CHAPTER XV: LEGISLATING WOMAN'S MORALS
ONE of the important duties before those women who are demanding birth
control as a means to a New Race is the changing of our so-called obscenity laws. This
will be no easy undertaking; it is usually much easier to enact statutes than to revise
them. Laws are seldom exactly what they seem, rarely what their advocates claim for them.
The "obscenity" statutes are particularly deceptive.
Enacted, avowedly, to protect society against the obscene and the lewd,
they make no distinction between the scientific works of human emancipators like Forel
and Ellis and printed matter such as they are ostensibly aimed at. Naturally enough,
then, detectives and narrow- minded judges and prosecutors who would chuckle over pictures
that would make a clean-minded woman shudder, unite to suppress the scientific works
and the birth-control treatises which would enable men and women to attain higher physical,
mental, moral and spiritual standards.
Woman, bent upon her freedom and seeking to make a better world, will
not permit the indecent and unclean forces of reaction to mask themselves forever behind
the plea that it is necessary to keep her in ignorance to preserve her purity. In the
birth-control movement, she has already begun to fight for her right to have, without
legal interference, all knowledge pertaining to her sex nature. This is the third and
most important of the epoch-making battles for general liberty upon American soil. It
is most important because it is to purify the very fountain of the race and make the
race completely free.
The first and most dramatic of the three great struggles for liberty
reached its apex, as we know, in the American Revolution. It had for its object the right
to hold such political beliefs as one might choose, and to act in accordance with those
beliefs. If this political freedom is now lost to us, it is because we did not hold strongly
enough to those liberties fought for by our forefathers.
Nearly a hundred years after the Revolution the battle for religious
liberty came to a climax in the career of Robert G. Ingersoll. His championship of the
much vaunted and little exercised freedom of religious opinion swept the blasphemy laws
into the lumber room of outworn tyrannies. Those yet remaining upon the statute books
are invoked but rarely, and then the effort to enforce them is ridiculous.
Within a few years the tragic combination of false moral standards and
infamous obscenity laws will be as ridiculous in the public mind as are the now all but
forgotten blasphemy laws. If the obscenity laws are not radically revised or repealed,
few reactionaries will dare to face the public derision that will greet their attempts
to use them to stay woman's progress.
The French have a saying concerning "mort main" ; the dead
hand. This hand of the past reaches up into the present to smother the rising flame of
modern ideals, to reforge our chains when we have broken them, to arrest progress. It
is the hand of such as have lived on earth but have not loved humanity. At the call of
those who fear progress and freedom, it rises from the gloom of forgotten things to oppress
It is the dead hand that holds imprisoned within the obscenity laws
all direct information concerning birth control. It is the dead hand that thus compels
millions of American women to remain in the bondage of maternity.
Previous to the year 1868, the obscenity laws of the various states
in the Union contained no specific prohibition of information concerning contraceptives.
In that year, however, the General Assembly of New York passed an act which specifically
included the subject of contraceptives. The act made it exactly as great an offense to
give such information as to exhibit the sort of pictures and writings at which the legislation
was ostensibly aimed.
In 1873, the late Anthony Comstock, who with a list of contributors,
most of whom did not realize the real effects of his work, constituted the so-called
Society for the Suppression of Vice, succeeded in obtaining the passage of the federal
obscenity act. This act was presented as one to prevent the circulation of pornographic
literature and pictures among school children. As such, it was rushed through with two
hundred sixty other acts in the closing hours of the Congress. This act made it a crime
to use the mails to convey contraceptives or information concerning contraceptives. Other
acts later made the original law applicable to express companies and other common carriers,
as well as to the mails.
With this precedent established ; a precedent which a majority of the
congressmen could hardly have understood because of the hasty passage of the act ; Comstock
secured the enactment of state laws to the same effect. Meanwhile, the provisions regarding
contraceptives had been dropped from the amended New York State law of 1872. In 1873,
however, a new section, said to have been drafted by Comstock himself, was substituted
for the one enacted in 1872, and that section is essentially the substance of the present
law. None of these acts made it an offense to prevent conception ; all of them provided
punishment for anyone disseminating information concerning the prevention of conception.
In the federal statutes, the maximum penalties were fixed at a fine of $5,000 or five
years imprisonment, or both. The usual maximum penalty under a state law is a fine of
$1,000 or one year's imprisonment, or both.
Comstock has passed out of public notice. His body has been entombed
but the evil that he did lives after him. His dead hand still reaches forth to keep the
subject of prevention of conception where he placed it ; in the same legal category with
things unclean and vile. Forty years ago the laws were changed and the chief work of
Comstock's life accomplished. Those laws still live, legal monuments to ignorance and
to oppression. Through those laws reaches the dead hand to bring to the operating table
each year hundreds of thousands of women who undergo the agony of abortion. Each year
this hand reaches out to compel the birth of hundreds of thousands of infants who must
die before they are twelve months old.
