PHYSICIANS, INSTRUMENTS AND ADVICE. An article or instrument, used
or applied by physicians lawfully practicing or by their direction
or prescription, for the cure or prevention of disease, is not an
article of indecent or immoral nature or use, within this article.
The supplying of such articles to such physicians or by their
direction or prescription, is not an offense under this article. _The
giving by a physician lawfully practicing, to any person, married or
having a license entitling him or her to be married duly and lawfully
obtained by him or her, of any information or advice in regard to
the prevention of conception, on the application of such person to
such physician; or the supplying to such physician or by any one on
the written prescription of such physician to any such person of any
article, instrument, drug, recipe or medicine for the prevention of
conception, is not an offense under this article._
Explanation. The portions in italics are new.
APPENDIX NO. 7
THE CONNECTICUT LAW AND THE AMENDMENT PROPOSED BY THE AMERICAN BIRTH
CONTROL LEAGUE
The present statute, enacted in 1878, reads as follows:
_General Statutes, Section 6390. Use of Drugs or Instruments to
Prevent Conception._ Every person who shall use any drug, medicinal
article or instrument for the purpose of preventing conception shall
be fined not less than $50.00 or imprisoned not less than 60 days nor
more than one year or both.
The proposed bill would repeal the above section, and enact the
following new section.
The giving by a physician licensed to practice or by a duly
registered nurse to any person applying to him or her, of information
or advice in regard to, or the supplying by such physician or nurse,
or on a prescription signed legibly by him or her, of any article or
medicine for the prevention of conception shall not be a violation of
the statutes of this State.
APPENDIX NO. 8
NEW JERSEY LAW
AND
_Amendment Proposed by the American Birth Control League_
AN ACT to amend an act entitled “an act for the punishment of crimes
(Revision of 1898), approved June Fourteenth, one thousand and eight
hundred and ninety-eight.
BE IT ENACTED by the Senate and General Assembly of the State of New
Jersey:
1. Section fifty-three of the act to which this act is amendatory be
and hereby is amended so as to read as follows:
53. Any person who without just cause, shall utter or expose to
the view of another, or to have in his possession, with intent so
to utter or expose to view, or to sell the same, any obscene or
indecent book, pamphlet, picture, or other representation, however
made; or any instrument, medicine, or other thing, designed or
purporting to be designed for the prevention of conception, or
the procuring of abortion, or who shall in any wise advertise, or
aid, or assist in advertising the same, or in any manner, whether
by recommendation against its use or otherwise, give or cause to
be given, or aid in giving any information how or where any of
the same may be had or seen, bought or sold, shall be guilty of a
misdemeanor, _THE CONTRACEPTIVE TREATMENT OF MARRIED PERSONS BY
DULY PRACTICING PHYSICIANS, OR UPON THEIR WRITTEN PRESCRIPTION,
shall be deemed a just cause hereunder_.
The underlined clause is the amendment desired by the American Birth
Control League.
APPENDIX NO. 9
CALIFORNIA LAW
AND
_Amendment Introduced in 1917 by Senator Chamberlain and Assemblyman
Wishard_
The California law is Section 317 of the Penal Code under the Chapter
Heading, “INDECENT EXPOSURE, OBSCENE EXHIBITIONS, BOOKS AND PRINTS, AND
BAWDY AND OTHER DISORDERLY HOUSES.”
The bill introduced by Senator Chamberlain and Assemblyman Wishard
amended the Section by striking out the words “or for the prevention of
conception.” The wording of the Section is as follows:
317. ADVERTISING TO PRODUCE MISCARRIAGE. Every person who wilfully
writes, composes or publishes any notice or advertisement of any
medicine or means for producing or facilitating a miscarriage or
abortion, or for the prevention of conception, or who offers his
services by any notice, advertisement, or otherwise, to assist in the
accomplishment of any such purpose, is guilty of a felony.
APPENDIX NO. 10
INDICATIONS OF OPPOSITION OF BIRTH CONTROL ADVOCATES TO REMOVING BAN ON
CONTRACEPTIVE INFORMATION FROM FEDERAL OBSCENITY LAWS
At the first American Birth Control Conference when the American
Birth Control League was organized in November, 1921, the following
resolution was submitted, but the Conference was not allowed to vote
upon it:
_Whereas_, the proposition has been laid before Post Master General
Hays by the Voluntary Parenthood League, that he recommend to
Congress the revision of the Federal law so that contraceptive
knowledge shall not be included among the penalized indecencies which
are now declared unmailable.
_Be It Resolved_, that this American Conference for birth control
urges Post Master General Hays to act favorably on this proposition
as a matter of postal progress and as a service to modern science,
welfare and justice.
A “doctors only” proponent, speaking from the floor against allowing
a vote on this resolution to be taken by the Conference said, “If we
could have the Federal bill passed _to-day_, we would not want it.”
EXCERPTS FROM AN EDITORIAL IN THE BIRTH CONTROL REVIEW OF MARCH, 1921
In contrast to the State legislation is the proposed repeal of
the Federal law, aiming to open the United States mails to the
distribution of birth control knowledge by amateurs.
We are told that the repeal of the Federal law would be the quickest
and shortest way to achieve our goal. But there is no such royal
road! We might flood the country with tons of good books and
pamphlets on the subject by recognized authorities on hygiene,
psychology and sociology, but with no appreciable effect. (A poor
woman once said to me, “I have read your book from cover to cover;
and yet I am pregnant again.”) To offer a pamphlet to a woman who can
not read or is too tired and weary to understand its directions, is
like offering a printed bill of fare to a starving man.
Yet the repeal of the Federal law would accomplish practically no
more than this. Nevertheless, to some it seems of primary importance;
and those who think so are best qualified to throw their energies
into that work.
