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.