CHAPTER III
CAN THE PEOPLE GET WHAT THEY WANT?
_Congress will do what the people want if the request is made clearly and forceably enough: Inhibitions are waning: Later generations will not bless birth control workers or Congress if legislation is bungled now: Danger of blundering as Comstock blundered: Those who mean well regarding legislation must do well: Present laws unconstitutional: First class legal opinion deems all “doctors only” laws unconstitutional also: Time to discard governmental distrust of the people._
The people can get just what they want from Congress and the State Legislatures regarding the birth control question, if they make their wants known definitely enough. If they leave it wholly to the relatively few citizens who take the trouble to go down to Washington and worry bills through Congress, they may wake later to find that misguided enthusiasm has done for this generation what Comstock did for his generation—enacted laws which were well meant, but which have worked ill. Some senator of our day may have to warn Congress as did Senator Conkling in 1873, lest we “do something which when we come to see it in print, will not be the thing we would have done if we had understood it.” It is doubtful if any thoughtful members of Congress or any clear-headed citizens could be proud if it should happen that the laws affecting birth control were amended so as to create a special privilege in access to knowledge instead of freedom for all; if they established monopoly instead of equal opportunity; or if they created paternalism instead of democracy. No one in later years would bless Congress for passing another batch of unenforceable laws. And it is safe to say also that American citizens would not bless any birth control advocates who, after endless talk and the expenditure of time and money which Congressional work requires, should persuade Congress to leave the subject of birth control still mired in the obscenity laws where Comstock (and Congress meekly acquiescing) placed it over half a century ago.
Much water has gone under the bridge since birth control corrective legislation was first proposed. Congressional inhibitions have considerably lessened. The whole subject in press, pulpit, fiction and private life is on a more wholesome plane than ever before. The time is ripe to have that improvement reflected into sound legislative action. Congress will just as willingly do the fine thing as the flimsy thing, if the people demand it. Congress will help to take birth control out of the laws, instead of putting it into further spurious laws, if the people say so.
It is up to the public to let the birth control workers know what is wanted, and for both the birth control workers and the public to let Congress know what is wanted—and wanted with the best that is in people’s minds and hearts, not what is dictated by their superficial fears, their doubts and their shames.
Professor Raymond Pearl has said: “The cure for the defects of birth control, paraphrasing the old remark about democracy, is more and more democratic birth control.” And surely the cure for the defects of legislation regarding birth control is more and more democratic legislation.
It has to be admitted that the American public has often been shockingly easy-going about responsibility for the sort of laws that its representatives enact, likewise that the public is often woefully pliant in accepting ready made opinions and policies without analysis. But it is to be hoped that there are enough citizens who are genuinely interested to help check misguided legislation and promote sound legislation on this subject, to prevent our country from making another great blunder in birth control legislation instead of correcting Comstock’s original blunder with a clean firm sweep. Standing up and being counted as a believer in birth control is not enough. Those who are on record in birth control organizations as adherents of “the cause” must see to it that their names are not linked to endorsements of bills which they do not approve. Birth control leaders, like members of Congress, will yield to public opinion, if it is clearly enough and forcibly enough expressed.
It is time for every one who means well in this matter to do well also. The gist of the question is very simple and lucid. It has unfortunately been gummed up with all manner of excrescences. But they can all be readily scraped off by dint of the application of plain common sense and determination not to fool one’s self or to attempt to fool the public or the legislators.
Also there is a considerable portion of the American public which cares about having the laws on this subject in harmony with the proud traditions of American ideals, the people to whom the guarantees of freedom of speech and of the press mean something, and who are keen to have the spirit of the Constitution lived up to, not so much because it is the Constitution as because those principles of freedom are vital to human progress and precious to human aspiration. There has always been a sizable body of opinion that all the Comstock laws are constitutional, as contrary to the United States Constitution and to the constitutions of the States. Forty-five of the forty-eight States in the Union have provisions in their constitutions or the Bill of Rights that “every man is given the right freely to write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege.” Twenty-six of the States give an additional safeguard providing that “No law shall ever be passed to restrain freedom of speech or of the press.” Courtlandt Palmer, in 1883 wrote a vigorous article in the “New York Observer” in criticism of the Comstock laws, in which he said:
Sometimes a mistaken method of preventing vice entails worse evils than the vice it would prevent. The Liberals oppose the methods of these postal laws (the Federal obscenity laws) because they regard them as an example of saving at the spigot and losing at the bung, an instance of expending a dollar to save a dime. The question straightway narrows itself into one issue, viz., that of method. It is agreed on all hands that obscenity should be checked, and if possible eradicated. The only point is _how_. We regard these laws as unconstitutional, useless, unnecessary, impolitic and immoral. They are unconstitutional, because the United States Constitution simply empowers Congress to establish post offices and post roads—no more. How then can these words be construed to authorize our representatives to sit in judgment on the moral quality of the parcels entrusted to the mails? The Post Office as we conceive it is a mechanical not an ethical institution. Judge Story says in his work on the Constitution that Congress can not use this power (viz., to establish post-offices and post-roads) _for any other ulterior purpose_, which means, if it means anything, that while the government may for postal reasons, or for the convenience and necessity of the service, exclude such articles as liquor and dynamite, it can not sit in judgment on the intellectual or moral quality of the communications entrusted to it.
It has many times been suggested that the matter of birth control legislation be settled by a test case taken to the supreme court on the ground of unconstitutionality. But in view of the fact that the Supreme Court declined to act on Margaret Sanger’s case when it was appealed from the New York courts, and in view of various other precedents, it has not seemed a promising way to get results, certainly not quick results. It might take several years at best to carry a case through, and in the meantime Congress might be only too glad to utilize the fact that a decision was pending, to postpone its own responsibility to act on the repeal bill on which it has been asked to act for six years past. The obvious fact that the ban on the circulation of knowledge in the Comstock law is contrary to the right of freedom of the press should alone be sufficient reason for its repeal by Congress. And both birth control advocates and Congress should pay attention to the fact that there is first class legal opinion that all the “doctors only” laws, if enacted, would also be unconstitutional.
Above everything, is it not high time for Americans to discard these laws which are predicated upon the utterly undemocratic basis of governmental distrust of the people? Is it not a matter of deep concern to upstanding American citizens that they should be for over half a century the victims of the discreditable fear that animated a man like Anthony Comstock? Do not Americans trust themselves with knowledge? Are they longer willing to retain the mouldy laws which have stood for such a disgracefully extended period as a sign of distrust of the people? Are they not ready now to share the deep emotion of Walt Whitman who said, “There is to me something profoundly affecting in large masses of men following the lead of those who do not believe in men.” Are they not more than ready to demand that Congress and the State Legislatures shall make all haste in purging the statute books of these old blemishes, so that the pure white light of science may shine unimpeded upon the lives of all?
* * * * *
“Study, without reflection,” says Confucius, “is waste of time; reflection without study is dangerous.”
APPENDICES
APPENDIX NO. 1
THE SCOPE OF THE VARIOUS STATE LAWS IS GIVEN IN THE FOLLOWING COMPILATION
_The research work was done by Harriette M. Dilla, LL.B., Ph.D., formerly of the Department of Sociology and Economics of Smith College._
Twenty-four States (and Porto Rico) specifically penalize contraceptive knowledge in their obscenity laws.
Twenty-four States (and the District of Columbia, Alaska and Hawaii) have obscenity laws, under which, because of the Federal precedent, contraceptive knowledge may be suppressed as obscene, although it is not specifically mentioned. Obscenity has never been defined in law. This produces a mass of conflicting, inconsistent judicial decision, which would be humorous, if it were not such a mortifying revelation of the limitations and perversions of the human mind.
Twenty-three States make it a crime to publish or advertise contraceptive information. They are as follows: Arizona, California, Colorado, Idaho, Indiana, Iowa, Kansas, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Washington, Wyoming; also Porto Rico.
Twenty-two States include in their prohibition drugs and instruments for the prevention of conception. They are as follows: Arizona, California, Colorado, Connecticut, Idaho, Indiana, Iowa, Kansas, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Washington, Wyoming and Porto Rico.
Eleven States make it a crime to have in one’s possession any instruction for contraception. These are: Colorado, Indiana, Iowa, Minnesota, Mississippi, New Jersey, New York, North Dakota, Ohio, Pennsylvania, Wyoming.
Fourteen States make it a crime to tell anyone where or how contraceptive knowledge may be acquired. These are: Colorado, Indiana, Iowa, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Jersey, New York, Pennsylvania, Washington, Wyoming.
