarding birth control is more and more democratic +legislation. + +It has to be admitted that the American public has often been +shockingly easy-going about responsibility for the sort of laws that +its representatives enact, likewise that the public is often woefully +pliant in accepting ready made opinions and policies without analysis. +But it is to be hoped that there are enough citizens who are genuinely +interested to help check misguided legislation and promote sound +legislation on this subject, to prevent our country from making another +great blunder in birth control legislation instead of correcting +Comstock’s original blunder with a clean firm sweep. Standing up and +being counted as a believer in birth control is not enough. Those who +are on record in birth control organizations as adherents of “the +cause” must see to it that their names are not linked to endorsements +of bills which they do not approve. Birth control leaders, like members +of Congress, will yield to public opinion, if it is clearly enough and +forcibly enough expressed. + +It is time for every one who means well in this matter to do well also. +The gist of the question is very simple and lucid. It has unfortunately +been gummed up with all manner of excrescences. But they can all be +readily scraped off by dint of the application of plain common sense +and determination not to fool one’s self or to attempt to fool the +public or the legislators. + +Also there is a considerable portion of the American public which +cares about having the laws on this subject in harmony with the proud +traditions of American ideals, the people to whom the guarantees of +freedom of speech and of the press mean something, and who are keen to +have the spirit of the Constitution lived up to, not so much because +it is the Constitution as because those principles of freedom are +vital to human progress and precious to human aspiration. There has +always been a sizable body of opinion that all the Comstock laws are +constitutional, as contrary to the United States Constitution and to +the constitutions of the States. Forty-five of the forty-eight States +in the Union have provisions in their constitutions or the Bill of +Rights that “every man is given the right freely to write, speak +and publish his opinions on all subjects, being responsible for the +abuse of that privilege.” Twenty-six of the States give an additional +safeguard providing that “No law shall ever be passed to restrain +freedom of speech or of the press.” Courtlandt Palmer, in 1883 wrote +a vigorous article in the “New York Observer” in criticism of the +Comstock laws, in which he said: + + Sometimes a mistaken method of preventing vice entails worse evils + than the vice it would prevent. The Liberals oppose the methods + of these postal laws (the Federal obscenity laws) because they + regard them as an example of saving at the spigot and losing at + the bung, an instance of expending a dollar to save a dime. The + question straightway narrows itself into one issue, viz., that of + method. It is agreed on all hands that obscenity should be checked, + and if possible eradicated. The only point is _how_. We regard + these laws as unconstitutional, useless, unnecessary, impolitic + and immoral. They are unconstitutional, because the United States + Constitution simply empowers Congress to establish post offices + and post roads—no more. How then can these words be construed + to authorize our representatives to sit in judgment on the moral + quality of the parcels entrusted to the mails? The Post Office as + we conceive it is a mechanical not an ethical institution. Judge + Story says in his work on the Constitution that Congress can not use + this power (viz., to establish post-offices and post-roads) _for any + other ulterior purpose_, which means, if it means anything, that + while the government may for postal reasons, or for the convenience + and necessity of the service, exclude such articles as liquor and + dynamite, it can not sit in judgment on the intellectual or moral + quality of the communications entrusted to it. + +It has many times been suggested that the matter of birth control +legislation be settled by a test case taken to the supreme court on the +ground of unconstitutionality. But in view of the fact that the Supreme +Court declined to act on Margaret Sanger’s case when it was appealed +from the New York courts, and in view of various other precedents, it +has not seemed a promising way to get results, certainly not quick +results. It might take several years at best to carry a case through, +and in the meantime Congress might be only too glad to utilize the fact +that a decision was pending, to postpone its own responsibility to act +on the repeal bill on which it has been asked to act for six years +past. The obvious fact that the ban on the circulation of knowledge +in the Comstock law is contrary to the right of freedom of the press +should alone be sufficient reason for its repeal by Congress. And both +birth control advocates and Congress should pay attention to the fact +that there is first class legal opinion that all the “doctors only” +laws, if enacted, would also be unconstitutional. + +Above everything, is it not high time for Americans to discard these +laws which are predicated upon the utterly undemocratic basis of +governmental distrust of the people? Is it not a matter of deep concern +to upstanding American citizens that they should be for over half a +century the victims of the discreditable fear that animated a man like +Anthony Comstock? Do not Americans trust themselves with knowledge? Are +they longer willing to retain the mouldy laws which have stood for such +a disgracefully extended period as a sign of distrust of the people? +Are they not ready now to share the deep emotion of Walt Whitman who +said, “There is to me something profoundly affecting in large masses of +men following the lead of those who do not believe in men.” Are they +not more than ready to demand that Congress and the State Legislatures +shall make all haste in purging the statute books of these old +blemishes, so that the pure white light of science may shine unimpeded +upon the lives of all? + + * * * * * + + “Study, without reflection,” says Confucius, “is waste of time; + reflection without study is dangerous.” + + + + +APPENDICES + + + + +APPENDIX NO. 1 + + THE SCOPE OF THE VARIOUS STATE LAWS IS GIVEN IN THE FOLLOWING + COMPILATION + + _The research work was done by Harriette M. Dilla, LL.B., Ph.D., +formerly of the Department of Sociology and Economics of Smith College._ + + +Twenty-four States (and Porto Rico) specifically penalize contraceptive +knowledge in their obscenity laws. + +Twenty-four States (and the District of Columbia, Alaska and Hawaii) +have obscenity laws, under which, because of the Federal precedent, +contraceptive knowledge may be suppressed as obscene, although it is +not specifically mentioned. Obscenity has never been defined in law. +This produces a mass of conflicting, inconsistent judicial decision, +which would be humorous, if it were not such a mortifying revelation of +the limitations and perversions of the human mind. + +Twenty-three States make it a crime to publish or advertise +contraceptive information. They are as follows: Arizona, California, +Colorado, Idaho, Indiana, Iowa, Kansas, Maine, Massachusetts, +Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New +Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, +Washington, Wyoming; also Porto Rico. + +Twenty-two States include in their prohibition drugs and instruments +for the prevention of conception. They are as follows: Arizona, +California, Colorado, Connecticut, Idaho, Indiana, Iowa, Kansas, +Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, +Nevada, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Washington, +Wyoming and Porto Rico. + +Eleven States make it a crime to have in one’s possession any +instruction for contraception. These are: Colorado, Indiana, Iowa, +Minnesota, Mississippi, New Jersey, New York, North Dakota, Ohio, +Pennsylvania, Wyoming. + +Fourteen States make it a crime to tell anyone where or how +contraceptive knowledge may be acquired. These are: Colorado, Indiana, +Iowa, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, +New Jersey, New York, Pennsylvania, Washington, Wyoming. + +Six States prohibit the offer to assist in any method whatever which +would lead to knowledge by which contraception might be accomplished. +These are: Arizona, California, Idaho, Montana, Nevada, Oklahoma and +Porto Rico. + +Eight States prohibit depositing in the Post Office any contraceptive +information. These are: Colorado, Indiana, Iowa, Minnesota, New York, +North Dakota, Ohio, Wyoming.[5] + +One State, Colorado, prohibits the bringing into the State of any +contraceptive knowledge. + +Four States have laws authorizing the search for and seizure of +contraceptive instructions, and these are: Colorado, Idaho, Iowa, +Oklahoma. In all these States but Idaho, the laws authorize the +destruction of the things seized. + +Certain exemptions from the penalties of these laws are made by the +States for + + +_Medical Colleges_ + + Colorado + Indiana + Missouri + Nebraska + Ohio + Pennsylvania + Wyoming + + +_Medical Books_ + + Colorado + Indiana + Kansas + Missouri + Nebraska + Ohio + Pennsylvania + Wyoming + + +_Physicians_ + + Colorado + Indiana + Nevada + New York + Ohio + Wyoming + + +_Druggists_ + +Colorado, Indiana, Ohio, Wyoming. + + * * * * * + +Seventeen States prohibit any information which corrupts morals, 12 +of them, as starred in the following list, particularly mentioning +the morals of the young. This is an interesting point of view of the +frequently offered objection to freedom of access to contraceptive +knowledge, that it will demoralize the young. These States are: +Colorado, Delaware,* Florida,* Iowa,* Maine,* Massachusetts,* +Michigan,* Rhode Island, South Carolina, South Dakota, Tennessee, +Texas,* Vermont,* Virginia,* West Virginia,* Wisconsin* and Hawaii. + +Two States have no obscenity statutes, but police power in these States +can suppress contraceptive knowledge as an “Obscenity” or “public +nuisance,” by virtue of the Federal precedent. These States are: North +Carolina and New Mexico. + + + + +APPENDIX No. 2 + +[Illustration: + EFFECT OF REMOVING THE PROHIBITION OF CONTRACEPTIVE + KNOWLEDGE FROM THE FEDERAL OBSCENITY LAWS + + INFORMATION TRANSPORTABLE THROUGHOUT THE U.S. + + 24 STATES + _and the Dist. of Col., + Alaska and Hawaii_, + WILL REQUIRE + _NO_ FURTHER + LEGISLATION + + _Alabama_ + _Arkansas_ + _Delaware_ + _Florida_ + _Georgia_ + _Illinois_ + _Kentucky_ + _Louisiana_ + _Maryland_ + _Michigan_ + _New Hampshire_ + _New Mexico_ + _North Carolina_ + _Oregon_ + _Rhode Island_ + _South Carolina_ + _South Dakota_ + _Tennessee_ + _Texas_ + _West Virginia_ + _Wisconsin_ + _Virginia_ + _Utah_ + _Vermont_ + _Alaska_ + _Hawaii_ + _Dist. of Col._ + + 24 STATES + _and Porto Rico_ + WILL REQUIRE + FURTHER + LEGISLATION + + _Arizona_ + _California_ + _Colorado_ + _Connecticut_ + _Idaho_ + _Indiana_ + _Iowa_ + _Kansas_ + _Maine_ + _Massachusetts_ + _Minnesota_ + _Mississippi_ + _Missouri_ + _Montana_ + _Nebraska_ + _Nevada_ + _New Jersey_ + _New York_ + _North Dakota_ + _Ohio_ + _Oklahoma_ + _Pennsylvania_ + _Washington_ + _Wyoming_ + _Porto Rico_ + + _It will then be legal to transport contraceptive information + anywhere in the United States._ + + _It will then be legal to give verbal information in 24 states, + the District of Columbia, Alaska and Hawaii, which, by precedent + of the federal laws, have heretofore been justified in suppressing + contraceptive information as “obscene.”