CHAPTER II

BEATING AROUND THE BUSH WITH STATE LEGISLATION

_Interest caused by Mrs. Sanger’s arrest caused much activity despite war-time conditions: First repeal bill initiated by National Birth Control League in New York Legislature: Law makers mostly in favor privately, but publicly opposed or evasive: Dr. Hilda Noyes’s experiment in New York village proving that ordinary people want laws changed: Legislator justifies State repressive laws so long as Federal law stands as example: Bills introduced in New York, California, New Jersey and Connecticut: The “doctors only” type of bill appears: Further limitations: Efforts toward freedom stimulate reaction toward stiffer repression in Illinois, Pennsylvania and Virginia: All fail: Fallacy that limited bills win legislators more than freedom bills._

The year 1915, as noted in the preceding chapter, saw the lines laid down for the repeal of the Comstock blunder. The next four years saw considerable progress in the way of rolling up expressed approval of amending the law, also considerable fumbling around as to just how to go about it. The fact that these four years included the war period had a good deal to do with the latter. All social and civic projects suffered a similar sort of stalling. Sporadic bursts of agitation were easier and more in keeping with the general disorganization of life than was any steady, constructive, fundamental, organized activity. That so much was accomplished under such untoward circumstances, is indication of the vital hold which the idea of doing something about the birth control situation, had upon the thinking public. Or perhaps one might better say the feeling public, for if as much force had gone into thinking as has gone into feeling on this subject, the question of repressive legislation would have been settled long ago.

However, there can hardly be doubt that the great wave of emotional interest which grew apace after the first Sanger arrests, and particularly after Mrs. Sanger’s second arrest for opening her contraceptive clinic in 1916, was useful in that it developed a ferment from which presently some clear consistent procedure might be forthcoming which would end the need for agitation. Local birth control organizations sprang up in many parts of the country, many of them being the results of Mrs. Sanger’s lecture tours. It was but natural that local groups should tackle State laws first, as most of the associations were loosely or feebly organized and slimly financed, and Washington seemed far away and Congress formidable. The National Birth Control League was somewhat in this status also. Its headquarters were in New York, and most of its active members lived there, though it had members scattered all over the country, and there were co-operating committees in several cities.

So it happened that its first actual legislative move was a State bill undertaken in Albany in the winter of 1917. It was a straight repeal bill to remove the words “preventing conception” wherever they occurred in the obscenity statutes, and to add a new clause providing that contraceptive information, per se, was not to be deemed obscene, and that means used for the control of conception were not, per se, to be deemed of indecent use. (See Appendix No. 5 for the full wording.) The subject of the scientific control of conception was thus to be rescued from its legally formed association with obscenity, and to be safeguarded against the possible assumption that the subject was in itself obscene,—an assumption which judges or juries of certain mental caliber, might well make, in view of its long connection in the law with indecency. The bill was introduced both by a Democratic and a Socialist member of the New York Legislature,—an obvious disadvantage in an overwhelming Republican body. A Hearing was held, but the bill was killed in Committee. The pattern of the reaction of the legislative mind to this sort of proposition, which afterwards was to become so familiar to those working for the repeal of these laws, was for the first time clearly visible. The reasons for the levity, the stupidity and the irrelevance of the legislators were not so well understood then as they came to be a few years later.

But in this very first legislative try-out, the incongruity which in subsequent legislative efforts become most striking, was already evident,—namely, that what the various legislators said one by one in conversation with those who went to Albany to work for the bill, was quite different from what they said for publication or in the Committee room. Individually, a large proportion of them readily admitted that birth control already existed, that the laws were not enforced and could not be enforced, and each one thought that it would not hurt _him_ to know all there was to be known about the subject; but they were far from willing to say anything of the sort publicly, or to take that stand actively in the Legislature. Instead they went far afield with all sorts of hypothetical conjectures, and professed all manner of deep convictions that this knowledge, if lawfully accessible would be dangerous to morals, a menace to the race and an assault upon religion. This incongruity will be more fully dealt with in a later chapter on “Why Congress has been slow to act.” For the moment, it is enough to give a mere glimpse of legislative reaction to birth control bills. The divergence between private opinion and public action was again accentuated the following year when the National League sent a set of queries to all the New York candidates for Congress and the legislature, regarding their opinion of the proposed change in the laws. The replies showed many more in favor of the bill than had been found in Albany the preceding year. In fact not a single adverse answer was received. And of those who replied eight per cent were in favor, eleven asked for more light on the subject, and only three side-stepped the question.

