WHAT DO THE PEOPLE WANT?
_People’s first individual want is reliable contraceptive
information: Strong probability that people prefer decent enforceable
laws to those which are dirty and unenforceable: Choice can not be
put up to United States town-meeting fashion: Reader asked to make
own choice by elimination of what he does not want: Do you consider
contraception indecent? Should laws penalize the decent majority to
reach the depraved few? Should the control of conception itself be
made a criminal act by law? Abstinence as method of birth control has
no legal standing in the U. S.: Do you want unenforceable laws? Can
“doctors only” laws accomplish their own aims? Are they enforceable?
Do all contraceptives require personal medical instruction?
Proponents of “doctors only” bill admit they do not: English birth
control organization disapproves “doctors only” stand: Best known
English authority on birth control is biologist, not M.D.: Are laws
to control improper advertising of contraceptives practicable?
Average citizen too occupied to analyze legislative proposals:
Proponents of limited legislation backward about explaining their
bills to the public: They refuse to debate openly or confer privately
with the proponents of the freedom bill._
What do the people want? No doubt the first conscious want of most
people so far as birth control is concerned, is simple reliable
information about methods. It is largely their own needs and wants
which have made people pay attention to and develop the birth control
movement, or realize just how the laws forbid their getting what they
want. On the latter point they are apt to be much more vague than on
the former. Some people, and unfortunately they are numerous, having
managed to get what they want in spite of the laws, are prone to
forget the plight of others who are not sophisticated enough or lucky
enough to be successful law-breakers, and thus they feel little direct
responsibility about getting the laws revamped so that they shall
not stand in the way of any one who needs access to the information.
But on the whole, these careless and self-centered people would, if
they stopped to think about it, agree with those who have a heart for
others and are public spirited, and they too would prefer decent,
just and practicable laws to those which are dirty-minded, unjust and
unenforceable.
Suppose a real conference of the whole people were possible, and
they could put their minds on deciding what laws they wanted on this
subject, after looking over the statutes we have now, and after
scrutinizing all the proposals that have been made for revising them,
what sort of a decision would they be likely to make? What would their
conclusion be, if left entirely to their own devices, with no “experts”
to tell them what to say, and with the whole responsibility on their
own shoulders? They would doubtless be deficient in putting their
ideas into legal phraseology—the technician might have to be called
on for that; but would they be likely to vote any sort of suppression
or restrictions upon themselves? Is there any precedent in history for
a body of people ever doing that? Have people ever united to express
their lack of faith in themselves and said, “Let us have laws to keep
us from knowing this and that, as we can not trust ourselves to use the
knowledge rightly”? On the contrary, whenever people unite in demands
_for themselves_, are those demands not always for freedom rather than
for repression?
But since a United States town-meeting on this subject is a wild
hypothesis, perhaps the next best thing would be for the reader to look
upon himself as the one person upon whom the answer to this question
rested—with the responsible knowledge that whatever he really wanted
would forthwith become the law of the land; and realizing also that
what he basically wants is, probably ten to one, what most everybody
else wants too.
The simplest way to reach a conclusion about this law question would
seem to be by elimination. First then—do you want the laws related
to birth control to remain as they are now? Do you approve the legal
company the subject is in—under such law classifications as “Obscene
literature,” “Indecent articles,” and entangled with such adjectives as
“lewd,” “lascivious,” “filthy,” and “immoral”? No? You wish it rescued?
Then the bill to repeal those two words “preventing conception” from
all the obscenity statutes is what you want.
But wait—it may not be so simple as that. How about those who do feel
that the control of conception is more or less indecent, the people
who have somewhat Comstocky minds, to whom _any_ reminder of sex is a
danger? Are they anything like a majority. If so, would you want to
let the laws remain as they are in deference to their feelings? Though
no one can prove it, they are probably nothing like a majority, but
even if they were, should the normal, clean-minded people be penalized
for their sake? And further, is it the proper function of government
to maintain laws to protect people’s _feelings_ about sex or anything
else? Those who want to may feel as indecent as they please about
the control of conception. They do not need laws to help them do it.
