Section 1145 of the Penal Code to be amended to read as follows:

PHYSICIANS, INSTRUMENTS AND ADVICE. An article or instrument, used

or applied by physicians lawfully practicing or by their direction

or prescription, for the cure or prevention of disease, is not an

article of indecent or immoral nature or use, within this article.

The supplying of such articles to such physicians or by their

direction or prescription, is not an offense under this article. _The

giving by a physician lawfully practicing, to any person, married or

having a license entitling him or her to be married duly and lawfully

obtained by him or her, of any information or advice in regard to

the prevention of conception, on the application of such person to

such physician; or the supplying to such physician or by any one on

the written prescription of such physician to any such person of any

article, instrument, drug, recipe or medicine for the prevention of

conception, is not an offense under this article._

Explanation. The portions in italics are new.

APPENDIX NO. 7

THE CONNECTICUT LAW AND THE AMENDMENT PROPOSED BY THE AMERICAN BIRTH

CONTROL LEAGUE

The present statute, enacted in 1878, reads as follows:

_General Statutes, Section 6390. Use of Drugs or Instruments to

Prevent Conception._ Every person who shall use any drug, medicinal

article or instrument for the purpose of preventing conception shall

be fined not less than $50.00 or imprisoned not less than 60 days nor

more than one year or both.

The proposed bill would repeal the above section, and enact the

following new section.

The giving by a physician licensed to practice or by a duly

registered nurse to any person applying to him or her, of information

or advice in regard to, or the supplying by such physician or nurse,

or on a prescription signed legibly by him or her, of any article or

medicine for the prevention of conception shall not be a violation of

the statutes of this State.

APPENDIX NO. 8

NEW JERSEY LAW

AND

_Amendment Proposed by the American Birth Control League_

AN ACT to amend an act entitled “an act for the punishment of crimes

(Revision of 1898), approved June Fourteenth, one thousand and eight

hundred and ninety-eight.

BE IT ENACTED by the Senate and General Assembly of the State of New

Jersey:

1. Section fifty-three of the act to which this act is amendatory be

and hereby is amended so as to read as follows:

53. Any person who without just cause, shall utter or expose to

the view of another, or to have in his possession, with intent so

to utter or expose to view, or to sell the same, any obscene or

indecent book, pamphlet, picture, or other representation, however

made; or any instrument, medicine, or other thing, designed or

purporting to be designed for the prevention of conception, or

the procuring of abortion, or who shall in any wise advertise, or

aid, or assist in advertising the same, or in any manner, whether

by recommendation against its use or otherwise, give or cause to

be given, or aid in giving any information how or where any of

the same may be had or seen, bought or sold, shall be guilty of a

misdemeanor, _THE CONTRACEPTIVE TREATMENT OF MARRIED PERSONS BY

DULY PRACTICING PHYSICIANS, OR UPON THEIR WRITTEN PRESCRIPTION,

shall be deemed a just cause hereunder_.

The underlined clause is the amendment desired by the American Birth

Control League.

APPENDIX NO. 9

CALIFORNIA LAW

AND

_Amendment Introduced in 1917 by Senator Chamberlain and Assemblyman

Wishard_

The California law is Section 317 of the Penal Code under the Chapter

Heading, “INDECENT EXPOSURE, OBSCENE EXHIBITIONS, BOOKS AND PRINTS, AND

BAWDY AND OTHER DISORDERLY HOUSES.”

The bill introduced by Senator Chamberlain and Assemblyman Wishard

amended the Section by striking out the words “or for the prevention of

conception.” The wording of the Section is as follows:

317. ADVERTISING TO PRODUCE MISCARRIAGE. Every person who wilfully

writes, composes or publishes any notice or advertisement of any

medicine or means for producing or facilitating a miscarriage or

abortion, or for the prevention of conception, or who offers his

services by any notice, advertisement, or otherwise, to assist in the

accomplishment of any such purpose, is guilty of a felony.

APPENDIX NO. 10

INDICATIONS OF OPPOSITION OF BIRTH CONTROL ADVOCATES TO REMOVING BAN ON

CONTRACEPTIVE INFORMATION FROM FEDERAL OBSCENITY LAWS

At the first American Birth Control Conference when the American

Birth Control League was organized in November, 1921, the following

resolution was submitted, but the Conference was not allowed to vote

upon it:

_Whereas_, the proposition has been laid before Post Master General

Hays by the Voluntary Parenthood League, that he recommend to

Congress the revision of the Federal law so that contraceptive

knowledge shall not be included among the penalized indecencies which

are now declared unmailable.

_Be It Resolved_, that this American Conference for birth control

urges Post Master General Hays to act favorably on this proposition

as a matter of postal progress and as a service to modern science,

welfare and justice.

A “doctors only” proponent, speaking from the floor against allowing

a vote on this resolution to be taken by the Conference said, “If we

could have the Federal bill passed _to-day_, we would not want it.”

EXCERPTS FROM AN EDITORIAL IN THE BIRTH CONTROL REVIEW OF MARCH, 1921

In contrast to the State legislation is the proposed repeal of

the Federal law, aiming to open the United States mails to the

distribution of birth control knowledge by amateurs.

We are told that the repeal of the Federal law would be the quickest

and shortest way to achieve our goal. But there is no such royal

road! We might flood the country with tons of good books and

pamphlets on the subject by recognized authorities on hygiene,

psychology and sociology, but with no appreciable effect. (A poor

woman once said to me, “I have read your book from cover to cover;

and yet I am pregnant again.”) To offer a pamphlet to a woman who can

not read or is too tired and weary to understand its directions, is

like offering a printed bill of fare to a starving man.

Yet the repeal of the Federal law would accomplish practically no

more than this. Nevertheless, to some it seems of primary importance;

and those who think so are best qualified to throw their energies

into that work.