Yet that rather encouraging indication did not prevent a repetition of the same incongruous actions when a year later, the National Birth Control League made another effort in Albany. It had to be checked off to educational work, for it did not result even in the introduction of the bill. The Legislators of the majority party, the Republicans, shied off from sponsoring the bill, apparently because, in part at least, it had previously been introduced by a Socialist and because some of the speakers at the Hearing had been “radicals.” This served as a first rate excuse, in the days when any excuse was a good excuse. However, the educational work of that session was worth while both for the Solons and for the proponents of the bill. It was particularly illuminating for the latter, as subsequent events will show. The writer of this book had charge of the work in Albany that year, and a picture of the situation there is given in the following extracts from an article she wrote at the time for “The Birth Control Review” (March, 1919).

The Legislators of New York seem to be par excellence the leisure class. They have achieved a six hour week! In these days of battling for forty-eight and forty-four hour weeks, that is something of an achievement.

They convene Monday evening, usually with a two-hour session, and on the three succeeding mornings, with sessions from one and one-half hours to ten minutes in length. When out of session some few of them are in committee but the majority are fled—it is hard to know where.

For the ordinary citizen with a bill in hand which it is desired to have introduced, such a situation is a problem. The whole session is only ninety days—and with legislative week-ends lasting from Thursday noon till Monday evening, the time available for interviewing members and securing desirable sponsors for the bill is reduced to an appalling minimum.

However, like the public, the legislators are surely moving on toward an understanding of what the Birth Control movement really means. Out of the twenty-seven members interviewed in the last few days, only one declared himself positively opposed to the bill, and he decided after ten minutes’ discussion, that he might perhaps be open-minded after all.

It seems to take about three-quarters of an hour to answer all the objections the average legislator can think of, and leave him wondering what he can do next to live up to his preconceived notion that he was opposed. More often than not, they end by cordially admitting that they really have no arguments against the bill—merely a vague aversion to the consideration of the subject as a matter of public or legislative responsibility.

They mostly ask the same questions and voice the same fears about removing the law which tries (so vainly) to suppress birth control information.

They say, “Yes, but if everybody knows how to avoid having children, there won’t be any children!”

Then we carefully iron out their fears by showing them that prophecies as to how it _might_ work out are not worth so much as testimony on how it _does_ work out. We tell them of Holland and New Zealand, the two prize birth control countries of the world,—how Holland has had a ratio of increase in population next to that of Germany and Russia—that New Zealand is a garden country for babies, that they make a fine art of motherhood there, with their wonderful chain of maternity hospitals, and that Holland and New Zealand have the lowest general and baby death rates in the world.

With the race suicide bogey out of the way, they go on to their next fear, which is that there will be a terrifying drop in moral standards if contraceptive information is easily available. Then again we reassure them by citing the other countries which have no shocking repressive laws like ours, but which nevertheless do not show any records of general promiscuity and unbridled excess, or of sexual laxity among the young. We go further, and remind them that if it be true that the mass of our American young people would have so little moral anchorage that we should fear to trust them with knowledge, then something is awfully the matter with us of the older generations who have reared them, and that it is for us to hasten to develop a keener sense of responsibility for the education of _all_ young people, as well as those of our families. And they all respond to this appeal. They would obviously feel ashamed not to.

Another idea they advance with confidence is that “practically everyone can now get the information who really wants it.” And we reply, “Well if that be true, and the law is already so much of a dead letter as that, then why hesitate a moment to repeal it?” But we tell them, of course, that it is not true that everyone has the information who wants it, as is proven by the incessant stream of desperate, ill and unhappy people who clamor for it, also that much of the information which is now illegally and secretly circulated, especially that which is verbal, is inadequate, unscientific and even harmful, and that it is bound to be so till the medical schools include this subject in their curricula and until the doctors can give the information without evading the laws.

