Birth control laws

What do the people want? No doubt the first conscious want of most people so far as birth control is concerned, is simple reliable information about methods. It is largely their own needs and wants which have made people pay attention to and develop the birth control movement, or realize just how the laws forbid their getting what they want. On the latter point they are apt to be much more vague than on the former. Some people, and unfortunately they are numerous, having managed to get what they want in spite of the laws, are prone to forget the plight of others who are not sophisticated enough or lucky enough to be successful law-breakers, and thus they feel little direct responsibility about getting the laws revamped so that they shall not stand in the way of any one who needs access to the information. But on the whole, these careless and self-centered people would, if they stopped to think about it, agree with those who have a heart for others and are public spirited, and they too would prefer decent, just and practicable laws to those which are dirty-minded, unjust and unenforceable.

Suppose a real conference of the whole people were possible, and they could put their minds on deciding what laws they wanted on this subject, after looking over the statutes we have now, and after scrutinizing all the proposals that have been made for revising them, what sort of a decision would they be likely to make? What would their conclusion be, if left entirely to their own devices, with no “experts” to tell them what to say, and with the whole responsibility on their own shoulders? They would doubtless be deficient in putting their ideas into legal phraseology—the technician might have to be called on for that; but would they be likely to vote any sort of suppression or restrictions upon themselves? Is there any precedent in history for a body of people ever doing that? Have people ever united to express their lack of faith in themselves and said, “Let us have laws to keep us from knowing this and that, as we can not trust ourselves to use the knowledge rightly”? On the contrary, whenever people unite in demands for themselves, are those demands not always for freedom rather than for repression?

But since a United States town-meeting on this subject is a wild hypothesis, perhaps the next best thing would be for the reader to look upon himself as the one person upon whom the answer to this question rested—with the responsible knowledge that whatever he really wanted would forthwith become the law of the land; and realizing also that what he basically wants is, probably ten to one, what most everybody else wants too.

The simplest way to reach a conclusion about this law question would seem to be by elimination. First then—do you want the laws related to birth control to remain as they are now? Do you approve the legal company the subject is in—under such law classifications as “Obscene literature,” “Indecent articles,” and entangled with such adjectives as “lewd,” “lascivious,” “filthy,” and “immoral”? No? You wish it rescued? Then the bill to repeal those two words “preventing conception” from all the obscenity statutes is what you want.

But wait—it may not be so simple as that. How about those who do feel that the control of conception is more or less indecent, the people who have somewhat Comstocky minds, to whom any reminder of sex is a danger? Are they anything like a majority. If so, would you want to let the laws remain as they are in deference to their feelings? Though no one can prove it, they are probably nothing like a majority, but even if they were, should the normal, clean-minded people be penalized for their sake? And further, is it the proper function of government to maintain laws to protect people’s feelings about sex or anything else? Those who want to may feel as indecent as they please about the control of conception. They do not need laws to help them do it. The function of law is to protect people’s rights. As no one’s mere feelings are an intrusion upon another’s rights, it is no concern of the law to deal with them. The laws as they stand now are a gratuitous insult to the great mass of the people who do not consider the control of conception indecent. Do you want that legal insult maintained?

Then how about those whose chief interest in the control of conception is in connection with actual sex depravity and perversion and who wish the information for that purpose? Do you want the obscenity laws to remain as they are, for the sake of trying to make them apply to those people? Hardly, because they are undoubtedly a small minority anyway, and they are quite clever enough to break the laws successfully, besides; and further, any circulation of contraceptive information which is put in indecent language or involved with inducements for sex depravity would be just as subject to prosecution under the obscenity laws after the removal of the words “preventing conception” as it is now. The indictment would be for obscenity, and that can cover improper contraceptive information or anything else that the judge or jury in a given case choose to make it cover. Obscenity, throughout the whole history of law in modern times has been an extraordinarily pliable term.

Is there then any propriety or justice in keeping this subject per se, legally enmeshed with penalized obscenity? If you agree that there is none and if you want it removed from the obscenity laws, what next?