_ + + _With this precedent removed, the probability of such suppression + will be negligible; and physicians may begin at once to teach + contraception both in private practice and in clinics, hospitals and + dispensaries. There are over 46,000,000 people in these states._ + + _In the remaining 24 states and Porto Rico, where the laws + specifically prohibit giving contraceptive information, the necessary + repeal acts will be more easily accomplished because of this federal + example._ + + THIS IS THE LONGEST SINGLE STEP TOWARD ACHIEVING SELF-DETERMINED + PARENTHOOD FOR THE UNITED STATES +] + + + + +APPENDIX NO. 3 + + THE ANNUAL REPORT OF THE ILLINOIS LEAGUE + + +In 1923, when the League decided to open a free clinic, we had +wonderful plans and high hopes which were all dashed by the refusal +of the Health Commissioner to grant us the necessary license. We took +the matter into Court and received a decision in our favor from Judge +Fisher but the case was immediately appealed. After waiting for months +for a decision from the Appellate Court, we temporarily abandoned +the idea of a free clinic and opened a Medical Center which does not +require a license as it is operated as a private office, a small fee +being charged to each patient. + +When the decision was finally handed down it upheld Dr. Bundeson in +his refusal, simply on the ground that the granting of licenses is a +matter entirely in the discretion of the Health Commissioner. Our hopes +of a free clinic being, therefore, definitely at an end, we opened in +February, 1925, a second office at —— Street, known as Medical Center +No. 2. Each Center has a secretary and our Medical Staff consists of +the Director, Dr. —— and three physicians: + + Dr. ...................... + Dr. ...................... + Dr. ...................... + +all of whom have given devoted service. + +There is a commonly accepted picture of our Birth Control work +which represents us as standing in the midst of clamoring crowds, +distributing information indiscriminately to all comers and handing +leaflets and tracts destined to fall into the hands of high school +children and unmarried girls, thereby doing unlimited harm. The true +picture is very different. Our offices, one on the inside court of the +—— Building, the other in a small house on a quiet West Side street, +have very little publicity. We do not advertise. It is difficult to get +any notice of our work in the newspapers. It is not spectacular enough. +The result is that our patients come slowly. We have had to build up a +practice. + +The first Medical Center was opened July 7, 1924, and during the first +three months we had sixty patients, mostly sent to us by a few social +agencies. In October we had some newspaper notices and our numbers +jumped to seventy-four in one month. In November we had one hundred and +twenty. From July seventh to date, ten months, we have had in all five +hundred and forty patients. It may be interesting to hear some of the +data on the first five hundred cases. + +We are constantly asked what nationalities we reach. It would be +simpler to say what nationalities we do not reach. The exact figures +are as follows: + + American 252 + Polish 58 + Hebrew 42 + German 35 + Colored 26 + Bohemian 15 + Italian 14 + Swedish 11 + English 8 + Irish 7 + Norwegian 5 + Scotch 4 + Hungarian 4 + Slovakian 4 + Canadian 2 + Lithuanian 2 + Austrian 2 + Spanish 2 + Belgian 1 + Croatian 1 + Greek 1 + Swiss 1 + Dutch 1 + Russian 1 + Mexican 1 + + Of these, 304 were Protestants, or 6/10ths were Protestants + 147 were Catholics + 3 were Greek Orthodox, or 3/10ths were Catholics + 46 were Jewish, or 1/10th Jewish + +Women of all ages have come, from 16 to 40, the largest number (152) +being between the ages of twenty-five and thirty. The young girls +under twenty are not school girls, they are rather weary, discouraged +little mothers with two or three children, who seem to us entitled +to information which will give them a few years’ rest in which to +recuperate before they bear more children. + +So much has been said about the selfishness of women and the growing +desire of the modern woman to leave her home and go into industry that +it is rather a surprise to find that 464 of the 500 patients gave their +occupation as “Housewife” and only 36 were engaged in work outside +their homes. + + Of these, 13 were employed as stenographers or book-keepers, 7 were + employed as teachers, 5 were still students, 5 were in social work, 6 + were employed by the day, cleaning and doing housework. + +In almost every case, the women were working to support their families +because their husbands were either ill, or drank, or gambled. In a few +cases the young couple were just married and living in one or two rooms +and were both obliged to work in order to support themselves and of +course felt that they must postpone all thought of children until they +had saved enough to take care of them. + +It is impossible to classify the occupation of the husbands. They cover +practically every employment: + + Engineer + Laborer + Carpenter + Bank Cashier + Gambler + Minister + Musician + Switchman + Teamster + Watchman + Lawyer + Coal-miners, etc. + +These people have come to us from many sources: + + 282 through the newspapers + 54 from the United Charities + 36 from the Infant Welfare Society + 80 from Social Agencies, Settlements, Dispensaries, Doctors, etc. + 48 from friends and patients. + +Of the women, 252 have used some forms of contraceptive, some of them +harmful, most of them useless. Many have resorted to abortion. The +reasons given for wishing information are as difficult to classify as +are the occupations of the men. In almost every case, the foundation of +the trouble is economic but there are usually other complications. For +instances: + + Four children in four years. + Instrumental deliveries—contracted pelvis and goitre. + Caesarean operation always necessary. + Wants to wait until stronger before having any more. + Wants children but husband is just starting in business. + Six children—all tubercular. + No home, husband traveling musician. + Nine miscarriages in ten years—retroversion—cannot carry to term. + +It is also very interesting to note that we have had five cases of +sterility, the women willing to do anything if only they might have +children. + +But it means very little to read a list of reasons like this—too many +factors enter into each individual case and perhaps the only way to +get a real picture of the situation is to have a little story of some +of these family tragedies. The cases divide quite sharply into three +classes: + + I. Young women just married who wish to postpone having children for + a few years until they can make a home. + + II. Cases in which the health of either husband or wife makes + children impossible. + + III. Those many cases of too large families and + too little money to take care of them. + + +Here is _Case No. 88_—Referred—Newspaper. + +The man is 59 years old, a cashier. The woman 39 years old, married +at 37, Swedish-Protestant. Has had one child. Reason for wishing +information is, that she has nephritis, had a difficult labor and +convulsions and was unconscious for five days. The baby died at birth. + + +_Case No. 451_—Referred by Mental Hygiene Society. + +The man is 37 years old, cannot work. The woman is 38 years old, +American-Protestant, married at 26 and has had seven pregnancies, four +children, ages ten, eight, six and four years. She teaches to support +this family. The husband is insane—diagnosis dementia praecox—and +has been sent home from the Elgin Asylum on probation. The wife is in +terror for fear of another pregnancy. + + +_Case No. 186_—Referred—Newspaper. + +The man 30 years old, not working. The woman, 30, married at 21, +American-Protestant, has had four pregnancies, two miscarriages and two +children. The husband has spinal trouble. The woman is very nervous. +One child has rickets and the other tubercular glands. + + +_Case No. 3._ + +Quite a tragic case. Man 37 years of age. The woman 36 years of age, +married at 26, German-Protestant. In ten years she has had sixteen +pregnancies, seven miscarriages, six induced abortions and three +children. Reason—economic. + + +_Case No. 31._ + +The man 62 years of age, factory sweeper. The woman 31 years of age, +married at 13, Italian-Catholic. In eighteen years she has had ten +children, seven living, ages ranging from seventeen years to four +months. + + +_Case No. 413._ + +The man is 41 years old, elevated guard. The woman is 30 years old, +German-Protestant, married at 19 and has had seven children, six +living. Reason—all they can support on husband’s wages. + + + _Case No. 59_—Referred by United Charities and Municipal + Tuberculosis Sanitarium. + +The man is 54 years of age, street cleaner, Colored-Protestant. The +woman is 40 years of age, married at 20 and in twenty years has had +sixteen pregnancies. Of the fourteen children, whose ages range from +seventeen years to eighteen months, seven died in infancy. + + +_Case No. 241._ + +The man is 23 years old, laborer, no work. The woman is 19 years old, +and was first married at fourteen, divorced after two months and +married again at the age of sixteen. She has had three children, whose +ages are four and two years and seven weeks. Reason—economic, and +having children too fast. + + +_Case No. 318_—Referred—United Charities. + +The man is 28 years old, laborer. The woman is 20 years old, +German-Catholic, married at 19. Both feeble minded. One child feeble +minded. + + +_Case No. 471_—Referred by United Charities. + +The man is 31 years old, hostler, not working. The woman is 29 years +old, Irish-Catholic, married at sixteen and has had nine children, +seven living, ages ranging from eleven years to six months. The husband +is chronic alcoholic. + + * * * * * + +This gives a clear record of the family history. The reason given by +the mother for wishing information