The function of law is to protect people’s rights. As no one’s mere
feelings are an intrusion upon another’s rights, it is no concern of
the law to deal with them. The laws as they stand now are a gratuitous
insult to the great mass of the people who do not consider the control
of conception indecent. Do you want that legal insult maintained?
Then how about those whose chief interest in the control of conception
is in connection with actual sex depravity and perversion and who wish
the information for that purpose? Do you want the obscenity laws to
remain as they are, for the sake of trying to make them apply to those
people? Hardly, because they are undoubtedly a small minority anyway,
and they are quite clever enough to break the laws successfully,
besides; and further, any circulation of contraceptive information
which is put in indecent language or involved with inducements for sex
depravity would be just as subject to prosecution under the obscenity
laws _after_ the removal of the words “preventing conception” as it
is now. The indictment would be for _obscenity_, and that can cover
improper contraceptive information or anything else that the judge or
jury in a given case choose to make it cover. Obscenity, throughout
the whole history of law in modern times has been an extraordinarily
pliable term.
Is there then any propriety or justice in keeping this subject per se,
legally enmeshed with penalized obscenity? If you agree that there is
none and if you want it removed from the obscenity laws, what next?
Do you, by any chance, think that the control of conception regardless
of any connection with obscenity, should _itself be declared by law
to be a criminal act_? This is a crucial question absurd as it may
sound. There are many people who believe that the scientific control
of parenthood is wrong, though not necessarily obscene. This has been
the teaching of the Catholic Church, and on this ground Catholics
have opposed the repeal of the legal ban on knowledge concerning it.
They have not asked Congress to amend the Comstock law by making
it a criminal act to control conception. But is not this the only
logical thing for them to do, if they presume to, ask the government
to continue to deny people access to the knowledge on the ground that
the utilization of the knowledge is wrong? Ought not they and any
others who are like-minded, to get themselves together and tackle this
question straight from the shoulder in Congress? If they consider it
at all appropriate to appear at a Hearing and urge Congress to try to
keep the people from knowing about this wrong thing, is it not more
fitting to ask for laws which will forbid the thing itself, instead
of knowledge about the thing? They can perfectly well proceed on this
course if they wish to undertake it. It is noteworthy that thus far,
none of them have done so. No one has gone to Congress and pointed with
pride to that unique statute in Connecticut, the only one of its sort
in the world—which makes it a crime to control conception—and asked
to have a Federal law of the same sort enacted. But if the Catholics
and what few other opponents there are, do not wish to undertake this
task, and if they persist in asking for laws to prevent others from
learning how to do what they—the Catholics, et al., consider wrong,
they will be treading upon ground which may menace the maintenance of
their own liberty to teach and preach and practice what they believe
to be right. The tables are likely to be turned upon them, so that
they will have to fight for the same sort of liberty which they now
seek to deny to others. Indeed this is what did happen in the case of
the Oregon School law, which would be in operation today if the United
States Supreme Court had not declared it unconstitutional. (Appendix
No. 15 gives further information on this subject.)
In getting at an answer to the question as to what sort of laws are
really wanted, it clears the air considerably to get rid of this point
about the distinction between a law which prohibits an act and a law
which prohibits _information about an act which in itself is perfectly
lawful_. The latter is the sort of law we now have, and it is not good
law either for those who believe in the control of conception or for
those who do not. Both groups should join to repeal it. And then those
who wish to have their belief that birth control is wrong incorporated
into the law of the land would have an open field in which to make the
effort. That they would fail is a foregone conclusion, and they know
it of course, which no doubt accounts for their rash insistence on the
retention of the present law.