Much as we wish that one fine gesture would sweep aside these
obsolete and ridiculous anti-contraceptive laws, both Federal and
State, experience has shown us the emptiness of legal and legislative
victories unless followed up vigorously by concerted action. Remember
that in England there is no law preventing the spread of birth
control knowledge; yet we see there, that the removal of legal
restriction in the use of the mails is not enough. Our interests and
our activity must be positive, fundamental, dynamic, constructive.
Let us beware of the futility of striving after vain victories and
theoretical triumphs—which may, indeed, stimulate in us a fine
glow of egotistical satisfaction, but also divert and distract our
attention and interest from the hard, thankless, detailed work of
helping overburdened mothers. Let us not be led into the trap of
believing that the mere repeal of a Federal law will change the
course of ancient human habits or the most deep-rooted of instincts.
APPENDIX NO. 11
NOTE: The words “preventing conception” are removed from the five
Sections of the Federal Statutes which appear in the Bill.
1st Session,
68th CONGRESS, S. 2290
IN THE SENATE OF THE UNITED STATES
JANUARY 28 (calendar day, JANUARY 30), 1924.
_Mr. Cummins introduced the following bill; which was read twice
and referred to the Committee on the Judiciary._
A BILL
To remove the prohibition of the circulation of contraceptive
knowledge and means by amending sections 102, 211, 245, and 312
of the Criminal Code; and section 305, paragraphs (a) and (b), of
the Tariff Act of 1922; and to safeguard the circulation of proper
contraceptive knowledge and means by the enactment of a new section
for the Criminal Code.
_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, That section 102 of the
Criminal Code be amended to read as follows:
“SEC. 102. Whoever, being an officer, agent, or employee of the
Government of the United States, shall knowingly aid or abet any person
engaged in violating any provision of law prohibiting importing,
advertising, dealing in, exhibiting, or sending or receiving by mail
obscene or indecent publications or representations, or means for
producing abortion, or other article of indecent or immoral use or
tendency, shall be fined not more than $5000 or imprisoned not more
than ten years or both.”
SEC. 2. That section 211 of the Criminal Code be amended to read as
follows:
“SEC. 211. Every obscene, lewd, or lascivious and filthy book,
pamphlet, picture, paper, letter, writing, print, or other
publication of an indecent character; and every article or thing
designed, adapted, or intended for producing abortion, or for any
indecent or immoral use; and every article, instrument, substance,
drug, medicine, or thing which is advertised or described in a manner
calculated to lead another to use or apply it for producing abortion,
or for any indecent or immoral purpose; and every written or printed
card, letter, circular, book, pamphlet, advertisement, or notice of
any kind giving information, directly or indirectly, where or how or
from whom or by what means any of the hereinbefore-mentioned matters,
articles, or things may be obtained or made, or where or by whom
any act or operation of any kind for the procuring or producing of
abortion will be done or performed, or how or by what means abortion
may be produced, whether sealed or unsealed; and every letter,
packet, or package, or other mail matter containing any filthy, vile,
or indecent thing, device, or substance; and every paper, writing,
advertisement, or representation that any article, instrument,
substance, drug, medicine, or thing may or can be used or applied
for producing abortion, or for any indecent or immoral purpose; and
every description calculated to induce or incite a person to so use
or apply any such article, instrument, substance, drug, medicine,
or thing is hereby declared to be non-mailable matter and shall not
be conveyed in the mails or delivered from any post office or by
any letter carrier. Whoever shall knowingly deposit, or cause to be
deposited for mailing or delivery, anything declared by this section
to be non-mailable, or shall knowingly take, or cause the same to be
taken, from the mails for the purpose of circulating or disposing
thereof, or of aiding in the circulation or disposition thereof,
shall be fined not more than $5000, or imprisoned not more than five
years, or both. And the term “indecent” within the intendment of this
section shall include matter of a character tending to incite arson,
murder, or assassination.”
SEC. 3. That section 245 of the Criminal Code be amended to read as
follows:
“SEC. 245. Whoever shall bring or cause to be brought into the
United States or any place subject to the jurisdiction thereof, from
any foreign country, or shall therein knowingly deposit or cause
to be deposited with any express company or other common carrier,
for carriage from one State, Territory, or District of the United
States, or place noncontiguous to, but subject to the jurisdiction
thereof, to any other State, Territory, or District of the United
States, or place noncontiguous to but subject to the jurisdiction
thereof, or from any place in or subject to the jurisdiction of the
United States through a foreign country to any place in or subject
to the jurisdiction thereof, or from any place in or subject to
the jurisdiction of the United States to a foreign country, any
obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper,
letter, writing, print, or other matter of indecent character; or
any drug, medicine, article, or thing designed, adapted, or intended
for producing abortion, or for any indecent or immoral use; or
any written or printed card, letter, circular, book, pamphlet,
advertisement, or notice of any kind giving information, directly
or indirectly, where, how, or of whom or by what means any of the
hereinbefore-mentioned articles, matters, or things may be obtained
or made; or whoever shall knowingly take or cause to be taken from
such express company or other common carrier any matter or thing, the
depositing of which for carriage is herein made unlawful, shall be
fined not more than $5000, or imprisoned not more than five years, or
both.”
