Margaret Sanger, "United States House of Representatives Testimony on H.R. 5370," 8 Mar 1935.

Source: " Offenses Against the Postal Service; Hearings before Subcommittee #8 of the Committee on the Post Office and Post Roads, House of Representatives, Seventy-Fourth Congress, First Session on HR 154, HR 3252, HR 5049, HR 5162, HR 5360 and HR 5370. (Washington, D.C., 1935), pp. 45-49 and 95-100. MSMC15:902 ."

.Sanger testified against H.R. 5370, which provided a penalty for anyone who knowingly caused obscene matter to be delivered by mail. Only Sanger's testimony and questions addressed to her have been included.

Hearings Before Subcommittee No. 8 of the Committee on The Post Office and Post Roads

H.R. 5370

Statement Of Margaret Sanger, President National Committee On Legislation For Birth Control

Mrs. Sanger: I think that this bill, 5370, is unwise legislation. I think it is not only unwise as it stands without the amendment, but it can be dangerous, it can be vicious, it can be menacing to the highest thought and educational development of the country.

Now, there has been a constant talk in the former hearing which I have read that this bill pertains only to indecent, obscene literature, but I have a copy of a letter that accompanied, or rather asked that this bill be drafted at the request of the Postmaster General in which it is indicated, and I think this letter is on record, in your committee, that one of the objects of this bill is to make it easier to prosecute those who send unsolicited literature advertising the sale of contraceptives so that very definitely this law does pertain to that one section which is only part of the law, so that I think you cannot disclaim, as has been intimated, that the objection is, only the use of pornographic or indecent literature. We should consider that this law was passed by Congress 62 years ago, classifying every known thing relating to sex in an obscenity clause, abortion, prevention of conception, with no exemptions for members of the medical profession to use the mails, with no exemptions for literature that may be scientific, that may be medical, or which may be considered art.

Now I am particularly concerned and I have been for the past 20 years, in trying to shake this law apart, and why I am here today is because I believe that the work of 20 years has been successful to a certain degree in raising the level of intelligence regarding this question of what is obscene throughout the country today and 20 years ago. When I started this movement as a trained nurse I found the post office inspectors and officials thought everything was obscene and indecent. We had to educate a great many of them. I have had to patiently educate a great many of these people and shake this thing apart and make them realizes that certain things weren’t indecent and obscene or pornographic. We are the only country in the world today hat has classed contraception with obscenity. We are the laughing stock of the world so far as this particular law is concerned and now we are trying to tighten it up and make it even more difficult than it ever has been before. We have been gradually trying to get the people to look at this subject in the right way, to cultivate their minds, as to what is decent and what is obscene, and what is considered scientific.

Now, I believe too, that this law should have the exemption for physicians and hospitals and public-health agencies, medical schools, since after all the doctors have been unable to teach contraception in their medical schools, as Dr. Willson will tell you, because this law has been operating for the past 62 years. It has been said that the Post Office Department does not intend to investigate honorable high-minded members of the profession; some people say, no, they are not going to trouble them. Of course, any law-abiding doctor does not want to do anything to cause loss of life directly or indirectly, but due to these laws that you are asking to have amended to make them more vicious and dangerous, the damage that this law has caused is almost impossible to compute in human lives, in the death of women of child-bearing age.

It has also been suggested that this law is similar to the Mails Fraud Act. I do not think that is a fair comparison because after all fraud is something that is more or less static. I know what fraud is, what the intention of that act is. But obscenity is not a static thing. It moves with the years. it moves with intelligence. It changes with geographical boundaries. I was in Japan a few years ago with my small boy, 13 years old, and he looked bigger than 13, looked like a grown man, and as is the custom in our country, a mother going with her boy to take at train, he kissed me in getting on the train, and as you know, kissing is not practiced and is regarded as indecent or immoral in Japan, and I assure you it was with great difficulty that we escaped mobbing because it was an offense to the people of Japan to have my son kiss me in saying goodby. That is just an illustration of what can happen with geographical boundaries in construing what is decent or indecent.

