Birth Control/1930s Discussion Mar/Apr 1997

Query From Barbara Boyink Sears 28 Mar 1997

I am currently teaching U.S. Women's history survey course at Western Michigan University. In preparing my notes for the depression I ran across a reference to a 1936 court case that weakened and/or struck down federal restrictions on doctors providing contraceptives. I wonder if anyone in the group knows what specific case this was (Mintz and Kellogg, Domestic Revolutions, where I got the source doesn't cite the specific case)?

My students also came up with another interesting question that I wonder if people could help me out with. How did women get contraceptive devices if technically they were illegal under the Comstock Act? Thanks for your help.


>From William B. Turner 31 Mar 1997

Remarkably, on birth control issues, I saw no mention of Linda Gordon's _Woman's Body, Woman's Right_, which is still very useful, perhaps definitive in some ways, after 20 years.

In my own research on birth control advocates in Nashville, I found that the Tennessee Birth Control Bureau was dispensing contraceptives under medical supervision during the early 1930s. The proprietor(?), Susie Kirtland Green, had met Margaret Sanger and echoed Sanger's justifications for using "family planning." Green closed the Bureau after three or four years and began selling "Fem-A-Gyn" contraceptive suppositories, for which she used basically the same recipe that Sanger had included in a pamphlet distributed via the Brownsville clinic in Brooklyn as early as 1916. Green apparently made a living selling her suppositories via mail order until the mid 60s, when she dies. The only legal problems she ever had were with the FDA, which of course became interested when they found out that Green was basically making the suppositories in her kitchen. See William B. Turner, "Class, Controversy, and Contraceptives: Birth Control Advocacy in Nashville, 1933-1944," _Tennessee Historical Quarterly_ 53/3 (Fall, 1994): 166-79.

>From Margaret Shannon 31 Mar 1997

The short answer, I fear, is that they obtained contraceptives the same way people buy illegal things today. But that doesn't really answer your student's question.

In _Massacre of the Innocents_, a book about infanticide in England during the industrial era (pre-WWII), there is a photograph of an advertisement page from a newspaper, containing adverts for various pills and potions intended to relieve "female irregularity." So we know that abortifacients and purported abortifacients were peddled under innocent-sounding names.

Somewhere else, I remember reading that many contraceptives of the late nineteenth century were homemade--small sponges soaked with lemon juice or vinegar, for example. Surely, in absence of other choices, these were used. Florence King, in her satire (which is even more satirical to know that it is really true) says many Southern women used Coca-Cola as a contraceptive douche. Theoretically, it really can work, but only if used promptly. And, of course, there were always wise women and midwives who performed surreptitious abortions. Coat hangers and knitting needles, like Lydia Pinkham Pills, seem rather innocuous.

I also wonder, after having been startled by the widespread nature of infanticide in those days in England, that perhaps infanticide may be a dirty little secret in the US as well. I suppose one would start by looking at figures for babies stillborn or failing to thrive. I also wonder if infanticide changed during the Depression, perhaps rising to reflect parents' greater desperation.

I'm not an expert in this area, by any means. But if one of my students had posed the question, this is how I would have answered. I'd be interested to hear your thoughts on this.

>From Cynthia Harrison 31 Mar 1997

The case you want is U.S. v. One Package, U.S. Court of Appeals for the Second Circuit, Dec. 7, 1936. The opinion upheld a district court ruling that the 1873 Comstock Law could not be used by the gov't to seize birth control devices shipped to doctors. (See David Garrow, _Liberty and Sexuality_, pp41-42.)

>From Don Maroc 31 Mar 1997

Can't help directly with the 1930s, but I can tell you that as a young reporter on a Connecticut daily I found out the limits of discussion of contraceptives. It was illegal for a doctor to discuss or counsel anyone in the use of contraceptives and, of course illegal to prescribe them. There were a few pharmacies that sold condoms, diaphragms, and spermicidal gels-but they were all well hidden behind the counters and had to be asked for specifically. I found out that this was a subject we were not allowed to write about in the newspapers. If this was the case during the mid-1950s, I'm sure it was at least as strictly adhered to during the 1930s.