Then they resort to the cynical conclusion that it wouldn’t do much good to repeal the laws anyway, because the rich who oughtn’t to use the information would do it even more than they do now, and the result would be still fewer children, while the “ignorant poor,” who ought to use it, wouldn’t, and the horde of “undesirables” would go on increasing just the same.

And again we present the instance of Holland where the rich average larger, and the poor, smaller families than any other country in Europe. And we gently remind them that the use of contraceptives can never be made compulsory, nor can anyone frame legislation which will open the eyes of the selfish rich to the joys and values of parenthood. These results can come from education, not from legislation. All that the laws can do is to give freedom of access to knowledge, but the wise use of knowledge is a matter of mental, moral, and spiritual growth.

And they admit that too.

They look very serious and responsible by the time they arrive at saying, “Yes, but what methods do you propose to teach?” Some of them even assume that somehow or other we think the law itself can _establish good methods_! Whereupon we make it plain that the question of methods is the sphere of the medical scientists, that it is not for us laymen to presume to teach, and much less is it possible for the laws to determine methods. All the laws can do is to give freedom to the scientists to give the world the knowledge that has been locked in their brains and only given out surreptitiously on occasions. And all we ask is the opportunity to help to make the knowledge of the scientists accessible to all who need it.

Their final question is “who wants these laws changed, where is the demand?” We tell them that practically everyone wants it who understands it, and that brings up a most significant phase of the birth control movement, which has a unique psychology, in that the mass of people who want information and want the laws changed so they can get it, do not and will not shout their wishes from the housetops. The nature of the subject is one which largely inhibits an _articulate_ demand. But that the majority of the people want it, and are ready to say so, if they can do it without being conspicuous is remarkably well proven by the article elsewhere in this issue, entitled: “Do the People Want It?”

We never fail to impress it on the legislative mind that in the last analysis the present laws are absolutely inconsistent with the principle of freedom to know, to think and to do, on which this country is supposed to be founded and that it is outrageous that the government should attempt to place any barriers between the people and knowledge; that the government may rightly discipline people whose abuse of knowledge infringes upon the rights of others, but there it must stop. It can not curb the freedom of citizens to know all there is to know.

And they admit that, too.

They are amusing in their demands upon us as to the proper way of winning the change of the laws. Some tell us, “You just show us enough demand for this thing and it will go through. If the people want it, let them speak up.” Others say, “Now, if you would only see that this thing is _quietly_ accomplished, with no noise, no public hullabaloo, no newspaper headlines, no publicity, etc., it would be a simple matter for us to put this bill right through as a matter of obvious public welfare.”

At a guess, probably two-thirds of those already interviewed will vote in favor of our bill.

In the light of much subsequent experience with the workings of the legislative mind the writer considers that last sentence an innocently rash prediction. It should have said “are in favor of our bill,” rather than “will vote for our bill.” For this has proved to be one of the questions on which belief and voting, also private practice and public statement, can be poles apart.

There could perhaps be no more fitting place than here to quote the above mentioned article “Do the People Want It?”

Here is a slice of public sentiment out of the middle of New York State.

Dr. Hilda Noyes, an expert on eugenics and baby feeding, and incidentally the mother of six splendid intentional children, went to a district in Oneida County, where she did not personally know the people, chose at random two streets at right angles to each other and visited fifty married women in succession.

She explained to them just how the New York law reads which prohibits Birth Control information. Most of them did not know that it is a part of the obscenity laws and is entitled “Indecent Articles” or that it is utterly sweeping in its provisions, so that even a mother can not legally inform a daughter on her marriage as to how to have her children come at intelligent intervals. They only knew in general that whatever one knew about this subject must be learned secretly.

She told them how it was proposed to change this law, and asked them if they preferred to let the law remain as it is and has been for over forty years, or to change it.

Forty-eight out of fifty said “change it.”