I am acquainted with this law, and with all due respect to the gentleman who is trying to amend it with bill H. R. 5370, and the one who drafted this bill, and I know the great harm it causes, because I have been watching this thing. I know that ideas of obscenity differ. There are marvelous prints that have been prohibited from coming into this country from Japan, prints that were hundreds of years old, and because of a lack of understanding on the part of the Post Office officials who do not know the difference between obscenity and art. I say it is vicious. I say you should not bring a person out of New York or Chicago or some place else into a smaller community where the minds of your rural judge or officials may be more obligated to those in power than in New York, our large city. I consider that is an unfair thing, a dangerous thing; I think it is dangerous to the growth of the country, of the community, and that is why we are trying to do something about this. Parents are trying to educate their children in the concept of the sanctity of life and of the marital relations today. However, if we are to be subject to Post Office officials, to an inspector who may have a very low-class mind himself, if we have to take time to educate those people so that parents can have what may be considered decent, I think it is a very dangerous situation.

There is much confusion as to what is obscene and what is not obscene. I have pamphlets and books here before me on which we have tried to get information from the Post Office officials. I, of course, am primarily concerned with this clause of the prevention of conception. Some of us who study the subject realize that there are many methods of contraception. This law, as I say, and as the doctors will tell you, has made no exemption for them. But in spite of this law we have painfully carried on and it has taken years to try to develop something so that we could help hundreds of thousands of mothers throughout the country because, unlike the Federal law, in most States the State laws are not prohibitive. There is only one State in the Union where the same tightness of the Federal law is operative in the State, and that is Mississippi. What other States do is to give some leeway o the medical profession. Methods are different as we find them all over the country, and we have tried to find out from the Post Office Department if there has been a change of attitude and if a physician could legally receive through the mails books and literature pertaining to the subject of conception. Here is an excerpt from a larger book on contraceptive practices brought out by a physician and we asked if this could go through the mails to doctors and medical schools. The decision was “no,” that it was non-mailable. This is a scientific medical piece of literature and word has come from the Post Office Department that it is not mailable.

On the other hand, here is another piece of literature that goes through the mails and it is called “Rhythm,” with an explanatory calendar enclosure. We asked about this book. This book happens to have “ecclesiastical approbation.” This book is stated by the Postmaster General to be mailable. One of these is unmailable to physicians, but this one, “Rhythm,” is going to the public through the mails. I say this is unfair. I say that this thing 211, says, any information showing how or by what means one may prevent conception is illegal, and when you open this book you will find that there is a calendar given here to show the exact hour when there may be a period of sterility when marital relations may occur without pregnancy. I consider this is far more dangerous to the welfare of the country and to womanhood, and much more immoral.

Mr. Dobbins: May I inquire, has the mailing of that been expressly approved by the Post Office?

Mrs. Sanger: Yes; I have letters here showing that. Not only that but there is a little calendar that may be purchased for a dollar, to show how this theory may be worked, presumably making it easier and simpler, and there is no question about it. But this other medical book cannot be carried to the doctors because of the opinion of the Post Office officials. I say this thing is unfair, and I consider it to be very unfair to leave it in such a state. Here is another book, “Biological and Medical Aspects of Contraception,” by scientists and medical men and women. This book happens to have both of these theories. It happens to be a combination because it as a summary of a conference that discussed both of those theories. This is all in the realm of medicine and science, and when this book was presented to the Post Office Department, finding that they had passed the decision on one method showing that it was non-mailable and on the other that it was mailable, and that this book contained both methods, they said they were not in a position to give a decision.

I think It is unfair to leave this thing in this loose way and if you are going to tighten up on what is so-called “obscene,” I think we ought to say what obscenity is and I think we ought to take into consideration the attitude today compared to what it was when this law was passed 62 years ago. There has been a great change of public opinion. There is a greater conscience and a greater desire on the part of everybody, in my estimation, to have more knowledge to make the things of life a little more beautiful, and I say if we keep on putting off cultivating this knowledge, classifying scientific and medical knowledge in the obscenity statute, we are just simply going to continue regarding the subject as obscene and making it more difficult to enforce the law than ever before. H. R. 5370 will serve to strengthen the present confusion between contraception and pornography. It will affect publishers of what may be termed decent literature, both books and magazines, as well as actual pornography. If publishes are able to bring out and distribute anything dealing with the question of sex or marriage or contraception, it will not be by right but by privilege of the Post Office authorities. History has taught us that privilege is closely associated with the abuse of power, with tribute and with graft.