>From Linda Ruggles 31 Mar 1997

I think the case which you are looking for is United States v. One Package of Japanese Pessaries. Judge Augustus N. Hand of the federal Circuit Court of Appeals for the 2nd Circuit Court presided over this case. It was a case over the importation of a birth control device which was held to come under the Comstock Act of 1873 and the Tariff Act of 1930, Section 305. Hand noted that the original legislation which led up to the passage and enactment of Comstock used language which stipulated "unlawful" abortion and implied that there were both legal and illegal abortions. He went on to state that there should be a similar distinction made regarding contraceptive measures. In the decision he stated that it was illogical to accept that "...abortions, which destroy independent life, may be allowed in proper cases, and yet that no measures may be taken to prevent contraception even though a likely result should be to require the termination of a pregnancy by means of an operation. It seems unreasonable to suppose that the national scheme of legislation involves such inconsistencies and requires the complete suppression of articles, the use of which in many cases is advocated by such a weight of authority in the medical world."

Morris Ernst, one of the lawyers involved in the case, later wrote of Hand's decision: "It was significant that nowhere in its opinion did the court specifically state under what circumstances a doctor was free to prescribe a contraceptive. The inference was clear that the medical profession was to be the sole judge of the propriety of prescription in a given case, and that as long as a physician exercised his discretion in good faith, the legality of his action was not to be questioned." (as quoted in Kennedy, David M. _Birth Control in America: The Career of Margaret Sanger_(New Haven, Yale U Press, 1970. p250). I hop this is helpful to you and your students.

>From Joseph Tohill 31 Mar 1997

I don't know if this will contain what you are looking for, but you might try David Kennedy's book on Margaret Sanger....I do remember that he discussed a lot of the legal cases involved in the birth control movement's fight vs. Comstock. Your student might also find some helpful stuff in there.

>From Johanna Schoen

The case you mean is probably "United States v. One Package of Japanese Pessaries." The case was brought by Sangerists before the US Court of Appeals which ruled that medical prescription of contraception for the saving of a life or promoting well-being is not a condemned purpose under the Comstock Act. This decision, arising from the confiscation by custom officials of a package of Japanese pessaries sent to Dr. Hannah Stone at Sanger's clinic, effectively legalized birth control because it did not require the presence of disease to legitimate contraceptive prescription. It opened the mails and interstate commerce to birth control information as long as that information passed through the hands of a physician. See Carol McCann, _Birth Control Politics in the United States, 1916-1945_, (Cornell U Press, 1994), pp.75, 216. The citation for the case is United States c. One Package of Japanese Pessaries, 13 F.Supp.334 (E.D. N.Y. 1936), aff'd 86 F.2d 737 (2d. Cir. 1936).

As to the second part of your question: many women indeed didn't get birth control information or contraceptive devices, although many others did despite the Comstock laws. The Comstock laws "only" prohibited sending of devices/information via the mails, but a number of states had state laws prohibiting the dissemination of birth control information. However, not all states had such laws. Anyways, some women were fortunate to get information from their physicians, some had access to private birth control clinics (I know there were a couple of clinics in Detroit) run by physicians or nurses. Sometimes one could obtain condoms in more sleazy establishments. And many people used less effective means, withdrawal, douches. Hope this helps.

>From Kriste Lindenmeyer 31 Mar 1997

Each state had its own version of the Comstock Laws (anti-pornography laws that usually included the dissemination of birth control information). But, by the 1930s most state courts (and some legislatures) interpreted these laws to exclude the distribution of birth control information by physicians for "health reasons--or to prevent disease." Of course, in practice, "health reasons" could include mental as well as physical health. This simply meant that women who could afford to seek birth control information from private physicians had a great advantage over poor women. Through the 1920s the establishment of birth control clinics for poor women was hindered by conservative interpretations of the Comstock Laws throughout the 20s. The Cincinnati Maternal Health Clinic (a physician-run clinic), was only the ninth such birth control facility in the U.S. in 1929.