SEC. 4. That section 312 of the Criminal Code be amended to read as
follows:
“SEC 312. Whoever shall sell, lend, give away, or in any manner
exhibit, or offer to sell, lend, give away, or in any manner exhibit,
or shall otherwise publish or offer to publish in any manner, or
shall have in his possession for any such purpose, any obscene book,
pamphlet, paper, writing, advertisement, circular, print, picture,
drawing, or other representation, figure, or image on or of paper
or other material, or any cast, instrument, or other article of an
immoral nature, or any drug or medicine, or any article whatever for
causing unlawful abortion, or shall advertise the same for sale, or
shall write or print, or cause to be written or printed, any card,
circular, book, pamphlet, advertisement, or notice of any kind,
stating when, where, how, or of whom, or by what means, any of the
articles above mentioned can be purchased or obtained, or shall
manufacture, draw, or print, or in anywise make any of such articles,
shall be fined not more than $2000, or imprisoned not more than five
years or both.”
SEC. 5. That section 305, paragraphs (a) and (b), of the Tariff Act
of 1922 be amended to read as follows:
“SEC 305. (a) That all persons are prohibited from importing into the
United States from any foreign country any obscene book, pamphlet,
paper, writing, advertisement, circular, print, picture, drawing,
or other representation, figure, or image on or of paper or other
material, or any cast, instrument, or other article of an immoral
nature, or any drug or medicine, or any article whatever, for
causing unlawful abortion, or any lottery ticket, or any printed
paper that may be used as a lottery ticket, or any advertisement
of any lottery. No such articles, whether imported separately or
contained in packages with other goods entitled to entry, shall
be admitted to entry; and all such articles shall be proceeded
against, seized, and forfeited by due course of law. All such
prohibited articles and the package in which they are contained
shall be detained by the officer of customs, and proceedings taken
against the same as hereinafter prescribed, unless it appears to the
satisfaction of the collector that the obscene articles contained in
the package were inclosed therein without the knowledge or consent
of the importer, owner, agent, or consignee: _Provided_, That the
drugs hereinbefore mentioned, when imported in bulk and not put up
for any of the purposes hereinbefore specified, are excepted from the
operation of this sub-section.
“(b) That any officer, agent, or employee of the Government of the
United States who shall knowingly aid or abet any person engaged in
any violation of any of the provisions of law prohibiting importing,
advertising, dealing in, exhibiting, or sending or receiving by mail
obscene or indecent publications or representations, or means for
procuring abortion, or other articles of indecent or immoral use or
tendency, shall be deemed guilty of a misdemeanor, and shall for
every offense be punishable by a fine of not more than $5000 or by
imprisonment at hard labor for not more than ten years, or both.”
SEC. 6. The transportation by mail or by any public carrier in the
United States or in territory subject to the jurisdiction thereof,
of information respecting the means by which conception may be
prevented, or of the means of preventing conception, is hereby
prohibited, except as to such information or such means as shall be
certified by not less than five graduate physicians lawfully engaged
in the practice of medicine to be not injurious to life or health.
Whoever shall knowingly aid or abet in any transportation prohibited
by this Act shall be deemed guilty of a felony, and, upon conviction
thereof, shall be fined not more than $5000 or imprisoned for not
more than five years, or shall be punished by both such fine and
imprisonment.
APPENDIX NO. 12
CONDENSED CHRONOLOGICAL STORY OF THE FEDERAL BILL TO REMOVE THE BAN ON
CONTRACEPTIVE KNOWLEDGE FROM THE OBSCENITY LAWS
[Sidenote: 1919.]
July 24. Began preliminary interviews with Senators and Congressmen
with a view to discovering the right sponsor for the bill, and to
create a good atmosphere for its introduction.
Sept. 24. Asked Senator France of Maryland to introduce it, he being
chairman of the Committee on Public Health, a physician and heartily
in favor of the bill. He agreed to consider it.
Oct. 21. Senator France doubted the wisdom of his being sponsor. He
suggested Senator Norris of Nebraska.
Oct. 22. Senator Norris was wholly favorable to the measure, but said
the prejudice of the Judiciary Committee against other measures for
which he stood would hurt his sponsorship and he hadn’t the advantage
of being a physician.
Oct. 23. As Senator France was most desirable, the sponsorship was
again put up to him and he said he would again consider it.
[Sidenote: 1920.]
Jan. 19. After nearly three months of prodding by letters and
interviews, Senator France wrote that he did not feel ready to
shoulder our bill ahead of others to which he was already committed.
He did not decline, but thought it unfair to keep us waiting further.
Jan. 21. Took it back to Senator Norris, who agonized over it
conscientiously, but decided he had better not. He had sounded
Senator Ball, the only other physician in the Senate beside France.
Found him rather skeptical. He then suggested asking Senator Nelson,
chairman of the Judiciary Committee to do it as proof of his
repentance for having been an abusive opponent (one of the very few
we have met).
Jan. 22. Senator Nelson’s repentance went to the extent of
recommending that the bill be referred first to the Committee on
Public Health and implied that the Judiciary Committee would concur
if the report should be favorable.
During the next few weeks, besides hunting for a sponsor we
interviewed the Health Committee. Seven out of eleven were wholly
in favor or inclined favorably toward the bill.
Senator Ball was seen several times, in the hope that he would
prove to be the right sort for a sponsor. He was slow in coming to
a conclusion as to the merits of the bill.
Meanwhile two other Senators were asked.
Jan. 29. Senator Sterling of South Dakota, first. The discussion
convinced him as to the merits of the bill, and he finally agreed to
consider sponsoring it.
Feb. 18. Urged his decision. He did not refuse, but said he would be
relieved to be released from consideration. Promised to work for the
measure in Committee and on the floor.
Mar. 5. After conferring with Senators France and Norris, whose
advice has always been helpful, took the bill to Senator Dillingham
of Vermont. He is wholly in favor but considered himself unsuitable
sponsor. He is the _only_ Senator who has not kept us waiting for his
decision. He urged Ball as best sponsor.
Mar. 6. As Senator Ball had announced on February 20th, that he
was convinced by our data—on the advice of Dillingham, France and
Norris, he was asked by letter to introduce the bill.