Twenty years ago I was indicted through action brought by the Post Office officials on 9 counts. I had not sent any information through the mails except a discussion of the question really with less frankness than I am discussing here with you today, and yet on nine of those counts I was indicted.

Thank heavens there were a few judges in New York who had more intelligence than the Post Office officials or I would have been spending 45 years in jail if I had been depending on the attitude and intelligence of a Post Office official. But there was a judge, and several Federal judges in New York, who looked upon this in a different way, and that is why I am here today. We have welcomed a finer attitude on the part of Federal judges in not lowering the level by bringing these men who write books or have information to a narrow circle where there is a possibility of indictment.

I do not think the Post Office Department should recommend this bill without the amendment. I ask you gentlemen to consider this amendment sincerely, so that at least we will know that certain people are exempt from this law when they are qualified to be exempt, as I believe physicians and hospitals should be.

Mr. Ashbrook: May I inquire of you when an opinion was rendered by the Post Office Department on the first little book, that it was mailable?

Mrs. Sanger: Mailable; yes.

Mr. Ashbrook: When?

Mrs. Sanger: February 20, 1934, and there have been several since.

Mr. Ashbrook: And when was the larger book decided not mailable?

Mrs. Sanger: March 9, 1934. You are welcome to see them all.

Mr. Goodwin: Is the subject matter similar in the two bulletins?

Mrs. Sanger: No; they are not similar. One is this little book that pertains to the period of fertility or sterility in the menstrual cycle of the female. The other deals with scientific, chemical, and mechanical contraceptives.

Mr. Goodwin: Would that be the reason for the decision?

Mrs. Sanger: It may be, as far as the law is concerned, but it says any information. The law, section 211, definitely says, any information.

Mr. Goodwin: H. R. 5370 is the obscene bill, so to speak. You are not against that bill?

Mrs. Sanger: I am not against that bill but I think without the amendment I should be. I think we need an amendment in all fairness to the whole public attitude throughout the country.

Mr. Dobbins: With respect to the distinction between these two proposed pieces of mail matter, did not the Department make a distinction that one related to facts and the other mechanical, chemical, or actual acts of contravention?

Mrs. Sanger: No; that was not made clear in this. Of course, the law, section 211, does not make that distinction.

Mr. Dobbins: It uses the word prevention, not avoidance.

Mrs. Sanger: Yes, sir.

Mr. Dobbins: With reference to the amendment proposed by our colleague, Congressman Pierce, you have read that?

Mrs. Sanger: Yes, sir.

Mr. Dobbins: Do you believe in legalizing the promiscuous distribution of information, advertisements, concerning contraceptives throughout the mails to unsolicited persons who have not solicited that information, school girls and boys?

Mrs. Sanger: Let us clarify that.

Mr. Dobbins: That can be easily answered.

Mrs. Sanger: The amendment that Mr. Pierce submitted is very definite in that it says, “physicians and hospitals.”

Mr. Dobbins: Mailed by them.

Mrs. Sanger: Or under their control.

Mr. Dobbins: You know that nearly all the people we indict for sending this stuff through the mails are physicians who cannot secure a legitimate practice, and retain their license and go into the advertising business, sending their stuff through the mails.

Mrs. Sanger: I am not sure of that. Dr. Willson can answer that. Regarding soliciting, how are physicians to know the means or methods that a laboratory has found or discovered? How can a physician know unless he is circularized?

Mr. Dobbins: I cannot see any objection to sending from one physician to another or from any source to a physician, but I am thinking of sending these advertisements regarding contraceptives to those who are in the adolescent age and who are eager to get such information. We have all passed through that and we know the human attitude.

Mrs. Sanger: Quite right. Exactly; that is why I believe this amendment that Mr. Pierce is asking today will take care of that.

Mr. Dobbins: Do you not think it out to be confined to men like physicians, nurses, and organizations of that sort, rather than promiscuous distribution?

Mrs. Sanger: Absolutely.