The onset of the Great Depression, and the view that birth control might be a solution to the desperate circumstances of many families, contributed to the spread of birth control clinics in the 1930s. In addition, the American Medical Association endorsed physician-distributed birth control in 1936. This contributed to the more open dissemination of birth control information (note, this was not a court case--simply an AMA change in policy supported by most state authorities).

A federal court case in 1930 allowed advertisement and shipment of contraceptive devices for legal use--as noted above, in most states this meant "for the prevention of disease." Only Massachusetts and Connecticut maintained overall bans---overturned in _Griswald v. Connecticut_(1965). But even in these states, the letter of the law was often ignored before 1965.

It is also important to note that abortion was a fairly common (but often dangerous) birth control method even before the 1973 _Roe v. Wade_. The Children's Bureau estimated that 1 out of 4 pregnancies ended in abortion (induced or spontaneous) and that botched abortion was the single most common cause of maternal mortality (1931 CB study on Maternal Mortality in 15 states).

Looking at birth control in Cincinnati in the 1920s and 30s, many interviewees suggested that women often relied on the local pharmacist for contraceptive information. Unfortunately, scholars have done little study of this aspect of birth control. Rural women had less access to such information.

Sterilization was another form of birth control used in this period. Sometimes voluntarily, but mostly against a woman's (or man's) will. The Supreme Court upheld the constitutionality of forced sterilizations in 1927 in _Buck v. Bell_.

Margaret Sanger was a target because she was NOT a physician. But birth control information has been widely distributed by physicians (and by word of mouth from one woman to another) long before _Griswald v. Connecticut_.

>From Staci R. Anson 31 Mar 1997

Last semester I spent a semester on an independent research project entitled: Birth Control-the Personal and the Political. The paper dealt with the history of the birth control movement in the 1920s and the arguments for the use of birth control (i.e. eugenics, to help the poor, to help mothers with diseases, to combat venereal disease in world war I and the rest of the military, to stop the needless deaths of illegal abortions, etc...) Although birth control was technically illegal under the Comstock Act, Margaret Sanger, as well as others, did run birth control clinics since the teens. Advertisements in newspapers did not use the word contraceptives but offered a multitude of crack-pot douches and other remedies meant for birth control use. Birth control devices were also given out illegally by doctors to the patients who had the money to spend. Pessaries, condoms, and other devices had been around for hundreds of years and were widely used in other countries as well and made their way into the U.S. If you knew what to look for, you could find contraceptives in drug stores, or other shops. Try looking at th women's history/birth control history book by Linda Gordon entitled: _Women's Body, Women's Right: A Social History of Birth Control in America_. Good luck.

>From Lesley Hall 01 April 1997

According to letters from New Zealand birth controller Ellie Rout to Margaret Sanger in the late 1920s, birth control devices were widely on sale in New York: ER therefore drew the conclusion (which MS contested) that the latter's attempts to get the laws in the various states modified/repealed were misguided. (This correspondence is described in J. Tolerton's _Ettie_ on Rout's career, though I actually discovered this looking at the Sanger correspondence at Smith College.) MS claimed (rightly, I think) that rather dubious retailers selling products whose quality testing was probably minimal was no register of progress, and that for real advancement laws inhibiting the dissemination of info re: b-c had to be repealed. I have a vague idea (as a historian of Britain rather than the US, but having looked at correspondence between e.g. Marie Stopes and specific individuals wishing to purchase her books/b-c devices) that the Comstock law specifically prohibited the *sending via the mails* of b-c info or devices (Stopes sometimes sent her books in sections to elude detection).

>From Jeanette Keith 01 April 1997

Great summary of info re: contraception! I'll use it in class tomorrow. One question for clarification. It was my belief that as of the 1920s condoms became the most-used "contraceptive" in America and were legal since they were sold as prophylactics against disease. Is this accurate? If so, this would have meant that contraception was a man's responsibility. (This was held to be true when I was a teenager in the late 1960s--condoms were sold behind the counter, one had to ask for them, and this was considered to be the man's responsibility. Adolescent males in TN used to carry condoms in their wallets; the circle was visible through their jeans, and used to cause great hilarity among us girls.)