Do you, by any chance, think that the control of conception regardless of any connection with obscenity, should itself be declared by law to be a criminal act? This is a crucial question absurd as it may sound. There are many people who believe that the scientific control of parenthood is wrong, though not necessarily obscene. This has been the teaching of the Catholic Church, and on this ground Catholics have opposed the repeal of the legal ban on knowledge concerning it. They have not asked Congress to amend the Comstock law by making it a criminal act to control conception. But is not this the only logical thing for them to do, if they presume to, ask the government to continue to deny people access to the knowledge on the ground that the utilization of the knowledge is wrong? Ought not they and any others who are like-minded, to get themselves together and tackle this question straight from the shoulder in Congress? If they consider it at all appropriate to appear at a Hearing and urge Congress to try to keep the people from knowing about this wrong thing, is it not more fitting to ask for laws which will forbid the thing itself, instead of knowledge about the thing? They can perfectly well proceed on this course if they wish to undertake it. It is noteworthy that thus far, none of them have done so. No one has gone to Congress and pointed with pride to that unique statute in Connecticut, the only one of its sort in the world—which makes it a crime to control conception—and asked to have a Federal law of the same sort enacted. But if the Catholics and what few other opponents there are, do not wish to undertake this task, and if they persist in asking for laws to prevent others from learning how to do what they—the Catholics, et al., consider wrong, they will be treading upon ground which may menace the maintenance of their own liberty to teach and preach and practice what they believe to be right. The tables are likely to be turned upon them, so that they will have to fight for the same sort of liberty which they now seek to deny to others. Indeed this is what did happen in the case of the Oregon School law, which would be in operation today if the United States Supreme Court had not declared it unconstitutional. (Appendix No. 15 gives further information on this subject.)

In getting at an answer to the question as to what sort of laws are really wanted, it clears the air considerably to get rid of this point about the distinction between a law which prohibits an act and a law which prohibits information about an act which in itself is perfectly lawful. The latter is the sort of law we now have, and it is not good law either for those who believe in the control of conception or for those who do not. Both groups should join to repeal it. And then those who wish to have their belief that birth control is wrong incorporated into the law of the land would have an open field in which to make the effort. That they would fail is a foregone conclusion, and they know it of course, which no doubt accounts for their rash insistence on the retention of the present law.

The next point to eliminate is that in regard to the application of the present law to the one method of birth control which is sanctioned by the Catholics and the few others who deem the utilization of scientific knowledge an affront to God or nature, namely, abstinence from sex relations. The writer has a letter from Rev. John A. Ryan, Director of the National Catholic Welfare Council in which he says, “There is no question of the lawfulness of birth restriction through abstinence from the relations which result in conception.” This assertion has been repeatedly made by other opponents, but that it is a mistaken assertion was pointed out by Congressman Vaile and by Prof. Roswell Johnson at the Hearings on the Cummins-Vaile Bill. Mr. Vaile said: “If abstinence from the sexual relation were practiced, either spouse could get a divorce.” Abstinence itself is not sanctioned by law.

According to common law precedent, the wife gives her “services” to her husband in exchange for her “necessaries.” “Services” are interpreted to mean household services and “consortium,” or sex-relations. “Necessaries” are interpreted to mean food, clothes and shelter.

The law does not sanction a wife’s withholding her “services,” either household or sexual. If she does, it is deemed desertion, and in many States desertion is a ground for divorce.

Thus it seems that abstinence is not only illegal, because it is a method of birth control, the giving of information about which is prohibited by law, but it is also illegal because it is withholding the “services” which a wife is by law bound to give in return for her “necessaries.”

In other words, so far as the law is concerned, there is no room for abstinence. It follows therefore that the only sort of family which is legally approved in these United States is that in which there are as many children as it is physically possible for the parents to produce. This legal situation constitutes a downright poser for the so-called “purists” who advocate the abstinence of marital sex relations except for procreation.

For abstinence is one method of birth-control. It certainly prevents conception.

To teach any method for the prevention of conception is prohibited by law throughout the United States. Yet the “purists” teach their method.

Therefore the “purists” are guilty of breaking the law. Query: Why are they not prosecuted? This question then becomes a poser for the government. Silence has been the only answer.

This leads to the next point to be cleared away, in the process of finding out what laws are really wanted or what ones it is worth while to want; that is, as to enforceability. Clearly the present laws are not enforced. The government has not the remotest idea of trying to enforce them. And if it tried, it would fail. It might mean jailing at least half the population. It simply can not be done. The knowledge is circulating whether or no. The cat is out of the bag, and it is quite useless to wave the empty bag any longer, as if somehow the cat could be persuaded back. Better cast the old bag aside, as it is full of holes anyway, and let the cat be given a decent home, instead of being obliged to skulk furtively in alleys and eat from garbage pails. Moreover it is a cat that has not only the proverbial nine lives, but more nearly ninety million lives. It can not be caught or killed, much less bagged. Do you, or does anybody really want unenforceable laws? The question answers itself.