The next point to eliminate is that in regard to the application of the
present law to the _one method_ of birth control which is sanctioned by
the Catholics and the few others who deem the utilization of scientific
knowledge an affront to God or nature, namely, abstinence from sex
relations. The writer has a letter from Rev. John A. Ryan, Director
of the National Catholic Welfare Council in which he says, “There is
no question of the lawfulness of birth restriction through abstinence
from the relations which result in conception.” This assertion has been
repeatedly made by other opponents, but that it is a mistaken assertion
was pointed out by Congressman Vaile and by Prof. Roswell Johnson at
the Hearings on the Cummins-Vaile Bill. Mr. Vaile said: “If abstinence
from the sexual relation were practiced, either spouse could get a
divorce.” Abstinence itself is not sanctioned by law.
According to common law precedent, the wife gives her “services” to her
husband in exchange for her “necessaries.” “Services” are interpreted
to mean household services and “consortium,” or sex-relations.
“Necessaries” are interpreted to mean food, clothes and shelter.
The law does not sanction a wife’s withholding her “services,” either
household or sexual. If she does, it is deemed desertion, and in many
States desertion is a ground for divorce.
Thus it seems that abstinence is not only illegal, because it is a
method of birth control, the giving of information about which is
prohibited by law, but it is also illegal because it is withholding
the “services” which a wife is by law bound to give in return for her
“necessaries.”
In other words, so far as the law is concerned, there is no room for
abstinence. It follows therefore that the only sort of family which is
_legally_ approved in these United States is that in which there are as
many children as it is physically possible for the parents to produce.
This legal situation constitutes a downright poser for the so-called
“purists” who advocate the abstinence of marital sex relations except
for procreation.
For abstinence is one method of birth-control. It certainly prevents
conception.
To teach any method for the prevention of conception is prohibited by
law throughout the United States. Yet the “purists” teach their method.
Therefore the “purists” are guilty of breaking the law. Query: Why
are they not prosecuted? This question then becomes a poser for the
government. Silence has been the only answer.
This leads to the next point to be cleared away, in the process of
finding out what laws are really wanted or what ones it is worth while
to want; that is, as to enforceability. Clearly the present laws are
not enforced. The government has not the remotest idea of trying to
enforce them. And if it tried, it would fail. It might mean jailing at
least half the population. It simply can not be done. The knowledge
is circulating whether or no. The cat is out of the bag, and it is
quite useless to wave the empty bag any longer, as if somehow the cat
could be persuaded back. Better cast the old bag aside, as it is full
of holes anyway, and let the cat be given a decent home, instead of
being obliged to skulk furtively in alleys and eat from garbage pails.
Moreover it is a cat that has not only the proverbial nine lives, but
more nearly ninety million lives. It can not be caught or killed, much
less bagged. Do you, or does anybody really want unenforceable laws?
The question answers itself.
If the principle of enforceability is a prerequisite for law, and
if the present law is abandoned because it does not live up to that
principle, is anything more needed than merely to put the old law
in the waste basket, in other words, just to remove those two words
“preventing conception” from all the obscenity statutes in which
they occur? Is any further legislation needed? And if so, is there
any sort which, first of all, meets this fundamental requirement of
enforceability, and which also will achieve the ends for which it is
desired? And if those ends are not achievable by laws which can be
enforced, then they will have to be achieved, will they not, by some
other agency than law?
The two ends to be achieved for which other legislation has been
proposed are, first, that only authoritative scientific contraceptive
information shall be given to the people, and second, that all
information on the subject shall be kept away, so far as may be
possible from those who would misuse it, or who might be tempted
to misuse it, so that immorality and depravity may not be thereby
increased.
Suppose, for the moment, that you feel so strongly about the
desirability of both those ends that you are inclined to favor any
legislation which is aimed to achieve them. Then bearing in mind the
basic requirements of enforceability and efficacy, you scan with a
fresh eye and a responsible spirit the legislation which has been
proposed. You find in it two principles, one that all contraceptive
information and means which are circulated shall bear authoritative
medical certification that they be “not injurious to life or
health,” that is, the certification shall be by lawfully practicing
physicians; the other principle, that contraceptive information may
lawfully emanate only from a certain class of the people, the medical
profession, and be given only to people who qualify in certain ways,
that is, those who are physicians or those who receive it personally
from physicians as “bona fide” patients of the same, and that
contraceptive means may be sold only to those who personally present a
physician’s written prescription for the same.