Second, I had understood that the use of condoms dated to the army's anti-VD efforts in WWI. Accurate or not?

>From Debbie Nathan 02 April 1997

In the discussion about contraceptive usage during the 1930s, it's worth remembering, as Leslie Reagan in _When Abortion Was A Crime_(U. of Calif. Press, 1997) points out, that as late as that period (and extending for many decades before) U.S. women--mainly married women--used and considered abortion as a contraceptive. Reagan notes that the birth control movement in the U.S. was loathe to characterize abortion this way, or to defend it as such. Rhetoric aside, however, she presents compelling evidence that in the popular culture, women, their partners, and many reputable doctors considered abortion to be a form of contraception not morally much different from the kinds of pregnancy preventative items being discussed here.

>From Lesley Hall 02 April 1997

>I had understood that the use of condoms dated to the army's anti-VD efforts >during WWI. Accurate or not?

This is due to a common misunderstanding of "prophylaxis". What "prophylactic packets" contained varied (I suspect) both in the forces of the different Allied nations and in different parts within them, but certainly what was tending to be promoted among British troops during WWI was packets containing antiseptic/preventative chemicals, e.g. calomel ointment--though there was enormous furore and debate over this versus traditional methods of dealing with the problem. If one reads various enquiries and debates on the subject it was clearly this type of thing (rather than condoms) which was being discussed. Why not condoms was another matter--antipathy to birth control, belief that men wouldn't use them because their effect of dulling sensation, concern that rubber technology was inadequate and there would be leaks...I don't know. A nice research topic for someone perhaps.

>From Maria Elena Raymond

For Barbara Boyink Sears...
I would suggest you check out the H-Women website, on the bibliography page. There are listings for Birth Control in the U.S./1920s; Anti-Fertility methods; and more on Margaret Sanger. Some of the responses you've received this week are duplicated in these bibliographies, but there is a good amount of further sources not mentioned so far. The URL is Best wishes.

>From Staci R. Anson 02 April 1997

The U.S. military first gave contraceptives (condoms) to soldiers on a trial basis during the Spanish American War (U.S> Navy only), however, it did not become widespread until World War I. War had become associated with disease and many began associating this problem with social hygiene. As a result, people in government and social groups began calling for the use of condoms in the military. Havelock Ellis' _Essays in Wartime_ talks about this need. You may also want to look at William F. Snow's _Social Hygiene and the War_. This book is a compilation of government and social organization (i.e. Red Cross and YMCA) documents calling for a military social hygiene program (which includes the distribution of condoms to combat venereal disease and vice.) Soldiers on the home front and battlefield were given written information on the cause of venereal disease, the righteousness of continence, and the morally wrong problems associated with prostitution. Then the military required early prophylactic treatment for all officers and men exposed to infection. Linda Gordon once wrote: the "impact of World War I and the circulation of condoms represents a microcosm of the spiraling relationship of contraception to the whole sexual revolution." You may also want to check, if you're interested, : Katherine Davis' "Factors in Sex Life"(a study on the correlation between a soldier's knowledge of contraception and premarital sex) and V.F. Calverton's "Bankruptcy and Marriage" ( a study of condom sales in MD).

>From Ruth Crocker 03 April 1997

The last post mentioned abortion as a birth control method in the 1930s. A wonderfully evocative portrait of these pre-Roe years is Rickie Solinger's _The Abortionist_ (which I reviewed in Women's Review of Books, Jan. 1995). Solinger's book is must-read for those interested in reproductive "choice" before there was choice.

>From Barbara Boyink Sears 07 April 1997

I would like to thank all of you who responded to my query regarding birth control in the 1930s. Your generous responses have increased my understanding and I delighted in extending the knowledge to my students. Thanks so much!

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