If the principle of enforceability is a prerequisite for law, and if the present law is abandoned because it does not live up to that principle, is anything more needed than merely to put the old law in the waste basket, in other words, just to remove those two words “preventing conception” from all the obscenity statutes in which they occur? Is any further legislation needed? And if so, is there any sort which, first of all, meets this fundamental requirement of enforceability, and which also will achieve the ends for which it is desired? And if those ends are not achievable by laws which can be enforced, then they will have to be achieved, will they not, by some other agency than law?

The two ends to be achieved for which other legislation has been proposed are, first, that only authoritative scientific contraceptive information shall be given to the people, and second, that all information on the subject shall be kept away, so far as may be possible from those who would misuse it, or who might be tempted to misuse it, so that immorality and depravity may not be thereby increased.

Suppose, for the moment, that you feel so strongly about the desirability of both those ends that you are inclined to favor any legislation which is aimed to achieve them. Then bearing in mind the basic requirements of enforceability and efficacy, you scan with a fresh eye and a responsible spirit the legislation which has been proposed. You find in it two principles, one that all contraceptive information and means which are circulated shall bear authoritative medical certification that they be “not injurious to life or health,” that is, the certification shall be by lawfully practicing physicians; the other principle, that contraceptive information may lawfully emanate only from a certain class of the people, the medical profession, and be given only to people who qualify in certain ways, that is, those who are physicians or those who receive it personally from physicians as “bona fide” patients of the same, and that contraceptive means may be sold only to those who personally present a physician’s written prescription for the same.

These two principles you find are very far apart. One requires medical sanction for methods, as somewhat of a protection to the public against harmful or fraudulent contraceptives, and while it by no means guarantees wholly satisfactory protection, as it would be subject to the possible inadequacies of the certifying physicians, it would be at least enforceable, and it establishes untrammelled freedom in the access to information and the securing of means.

The other is class legislation, and establishes a monopolistic, monetary privilege for physicians in the dispensing of information and an impracticable restriction upon those who sell contraceptive means: in so doing it by no means guarantees protection against harmful or inadequate contraceptives, as it would protect only to the extent that individual physicians were competent and conscientious, and it would be even less enforceable than our present law. For if information now leaks through the bars of the present law to a very considerable extent, it stands to reason that the leakage would be greatly increased if the bars of the law are lessened at all, and if the bars are placed very far apart as they would be by the latest “doctors only” bill proposed (the Worthington draft as given on page 212) the leakage would be so great as to reduce the efficacy of the bars to the vanishing point. It would be patently absurd to expect such a sieve-like law to allow all the worthy people to get information and to keep it away from all the unworthy ones, or even any tiny proportion of the unworthy ones.

So, if the final effect of this last proposed “doctors only” bill would be about the same as the freedom bill, so far as access to information is concerned, why go all round Robin Hood’s barn to achieve it, instead of doing it directly and simply? Why try to fool oneself or anybody else into thinking that any law can possibly be devised that will allow many millions of people to learn certain facts, and which will at the same time keep those facts a profound secret from the balance of the people? Does not such a proposition seem to be the outcome of mental processes somewhat akin to those of the man who cut two holes in the barn door, a big one for the old cat and a little one for the kitten?

Glance back to the changes in limited legislation which have been proposed since 1881, when the first one appeared, long before the modern birth control movement. It was in New York State, and it permitted doctors to give any instructions (including by inference contraceptive instruction) to “cure or prevent disease.” In 1919 began the rapid succession of limited bills by which some of the legal bars were to be removed. First doctors and nurses were to be allowed to give information. Then the bars were thickened by eliminating the nurses, leaving the doctors in sole possession of the special privilege. Then to thicken the bars still further, the doctors could give it only to the married or to those having a license to marry. Then came the first Federal “doctors only” proposition, by which doctors could inform other doctors and their “bona fide” patients, and dealers could fill contraceptive prescriptions from doctors; but no publications or importation of publications were to be allowed. Then, as the force of criticism began to be felt, and the Cummins-Vaile Bill progressed to the point of being reported out by the Senate Judiciary Sub-Committee in Congress, the bars began to be thinned out again, and in 1925 the Worthington draft appeared, which would permit doctors to inform each other and their patients, and allow dealers to fill physicians’ prescriptions, and would also permit medical and “scientific” publications, and “reprints” from the same. You find that these legislative proposals have swung all the way from a tight “doctors only” bill to a bill that is framed in the language of a “doctors only” bill but which actually would not function as such.