By far the most significant bit of experience gleaned from the legislative effort of that year was what one of the more thoughtful members of the New York Legislature said, when he was asked to consider introducing the bill. “Why do you come up here asking us to consider a bill of this sort when our National laws set us the example they do on this subject? You say yourself that Congress decided that this information was not ‘fit to print’; very well then, go down to Washington and get Congress to reverse itself, and then you will have a talking point when you come to us.” It may have been merely his particularly clever form of excuse for not doing anything, but there is no gainsaying that he hit upon a rather unanswerable point. It was undeniably true that the action of Congress in passing the Comstock bill in 1873 had influenced practically all of the States to follow suit. The fact that the New York law on this subject preceded that of Congress by a year, only indicates that Anthony Comstock happened to live and do his work in New York. Both he and his biographer, the Rev. C. G. Trumbull, said emphatically that his campaign of suppression would have been a relatively futile effort without a comprehensive Federal law. Comstock used keen sense when he determined to secure not only the particular power to suppress the transportation of obscene literature that a Federal law would give, but also the very great impetus to his whole campaign which the Federal example would stimulate in the States, for further means of suppression.

The seed thus planted bore fruit within three months, by the organization of a new association, the Voluntary Parenthood League, the immediate object of which was the repeal of the Federal prohibition. And within six months the Congressional work was started in Washington. The story of the Federal bill is however the subject of the next chapter.

The purpose of this chapter is to survey the attempts at State legislation which have been made both before and after the work on the Federal bill was begun, and to make an appraisal of their value toward the securing of freedom of access to contraceptive knowledge.

More endeavors have been made in New York than in any other State. The efforts which preceded the campaign for the Federal bill have already been noted. Following that time, Committees, acting under the leadership of Mrs. Sanger, went to Albany, during the legislative sessions of 1921, 1923, 1924 and 1925. Bills were introduced in the three latter years, and the ones introduced in 1923 and 1925 reached the stage of a Hearing. No bill came to a vote on the floor of either the Senate or the Assembly.

This series of bills beginning in 1921 initiated a marked change in the policy of the legislation. Instead of a straight repeal act, limited bills began to appear, that is with qualifications which would restrict those who could give contraceptive information to certain groups only, and those who could receive it to certain classes only. And another very striking change appeared also, namely that the subject of the control of conception was not removed from its classification with indecency, but the bill was framed to permit certain people to give and to receive the information without being subject to the penalties for indecency that would still apply to all others who give it. That is, the right of access to knowledge as a fundamental principle was abandoned and was replaced by the idea of permits and privileges; and the platform that scientific truths are not per se indecent was replaced by the inference that scientific facts are decent only when stated by certain people and are otherwise indecent, or are at least classed with prohibited indecencies.

This is the proposed legislation which has come to be called, for short, the “doctors only” kind of bill. But other limitations than those applying to doctors have been included. With these successive efforts in the New York Legislature, restrictions were added almost every year that a bill was introduced. The measure first put forward in 1921 limited access to contraceptive information to that given by physicians or registered nurses; then the nurses were dropped out, and no doctor could give information unless the individual applied to him personally for it; and by 1923 the still further restriction was added that access to the knowledge was lawful only for those who were married or who had secured a license to marry. These later New York bills were drafted by Prof. Samuel McCune Lindsey of the Legislative Bureau of Columbia University. The full wording of the latest draft is given in Appendix No. 6. All of them leave the main body of the obscenity statutes just as it stands with its blanket prohibition of the giving of contraceptive information by anyone to anyone, in any way whatever; the amendment in each of these bills is an addition to the release act of 1881, Section 1145 of the Penal Code, which states that an article prescribed by a physician to cure or prevent disease is not “of indecent or immoral nature or use”; these added parts merely declare the doctor’s act in giving information or in making a prescription for a preventive to be “not a violation of this article.” In other words the old law of 1881 whitewashed the thing prescribed by the doctor, and the proposed amendment whitewashes the doctor for prescribing it. But it leaves the whole subject of knowledge about the control of conception, still in the category of crime and indecency. The doctor merely becomes a privileged character within this category.