Like many laws upon our statute books, these are being persistently
and intelligently violated. Few members of the well-to-do and wealthy classes think for
a single moment of obeying them. They limit their families to one, two or three well-cared-for
children Usually the prosecutor who presents the case against a birth-control advocate,
trapped by a detective hired by the Comstock Society, has no children at all or a small
family. The family of the judge who passes upon the case is likely to be smaller still.
The words "It is the law" sums it all up for these officials when they pass
sentence in court. But these words, so magical to the official mind, have no weight when
these same officials are adjusting their own private lives. They then obey the higher
laws of their own beings ; they break the obsolete statutes for themselves while enforcing
them for others.
This is not the situation with the poorer people of the United States,
however. Millions of them know nothing of reliable contraceptives. When women of the
impoverished strata of society do not break these laws against contraceptives, they violate
those laws of their inner beings which tell them not to bring children into the world
to live in want, disease and general misery. They break the first law of nature, which
is that of self preservation. Bound by false morals, enchained by false conceptions of
religion, hindered by false laws, they endure until the pressure becomes so great that
morals, religion and laws alike fail to restrain them. Then they for a brief respite
resort to the surgeon's instruments.
For many years the semi-official witch hunting of the Comstock organization
had a remarkable and a deadly effect. Everyone, whether it was novelist, essayist, publicist,
propagandist or artist, who sought to throw definite light upon the forbidden subject
of sex, or upon family limitation, was prosecuted if detected. Among the many books suppressed
were works by physicians designed to warn young men and women away from the pitfalls
of venereal diseases and sexual errors. The darkness that surrounded the whole field
of sex was made as complete as possible.
Since then the feeling of the awakened women of America has intensified.
The rapidity with which women are going into industry, the increasing hardship and poverty
of the lower strata of society, the arousing of public conscience, have all operated
to give force and volume to the demand for woman's right to control her own body that
she may work out her own salvation.
Those who believe in strictly legal measures, as well as those who believe
both in legal measures and in open defiance of these brutal and unjust laws, are demanding
amendments to the obscenity statutes, which shall remove information concerning contraceptives
from its present classification among things filthy and obscene.
An amendment typical of those offered is that drawn up for the New York
statutes under the direction of Samuel McClure Lindsey, of Columbia University. The words
and sentences in italics are those which it proposed to add:
(Section 1145.) Physicians' instruments and information. An article
or instrument used or applied by physicians lawfully practicing, or by their direction
or prescription, for the cure or prevention of disease, is not an article of indecent
or immoral nature or use, within this article. The supplying of such articles to such
physicians or by their direction or prescription, is not an offense under this article.
The giving by a duly licensed physician or registered nurse lawfully practicing, of
information or advice in regard to, or the supplying to any person of any article or
medicine for the prevention of, conception is not a violation of any provision of this
This proposed amendment should without doubt include midwives as well
as nurses. There are thousands of women who never see a nurse or a physician. Under this
section, even as it now stands, physicians have a right to prescribe contraceptives,
but few of them have claimed that right or have even known that it has existed. It does
exist, however, and was specifically declared by the New York State Court of Appeals,
as we shall see when we consider that court's opinion in the Sanger case, farther
on in the book. It can do no harm to make the intent of the law as regards physicians
plainer, and it would be an immense step forward to include nurses and midwives in the
section. With this addition it would remove one of the most serious obstacles to the
freedom and advancement of American womanhood. Every woman interested in the welfare
of women in general should make it her business to agitate for such a change in the obscenity
The above provision would take care of the case of the woman who is
ill, or who is plainly about to become ill, but it does not take care of the vast body
of women who have not yet ruined their health by childbearing and who are not yet suffering
from diseases complicated by pregnancy. If this amendment had been attached to the laws
in all the states, there would still remain much to be done.
Shall we go on indefinitely driving the now healthy mother of two children
into the hands of the abortionist, where she goes in preference to constant ill health,
overwork and the witnessing of dying and starving babies? It is each woman's duty to
herself and to society to hasten the repeal of all laws against the communication of
birth-control information Now that she has the vote, she should use her political influence
to strike, first of all, at these restrictive statutes. It is not to her credit that
a district attorney, arguing against a birth control advocate, is able to show that women
have made no effort to wipe out such laws in states where they have had the ballot for
It is time that women assert themselves upon this fundamental right,
and the first and best use they can make of the ballot is in this direction. These laws
were made by men and have been instruments of martyrdom and death for unnumbered thousands
of women. Women now have the opportunity to sweep them into the trash heap. They will
do it at once unless, like men, they use the ballot for those political honors which
many years of experience have taught men to be hollow.
It is only a question of how long it will take women to make up their
minds to this result. The law of woman's being is stronger than any statute, and the
man-made law must sooner or later give way to it. Man has not protected woman in matters
most vital to her ; but she is awaking and will sooner or later realize this and assert
herself. If she acts in mass now, it will be another cheering evidence that she is moving
consciously toward her goal.
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