The point has almost been reached when, by the removal of bar after bar in the “doctors only” type of bill, one might say that “things equal to the same thing are equal to each other,” inasmuch as the last version of the “doctors only” idea would be practically the same in effect as the Cummins-Vaile Bill, so far as the accessibility of contraceptive information is concerned. That being the case, is not the very fact that the limited bill proposition has been pared down till it would release information about as completely as a freedom bill, a most forceful reason for scrapping it now in favor of the freedom bill? If the restrictions are so riddled with exemptions as to be only the shadow and pretense of restriction, why go through the motions of keeping them? If such pretension at restriction should fool anyone into thinking they were genuinely efficacious, it would but serve to make the law an arrant hypocrisy. If they would not so fool anybody, why bother to try to put them into law? Is it not time to bear in mind Dr. Pusey’s advice to avoid framing “silly legislation,” as we have more than enough of that kind on the statute books already? Why add to the welter of laws we have, when we can better achieve what we want by merely subtracting errors from the existing laws. As “Life” observed:

Probably most if not all of the “doctors only” proponents would be quite willing and even glad to have this subject removed from the obscenity classification in law, if they could see a feasible way to keep the “doctors only” provision at the same time. But that would force them to propose a law that would frankly be a legal permit for class privilege. It would be too obvious to attempt with decorum. So they try to accomplish the same end by the indirect method of providing exemptions for doctors under the existing obscenity statutes. But just as a rose by another name would smell as sweet, is not a wrong by another name just as offensive?

This thought brings up the next point for consideration as to the sort of laws it is worth while to want. Even if the latest form of “doctors only” bill does break down the restrictions so that they would be a mere gesture rather than a genuine law, do you want any laws passed which are based on the idea of privilege? If so, would you be willing to be quite candid about it? Would you be willing to ask a member of Congress to introduce a bill which would be a legal permit for certain people to give contraceptive information and certain people to buy and sell contraceptives, and would forbid all other people to do the same? If you would shrink from such a blatant betrayal of democratic American principles as that, are you not in all conscience bound to stand for a law which would be true to those principles? If you were not willing to do openly and directly a thing which you knew to be unsound in principle, could you possibly persuade yourself to do it indirectly?

Suppose then you have a healthy scorn of pretensions, legal and otherwise, and you find yourself averse to any legislation that could be rightly deemed double-faced, and you proceed in your survey of legislative proposals. You may find that the point about the need for personal prescription of contraceptives which is so stressed in behalf of the “doctors only” bills, still troubles you. You wonder perhaps, if there is not some sound way to make a legal provision that would work out so as to give the people just what they individually need in the way of contraceptives and protect them from means that are unsafe or ineffective.

If so, there are these facts to consider. There is doubtless great advantage in having the personal advice of a thoroughly well informed physician as to contraceptive method. It is reassuring if nothing else, even if not imperatively needed in most cases. For average individuals with normal physique a professional prescription is by no means always necessary. But exceptional physical conditions do need special attention, such as only the doctor or an experienced nurse can give. Under the present handicap of the laws, advice from a competent physician is of especial use because he can warn his patient against the many worthless and even harmful methods which are being secretly advocated. But when publications on the subject can be openly circulated, the difference between the good and bad methods can be made clear by authoritative spokesmen, and the general public can learn the main facts about this sort of hygiene in the same natural way that they learn about dental and dietetic hygiene, and so forth. There is no need to make a medical mystery of this knowledge, or to assume that the public will be lost in hopeless ignorance unless a doctor prescribes specially for each individual. The simplicity of some of the best methods makes such an attitude an absurdity.

At the last Hearing in the New York Legislature on a “doctors only” bill, the Birth Control Review reports Mrs. Sanger as saying that “the Clinical Research Department of the American Birth Control League teaches methods so simple that once learned any mother who is intelligent enough to keep a nursing bottle clean can use them.” Dr. Robert L. Dickinson, head of the New York Committee on Maternal Health has said that the method most favorably regarded does not require the instruction of a physician preceding its use. “The New Generation,” one of the two outstanding birth control periodicals in England, and official organ of the Neo-Malthusian group of birth control advocates, published in January, 1925, the following editorial against the “doctors only” position.

The official stand of the Society for Constructive Birth Control and Racial Progress, in England is also against the “doctors only” position. This is the Society of which Dr. Marie C. Stopes, founder of the first English birth control clinic, is the president.

A striking bit of evidence which is related to this point is that the best known authority on this subject in England, and the one from whom many physicians both abroad and in this country have learned most of what they know about the control of conception and who has written a large volume of the subject, is a biologist, who has scientific degrees but who is not an M.D. So the framing of laws which would place the giving of information exclusively in the hands of physicians becomes an absurdity for that reason if for no other.