Six States prohibit the offer to assist in any method whatever which would lead to knowledge by which contraception might be accomplished. These are: Arizona, California, Idaho, Montana, Nevada, Oklahoma and Porto Rico.
Eight States prohibit depositing in the Post Office any contraceptive information. These are: Colorado, Indiana, Iowa, Minnesota, New York, North Dakota, Ohio, Wyoming.[5]
One State, Colorado, prohibits the bringing into the State of any contraceptive knowledge.
Four States have laws authorizing the search for and seizure of contraceptive instructions, and these are: Colorado, Idaho, Iowa, Oklahoma. In all these States but Idaho, the laws authorize the destruction of the things seized.
Certain exemptions from the penalties of these laws are made by the States for
_Medical Colleges_
Colorado Indiana Missouri Nebraska Ohio Pennsylvania Wyoming
_Medical Books_
Colorado Indiana Kansas Missouri Nebraska Ohio Pennsylvania Wyoming
_Physicians_
Colorado Indiana Nevada New York Ohio Wyoming
_Druggists_
Colorado, Indiana, Ohio, Wyoming.
* * * * *
Seventeen States prohibit any information which corrupts morals, 12 of them, as starred in the following list, particularly mentioning the morals of the young. This is an interesting point of view of the frequently offered objection to freedom of access to contraceptive knowledge, that it will demoralize the young. These States are: Colorado, Delaware,* Florida,* Iowa,* Maine,* Massachusetts,* Michigan,* Rhode Island, South Carolina, South Dakota, Tennessee, Texas,* Vermont,* Virginia,* West Virginia,* Wisconsin* and Hawaii.
Two States have no obscenity statutes, but police power in these States can suppress contraceptive knowledge as an “Obscenity” or “public nuisance,” by virtue of the Federal precedent. These States are: North Carolina and New Mexico.
APPENDIX No. 2
[Illustration: EFFECT OF REMOVING THE PROHIBITION OF CONTRACEPTIVE KNOWLEDGE FROM THE FEDERAL OBSCENITY LAWS
INFORMATION TRANSPORTABLE THROUGHOUT THE U.S.
24 STATES _and the Dist. of Col., Alaska and Hawaii_, WILL REQUIRE _NO_ FURTHER LEGISLATION
_Alabama_ _Arkansas_ _Delaware_ _Florida_ _Georgia_ _Illinois_ _Kentucky_ _Louisiana_ _Maryland_ _Michigan_ _New Hampshire_ _New Mexico_ _North Carolina_ _Oregon_ _Rhode Island_ _South Carolina_ _South Dakota_ _Tennessee_ _Texas_ _West Virginia_ _Wisconsin_ _Virginia_ _Utah_ _Vermont_ _Alaska_ _Hawaii_ _Dist. of Col._
24 STATES _and Porto Rico_ WILL REQUIRE FURTHER LEGISLATION
_Arizona_ _California_ _Colorado_ _Connecticut_ _Idaho_ _Indiana_ _Iowa_ _Kansas_ _Maine_ _Massachusetts_ _Minnesota_ _Mississippi_ _Missouri_ _Montana_ _Nebraska_ _Nevada_ _New Jersey_ _New York_ _North Dakota_ _Ohio_ _Oklahoma_ _Pennsylvania_ _Washington_ _Wyoming_ _Porto Rico_
_It will then be legal to transport contraceptive information anywhere in the United States._
_It will then be legal to give verbal information in 24 states, the District of Columbia, Alaska and Hawaii, which, by precedent of the federal laws, have heretofore been justified in suppressing contraceptive information as “obscene.”_
_With this precedent removed, the probability of such suppression will be negligible; and physicians may begin at once to teach contraception both in private practice and in clinics, hospitals and dispensaries. There are over 46,000,000 people in these states._
_In the remaining 24 states and Porto Rico, where the laws specifically prohibit giving contraceptive information, the necessary repeal acts will be more easily accomplished because of this federal example._
THIS IS THE LONGEST SINGLE STEP TOWARD ACHIEVING SELF-DETERMINED PARENTHOOD FOR THE UNITED STATES ]
APPENDIX NO. 3
THE ANNUAL REPORT OF THE ILLINOIS LEAGUE
In 1923, when the League decided to open a free clinic, we had wonderful plans and high hopes which were all dashed by the refusal of the Health Commissioner to grant us the necessary license. We took the matter into Court and received a decision in our favor from Judge Fisher but the case was immediately appealed. After waiting for months for a decision from the Appellate Court, we temporarily abandoned the idea of a free clinic and opened a Medical Center which does not require a license as it is operated as a private office, a small fee being charged to each patient.
When the decision was finally handed down it upheld Dr. Bundeson in his refusal, simply on the ground that the granting of licenses is a matter entirely in the discretion of the Health Commissioner. Our hopes of a free clinic being, therefore, definitely at an end, we opened in February, 1925, a second office at —— Street, known as Medical Center No. 2. Each Center has a secretary and our Medical Staff consists of the Director, Dr. —— and three physicians:
Dr. ...................... Dr. ...................... Dr. ......................
all of whom have given devoted service.
There is a commonly accepted picture of our Birth Control work which represents us as standing in the midst of clamoring crowds, distributing information indiscriminately to all comers and handing leaflets and tracts destined to fall into the hands of high school children and unmarried girls, thereby doing unlimited harm. The true picture is very different. Our offices, one on the inside court of the —— Building, the other in a small house on a quiet West Side street, have very little publicity. We do not advertise. It is difficult to get any notice of our work in the newspapers. It is not spectacular enough. The result is that our patients come slowly. We have had to build up a practice.
The first Medical Center was opened July 7, 1924, and during the first three months we had sixty patients, mostly sent to us by a few social agencies. In October we had some newspaper notices and our numbers jumped to seventy-four in one month. In November we had one hundred and twenty. From July seventh to date, ten months, we have had in all five hundred and forty patients. It may be interesting to hear some of the data on the first five hundred cases.
We are constantly asked what nationalities we reach. It would be simpler to say what nationalities we do not reach. The exact figures are as follows:
American 252 Polish 58 Hebrew 42 German 35 Colored 26 Bohemian 15 Italian 14 Swedish 11 English 8 Irish 7 Norwegian 5 Scotch 4 Hungarian 4 Slovakian 4 Canadian 2 Lithuanian 2 Austrian 2 Spanish 2 Belgian 1 Croatian 1 Greek 1 Swiss 1 Dutch 1 Russian 1 Mexican 1
Of these, 304 were Protestants, or 6/10ths were Protestants 147 were Catholics 3 were Greek Orthodox, or 3/10ths were Catholics 46 were Jewish, or 1/10th Jewish
Women of all ages have come, from 16 to 40, the largest number (152) being between the ages of twenty-five and thirty. The young girls under twenty are not school girls, they are rather weary, discouraged little mothers with two or three children, who seem to us entitled to information which will give them a few years’ rest in which to recuperate before they bear more children.
So much has been said about the selfishness of women and the growing desire of the modern woman to leave her home and go into industry that it is rather a surprise to find that 464 of the 500 patients gave their occupation as “Housewife” and only 36 were engaged in work outside their homes.
Of these, 13 were employed as stenographers or book-keepers, 7 were employed as teachers, 5 were still students, 5 were in social work, 6 were employed by the day, cleaning and doing housework.
In almost every case, the women were working to support their families because their husbands were either ill, or drank, or gambled. In a few cases the young couple were just married and living in one or two rooms and were both obliged to work in order to support themselves and of course felt that they must postpone all thought of children until they had saved enough to take care of them.
It is impossible to classify the occupation of the husbands. They cover practically every employment:
Engineer Laborer Carpenter Bank Cashier Gambler Minister Musician Switchman Teamster Watchman Lawyer Coal-miners, etc.
These people have come to us from many sources:
282 through the newspapers 54 from the United Charities 36 from the Infant Welfare Society 80 from Social Agencies, Settlements, Dispensaries, Doctors, etc. 48 from friends and patients.
Of the women, 252 have used some forms of contraceptive, some of them harmful, most of them useless. Many have resorted to abortion. The reasons given for wishing information are as difficult to classify as are the occupations of the men. In almost every case, the foundation of the trouble is economic but there are usually other complications. For instances:
Four children in four years. Instrumental deliveries—contracted pelvis and goitre. Caesarean operation always necessary. Wants to wait until stronger before having any more. Wants children but husband is just starting in business. Six children—all tubercular. No home, husband traveling musician. Nine miscarriages in ten years—retroversion—cannot carry to term.