Much as we wish that one fine gesture would sweep aside these

obsolete and ridiculous anti-contraceptive laws, both Federal and

State, experience has shown us the emptiness of legal and legislative

victories unless followed up vigorously by concerted action. Remember

that in England there is no law preventing the spread of birth

control knowledge; yet we see there, that the removal of legal

restriction in the use of the mails is not enough. Our interests and

our activity must be positive, fundamental, dynamic, constructive.

Let us beware of the futility of striving after vain victories and

theoretical triumphs—which may, indeed, stimulate in us a fine

glow of egotistical satisfaction, but also divert and distract our

attention and interest from the hard, thankless, detailed work of

helping overburdened mothers. Let us not be led into the trap of

believing that the mere repeal of a Federal law will change the

course of ancient human habits or the most deep-rooted of instincts.

APPENDIX NO. 11

NOTE: The words “preventing conception” are removed from the five

Sections of the Federal Statutes which appear in the Bill.

1st Session,

68th CONGRESS, S. 2290

IN THE SENATE OF THE UNITED STATES

JANUARY 28 (calendar day, JANUARY 30), 1924.

_Mr. Cummins introduced the following bill; which was read twice

and referred to the Committee on the Judiciary._

A BILL

To remove the prohibition of the circulation of contraceptive

knowledge and means by amending sections 102, 211, 245, and 312

of the Criminal Code; and section 305, paragraphs (a) and (b), of

the Tariff Act of 1922; and to safeguard the circulation of proper

contraceptive knowledge and means by the enactment of a new section

for the Criminal Code.

_Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled_, That section 102 of the

Criminal Code be amended to read as follows:

“SEC. 102. Whoever, being an officer, agent, or employee of the

Government of the United States, shall knowingly aid or abet any person

engaged in violating any provision of law prohibiting importing,

advertising, dealing in, exhibiting, or sending or receiving by mail

obscene or indecent publications or representations, or means for

producing abortion, or other article of indecent or immoral use or

tendency, shall be fined not more than $5000 or imprisoned not more

than ten years or both.”

SEC. 2. That section 211 of the Criminal Code be amended to read as

follows:

“SEC. 211. Every obscene, lewd, or lascivious and filthy book,

pamphlet, picture, paper, letter, writing, print, or other

publication of an indecent character; and every article or thing

designed, adapted, or intended for producing abortion, or for any

indecent or immoral use; and every article, instrument, substance,

drug, medicine, or thing which is advertised or described in a manner

calculated to lead another to use or apply it for producing abortion,

or for any indecent or immoral purpose; and every written or printed

card, letter, circular, book, pamphlet, advertisement, or notice of

any kind giving information, directly or indirectly, where or how or

from whom or by what means any of the hereinbefore-mentioned matters,

articles, or things may be obtained or made, or where or by whom

any act or operation of any kind for the procuring or producing of

abortion will be done or performed, or how or by what means abortion

may be produced, whether sealed or unsealed; and every letter,

packet, or package, or other mail matter containing any filthy, vile,

or indecent thing, device, or substance; and every paper, writing,

advertisement, or representation that any article, instrument,

substance, drug, medicine, or thing may or can be used or applied

for producing abortion, or for any indecent or immoral purpose; and

every description calculated to induce or incite a person to so use

or apply any such article, instrument, substance, drug, medicine,

or thing is hereby declared to be non-mailable matter and shall not

be conveyed in the mails or delivered from any post office or by

any letter carrier. Whoever shall knowingly deposit, or cause to be

deposited for mailing or delivery, anything declared by this section

to be non-mailable, or shall knowingly take, or cause the same to be

taken, from the mails for the purpose of circulating or disposing

thereof, or of aiding in the circulation or disposition thereof,

shall be fined not more than $5000, or imprisoned not more than five

years, or both. And the term “indecent” within the intendment of this

section shall include matter of a character tending to incite arson,

murder, or assassination.”

SEC. 3. That section 245 of the Criminal Code be amended to read as

follows:

“SEC. 245. Whoever shall bring or cause to be brought into the

United States or any place subject to the jurisdiction thereof, from

any foreign country, or shall therein knowingly deposit or cause

to be deposited with any express company or other common carrier,

for carriage from one State, Territory, or District of the United

States, or place noncontiguous to, but subject to the jurisdiction

thereof, to any other State, Territory, or District of the United

States, or place noncontiguous to but subject to the jurisdiction

thereof, or from any place in or subject to the jurisdiction of the

United States through a foreign country to any place in or subject

to the jurisdiction thereof, or from any place in or subject to

the jurisdiction of the United States to a foreign country, any

obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper,

letter, writing, print, or other matter of indecent character; or

any drug, medicine, article, or thing designed, adapted, or intended

for producing abortion, or for any indecent or immoral use; or

any written or printed card, letter, circular, book, pamphlet,

advertisement, or notice of any kind giving information, directly

or indirectly, where, how, or of whom or by what means any of the

hereinbefore-mentioned articles, matters, or things may be obtained

or made; or whoever shall knowingly take or cause to be taken from

such express company or other common carrier any matter or thing, the

depositing of which for carriage is herein made unlawful, shall be

fined not more than $5000, or imprisoned not more than five years, or

both.”