“Floods of advertisements” streaming through the mails, commercializing, cheapening and degrading contraceptive science—this is one of the bogies held before the eyes of the public by those who want limited legislation in place of freedom legislation. You may consider this a point well taken as a possible reason for “doctors only” legislation. Certainly decent people do not want any such thing to happen. The question is how to prevent it. Can it be achieved by law? If so, then would it not be better to have a separate statute on the subject of advertising contraceptives, than to try to accomplish the curbing of improper advertising in a round about back-handed way via a “doctors only” bill? Of course a blanket prohibition of all advertising would not be appropriate for that would rule out the publisher’s announcements of the “standard medical works and reprints therefrom” which are to be allowed according to the latest form of “doctors only” bill. It is hard to see where any line could be drawn, as “standard medical” and “scientific” publications are not defined by law. What conceivably might be done is to pass laws similar to the obsolete one in Holland which forbids the display of contraceptives in shop windows, and so forth. But on the whole would it not be best to have the laws simply provide an open field, and let the dignified authoritative scientists compete with the quacks and the spurious folk, with faith that eventually the best would win, very much as the increased public knowledge of general hygiene is steadily putting quackery into the background?

The writer of this book believes whole-heartedly that the American public wants sound legislation on the subject of birth control. The difficulty in getting it lies in the fact that people in general are so concerned with each day’s doings that there is scant time or opportunity to dig out from all manner of sources the few facts that are the basis of sound legislation. The tendency of busy people is to “let the experts decide.” The tendency of average citizens is to vote yes on any project that claims to carry out ideas to which he gives general approval. The tendency of birth control enthusiasts is to assume that the sincere and self-sacrificing leaders of an agitation are automatically wise at framing laws on the subject. But, as Heywood Broun said in the New York World, anent another subject and a different sort of organization:

And one of the chief difficulties for the interested citizen in this particular matter is that the proponents of the “doctors only” legislation give such a small part of the salient facts to the public in asking for support for their bills. Much is omitted which might radically alter the response to the request for endorsement, if it were but known. For instance, the public is being asked in widely circulated appeals to endorse the bill drafted by Mr. George Worthington, which is to be introduced into Congress as soon as possible. It may very likely be before Congress by the time these words are read. The statement which accompanies the request for endorsement is this:

A copy of the Worthington amendment is given. That is all. There is not a word about the fact that this is an amendment to the obscenity law, and that the subject of birth control is still left, a penalized indecency in that law. There is no suggestion given that this amendment is permissive legislation for a class privilege. There is no inkling given that it is legislation that could not possibly be enforced so as to exclude others beside those listed from using the mailing privilege. There is no statement explaining that there is no such thing in law as a definition as to what constitutes a “bona fide” “patient,” or “printer” or “manufacturer.” The public is merely asked to say yes to what looks, at first glance, like a most desirable thing. And apparently the public is being counted upon to say it, without a second glance or a pause for thoughtful inquiry.

Indeed, on the part of some of the proponents of limited legislation there seems to be a definite intention not to let the public realize that there is or could be a choice as to the type of bills which our legislators are asked to pass. A striking example of this tendency has appeared in New Jersey. Circular letters are going the rounds asking the public to endorse a “doctors only” and married-people-only bill, as shown in Appendix No. 8. The State organizer of the American Birth Control League who has charge of this work, was asked if he had “ever considered submitting a choice of bills to the public” he was “circularizing to see which they would prefer asking the Legislature to pass, a limited measure or a simple repeal act?” He answered thus: “It is a hard enough job to educate the public to see the necessity for birth control as a general proposition, without confusing the issue by asking them to express an opinion or choice as between two possible measures, about neither of which they know very much. Even if such a questionnaire were possible, I would not make it.” It is noticeable that the letters which are being circulated asking for endorsement do not inform the New Jersey people much of anything even about the limited bill proposed. Yet the endorsement which these New Jersey citizens send in will be used to convince the Legislature that the people want this particular bill, as proved by their endorsements. It goes without saying that those who collect the endorsements will not then state that they did not trust the people to know what they wanted themselves.

Further indication of unwillingness on the part of the “doctors only” group to have the public get a full and free comprehension of the two radically different types of legislation that have been proposed, has been the repeated refusal of the “doctors only” proponents to debate the subject in open meeting. The proponents of the freedom bill on the other hand have made many efforts to pool the points held in common between the two groups, and to iron out the differences so that a sound joint legislative platform would be the result. It may be illuminating to the reader to see the terms of a recent effort on the part of the proponents of the freedom bill to get together with the proponents of the exemption bill drafted by Mr. Worthington. They are embodied in a Memorandum which was sent by the freedom bill group to the exemption bill group preliminary to a proposed conference. The exemption bill group refused to confer. The Memorandum reads as follows: