Margaret Sanger, "A Momentous Decision," 29 Dec 1936.
Source: "Alice Park Papers, Hoover Institution Archives, Stanford University Margaret Sanger Microfilm, Collected Documents Series, C16:398."
For an earlier draft, see Margaret Sanger Microfilm, Smith College Collections S71:0876.
The decision handed down by the United States Circuit Court of Appeals for the Second Circuit may be acclaimed as the close of one epoch and the dawn of another. It brings to an end the sixty-three year reign of muddle and tyranny inaugurated by the so-called Comstock legislation enacted in 1873, and clarifies once and for al future time the position and the rights of the American physician in the legitimate use of scientific contraceptives.
The most significant passages of this decision, signed by Justices Learned Hand, Thomas W. Swan, and Augustus N. Hand, cannot be too often quotes: “. . . While we may assume that Section 305 (a) of the Tariff Act of 1930 exempts only such articles as the Act of 1873 excepted, yet we are satisfied that this statute, as well as all the acts we have referred to, embraced only such articles as Congress would have denounced as immoral if it had understood all the conditions under which they were to be used. Its design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well-being of their patients.”
The distinction between therapeutic abortion and criminal abortion has been clearly established. We have long felt the injustice of a law which permits abortion when it is necessary for life and well being, but makes no distinction between lawful and unlawful contraception. This is all the most inconsistent since reliable birth control, in large measure, obviates the necessity for abortion.
From this viewpoint, the following excerpt from the decision is particularly significant. “The word ‘unlawful’ would make this clear as to articles for producing abortions and the courts have read an exemption into the act covering such articles even where the word ‘unlawful’ is not used. The same exception should apply to articles for preventing conception . . . It is going far beyond such a policy to hold that abortions, which destroy incipient life, may be allowed in proper cases, and yet that no measures may be taken to prevent conception, even though a likely result should be to require the termination of pregnancy by means of an operation. It seems unreasonable to suppose that the national scheme of legislation would involve such inconsistencies and should require the complete suppression of articles, the use of which in many cases is advocated by such a weight of authority in the medical world . . . The decree dismissing the libel is affirmed.”
As originally introduced in the Senate, the so-called Comstock Bill contained the words “except on the prescription of a physician in good standing, given in good faith,” but these words were omitted from the bill as it was ultimately passed. The decision of the Circuit Court of Appeals restores this implicit interpretation, sustaining the interpretation of other courts and tribunals. Thus while government officials have sought a literal interpretation of the Act of 1873 and the Tariff Act of 1930, involving the importation of contraceptives, the Bench has given a larger, more humane, logical, and far-seeing interpretation to the confusing statutes which have stood as obstacles to progress for sixty-three years.
It is not enough merely to assert the right of the physician and the scientist form the ethical point of view. His right and his humane duty must be established by the Courts, just as the inventor must establish his right to his patent. This ethical gain is now placed on the soundest basis. As far as physicians are concerned, the momentous decision of the Circuit Court removes restrictions in the use of the mails and the importation of contraceptives. The National Committee on Federal Legislation for Birth Control is gratified at this decision, which should be looked upon as the dawn of a new enlightened era. For the past five years, this Committee has concentrated its efforts upon the task of persuading Congress to enact an amendment exempting duly authorized physicians, hospitals and medical schools from the restrictions of the so-called “obscenity” statutes; but Congress has failed to recognize the importance of the logical distinctions now drawn with such sharp and surgical cleanness by the decision of the Circuit Court of Appeals.
Our Committee has vigorously and insistently sought to educate constituencies and to organize public opinion as to the necessity of liberating physicians and scientists from the shackles of the confusing and muddled Comstock statutes. Thousands of enlightened physicians have stood with us in this crusade. Time and time again many distinguished doctors have taken time from their crowded practices to testify in our behalf before Congressional hearings, and have testified in court proceedings in support of our position.
The future well-being of the country owes a debt of gratitude not only to these men, but no less to the attorneys-at-law who generously volunteered their services in battle after battle, in our struggle to establish basic rights.
The decision of the United States Circuit Court of Appeals demonstrates that these manifold efforts have not been in vain. In acclaiming this momentous victory, however, we must recognize that it is but one step forward. Other obstacles persist; other hurdles must be jumped. For the moment we may rest content to call the attention of the medical profession to this gift--this right which, let us not forget, can be maintained and developed in the service of humanity only by its use. Legal rights, not unlike bodily muscles, must be exercised to grow in health and strength.
Copyright, Margaret Sanger Project