It is also very interesting to note that we have had five cases of sterility, the women willing to do anything if only they might have children.
But it means very little to read a list of reasons like this—too many factors enter into each individual case and perhaps the only way to get a real picture of the situation is to have a little story of some of these family tragedies. The cases divide quite sharply into three classes:
I. Young women just married who wish to postpone having children for a few years until they can make a home.
II. Cases in which the health of either husband or wife makes children impossible.
III. Those many cases of too large families and too little money to take care of them.
Here is _Case No. 88_—Referred—Newspaper.
The man is 59 years old, a cashier. The woman 39 years old, married at 37, Swedish-Protestant. Has had one child. Reason for wishing information is, that she has nephritis, had a difficult labor and convulsions and was unconscious for five days. The baby died at birth.
_Case No. 451_—Referred by Mental Hygiene Society.
The man is 37 years old, cannot work. The woman is 38 years old, American-Protestant, married at 26 and has had seven pregnancies, four children, ages ten, eight, six and four years. She teaches to support this family. The husband is insane—diagnosis dementia praecox—and has been sent home from the Elgin Asylum on probation. The wife is in terror for fear of another pregnancy.
_Case No. 186_—Referred—Newspaper.
The man 30 years old, not working. The woman, 30, married at 21, American-Protestant, has had four pregnancies, two miscarriages and two children. The husband has spinal trouble. The woman is very nervous. One child has rickets and the other tubercular glands.
_Case No. 3._
Quite a tragic case. Man 37 years of age. The woman 36 years of age, married at 26, German-Protestant. In ten years she has had sixteen pregnancies, seven miscarriages, six induced abortions and three children. Reason—economic.
_Case No. 31._
The man 62 years of age, factory sweeper. The woman 31 years of age, married at 13, Italian-Catholic. In eighteen years she has had ten children, seven living, ages ranging from seventeen years to four months.
_Case No. 413._
The man is 41 years old, elevated guard. The woman is 30 years old, German-Protestant, married at 19 and has had seven children, six living. Reason—all they can support on husband’s wages.
_Case No. 59_—Referred by United Charities and Municipal Tuberculosis Sanitarium.
The man is 54 years of age, street cleaner, Colored-Protestant. The woman is 40 years of age, married at 20 and in twenty years has had sixteen pregnancies. Of the fourteen children, whose ages range from seventeen years to eighteen months, seven died in infancy.
_Case No. 241._
The man is 23 years old, laborer, no work. The woman is 19 years old, and was first married at fourteen, divorced after two months and married again at the age of sixteen. She has had three children, whose ages are four and two years and seven weeks. Reason—economic, and having children too fast.
_Case No. 318_—Referred—United Charities.
The man is 28 years old, laborer. The woman is 20 years old, German-Catholic, married at 19. Both feeble minded. One child feeble minded.
_Case No. 471_—Referred by United Charities.
The man is 31 years old, hostler, not working. The woman is 29 years old, Irish-Catholic, married at sixteen and has had nine children, seven living, ages ranging from eleven years to six months. The husband is chronic alcoholic.
* * * * *
This gives a clear record of the family history. The reason given by the mother for wishing information is _that she is too poor, worn out and very tired_. When one stops to think that this reason is given by a young woman of 29, it seems sad beyond words.
It is this sort of story that our doctors listen to day after day. The cases are not exceptional, there are so many almost alike that it is hard to select them.
At the moment there seem to be no legal obstacles on the horizon and we hope that we shall be able to go quietly on with our work which this year must include some meetings and talks on the West Side, in the Stock Yards’ Districts, and among the colored people, for the purpose of explaining what birth control really means. Most of the women are perfectly familiar with abortion but the idea of contraception has not yet reached those who need it most. We hope to establish more Centers and so to bring the information to the people who are not accustomed to coming to Michigan Avenue for medical advice.
APPENDIX NO. 4
SENTENCES OF BIRTH CONTROL ADVOCATES
FEDERAL
Margaret Sanger, New York 1914 Federal case—dismissed, 9 indictments. Mrs. Rhea C. Kachel, Philadelphia, Pa. $25.00 fine Mr. Fred Merkel, Reading, Pa. 25.00 fine William Sanger, New York 30 days—workhouse Emma Goldman, New York 15 days Joseph Macario, San Francisco Freed Emma Goldman, Portland, Ore. Freed Dr. Ben L. Reitman, Portland, Ore. Freed Margaret Sanger, Portland, Ore. Freed Carl Rave, Portland, Ore. $10.00 fine Herbert Smith, Seattle, Wash. 25.00 fine Van Kleeck Allison, Boston, Mass. 60 days Steven Kerr, New York 15 days Peter Marner, New York 15 days Bolton Hall, New York Freed Jessie Ashley, New York $100.00 fine Emma Goldman, New York Freed Dr. Ben L. Reitman, New York 60 days Ethel Byrne, New York 30 days (Pardoned during hunger strike.) Dr. Ben L. Reitman, Cleveland, O. 6 mos. ($1000 fine and costs.) Margaret Sanger, New York 30 days Kitty Marion, New York 30 days—workhouse
APPENDIX NO. 5
AMENDMENTS TO FEDERAL AND NEW YORK LAW PROPOSED IN 1915 BY THE NATIONAL BIRTH CONTROL LEAGUE
FEDERAL STATUTES
I. A Bill to Amend Section 211, the Federal Penal Code.
Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every article or thing designed, adapted, or intended for [preventing conception or] producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for [preventing conception or] producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information directly or indirectly, where, or how, of whom, or by what means any of the hereinbefore-mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means [conception may be prevented or] abortion may be produced, whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device, or substance and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine or thing may, or can be, used or applied, for [preventing conception or] producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever shall knowingly deposit or cause to be deposited for mailing or delivery, anything declared by this section to be non-mailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both. _But no book, magazine, pamphlet, paper, letter, writing or publication is obscene, lewd, or lascivious, or of an indecent character, or non-mailable by reason of the fact that it mentions, discusses or recommends prevention of conception, or gives information concerning methods or means for the prevention of conception: or tells how, where, or in what manner such information or such means can be obtained: and no article, instrument, substance or drug is non-mailable by reason of the fact that it is designed or adapted for the prevention of conception, or is advertised or otherwise represented to be so designed or adapted._
(Matter in brackets omitted; matter in italics new.)
II. A Bill to Amend Section 245, The Federal Penal Code.
Whoever shall bring or cause to be brought into the United States or any place subject to the jurisdiction thereof from any foreign country or shall therein knowingly deposit or cause to be deposited with any express company or other common carrier for carriage from one State, territory or district of the United States, or in place non-contiguous to, but subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States through a foreign country to any place in or subject to the jurisdiction of the United States, any obscene, lewd or lascivious or any filthy book, pamphlet, picture, paper, letter, writing, print, or other matter of indecent character, of any drug, medicine, article or thing designed, adapted or intended for [preventing conception or] producing abortion, or for any indecent or immoral use, or any written or printed card, letter, circular, book, pamphlet, advertisement or notice of any kind, giving information directly or indirectly, where, how, or of whom, or by what means any of the hereinbefore-mentioned articles, matters, or things may be obtained or made, or whoever shall knowingly take or cause to be taken from such express company or common carrier, any matter or thing, the depositing of which for carriage is herein made unlawful, shall be fined not more than five thousand dollars or imprisoned not more than five years or both. _But no book, pamphlet, paper, letter, writing, circular, advertisement, notice or print is obscene, lewd, lascivious or filthy, by reason of the fact that it mentions, discusses or recommends prevention of conception, or gives information concerning methods or means for the prevention of conception: or tells how, where, or in what manner such information or such means can be obtained: and no drug, medicine, article or thing shall be for indecent or immoral use because it is designed, adapted or intended for the prevention of conception._
(Matter in brackets omitted; matter in italics new.)
NEW YORK STATUTES
PENAL LAW.