SEC. 4. That section 312 of the Criminal Code be amended to read as

follows:

“SEC 312. Whoever shall sell, lend, give away, or in any manner

exhibit, or offer to sell, lend, give away, or in any manner exhibit,

or shall otherwise publish or offer to publish in any manner, or

shall have in his possession for any such purpose, any obscene book,

pamphlet, paper, writing, advertisement, circular, print, picture,

drawing, or other representation, figure, or image on or of paper

or other material, or any cast, instrument, or other article of an

immoral nature, or any drug or medicine, or any article whatever for

causing unlawful abortion, or shall advertise the same for sale, or

shall write or print, or cause to be written or printed, any card,

circular, book, pamphlet, advertisement, or notice of any kind,

stating when, where, how, or of whom, or by what means, any of the

articles above mentioned can be purchased or obtained, or shall

manufacture, draw, or print, or in anywise make any of such articles,

shall be fined not more than $2000, or imprisoned not more than five

years or both.”

SEC. 5. That section 305, paragraphs (a) and (b), of the Tariff Act

of 1922 be amended to read as follows:

“SEC 305. (a) That all persons are prohibited from importing into the

United States from any foreign country any obscene book, pamphlet,

paper, writing, advertisement, circular, print, picture, drawing,

or other representation, figure, or image on or of paper or other

material, or any cast, instrument, or other article of an immoral

nature, or any drug or medicine, or any article whatever, for

causing unlawful abortion, or any lottery ticket, or any printed

paper that may be used as a lottery ticket, or any advertisement

of any lottery. No such articles, whether imported separately or

contained in packages with other goods entitled to entry, shall

be admitted to entry; and all such articles shall be proceeded

against, seized, and forfeited by due course of law. All such

prohibited articles and the package in which they are contained

shall be detained by the officer of customs, and proceedings taken

against the same as hereinafter prescribed, unless it appears to the

satisfaction of the collector that the obscene articles contained in

the package were inclosed therein without the knowledge or consent

of the importer, owner, agent, or consignee: _Provided_, That the

drugs hereinbefore mentioned, when imported in bulk and not put up

for any of the purposes hereinbefore specified, are excepted from the

operation of this sub-section.

“(b) That any officer, agent, or employee of the Government of the

United States who shall knowingly aid or abet any person engaged in

any violation of any of the provisions of law prohibiting importing,

advertising, dealing in, exhibiting, or sending or receiving by mail

obscene or indecent publications or representations, or means for

procuring abortion, or other articles of indecent or immoral use or

tendency, shall be deemed guilty of a misdemeanor, and shall for

every offense be punishable by a fine of not more than $5000 or by

imprisonment at hard labor for not more than ten years, or both.”

SEC. 6. The transportation by mail or by any public carrier in the

United States or in territory subject to the jurisdiction thereof,

of information respecting the means by which conception may be

prevented, or of the means of preventing conception, is hereby

prohibited, except as to such information or such means as shall be

certified by not less than five graduate physicians lawfully engaged

in the practice of medicine to be not injurious to life or health.

Whoever shall knowingly aid or abet in any transportation prohibited

by this Act shall be deemed guilty of a felony, and, upon conviction

thereof, shall be fined not more than $5000 or imprisoned for not

more than five years, or shall be punished by both such fine and

imprisonment.

APPENDIX NO. 12

CONDENSED CHRONOLOGICAL STORY OF THE FEDERAL BILL TO REMOVE THE BAN ON

CONTRACEPTIVE KNOWLEDGE FROM THE OBSCENITY LAWS

[Sidenote: 1919.]

July 24. Began preliminary interviews with Senators and Congressmen

with a view to discovering the right sponsor for the bill, and to

create a good atmosphere for its introduction.

Sept. 24. Asked Senator France of Maryland to introduce it, he being

chairman of the Committee on Public Health, a physician and heartily

in favor of the bill. He agreed to consider it.

Oct. 21. Senator France doubted the wisdom of his being sponsor. He

suggested Senator Norris of Nebraska.

Oct. 22. Senator Norris was wholly favorable to the measure, but said

the prejudice of the Judiciary Committee against other measures for

which he stood would hurt his sponsorship and he hadn’t the advantage

of being a physician.

Oct. 23. As Senator France was most desirable, the sponsorship was

again put up to him and he said he would again consider it.

[Sidenote: 1920.]

Jan. 19. After nearly three months of prodding by letters and

interviews, Senator France wrote that he did not feel ready to

shoulder our bill ahead of others to which he was already committed.

He did not decline, but thought it unfair to keep us waiting further.

Jan. 21. Took it back to Senator Norris, who agonized over it

conscientiously, but decided he had better not. He had sounded

Senator Ball, the only other physician in the Senate beside France.

Found him rather skeptical. He then suggested asking Senator Nelson,

chairman of the Judiciary Committee to do it as proof of his

repentance for having been an abusive opponent (one of the very few

we have met).

Jan. 22. Senator Nelson’s repentance went to the extent of

recommending that the bill be referred first to the Committee on

Public Health and implied that the Judiciary Committee would concur

if the report should be favorable.

During the next few weeks, besides hunting for a sponsor we

interviewed the Health Committee. Seven out of eleven were wholly

in favor or inclined favorably toward the bill.

Senator Ball was seen several times, in the hope that he would

prove to be the right sort for a sponsor. He was slow in coming to

a conclusion as to the merits of the bill.

Meanwhile two other Senators were asked.

Jan. 29. Senator Sterling of South Dakota, first. The discussion

convinced him as to the merits of the bill, and he finally agreed to

consider sponsoring it.

Feb. 18. Urged his decision. He did not refuse, but said he would be

relieved to be released from consideration. Promised to work for the

measure in Committee and on the floor.

Mar. 5. After conferring with Senators France and Norris, whose

advice has always been helpful, took the bill to Senator Dillingham

of Vermont. He is wholly in favor but considered himself unsuitable

sponsor. He is the _only_ Senator who has not kept us waiting for his

decision. He urged Ball as best sponsor.

Mar. 6. As Senator Ball had announced on February 20th, that he

was convinced by our data—on the advice of Dillingham, France and

Norris, he was asked by letter to introduce the bill.