Mar. 11. Went to Washington for his decision. Found him; he had not
even read the letter carefully enough to realize he was being asked.
Said “No.” Then reconsidered and agreed to talk it over with France.
Mar. 19. _He promised to sponsor the bill._ He asked for “a few days
of grace” before introducing it, to recover from influenza and attend
to the suffrage crisis in Delaware.
Apr. 21. Introduction still hanging. Said he “hadn’t had time.”
Meanwhile the comment of the other Senators had begun to disconcert
him. He turned us over to Major Parkinson of the bill drafting
service to discuss phraseology and work out an opposition-proof bill.
Everything was settled to our satisfaction. It was the Senator’s next
move.
Apr. 24. He “hadn’t had time to see Parkinson,” and asked for a few
days more of patience. We reminded him that we had waited over a
month. He said he would surely do it during this session. We insisted
on something definite. He finally promised “some day next week” and
that he would wire us what day.
May 25. No word, despite letters from our office and many from the
supporters of the League.
Letters, telegrams, personal interviews with Senator Ball in
Washington were all unavailing. He did nothing but reiterate
promises.
June 5. _The Senate adjourned and the bill was not introduced._
Dec. 6. With the opening of the last session of Congress, we began
the sponsor hunt again. Nine Senators in succession have been asked
to sponsor the bill, as follows:
_Sen. Capper of Kansas._ For the bill, but too submerged in his
agricultural relief bills to take ours on.
_Sen. Townsend of Mich._ (Member of Health Com.) Favors the bill,
but declined on grounds that he was too ignorant on the data to
face debate, and too busy to get primed.
_Sen. Kenyon of Iowa._ (Had reputation of being chief welfare
advocate of Senate.) Too busy with his “packer” bill. Might
consider it at next session.
_Sen. McCumber of S. D._ Admitted merit of bill, but thought he
better not imperil his re-election (in 1923) by sponsoring it.
Suggested that it be introduced by Health Com. as a whole, without
individual sponsorship, so no one would “be the goat.”
_Sen. Sheppard of Texas._ (Sponsor of Sheppard-Towner Maternity
Bill.) Recognized necessity of our bill to complete the service
provided by his bill, but could not consider sponsoring ours till
next session anyway, and probably not then, as he thinks it should
come from a Republican.
_Sen. Fletcher of Fla._ (Member of Health Com.) Heartily approves
bill, but considers himself unsuitable sponsor because he is a
Democrat.
_Sen. Frelinghuysen of N. J._ (Member of Health Com.) Frankly said
he would be “afraid” to do it, but he feels favorably toward the
bill.
_Sen. Owen of Okla._ (Member of Health Com.) Like Senator France,
author of bill for Federal Health Dept.—unqualifiedly in favor,
but sure bill should not be sponsored from Democratic side.
Dec. 31. Proposed to Senator France that the bill be introduced by
the Health Committee without individual sponsorship.
[Sidenote: 1921.]
Jan. 5. Senator France declined the proposition on the ground that
the burden of the bill would fall on him just the same.
Jan. 13. After thorough consultation with Senator France, took bill
back to Senator Sterling.
Jan. 27. Senator Sterling answered that he was “too busy to do it at
this session.”
Feb. 11. Senator Kenyon was asked to reconsider. He replied, “I’m
mighty sorry, but I am just loaded down with bills that are taking
every minute of my time, and I must ask you to secure some other
Senator to take care of this legislation for you.”
Mar. 1. Senator Borah was asked to sponsor the bill. He did not see
his way to doing it.
Aug. 19. Post Master General Hays had put himself on record as not
believing in the maintenance of Post Office censorship laws. He was
accordingly asked to consider recommending to Congress the removal
of the censorship law regarding birth control knowledge. He was
most hospitable to the suggestion—said it was timely, that he was
interested and had about come to the conclusion that he ought to ask
Congress to revise all the laws bearing on Post Office censorship
power. He asked for a compilation of pertinent data, which was
promptly provided. He had the matter under consideration till he
resigned office the following March. But he made no recommendation to
Congress.
The sponsor hunt began again.
Senator Borah suggested the possibility that he might slip in our bill
as an amendment to the bill proposing to extend Post Office censorship
to information about race track betting tips, if it was reported out of
committee and reached the floor for discussion. The bill was killed in
Committee, due in part to Senator Borah’s opposition to it.
[Sidenote: 1922.]
Dec. Sponsors found in both Houses. Senator Cummins in the Senate,
and Congressman John Kissel of New York in the House. The latter
responded to a circular letter asking for a volunteer statesman for
the task.
[Sidenote: 1923.]
Jan. 10. Bill introduced in both Houses.
Jan. 22. Sen. Nelson, Chairman of the Judiciary Committee appointed
Sub-Committee of three to consider the bill—Senators Cummins, Colt
and Ashurst. Senator Cummins was ill and went to Florida. Committee
action was stalled.
Strenuous effort was made to get substitute Chairman so action
could proceed. Norris was added to Committee but not as Chairman.
Feb. 6. Sen. Colt declined to act as Chairman.
Feb. 8. Sen. Colt asked to be excused from the Committee.
Feb. 13. Sen. Cummins returned.
Feb. 19. Sen. Cummins tried to get vote of full Judiciary, as
conditions had not permitted a Hearing and report from the
Sub-Committee. Meeting adjourned without action. They “did not get to
the bill.”
Feb. 26. Sen. Cummins tried again to get a vote. Announced that he
would call for it before adjournment, again. The members slipped out
one by one, so no quorum was present. The Senator said, “They just
faded away.”
[Sidenote: 1924.]
Jan. 30. Bill reintroduced by Senator Cummins.
