Margaret Sanger, "Legislation: Confused and Tangled," Feb 1932.
Source: " Church and Society, Feb 1932, pp. 3-4 Margaret Sanger Microfilm, Smith College Collections S71:0402."
For earlier drafts see Margaret Sanger Microfilm, Collected Documents Series C16:0329, Smith College Collections, S71:362 and 354, and Library of Congress Microfilm 48:0167B.
For nearly sixty years, the federal laws on obscenity have held sway over our literature, art, science and medicine. These laws control the use of the U.S. Mails and all common-carriers including express companies. The Federal obscenity laws class prevention of conception and abortion with pornography, filth and indecency. Facts or knowledge concerning either of these two medical subjects do not belong there.
First, let me emphasize that the prevention of conception is not abortion. It is not classed as indecent in other countries. It is not classed as indecent in many of our own states. A study of our state laws reveals this.
The Federal law, Section 211 of the Penal Code was passed by Congress in 1873 at the end and on the last day and during the last hours of a hectic, hurried, confused session of Congress. The instigator of that law, Anthony Comstock, was as ignorant as he was fanatical. His idea was that everything relating to sex was obscene.
The Federal laws make no exceptions in their prohibitions for literature of a scientific character. Nor have they made an exception for the physician in his regular practice, or for hospitals or clinics, or for patients of these hospitals or clinics, or 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 because no publisher will jeopardize his freedom or risk his reputation in publishing books when there is a law against their circulation.
These laws interfere with the importation of articles and of the results of research which is undertaken in other countries. Such data and such results of laboratory research would be of great assistance to the medical profession of this country in the proper functioning of their profession.
They make it an offense subject to a penalty of five years in prison and $5,000 find for anyone to send through the U.S. Mails even the address of a physician, hospital, or birth control clinic stating where contraceptive information may be obtained--this despite the fact that there are already laws in many states enabling physicians to give oral advice to patients in their regular practice, and there are in this country today over 80 legally operating birth control clinics distributed over 12 states. These birth control clinics are medically established and medically directed, and have been organized solely for the purpose of giving contraceptive information by the medical profession.
The laws in the 48 states, while not so arbitrary, are nevertheless confusing, and many conflict with the Federal laws.
1. Twenty-five states have obscenity laws which fortunately have not classed prevention of conception with abortion. Here physicians and
medical centers, hospitals, welfare agencies could legally establish birth control
clinics and instruct mothers in safe methods of contraception for economic and
social reasons as well as for health. These states are
Alabama, Arkansas, Delaware, Florida, Georgia, Illinois, Kentucky, Maryland, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wisconsin.
Many of the other states while including the term prevention of conception in the
obscenity laws make some exceptions as to medical colleges, medical literature or
medical practice. These states are
Colorado, Indiana, Iowa, Ohio and Wyoming.
Nevertheless, the Federal law would make it a crime for doctors or anyone else to send through the U.S. Mails such books or publications specifically exempt under the laws in these five states.
2. Eight other states prohibit the publishing of any notice or advertisement or
distribution of information or material to prevent conception. Oral information not
prohibited. These are
Arizona, California, Idaho, Louisiana, Massachusetts, Montana, Nevada and Washington.
3. Three states allow teaching of contraception in chartered medical colleges and
publication of medical books, (but they do not mention practitioners of medicine).
Kansas, Missouri and Pennsylvania.
4. New York and Minnesota allow physicians to give information and prescriptions for supplies “for the cure and prevention of disease.”
5. New Jersey grants exemption to physicians who find a “just cause” for advising and instructing patients.
6. Maine and Michigan are two states prohibiting the publication and distribution of information (not material) relating to prevention of conception.
7. Mississippi prohibits the publication of information or the giving of oral information relating to prevention of conception.
8. Lastly and uniquely, the one state of Connecticut makes itself ridiculous by prohibiting the use of any article which prevents conception.
Hanging over all these tangled and confused laws is the Federal statue, Section 211 of the Penal Code, which forbids the use of the mails to the doctors in those respective states where they are legally allowed to give advice in public or private practice.
Furthermore, under the present laws, it is a crime for me to send a mother situated in any of these states the address of any clinic lawfully operating in that state, even though such an individual may be poverty stricken or diseased, and even though she may have a right under that state law to have this information for her health and for her family happiness.
Over two generations have passed since the time that law was enacted. Women have gained suffrage; colleges and universities now teach scientific, biological facts of life to students; social hygiene is part of our educational program; yet, nothing has been done by the medical profession, the clergy, women’s clubs, etc., to take a dignified stand on cleaning up these archaic laws. It was as a challenge to these laws that the Birth Control movement arose and it is to amend these laws that the National Committee on Federal Legislation for Birth Control was organized.
There is nothing to be gained by keeping on the statute books laws that are known to be inimical to personal health, family happiness and racial development. These laws have already done untold harm. It is time that we replaced them by social legislation befitting the twentieth century.
Copyright, Margaret Sanger Project