is _that she is too poor, worn out +and very tired_. When one stops to think that this reason is given by +a young woman of 29, it seems sad beyond words. + +It is this sort of story that our doctors listen to day after day. The +cases are not exceptional, there are so many almost alike that it is +hard to select them. + +At the moment there seem to be no legal obstacles on the horizon and we +hope that we shall be able to go quietly on with our work which this +year must include some meetings and talks on the West Side, in the +Stock Yards’ Districts, and among the colored people, for the purpose +of explaining what birth control really means. Most of the women are +perfectly familiar with abortion but the idea of contraception has not +yet reached those who need it most. We hope to establish more Centers +and so to bring the information to the people who are not accustomed to +coming to Michigan Avenue for medical advice. + + + + +APPENDIX NO. 4 + + SENTENCES OF BIRTH CONTROL ADVOCATES + + + FEDERAL + + Margaret Sanger, New York 1914 Federal case—dismissed, + 9 indictments. + Mrs. Rhea C. Kachel, Philadelphia, Pa. $25.00 fine + Mr. Fred Merkel, Reading, Pa. 25.00 fine + William Sanger, New York 30 days—workhouse + Emma Goldman, New York 15 days + Joseph Macario, San Francisco Freed + Emma Goldman, Portland, Ore. Freed + Dr. Ben L. Reitman, Portland, Ore. Freed + Margaret Sanger, Portland, Ore. Freed + Carl Rave, Portland, Ore. $10.00 fine + Herbert Smith, Seattle, Wash. 25.00 fine + Van Kleeck Allison, Boston, Mass. 60 days + Steven Kerr, New York 15 days + Peter Marner, New York 15 days + Bolton Hall, New York Freed + Jessie Ashley, New York $100.00 fine + Emma Goldman, New York Freed + Dr. Ben L. Reitman, New York 60 days + Ethel Byrne, New York 30 days + (Pardoned during hunger strike.) + Dr. Ben L. Reitman, Cleveland, O. 6 mos. + ($1000 fine and costs.) + Margaret Sanger, New York 30 days + Kitty Marion, New York 30 days—workhouse + + + + +APPENDIX NO. 5 + + AMENDMENTS TO FEDERAL AND NEW YORK LAW PROPOSED IN 1915 + BY THE + NATIONAL BIRTH CONTROL LEAGUE + + +FEDERAL STATUTES + + I. A Bill to Amend + Section 211, the + Federal Penal Code. + +Every obscene, lewd, or lascivious, and every filthy book, pamphlet, +picture, paper, letter, writing, print, or other publication of an +indecent character, and every article or thing designed, adapted, or +intended for [preventing conception or] producing abortion, or for any +indecent or immoral use; and every article, instrument, substance, +drug, medicine, or thing which is advertised or described in a +manner calculated to lead another to use or apply it for [preventing +conception or] producing abortion, or for any indecent or immoral +purpose; and every written or printed card, letter, circular, book, +pamphlet, advertisement, or notice of any kind giving information +directly or indirectly, where, or how, of whom, or by what means any +of the hereinbefore-mentioned matters, articles, or things may be +obtained or made, or where or by whom any act or operation of any kind +for the procuring or producing of abortion will be done or performed, +or how or by what means [conception may be prevented or] abortion may +be produced, whether sealed or unsealed; and every letter, packet, or +package, or other mail matter containing any filthy, vile, or indecent +thing, device, or substance and every paper, writing, advertisement, or +representation that any article, instrument, substance, drug, medicine +or thing may, or can be, used or applied, for [preventing conception +or] producing abortion, or for any indecent or immoral purpose; and +every description calculated to induce or incite a person to so use +or apply any such article, instrument, substance, drug, medicine, +or thing, is hereby declared to be non-mailable matter and shall +not be conveyed in the mails or delivered from any post office or by +any letter carrier. Whoever shall knowingly deposit or cause to be +deposited for mailing or delivery, anything declared by this section +to be non-mailable, or shall knowingly take, or cause the same to be +taken, from the mails for the purpose of circulating or disposing +thereof, or of aiding in the circulation or disposition thereof, shall +be fined not more than five thousand dollars, or imprisoned not more +than five years, or both. _But no book, magazine, pamphlet, paper, +letter, writing or publication is obscene, lewd, or lascivious, or +of an indecent character, or non-mailable by reason of the fact that +it mentions, discusses or recommends prevention of conception, or +gives information concerning methods or means for the prevention of +conception: or tells how, where, or in what manner such information +or such means can be obtained: and no article, instrument, substance +or drug is non-mailable by reason of the fact that it is designed or +adapted for the prevention of conception, or is advertised or otherwise +represented to be so designed or adapted._ + +(Matter in brackets omitted; matter in italics new.) + + + II. A Bill to Amend + Section 245, The + Federal Penal Code. + +Whoever shall bring or cause to be brought into the United States or +any place subject to the jurisdiction thereof from any foreign country +or shall therein knowingly deposit or cause to be deposited with any +express company or other common carrier for carriage from one State, +territory or district of the United States, or in place non-contiguous +to, but subject to the jurisdiction thereof, or from any place in or +subject to the jurisdiction of the United States through a foreign +country to any place in or subject to the jurisdiction of the United +States, any obscene, lewd or lascivious or any filthy book, pamphlet, +picture, paper, letter, writing, print, or other matter of indecent +character, of any drug, medicine, article or thing designed, adapted +or intended for [preventing conception or] producing abortion, or for +any indecent or immoral use, or any written or printed card, letter, +circular, book, pamphlet, advertisement or notice of any kind, giving +information directly or indirectly, where, how, or of whom, or by what +means any of the hereinbefore-mentioned articles, matters, or things +may be obtained or made, or whoever shall knowingly take or cause to +be taken from such express company or common carrier, any matter or +thing, the depositing of which for carriage is herein made unlawful, +shall be fined not more than five thousand dollars or imprisoned not +more than five years or both. _But no book, pamphlet, paper, letter, +writing, circular, advertisement, notice or print is obscene, lewd, +lascivious or filthy, by reason of the fact that it mentions, discusses +or recommends prevention of conception, or gives information concerning +methods or means for the prevention of conception: or tells how, where, +or in what manner such information or such means can be obtained: and +no drug, medicine, article or thing shall be for indecent or immoral +use because it is designed, adapted or intended for the prevention of +conception._ + + (Matter in brackets omitted; matter in italics new.) + + + NEW YORK STATUTES + + PENAL LAW. + +Section 1141.—A person who sells, lends, gives away or shows, or +offers to sell, lend, give away, or who, or has in his possession with +intent to sell, lend, or give away, or to show or advertises in any +manner, or who otherwise offers for loan, gift, sale or distribution, +any obscene, lewd, lascivious, filthy, indecent or disgusting book, +magazine, pamphlet, newspaper, story paper, writing paper, picture, +drawing, photograph, figure, or image, or any written or printed matter +of an indecent character; or any article or instrument of indecent +or immoral use, or purporting to be for indecent or immoral use or +purpose, or who designs, copies, draws, photographs, prints, utters, +publishes, or in any manner manufactures, or prepares any such book, +picture, drawing, magazine, pamphlet, newspaper, story paper, writing +paper, figure, image, matter, article, or thing, or who writes, prints, +publishes, or utters, or causes to be written, printed, published or +uttered any advertisement or notice of any kind, giving information, +directly or indirectly, stating, or purporting so to do, where, how, of +whom, or by what means any, or what purports to be any, obscene, lewd, +lascivious, filthy, disgusting or indecent book, picture, writing, +paper, figure, image, matter, article, or thing named in this section +can be purchased, obtained, or had or who has in his possession any +slot machine or other mechanical contrivances with moving pictures of +nude or partly denuded female figures which pictures are lewd, obscene, +indecent or immoral, or other lewd, obscene, indecent or immoral +drawing, image article or object or who shows, advertises or exhibits +the same, or causes the same to be shown, advertised, or exhibited, +or who brings, owns or holds any such machine with the intent to +show, advertise, or in any manner exhibit the same, ... is guilty of a +misdemeanor, and upon conviction, shall be sentenced to not less than +ten days nor more than one year imprisonment, or be fined not less than +fifty dollars nor more than one thousand dollars, or both fine and +imprisonment for each offense. + + +(Section 1141 will be unchanged by the proposed legislation.) + + +Section 1141-b (New).—A book, magazine, pamphlet, newspaper, or +other printed, typewritten or written matter is not obscene, lewd, +lascivious, filthy, indecent, or disgusting, or of an indecent +character, within this article, by reason of the fact that it mentions, +discusses, recommends, or gives information concerning prevention +of conception or methods or means for the prevention of conception +or gives information as to where, how or of whom advice concerning, +or articles, drugs or instruments for the prevention of conception +can be obtained; and an article is not of indecent or immoral use or +purpose, within this article, because it is adapted or designed, or is +advertised or represented to be adapted or designed for the prevention +of conception. + + +(Section 1141-b is all new matter.) + + +Section 1142: INDECENT ARTICLES.