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.