This article originally appeared in the January 16, 1937, issue.
Two events which occurred at the end of 1936 may signify a turning-point in the birth-control movement in America. Together they denote the closing of one era–the era of pioneering, of preparation, of laying the foundation–and the beginning of another–an era of extensive research and clinical accomplishments.
The first event was the decision of the United States Circuit Court of Appeals in the case of the Japanese pessaries. In 1933 a package containing some 120 pessaries was sent to me from Japan for certain clinical and experimental tests. The package was seized at the Customs with a view to confiscation and forfeiture on the grounds that it violated Section 305-a of the Tariff Act of 1930, which, originating from the so-called Comstock Act of 1873, provides that “all persons are prohibited from importing into the United States from any foreign country…any article whatever for the prevention of conception….” We felt that this action of the Customs officials offered a sufficiently clear-cut test case for a legal determination as to whether the blanket prohibition of the laws applied to contraceptive articles sent to physicians and intended for use in the legitimate practice of medicine.
On the initiative of Margaret Sanger, and with Morris L. Ernst and his associates acting in our behalf, the seizure of the articles was contested. On December 10, 1935, the case came up for trial before Federal Judge Grover M. Moscowitz of the United States District Court. At the trial Drs. Frederick C. Holden, Foster Kennedy, Robert L. Dickinson, Ira S. Wile, Alfred M. Hellman, and Louis I. Harris testified as distinguished medical authorities that there were many medical conditions which necessitated the prescription of contraceptive measures for the preservation of the health of the mother and the family; and Mr. Ernst, in turn, argued that in view of this testimony and in view of the fact that the confiscated materials had been sent to a physician and were intended for lawful use, they did not come under the ban contained in the Tariff Act and should therefore be released.
Judge Moscowitz, in a very lucid decision, upheld the point of view that the Tariff Act could not reasonably be construed so as to prevent the importation by physicians of articles for the prevention of conception when intended for lawful use. He ruled that the articles in question did not come within the condemnation of the statute and directed their return. The federal government, not satisfied with this decision, appealed the case, and in November, 1936, it came up for another hearing. This time the case was tried in the United States Circuit Court of Appeals, the bench consisting of Justices Augustus N. Hand, Learned Hand, and Thomas W. Swan.
In a historical statement which will undoubtedly have a very wide and important influence upon the future progress of birth control in America, the United States Court of Appeals reaffirmed the decision of the lower court. In speaking of the Comstock Act generally, the court held that “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.” It amplified this opinion with the statement that “it is going far beyond such a policy [of Congress] 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.”