These two principles you find are very far apart. One requires medical
sanction for methods, as somewhat of a protection to the public
against harmful or fraudulent contraceptives, and while it by no means
guarantees wholly satisfactory protection, as it would be subject to
the possible inadequacies of the certifying physicians, it would be
at least enforceable, and it establishes untrammelled freedom in the
access to information and the securing of means.
The other is class legislation, and establishes a monopolistic,
monetary privilege for physicians in the dispensing of information and
an impracticable restriction upon those who sell contraceptive means:
in so doing it by no means guarantees protection against harmful or
inadequate contraceptives, as it would protect only to the extent that
individual physicians were competent and conscientious, and it would
be even less enforceable than our present law. For if information
now leaks through the bars of the present law to a very considerable
extent, it stands to reason that the leakage would be greatly increased
if the bars of the law are lessened at all, and if the bars are placed
very far apart as they would be by the latest “doctors only” bill
proposed (the Worthington draft as given on page 212) the leakage would
be so great as to reduce the efficacy of the bars to the vanishing
point. It would be patently absurd to expect such a sieve-like law to
allow all the worthy people to get information and to keep it away from
all the unworthy ones, or even any tiny proportion of the unworthy ones.
So, if the final effect of this last proposed “doctors only” bill would
be about the same as the freedom bill, so far as access to information
is concerned, why go all round Robin Hood’s barn to achieve it, instead
of doing it directly and simply? Why try to fool oneself or anybody
else into thinking that any law can possibly be devised that will
allow many millions of people to learn certain facts, and which will
at the same time keep those facts a profound secret from the balance
of the people? Does not such a proposition seem to be the outcome of
mental processes somewhat akin to those of the man who cut two holes
in the barn door, a big one for the old cat and a little one for the
kitten?
Glance back to the changes in limited legislation which have been
proposed since 1881, when the first one appeared, long before the
modern birth control movement. It was in New York State, and it
permitted doctors to give any instructions (including by inference
contraceptive instruction) to “cure or prevent disease.” In 1919 began
the rapid succession of limited bills by which some of the legal bars
were to be removed. First doctors and nurses were to be allowed to give
information. Then the bars were thickened by eliminating the nurses,
leaving the doctors in sole possession of the special privilege. Then
to thicken the bars still further, the doctors could give it only to
the married or to those having a license to marry. Then came the first
Federal “doctors only” proposition, by which doctors could inform
other doctors and their “bona fide” patients, and dealers could fill
contraceptive prescriptions from doctors; but no publications or
importation of publications were to be allowed. Then, as the force of
criticism began to be felt, and the Cummins-Vaile Bill progressed to
the point of being reported out by the Senate Judiciary Sub-Committee
in Congress, the bars began to be thinned out again, and in 1925 the
Worthington draft appeared, which would permit doctors to inform
each other and their patients, and allow dealers to fill physicians’
prescriptions, and would also permit medical and “scientific”
publications, and “reprints” from the same. You find that these
legislative proposals have swung all the way from a tight “doctors
only” bill to a bill that is framed in the language of a “doctors only”
bill but which actually would not function as such.
The point has almost been reached when, by the removal of bar after
bar in the “doctors only” type of bill, one might say that “things
equal to the same thing are equal to each other,” inasmuch as the
last version of the “doctors only” idea would be practically the same
in effect as the Cummins-Vaile Bill, so far as the accessibility of
contraceptive information is concerned. That being the case, is not the
very fact that the limited bill proposition has been pared down till
it would release information about as completely as a freedom bill,
a most forceful reason for scrapping it now in favor of the freedom
bill? If the restrictions are so riddled with exemptions as to be only
the shadow and pretense of restriction, why go through the motions of
keeping them? If such pretension at restriction should fool anyone
into thinking they were genuinely efficacious, it would but serve to
make the law an arrant hypocrisy. If they would not so fool anybody,
why bother to try to put them into law? Is it not time to bear in mind
Dr. Pusey’s advice to avoid framing “silly legislation,” as we have
more than enough of that kind on the statute books already? Why add to
the welter of laws we have, when we can better achieve what we want by
merely subtracting errors from the existing laws. As “Life” observed:
Thirty-eight thousand eight hundred and forty-four laws were proposed
in the United States last year, of which 10,809 were actually
enacted. Our national sport used to be baseball.
