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