Under the same leadership, similar bills have been introduced into the legislatures of Connecticut in 1923 and 1925 and of New Jersey in 1925. In Connecticut the bill, beside restricting access to information to those who get it directly from a doctor or a registered nurse, contained a section to repeal the old law which forbids the _use_ of contraceptives, the law which has been the prize joke of the American birth control movement. Appendix No. 7 gives the wording of the Connecticut bill. The wording of the New Jersey law is notably absurd, in that it forbids anyone to be obscene “without just cause,” and then adds a clause forbidding anyone even to make a recommendation _against_ the use of contraceptives, or to give information in any way as to how or where “any of the same may be had or seen or bought or sold.” The amendment proposed by the American Birth Control League merely adds this sentence: “The contraceptive treatment of married persons by duly practicing physicians, or upon their written prescription, shall be deemed a _just cause_ hereunder.” Appendix No. 8 gives the wording in full. Hearings were held in both Connecticut and New Jersey but in neither State was the bill allowed to reach a vote in the Legislature. In Connecticut the Committee advised against changing the laws “at this time.”

In California, a bill was introduced in 1917 by Senator Chamberlain and Assemblyman Wishard to remove the words “prevention of conception” from Section 317 of the Penal Code, which is entitled “Advertising to Produce Miscarriage.” Dr. T. Perceval Gerson was head of the citizens committee which initiated the effort. A hearing was held, but the bill died in Committee, although it had excellent endorsement from some of the women’s organizations and from the Los Angeles Obstetrical Society, which passed the following resolution:

_Resolved_, that it is the sense of the Los Angeles Obstetrical Society that the effort being made in California by intelligent men and women on behalf of scientific birth control is worthy of support by all having the best interests of society and its individuals at heart.

_Resolved_, that the attention of the public be strongly drawn to the fact that this movement for scientific birth control has no relation to the production of abortion or miscarriage, which in fact it aims to eliminate.

_Resolved_, that this Society composed of physicians and surgeons earnestly engaged in discussing those aspects of medical science chiefly in the domain of obstetrics, gynaecology and pediatrics, respectfully petition the California Legislature to amend by elimination that portion of Section 317 of the Penal Code, reading, “or for the prevention of conception.”

_Further be it resolved_, that this Society at this date, go on record as unqualifiedly approving such propaganda for birth control by scientific contraceptive measures, because of the universal benefits that will accrue.

It is noteworthy that this Resolution by doctors did not take a “doctors only” stand. A loop-hole in the California law has allowed the establishment of a “Mother’s Clinic.” It started its service in Los Angeles early in 1925 with Dr. H. E. Brainerd, former President of California State Medical Association as Medical Director, and a clinical and consulting staff of eight other physicians. The California statute forbids anyone to _offer_ his services in any way, to aid in the prevention of conception, but it does not forbid the giving of information if _asked_.

In three states effort has been made to introduce laws when none existed before, forbidding the giving of contraceptive information, or to make existing laws still more repressive. Illinois and Virginia were instances of the former, and Pennsylvania of the latter sort. These bills all died in Committee, thanks to the strong protests they aroused from representative and influential citizens.

The Illinois measure was modelled upon the New York law, and was introduced in the winter of 1918. Professor James A. Field of Chicago University and Dr. Charles Bacon of the Chicago Medical Institute, both of them representing the Chicago Citizens Committee (for birth control) appeared at the Hearing against the bill. The Illinois Medical Society also sent Dr. C. L. Taylor and Dr. Deal to oppose it. Effective lobbying was done before the Hearing, and by the time that was held, the interest was so great that the session was carried over into the evening. In conversation with members of the Legislature individually, it was evident that they had no idea that the passage of the measure would mean that it would be unlawful for anyone, even themselves to get the simplest and most commonly used sorts of preventive such as are sold at all drugstores. Professor Field and the physicians enlightened them on this and many other points, with the result that the bill was not reported out. It is significant that the way a measure of this sort is presented to a legislator makes such a difference in his opinion of its merit. A proposition to make obscenity less prevalent wins sympathy at once, and if there is no mention made of the fact that it also will forbid the securing of scientific hygienic information for utilization in normal private life, the obscenity point carries the legislator along to approve of the bill. But when he sees the real facts about such legislation, he thinks twice, and thinks sanely. It seems like a sound guess that Congress would likewise have thought sanely, if Comstock and those who rushed his bill through had given the members a chance to know the actual scope of the bill, and think twice. What a pity that no Professor Field and no level-headed doctors were on hand at the time to have saved the day in Washington in 1873, as they did in Illinois in 1918!