Mar. 11. Went to Washington for his decision. Found him; he had not

even read the letter carefully enough to realize he was being asked.

Said “No.” Then reconsidered and agreed to talk it over with France.

Mar. 19. _He promised to sponsor the bill._ He asked for “a few days

of grace” before introducing it, to recover from influenza and attend

to the suffrage crisis in Delaware.

Apr. 21. Introduction still hanging. Said he “hadn’t had time.”

Meanwhile the comment of the other Senators had begun to disconcert

him. He turned us over to Major Parkinson of the bill drafting

service to discuss phraseology and work out an opposition-proof bill.

Everything was settled to our satisfaction. It was the Senator’s next

move.

Apr. 24. He “hadn’t had time to see Parkinson,” and asked for a few

days more of patience. We reminded him that we had waited over a

month. He said he would surely do it during this session. We insisted

on something definite. He finally promised “some day next week” and

that he would wire us what day.

May 25. No word, despite letters from our office and many from the

supporters of the League.

Letters, telegrams, personal interviews with Senator Ball in

Washington were all unavailing. He did nothing but reiterate

promises.

June 5. _The Senate adjourned and the bill was not introduced._

Dec. 6. With the opening of the last session of Congress, we began

the sponsor hunt again. Nine Senators in succession have been asked

to sponsor the bill, as follows:

_Sen. Capper of Kansas._ For the bill, but too submerged in his

agricultural relief bills to take ours on.

_Sen. Townsend of Mich._ (Member of Health Com.) Favors the bill,

but declined on grounds that he was too ignorant on the data to

face debate, and too busy to get primed.

_Sen. Kenyon of Iowa._ (Had reputation of being chief welfare

advocate of Senate.) Too busy with his “packer” bill. Might

consider it at next session.

_Sen. McCumber of S. D._ Admitted merit of bill, but thought he

better not imperil his re-election (in 1923) by sponsoring it.

Suggested that it be introduced by Health Com. as a whole, without

individual sponsorship, so no one would “be the goat.”

_Sen. Sheppard of Texas._ (Sponsor of Sheppard-Towner Maternity

Bill.) Recognized necessity of our bill to complete the service

provided by his bill, but could not consider sponsoring ours till

next session anyway, and probably not then, as he thinks it should

come from a Republican.

_Sen. Fletcher of Fla._ (Member of Health Com.) Heartily approves

bill, but considers himself unsuitable sponsor because he is a

Democrat.

_Sen. Frelinghuysen of N. J._ (Member of Health Com.) Frankly said

he would be “afraid” to do it, but he feels favorably toward the

bill.

_Sen. Owen of Okla._ (Member of Health Com.) Like Senator France,

author of bill for Federal Health Dept.—unqualifiedly in favor,

but sure bill should not be sponsored from Democratic side.

Dec. 31. Proposed to Senator France that the bill be introduced by

the Health Committee without individual sponsorship.

[Sidenote: 1921.]

Jan. 5. Senator France declined the proposition on the ground that

the burden of the bill would fall on him just the same.

Jan. 13. After thorough consultation with Senator France, took bill

back to Senator Sterling.

Jan. 27. Senator Sterling answered that he was “too busy to do it at

this session.”

Feb. 11. Senator Kenyon was asked to reconsider. He replied, “I’m

mighty sorry, but I am just loaded down with bills that are taking

every minute of my time, and I must ask you to secure some other

Senator to take care of this legislation for you.”

Mar. 1. Senator Borah was asked to sponsor the bill. He did not see

his way to doing it.

Aug. 19. Post Master General Hays had put himself on record as not

believing in the maintenance of Post Office censorship laws. He was

accordingly asked to consider recommending to Congress the removal

of the censorship law regarding birth control knowledge. He was

most hospitable to the suggestion—said it was timely, that he was

interested and had about come to the conclusion that he ought to ask

Congress to revise all the laws bearing on Post Office censorship

power. He asked for a compilation of pertinent data, which was

promptly provided. He had the matter under consideration till he

resigned office the following March. But he made no recommendation to

Congress.

The sponsor hunt began again.

Senator Borah suggested the possibility that he might slip in our bill

as an amendment to the bill proposing to extend Post Office censorship

to information about race track betting tips, if it was reported out of

committee and reached the floor for discussion. The bill was killed in

Committee, due in part to Senator Borah’s opposition to it.

[Sidenote: 1922.]

Dec. Sponsors found in both Houses. Senator Cummins in the Senate,

and Congressman John Kissel of New York in the House. The latter

responded to a circular letter asking for a volunteer statesman for

the task.

[Sidenote: 1923.]

Jan. 10. Bill introduced in both Houses.

Jan. 22. Sen. Nelson, Chairman of the Judiciary Committee appointed

Sub-Committee of three to consider the bill—Senators Cummins, Colt

and Ashurst. Senator Cummins was ill and went to Florida. Committee

action was stalled.

Strenuous effort was made to get substitute Chairman so action

could proceed. Norris was added to Committee but not as Chairman.

Feb. 6. Sen. Colt declined to act as Chairman.

Feb. 8. Sen. Colt asked to be excused from the Committee.

Feb. 13. Sen. Cummins returned.

Feb. 19. Sen. Cummins tried to get vote of full Judiciary, as

conditions had not permitted a Hearing and report from the

Sub-Committee. Meeting adjourned without action. They “did not get to

the bill.”

Feb. 26. Sen. Cummins tried again to get a vote. Announced that he

would call for it before adjournment, again. The members slipped out

one by one, so no quorum was present. The Senator said, “They just

faded away.”

[Sidenote: 1924.]

Jan. 30. Bill reintroduced by Senator Cummins.

