Margaret Sanger, "Birth Control," 7 Sept 1934.

Source: " State Government, Sept. 7, 1934Library of Congress Microfilm 128:421."

For draft version see Library of Congress Microfilm 42:111.


BIRTH CONTROL.

By Margaret Sanger

How many people know that over sixty years ago Congress passed a law making it a penitentiary offense for anyone (even a doctor) to send or received through the United States Mails even the address of a physician or a clinic where information concerning ways to prevent conception could be obtained? And conversely, how many people know that it is entirely legal for them to obtain contraceptive information under existing state statutes, subject to certain limitations, in every state of the Union except Mississippi?

An unjustified reputation

For we have the extraordinary situation of a federal law in effect nullifying the laws of forty-seven states. While a physician may legally dispense information under the statutes of his state, it is illegal for him to received through the mail the necessary technical information and medical supplies. The federal attitude toward contraceptive information has given rise to misunderstanding and confusion on this subject, particularly as to the difference between birth control and abortion; it has enshrouded in secrecy a subject important to the health and welfare of may persons; it has deterred legislatures from action on a subject made unsavory by its legal association with obscenity; it has hampered and confused the medical profession, anxious to give advice to their patients where desirable for health reasons, but fearful of jeopardizing their professional standing through ignorance of the law.

The federal obscenity law, passed in 1873, classes the prevention of conception with abortion, pornography, filth, and indecency. Two generations have passed since that law was enacted; women have gained suffrage; and social hygiene is part of our educational program. It was as a challenge to this law that the birth control movement arose and the National Committee on Federal Legislation for Birth Control was organized.

A question of health and income

First, let me emphasize that birth control is not abortion. Birth control is the conscious control of the birth rate by means that prevent conception. The essential facts are: First, it is the prevention of conception, not the interruption of pregnancy after conception has taken place. In preventing conception one does not destroy life as no life has been conceived to destroy. Second, it is control, not necessarily limitation. To control the birth rate is to control the size of the family and the spacing of births with some regard to the mother’s health, to the inheritance both husband and wife are able or likely to pass on to their children already born, to the father’s earning power, and to the standards of living the parents wish to maintain.

Ignorance of the methods of birth control has become an acknowledged factor in infant and maternal mortality, unemployment, child labor, slum conditions, overcrowding, illiteracy, and feeble-mindedness. Relief authorities are alarmed by the rapid increase in population among the destitute families of the nation. The high birth rate among the unemployed adds to our relief burdens. Parents who cannot support two or three children are unable to obtain contraceptive information under our present federal laws. Thus more children are brought into the world without any adequate provision for their future and with the resultant probability of an added burden on society.

The federal law, Section 211 of the Penal Code, was passed by Congress in 1873 during the last hectic hours of a hurried and confused session of Congress. The chief object of the legislation, as revealed by a study of the official records, was to stamp our the widespread traffic--particularly among the school children--in pornographic literature. As a matter of legislative history, it appears beyond question that when these laws were first enacted the members of Congress had no inkling that they were legislating on the subject of birth control. the drastic restrictions and penalties surrounding the subject of contraception under Section 211 and additional statutes passed subsequently are briefly outlined.

Inflexible rules

1. Section 211 of the United States Penal Code--Prohibits sending by, or receiving from, the United States Mails information or supplies pertaining to the prevention of conception. There are no exemptions. 2. Section 245 of the United States Penal Code--Also prohibits sending by, or receiving from, an express company or other common carrier information or supplies pertaining to the prevention of conception. There are no exemptions. 3. Sections 311 and 312 affect the territories and districts of the United States and are even more rigid in their prohibition, as the forbid even the possession of any article intended for the prevention of conception. There are no exemptions. 4. Section 305 of the Tariff Act prohibits the importation of articles pertaining to the prevention of conception. No exemptions.

The penalties for violation of these laws are of two kinds: a fine of $2,000 to $5,000; or imprisonment for five years. Either or both may be imposed.

It should be noted that these federal laws make no exemption in their prohibitions for literature of a scientific character. Nor have they made an exception for the physician in his regular practise, nor for hospitals and clinics, nor for patients of these hospitals and clinics, nor for the general and proper distribution of medical supplies. These laws have been the means of suppressing properly authorized scientific literature on the subject of contraception, while encouraging a vast underground "bootleg traffic" of unscientific and frequently dangerous methods by commercial agencies exploiting the needs of women.

Bonded or bootlegged?

Over 20,000 women die yearly in the United States from causes due to child-bearing. the number of deaths due to abortions each year is a blot on our civilization and a disgrace to any country. Dr. F. J. Taussig, in his article "Abortion in Relation to Fetal and Maternal Welfare" prepared for the Committee on Prenatal and Maternal Care for the White House Conference" estimated the death loss from abortion as 15,000 annually and made the following significant statement in his summary: "The increase in the number of abortions is noticed primarily among married women who have three or more children ."

This brings us squarely to the point. Women will limit their families in some way. Are they to be granted the right to reliable medical information from responsible sources, or must they continue to pay in this toll of broken and wasted lives for a legislative blunder in 1873.

The federal laws interfere with the importation of articles and with the transmission to this country of the results of the researches which are undertaken in other countries. Such materials and data would be of great assistance to the medical profession of this country in the proper functioning of their profession. Despite the enlightening decision of Judge Woolsey in the case of Marie Stopes’ book "Contraception" in 1932, that there is nothing in Section 305 to prevent contraceptive information from coming into this country, the Customs Authorities continue to prevent the importation of contraceptive materials. We are in constant receipt of communications from physicians frustrated in their attempts to secure materials from abroad, and at the present time a case is pending which deals with a shipment from Japan that has been denied entry to this country. This was sent by a Japanese physician to Dr. Hannah M. Stone, Medical Director of the Birth Control Clinical Research Bureau. The contraceptives in question represent a new departure from the present forms of contraceptives. If research proved them practical for American women, the cost would be reduced to an insignificant item and protection would be possible for countless women who cannot afford it at the present time.