Mr Goodwin: Where do nurses come in on this?

Mrs. Sanger: Nurses are not mentioned in the bill at all.

Mr. Dobbins: This related only to mails by doctors and lets any doctor licensed mail it to anyone, to any list that he has purchased from a magazine or somebody, and permits him to distribute it through the mails.

Mrs. Sanger: I think Dr. Willson will testify on that when you get to him.

Mr. Dobbins: We have them in great numbers.

Mrs. Sanger: The medical profession takes care of that themselves.

Statement of Margaret Sanger-- Resumed

Mrs. Sanger: I just want to say, so far as birth control is concerned, that we have not presented a case for it. We have brought in a few insignificant and conservative amendments in connection with the whole question.

From those who have opposed this amendment this morning I gather than you have heard in a way only one side of the question. There is one point that Monsignor Ryan made that needs, in my opinion, to be clarified. Again and again he referred to the declining birth rate. He confused it with stationary or declining population. The population of the United States shows that population has increased naturally because we have had very little immigration since 1914 and scarcely any since 1924. We say that the population growth is a natural one. We have increased since 1920 and up to 1934 20,000,000.

Mr. Ashbrook: How does that compare with the previous decade, if you know?

Mrs. Sanger: The birth rate has come down, but it does not mean so much because there are more thousands to compute the figures on. It is like a person saying one is poor because he gets only 5 percent and another saying he is rich, because he gets 50 percent. We cannot stop there--it is 5 percent on what, 50 percent on what? Five percent on $1,000,000 and 50 percent on $1,000 are very different.

Our birth rate goes down because there is a higher regard for the sanctity of life. The death rate has declined while the birth rate has gone down. We have to compare those where the birth rate and the death rate rise, as in China and other such countries, and those where the birth rate and the death rate have declined. That does not mean a decline in population.

We have a better and a stronger national consciousness in this country than we had 40 years ago. It is much stronger. One feels it in New York. You feel that the whole country of 120,000,000 population is more centered on what you are doing today than it was 10 or 12 years ago. It is growing as our population grows slowly. That is the thing I want to check.

Mr. Dobbins: Have you any figures to serve as a comparison between the United States and other countries covering the birth of infants who live to the age of 1 year?

Mrs. Sanger: Yes; our infant rate has declined. It has not, however, declined so rapidly as has England’s. England, Australia, and Holland have very low infant mortality rates. England today has a lower birth rate than France. France has frequently been referred to as a country of stationary population. It is not stationary, but it has been growing slowly. It has not had organized birth control. They have based upon that one neighbor has told another, what one person has told another, without its being scientific. Everybody has had a formula to give to somebody else.

Holland has organized, and she has a growing population. I studied this question there in 1915. The death rate has gone down more rapidly than the birth rate. Nurses go into the homes there when a child dies and find out the cause of death. They help to space the birth of children. They advise parents not to have children until they can afford them.

We are the only country that confuses birth control and obscenity. Only two other countries, Italy and France, make the sale of contraceptive articles illegal.

Mr. Higgins: Would you look with favor upon a proposal that this matter be clarified by embracing it all in one law?

Mrs. Sanger: Yes.

Mr. Higgins: Could you persuade Mr. Pierce to make a change accordingly?

Mrs. Sanger: In making a law, in tightening this, we have to undo what you are doing. If you tighten this and let it go, and not allow physicians and hospitals to be exempted from the law, we shall be going around in a vicious circle trying to undo such legislation as you are trying to pass with this bill.

Mr. Higgins: By introducing a separate bill embodying Mr. Pierce’s idea, all that you desire would be accomplished, would it not?

Mrs. Sanger: Do you mean in straightening out the three codes?

Mr. Higgins: Yes; the confusion. That has been tried, has it not, in this present Congress?

Mrs. Sanger: No; all we have asked is an amendment on three section, not only section 211. but other sections.

Mr. Higgins: As a matter of fact the proposed amendment to section 211 has been there in the Committee on the Judiciary for some time and has been defeated?

Mrs. Sanger: Not so far; we still have hopes.

Mr. Dobbins: The legislation there was not as restrictive. I think that legislation allowed the dissemination by--

Mrs. Sanger: In that bill physicians, hospitals, and clinics are exempted from the present statutes. We are not of the opinion that the free dissemination of information should be promiscuous.