Probably most if not all of the “doctors only” proponents would be
quite willing and even glad to have this subject removed from the
obscenity classification in law, if they could see a feasible way to
keep the “doctors only” provision at the same time. But that would
force them to propose a law that would frankly be a legal permit for
class privilege. It would be too obvious to attempt with decorum. So
they try to accomplish the same end by the indirect method of providing
exemptions for doctors under the existing obscenity statutes. But
just as a rose by another name would smell as sweet, is not a wrong by
another name just as offensive?
This thought brings up the next point for consideration as to the sort
of laws it is worth while to want. Even if the latest form of “doctors
only” bill does break down the restrictions so that they would be a
mere gesture rather than a genuine law, do you want any laws passed
which are based on the idea of privilege? If so, would you be willing
to be quite candid about it? Would you be willing to ask a member of
Congress to introduce a bill which would be a legal permit for certain
people to give contraceptive information and certain people to buy and
sell contraceptives, and would forbid all other people to do the same?
If you would shrink from such a blatant betrayal of democratic American
principles as that, are you not in all conscience bound to stand for a
law which would be true to those principles? If you were not willing
to do openly and directly a thing which you knew to be unsound in
principle, could you possibly persuade yourself to do it indirectly?
Suppose then you have a healthy scorn of pretensions, legal and
otherwise, and you find yourself averse to any legislation that could
be rightly deemed double-faced, and you proceed in your survey of
legislative proposals. You may find that the point about the need for
personal prescription of contraceptives which is so stressed in behalf
of the “doctors only” bills, still troubles you. You wonder perhaps, if
there is not some sound way to make a legal provision that would work
out so as to give the people just what they individually need in the
way of contraceptives and protect them from means that are unsafe or
ineffective.
If so, there are these facts to consider. There is doubtless great
advantage in having the personal advice of a thoroughly well informed
physician as to contraceptive method. It is reassuring if nothing
else, even if not imperatively needed in most cases. For average
individuals with normal physique a professional prescription is by
no means always necessary. But exceptional physical conditions do
need special attention, such as only the doctor or an experienced
nurse can give. Under the present handicap of the laws, advice from a
competent physician is of especial use because he can warn his patient
against the many worthless and even harmful methods which are being
secretly advocated. But when publications on the subject can be openly
circulated, the difference between the good and bad methods can be made
clear by authoritative spokesmen, and the general public can learn the
main facts about this sort of hygiene in the same natural way that they
learn about dental and dietetic hygiene, and so forth. There is no need
to make a medical mystery of this knowledge, or to assume that the
public will be lost in hopeless ignorance unless a doctor prescribes
specially for each individual. The simplicity of some of the best
methods makes such an attitude an absurdity.
At the last Hearing in the New York Legislature on a “doctors only”
bill, the Birth Control Review reports Mrs. Sanger as saying that
“the Clinical Research Department of the American Birth Control
League teaches methods so simple that once learned any mother who is
intelligent enough to keep a nursing bottle clean can use them.” Dr.
Robert L. Dickinson, head of the New York Committee on Maternal Health
has said that the method most favorably regarded does not require the
instruction of a physician preceding its use. “The New Generation,”
one of the two outstanding birth control periodicals in England, and
official organ of the Neo-Malthusian group of birth control advocates,
published in January, 1925, the following editorial against the
“doctors only” position.