Feb. 1. Bill introduced in House by Congressman William N. Vaile of

Colorado.

Mar. 7. Bill referred to Senate Sub-Committee, consisting of Senators

Spencer, Norris and Overman.

Mar. 22. Bill referred to House Sub-Committee of seven, Congressmen

Yates, Hersey, Perlman, Larson, Thomas, Major and O’Sullivan.

Apr. 8. Joint Hearing held before both Sub-Committees. Ten spoke for

the bill, and five against.

May 9. Hearing reopened at request of the Catholics.

June 7. Congress adjourned. Neither Committee reported the bill.

[Sidenote: 1925.]

Dec. Senator Cummins made Chairman of the Judiciary Committee.

Jan. 20. Senate Sub-Committee unanimously reported Cummins-Vaile Bill

“without recommendation.”

House Sub-Committee evaded making a report.

Mar. 4. Congress adjourned.

APPENDIX NO. 13

SENATORS BORAH AND STANLEY ARGUED BEFORE THE JUDICIARY COMMITTEE IN

1921 FOR THE PRINCIPLES ON WHICH THE CUMMINS-VAILE BILL IS BASED, BUT

REGARDING ANOTHER BILL

The following excerpts from the Hearing, with editorial comment, are

taken from the Birth Control Herald of January 20, 1925.

The Bill on which the Hearing was held had passed the House in

October, 1921. It aimed primarily to make race track betting tips

unmailable, but section No. 5 to which Senators Stanley and Borah

objected most strenuously was a sweeping infringement of the freedom

of the press, by which nothing could go through the mails that

gives any information as to bets or wagers on any contest of speed,

strength or skill. The bill was referred to a Sub-Committee of the

Judiciary consisting of Senator Sterling, Chairman, and Senators

Borah and Overman.

The measure has never been reported out by the full committee, and

it seems evident that the vigorous opposition of the two Senators

who argued on principle, and the disapproval of powerful newspaper

associations, have resulted in the burying of the bill.

At the time of this Hearing (January, 1922), Senator Stanley was not

on the Judiciary Committee but he was so interested in preserving the

right of free press from further encroachment that he appeared at the

Hearing as an opponent of the bill, and as a pleader for fundamental

liberty. At present, however, he is a member of the Judiciary

Committee, with the best of opportunities to make his convictions

count effectively for the Cummins-Vaile Bill, in which precisely the

same principle is at stake, namely, the freedom of the press and the

right of the individual to have access to knowledge.

The V. P. L. Director was originally indebted to Senator Borah for

her copy of the report of this Hearing. He has never faltered in his

opposition to the principle of censorship. And Senator Sterling,

the Chairman before whom this Hearing was held, was already at that

time committed to support of the Cummins-Vaile Bill. He gave his word

that he would work for the Bill in the Judiciary Committee and on the

floor of the Senate.

In the 113 pages of the Report of the two Hearings on the bill to

exclude gambling information from the mails, there are many more

analogies to the principle involved in the Cummins-Vaile Bill than

there is room to recount, so the excerpts below are only samples.

At the very start there is similarity of circumstance. At the first

Hearing Senator Stanley spoke “especially of the section that

was added in the last hour of debate, about which I am advised

comparatively few members of Congress knew anything at the time

of its passage.” That the House should have inadvertently passed

a measure on the strength of its moral sounding aim, but which

contained an unwarranted suppression of constitutional rights is

exactly what happened in 1873, when the Comstock bill was hastily

passed, aimed at obscenity, just as this bill was aimed at gambling,

but blundering into suppression not only of crime, but of freedom.

_Sen. Stanley_ (speaking on behalf of representatives of the chief

metropolitan newspapers): “These great papers wish an opportunity to

show that the gambling evil is not best remedied—especially by a

government of delegated powers—by an unwarranted restriction of the

freedom of the press or the freedom of speech.”

(Similarly, the abuse of contraceptive information is not to be

remedied by laws forbidding access to that information. Ed.)

_Sen. Stanley_ (at the second Hearing): “Despotic governments

have always viewed and always will view freedom of speech with

apprehension and alarm. When you have placed a censorship or

arbitrary inhibition or prohibition upon either the freedom of speech

or the freedom of the press, you have not invaded one constitutional

right, but have imperilled or desolated them all.”

_Sen. Borah_: “Do you attack this as unconstitutional, or simply the

policy of it?”

_Sen. Stanley_: “Both. I maintain that it is not necessary to show

that it is unconstitutional, because of its folly and its unwisdom.

It is absolutely a violation of the spirit of the Constitution.”

_Sen. Sterling_: “If you think race-track gambling is an evil, do you

think that advice or suggestions in regard to wagers and bets should

be prevented?”

_Sen. Stanley_: “May I answer that question by asking another? Does

the Chairman believe that the Federal government should pass a law

prohibiting anything that is morally or industrially wrong?”

_Sen. Sterling_: “Oh no, there are limitations of course upon the

power of the Federal government to do those things.”

_Sen. Stanley_: “Yes, ... I had begun to doubt it.”

_Sen. Sterling_: “This prohibits the use of the mails for certain

purposes.”

_Sen. Stanley_: “Yes.”

_Sen. Sterling_: “And we have passed laws relative to the use of the

mails ... prohibiting certain written or printed matter....”

_Sen. Stanley_: “And Mr. Chairman, that is the worst vice, the worst

phase of this legislative itch with which the country is infected,

for the Federal and sumptuary regulation of all the activities of the

people, moral, intellectual and industrial. It is gaining. One bad

law breeds a million.”

_Sen. Borah_: “Well, Mr. Stanley, you do not have to make any

argument to me that we have no power to establish a censorship.”