The effort to put Virginia into the black list of states which prohibit contraceptive knowledge and means, was a very recent one. In the legislative session of 1924 a bill was introduced which, according to the _Birth Control Review_, would make it “unlawful to sell, give away or possess any appliance or instrument for the prevention of conception.” The Committee on Moral and Social Welfare to which it was referred received many protests. So also did the sponsor of the bill, Mr. Ozlin, with the result that he withdrew it from the calendar, before it was discussed at all in the House.

In Pennsylvania there have been two attempts to make the law more suppressive than it already was, which was quite bad enough, for Pennsylvania is one of the states which make it a crime to tell any one, to have in one’s possession, to publish or to advertise contraceptive information, and it prohibits the circulation of contraceptive means. The first effort was in 1917, the Stern bill, which far surpassed any previous legislation in comprehensive suppression, for it even prohibited “attempting to impart” any “knowledge or information _tending_ to interfere with or diminish the birth of human beings.” If opinions have differed widely as to what constituted obscenity, fancy how they would differ on what “tended” to diminish human birth. Isador Stern, the sponsor of the bill, told Mrs. Alice Field Newkirk of the Main Line Birth Control League, that he wanted to “make it impossible to discuss birth control anywhere in Pennsylvania,—in parlors or in public halls.” The bill was quietly moved along through legislative routine till it passed both houses and it was not until the eleventh hour that many people knew of its existence. Then protests began to pour in to Governor Martin Brumbaugh, urging him to veto it. This he did with a very strong and forthright letter, in which he called it “one of the most reactionary enactments attempted in years.” The veto is here given in full, as it contains several points of importance in considering the question as to what kind of laws on this subject Americans may want:

COMMONWEALTH OF PENNSYLVANIA

_Executive Chamber_

HARRISBURG, JULY 16, 1917.

I file herewith, in the office of the Secretary of the Commonwealth, with my objection, House Bill No. 1643, entitled “An act forbidding the advertising, publishing, selling, distribution, or otherwise disseminating or imparting, or attempting to disseminate or impart, knowledge or information tending to interfere with or diminish the birth of human beings in the Commonwealth of Pennsylvania; defining it as a misdemeanor and defining its punishment.”

The bill forbids the publishing or otherwise disseminating of any information by anybody concerning birth control in this Commonwealth. The existing laws judiciously concern themselves with this matter. This bill does not. It is by far the most drastic bill in regard to birth control in this country. It is, by like token, one of the most reactionary enactments attempted in years.

The popular mind is filled—if I may judge this mind from the many letters and telegrams before me—with all sorts of misconceptions concerning the provisions of this bill. It is not a bill to regulate the size of families, but an attempt to prevent anyone from doing anything “to interfere with or diminish the birth of human beings in this Commonwealth.” Just how anyone could diminish birth is not made manifest. The language is viciously vague and indefinite in the extreme. The bill might be construed to punish those that oppose the marriage of the insane or feeble-minded. Indeed the Commonwealth’s own acts in segregating these unfortunates in institutions like Laurelton would come under the penalties of this bill. It is, in other words, counter to the whole current of modern social endeavor, and as has been pointed out, could be made a convenient club for the black-mailer. It would deny a physician the duty, in defined cases, of advising his patient. It would seal the lips of mothers and fathers in counselling their children. It is an attempt to do by legislation what should be done by education. It would be a law more honored in the breach than in the observation. It is impracticable and unenforceable.

For these reasons the bill is not approved.

MARTIN B. BRUMBAUGH.

While it is not feasible to agree with Governor Brumbaugh that “existing laws judiciously concern themselves” with this matter, one may well forget that sentence in his letter in view of the forceful truth of his last three lines. In differentiating the proper sphere of education from that of legislation, he rendered a signal service. So also when he emphasized the folly of proposing laws which are unenforceable.

Two years later, the very same bill was re-introduced into the Pennsylvania legislature, by Representative Hickernell. But it did not become a law this time either, thanks to the vigorous work of Mrs. Newkirk and some of the Harrisburg members of the National Birth Control League. The bill had been referred to the Committee on Health and Sanitation, of which a physician was chairman. He was of the opinion that such efforts to stamp out birth control belonged in the class of “freak legislation,” and he let his opinion be known in the Committee. The bill was never reported out.