MEDICAL MONOPOLY
We deeply sympathize with our American friends in their difficulties
with the Comstock Act, but we fear that Mrs. Sanger’s proposed
compromise—to give the doctors a monopoly of knowledge—would only
be a step from the frying pan into the fire. Mrs. Sanger thinks that
contraception must in any case be a subject for medical experts, so
it does not matter much whether they have a monopoly or not. There we
differ from her. We cannot admit that contraception must necessarily
be a medical question. We admit that the kind of contraceptive most
fashionable at present has to be fitted by a doctor or nurse, but
science may easily evolve a better one which will render doctors and
nurses entirely needless. The results of eighteen months’ experiment
in Mrs. Sanger’s own clinic are the best proof of this. One of the
most successful devices employed there was a —— paste which needs
no doctor to fit it. Its percentage of failure was as small as that
of any other tried method. From the standpoint of the public it is
devoutly to be hoped that some simple method which needs no doctors
will turn out to be the best. But such a result would be directly
opposed to the interests of the medical profession. If the doctors
had a legal monopoly of knowledge, they would be under the strongest
temptation to develop and improve those methods which demand the
assistance of doctors, and to discourage all research which would
make doctors unnecessary.
The official stand of the Society for Constructive Birth Control
and Racial Progress, in England is also against the “doctors only”
position. This is the Society of which Dr. Marie C. Stopes, founder of
the first English birth control clinic, is the president.
A striking bit of evidence which is related to this point is that the
best known authority on this subject in England, and the one from whom
many physicians both abroad and in this country have learned most of
what they know about the control of conception and who has written a
large volume of the subject, is a biologist, who has scientific degrees
but who is not an M.D. So the framing of laws which would place the
giving of information exclusively in the hands of physicians becomes an
absurdity for that reason if for no other.
“Floods of advertisements” streaming through the mails,
commercializing, cheapening and degrading contraceptive science—this
is one of the bogies held before the eyes of the public by those who
want limited legislation in place of freedom legislation. You may
consider this a point well taken as a possible reason for “doctors
only” legislation. Certainly decent people do not want any such thing
to happen. The question is how to prevent it. Can it be achieved by
law? If so, then would it not be better to have a separate statute on
the subject of advertising contraceptives, than to try to accomplish
the curbing of improper advertising in a round about back-handed way
via a “doctors only” bill? Of course a blanket prohibition of all
advertising would not be appropriate for that would rule out the
publisher’s announcements of the “standard medical works and reprints
therefrom” which are to be allowed according to the latest form of
“doctors only” bill. It is hard to see where any line could be drawn,
as “standard medical” and “scientific” publications are not defined
by law. What conceivably might be done is to pass laws similar to the
obsolete one in Holland which forbids the display of contraceptives
in shop windows, and so forth. But on the whole would it not be best
to have the laws simply provide an open field, and let the dignified
authoritative scientists compete with the quacks and the spurious
folk, with faith that eventually the best would win, very much as the
increased public knowledge of general hygiene is steadily putting
quackery into the background?
The writer of this book believes whole-heartedly that the American
public wants sound legislation on the subject of birth control. The
difficulty in getting it lies in the fact that people in general
are so concerned with each day’s doings that there is scant time or
opportunity to dig out from all manner of sources the few facts that
are the basis of sound legislation. The tendency of busy people is to
“let the experts decide.” The tendency of average citizens is to vote
yes on any project that claims to carry out ideas to which he gives
general approval. The tendency of birth control enthusiasts is to
assume that the sincere and self-sacrificing leaders of an agitation
are automatically wise at framing laws on the subject. But, as Heywood
Broun said in the New York World, anent another subject and a different
sort of organization:
I am quite ready to be convinced that many of its members are
dangerously sincere and are utterly convinced that the objects for
which they work will save the Nation. What of it? Where on earth did
the notion come from that sincerity was a sort of police pass which
would admit the bearer through all restraining lines and permit him
to pour kerosene on the conflagration? Would you have your appendix
out at the hands of a sincere surgeon or ask a passionate architect
to design the foundations of your cellar?
