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The Status of Birth Control: 1938

At last birth control is legal in the United States. The right to provide contraceptive information and service under medical direction is finally recognized under the federal law as now interpreted, and it also is legal under state laws in all but two states, Mississippi and Massachusetts—and the Massachusetts law is vulnerable on constitutional grounds.

It is one of the anomalies of modern civilization that the forces of bigotry, reaction and legalism could so long have kept on the federal statute books a law that classed contraceptive information with obscenity and was interpreted to prevent physicians from prescribing contraceptives. Year after year this vicious law legally tied the hands of reputable physicians, while quacks and purveyors of bootleg contraceptives and “feminine hygiene” articles and formulas flourished. It was an absurd situation in which the federal law in effect nullified the laws of practically every state.

But now mothers can be told! The story of how motherhood ultimately was rescued from bondage is an absorbing one. It required two-thirds of a century to remove the federal fetters placed upon birth control by Anthony Comstock and a “reform” group which induced a timid and overawed Congress to pass the overreaching law. That famous, or rather infamous, law—Section 211 of the United States Penal Code—and supplementary laws, prevented the dissemination of birth-control information even by a physician, and barred anything pertaining to the subject from the mails or common carriers. Other sections were even more rigid, forbidding the possession of any article for preventing conception—and there were no exceptions. While the original bill carried the exemption, “except on a prescription of a physician in good standing, given in good faith,” these words were omitted from the bill which finally became law. Violations of the laws were punishable by fines of from $2,000 to $5,000, or imprisonment for five years, or both. The laws made no distinction between contraception and abortion, though they are as far apart as the poles. Birth control is the conscious control of the birth rate by scientific means which prevent conception. It is not interference with life after conception has taken place.

And the laws had teeth. Many supplies and much literature were confiscated and destroyed. Although no outstanding, distinguished physicians were actually prosecuted for violating the law, this was mainly because they did not openly violate it. They were intimidated and kept in fear of prosecution. With federal and state laws in conflict and confusion, a physician might legally dispense information under state statutes, but it was illegal for him under a literal interpretation of the federal statutes to send or to receive the necessary technical information and medical supplies. The laws hampered the progressive physician, eager to adopt preventive health measures and willing to advise his patients privately, but reluctant to take a similar stand in public practice because of confusion as to his legal rights in this field of medicine.

The Comstock laws not only thwarted efforts to protect mothers from excessive child bearing and children from being born sick, weak, unwanted and unprovided for, but were responsible, directly or indirectly, for the deaths of a million mothers during the six decades in which they were enforced. These deaths occurred among mothers who were the victims of abortions or of bearing children when in unfit physical condition.

Even today the situation is still appalling in some respects. Out of every four mothers who die in America, one death is due to abortion. Out of 15,000 mothers who die each year from causes due to childbirth or pregnancy, a large percentage are “poor maternity risks” from the start. As for infant mortality, statistics of the United States Children’s Bureau tell their eloquent but unheeded story. When the interval between births is too short, death rates climb. Babies born one year apart die at the rate of 147 per thousand; babies born two years apart have a mortality rate of only 98 per thousand. These figures are a challenge to the nation.

For many years efforts to induce Congress to amend the Comstock laws were unavailing, but sentiment for changing them increased rapidly from 1930 onward. In the campaign undertaken by the National Committee on Federal Legislation for Birth Control, Inc., nearly a thousand organizations with approximately twenty millions of members eventually endorsed the lifting of federal restrictions, and 325,000 individual endorsements were filed with Congress. Few causes have won such a vast number of active supporters.

Through a liberal court, this informed and potent public opinion finally found expression. One of the judges, in a separate opinion, observed: “A statute stands until public opinion gets enough momentum to change it, which may be long after a majority would repeal it, if a poll were taken.”