Section 1141.—A person who sells, lends, gives away or shows, or offers to sell, lend, give away, or who, or has in his possession with intent to sell, lend, or give away, or to show or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing paper, picture, drawing, photograph, figure, or image, or any written or printed matter of an indecent character; or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose, or who designs, copies, draws, photographs, prints, utters, publishes, or in any manner manufactures, or prepares any such book, picture, drawing, magazine, pamphlet, newspaper, story paper, writing paper, figure, image, matter, article, or thing, or who writes, prints, publishes, or utters, or causes to be written, printed, published or uttered any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting so to do, where, how, of whom, or by what means any, or what purports to be any, obscene, lewd, lascivious, filthy, disgusting or indecent book, picture, writing, paper, figure, image, matter, article, or thing named in this section can be purchased, obtained, or had or who has in his possession any slot machine or other mechanical contrivances with moving pictures of nude or partly denuded female figures which pictures are lewd, obscene, indecent or immoral, or other lewd, obscene, indecent or immoral drawing, image article or object or who shows, advertises or exhibits the same, or causes the same to be shown, advertised, or exhibited, or who brings, owns or holds any such machine with the intent to show, advertise, or in any manner exhibit the same, ... is guilty of a misdemeanor, and upon conviction, shall be sentenced to not less than ten days nor more than one year imprisonment, or be fined not less than fifty dollars nor more than one thousand dollars, or both fine and imprisonment for each offense.
(Section 1141 will be unchanged by the proposed legislation.)
Section 1141-b (New).—A book, magazine, pamphlet, newspaper, or other printed, typewritten or written matter is not obscene, lewd, lascivious, filthy, indecent, or disgusting, or of an indecent character, within this article, by reason of the fact that it mentions, discusses, recommends, or gives information concerning prevention of conception or methods or means for the prevention of conception or gives information as to where, how or of whom advice concerning, or articles, drugs or instruments for the prevention of conception can be obtained; and an article is not of indecent or immoral use or purpose, within this article, because it is adapted or designed, or is advertised or represented to be adapted or designed for the prevention of conception.
(Section 1141-b is all new matter.)
Section 1142: INDECENT ARTICLES.—A person who sells, lends, gives away, or in any manner exhibits or offers to sell, lend or give away, or has in his possession with intent to sell, lend or give away, or advertises or offers for sale, loan or distribution any instrument or article, or any recipe, drug, or medicine, [for the prevention of conception or] for causing unlawful abortion, or purporting to be [for the prevention of conception, or] for causing unlawful abortion, or advertises, or holds out representations that it can be so used or applied, or any such description as will be calculated to lead another to so use or apply any such article, recipe, drug, medicine or instrument, or who writes or prints, or causes to be written or printed, a card, circular, pamphlet, advertisement, or notice of any kind, or gives information orally, stating when, where, how, of whom, or by what means such an instrument, article, recipe, drug or medicine can be purchased or obtained, or who manufactures any such instrument, article, recipe, drug or medicine, is guilty of a misdemeanor, and shall be liable to the same penalties as provided in Section eleven hundred and forty-one in this chapter.
(Matter in brackets omitted.)
APPENDIX NO. 6
BILL INTRODUCED IN NEW YORK LEGISLATURE IN 1923
_Drafted by Samuel McCune Lindsey of the Legislative Bureau of Columbia University_
Section 1145 of the Penal Code to be amended to read as follows:
PHYSICIANS, INSTRUMENTS AND ADVICE. An article or instrument, used or applied by physicians lawfully practicing or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this article. The supplying of such articles to such physicians or by their direction or prescription, is not an offense under this article. _The giving by a physician lawfully practicing, to any person, married or having a license entitling him or her to be married duly and lawfully obtained by him or her, of any information or advice in regard to the prevention of conception, on the application of such person to such physician; or the supplying to such physician or by any one on the written prescription of such physician to any such person of any article, instrument, drug, recipe or medicine for the prevention of conception, is not an offense under this article._
Explanation. The portions in italics are new.
APPENDIX NO. 7
THE CONNECTICUT LAW AND THE AMENDMENT PROPOSED BY THE AMERICAN BIRTH CONTROL LEAGUE
The present statute, enacted in 1878, reads as follows:
_General Statutes, Section 6390. Use of Drugs or Instruments to Prevent Conception._ Every person who shall use any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than $50.00 or imprisoned not less than 60 days nor more than one year or both.
The proposed bill would repeal the above section, and enact the following new section.
The giving by a physician licensed to practice or by a duly registered nurse to any person applying to him or her, of information or advice in regard to, or the supplying by such physician or nurse, or on a prescription signed legibly by him or her, of any article or medicine for the prevention of conception shall not be a violation of the statutes of this State.
APPENDIX NO. 8
NEW JERSEY LAW
AND
_Amendment Proposed by the American Birth Control League_
AN ACT to amend an act entitled “an act for the punishment of crimes (Revision of 1898), approved June Fourteenth, one thousand and eight hundred and ninety-eight.
BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:
1. Section fifty-three of the act to which this act is amendatory be and hereby is amended so as to read as follows:
53. Any person who without just cause, shall utter or expose to the view of another, or to have in his possession, with intent so to utter or expose to view, or to sell the same, any obscene or indecent book, pamphlet, picture, or other representation, however made; or any instrument, medicine, or other thing, designed or purporting to be designed for the prevention of conception, or the procuring of abortion, or who shall in any wise advertise, or aid, or assist in advertising the same, or in any manner, whether by recommendation against its use or otherwise, give or cause to be given, or aid in giving any information how or where any of the same may be had or seen, bought or sold, shall be guilty of a misdemeanor, _THE CONTRACEPTIVE TREATMENT OF MARRIED PERSONS BY DULY PRACTICING PHYSICIANS, OR UPON THEIR WRITTEN PRESCRIPTION, shall be deemed a just cause hereunder_.
The underlined clause is the amendment desired by the American Birth Control League.
APPENDIX NO. 9
CALIFORNIA LAW
AND
_Amendment Introduced in 1917 by Senator Chamberlain and Assemblyman Wishard_
The California law is Section 317 of the Penal Code under the Chapter Heading, “INDECENT EXPOSURE, OBSCENE EXHIBITIONS, BOOKS AND PRINTS, AND BAWDY AND OTHER DISORDERLY HOUSES.”
The bill introduced by Senator Chamberlain and Assemblyman Wishard amended the Section by striking out the words “or for the prevention of conception.” The wording of the Section is as follows:
317. ADVERTISING TO PRODUCE MISCARRIAGE. Every person who wilfully writes, composes or publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, or who offers his services by any notice, advertisement, or otherwise, to assist in the accomplishment of any such purpose, is guilty of a felony.
APPENDIX NO. 10
INDICATIONS OF OPPOSITION OF BIRTH CONTROL ADVOCATES TO REMOVING BAN ON CONTRACEPTIVE INFORMATION FROM FEDERAL OBSCENITY LAWS
At the first American Birth Control Conference when the American Birth Control League was organized in November, 1921, the following resolution was submitted, but the Conference was not allowed to vote upon it:
_Whereas_, the proposition has been laid before Post Master General Hays by the Voluntary Parenthood League, that he recommend to Congress the revision of the Federal law so that contraceptive knowledge shall not be included among the penalized indecencies which are now declared unmailable.
_Be It Resolved_, that this American Conference for birth control urges Post Master General Hays to act favorably on this proposition as a matter of postal progress and as a service to modern science, welfare and justice.
A “doctors only” proponent, speaking from the floor against allowing a vote on this resolution to be taken by the Conference said, “If we could have the Federal bill passed _to-day_, we would not want it.”
EXCERPTS FROM AN EDITORIAL IN THE BIRTH CONTROL REVIEW OF MARCH, 1921
In contrast to the State legislation is the proposed repeal of the Federal law, aiming to open the United States mails to the distribution of birth control knowledge by amateurs.
We are told that the repeal of the Federal law would be the quickest and shortest way to achieve our goal. But there is no such royal road! We might flood the country with tons of good books and pamphlets on the subject by recognized authorities on hygiene, psychology and sociology, but with no appreciable effect. (A poor woman once said to me, “I have read your book from cover to cover; and yet I am pregnant again.”) To offer a pamphlet to a woman who can not read or is too tired and weary to understand its directions, is like offering a printed bill of fare to a starving man.
Yet the repeal of the Federal law would accomplish practically no more than this. Nevertheless, to some it seems of primary importance; and those who think so are best qualified to throw their energies into that work.
Much as we wish that one fine gesture would sweep aside these obsolete and ridiculous anti-contraceptive laws, both Federal and State, experience has shown us the emptiness of legal and legislative victories unless followed up vigorously by concerted action. Remember that in England there is no law preventing the spread of birth control knowledge; yet we see there, that the removal of legal restriction in the use of the mails is not enough. Our interests and our activity must be positive, fundamental, dynamic, constructive. Let us beware of the futility of striving after vain victories and theoretical triumphs—which may, indeed, stimulate in us a fine glow of egotistical satisfaction, but also divert and distract our attention and interest from the hard, thankless, detailed work of helping overburdened mothers. Let us not be led into the trap of believing that the mere repeal of a Federal law will change the course of ancient human habits or the most deep-rooted of instincts.
APPENDIX NO. 11
NOTE: The words “preventing conception” are removed from the five Sections of the Federal Statutes which appear in the Bill.
1st Session, 68th CONGRESS, S. 2290
IN THE SENATE OF THE UNITED STATES
JANUARY 28 (calendar day, JANUARY 30), 1924.
_Mr. Cummins introduced the following bill; which was read twice and referred to the Committee on the Judiciary._
A BILL
To remove the prohibition of the circulation of contraceptive knowledge and means by amending sections 102, 211, 245, and 312 of the Criminal Code; and section 305, paragraphs (a) and (b), of the Tariff Act of 1922; and to safeguard the circulation of proper contraceptive knowledge and means by the enactment of a new section for the Criminal Code.
_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That section 102 of the Criminal Code be amended to read as follows:
“SEC. 102. Whoever, being an officer, agent, or employee of the Government of the United States, shall knowingly aid or abet any person engaged in violating any provision of law prohibiting importing, advertising, dealing in, exhibiting, or sending or receiving by mail obscene or indecent publications or representations, or means for producing abortion, or other article of indecent or immoral use or tendency, shall be fined not more than $5000 or imprisoned not more than ten years or both.”
SEC. 2. That section 211 of the Criminal Code be amended to read as follows:
“SEC. 211. Every obscene, lewd, or lascivious and filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character; and every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where or how or from whom or by what means any of the hereinbefore-mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device, or substance; and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may or can be used or applied for producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing is hereby declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by this section to be non-mailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5000, or imprisoned not more than five years, or both. And the term “indecent” within the intendment of this section shall include matter of a character tending to incite arson, murder, or assassination.”
SEC. 3. That section 245 of the Criminal Code be amended to read as follows:
“SEC. 245. Whoever shall bring or cause to be brought into the United States or any place subject to the jurisdiction thereof, from any foreign country, or shall therein knowingly deposit or cause to be deposited with any express company or other common carrier, for carriage from one State, Territory, or District of the United States, or place noncontiguous to, but subject to the jurisdiction thereof, to any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States through a foreign country to any place in or subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States to a foreign country, any obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other matter of indecent character; or any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom or by what means any of the hereinbefore-mentioned articles, matters, or things may be obtained or made; or whoever shall knowingly take or cause to be taken from such express company or other common carrier any matter or thing, the depositing of which for carriage is herein made unlawful, shall be fined not more than $5000, or imprisoned not more than five years, or both.”
SEC. 4. That section 312 of the Criminal Code be amended to read as follows:
“SEC 312. Whoever shall sell, lend, give away, or in any manner exhibit, or offer to sell, lend, give away, or in any manner exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession for any such purpose, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever for causing unlawful abortion, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles above mentioned can be purchased or obtained, or shall manufacture, draw, or print, or in anywise make any of such articles, shall be fined not more than $2000, or imprisoned not more than five years or both.”
SEC. 5. That section 305, paragraphs (a) and (b), of the Tariff Act of 1922 be amended to read as follows:
“SEC 305. (a) That all persons are prohibited from importing into the United States from any foreign country any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever, for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery. No such articles, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles shall be proceeded against, seized, and forfeited by due course of law. All such prohibited articles and the package in which they are contained shall be detained by the officer of customs, and proceedings taken against the same as hereinafter prescribed, unless it appears to the satisfaction of the collector that the obscene articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee: _Provided_, That the drugs hereinbefore mentioned, when imported in bulk and not put up for any of the purposes hereinbefore specified, are excepted from the operation of this sub-section.
“(b) That any officer, agent, or employee of the Government of the United States who shall knowingly aid or abet any person engaged in any violation of any of the provisions of law prohibiting importing, advertising, dealing in, exhibiting, or sending or receiving by mail obscene or indecent publications or representations, or means for procuring abortion, or other articles of indecent or immoral use or tendency, shall be deemed guilty of a misdemeanor, and shall for every offense be punishable by a fine of not more than $5000 or by imprisonment at hard labor for not more than ten years, or both.”
SEC. 6. The transportation by mail or by any public carrier in the United States or in territory subject to the jurisdiction thereof, of information respecting the means by which conception may be prevented, or of the means of preventing conception, is hereby prohibited, except as to such information or such means as shall be certified by not less than five graduate physicians lawfully engaged in the practice of medicine to be not injurious to life or health. Whoever shall knowingly aid or abet in any transportation prohibited by this Act shall be deemed guilty of a felony, and, upon conviction thereof, shall be fined not more than $5000 or imprisoned for not more than five years, or shall be punished by both such fine and imprisonment.
APPENDIX NO. 12
CONDENSED CHRONOLOGICAL STORY OF THE FEDERAL BILL TO REMOVE THE BAN ON CONTRACEPTIVE KNOWLEDGE FROM THE OBSCENITY LAWS
[Sidenote: 1919.]
July 24. Began preliminary interviews with Senators and Congressmen with a view to discovering the right sponsor for the bill, and to create a good atmosphere for its introduction.
Sept. 24. Asked Senator France of Maryland to introduce it, he being chairman of the Committee on Public Health, a physician and heartily in favor of the bill. He agreed to consider it.
Oct. 21. Senator France doubted the wisdom of his being sponsor. He suggested Senator Norris of Nebraska.
Oct. 22. Senator Norris was wholly favorable to the measure, but said the prejudice of the Judiciary Committee against other measures for which he stood would hurt his sponsorship and he hadn’t the advantage of being a physician.
Oct. 23. As Senator France was most desirable, the sponsorship was again put up to him and he said he would again consider it.
[Sidenote: 1920.]
Jan. 19. After nearly three months of prodding by letters and interviews, Senator France wrote that he did not feel ready to shoulder our bill ahead of others to which he was already committed. He did not decline, but thought it unfair to keep us waiting further.
Jan. 21. Took it back to Senator Norris, who agonized over it conscientiously, but decided he had better not. He had sounded Senator Ball, the only other physician in the Senate beside France. Found him rather skeptical. He then suggested asking Senator Nelson, chairman of the Judiciary Committee to do it as proof of his repentance for having been an abusive opponent (one of the very few we have met).
Jan. 22. Senator Nelson’s repentance went to the extent of recommending that the bill be referred first to the Committee on Public Health and implied that the Judiciary Committee would concur if the report should be favorable.
During the next few weeks, besides hunting for a sponsor we interviewed the Health Committee. Seven out of eleven were wholly in favor or inclined favorably toward the bill.
Senator Ball was seen several times, in the hope that he would prove to be the right sort for a sponsor. He was slow in coming to a conclusion as to the merits of the bill.
Meanwhile two other Senators were asked.
Jan. 29. Senator Sterling of South Dakota, first. The discussion convinced him as to the merits of the bill, and he finally agreed to consider sponsoring it.
Feb. 18. Urged his decision. He did not refuse, but said he would be relieved to be released from consideration. Promised to work for the measure in Committee and on the floor.
Mar. 5. After conferring with Senators France and Norris, whose advice has always been helpful, took the bill to Senator Dillingham of Vermont. He is wholly in favor but considered himself unsuitable sponsor. He is the _only_ Senator who has not kept us waiting for his decision. He urged Ball as best sponsor.
Mar. 6. As Senator Ball had announced on February 20th, that he was convinced by our data—on the advice of Dillingham, France and Norris, he was asked by letter to introduce the bill.
Mar. 11. Went to Washington for his decision. Found him; he had not even read the letter carefully enough to realize he was being asked. Said “No.” Then reconsidered and agreed to talk it over with France.
Mar. 19. _He promised to sponsor the bill._ He asked for “a few days of grace” before introducing it, to recover from influenza and attend to the suffrage crisis in Delaware.
Apr. 21. Introduction still hanging. Said he “hadn’t had time.” Meanwhile the comment of the other Senators had begun to disconcert him. He turned us over to Major Parkinson of the bill drafting service to discuss phraseology and work out an opposition-proof bill. Everything was settled to our satisfaction. It was the Senator’s next move.
Apr. 24. He “hadn’t had time to see Parkinson,” and asked for a few days more of patience. We reminded him that we had waited over a month. He said he would surely do it during this session. We insisted on something definite. He finally promised “some day next week” and that he would wire us what day.