Feb. 1. Bill introduced in House by Congressman William N. Vaile of
Colorado.
Mar. 7. Bill referred to Senate Sub-Committee, consisting of Senators
Spencer, Norris and Overman.
Mar. 22. Bill referred to House Sub-Committee of seven, Congressmen
Yates, Hersey, Perlman, Larson, Thomas, Major and O’Sullivan.
Apr. 8. Joint Hearing held before both Sub-Committees. Ten spoke for
the bill, and five against.
May 9. Hearing reopened at request of the Catholics.
June 7. Congress adjourned. Neither Committee reported the bill.
[Sidenote: 1925.]
Dec. Senator Cummins made Chairman of the Judiciary Committee.
Jan. 20. Senate Sub-Committee unanimously reported Cummins-Vaile Bill
“without recommendation.”
House Sub-Committee evaded making a report.
Mar. 4. Congress adjourned.
APPENDIX NO. 13
SENATORS BORAH AND STANLEY ARGUED BEFORE THE JUDICIARY COMMITTEE IN
1921 FOR THE PRINCIPLES ON WHICH THE CUMMINS-VAILE BILL IS BASED, BUT
REGARDING ANOTHER BILL
The following excerpts from the Hearing, with editorial comment, are
taken from the Birth Control Herald of January 20, 1925.
The Bill on which the Hearing was held had passed the House in
October, 1921. It aimed primarily to make race track betting tips
unmailable, but section No. 5 to which Senators Stanley and Borah
objected most strenuously was a sweeping infringement of the freedom
of the press, by which nothing could go through the mails that
gives any information as to bets or wagers on any contest of speed,
strength or skill. The bill was referred to a Sub-Committee of the
Judiciary consisting of Senator Sterling, Chairman, and Senators
Borah and Overman.
The measure has never been reported out by the full committee, and
it seems evident that the vigorous opposition of the two Senators
who argued on principle, and the disapproval of powerful newspaper
associations, have resulted in the burying of the bill.
At the time of this Hearing (January, 1922), Senator Stanley was not
on the Judiciary Committee but he was so interested in preserving the
right of free press from further encroachment that he appeared at the
Hearing as an opponent of the bill, and as a pleader for fundamental
liberty. At present, however, he is a member of the Judiciary
Committee, with the best of opportunities to make his convictions
count effectively for the Cummins-Vaile Bill, in which precisely the
same principle is at stake, namely, the freedom of the press and the
right of the individual to have access to knowledge.
The V. P. L. Director was originally indebted to Senator Borah for
her copy of the report of this Hearing. He has never faltered in his
opposition to the principle of censorship. And Senator Sterling,
the Chairman before whom this Hearing was held, was already at that
time committed to support of the Cummins-Vaile Bill. He gave his word
that he would work for the Bill in the Judiciary Committee and on the
floor of the Senate.
In the 113 pages of the Report of the two Hearings on the bill to
exclude gambling information from the mails, there are many more
analogies to the principle involved in the Cummins-Vaile Bill than
there is room to recount, so the excerpts below are only samples.
At the very start there is similarity of circumstance. At the first
Hearing Senator Stanley spoke “especially of the section that
was added in the last hour of debate, about which I am advised
comparatively few members of Congress knew anything at the time
of its passage.” That the House should have inadvertently passed
a measure on the strength of its moral sounding aim, but which
contained an unwarranted suppression of constitutional rights is
exactly what happened in 1873, when the Comstock bill was hastily
passed, aimed at obscenity, just as this bill was aimed at gambling,
but blundering into suppression not only of crime, but of freedom.
_Sen. Stanley_ (speaking on behalf of representatives of the chief
metropolitan newspapers): “These great papers wish an opportunity to
show that the gambling evil is not best remedied—especially by a
government of delegated powers—by an unwarranted restriction of the
freedom of the press or the freedom of speech.”
(Similarly, the abuse of contraceptive information is not to be
remedied by laws forbidding access to that information. Ed.)
_Sen. Stanley_ (at the second Hearing): “Despotic governments
have always viewed and always will view freedom of speech with
apprehension and alarm. When you have placed a censorship or
arbitrary inhibition or prohibition upon either the freedom of speech
or the freedom of the press, you have not invaded one constitutional
right, but have imperilled or desolated them all.”
_Sen. Borah_: “Do you attack this as unconstitutional, or simply the
policy of it?”
_Sen. Stanley_: “Both. I maintain that it is not necessary to show
that it is unconstitutional, because of its folly and its unwisdom.
It is absolutely a violation of the spirit of the Constitution.”
_Sen. Sterling_: “If you think race-track gambling is an evil, do you
think that advice or suggestions in regard to wagers and bets should
be prevented?”
_Sen. Stanley_: “May I answer that question by asking another? Does
the Chairman believe that the Federal government should pass a law
prohibiting anything that is morally or industrially wrong?”
_Sen. Sterling_: “Oh no, there are limitations of course upon the
power of the Federal government to do those things.”
_Sen. Stanley_: “Yes, ... I had begun to doubt it.”
_Sen. Sterling_: “This prohibits the use of the mails for certain
purposes.”
_Sen. Stanley_: “Yes.”
_Sen. Sterling_: “And we have passed laws relative to the use of the
mails ... prohibiting certain written or printed matter....”
_Sen. Stanley_: “And Mr. Chairman, that is the worst vice, the worst
phase of this legislative itch with which the country is infected,
for the Federal and sumptuary regulation of all the activities of the
people, moral, intellectual and industrial. It is gaining. One bad
law breeds a million.”
_Sen. Borah_: “Well, Mr. Stanley, you do not have to make any
argument to me that we have no power to establish a censorship.”