—A person who sells, lends, gives +away, or in any manner exhibits or offers to sell, lend or give away, +or has in his possession with intent to sell, lend or give away, or +advertises or offers for sale, loan or distribution any instrument +or article, or any recipe, drug, or medicine, [for the prevention of +conception or] for causing unlawful abortion, or purporting to be +[for the prevention of conception, or] for causing unlawful abortion, +or advertises, or holds out representations that it can be so used +or applied, or any such description as will be calculated to lead +another to so use or apply any such article, recipe, drug, medicine +or instrument, or who writes or prints, or causes to be written or +printed, a card, circular, pamphlet, advertisement, or notice of any +kind, or gives information orally, stating when, where, how, of whom, +or by what means such an instrument, article, recipe, drug or medicine +can be purchased or obtained, or who manufactures any such instrument, +article, recipe, drug or medicine, is guilty of a misdemeanor, and +shall be liable to the same penalties as provided in Section eleven +hundred and forty-one in this chapter. + + +(Matter in brackets omitted.) + + + + +APPENDIX NO. 6 + + BILL INTRODUCED IN NEW YORK LEGISLATURE IN 1923 + +_Drafted by Samuel McCune Lindsey of the Legislative Bureau of Columbia + University_ + + +Section 1145 of the Penal Code to be amended to read as follows: + + PHYSICIANS, INSTRUMENTS AND ADVICE. An article or instrument, used + or applied by physicians lawfully practicing or by their direction + or prescription, for the cure or prevention of disease, is not an + article of indecent or immoral nature or use, within this article. + The supplying of such articles to such physicians or by their + direction or prescription, is not an offense under this article. _The + giving by a physician lawfully practicing, to any person, married or + having a license entitling him or her to be married duly and lawfully + obtained by him or her, of any information or advice in regard to + the prevention of conception, on the application of such person to + such physician; or the supplying to such physician or by any one on + the written prescription of such physician to any such person of any + article, instrument, drug, recipe or medicine for the prevention of + conception, is not an offense under this article._ + + + Explanation. The portions in italics are new. + + + + +APPENDIX NO. 7 + + THE CONNECTICUT LAW AND THE AMENDMENT PROPOSED BY THE AMERICAN BIRTH + CONTROL LEAGUE + + +The present statute, enacted in 1878, reads as follows: + + _General Statutes, Section 6390. Use of Drugs or Instruments to + Prevent Conception._ Every person who shall use any drug, medicinal + article or instrument for the purpose of preventing conception shall + be fined not less than $50.00 or imprisoned not less than 60 days nor + more than one year or both. + +The proposed bill would repeal the above section, and enact the +following new section. + + The giving by a physician licensed to practice or by a duly + registered nurse to any person applying to him or her, of information + or advice in regard to, or the supplying by such physician or nurse, + or on a prescription signed legibly by him or her, of any article or + medicine for the prevention of conception shall not be a violation of + the statutes of this State. + + + + +APPENDIX NO. 8 + + NEW JERSEY LAW + + AND + + _Amendment Proposed by the American Birth Control League_ + + + AN ACT to amend an act entitled “an act for the punishment of crimes + (Revision of 1898), approved June Fourteenth, one thousand and eight + hundred and ninety-eight. + + BE IT ENACTED by the Senate and General Assembly of the State of New + Jersey: + + 1. Section fifty-three of the act to which this act is amendatory be + and hereby is amended so as to read as follows: + + 53. Any person who without just cause, shall utter or expose to + the view of another, or to have in his possession, with intent so + to utter or expose to view, or to sell the same, any obscene or + indecent book, pamphlet, picture, or other representation, however + made; or any instrument, medicine, or other thing, designed or + purporting to be designed for the prevention of conception, or + the procuring of abortion, or who shall in any wise advertise, or + aid, or assist in advertising the same, or in any manner, whether + by recommendation against its use or otherwise, give or cause to + be given, or aid in giving any information how or where any of + the same may be had or seen, bought or sold, shall be guilty of a + misdemeanor, _THE CONTRACEPTIVE TREATMENT OF MARRIED PERSONS BY + DULY PRACTICING PHYSICIANS, OR UPON THEIR WRITTEN PRESCRIPTION, + shall be deemed a just cause hereunder_. + +The underlined clause is the amendment desired by the American Birth +Control League. + + + + +APPENDIX NO. 9 + + CALIFORNIA LAW + + AND + + _Amendment Introduced in 1917 by Senator Chamberlain and Assemblyman + Wishard_ + + +The California law is Section 317 of the Penal Code under the Chapter +Heading, “INDECENT EXPOSURE, OBSCENE EXHIBITIONS, BOOKS AND PRINTS, AND +BAWDY AND OTHER DISORDERLY HOUSES.” + +The bill introduced by Senator Chamberlain and Assemblyman Wishard +amended the Section by striking out the words “or for the prevention of +conception.” The wording of the Section is as follows: + + 317. ADVERTISING TO PRODUCE MISCARRIAGE. Every person who wilfully + writes, composes or publishes any notice or advertisement of any + medicine or means for producing or facilitating a miscarriage or + abortion, or for the prevention of conception, or who offers his + services by any notice, advertisement, or otherwise, to assist in the + accomplishment of any such purpose, is guilty of a felony. + + + + +APPENDIX NO. 10 + +INDICATIONS OF OPPOSITION OF BIRTH CONTROL ADVOCATES TO REMOVING BAN ON + CONTRACEPTIVE INFORMATION FROM FEDERAL OBSCENITY LAWS + + +At the first American Birth Control Conference when the American +Birth Control League was organized in November, 1921, the following +resolution was submitted, but the Conference was not allowed to vote +upon it: + + _Whereas_, the proposition has been laid before Post Master General + Hays by the Voluntary Parenthood League, that he recommend to + Congress the revision of the Federal law so that contraceptive + knowledge shall not be included among the penalized indecencies which + are now declared unmailable. + + + _Be It Resolved_, that this American Conference for birth control + urges Post Master General Hays to act favorably on this proposition + as a matter of postal progress and as a service to modern science, + welfare and justice. + +A “doctors only” proponent, speaking from the floor against allowing +a vote on this resolution to be taken by the Conference said, “If we +could have the Federal bill passed _to-day_, we would not want it.” + + + EXCERPTS FROM AN EDITORIAL IN THE BIRTH CONTROL REVIEW OF MARCH, 1921 + + In contrast to the State legislation is the proposed repeal of + the Federal law, aiming to open the United States mails to the + distribution of birth control knowledge by amateurs. + + We are told that the repeal of the Federal law would be the quickest + and shortest way to achieve our goal. But there is no such royal + road! We might flood the country with tons of good books and + pamphlets on the subject by recognized authorities on hygiene, + psychology and sociology, but with no appreciable effect. (A poor + woman once said to me, “I have read your book from cover to cover; + and yet I am pregnant again.”) To offer a pamphlet to a woman who can + not read or is too tired and weary to understand its directions, is + like offering a printed bill of fare to a starving man. + + Yet the repeal of the Federal law would accomplish practically no + more than this. Nevertheless, to some it seems of primary importance; + and those who think so are best qualified to throw their energies + into that work. + + Much as we wish that one fine gesture would sweep aside these + obsolete and ridiculous anti-contraceptive laws, both Federal and + State, experience has shown us the emptiness of legal and legislative + victories unless followed up vigorously by concerted action. Remember + that in England there is no law preventing the spread of birth + control knowledge; yet we see there, that the removal of legal + restriction in the use of the mails is not enough. Our interests and + our activity must be positive, fundamental, dynamic, constructive. + Let us beware of the futility of striving after vain victories and + theoretical triumphs—which may, indeed, stimulate in us a fine + glow of egotistical satisfaction, but also divert and distract our + attention and interest from the hard, thankless, detailed work of + helping overburdened mothers. Let us not be led into the trap of + believing that the mere repeal of a Federal law will change the + course of ancient human habits or the most deep-rooted of instincts. + + + + +APPENDIX NO. 11 + + + NOTE: The words “preventing conception” are removed from the five + Sections of the Federal Statutes which appear in the Bill. + + 1st Session, + 68th CONGRESS, S. 2290 + + IN THE SENATE OF THE UNITED STATES + + JANUARY 28 (calendar day, JANUARY 30), 1924. + + _Mr. Cummins introduced the following bill; which was read twice + and referred to the Committee on the Judiciary._ + + + A BILL + + To remove the prohibition of the circulation of contraceptive + knowledge and means by amending sections 102, 211, 245, and 312 + of the Criminal Code; and section 305, paragraphs (a) and (b), of + the Tariff Act of 1922; and to safeguard the circulation of proper + contraceptive knowledge and means by the enactment of a new section + for the Criminal Code. + +_Be it enacted by the Senate and House of Representatives of the United +States of America in Congress assembled_, That section 102 of the +Criminal Code be amended to read as follows: + +“SEC. 102. Whoever, being an officer, agent, or employee of the +Government of the United States, shall knowingly aid or abet any person +engaged in violating any provision of law prohibiting importing, +advertising, dealing in, exhibiting, or sending or receiving by mail +obscene or indecent publications or representations, or means for +producing abortion, or other article of indecent or immoral use or +tendency, shall be fined not more than $5000 or imprisoned not more +than ten years or both.” + +SEC. 2. That section 211 of the Criminal Code be amended to read as +follows: + + “SEC. 211. Every obscene, lewd, or lascivious and filthy book, + pamphlet, picture, paper, letter, writing, print, or other + publication of an indecent character; and every article or thing + designed, adapted, or intended for producing abortion, or for any + indecent or immoral use; and every article, instrument, substance, + drug, medicine, or thing which is advertised or described in a manner + calculated to lead another to use or apply it for producing abortion, + or for any indecent or immoral purpose; and every written or printed + card, letter, circular, book, pamphlet, advertisement, or notice of + any kind giving information, directly or indirectly, where or how or + from whom or by what means any of the hereinbefore-mentioned matters, + articles, or things may be obtained or made, or where or by whom + any act or operation of any kind for the procuring or producing of + abortion will be done or performed, or how or by what means abortion + may be produced, whether sealed or unsealed; and every letter, + packet, or package, or other mail matter containing any filthy, vile, + or indecent thing, device, or substance; and every paper, writing, + advertisement, or representation that any article, instrument, + substance, drug, medicine, or thing may or can be used or applied + for producing abortion, or for any indecent or immoral purpose; and + every description calculated to induce or incite a person to so use + or apply any such article, instrument, substance, drug, medicine, + or thing is hereby declared to be non-mailable matter and shall not + be conveyed in the mails or delivered from any post office or by + any letter carrier. Whoever shall knowingly deposit, or cause to be + deposited for mailing or delivery, anything declared by this section + to be non-mailable, or shall knowingly take, or cause the same to be + taken, from the mails for the purpose of circulating or disposing + thereof, or of aiding in the circulation or disposition thereof, + shall be fined not more than $5000, or imprisoned not more than five + years, or both. And the term “indecent” within the intendment of this + section shall include matter of a character tending to incite arson, + murder, or assassination.” + + SEC. 3. That section 245 of the Criminal Code be amended to read as + follows: + + “SEC. 245. Whoever shall bring or cause to be brought into the + United States or any place subject to the jurisdiction thereof, from + any foreign country, or shall therein knowingly deposit or cause + to be deposited with any express company or other common carrier, + for carriage from one State, Territory, or District of the United + States, or place noncontiguous to, but subject to the jurisdiction + thereof, to any other State, Territory, or District of the United + States, or place noncontiguous to but subject to the jurisdiction + thereof, or from any place in or subject to the jurisdiction of the + United States through a foreign country to any place in or subject + to the jurisdiction thereof, or from any place in or subject to + the jurisdiction of the United States to a foreign country, any + obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, + letter, writing, print, or other matter of indecent character; or + any drug, medicine, article, or thing designed, adapted, or intended + for producing abortion, or for any indecent or immoral use; or + any written or printed card, letter, circular, book, pamphlet, + advertisement, or notice of any kind giving information, directly + or indirectly, where, how, or of whom or by what means any of the + hereinbefore-mentioned articles, matters, or things may be obtained + or made; or whoever shall knowingly take or cause to be taken from + such express company or other common carrier any matter or thing, the + depositing of which for carriage is herein made unlawful, shall be + fined not more than $5000, or imprisoned not more than five years, or + both.” + + SEC. 4. That section 312 of the Criminal Code be amended to read as + follows: + + “SEC 312. Whoever shall sell, lend, give away, or in any manner + exhibit, or offer to sell, lend, give away, or in any manner exhibit, + or shall otherwise publish or offer to publish in any manner, or + shall have in his possession for any such purpose, any obscene book, + pamphlet, paper, writing, advertisement, circular, print, picture, + drawing, or other representation, figure, or image on or of paper + or other material, or any cast, instrument, or other article of an + immoral nature, or any drug or medicine, or any article whatever for + causing unlawful abortion, or shall advertise the same for sale, or + shall write or print, or cause to be written or printed, any card, + circular, book, pamphlet, advertisement, or notice of any kind, + stating when, where, how, or of whom, or by what means, any of the + articles above mentioned can be purchased or obtained, or shall + manufacture, draw, or print, or in anywise make any of such articles, + shall be fined not more than $2000, or imprisoned not more than five + years or both.” + + SEC. 5. That section 305, paragraphs (a) and (b), of the Tariff Act + of 1922 be amended to read as follows: + + “SEC 305. (a) That all persons are prohibited from importing into the + United States from any foreign country any obscene book, pamphlet, + paper, writing, advertisement, circular, print, picture, drawing, + or other representation, figure, or image on or of paper or other + material, or any cast, instrument, or other article of an immoral + nature, or any drug or medicine, or any article whatever, for + causing unlawful abortion, or any lottery ticket, or any printed + paper that may be used as a lottery ticket, or any advertisement + of any lottery. No such articles, whether imported separately or + contained in packages with other goods entitled to entry, shall + be admitted to entry; and all such articles shall be proceeded + against, seized, and forfeited by due course of law. All such + prohibited articles and the package in which they are contained + shall be detained by the officer of customs, and proceedings taken + against the same as hereinafter prescribed, unless it appears to the + satisfaction of the collector that the obscene articles contained in + the package were inclosed therein without the knowledge or consent + of the importer, owner, agent, or consignee: _Provided_, That the + drugs hereinbefore mentioned, when imported in bulk and not put up + for any of the purposes hereinbefore specified, are excepted from the + operation of this sub-section. + + “(b) That any officer, agent, or employee of the Government of the + United States who shall knowingly aid or abet any person engaged in + any violation of any of the provisions of law prohibiting importing, + advertising, dealing in, exhibiting, or sending or receiving by mail + obscene or indecent publications or representations, or means for + procuring abortion, or other articles of indecent or immoral use or + tendency, shall be deemed guilty of a misdemeanor, and shall for + every offense be punishable by a fine of not more than $5000 or by + imprisonment at hard labor for not more than ten years, or both.” + + SEC. 6. The transportation by mail or by any public carrier in the + United States or in territory subject to the jurisdiction thereof, + of information respecting the means by which conception may be + prevented, or of the means of preventing conception, is hereby + prohibited, except as to such information or such means as shall be + certified by not less than five graduate physicians lawfully engaged + in the practice of medicine to be not injurious to life or health. + Whoever shall knowingly aid or abet in any transportation prohibited + by this Act shall be deemed guilty of a felony, and, upon conviction + thereof, shall be fined not more than $5000 or imprisoned for not + more than five years, or shall be punished by both such fine and + imprisonment. + + + + +APPENDIX NO. 12 + +CONDENSED CHRONOLOGICAL STORY OF THE FEDERAL BILL TO REMOVE THE BAN ON + CONTRACEPTIVE KNOWLEDGE FROM THE OBSCENITY LAWS + + +[Sidenote: 1919.] + + July 24. Began preliminary interviews with Senators and Congressmen + with a view to discovering the right sponsor for the bill, and to + create a good atmosphere for its introduction. + + Sept. 24. Asked Senator France of Maryland to introduce it, he being + chairman of the Committee on Public Health, a physician and heartily + in favor of the bill. He agreed to consider it. + + Oct. 21. Senator France doubted the wisdom of his being sponsor. He + suggested Senator Norris of Nebraska. + + Oct. 22. Senator Norris was wholly favorable to the measure, but said + the prejudice of the Judiciary Committee against other measures for + which he stood would hurt his sponsorship and he hadn’t the advantage + of being a physician. + + Oct. 23. As Senator France was most desirable, the sponsorship was + again put up to him and he said he would again consider it. + +[Sidenote: 1920.] + + Jan. 19. After nearly three months of prodding by letters and + interviews, Senator France wrote that he did not feel ready to + shoulder our bill ahead of others to which he was already committed. + He did not decline, but thought it unfair to keep us waiting further. + + Jan. 21. Took it back to Senator Norris, who agonized over it + conscientiously, but decided he had better not. He had sounded + Senator Ball, the only other physician in the Senate beside France. + Found him rather skeptical. He then suggested asking Senator Nelson, + chairman of the Judiciary Committee to do it as proof of his + repentance for having been an abusive opponent (one of the very few + we have met). + + Jan. 22. Senator Nelson’s repentance went to the extent of + recommending that the bill be referred first to the Committee on + Public Health and implied that the Judiciary Committee would concur + if the report should be favorable. + + During the next few weeks, besides hunting for a sponsor we + interviewed the Health Committee. Seven out of eleven were wholly + in favor or inclined favorably toward the bill. + + Senator Ball was seen several times, in the hope that he would + prove to be the right sort for a sponsor. He was slow in coming to + a conclusion as to the merits of the bill. + + Meanwhile two other Senators were asked. + + Jan. 29. Senator Sterling of South Dakota, first. The discussion + convinced him as to the merits of the bill, and he finally agreed to + consider sponsoring it. + + Feb. 18. Urged his decision. He did not refuse, but said he would be + relieved to be released from consideration. Promised to work for the + measure in Committee and on the floor. + + Mar. 5. After conferring with Senators France and Norris, whose + advice has always been helpful, took the bill to Senator Dillingham + of Vermont. He is wholly in favor but considered himself unsuitable + sponsor. He is the _only_ Senator who has not kept us waiting for his + decision. He urged Ball as best sponsor. + + Mar. 6. As Senator Ball had announced on February 20th, that he + was convinced by our data—on the advice of Dillingham, France and + Norris, he was asked by letter to introduce the bill. + + Mar. 11. Went to Washington for his decision. Found him; he had not + even read the letter carefully enough to realize he was being asked. + Said “No.” Then reconsidered and agreed to talk it over with France. + + Mar. 19. _He promised to sponsor the bill._ He asked for “a few days + of grace” before introducing it, to recover from influenza and attend + to the suffrage crisis in Delaware. + + Apr. 21. Introduction still hanging. Said he “hadn’t had time.” + Meanwhile the comment of the other Senators had begun