May 25. No word, despite letters from our office and many from the supporters of the League.
Letters, telegrams, personal interviews with Senator Ball in Washington were all unavailing. He did nothing but reiterate promises.
June 5. _The Senate adjourned and the bill was not introduced._
Dec. 6. With the opening of the last session of Congress, we began the sponsor hunt again. Nine Senators in succession have been asked to sponsor the bill, as follows:
_Sen. Capper of Kansas._ For the bill, but too submerged in his agricultural relief bills to take ours on.
_Sen. Townsend of Mich._ (Member of Health Com.) Favors the bill, but declined on grounds that he was too ignorant on the data to face debate, and too busy to get primed.
_Sen. Kenyon of Iowa._ (Had reputation of being chief welfare advocate of Senate.) Too busy with his “packer” bill. Might consider it at next session.
_Sen. McCumber of S. D._ Admitted merit of bill, but thought he better not imperil his re-election (in 1923) by sponsoring it. Suggested that it be introduced by Health Com. as a whole, without individual sponsorship, so no one would “be the goat.”
_Sen. Sheppard of Texas._ (Sponsor of Sheppard-Towner Maternity Bill.) Recognized necessity of our bill to complete the service provided by his bill, but could not consider sponsoring ours till next session anyway, and probably not then, as he thinks it should come from a Republican.
_Sen. Fletcher of Fla._ (Member of Health Com.) Heartily approves bill, but considers himself unsuitable sponsor because he is a Democrat.
_Sen. Frelinghuysen of N. J._ (Member of Health Com.) Frankly said he would be “afraid” to do it, but he feels favorably toward the bill.
_Sen. Owen of Okla._ (Member of Health Com.) Like Senator France, author of bill for Federal Health Dept.—unqualifiedly in favor, but sure bill should not be sponsored from Democratic side.
Dec. 31. Proposed to Senator France that the bill be introduced by the Health Committee without individual sponsorship.
[Sidenote: 1921.]
Jan. 5. Senator France declined the proposition on the ground that the burden of the bill would fall on him just the same.
Jan. 13. After thorough consultation with Senator France, took bill back to Senator Sterling.
Jan. 27. Senator Sterling answered that he was “too busy to do it at this session.”
Feb. 11. Senator Kenyon was asked to reconsider. He replied, “I’m mighty sorry, but I am just loaded down with bills that are taking every minute of my time, and I must ask you to secure some other Senator to take care of this legislation for you.”
Mar. 1. Senator Borah was asked to sponsor the bill. He did not see his way to doing it.
Aug. 19. Post Master General Hays had put himself on record as not believing in the maintenance of Post Office censorship laws. He was accordingly asked to consider recommending to Congress the removal of the censorship law regarding birth control knowledge. He was most hospitable to the suggestion—said it was timely, that he was interested and had about come to the conclusion that he ought to ask Congress to revise all the laws bearing on Post Office censorship power. He asked for a compilation of pertinent data, which was promptly provided. He had the matter under consideration till he resigned office the following March. But he made no recommendation to Congress.
The sponsor hunt began again.
Senator Borah suggested the possibility that he might slip in our bill as an amendment to the bill proposing to extend Post Office censorship to information about race track betting tips, if it was reported out of committee and reached the floor for discussion. The bill was killed in Committee, due in part to Senator Borah’s opposition to it.
[Sidenote: 1922.]
Dec. Sponsors found in both Houses. Senator Cummins in the Senate, and Congressman John Kissel of New York in the House. The latter responded to a circular letter asking for a volunteer statesman for the task.
[Sidenote: 1923.]
Jan. 10. Bill introduced in both Houses.
Jan. 22. Sen. Nelson, Chairman of the Judiciary Committee appointed Sub-Committee of three to consider the bill—Senators Cummins, Colt and Ashurst. Senator Cummins was ill and went to Florida. Committee action was stalled.
Strenuous effort was made to get substitute Chairman so action could proceed. Norris was added to Committee but not as Chairman.
Feb. 6. Sen. Colt declined to act as Chairman.
Feb. 8. Sen. Colt asked to be excused from the Committee.
Feb. 13. Sen. Cummins returned.
Feb. 19. Sen. Cummins tried to get vote of full Judiciary, as conditions had not permitted a Hearing and report from the Sub-Committee. Meeting adjourned without action. They “did not get to the bill.”
Feb. 26. Sen. Cummins tried again to get a vote. Announced that he would call for it before adjournment, again. The members slipped out one by one, so no quorum was present. The Senator said, “They just faded away.”
[Sidenote: 1924.]
Jan. 30. Bill reintroduced by Senator Cummins.
Feb. 1. Bill introduced in House by Congressman William N. Vaile of Colorado.
Mar. 7. Bill referred to Senate Sub-Committee, consisting of Senators Spencer, Norris and Overman.
Mar. 22. Bill referred to House Sub-Committee of seven, Congressmen Yates, Hersey, Perlman, Larson, Thomas, Major and O’Sullivan.
Apr. 8. Joint Hearing held before both Sub-Committees. Ten spoke for the bill, and five against.
May 9. Hearing reopened at request of the Catholics.
June 7. Congress adjourned. Neither Committee reported the bill.
[Sidenote: 1925.]
Dec. Senator Cummins made Chairman of the Judiciary Committee.
Jan. 20. Senate Sub-Committee unanimously reported Cummins-Vaile Bill “without recommendation.”
House Sub-Committee evaded making a report.
Mar. 4. Congress adjourned.
APPENDIX NO. 13
SENATORS BORAH AND STANLEY ARGUED BEFORE THE JUDICIARY COMMITTEE IN 1921 FOR THE PRINCIPLES ON WHICH THE CUMMINS-VAILE BILL IS BASED, BUT REGARDING ANOTHER BILL
The following excerpts from the Hearing, with editorial comment, are taken from the Birth Control Herald of January 20, 1925.
The Bill on which the Hearing was held had passed the House in October, 1921. It aimed primarily to make race track betting tips unmailable, but section No. 5 to which Senators Stanley and Borah objected most strenuously was a sweeping infringement of the freedom of the press, by which nothing could go through the mails that gives any information as to bets or wagers on any contest of speed, strength or skill. The bill was referred to a Sub-Committee of the Judiciary consisting of Senator Sterling, Chairman, and Senators Borah and Overman.
The measure has never been reported out by the full committee, and it seems evident that the vigorous opposition of the two Senators who argued on principle, and the disapproval of powerful newspaper associations, have resulted in the burying of the bill.
At the time of this Hearing (January, 1922), Senator Stanley was not on the Judiciary Committee but he was so interested in preserving the right of free press from further encroachment that he appeared at the Hearing as an opponent of the bill, and as a pleader for fundamental liberty. At present, however, he is a member of the Judiciary Committee, with the best of opportunities to make his convictions count effectively for the Cummins-Vaile Bill, in which precisely the same principle is at stake, namely, the freedom of the press and the right of the individual to have access to knowledge.
The V. P. L. Director was originally indebted to Senator Borah for her copy of the report of this Hearing. He has never faltered in his opposition to the principle of censorship. And Senator Sterling, the Chairman before whom this Hearing was held, was already at that time committed to support of the Cummins-Vaile Bill. He gave his word that he would work for the Bill in the Judiciary Committee and on the floor of the Senate.
In the 113 pages of the Report of the two Hearings on the bill to exclude gambling information from the mails, there are many more analogies to the principle involved in the Cummins-Vaile Bill than there is room to recount, so the excerpts below are only samples.
At the very start there is similarity of circumstance. At the first Hearing Senator Stanley spoke “especially of the section that was added in the last hour of debate, about which I am advised comparatively few members of Congress knew anything at the time of its passage.” That the House should have inadvertently passed a measure on the strength of its moral sounding aim, but which contained an unwarranted suppression of constitutional rights is exactly what happened in 1873, when the Comstock bill was hastily passed, aimed at obscenity, just as this bill was aimed at gambling, but blundering into suppression not only of crime, but of freedom.
_Sen. Stanley_ (speaking on behalf of representatives of the chief metropolitan newspapers): “These great papers wish an opportunity to show that the gambling evil is not best remedied—especially by a government of delegated powers—by an unwarranted restriction of the freedom of the press or the freedom of speech.”
(Similarly, the abuse of contraceptive information is not to be remedied by laws forbidding access to that information. Ed.)