Just as limited or “doctors only” bills were proposed after the first freedom bills were introduced in the states, so also were they proposed for Federal legislation after the trail was first blazed to Congress by a Federal freedom bill. The special import of the “doctors only” idea in Federal legislation will be discussed in the next chapter in connection with the story of the Federal bill, through fundamentally the same considerations apply both to state and to Federal law. At this point it may be clarifying to take a look at certain happenings when the “doctors only” bills were being urged upon the state legislators, and when the public was being urged to support them.

Those who have pushed these efforts to achieve limited legislation have repeatedly asserted that if the giving of information were restricted to physicians, and possibly to nurses, and given only to the married, and only on individual application, the legislators would be much more likely to pass the measure than if it were an “unlimited bill,” that is, a bill which would place this knowledge on just the same basis as any other knowledge so far as the law is concerned. But prophecy is one thing and history is another, and the facts in this case do not seem to bear out the prophecy.

When the first of the “doctors only” bills was proposed to the Albany Solons in 1921, two years after the second straight repeal effort of the National Birth Control League, the pattern of legislative objection was not altered one whit. The situation was precisely the same as it was when the bill asked for freedom for all instead of special privilege for a group. Then and at every subsequent effort in any state, the newspapers have reported the same old set of remarks made by the few articulate objectors,—that it meant race suicide, that it was the same thing as abortion, that it would induce immorality, and that it was against religion. As late as the Hearing of 1925 the legislators were still offering the objections of “race suicide,” and that it would “increase immorality.” But in the later years the race suicide bogey has become rather less prominent,—perhaps because Holland and New Zealand were so often quoted that the legislators were obliged to concede that birth control and large increase in the population were compatible and often coincident. In every single instance there has been the same vulgar levity on the part of a few legislators, the same noisy objections from another small portion of them, and the same favorable or tolerant opinions on the part of the majority, but privately expressed rather than publicly, and the same hesitation to let their votes in Committee or in the legislatures reflect either the facts in their own private lives or their real opinion.

What is chiefly in the mind of the legislators is not the terms of the bill at all, but the thought, “What will it do to me and my career if I have anything to do with such an embarrassing subject as this?” These reactions are admitted as true and are so reported, even by those who have been working for the limited legislation. For instance, in the _Birth Control Review_ of May 1921, the “Legislative Committee formed by the Margaret Sanger group to push a measure or amendment affecting the present birth control laws in the State of New York” reported their effort to secure a sponsor for the “doctors only” bill drafted by Professor Lindsay. The report reads in part, as follows: “The Chairman of the Health Committee seemed the most logical and best informed man to approach and he was also a member of the medical profession. He stated his absolute opposition to the repeal or amendment of the Birth Control laws and his determination to fight any such measure.”

So the “Doctors only” concession was quite wasted on him. The report continues: “Several of the important men of the Assembly assured us of their approval of this class of legislation, but did not care to introduce the amendment.”

The “doctors only” bait did not tempt them either. But hope was rewarded, the report says, for

On a second visit to Albany, W. F. Clayton of Brooklyn expressed his approval and belief in the great benefit of such measure.... He would sponsor the amendment he said.... After three weeks’ delay and two more visits to Albany, a letter was received from him saying: “I very much regret, but after consulting with some of the leaders of the Assembly, I have been strongly advised not to offer your bill. I am told it would do me an injury that I could not overcome for some time. Now, while I am more or less in favor of your bill and if you can get someone else to favor it, and they are able to get the bill out of Committee, I am strongly inclined to think that I would be one to vote for it, providing it had a ghost of a show. I regret that I have had this bill so long, but I sincerely hope my keeping the bill this length of time will not in any way prevent you from finding someone to introduce it.”