to disconcert + him. He turned us over to Major Parkinson of the bill drafting + service to discuss phraseology and work out an opposition-proof bill. + Everything was settled to our satisfaction. It was the Senator’s next + move. + + Apr. 24. He “hadn’t had time to see Parkinson,” and asked for a few + days more of patience. We reminded him that we had waited over a + month. He said he would surely do it during this session. We insisted + on something definite. He finally promised “some day next week” and + that he would wire us what day. + + May 25. No word, despite letters from our office and many from the + supporters of the League. + + Letters, telegrams, personal interviews with Senator Ball in + Washington were all unavailing. He did nothing but reiterate + promises. + + June 5. _The Senate adjourned and the bill was not introduced._ + + Dec. 6. With the opening of the last session of Congress, we began + the sponsor hunt again. Nine Senators in succession have been asked + to sponsor the bill, as follows: + + _Sen. Capper of Kansas._ For the bill, but too submerged in his + agricultural relief bills to take ours on. + + _Sen. Townsend of Mich._ (Member of Health Com.) Favors the bill, + but declined on grounds that he was too ignorant on the data to + face debate, and too busy to get primed. + + _Sen. Kenyon of Iowa._ (Had reputation of being chief welfare + advocate of Senate.) Too busy with his “packer” bill. Might + consider it at next session. + + _Sen. McCumber of S. D._ Admitted merit of bill, but thought he + better not imperil his re-election (in 1923) by sponsoring it. + Suggested that it be introduced by Health Com. as a whole, without + individual sponsorship, so no one would “be the goat.” + + _Sen. Sheppard of Texas._ (Sponsor of Sheppard-Towner Maternity + Bill.) Recognized necessity of our bill to complete the service + provided by his bill, but could not consider sponsoring ours till + next session anyway, and probably not then, as he thinks it should + come from a Republican. + + _Sen. Fletcher of Fla._ (Member of Health Com.) Heartily approves + bill, but considers himself unsuitable sponsor because he is a + Democrat. + + _Sen. Frelinghuysen of N. J._ (Member of Health Com.) Frankly said + he would be “afraid” to do it, but he feels favorably toward the + bill. + + _Sen. Owen of Okla._ (Member of Health Com.) Like Senator France, + author of bill for Federal Health Dept.—unqualifiedly in favor, + but sure bill should not be sponsored from Democratic side. + + Dec. 31. Proposed to Senator France that the bill be introduced by + the Health Committee without individual sponsorship. + + +[Sidenote: 1921.] + + Jan. 5. Senator France declined the proposition on the ground that + the burden of the bill would fall on him just the same. + + Jan. 13. After thorough consultation with Senator France, took bill + back to Senator Sterling. + + Jan. 27. Senator Sterling answered that he was “too busy to do it at + this session.” + + Feb. 11. Senator Kenyon was asked to reconsider. He replied, “I’m + mighty sorry, but I am just loaded down with bills that are taking + every minute of my time, and I must ask you to secure some other + Senator to take care of this legislation for you.” + + Mar. 1. Senator Borah was asked to sponsor the bill. He did not see + his way to doing it. + + Aug. 19. Post Master General Hays had put himself on record as not + believing in the maintenance of Post Office censorship laws. He was + accordingly asked to consider recommending to Congress the removal + of the censorship law regarding birth control knowledge. He was + most hospitable to the suggestion—said it was timely, that he was + interested and had about come to the conclusion that he ought to ask + Congress to revise all the laws bearing on Post Office censorship + power. He asked for a compilation of pertinent data, which was + promptly provided. He had the matter under consideration till he + resigned office the following March. But he made no recommendation to + Congress. + +The sponsor hunt began again. + +Senator Borah suggested the possibility that he might slip in our bill +as an amendment to the bill proposing to extend Post Office censorship +to information about race track betting tips, if it was reported out of +committee and reached the floor for discussion. The bill was killed in +Committee, due in part to Senator Borah’s opposition to it. + + +[Sidenote: 1922.] + + Dec. Sponsors found in both Houses. Senator Cummins in the Senate, + and Congressman John Kissel of New York in the House. The latter + responded to a circular letter asking for a volunteer statesman for + the task. + + +[Sidenote: 1923.] + + Jan. 10. Bill introduced in both Houses. + + Jan. 22. Sen. Nelson, Chairman of the Judiciary Committee appointed + Sub-Committee of three to consider the bill—Senators Cummins, Colt + and Ashurst. Senator Cummins was ill and went to Florida. Committee + action was stalled. + + Strenuous effort was made to get substitute Chairman so action + could proceed. Norris was added to Committee but not as Chairman. + + Feb. 6. Sen. Colt declined to act as Chairman. + + Feb. 8. Sen. Colt asked to be excused from the Committee. + + Feb. 13. Sen. Cummins returned. + + Feb. 19. Sen. Cummins tried to get vote of full Judiciary, as + conditions had not permitted a Hearing and report from the + Sub-Committee. Meeting adjourned without action. They “did not get to + the bill.” + + Feb. 26. Sen. Cummins tried again to get a vote. Announced that he + would call for it before adjournment, again. The members slipped out + one by one, so no quorum was present. The Senator said, “They just + faded away.” + + +[Sidenote: 1924.] + + Jan. 30. Bill reintroduced by Senator Cummins. + + Feb. 1. Bill introduced in House by Congressman William N. Vaile of + Colorado. + + Mar. 7. Bill referred to Senate Sub-Committee, consisting of Senators + Spencer, Norris and Overman. + + Mar. 22. Bill referred to House Sub-Committee of seven, Congressmen + Yates, Hersey, Perlman, Larson, Thomas, Major and O’Sullivan. + + Apr. 8. Joint Hearing held before both Sub-Committees. Ten spoke for + the bill, and five against. + + May 9. Hearing reopened at request of the Catholics. + + June 7. Congress adjourned. Neither Committee reported the bill. + + +[Sidenote: 1925.] + + Dec. Senator Cummins made Chairman of the Judiciary Committee. + + Jan. 20. Senate Sub-Committee unanimously reported Cummins-Vaile Bill + “without recommendation.” + + House Sub-Committee evaded making a report. + + Mar. 4. Congress adjourned. + + + + +APPENDIX NO. 13 + + SENATORS BORAH AND STANLEY ARGUED BEFORE THE JUDICIARY COMMITTEE IN + 1921 FOR THE PRINCIPLES ON WHICH THE CUMMINS-VAILE BILL IS BASED, BUT + REGARDING ANOTHER BILL + + +The following excerpts from the Hearing, with editorial comment, are +taken from the Birth Control Herald of January 20, 1925. + + The Bill on which the Hearing was held had passed the House in + October, 1921. It aimed primarily to make race track betting tips + unmailable, but section No. 5 to which Senators Stanley and Borah + objected most strenuously was a sweeping infringement of the freedom + of the press, by which nothing could go through the mails that + gives any information as to bets or wagers on any contest of speed, + strength or skill. The bill was referred to a Sub-Committee of the + Judiciary consisting of Senator Sterling, Chairman, and Senators + Borah and Overman. + + The measure has never been reported out by the full committee, and + it seems evident that the vigorous opposition of the two Senators + who argued on principle, and the disapproval of powerful newspaper + associations, have resulted in the burying of the bill. + + At the time of this Hearing (January, 1922), Senator Stanley was not + on the Judiciary Committee but he was so interested in preserving the + right of free press from further encroachment that he appeared at the + Hearing as an opponent of the bill, and as a pleader for fundamental + liberty. At present, however, he is a member of the Judiciary + Committee, with the best of opportunities to make his convictions + count effectively for the Cummins-Vaile Bill, in which precisely the + same principle is at stake, namely, the freedom of the press and the + right of the individual to have access to knowledge. + + The V. P. L. Director was originally indebted to Senator Borah for + her copy of the report of this Hearing. He has never faltered in his + opposition to the principle of censorship. And Senator Sterling, + the Chairman before whom this Hearing was held, was already at that + time committed to support of the Cummins-Vaile Bill. He gave his word + that he would work for the Bill in the Judiciary Committee and on the + floor of the Senate. + + In the 113 pages of the Report of the two Hearings on the bill to + exclude gambling information from the mails, there are many more + analogies to the principle involved in the Cummins-Vaile Bill than + there is room to recount, so the excerpts below are only samples. + + At the very start there is similarity of circumstance. At the first + Hearing Senator Stanley spoke “especially of the section that + was added in the last hour of debate, about which I am advised + comparatively few members of Congress knew anything at the time + of its passage.” That the House should have inadvertently passed + a measure on the strength of its moral sounding aim, but which + contained an unwarranted suppression of constitutional rights is + exactly what happened in 1873, when the Comstock bill was hastily + passed, aimed at obscenity, just as this bill was aimed at gambling, + but blundering into suppression not only of crime, but of freedom. + + _Sen. Stanley_ (speaking on behalf of representatives of the chief + metropolitan newspapers): “These great papers wish an opportunity to + show that the gambling evil is not best remedied—especially by a + government of delegated powers—by an unwarranted restriction of the + freedom of the press or the freedom of speech.” + + (Similarly, the abuse of contraceptive information is not to be + remedied by laws forbidding access to that information. Ed.) + + _Sen. Stanley_ (at the second Hearing): “Despotic governments + have always viewed and always will view freedom of speech with + apprehension and alarm. When you have placed a censorship or + arbitrary inhibition or prohibition upon either the freedom of speech + or the freedom of the press, you have not invaded one constitutional + right, but have imperilled or desolated them all.” + + _Sen. Borah_: “Do you attack this as unconstitutional, or simply the + policy of it?” + + _Sen. Stanley_: “Both. I maintain that it is not necessary to show + that it is unconstitutional, because of its folly and its unwisdom. + It is absolutely a violation of the spirit of the