_Sen. Stanley_ (at the second Hearing): “Despotic governments have always viewed and always will view freedom of speech with apprehension and alarm. When you have placed a censorship or arbitrary inhibition or prohibition upon either the freedom of speech or the freedom of the press, you have not invaded one constitutional right, but have imperilled or desolated them all.”
_Sen. Borah_: “Do you attack this as unconstitutional, or simply the policy of it?”
_Sen. Stanley_: “Both. I maintain that it is not necessary to show that it is unconstitutional, because of its folly and its unwisdom. It is absolutely a violation of the spirit of the Constitution.”
_Sen. Sterling_: “If you think race-track gambling is an evil, do you think that advice or suggestions in regard to wagers and bets should be prevented?”
_Sen. Stanley_: “May I answer that question by asking another? Does the Chairman believe that the Federal government should pass a law prohibiting anything that is morally or industrially wrong?”
_Sen. Sterling_: “Oh no, there are limitations of course upon the power of the Federal government to do those things.”
_Sen. Stanley_: “Yes, ... I had begun to doubt it.”
_Sen. Sterling_: “This prohibits the use of the mails for certain purposes.”
_Sen. Stanley_: “Yes.”
_Sen. Sterling_: “And we have passed laws relative to the use of the mails ... prohibiting certain written or printed matter....”
_Sen. Stanley_: “And Mr. Chairman, that is the worst vice, the worst phase of this legislative itch with which the country is infected, for the Federal and sumptuary regulation of all the activities of the people, moral, intellectual and industrial. It is gaining. One bad law breeds a million.”
_Sen. Borah_: “Well, Mr. Stanley, you do not have to make any argument to me that we have no power to establish a censorship.”
_Sen. Stanley_: “This is as fine an instance, Mr. Chairman, as I know, of the abortive birth and progress of this character of half baked legislation. A bill, honest, and perhaps advised in the main, was introduced.... As it passed a Representative took a shot at it on the fly and inserted this section 5. The Postmaster General (Hays) in a letter to Chairman Nelson of this Committee very pertinently observed: ‘This particular section 5 makes it an offense for newspapers to publish racing news. I favor the bill, but am opposed to this section 5. I was not consulted about it, and I hope this section does not pass. The whole bill had better be defeated in my opinion, than to add this additional curtailment of the freedom of the press. There has been a very strong tendency of late in that direction, and I am sure it is essential that such tendency be checked. I am reminded of Voltaire’s statement, “I wholly disapprove what you say and will defend with my life your right to say it.”’”
_Sen. Borah_: “It is not necessary to proceed any further then, is it?”
_Sen. Stanley_: “Senator, I think there is more in this than this bill. I have no fear that this bill will pass. This is too much. Neither the minds nor the stomachs of the people are prepared to endure it. But I wish to emphasize its evils in order that this character of legislation may be discouraged, that this persistent and pernicious effort to control the freedom of the press may find an end somewhere at some time.”
(The Cummins-Vaile Bill will also help to end it. Ed.)
_Sen. Borah_: “Well, Senator Stanley, as I think you know from personal conversation, I am quite in sympathy with your view, but I am unable to construe this letter (from Postmaster General Hays, quoted above) in harmony with a number of statutes that are already upon the statute books, and already in force.”
(The Comstock law, for instance. Ed.)
_Sen. Stanley_: “It is unfortunately true.”
_Sen. Borah_: “Indicating that we are taking a step back to constitutional government.”
_Sen. Stanley_: “Buckle says that all civilization for five hundred years consisted in repealing laws. I wish Buckle were eligible for a seat in the Senate now.”
(Hear, hear! Ed.)
“Mr. Chairman, the greatest influence for good—and it may be greatest power for evil—is the power of the press. There is no free government without it. There are no free men without it. There is no free thought without it. I commend to your attention just a little paragraph from that great defense of free institutions, with (one) possible exception, the greatest in the English tongue: ‘Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do ingloriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?’”
_Sen. Stanley_ continuing: “Now let us see what this bill prohibits. Section 5 reads: ‘No newspaper, postcard, letter, circular, or other written or printed matter containing information, or statements, by way of advice of suggestions, purporting to give the odds at which bets or wagers are being laid or waged, upon the outcome of speed, strength or skill, or setting forth the bets,’—now get this,—‘made or offered to be made, or the sums of money won or lost upon the outcome or result of such contest,’ etc.
“If a school boy at college should write to his mother that his room-mate had bet five cents on a foot-ball game, he could be sent to the penitentiary for five years and fined $5000.
“Put in force this act and then endeavor to convince a civilized world that this is the land of the free and the home of the brave.”
(Compare the wording of this proposed law with that of the old Comstock law by which “every book, pamphlet ... paper, letter, writing ... or notice of any kind giving information directly or indirectly where, how or of whom or by what means,” etc., conception may be controlled is unmailable. Then parallel Sen. Stanley’s instance of the college boy and his five cent bet on the foot-ball game with the fact that no mother can now lawfully write to her married daughter any information even in a private letter as to how she may space the births of her babies. Ed.)
_Sen. Stanley_: “The evil of attempting to restrict the freedom of the press in discussing this matter more than counterbalances any possible ultimate good. It is purely problematical whether it would stop any racing or not, or deter it. It is an actual fact that it would be another step in the wrong direction—that is of a pernicious, vexacious, inquisitorial censorship of the press.
“It would of course be argued that the boy would not be sent to prison for five years or fined $5000. And why? Because judges have more sense and more humanity and more decency than the Senate, and that they would refrain from doing what they are authorized to do. Now you enact this bill, and how do you know that somewhere, sometime, you are not going to find a Judge that has just as little sense of proportion and propriety and justice as the Senate of the United States?
(For instance the Judge who sent Carlo Tresca to jail for a small unwitting infringement of the Comstock act, which government officials as a whole make not the slightest attempt to enforce. Ed.)
_Sen. Stanley_, satirically: “Because Congress has gone very near the end of its constitutional tether, it should cut the tether and go the whole length: because it has regulated the freedom of the press in a few respects, it should now proceed to regulate them in all respects.”
_Sen. Borah_: “I think, Senator Stanley, that the argument that we will have to rely upon finally is whether we are going any further. There are plenty of precedents for this law on the statute books.... They are bad precedents, but they are there.”
_Sen. Stanley_: “Exactly, Senator Borah.”
_Sen. Borah_: “I would like to repeal many of them.”
_Sen. Stanley_: “I would like to join you in that....
“No man of course is in favor of moral uncleanness.... But that is no reason why the Federal Government should act as a spy and as a supervisor of the private relations between men and women in the several States....
“Race gambling no one doubts is an evil. Of course it is. But intemperance is a bad thing. Therefore the papers must not encourage intemperance by mentioning the concomitants of an alcoholic drink; the other day an officer tried to stop the Cincinnati Inquirer from making reference to a copper can because they said some copper cans were used for distilling! That is a fact. Where are we going to stop?
“Burglary is a bad thing. Think of it, there are millions of men who do not know that a simple flat piece of steel, called a jimmy, can be used to open doors that are locked.... Suppose the papers tell of how a man gets into a house by means of a jimmy ... some fellow reads that and gets a jimmy and breaks into a house. Are you going to stop all mention of that?... I want to stop now, any further advance as Senator Borah has said, in this pernicious practice of regulating the morals of the people by prescribing what the press shall say about their morals, whether in their domestic relations, their gaming practices, or anything else....
“You pass this act, and by virtue of its precedent and those others of its kind that now deface the statute books of a free country, within a few short years, with a little ingenuity, I can keep anything out of the columns of the press except an account of a school picnic or a pink tea. I thank you, Mr. Chairman.”
(And this paper thanks the Senator. Ed.)
APPENDIX NO. 14
SECTIONS OF THE FOOD AND DRUG ACT WHICH ARE PERTINENT TO MATERIALS USED FOR THE PREVENTION OF CONCEPTION
_Manufacture_:
Sec. 8717: It shall be unlawful for any person to manufacture within any territory or the District of Columbia any article of food or drug which is adulterated or misbranded, within the meaning of this Act.
_Importation_:
Sec. 8718: The introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this Act, is hereby prohibited.
_Definition of Drug Includes Compounds_:
Sec. 8722: The term “drug,” as used in this Act, shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or other animals.
_Adulteration_:
Sec. 8723: For the purposes of this Act an article shall be deemed to be adulterated:
In case of drugs:
First: If, when a drug is sold under or by a name recognized in the United States Pharmacopoeia or National Formulary, it differs from the standard of strength, quality, or purity as determined by the test laid down in the United States Pharmacopoeia or National Formulary official at the time of investigation.