_Sen. Stanley_: “This is as fine an instance, Mr. Chairman, as I

know, of the abortive birth and progress of this character of half

baked legislation. A bill, honest, and perhaps advised in the main,

was introduced.... As it passed a Representative took a shot at it on

the fly and inserted this section 5. The Postmaster General (Hays)

in a letter to Chairman Nelson of this Committee very pertinently

observed: ‘This particular section 5 makes it an offense for

newspapers to publish racing news. I favor the bill, but am opposed

to this section 5. I was not consulted about it, and I hope this

section does not pass. The whole bill had better be defeated in my

opinion, than to add this additional curtailment of the freedom of

the press. There has been a very strong tendency of late in that

direction, and I am sure it is essential that such tendency be

checked. I am reminded of Voltaire’s statement, “I wholly disapprove

what you say and will defend with my life your right to say it.”’”

_Sen. Borah_: “It is not necessary to proceed any further then, is

it?”

_Sen. Stanley_: “Senator, I think there is more in this than this

bill. I have no fear that this bill will pass. This is too much.

Neither the minds nor the stomachs of the people are prepared to

endure it. But I wish to emphasize its evils in order that this

character of legislation may be discouraged, that this persistent and

pernicious effort to control the freedom of the press may find an end

somewhere at some time.”

(The Cummins-Vaile Bill will also help to end it. Ed.)

_Sen. Borah_: “Well, Senator Stanley, as I think you know from

personal conversation, I am quite in sympathy with your view, but

I am unable to construe this letter (from Postmaster General Hays,

quoted above) in harmony with a number of statutes that are already

upon the statute books, and already in force.”

(The Comstock law, for instance. Ed.)

_Sen. Stanley_: “It is unfortunately true.”

_Sen. Borah_: “Indicating that we are taking a step back to

constitutional government.”

_Sen. Stanley_: “Buckle says that all civilization for five hundred

years consisted in repealing laws. I wish Buckle were eligible for a

seat in the Senate now.”

(Hear, hear! Ed.)

“Mr. Chairman, the greatest influence for good—and it may be

greatest power for evil—is the power of the press. There is no free

government without it. There are no free men without it. There is no

free thought without it. I commend to your attention just a little

paragraph from that great defense of free institutions, with (one)

possible exception, the greatest in the English tongue: ‘Though all

the winds of doctrine were let loose to play upon the earth, so Truth

be in the field, we do ingloriously by licensing and prohibiting to

misdoubt her strength. Let her and Falsehood grapple; who ever knew

Truth put to the worse in a free and open encounter?’”

_Sen. Stanley_ continuing: “Now let us see what this bill prohibits.

Section 5 reads: ‘No newspaper, postcard, letter, circular, or other

written or printed matter containing information, or statements, by

way of advice of suggestions, purporting to give the odds at which

bets or wagers are being laid or waged, upon the outcome of speed,

strength or skill, or setting forth the bets,’—now get this,—‘made

or offered to be made, or the sums of money won or lost upon the

outcome or result of such contest,’ etc.

“If a school boy at college should write to his mother that his

room-mate had bet five cents on a foot-ball game, he could be sent to

the penitentiary for five years and fined $5000.

“Put in force this act and then endeavor to convince a civilized

world that this is the land of the free and the home of the brave.”

(Compare the wording of this proposed law with that of the old

Comstock law by which “every book, pamphlet ... paper, letter,

writing ... or notice of any kind giving information directly or

indirectly where, how or of whom or by what means,” etc., conception

may be controlled is unmailable. Then parallel Sen. Stanley’s

instance of the college boy and his five cent bet on the foot-ball

game with the fact that no mother can now lawfully write to her

married daughter any information even in a private letter as to how

she may space the births of her babies. Ed.)

_Sen. Stanley_: “The evil of attempting to restrict the freedom

of the press in discussing this matter more than counterbalances

any possible ultimate good. It is purely problematical whether it

would stop any racing or not, or deter it. It is an actual fact

that it would be another step in the wrong direction—that is of a

pernicious, vexacious, inquisitorial censorship of the press.

“It would of course be argued that the boy would not be sent to

prison for five years or fined $5000. And why? Because judges have

more sense and more humanity and more decency than the Senate, and

that they would refrain from doing what they are authorized to

do. Now you enact this bill, and how do you know that somewhere,

sometime, you are not going to find a Judge that has just as little

sense of proportion and propriety and justice as the Senate of the

United States?

(For instance the Judge who sent Carlo Tresca to jail for a small

unwitting infringement of the Comstock act, which government

officials as a whole make not the slightest attempt to enforce. Ed.)

_Sen. Stanley_, satirically: “Because Congress has gone very near the

end of its constitutional tether, it should cut the tether and go the

whole length: because it has regulated the freedom of the press in a

few respects, it should now proceed to regulate them in all respects.”

_Sen. Borah_: “I think, Senator Stanley, that the argument that we

will have to rely upon finally is whether we are going any further.

There are plenty of precedents for this law on the statute books....

They are bad precedents, but they are there.”

_Sen. Stanley_: “Exactly, Senator Borah.”

_Sen. Borah_: “I would like to repeal many of them.”

_Sen. Stanley_: “I would like to join you in that....

“No man of course is in favor of moral uncleanness.... But that is

no reason why the Federal Government should act as a spy and as a

supervisor of the private relations between men and women in the

several States....

“Race gambling no one doubts is an evil. Of course it is. But

intemperance is a bad thing. Therefore the papers must not encourage

intemperance by mentioning the concomitants of an alcoholic drink;

the other day an officer tried to stop the Cincinnati Inquirer from

making reference to a copper can because they said some copper cans

were used for distilling! That is a fact. Where are we going to stop?