And one of the chief difficulties for the interested citizen in
this particular matter is that the proponents of the “doctors only”
legislation give such a small part of the salient facts to the public
in asking for support for their bills. Much is omitted which might
radically alter the response to the request for endorsement, if it were
but known. For instance, the public is being asked in widely circulated
appeals to endorse the bill drafted by Mr. George Worthington, which is
to be introduced into Congress as soon as possible. It may very likely
be before Congress by the time these words are read. The statement
which accompanies the request for endorsement is this:
The object of this amendment (to Section 211 of the Penal Code) is
to permit the mailing of contraceptive information and scientific
reports by duly licensed physicians to bona fide patients, physicians
and printers,—and to permit bona fide druggists, manufacturers and
physicians to mail articles of contraception.
A copy of the Worthington amendment is given. That is all. There is
not a word about the fact that this is an amendment to the obscenity
law, and that the subject of birth control is still left, a penalized
indecency in that law. There is no suggestion given that this amendment
is permissive legislation for a class privilege. There is no inkling
given that it is legislation that could not possibly be enforced so as
to exclude others beside those listed from using the mailing privilege.
There is no statement explaining that there is no such thing in law
as a definition as to what constitutes a “bona fide” “patient,” or
“printer” or “manufacturer.” The public is merely asked to say yes
to what looks, at first glance, like a most desirable thing. And
apparently the public is being counted upon to say it, without a second
glance or a pause for thoughtful inquiry.
Indeed, on the part of some of the proponents of limited legislation
there seems to be a definite intention not to let the public realize
that there is or could be a choice as to the type of bills which our
legislators are asked to pass. A striking example of this tendency
has appeared in New Jersey. Circular letters are going the rounds
asking the public to endorse a “doctors only” and married-people-only
bill, as shown in Appendix No. 8. The State organizer of the American
Birth Control League who has charge of this work, was asked if he had
“ever considered submitting a choice of bills to the public” he was
“circularizing to see which they would prefer asking the Legislature
to pass, a limited measure or a simple repeal act?” He answered thus:
“It is a hard enough job to educate the public to see the necessity for
birth control as a general proposition, without confusing the issue by
asking them to express an opinion or choice as between two possible
measures, about neither of which they know very much. Even if such a
questionnaire were possible, I would not make it.” It is noticeable
that the letters which are being circulated asking for endorsement
do not inform the New Jersey people much of anything even about the
limited bill proposed. Yet the endorsement which these New Jersey
citizens send in will be used to convince the Legislature that the
people want this particular bill, as proved by their endorsements. It
goes without saying that those who collect the endorsements will not
then state that they did not trust the people to know what they wanted
themselves.
Further indication of unwillingness on the part of the “doctors only”
group to have the public get a full and free comprehension of the two
radically different types of legislation that have been proposed, has
been the repeated refusal of the “doctors only” proponents to debate
the subject in open meeting. The proponents of the freedom bill on the
other hand have made many efforts to pool the points held in common
between the two groups, and to iron out the differences so that a sound
joint legislative platform would be the result. It may be illuminating
to the reader to see the terms of a recent effort on the part of the
proponents of the freedom bill to get together with the proponents of
the exemption bill drafted by Mr. Worthington. They are embodied in a
Memorandum which was sent by the freedom bill group to the exemption
bill group preliminary to a proposed conference. The exemption bill
group refused to confer. The Memorandum reads as follows:
1. _Proposed legislation should be tested_ for its _soundness_ as
law, its _enforceability_, and its _adequacy_ to meet the people’s
need.
2. It can be assumed that everyone sincerely interested in the birth
control movement, from whatever angle, will want all laws to meet
these tests.
3. Conversely, it can be assumed that no one would, wittingly,
approve laws which are unsound, that is, unsuitable for a democracy,
or untrue to the letter or spirit of the Constitution; or laws which
are unenforceable, that is, which are a mere gesture, calculated to
have a discretionary or educational effect on the public, but are not
intended for genuine execution; or laws which are inadequate, that
is, which do not permit the widest and speediest opportunity for the
largest possible number of people to have access to contraceptive
knowledge.
4. It can be assumed also, that in the effort to find a legislative
platform which the public and all who are specially interested in
the birth control movement can be asked to support, there should be
no provisions proposed which are based upon personal, organization,
or professional partisanship; that the platform should represent
only intrinsic merit, regardless of priority of effort, individual
reputation in leadership, or of professional prestige.