So the “doctors only” idea was no help here. The report proceeds:

Our next effort was to get sufficient and important backing from the medical profession of the State to influence Dr. Smith of the Assembly to sponsor the amendment. We did get the Health Board of the Academy of Medicine of New York City to endorse it. (The Academy later denied having endorsed this particular bill.) Doctors of national reputation wrote urging Dr. Smith to introduce it. Thousands of slips were signed urging the measure. The amendment in the form of petitions, was signed by doctors, judges, economists, editors, department of health officials, nurses, settlement workers, prominent philanthropists, clubs and club women and many hundreds of voters in the State of New York. All these data were presented as a background to the lawmakers. _Dr. Smith refused on the ground of levity from his associates._

It seems to take more than a “doctors only” inducement to offset the psychology which envelopes any proposition to legislate on birth control. The report concludes as follows:

Mrs. Sanger and the Committee approached Mr. Jesse of New York, a very able and prominent member of the Assembly and also conversant with the righteous and urgent need of such legislation. He considered the question and finally decided that he could not sponsor the amendment. This decision was given after he had consulted party leaders in New York. Personally many of these law makers believe the measure of great benefit, but the party whip cuts too deeply for courageous action. The Session drew to a close without the introduction of the amendment.

Again when the Connecticut limited bill (restricted to doctors and nurses) was up for its first Hearing, the newspapers were full of the same old pattern remarks from the objectors, and again the _Birth Control Review_ reported that the objections were that it “was against the law of nature, that it was atheistic, that it struck at the foundations of Christian family life, and that it was an insult to womanhood.” There was no sign that the objectors lessened or modified their opposition in any way because the proposed bill was a limited one.

In 1923 when the Rosenman Bill, the most limited of any yet proposed, was defeated by the Committee on Codes, Mrs. Annie G. Porritt, managing editor of the _Birth Control Review_, made this comment in the magazine:

“How can I wait for the laws to be changed? It means my life now. If I don’t get help in a few years I shall be dead.” This is the cry that comes to Mrs. Sanger from all parts of the United States. But this cry had no effect on the Codes Committee of Albany, when in executive session they killed the Rosenman Bill only a few minutes after they had heard the most convincing arguments for its passage. If the action of our legislators were swayed by reason there could have been hope for a better outcome; but it is not reason but politics to which the Assemblymen were giving heed.

The alleged persuasive character of the “doctors only” bill over the freedom bill was still undemonstrated, even with a married-persons-only clause thrown in for good measure in the way of limitations. The men were still afraid to stand for that or any other bill on the subject. “Politics” was still afraid. And the cause of the fear seemed clearly not to be that the bill provided this that or the other, in regard to birth control information, but that the bill brought up the question of birth control at all. That is the persistent sticking point with the man in politics,—nothing else. He feels embarrassed by the whole subject. He feels that it may possibly “queer him” or be used against him by his opponents in some way. And if he reaches the point where he admits the reasonableness of amending the laws to make them reflect the actual practice of the people, and decides that he might as well sponsor a bill for that purpose, then his more wary political associates, his party leaders, step in with restraining advice,—not because they have any really profound convictions on the question, or because they have any sincere opposition, but just because, as a very frank member of Congress explained it, “We have plenty of troubles of our own,—why should we add to the complications by queering ourselves with birth control?” And just here lies the crux of the whole legislation problem.

However even if all propositions for the amendment of State laws were straight freedom bills, and even if the State legislators began to lose their fears enough to act there is one outstanding reason why it is folly to try to correct the conditions in the United States by a series of State bills. There are too many states. And even under fairly favorable conditions it would take too long, not to mention the effort and money needed to make twenty-four separate legislatures go through all the motions involved. Laws do not amend themselves. Many people have to work and work hard to get it accomplished. From the view-point of efficiency alone, State legislation is wasteful, so long as the Federal law remains unchanged; State legislation at best would be a slow enough process, but with the precedent of the Federal law still extant, it would be bound to be slower still. From the view-point of human suffering and ignorance, State legislation without Federal action also, is hardhearted and unintelligent; why break down the barriers to information slowly a state or two at a time and keep struggling worried parents in all the other states waiting for the information much of which they might have quickly by the passage of the Federal bill? And why keep scientists waiting all over the country for the right to import and otherwise order from publishers the books which only the passage of the Federal bill will let them secure lawfully, and subject them to picking up information locally or secretly? From the point of view of public morals, legislating a state at a time, even with straight repeal bills, is dabbing at a national blemish instead of wiping it out. All of which considerations point directly to the need for Federal legislation.