“Burglary is a bad thing. Think of it, there are millions of men who

do not know that a simple flat piece of steel, called a jimmy, can

be used to open doors that are locked.... Suppose the papers tell of

how a man gets into a house by means of a jimmy ... some fellow reads

that and gets a jimmy and breaks into a house. Are you going to stop

all mention of that?... I want to stop now, any further advance as

Senator Borah has said, in this pernicious practice of regulating

the morals of the people by prescribing what the press shall say

about their morals, whether in their domestic relations, their gaming

practices, or anything else....

“You pass this act, and by virtue of its precedent and those others

of its kind that now deface the statute books of a free country,

within a few short years, with a little ingenuity, I can keep

anything out of the columns of the press except an account of a

school picnic or a pink tea. I thank you, Mr. Chairman.”

(And this paper thanks the Senator. Ed.)

APPENDIX NO. 14

SECTIONS OF THE FOOD AND DRUG ACT WHICH ARE PERTINENT TO MATERIALS USED

FOR THE PREVENTION OF CONCEPTION

_Manufacture_:

Sec. 8717: It shall be unlawful for any person to manufacture within

any territory or the District of Columbia any article of food or drug

which is adulterated or misbranded, within the meaning of this Act.

_Importation_:

Sec. 8718: The introduction into any State or Territory or the District

of Columbia from any other State or Territory or the District of

Columbia, or from any foreign country of any article of food or drugs

which is adulterated or misbranded, within the meaning of this Act, is

hereby prohibited.

_Definition of Drug Includes Compounds_:

Sec. 8722: The term “drug,” as used in this Act, shall include

all medicines and preparations recognized in the United States

Pharmacopoeia or National Formulary for internal or external use, and

any substance or mixture of substances intended to be used for the

cure, mitigation, or prevention of disease of either man or other

animals.

_Adulteration_:

Sec. 8723: For the purposes of this Act an article shall be deemed to

be adulterated:

In case of drugs:

First: If, when a drug is sold under or by a name recognized in the

United States Pharmacopoeia or National Formulary, it differs from the

standard of strength, quality, or purity as determined by the test laid

down in the United States Pharmacopoeia or National Formulary official

at the time of investigation.

Second: If its strength or purity fall below the professed standard of

quality under which it is sold.

_Misbranding_:

Sec. 8724: The term “misbranded,” as used herein, shall apply to

all drugs, or articles of food, or articles which enter into the

composition of food, the package or label of which shall bear any

statement, design, or device regarding such article, or the ingredients

or substances contained therein which shall be false or misleading

in any particular, and to any food or drug product which is falsely

branded as to be the State, Territory, or country in which it is

manufactured or produced.

That for the purposes of this Act an article shall also be deemed to be

misbranded.

In case of drugs:

First: If it be an imitation of or offered for sale under the name of

another article.

Second: (Not pertinent.)

Third: If its package or label shall bear or contain any statement,

design, or device regarding the curative or therapeutic effect of such

article or any of the ingredients or substances contained therein,

which is false and fraudulent.

Fourth: If the package containing it or its label shall bear any

statement, design, or device regarding the ingredients or the

substances contained therein, which statement, design, or device shall

be false or misleading in any particular.

APPENDIX NO. 15

FREEDOM OF ACCESS TO KNOWLEDGE OF THEIR OWN CHOOSING DENIED TO

CATHOLICS BY OREGON SCHOOL LAW, AND SERIOUSLY THREATENED IN OTHER STATES

SAME PRINCIPLE AT STAKE AS THAT IN CUMMINS-VAILE BILL

The following letter was sent by the Director of the Voluntary

Parenthood League to every Catholic member of Congress. There are 37

Catholic members in the House, and 5 in the Senate.

January 16, 1925.

DEAR SIR:

Am I correct in thinking that you are one of the thirty-seven Roman

Catholic members of the House? If so, may I not assume both your

special interest in the recently attempted anti-Catholic legislation

in several States, and in the possibly anti-Catholic tendencies of

certain proposed Federal measures, and your common concern with all

liberty loving Americans at these new menaces to certain of our

fundamental rights.

Among the proposals to which I refer are those made in Oregon,

California, Washington, Michigan and Alabama to restrict Catholic

teaching and learning. The laws proposed have not attempted directly

to prohibit Catholic schools, but they indirectly achieve that end,

by compelling all children of certain ages to attend public schools

during all the hours of all the school days through out the year.

What is perhaps the most preposterous of these attempts, actually

became law in Oregon in 1922. Its provisions are incredible to

upholders of a supposedly free government. They create a Prussian

type of surveillance and control over all private instruction, and

empower a County School Superintendent, vested with absolutely

autocratic authority from which there is no appeal, to decide whether

such private instruction as may be allowed is being “properly”

conducted and to compel children receiving such private instruction

as he may disapprove to attend the public school in the district of

their residence. Fortunately, protest against this outrageous law

from Catholics and other citizens, has taken the questions to the

courts. Equally fortunately, the Federal District Court in Oregon has

pronounced against the law’s constitutionality.

At Washington, it is the Sterling education bill at which lovers of

our constitutional liberties, Catholics and non-Catholics alike, are

looking askance as a possible gateway to Federal compulsion of public

school attendance, or to other Federal interference with individual

freedom in the acquisition of knowledge. In view of these legislative

tendencies, then, and of the intolerant and lawless aggressiveness of

certain groups which are violently anti-Catholic, and quite ready to

translate their feelings into political control, may there not well

be concern lest our guaranteed American freedom become a farce?

This is no time then for thoughtful Catholics to take sides against

freedom. They need it to protect their own rights. Am I wrong in

thinking that, on sober thought, they will not wish to line up

against a bill that makes a stand for the very principle that is most

dear to them, namely, their right to knowledge of their own choosing?