The National Committee on Federal Legislation for Birth Control, Inc., had proceeded along both legislative and legal lines of battle. As confiscations of books and materials increased, a particularly strong test case was instituted by the Committee in behalf of Dr. Hannah M. Stone, medical director of the Birth Control Clinical Research Bureau in New York. The government, through the Bureau of Customs, had seized a package containing 120 pessaries to prevent conception, which the government alleged had been imported contrary to Section 305 (a) of the Tariff Act of 1930, which stemmed from the Comstock law of 1873. These pessaries had been sent to Dr. Stone by a physician in Japan for trial in her practice, and she had been asked to give an opinion as to their usefulness for contraceptive purposes. Dr. Stone testified at the trial that she prescribed the use of pessaries in cases where it would not be desirable for a patient to undertake a pregnancy.

It was in this case, on November 30, 1936, that birth control under medical direction was finally recognized as legal. The United States Circuit Court of Appeals for the Second Circuit rendered a decision that the federal obscenity laws do not apply to the legitimate activities of physicians, and that they may prescribe contraceptives in the interests of the health and general well-being of their patients. That enlightened decision brought birth control to the goal it had long sought through legislation and was an emancipation proclamation to the motherhood of America. Its objective won, the National Committee disbanded.

With sharp, surgical precision the historic decision cut through the tangled confusion of federal laws. It removed the shadow of illegality and the stigma of obscenity and brought the federal statutes into conformity with most state statutes. In the few remaining states in which outmoded statutes await reinterpretation, the decision is a beacon for other courts to follow.

The decision constitutes a Bill of Rights for the medical profession in the field of contraception. The nation owes a debt of gratitude to the wisdom, the logic and the humanity of Judges Augustus N. Hand, Thomas W. Swan and Learned Hand, for upholding the previous decision of United States District Court Judge Grover Moscowitz that contraceptives imported for a lawful purpose did not come within the restrictions of the statute.

Homer S. Cummings, Attorney General of the United States, announced that the government would rest its case and not carry it to the United States Supreme Court. Thus the decision of the Circuit Court of Appeals became the law of the land, and the Treasury Department thereupon issued instructions to Customs authorities to admit contraceptive supplies addressed to physicians. For the ultimate victory we are also deeply grateful to Morris L. Ernst, counsel for Dr. Stone and the Committee, for his gallant and successful light as well as his constant championship of civil liberties and clarification of obstructive laws.

Medical as well as legal sanction for birth control at last exists. Less than a year after the legal decision, and following a long investigation by a special committee, the American Medical Association, in June, 1937, approved birth control as an essential part of medical practice and education, and urged the necessity for informing physicians of their legal rights in relation to the use of contraceptives. A resolution declared that

…it seems fair…to assume that the state courts, if called upon to construe the statutes relating to the dissemination of contraceptive information, will adopt lines of reasoning similar to those followed in the case cited (U.S. v. One Package) and in other cases decided by the United States courts, leaving physicians free to give information concerning contraception when required to meet the medical needs of patients.
This reference was to the Dr. Hannah Stone case. The public may now look to the Association to carry on research in contraception and to promote the teaching of birth control in medical schools.

Birth control, therefore, from a national standpoint, is at last freed. The federal statutes are no longer a stumbling block. However, there is need for clarification of state statutes in the few states where the literal wording of the law may still be invoked unless public opinion makes its force felt. In the past some states followed the lead of the federal government in enacting and clinging to obsolete statutes restricting the dissemination of contraceptive knowledge, but, fortunately, these statutes contain exemptions of many types and degrees as regards the medical profession. There are twenty-four states with statutes of this character. Some of them are confused, outmoded conglomerations of provisions aimed indiscriminately at birth control, obscenity, indecency, abortion, miscarriage, lotteries, nostrums, drops, pills, tinctures, compounds, poisons, drugs, prophylactics, lust, crime and “sex-exciting devices.” Nevertheless, these statutory relics of the past do not impose any obstacles for the medical profession. The situation is summed up in the box below.

There remain, then, three states. In one, Connecticut, the use of contraceptives is forbidden. This statute, incapable of enforcement, has long subjected Connecticut to ridicule, but this blue-law relic has remained as part of the code, despite earnest and repeated efforts to amend it. Nevertheless, seven birth-control clinics are in operation in Connecticut.

Mississippi makes no exceptions in its statutes, which ban even oral information. An effort to amend the Mississippi law nearly succeeded during the past session. A bill passed the House and was defeated in the Senate by only six votes.

