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?