It has been generally assumed that Catholic Representatives, as such,

will vote against the Cummins-Vaile Bill, which touches inferentially

upon “birth control”; but will they, can they, when they reflect

that this measure only seeks to repeal the same kind of pernicious

legislation as now imperils the civil liberties of all of us, but

Catholics in particular, in the matter of their schools and religious

instruction?

For these reasons I respectfully ask your judicial consideration of

the above facts and those which follow, as they have a bearing on the

decision to be made as to this bill by any Congressman who is at the

same time a loyal Catholic and a conscientious legislator.

Neither the existing laws nor the provisions of the Cummins-Vaile

Bill deal directly with the question of birth control. They have no

right to do so. That is essentially a question for the individual

conscience. But they do both affect the question indirectly. However,

in so doing the laws have established tyranny, whereas the bill

re-establishes individual freedom. The laws are an intrusion upon

personal liberty, such as is prohibited by the constitution, and the

bill simply removes that intrusion.

No Federal statutes forbid the actual control of conception. That is

an entirely lawful act for the individual. But the laws do forbid

the circulation by any public carrier, of any information as to how

conception may be controlled. That is, they forbid the circulation

of knowledge by restricting the freedom of the press, and even the

freedom of individual communication by letter. Yet freedom of speech

and press is constitutionally guaranteed.

Liberty to learn and to teach is a fundamental American right, which

may not justly be infringed, except when the things taught are

criminal acts. The control of conception is not a crime. It could

not possibly be declared such, by law. It may be contrary to ethics,

morality and religious teachings as claimed by the authorities of

the Catholic Church, but so also it may not be. Opinion differs

about it, though it is obvious that the trend of opinion, as proven

by the birth rates the world over, is in its favor. However, it is

a question apart from the law, and should be worked out in accord

with personal conscience, and whatever educational and inspirational

influence the individual wishes to accept.

So I earnestly ask you, Sir, to think this matter through, and to

co-operate now with us who are working for enactment of this bill;

so that freedom may be safeguarded for everyone, and each allowed

to utilize it according to his own conscience. I do not ask you

to believe in birth control. It would be utterly irrelevant and

intrusive to do so. It is not the point of the bill. The point of

the bill is one that all Americans should have in common, a love of

freedom and insistence upon having it for all.

Will you stand for the Cummins-Vaile Bill on that one ground?

Yours respectfully,

MARY WARE DENNETT,

_Director_.

FOOTNOTES:

[1] To give the name, would make this book “unmailable” under the law.

[2] Published by the Voluntary Parenthood League.

[3] The bill which Mrs. Sanger was then trying to have introduced _did

not remove the subject from the obscenities_, except in the case of the

doctor. For all others it still remained an indecency.

[4] The bill proposed did not allow self-government as to the control

of conception, but only physician-government. The person applying could

get instruction only if the doctor chose to give it, not otherwise.

[5] These States present a knotty legal question as to whether

the repeal of the Federal prohibition relating to the mails will

automatically make these State laws void. Legal opinion (as expressed

by Attorneys Alfred Hayes and James F. Morton, Jr.) seems to agree that

the Federal action will probably be effective, but there is authority

for the assumption that under the State law police power might withhold

such supposedly undesirable mail from the recipient.

TRANSCRIBER’S NOTE

Obvious typographical errors and punctuation errors have been

corrected after careful comparison with other occurrences within

the text and consultation of external sources.

Inconsistent hyphenations have been left as is.

Unmatched quotation marks have been left as printed. Double quotation

marks occurring within a passage within double quotation marks have

been left as printed.

Except for those changes noted below, all misspellings in the text,

and inconsistent or archaic usage, have been retained.

Page vi. “sponsor—Cummins-Kissell” replaced by “sponsor—Cummins-Kissel”.

Page vii. “Doctor’s Only” replaced by “Doctors Only”.

Page 15. “physican” replaced by “physician”.

Page 36. “pornagraphic” replaced by “pornographic”.

Page 37. “putrefying sores,”“ replaced by ““putrefying sores,””.

Page 42. “it seem” replaced by “it seems”.

Page 43. “instinctly acting” replaced by “instinctively acting”.

Page 50. The word “crime” is enclosed in double quotation marks, an

extra single quotation mark has been removed.

Page 52. “Recive” replaced by “Receive”.

Page 55. “weaklies” replaced by “weeklies”.

Page 66. “park that flamed” replaced by “spark that flamed”.

Page 85. “may protests” replaced by “many protests”.

Page 92. “State legislatlon” replaced by “State legislation”.

Page 94. “Cummins-Kissell” replaced by “Cummins-Kissel”.

Page 94. “every one against:” replaced by “every one against.”.

Page 105. “these pople” replaced by “these people”.

Page 117. “from heresay” replaced by “from hearsay”.

Page 123. “hearings analagous” replaced by “hearings analogous”.

Page 146. “Mrs. Dennet” replaced by “Mrs. Dennett”.

Page 158. “giving exerpts” replaced by “giving excerpts”.

Page 160. “this subjest” replaced by “this subject”.

Page 181. “seeems to prevent” replaced by “seems to prevent”.

Page 184. “member of Congress” replaced by “members of Congress”.

Page 198. “sex conciousness” replaced by “sex consciousness”.

Page 248. “the the principle” replaced by “the principle”.

Page 251. “substracting errors” replaced by “subtracting errors”.

Page 252. “scorn of pretentions” replaced by “scorn of pretensions”.

Page 265. “Cortlandt Palmer” replaced by “Courtlandt Palmer”.

Page 301. ‘certain purposes.’ replaced by ‘certain purposes.”’.

Page 301. Closing double quotation mark added after “printed matter.”

Birth control laws · 第 8 / 8 章