_Sen. Stanley_: “This is as fine an instance, Mr. Chairman, as I
know, of the abortive birth and progress of this character of half
baked legislation. A bill, honest, and perhaps advised in the main,
was introduced.... As it passed a Representative took a shot at it on
the fly and inserted this section 5. The Postmaster General (Hays)
in a letter to Chairman Nelson of this Committee very pertinently
observed: ‘This particular section 5 makes it an offense for
newspapers to publish racing news. I favor the bill, but am opposed
to this section 5. I was not consulted about it, and I hope this
section does not pass. The whole bill had better be defeated in my
opinion, than to add this additional curtailment of the freedom of
the press. There has been a very strong tendency of late in that
direction, and I am sure it is essential that such tendency be
checked. I am reminded of Voltaire’s statement, “I wholly disapprove
what you say and will defend with my life your right to say it.”’”
_Sen. Borah_: “It is not necessary to proceed any further then, is
it?”
_Sen. Stanley_: “Senator, I think there is more in this than this
bill. I have no fear that this bill will pass. This is too much.
Neither the minds nor the stomachs of the people are prepared to
endure it. But I wish to emphasize its evils in order that this
character of legislation may be discouraged, that this persistent and
pernicious effort to control the freedom of the press may find an end
somewhere at some time.”
(The Cummins-Vaile Bill will also help to end it. Ed.)
_Sen. Borah_: “Well, Senator Stanley, as I think you know from
personal conversation, I am quite in sympathy with your view, but
I am unable to construe this letter (from Postmaster General Hays,
quoted above) in harmony with a number of statutes that are already
upon the statute books, and already in force.”
(The Comstock law, for instance. Ed.)
_Sen. Stanley_: “It is unfortunately true.”
_Sen. Borah_: “Indicating that we are taking a step back to
constitutional government.”
_Sen. Stanley_: “Buckle says that all civilization for five hundred
years consisted in repealing laws. I wish Buckle were eligible for a
seat in the Senate now.”
(Hear, hear! Ed.)
“Mr. Chairman, the greatest influence for good—and it may be
greatest power for evil—is the power of the press. There is no free
government without it. There are no free men without it. There is no
free thought without it. I commend to your attention just a little
paragraph from that great defense of free institutions, with (one)
possible exception, the greatest in the English tongue: ‘Though all
the winds of doctrine were let loose to play upon the earth, so Truth
be in the field, we do ingloriously by licensing and prohibiting to
misdoubt her strength. Let her and Falsehood grapple; who ever knew
Truth put to the worse in a free and open encounter?’”
_Sen. Stanley_ continuing: “Now let us see what this bill prohibits.
Section 5 reads: ‘No newspaper, postcard, letter, circular, or other
written or printed matter containing information, or statements, by
way of advice of suggestions, purporting to give the odds at which
bets or wagers are being laid or waged, upon the outcome of speed,
strength or skill, or setting forth the bets,’—now get this,—‘made
or offered to be made, or the sums of money won or lost upon the
outcome or result of such contest,’ etc.
“If a school boy at college should write to his mother that his
room-mate had bet five cents on a foot-ball game, he could be sent to
the penitentiary for five years and fined $5000.
“Put in force this act and then endeavor to convince a civilized
world that this is the land of the free and the home of the brave.”
(Compare the wording of this proposed law with that of the old
Comstock law by which “every book, pamphlet ... paper, letter,
writing ... or notice of any kind giving information directly or
indirectly where, how or of whom or by what means,” etc., conception
may be controlled is unmailable. Then parallel Sen. Stanley’s
instance of the college boy and his five cent bet on the foot-ball
game with the fact that no mother can now lawfully write to her
married daughter any information even in a private letter as to how
she may space the births of her babies. Ed.)
_Sen. Stanley_: “The evil of attempting to restrict the freedom
of the press in discussing this matter more than counterbalances
any possible ultimate good. It is purely problematical whether it
would stop any racing or not, or deter it. It is an actual fact
that it would be another step in the wrong direction—that is of a
pernicious, vexacious, inquisitorial censorship of the press.
“It would of course be argued that the boy would not be sent to
prison for five years or fined $5000. And why? Because judges have
more sense and more humanity and more decency than the Senate, and
that they would refrain from doing what they are authorized to
do. Now you enact this bill, and how do you know that somewhere,
sometime, you are not going to find a Judge that has just as little
sense of proportion and propriety and justice as the Senate of the
United States?
(For instance the Judge who sent Carlo Tresca to jail for a small
unwitting infringement of the Comstock act, which government
officials as a whole make not the slightest attempt to enforce. Ed.)
_Sen. Stanley_, satirically: “Because Congress has gone very near the
end of its constitutional tether, it should cut the tether and go the
whole length: because it has regulated the freedom of the press in a
few respects, it should now proceed to regulate them in all respects.”
_Sen. Borah_: “I think, Senator Stanley, that the argument that we
will have to rely upon finally is whether we are going any further.
There are plenty of precedents for this law on the statute books....
They are bad precedents, but they are there.”
_Sen. Stanley_: “Exactly, Senator Borah.”
_Sen. Borah_: “I would like to repeal many of them.”
_Sen. Stanley_: “I would like to join you in that....
“No man of course is in favor of moral uncleanness.... But that is
no reason why the Federal Government should act as a spy and as a
supervisor of the private relations between men and women in the
several States....
“Race gambling no one doubts is an evil. Of course it is. But
intemperance is a bad thing. Therefore the papers must not encourage
intemperance by mentioning the concomitants of an alcoholic drink;
the other day an officer tried to stop the Cincinnati Inquirer from
making reference to a copper can because they said some copper cans
were used for distilling! That is a fact. Where are we going to stop?