Mr. Dobbins: I think you allowed the information to be sent to them by anybody. A physician might establish himself and send the information to anybody in the United States under that bill.

Mrs. Sanger: I think there is a distinction in those who should give information and those should get it. The person giving it should be properly qualified. That is my quarrel with this book on the Rhythm. I feel that eventually we might find a period of sterility in the cycle of the woman’s life. It is said that premature abortions have increased since this book has been on the market.

I am amused to hear Monsignor Ryan and Miss Regan talk in this absurd way when their own book and another such book with imprimatur by Cardinal Hayes is sold at random. I have sent for them. I have sent young girls from our office to Catholic book shops to get these books. The same effect is obtained by the safe period and a means of contraception. I think it is inconsistent to come here and object when we are simply trying to place this matter in proper hands, so that there will be some proper control over the dissemination of this information.

Mr. Higgins: Would you favor an amendment to existing law that would be the Rhythm and put the word “avoidance” in the same classification as the word “prevention”?

Mrs. Sanger: It all should be in the hands of qualified persons.

Mr. Higgins: Would you favor a law to bar that book from the mails?

Mrs. Sanger: I would have to think about that before answering. The idea of avoidance and prevention is splitting hairs. I am not an attorney and I should have to think about that before answering. But I will say that many of the points brought out here seem perfectly absurd.

Mr. Higgins: It is my impression that the chief post-office inspector, Mr. Aldrich, would do a commendable thing for the Catholic Church if he barred that damn book the Rhythm from the mails.

Mrs. Sanger: As I remember, Dr. Ryan stated that the Associated Press and the United Press had put out statements about the increases of the families on relief. One is by Professor Bossard, University of Pennsylvania; another by Professor Sydenstricker and Professor Perrott, of the Milbank Memorial Fund, and another by Professor Stouffer, of the University of Wisconsin. The studies cover three sections of the country and show that the birth rate of families on relief is from 45 percent to 60 percent higher than the births in families not on relief.

A transcription of a New York Times article, "High Birth Rates Worry Federal Emergency Relief Administration Heads," of May 10, 1935 and a Time article, "Relief and Babies," of April 8, 1935, were omitted by the MSPP editors.

Mr. Higgins: Is the amendment to section 211, which amendment is now before the Committee on the Judiciary, as broad as this?

Mrs. Sanger: It is broader but similar to this. It allows dissemination of the information by hospitals, physicians, and clinics.

Mr. Higgins: You are not concerned with the same confusion that concerns Mr. Ernst?

Mrs. Sanger: This book called “The Rhythm” is allowed to go through the mails, while other related information is considered obscene; and I think that is a confusion. This is the opportunity to take the first step to clear this confusion; and that is my interest.

Mr. Dobbins: You say you see no distinction between The Rhythm, which is a method of avoidance, and a means to prevent?

Mrs. Sanger: The law says “any information, directly or indirectly.”

Mr. Dobbins: It links that up with its reference to contraceptive devices?

Mrs. Sanger: It does. Another section says drugs, but does not mention information.

Mr. Dobbins: In other words, whether it be avoidance or prevention through mechanical devices, you see no distinction in morals?

Mrs. Sanger: No; absolutely not, insofar as morals are concerned. One is scientific, and the other is not.

Mr. Dobbins: One involves having sexual intercourse and the other involves not having it.

Mrs. Sanger: The scientific point is that intercourse at that time, when nature has closed her doors, might be a detriment physiologically and physically to the woman.

Mr. Higgins: It might be or is it known to be?

Mrs. Sanger: It might be; when nature has closed the doors of the woman’s reproductive life, there is a question. Even the lower animals will not allow cohabitation at such times. Why should we have a law to have intercourse at that time and refuse scientific means when nature has not closed the door.

Mrs. Sanger: Another such book states, “Written by A. J. Scanlan, S.T. D., approved by Patrick Cardinal Hayes, December 8, 1932.” If that is not approved by the Catholic Church, what does the English language mean? Then it is a fraud--if church papers advertise these books that are not approved by the church.

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