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.”
Unless the government appeals to the United States Supreme Court, the decision of the United States Circuit Court of Appeals will remain as the final interpretation of the laws affecting the importation or distribution of contraceptive materials by the medical profession. Actually it means the passing of the Comstock laws, at least as far as contraception is concerned. These laws, enacted in 1873, long since became archaic and obsolete, altogether out of tune with present-day conditions and needs. Laws which define moral behavior cannot remain static. They must be swept aside from time to time by the newer currents of thoughts which spring from changing human needs.
For a number of years now the National Committee on Federal Legislation for Birth Control, under the leadership of Margaret Sanger, has been endeavoring to procure an amendment to the birth-control laws, which would free the medical profession from the existing legal restrictions and prohibitions. The decision of the United States Circuit Court of Appeals accomplishes this very fact. It once and for all establishes contraception as a recognized part of medical practice and removes the legal barriers to the dissemination of contraceptive knowledge. From now on hospitals, clinics, and public-health centers will have to face frankly the responsibility and opportunity of including information on contraception as a part of their health services to the community, and we may well expect that clinical contraception will make rapid progress within the coming years. Quite rightly Margaret Sanger considers the decision to be “the greatest victory in the history of the birth-control movement.”
The second significant event to take place last month was the Conference on Contraceptive Research and Clinical Practice which was held in New York on December 29 and 30. Men and women from universities, laboratories, and birth-control centers in many parts of the country came together at the invitation of Margaret Sanger and the Birth Control Clinical Research Bureau of New York to discuss the scientific aspects of contraception, to evaluate techniques and procedures, and to formulate plans and programs for future clinical and laboratory research.
The first day of the conference was devoted to the medical and biological investigations in contraception. During the morning session Dr. Bayard Carter of the Duke University School of Medicine spoke of the relationship of contraception to maternal health and outlined the various conditions which make contraceptive advice essential on medical grounds. Dr. J. Paul Pratt of the Henry Ford Hospital of Detroit presented a survey of our present knowledge of the endocrine factors that influence and control human fertility. Dr. Raphael Kurzrock of the College of Physicians and Surgeons of Columbia University spoke of the prospects of rendering the woman temporarily sterile by means of hormones. He mentioned several types of glandular products which may be used to inhibit the ovulatory function, that is, the ripening and discharge of the egg cell from the ovary, and induce temporary sterility without changing the character of the menstrual cycle or permanently affecting the reproductive functions. At the same session Dr. Werner Henle of the University of Pennsylvania surveyed the possibilities of rendering the female immune to conception by injections of the spermatozoa of the male. While the potentialities of hormonal sterilization or spermatoxic immunization have as yet been but superficially explored, they nevertheless offer a wide field for future biologic research.
An entire session was given over to a discussion of the “safe period”–a subject of intriguing interest. Carl G. Hartman of the Department of Embryology of the Carnegie Institute at Baltimore, who has done pioneer work in the reproductive physiology of apes, spoke on the Facts and Fallacies of the Safe Period. All present studies, in his opinion, point to the fact that a sterile period does exist during the menstrual cycle of the woman, but our knowledge today does not justify an unqualified indorsement of the “safe-period” theory, or clinical reliance upon it when it is a question of the health or life of the mother.
In the course of his address Dr. Hartman mentioned the recent work of Allen, Burr, and Hill, who are able to determine the time of ovulation in animals by means of an electrical device. It should be possible in the near future, he said, to find out the ovulation time of a woman by attaching two electrodes to her, setting the machine going, and “when the storm of electrical discharge that accompanies ovulation occurs, amplifying this so as to light a lamp or ring a bell.” This statement, of course, caught the fancy of the newspapermen present and was recorded in large type in the daily press. The possibility of such a development, however, actually lies within the near future. An exact method of determining the ovulation time in the individual woman will greatly facilitate the study of reproductive physiology generally, and should help to place the “safe period” on a more concrete and practical basis.
The general opinion during the discussion that followed Dr. Hartman’s paper was that clinically, at least, we are in no position as yet to advise any woman to rely upon the computation of the sterile period for the prevention of conception. The very marked variations of the menstrual cycles in women, which we have found at the Birth Control Clinical Research Bureau from a special study of the recorded menstrual cycles of a large number of women, and the absence of a positive method for determining the fertile and sterile periods of the month render this method unsuitable for clinical use. More exact data and simpler methods of calculation have to be available before the “safe period” can become suitable for practical application.
The second day of the conference was devoted to a consideration of the technical aspects of contraceptive practice. Dr. Norman E. Himes of Colgate University, an authority on the medical history of contraception, Dr. Leo Shedlovsky, a biochemist at New York University, Dr. Eric M. Matsner of the American Birth Control League, Dr. Bessie Moses of the Johns Hopkins Clinic, Dr. Clarence Gamble of Philadelphia, and many other representatives of laboratories and clinics in different parts of the country participated in the discussion. Surveys of the present-day chemical and mechanical methods of contraception and the means of evaluating their suitability and efficacy were presented, and the importance of formulating standards and developing new methods and techniques were stressed. The urgent need for a simple, inexpensive, and safe contraceptive, one that would be especially suitable for the women in outlying rural districts and on farms who cannot avail themselves of modern clinical methods, was especially emphasized by Margaret Sanger, and she called for more intensive investigation in this field on the part of the scientists. Similarly, Dr. Robert L. Dickinson, the dean of medical contraception in this country, stressed the need for more and more research. Eager and active at seventy-six, Dr. Dickinson illuminated many of the conference discussions with his rich and varied experiences and his broad knowledge.
Altogether the conference marked a turning-point. The number of universities, hospitals, and birth-control centers represented and the caliber of the men and women who participated in the proceedings marked the removal of birth control from the field of controversy to that of scientific consideration, from the platform and the pulpit to the laboratory and the clinic. It marked the beginning of an era of extensive practical service.