5. If all concerned will agree then, as to what _not to do_, they can
the more readily determine what _to do_.
6. The basic elements which all hold in common seem to be;
a. Recognition that contraceptive knowledge is not obscenity
and that it is all gain and no loss to remove it from that
classification in law, and that the demand for a clean legal status
for the subject is in itself a very valuable educational process
for the public.
b. Desire that all who need contraceptive instruction shall receive
it from the best possible sources, and through the best possible
channels. The best sources are generally conceded to be the medical
and biological scientists.
7. Point _a_ can easily and properly be achieved by legislation.
It involves only striking out “Preventing Conception” from all the
obscenity statutes, wherever they occur.
8. But point _b_ presents great difficulty if not impossibility of
achievement via legislation, _not, however_, via publicity and a
campaign of education.
Thus far no legislative proposal on this point _b_ has successfully
met any of the three tests named in the first paragraph of this
Memorandum as fundamental necessities.
They have either been class legislation, or permits for special
privilege, or have been unenforceable, or inefficient as means for
allowing the accomplishment of the desired aim.
9. Unless there is some genius who can now frame a law that is
adequate to provide for point _b_ and which at the same time is
free from the serious legal sins noted above, is it not the part of
wisdom for all who are working in the birth control movement, to
join in approving legislation to achieve point _a_ and then work in
their many various ways to achieve point _b_ by a vigorous publicity
campaign, that will be so wide-spread and effective that all America
will shortly know that the best way to get contraceptive instruction
is to consult the best medical and biological authorities?
10. People can be successfully advised and guided along paths that no
laws can _compel_ them to take.
11. The _result_ is what every one wants, that is _education_. Then
why not concentrate on education straight, instead of trying to
secure it by laws? _And why not depend on legislation for the simple
purpose of removing the barriers to education?_
12. The obligation resting upon those who undertake to frame
legislation is serious. They must see to it that the enthusiasm
of the large groups interested in birth control is not wrongly
capitalized. Most of these people are not innately law-makers,
and, legally speaking, they think very superficially. They do not
differentiate between enthusiasm for a humanitarian project and
providing the legal processes that clear the road for the achievement
of the project.
13. Knowing as we all do, that large numbers of people will endorse
any sort of proposed birth control laws out of sheer enthusiasm for
the big cause, it behooves the few who devise legislative procedure,
to hand to the legislators and to the public, propositions that are
thoroughly sound, just and efficacious. We must carefully safeguard
our country, at least so far as our movement is concerned, against
the addition of any more laws that are superfluous, spurious or
ineffective.
14. We shall do well to bear in mind, that education is the great
thing, but that it needs an open road in order to progress rapidly,
which the repeal embodied in the Cummins-Vaile Bill would accomplish.
If such a thing were possible that the people really wanted, knowingly,
the enactment of a “doctors only,” special permit exemption bill, and
also knowingly, did not want the enactment of a freedom bill, then they
ought to have what they want. Democracy is government by the people. It
is not necessarily good government. But at least the people should know
what sort of legislation they are choosing when they sign endorsement
slips and petitions. Many of these have been circulated in the past,
and many are being circulated now. There is a notable difference
between the two sorts. Those circulated in behalf of the freedom bill
have plainly stated that the bill was to remove the ban from the
obscenity laws, so that any one who signed could know that he was
expressing his approval of that act. Those which are being circulated
on behalf of the special-permit, exemption, “not non-mailable” bill
_do not state_ that the subject is being _left_ in the obscenity laws.
If the assumption is that the people would approve leaving the subject
in the indecency classification in laws, then it would seem to be only
fair and square to ask them to say so explicitly. For it is a good
deal of an assumption. It needs proof before it can be believed. In
justice to themselves also, should not the proponents of the limited
legislation state clearly what their proposed law would do and would
not do, in order that no one should have opportunity to charge them
either with carelessness or with duplicity?