Constitution.” + + _Sen. Sterling_: “If you think race-track gambling is an evil, do you + think that advice or suggestions in regard to wagers and bets should + be prevented?” + + _Sen. Stanley_: “May I answer that question by asking another? Does + the Chairman believe that the Federal government should pass a law + prohibiting anything that is morally or industrially wrong?” + + _Sen. Sterling_: “Oh no, there are limitations of course upon the + power of the Federal government to do those things.” + + _Sen. Stanley_: “Yes, ... I had begun to doubt it.” + + _Sen. Sterling_: “This prohibits the use of the mails for certain + purposes.” + + _Sen. Stanley_: “Yes.” + + _Sen. Sterling_: “And we have passed laws relative to the use of the + mails ... prohibiting certain written or printed matter....” + + _Sen. Stanley_: “And Mr. Chairman, that is the worst vice, the worst + phase of this legislative itch with which the country is infected, + for the Federal and sumptuary regulation of all the activities of the + people, moral, intellectual and industrial. It is gaining. One bad + law breeds a million.” + + _Sen. Borah_: “Well, Mr. Stanley, you do not have to make any + argument to me that we have no power to establish a censorship.” + + _Sen. Stanley_: “This is as fine an instance, Mr. Chairman, as I + know, of the abortive birth and progress of this character of half + baked legislation. A bill, honest, and perhaps advised in the main, + was introduced.... As it passed a Representative took a shot at it on + the fly and inserted this section 5. The Postmaster General (Hays) + in a letter to Chairman Nelson of this Committee very pertinently + observed: ‘This particular section 5 makes it an offense for + newspapers to publish racing news. I favor the bill, but am opposed + to this section 5. I was not consulted about it, and I hope this + section does not pass. The whole bill had better be defeated in my + opinion, than to add this additional curtailment of the freedom of + the press. There has been a very strong tendency of late in that + direction, and I am sure it is essential that such tendency be + checked. I am reminded of Voltaire’s statement, “I wholly disapprove + what you say and will defend with my life your right to say it.”’” + + _Sen. Borah_: “It is not necessary to proceed any further then, is + it?” + + _Sen. Stanley_: “Senator, I think there is more in this than this + bill. I have no fear that this bill will pass. This is too much. + Neither the minds nor the stomachs of the people are prepared to + endure it. But I wish to emphasize its evils in order that this + character of legislation may be discouraged, that this persistent and + pernicious effort to control the freedom of the press may find an end + somewhere at some time.” + + (The Cummins-Vaile Bill will also help to end it. Ed.) + + _Sen. Borah_: “Well, Senator Stanley, as I think you know from + personal conversation, I am quite in sympathy with your view, but + I am unable to construe this letter (from Postmaster General Hays, + quoted above) in harmony with a number of statutes that are already + upon the statute books, and already in force.” + + (The Comstock law, for instance. Ed.) + + _Sen. Stanley_: “It is unfortunately true.” + + _Sen. Borah_: “Indicating that we are taking a step back to + constitutional government.” + + _Sen. Stanley_: “Buckle says that all civilization for five hundred + years consisted in repealing laws. I wish Buckle were eligible for a + seat in the Senate now.” + + (Hear, hear! Ed.) + + “Mr. Chairman, the greatest influence for good—and it may be + greatest power for evil—is the power of the press. There is no free + government without it. There are no free men without it. There is no + free thought without it. I commend to your attention just a little + paragraph from that great defense of free institutions, with (one) + possible exception, the greatest in the English tongue: ‘Though all + the winds of doctrine were let loose to play upon the earth, so Truth + be in the field, we do ingloriously by licensing and prohibiting to + misdoubt her strength. Let her and Falsehood grapple; who ever knew + Truth put to the worse in a free and open encounter?’” + + _Sen. Stanley_ continuing: “Now let us see what this bill prohibits. + Section 5 reads: ‘No newspaper, postcard, letter, circular, or other + written or printed matter containing information, or statements, by + way of advice of suggestions, purporting to give the odds at which + bets or wagers are being laid or waged, upon the outcome of speed, + strength or skill, or setting forth the bets,’—now get this,—‘made + or offered to be made, or the sums of money won or lost upon the + outcome or result of such contest,’ etc. + + “If a school boy at college should write to his mother that his + room-mate had bet five cents on a foot-ball game, he could be sent to + the penitentiary for five years and fined $5000. + + “Put in force this act and then endeavor to convince a civilized + world that this is the land of the free and the home of the brave.” + + (Compare the wording of this proposed law with that of the old + Comstock law by which “every book, pamphlet ... paper, letter, + writing ... or notice of any kind giving information directly or + indirectly where, how or of whom or by what means,” etc., conception + may be controlled is unmailable. Then parallel Sen. Stanley’s + instance of the college boy and his five cent bet on the foot-ball + game with the fact that no mother can now lawfully write to her + married daughter any information even in a private letter as to how + she may space the births of her babies. Ed.) + + _Sen. Stanley_: “The evil of attempting to restrict the freedom + of the press in discussing this matter more than counterbalances + any possible ultimate good. It is purely problematical whether it + would stop any racing or not, or deter it. It is an actual fact + that it would be another step in the wrong direction—that is of a + pernicious, vexacious, inquisitorial censorship of the press. + + “It would of course be argued that the boy would not be sent to + prison for five years or fined $5000. And why? Because judges have + more sense and more humanity and more decency than the Senate, and + that they would refrain from doing what they are authorized to + do. Now you enact this bill, and how do you know that somewhere, + sometime, you are not going to find a Judge that has just as little + sense of proportion and propriety and justice as the Senate of the + United States? + + (For instance the Judge who sent Carlo Tresca to jail for a small + unwitting infringement of the Comstock act, which government + officials as a whole make not the slightest attempt to enforce. Ed.) + + _Sen. Stanley_, satirically: “Because Congress has gone very near the + end of its constitutional tether, it should cut the tether and go the + whole length: because it has regulated the freedom of the press in a + few respects, it should now proceed to regulate them in all respects.” + + _Sen. Borah_: “I think, Senator Stanley, that the argument that we + will have to rely upon finally is whether we are going any further. + There are plenty of precedents for this law on the statute books.... + They are bad precedents, but they are there.” + + _Sen. Stanley_: “Exactly, Senator Borah.” + + _Sen. Borah_: “I would like to repeal many of them.” + + _Sen. Stanley_: “I would like to join you in that.... + + “No man of course is in favor of moral uncleanness.... But that is + no reason why the Federal Government should act as a spy and as a + supervisor of the private relations between men and women in the + several States.... + + “Race gambling no one doubts is an evil. Of course it is. But + intemperance is a bad thing. Therefore the papers must not encourage + intemperance by mentioning the concomitants of an alcoholic drink; + the other day an officer tried to stop the Cincinnati Inquirer from + making reference to a copper can because they said some copper cans + were used for distilling! That is a fact. Where are we going to stop? + + “Burglary is a bad thing. Think of it, there are millions of men who + do not know that a simple flat piece of steel, called a jimmy, can + be used to open doors that are locked.... Suppose the papers tell of + how a man gets into a house by means of a jimmy ... some fellow reads + that and gets a jimmy and breaks into a house. Are you going to stop + all mention of that?... I want to stop now, any further advance as + Senator Borah has said, in this pernicious practice of regulating + the morals of the people by prescribing what the press shall say + about their morals, whether in their domestic relations, their gaming + practices, or anything else.... + + “You pass this act, and by virtue of its precedent and those others + of its kind that now deface the statute books of a free country, + within a few short years, with a little ingenuity, I can keep + anything out of the columns of the press except an account of a + school picnic or a pink tea. I thank you, Mr. Chairman.” + + (And this paper thanks the Senator. Ed.) + + +APPENDIX NO. 14 + +SECTIONS OF THE FOOD AND DRUG ACT WHICH ARE PERTINENT TO MATERIALS USED + FOR THE PREVENTION OF CONCEPTION + + +_Manufacture_: + +Sec. 8717: It shall be unlawful for any person to manufacture within +any territory or the District of Columbia any article of food or drug +which is adulterated or misbranded, within the meaning of this Act. + + +_Importation_: + +Sec. 8718: The introduction into any State or Territory or the District +of Columbia from any other State or Territory or the District of +Columbia, or from any foreign country of any article of food or drugs +which is adulterated or misbranded, within the meaning of this Act, is +hereby prohibited. + + +_Definition of Drug Includes Compounds_: + +Sec. 8722: The term “drug,” as used in this Act, shall include +all medicines and preparations recognized in the United States +Pharmacopoeia or National Formulary for internal or external use, and +any substance or mixture of substances intended to be used for the +cure, mitigation, or prevention of disease of either man or other +animals. + + +_Adulteration_: + +Sec. 8723: For the purposes of this Act an article shall be deemed to +be adulterated: + +In case of drugs: + +First: If, when a drug is sold under or by a name recognized in the +United States Pharmacopoeia or National Formulary, it differs from the +standard of strength, quality, or purity as determined by the test laid +down in the United States Pharmacopoeia or National Formulary official +at the time of investigation. + +Second: If its strength or purity fall below the professed standard of +quality under which it is sold. + + +_Misbranding_: + +Sec. 8724: The term “misbranded,” as used herein, shall apply to +all