In Massachusetts the state laws have been challenged. While they make no exception of any kind, eight birth-control clinics, directed and sponsored by outstanding medical and civic leaders of the state, have served the public for many years without legal hindrance. Meanwhile, repeated efforts have been made to modernize the Massachusetts laws, but without success. In the summer of 1937 three Massachusetts birth-control clinics were raided. Doctors, nurses, social workers and officials were arrested, convicted and fined. Their cases are being appealed to the higher courts and pending decision all clinics in the state have closed. This reactionary step is a warning that while prohibitory laws of this type remain on the statute books, they constitute a continuing threat to the freedom of the medical profession and the welfare of mothers.

Oregon holds the distinction of being the first state to divorce contraception from abortion and obscenity. It is also the first state to attempt to safeguard its citizens by setting up a control of contraceptive products and advertising under its State Board of Pharmacy. To North Carolina goes the honor of being the first state to provide birth-control clinical service through its State Department of Health and county physicians. Puerto Rico has also enacted progressive legislation.

What lies ahead? It is not enough merely to establish the rights of physicians through the courts. This ethical gain must be used. We have taken a great step forward, but other hurdles must be cleared. With birth control legalized by court decisions, all states should now catch up with public sentiment, judicial interpretation and the demand for contraceptive services by clarifying and modernizing their laws. All state laws should be positive, not vague or negative. They should clearly and affirmatively declare and assure the right of medical birth control, not merely fail to forbid it, or limit it.

Therefore I ask all who have so loyally made our legal and medical victories possible to join efforts with us again in the next important objective—the inclusion of birth-control service in local, state and national health programs. In this way only can those mothers most desperately in need of this information obtain it through reliable medical channels. Help make it known to hospitals, relief agencies, philanthropic and public-health officials that the federal decision has freed their hands. Challenge all plans for the reduction of maternal and infant mortality that ignore the basic need for including contraceptive service in such programs.

We must move fast, for women and children are dying needlessly. Individual and group effort can point the way and can do immeasurable good. But those guiding our programs for relief, for the reduction of maternal and infant mortality and for the control of syphilis, must recognize that the provision of scientific birth-control information is essential to the success of all such programs.

Today there are more than three hundred and fifty birth-control centers in the country. Ten times that number are required to meet the need. There are 7,000 hospitals and 10,000 other agencies where medical aid is sought by mothers too poor to pay the fees of private physicians which ought to provide contraceptive service. And medical-nursing service ought to bring birth control to thousands of forgotten women on farms and in isolated districts remote from medical centers. Their plight and pleas are among the most poignant of all.

This article appeared in the April 20, 1938 issue of the magazine.

Birth Control in the United States

 Federal Law

Birth control is legal under medical direction. A United States Circuit Court of Appeals has held that the federal obscenity laws do not apply to the legitimate activities of physicians and that they may prescribe contraceptives in the interests of the health and general well-being of their patients.

State Laws

It is legal under state as well as federal statutes in twenty-one states, which have no provisions against it. They are Alabama, Arkansas, Florida, Georgia, Illinois, Kentucky, Maryland, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and West Virginia. The same is true in the District of Columbia, Puerto Rico and the Territories of Alaska, Hawaii, the Philippine Islands and the Virgin Islands.

Ten states have limited laws, but physicians are exempt and drug-store sales of contraceptives are permitted. They are Colorado, Indiana, Ohio, Delaware, Iowa, Montana, Wisconsin, Wyoming, Oregon and Idaho.

Three states allow physicians to prescribe contraceptives, but druggists are not mentioned. They are New York, Nevada and Minnesota.

Six states have statutes aimed at indiscriminate advertising and distribution of material. They are Arizona, California, Louisiana, Maine, Michigan and Washington.

One state, New Jersey, allows the dissemination of information for a “just cause.”

One state, Connecticut, forbids the use of contraceptives.

Two states, Massachusetts and Mississippi, list no exemptions. Mississippi is the only state forbidding oral information.

One state, Kansas, exempts medical textbooks, and by implication the medical profession.

Three states, Missouri, Nebraska and Pennsylvania, exempt chartered medical schools and medical textbooks, and by implication the medical profession.