Second: If its strength or purity fall below the professed standard of quality under which it is sold.
_Misbranding_:
Sec. 8724: The term “misbranded,” as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to be the State, Territory, or country in which it is manufactured or produced.
That for the purposes of this Act an article shall also be deemed to be misbranded.
In case of drugs:
First: If it be an imitation of or offered for sale under the name of another article.
Second: (Not pertinent.)
Third: If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent.
Fourth: If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular.
APPENDIX NO. 15
FREEDOM OF ACCESS TO KNOWLEDGE OF THEIR OWN CHOOSING DENIED TO CATHOLICS BY OREGON SCHOOL LAW, AND SERIOUSLY THREATENED IN OTHER STATES
SAME PRINCIPLE AT STAKE AS THAT IN CUMMINS-VAILE BILL
The following letter was sent by the Director of the Voluntary Parenthood League to every Catholic member of Congress. There are 37 Catholic members in the House, and 5 in the Senate.
January 16, 1925.
DEAR SIR:
Am I correct in thinking that you are one of the thirty-seven Roman Catholic members of the House? If so, may I not assume both your special interest in the recently attempted anti-Catholic legislation in several States, and in the possibly anti-Catholic tendencies of certain proposed Federal measures, and your common concern with all liberty loving Americans at these new menaces to certain of our fundamental rights.
Among the proposals to which I refer are those made in Oregon, California, Washington, Michigan and Alabama to restrict Catholic teaching and learning. The laws proposed have not attempted directly to prohibit Catholic schools, but they indirectly achieve that end, by compelling all children of certain ages to attend public schools during all the hours of all the school days through out the year. What is perhaps the most preposterous of these attempts, actually became law in Oregon in 1922. Its provisions are incredible to upholders of a supposedly free government. They create a Prussian type of surveillance and control over all private instruction, and empower a County School Superintendent, vested with absolutely autocratic authority from which there is no appeal, to decide whether such private instruction as may be allowed is being “properly” conducted and to compel children receiving such private instruction as he may disapprove to attend the public school in the district of their residence. Fortunately, protest against this outrageous law from Catholics and other citizens, has taken the questions to the courts. Equally fortunately, the Federal District Court in Oregon has pronounced against the law’s constitutionality.
At Washington, it is the Sterling education bill at which lovers of our constitutional liberties, Catholics and non-Catholics alike, are looking askance as a possible gateway to Federal compulsion of public school attendance, or to other Federal interference with individual freedom in the acquisition of knowledge. In view of these legislative tendencies, then, and of the intolerant and lawless aggressiveness of certain groups which are violently anti-Catholic, and quite ready to translate their feelings into political control, may there not well be concern lest our guaranteed American freedom become a farce?
This is no time then for thoughtful Catholics to take sides against freedom. They need it to protect their own rights. Am I wrong in thinking that, on sober thought, they will not wish to line up against a bill that makes a stand for the very principle that is most dear to them, namely, their right to knowledge of their own choosing? It has been generally assumed that Catholic Representatives, as such, will vote against the Cummins-Vaile Bill, which touches inferentially upon “birth control”; but will they, can they, when they reflect that this measure only seeks to repeal the same kind of pernicious legislation as now imperils the civil liberties of all of us, but Catholics in particular, in the matter of their schools and religious instruction?
For these reasons I respectfully ask your judicial consideration of the above facts and those which follow, as they have a bearing on the decision to be made as to this bill by any Congressman who is at the same time a loyal Catholic and a conscientious legislator.
Neither the existing laws nor the provisions of the Cummins-Vaile Bill deal directly with the question of birth control. They have no right to do so. That is essentially a question for the individual conscience. But they do both affect the question indirectly. However, in so doing the laws have established tyranny, whereas the bill re-establishes individual freedom. The laws are an intrusion upon personal liberty, such as is prohibited by the constitution, and the bill simply removes that intrusion.
No Federal statutes forbid the actual control of conception. That is an entirely lawful act for the individual. But the laws do forbid the circulation by any public carrier, of any information as to how conception may be controlled. That is, they forbid the circulation of knowledge by restricting the freedom of the press, and even the freedom of individual communication by letter. Yet freedom of speech and press is constitutionally guaranteed.
Liberty to learn and to teach is a fundamental American right, which may not justly be infringed, except when the things taught are criminal acts. The control of conception is not a crime. It could not possibly be declared such, by law. It may be contrary to ethics, morality and religious teachings as claimed by the authorities of the Catholic Church, but so also it may not be. Opinion differs about it, though it is obvious that the trend of opinion, as proven by the birth rates the world over, is in its favor. However, it is a question apart from the law, and should be worked out in accord with personal conscience, and whatever educational and inspirational influence the individual wishes to accept.
So I earnestly ask you, Sir, to think this matter through, and to co-operate now with us who are working for enactment of this bill; so that freedom may be safeguarded for everyone, and each allowed to utilize it according to his own conscience. I do not ask you to believe in birth control. It would be utterly irrelevant and intrusive to do so. It is not the point of the bill. The point of the bill is one that all Americans should have in common, a love of freedom and insistence upon having it for all.
Will you stand for the Cummins-Vaile Bill on that one ground?
Yours respectfully, MARY WARE DENNETT, _Director_.
FOOTNOTES:
[1] To give the name, would make this book “unmailable” under the law.
[2] Published by the Voluntary Parenthood League.
[3] The bill which Mrs. Sanger was then trying to have introduced _did not remove the subject from the obscenities_, except in the case of the doctor. For all others it still remained an indecency.
[4] The bill proposed did not allow self-government as to the control of conception, but only physician-government. The person applying could get instruction only if the doctor chose to give it, not otherwise.
[5] These States present a knotty legal question as to whether the repeal of the Federal prohibition relating to the mails will automatically make these State laws void. Legal opinion (as expressed by Attorneys Alfred Hayes and James F. Morton, Jr.) seems to agree that the Federal action will probably be effective, but there is authority for the assumption that under the State law police power might withhold such supposedly undesirable mail from the recipient.
TRANSCRIBER’S NOTE
Obvious typographical errors and punctuation errors have been corrected after careful comparison with other occurrences within the text and consultation of external sources.
Inconsistent hyphenations have been left as is.
Unmatched quotation marks have been left as printed. Double quotation marks occurring within a passage within double quotation marks have been left as printed.
Except for those changes noted below, all misspellings in the text, and inconsistent or archaic usage, have been retained.
Page vi. “sponsor—Cummins-Kissell” replaced by “sponsor—Cummins-Kissel”. Page vii. “Doctor’s Only” replaced by “Doctors Only”. Page 15. “physican” replaced by “physician”. Page 36. “pornagraphic” replaced by “pornographic”. Page 37. “putrefying sores,”“ replaced by ““putrefying sores,””. Page 42. “it seem” replaced by “it seems”. Page 43. “instinctly acting” replaced by “instinctively acting”. Page 50. The word “crime” is enclosed in double quotation marks, an extra single quotation mark has been removed. Page 52. “Recive” replaced by “Receive”. Page 55. “weaklies” replaced by “weeklies”. Page 66. “park that flamed” replaced by “spark that flamed”. Page 85. “may protests” replaced by “many protests”. Page 92. “State legislatlon” replaced by “State legislation”. Page 94. “Cummins-Kissell” replaced by “Cummins-Kissel”. Page 94. “every one against:” replaced by “every one against.”. Page 105. “these pople” replaced by “these people”. Page 117. “from heresay” replaced by “from hearsay”. Page 123. “hearings analagous” replaced by “hearings analogous”. Page 146. “Mrs. Dennet” replaced by “Mrs. Dennett”. Page 158. “giving exerpts” replaced by “giving excerpts”. Page 160. “this subjest” replaced by “this subject”. Page 181. “seeems to prevent” replaced by “seems to prevent”. Page 184. “member of Congress” replaced by “members of Congress”. Page 198. “sex conciousness” replaced by “sex consciousness”. Page 248. “the the principle” replaced by “the principle”. Page 251. “substracting errors” replaced by “subtracting errors”. Page 252. “scorn of pretentions” replaced by “scorn of pretensions”. Page 265. “Cortlandt Palmer” replaced by “Courtlandt Palmer”. Page 301. ‘certain purposes.’ replaced by ‘certain purposes.”’. Page 301. Closing double quotation mark added after “printed matter.”