drugs, or articles of food, or articles which enter into the +composition of food, the package or label of which shall bear any +statement, design, or device regarding such article, or the ingredients +or substances contained therein which shall be false or misleading +in any particular, and to any food or drug product which is falsely +branded as to be the State, Territory, or country in which it is +manufactured or produced. + +That for the purposes of this Act an article shall also be deemed to be +misbranded. + +In case of drugs: + +First: If it be an imitation of or offered for sale under the name of +another article. + +Second: (Not pertinent.) + +Third: If its package or label shall bear or contain any statement, +design, or device regarding the curative or therapeutic effect of such +article or any of the ingredients or substances contained therein, +which is false and fraudulent. + +Fourth: If the package containing it or its label shall bear any +statement, design, or device regarding the ingredients or the +substances contained therein, which statement, design, or device shall +be false or misleading in any particular. + + + + +APPENDIX NO. 15 + +FREEDOM OF ACCESS TO KNOWLEDGE OF THEIR OWN CHOOSING DENIED TO +CATHOLICS BY OREGON SCHOOL LAW, AND SERIOUSLY THREATENED IN OTHER STATES + +SAME PRINCIPLE AT STAKE AS THAT IN CUMMINS-VAILE BILL + + +The following letter was sent by the Director of the Voluntary +Parenthood League to every Catholic member of Congress. There are 37 +Catholic members in the House, and 5 in the Senate. + + January 16, 1925. + + DEAR SIR: + + Am I correct in thinking that you are one of the thirty-seven Roman + Catholic members of the House? If so, may I not assume both your + special interest in the recently attempted anti-Catholic legislation + in several States, and in the possibly anti-Catholic tendencies of + certain proposed Federal measures, and your common concern with all + liberty loving Americans at these new menaces to certain of our + fundamental rights. + + Among the proposals to which I refer are those made in Oregon, + California, Washington, Michigan and Alabama to restrict Catholic + teaching and learning. The laws proposed have not attempted directly + to prohibit Catholic schools, but they indirectly achieve that end, + by compelling all children of certain ages to attend public schools + during all the hours of all the school days through out the year. + What is perhaps the most preposterous of these attempts, actually + became law in Oregon in 1922. Its provisions are incredible to + upholders of a supposedly free government. They create a Prussian + type of surveillance and control over all private instruction, and + empower a County School Superintendent, vested with absolutely + autocratic authority from which there is no appeal, to decide whether + such private instruction as may be allowed is being “properly” + conducted and to compel children receiving such private instruction + as he may disapprove to attend the public school in the district of + their residence. Fortunately, protest against this outrageous law + from Catholics and other citizens, has taken the questions to the + courts. Equally fortunately, the Federal District Court in Oregon has + pronounced against the law’s constitutionality. + + At Washington, it is the Sterling education bill at which lovers of + our constitutional liberties, Catholics and non-Catholics alike, are + looking askance as a possible gateway to Federal compulsion of public + school attendance, or to other Federal interference with individual + freedom in the acquisition of knowledge. In view of these legislative + tendencies, then, and of the intolerant and lawless aggressiveness of + certain groups which are violently anti-Catholic, and quite ready to + translate their feelings into political control, may there not well + be concern lest our guaranteed American freedom become a farce? + + This is no time then for thoughtful Catholics to take sides against + freedom. They need it to protect their own rights. Am I wrong in + thinking that, on sober thought, they will not wish to line up + against a bill that makes a stand for the very principle that is most + dear to them, namely, their right to knowledge of their own choosing? + It has been generally assumed that Catholic Representatives, as such, + will vote against the Cummins-Vaile Bill, which touches inferentially + upon “birth control”; but will they, can they, when they reflect + that this measure only seeks to repeal the same kind of pernicious + legislation as now imperils the civil liberties of all of us, but + Catholics in particular, in the matter of their schools and religious + instruction? + + For these reasons I respectfully ask your judicial consideration of + the above facts and those which follow, as they have a bearing on the + decision to be made as to this bill by any Congressman who is at the + same time a loyal Catholic and a conscientious legislator. + + Neither the existing laws nor the provisions of the Cummins-Vaile + Bill deal directly with the question of birth control. They have no + right to do so. That is essentially a question for the individual + conscience. But they do both affect the question indirectly. However, + in so doing the laws have established tyranny, whereas the bill + re-establishes individual freedom. The laws are an intrusion upon + personal liberty, such as is prohibited by the constitution, and the + bill simply removes that intrusion. + + No Federal statutes forbid the actual control of conception. That is + an entirely lawful act for the individual. But the laws do forbid + the circulation by any public carrier, of any information as to how + conception may be controlled. That is, they forbid the circulation + of knowledge by restricting the freedom of the press, and even the + freedom of individual communication by letter. Yet freedom of speech + and press is constitutionally guaranteed. + + Liberty to learn and to teach is a fundamental American right, which + may not justly be infringed, except when the things taught are + criminal acts. The control of conception is not a crime. It could + not possibly be declared such, by law. It may be contrary to ethics, + morality and religious teachings as claimed by the authorities of + the Catholic Church, but so also it may not be. Opinion differs + about it, though it is obvious that the trend of opinion, as proven + by the birth rates the world over, is in its favor. However, it is + a question apart from the law, and should be worked out in accord + with personal conscience, and whatever educational and inspirational + influence the individual wishes to accept. + + So I earnestly ask you, Sir, to think this matter through, and to + co-operate now with us who are working for enactment of this bill; + so that freedom may be safeguarded for everyone, and each allowed + to utilize it according to his own conscience. I do not ask you + to believe in birth control. It would be utterly irrelevant and + intrusive to do so. It is not the point of the bill. The point of + the bill is one that all Americans should have in common, a love of + freedom and insistence upon having it for all. + + Will you stand for the Cummins-Vaile Bill on that one ground? + + Yours respectfully, + MARY WARE DENNETT, + _Director_. + + +FOOTNOTES: + +[1] To give the name, would make this book “unmailable” under the law. + +[2] Published by the Voluntary Parenthood League. + +[3] The bill which Mrs. Sanger was then trying to have introduced _did +not remove the subject from the obscenities_, except in the case of the +doctor. For all others it still remained an indecency. + +[4] The bill proposed did not allow self-government as to the control +of conception, but only physician-government. The person applying could +get instruction only if the doctor chose to give it, not otherwise. + +[5] These States present a knotty legal question as to whether +the repeal of the Federal prohibition relating to the mails will +automatically make these State laws void. Legal opinion (as expressed +by Attorneys Alfred Hayes and James F. Morton, Jr.) seems to agree that +the Federal action will probably be effective, but there is authority +for the assumption that under the State law police power might withhold +such supposedly undesirable mail from the recipient. + + + + + TRANSCRIBER’S NOTE + + Obvious typographical errors and punctuation errors have been + corrected after careful comparison with other occurrences within + the text and consultation of external sources. + + Inconsistent hyphenations have been left as is. + + Unmatched quotation marks have been left as printed. Double quotation + marks occurring within a passage within double quotation marks have + been left as printed. + + Except for those changes noted below, all misspellings in the text, + and inconsistent or archaic usage, have been retained. + + Page vi. “sponsor—Cummins-Kissell” replaced by “sponsor—Cummins-Kissel”. + Page vii. “Doctor’s Only” replaced by “Doctors Only”. + Page 15. “physican” replaced by “physician”. + Page 36. “pornagraphic” replaced by “pornographic”. + Page 37. “putrefying sores,”“ replaced by ““putrefying sores,””. + Page 42. “it seem” replaced by “it seems”. + Page 43. “instinctly acting” replaced by “instinctively acting”. + Page 50. The word “crime” is enclosed in double quotation marks, an + extra single quotation mark has been removed. + Page 52. “Recive” replaced by “Receive”. + Page 55. “weaklies” replaced by “weeklies”. + Page 66. “park that flamed” replaced by “spark that flamed”. + Page 85. “may protests” replaced by “many protests”. + Page 92. “State legislatlon” replaced by “State legislation”. + Page 94. “Cummins-Kissell” replaced by “Cummins-Kissel”. + Page 94. “every one against:” replaced by “every one against.”. + Page 105. “these pople” replaced by “these people”. + Page 117. “from heresay” replaced by “from hearsay”. + Page 123. “hearings analagous” replaced by “hearings analogous”. + Page 146. “Mrs. Dennet” replaced by “Mrs. Dennett”. + Page 158. “giving exerpts” replaced by “giving excerpts”. + Page 160. “this subjest” replaced by “this subject”. + Page 181. “seeems to prevent” replaced by “seems to prevent”. + Page 184. “member of Congress” replaced by “members of Congress”. + Page 198. “sex conciousness” replaced by “sex consciousness”. + Page 248. “the the principle” replaced by “the principle”. + Page 251. “substracting errors” replaced by “subtracting errors”. + Page 252. “scorn of pretentions” replaced by “scorn of pretensions”. + Page 265. “Cortlandt Palmer” replaced by “Courtlandt Palmer”. + Page 301. ‘certain purposes.’ replaced by ‘certain purposes.”’. + Page 301. Closing double quotation mark added after “printed matter.” + + + +*** END OF THE PROJECT GUTENBERG EBOOK 76901 *** |