In spite of the fact that under varying limitations the laws of forty-seven states permit physicians to give contraceptive information--as can be seen from the table on page 191--and in spite of the fact that there are in this country today 157 legally operating birth control clinics distributed over twenty-nine states, medically established, medically directed, and organized solely for the purpose of giving contraceptive advice, yet it is illegal to send an inquiring mother the address of either physician or clinic where contraceptive information may be obtained, even through she be poverty stricken or diseased.

Exemptions sought

The essential object of the birth control legislation recently before Congress is to exempt duly licensed physicians, hospitals, and clinics from the restrictions of the present laws. The inference has been, and is, constantly made that this bill would open the mails and common carriers to pornographic and obscene literature. Such statements wilfully misrepresent what this bill specifically intends to do. the bill leaves the law exactly as it is except that the subject of prevention of conception is taken from it and placed in the hands of the medical profession where it rightfully belongs. There is nothing in this legislation which forces the use of conception upon any individual or group who may object to is, but we do ask the members of Congress to give the millions of mothers who desire it, the right to have proper scientific information through the proper channels and from qualified medical persons. At the second session of the Seventy-third Congress bills "S.600" "H.R. 5978" were introduced by Senator Daniel O. Hastings of Delaware and Congressman Walter M. Pierce of Oregon to amend Sections 211, 245, and 312 of the Criminal Code, above quoted, by adding the following paragraph to each section:

Amendment

"The provisions of this section shall not be construed to apply to any book or information relating to the prevention of conception, or article, instrument, substance, drug, medicine, or thing designed, adapted, or intended for the prevention of conception, for use (1) by any physician legally licensed to practise medicine in any state, territory, or the District of Columbia, or by his direction or prescription; (2) by any medical college legally chartered under the laws of any state, territory, or the District of Columbia; (3) by any druggist in his legitimate prescription business; or (4) by any hospital or clinic licensed in any state territory, or the District of Columbia."

The passage of this legislation would automatically raise the ban which now prevents thousands of hospitals and public health agencies from giving this service in conjunction with their post-natal and pre-natal maternal care. It would enable relief agencies to ease the burden of millions of families of the unemployed by referring the mothers to responsible medical sources.

The claim is frequently made that with the unquestioned change in public sentiment during the past twenty years, birth control information is now accessible to all classes, inasmuch as the present laws are not enforced against physicians. Few assumptions are more erroneous. In effect, today we have class legislation on the subject of birth control. Those financially able to consult a private physician may obtain contraceptive advice--the value of which is dependent upon the thoroughness with which the doctor has been able to inform himself on the subject. Until recently, practically no medical college included the subject of contraception in its curriculum.

Not for the poor

One can readily understand that while a physician may choose to break the law in his private practise in order to obtain medical textbooks on the science of contraception for himself, and medical supplies for his patient, he may hesitate to involve institutions with which he is affiliated in a like disregard for the law. Consequently, it is usually more difficult for the need of this advice--to obtain it, since they are largely dependent on public hospitals and health agencies for medical service.

Judicial progress

Despite the tremendous change in public sentiment since 1914, the federal laws remain unchanged. All progress has been through judicial decisions or interpretations. In 1918, Judge Crane opened the first loophole in the legal wall surrounding the subject of contraception by ruling that in New York State, under Section 1145 of the Penal Code, physicians might legally give such advice for "the cure or prevention of disease." As a result of this decision the Birth Control Clinical Research Bureau was established in 1923 in New York City. The case histories of over 40,000 women are on record there, forming a remarkable analysis of the physical, economic, and emotional lives of these women. Every stratum of society and every religion is proportionally represented.

Another notable decision was handed down by Federal Judge Swan in 1930 when he indicated that the word "illegal" may be read into the federal statute preceding the word "contraceptive." Thus to prove a case against the sender of contraceptive material it is necessary for the government to show that the sender intended the material to be used for illegal purposes. The court further stated: "The intention to prevent a proper medicinal use of drugs or other articles merely because they are capable of illegal uses is not lightly to be ascribed to Congress."

In several cases dealing with indictments for mailing "obscene" matter under Section 211 the courts have recognized that what is "obscene" may depend upon the character of the addressee, and the manner of distribution, although there is nothing in the statute, apart from the elasticity of the word itself, to support such a qualification.

Legalizing the accepted

The proposed legislation in a large measure merely seeks to incorporate in the federal laws the exemptions that have already been judicially recognized. Congressional recognition is also necessary if the prevention of conception is definitely and finally to be dissociated from an atmosphere of furtiveness and obscenity, and openly handled as a legitimate medical problem.

Unquestionably today there is an overwhelming sentiment in the country for birth control. Many persons are in total accord with Dean Inge’s opinion that "the Comstock legislation in America has done unmixed harm. It is worse than useless to put down by law a practice which a very large number of people believe to be harmless, and which must be left to the taste and the conscience of the individual." However, until this widespread sentiment becomes more articulate, Congress will not act.

Birth control is not a panacea for all the social and economic ills in the world, but at least it is the most important immediate help which can be applied as a solution to the present problems of millions of men and women. Those who are practising birth control because they are fully conscious of the moral responsibility of bringing a child into the world, are laying the foundation of a vast experiment in race building which is without precedent in the history of mankind.


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