“Burglary is a bad thing. Think of it, there are millions of men who
do not know that a simple flat piece of steel, called a jimmy, can
be used to open doors that are locked.... Suppose the papers tell of
how a man gets into a house by means of a jimmy ... some fellow reads
that and gets a jimmy and breaks into a house. Are you going to stop
all mention of that?... I want to stop now, any further advance as
Senator Borah has said, in this pernicious practice of regulating
the morals of the people by prescribing what the press shall say
about their morals, whether in their domestic relations, their gaming
practices, or anything else....
“You pass this act, and by virtue of its precedent and those others
of its kind that now deface the statute books of a free country,
within a few short years, with a little ingenuity, I can keep
anything out of the columns of the press except an account of a
school picnic or a pink tea. I thank you, Mr. Chairman.”
(And this paper thanks the Senator. Ed.)
APPENDIX NO. 14
SECTIONS OF THE FOOD AND DRUG ACT WHICH ARE PERTINENT TO MATERIALS USED
FOR THE PREVENTION OF CONCEPTION
_Manufacture_:
Sec. 8717: It shall be unlawful for any person to manufacture within
any territory or the District of Columbia any article of food or drug
which is adulterated or misbranded, within the meaning of this Act.
_Importation_:
Sec. 8718: The introduction into any State or Territory or the District
of Columbia from any other State or Territory or the District of
Columbia, or from any foreign country of any article of food or drugs
which is adulterated or misbranded, within the meaning of this Act, is
hereby prohibited.
_Definition of Drug Includes Compounds_:
Sec. 8722: The term “drug,” as used in this Act, shall include
all medicines and preparations recognized in the United States
Pharmacopoeia or National Formulary for internal or external use, and
any substance or mixture of substances intended to be used for the
cure, mitigation, or prevention of disease of either man or other
animals.
_Adulteration_:
Sec. 8723: For the purposes of this Act an article shall be deemed to
be adulterated:
In case of drugs:
First: If, when a drug is sold under or by a name recognized in the
United States Pharmacopoeia or National Formulary, it differs from the
standard of strength, quality, or purity as determined by the test laid
down in the United States Pharmacopoeia or National Formulary official
at the time of investigation.
Second: If its strength or purity fall below the professed standard of
quality under which it is sold.
_Misbranding_:
Sec. 8724: The term “misbranded,” as used herein, shall apply to
all drugs, or articles of food, or articles which enter into the
composition of food, the package or label of which shall bear any
statement, design, or device regarding such article, or the ingredients
or substances contained therein which shall be false or misleading
in any particular, and to any food or drug product which is falsely
branded as to be the State, Territory, or country in which it is
manufactured or produced.
That for the purposes of this Act an article shall also be deemed to be
misbranded.
In case of drugs:
First: If it be an imitation of or offered for sale under the name of
another article.
Second: (Not pertinent.)
Third: If its package or label shall bear or contain any statement,
design, or device regarding the curative or therapeutic effect of such
article or any of the ingredients or substances contained therein,
which is false and fraudulent.
Fourth: If the package containing it or its label shall bear any
statement, design, or device regarding the ingredients or the
substances contained therein, which statement, design, or device shall
be false or misleading in any particular.
APPENDIX NO. 15
FREEDOM OF ACCESS TO KNOWLEDGE OF THEIR OWN CHOOSING DENIED TO
CATHOLICS BY OREGON SCHOOL LAW, AND SERIOUSLY THREATENED IN OTHER STATES
SAME PRINCIPLE AT STAKE AS THAT IN CUMMINS-VAILE BILL
The following letter was sent by the Director of the Voluntary
Parenthood League to every Catholic member of Congress. There are 37
Catholic members in the House, and 5 in the Senate.
January 16, 1925.
DEAR SIR:
Am I correct in thinking that you are one of the thirty-seven Roman
Catholic members of the House? If so, may I not assume both your
special interest in the recently attempted anti-Catholic legislation
in several States, and in the possibly anti-Catholic tendencies of
certain proposed Federal measures, and your common concern with all
liberty loving Americans at these new menaces to certain of our
fundamental rights.
Among the proposals to which I refer are those made in Oregon,
California, Washington, Michigan and Alabama to restrict Catholic
teaching and learning. The laws proposed have not attempted directly
to prohibit Catholic schools, but they indirectly achieve that end,
by compelling all children of certain ages to attend public schools
during all the hours of all the school days through out the year.
What is perhaps the most preposterous of these attempts, actually
became law in Oregon in 1922. Its provisions are incredible to
upholders of a supposedly free government. They create a Prussian
type of surveillance and control over all private instruction, and
empower a County School Superintendent, vested with absolutely
autocratic authority from which there is no appeal, to decide whether
such private instruction as may be allowed is being “properly”
conducted and to compel children receiving such private instruction
as he may disapprove to attend the public school in the district of
their residence. Fortunately, protest against this outrageous law
from Catholics and other citizens, has taken the questions to the
courts. Equally fortunately, the Federal District Court in Oregon has
pronounced against the law’s constitutionality.
At Washington, it is the Sterling education bill at which lovers of
our constitutional liberties, Catholics and non-Catholics alike, are
looking askance as a possible gateway to Federal compulsion of public
school attendance, or to other Federal interference with individual
freedom in the acquisition of knowledge. In view of these legislative
tendencies, then, and of the intolerant and lawless aggressiveness of
certain groups which are violently anti-Catholic, and quite ready to
translate their feelings into political control, may there not well
be concern lest our guaranteed American freedom become a farce?
This is no time then for thoughtful Catholics to take sides against
freedom. They need it to protect their own rights. Am I wrong in
thinking that, on sober thought, they will not wish to line up
against a bill that makes a stand for the very principle that is most
dear to them, namely, their right to knowledge of their own choosing?
It has been generally assumed that Catholic Representatives, as such,
will vote against the Cummins-Vaile Bill, which touches inferentially
upon “birth control”; but will they, can they, when they reflect
that this measure only seeks to repeal the same kind of pernicious
legislation as now imperils the civil liberties of all of us, but
Catholics in particular, in the matter of their schools and religious
instruction?
For these reasons I respectfully ask your judicial consideration of
the above facts and those which follow, as they have a bearing on the
decision to be made as to this bill by any Congressman who is at the
same time a loyal Catholic and a conscientious legislator.
Neither the existing laws nor the provisions of the Cummins-Vaile
Bill deal directly with the question of birth control. They have no
right to do so. That is essentially a question for the individual
conscience. But they do both affect the question indirectly. However,
in so doing the laws have established tyranny, whereas the bill
re-establishes individual freedom. The laws are an intrusion upon
personal liberty, such as is prohibited by the constitution, and the
bill simply removes that intrusion.
No Federal statutes forbid the actual control of conception. That is
an entirely lawful act for the individual. But the laws do forbid
the circulation by any public carrier, of any information as to how
conception may be controlled. That is, they forbid the circulation
of knowledge by restricting the freedom of the press, and even the
freedom of individual communication by letter. Yet freedom of speech
and press is constitutionally guaranteed.
Liberty to learn and to teach is a fundamental American right, which
may not justly be infringed, except when the things taught are
criminal acts. The control of conception is not a crime. It could
not possibly be declared such, by law. It may be contrary to ethics,
morality and religious teachings as claimed by the authorities of
the Catholic Church, but so also it may not be. Opinion differs
about it, though it is obvious that the trend of opinion, as proven
by the birth rates the world over, is in its favor. However, it is
a question apart from the law, and should be worked out in accord
with personal conscience, and whatever educational and inspirational
influence the individual wishes to accept.
So I earnestly ask you, Sir, to think this matter through, and to
co-operate now with us who are working for enactment of this bill;
so that freedom may be safeguarded for everyone, and each allowed
to utilize it according to his own conscience. I do not ask you
to believe in birth control. It would be utterly irrelevant and
intrusive to do so. It is not the point of the bill. The point of
the bill is one that all Americans should have in common, a love of
freedom and insistence upon having it for all.
Will you stand for the Cummins-Vaile Bill on that one ground?
Yours respectfully,
MARY WARE DENNETT,
_Director_.
FOOTNOTES:
[1] To give the name, would make this book “unmailable” under the law.
[2] Published by the Voluntary Parenthood League.
[3] The bill which Mrs. Sanger was then trying to have introduced _did
not remove the subject from the obscenities_, except in the case of the
doctor. For all others it still remained an indecency.
[4] The bill proposed did not allow self-government as to the control
of conception, but only physician-government. The person applying could
get instruction only if the doctor chose to give it, not otherwise.
[5] These States present a knotty legal question as to whether
the repeal of the Federal prohibition relating to the mails will
automatically make these State laws void. Legal opinion (as expressed
by Attorneys Alfred Hayes and James F. Morton, Jr.) seems to agree that
the Federal action will probably be effective, but there is authority
for the assumption that under the State law police power might withhold
such supposedly undesirable mail from the recipient.
TRANSCRIBER’S NOTE
Obvious typographical errors and punctuation errors have been
corrected after careful comparison with other occurrences within
the text and consultation of external sources.
Inconsistent hyphenations have been left as is.
Unmatched quotation marks have been left as printed. Double quotation
marks occurring within a passage within double quotation marks have
been left as printed.
Except for those changes noted below, all misspellings in the text,
and inconsistent or archaic usage, have been retained.
Page vi. “sponsor—Cummins-Kissell” replaced by “sponsor—Cummins-Kissel”.
Page vii. “Doctor’s Only” replaced by “Doctors Only”.
Page 15. “physican” replaced by “physician”.
Page 36. “pornagraphic” replaced by “pornographic”.
Page 37. “putrefying sores,”“ replaced by ““putrefying sores,””.
Page 42. “it seem” replaced by “it seems”.
Page 43. “instinctly acting” replaced by “instinctively acting”.
Page 50. The word “crime” is enclosed in double quotation marks, an
extra single quotation mark has been removed.
Page 52. “Recive” replaced by “Receive”.
Page 55. “weaklies” replaced by “weeklies”.
Page 66. “park that flamed” replaced by “spark that flamed”.
Page 85. “may protests” replaced by “many protests”.
Page 92. “State legislatlon” replaced by “State legislation”.
Page 94. “Cummins-Kissell” replaced by “Cummins-Kissel”.
Page 94. “every one against:” replaced by “every one against.”.
Page 105. “these pople” replaced by “these people”.
Page 117. “from heresay” replaced by “from hearsay”.
Page 123. “hearings analagous” replaced by “hearings analogous”.
Page 146. “Mrs. Dennet” replaced by “Mrs. Dennett”.
Page 158. “giving exerpts” replaced by “giving excerpts”.
Page 160. “this subjest” replaced by “this subject”.
Page 181. “seeems to prevent” replaced by “seems to prevent”.
Page 184. “member of Congress” replaced by “members of Congress”.
Page 198. “sex conciousness” replaced by “sex consciousness”.
Page 248. “the the principle” replaced by “the principle”.
Page 251. “substracting errors” replaced by “subtracting errors”.
Page 252. “scorn of pretentions” replaced by “scorn of pretensions”.
Page 265. “Cortlandt Palmer” replaced by “Courtlandt Palmer”.
Page 301. ‘certain purposes.’ replaced by ‘certain purposes.”’.
Page 301. Closing double quotation mark added after “printed matter.”