Today in Feminist History: Slight Signs of Progress for Birth Control Advocates

Today in Feminist History is our daily recap of the major milestones and minor advancements that shaped women’s history in the U.S.—from suffrage to Shirley Chisholm and beyond. These posts were written by, and are presented in homage to, our late staff historian and archivist, David Dismore.

February 5, 1917: The Government’s war on birth control is still ongoing, but apparently efforts to decriminalize contraception and information about it are having an effect.

Though today the three-judge panel at the Kings County, New York courthouse handed down a jail sentence to one woman and a fine to another for their roles in operating what was the nation’s first and only birth control clinic until it was raided and closed in October, it was apparent that the judges did their duty reluctantly, and only because they felt obligated to enforce all the laws on the books. 

In the case of Fania Mindell, convicted three days ago of selling a pamphlet that gave basic facts about human reproduction (“What Every Girl Should Know”) to a female undercover police officer, the judges imposed only a $50 fine. It was quickly paid by Gertrude Pinchot, a member of the Committee of One Hundred, organized to pay the legal expenses of those facing prosecution for breaking State and Federal anti-birth-control laws.

Though Margaret Sanger, also convicted on February 2nd, is spending the night in the Raymond Street Jail after being sentenced today to 30 days for operating the Brooklyn birth control clinic, the judges clearly wanted to avoid imposing jail time by giving her an opportunity – though one that was unacceptable to her – to avoid imprisonment for breaking an increasingly unpopular law.

She was first given the option of paying a $5,000 fine instead of serving jail time. After refusing to pay the fine, she was given another opportunity to avoid prison, but only if she would agree to stop sharing information about birth control as long as Section 1142 of the New York State Penal Code remains in effect.

Justice Freschi, who presided over the three-judge panel, seemed quite sympathetic, but still determined to uphold all of New York’s laws, including its anti-birth-control statute. He said: “Mrs. Sanger, if you promise to obey the law faithfully in the future, this court will exercise extreme clemency.”

She replied: “This is a test case, and pending appeal only will I promise to refrain from my activities.”

Agreeing to obey the law only during the appeals process proved insufficient, so Justice Freschi then addressed her lawyer, Jonah Goldstein, hoping that he could convince his client to agree to a deal in which she would apparently receive a suspended sentence in return for promising to stop counseling women on birth control until giving such advice becomes legal:

Mr. Goldstein, what is the use of beating around the bush ? We are not prosecutors looking for blood. We are simply here to judge conservatively, with an eye for the whole people. In view of the physical condition of the prisoner and of appeals pending and other attending circumstances, we are inclined toward leniency … All we are concerned about is this statute, and as long as it remains the law, will this woman promise here and now unqualifiedly to respect and obey it?

The judge then returned to addressing Sanger, and indicated that he believed her to be a woman of principle: “You abided by the facts given the court as evidence. You did not take the stand and attempt to perjure yourself. We will take your word if you will give it. Now, is it yes or no ? What is your answer, Mrs. Sanger ?”

Her answer, which was immediately followed by great applause and cheers from her many supporters in the courtroom, was: “I cannot respect the law as it is today.”

PHOTO: Margaret Sanger surrounded by birth control supporters as she left the courthouse during her recent trial.

The judge then pronounced sentence:

Margaret Sanger, with the additional evidence submitted by the learned District Attorney after your case reopened last Friday to meet the claim that proof was insufficient, there is now additional evidence that makes out a strong case that you established and maintained a birth control clinic where you exhibited to various women articles which purported to be for the prevention of conception, and that there you made a determined effort to disseminate birth control information and advice.

We are not here to applaud nor to condemn your beliefs; but your declarations and public utterances reflect an absolute disregard for law and order. You have challenged the constitutionality of the law under consideration and the jurisdiction of this court. When this is done in an orderly way, no one can find fault. It is your right as a citizen. Refusal to obey the law becomes an open defiance of the rule of the majority as expressed in this statute. I can see no good reason for all this excitement by some people. They have a perfect right to argue freely about amending the law, but not to advise how to prevent conception.

While the law is in its present form, defiance provokes anything but reasonable consideration. It is wholesome that we have discussion by citizens on matters that affect the welfare of citizens. People have the right to free speech, but they should not allow it to degenerate into license and defiance of the law. The judgment of this court is that you be confined to the Workhouse for the period of thirty days.

Sanger was taken to the Raymond Street Jail overnight, for transfer elsewhere tomorrow. She had been considering going on a hunger strike as her sister, Ethel Byrne, did when she was sent to the Workhouse on Blackwell’s Island on similar charges. But she realized that such an action would isolate her in the hospital ward, away from the other prisoners. So, instead, she will use her month inside the prison system to investigate conditions there, which have been described as “outrageous” and in need of being exposed to the public. 

Forty-four years have gone by since the assault on birth control began when Congress passed the infamous “Comstock Act” in 1873. It classifies birth control devices and information about how to use or obtain them as obscene, unmailable items. States quickly went ever further, passing outright bans on birth control so strict that even giving out contraceptive information to anyone by any means became a criminal offense with severe penalties.

But thanks to some very courageous people, the issue of family planning is finally being debated out in the open, and public opinion is being mobilized in favor of reforming repressive laws from a previous century. The possibility that the courts will strike down, or legislatures will repeal, these laws now seems a realistic expectation. One sign that momentum is shifting to birth control advocates is that just a few days ago the Governor of New York agreed to appoint a commission to study how the law might be changed in his State to permit some practical, legal means of transmitting birth control information to those who want and need it.

Despite the progress made over the past few years, the road ahead still looks like a very long one. It certainly will be an especially hard journey for those who prefer imprisonment to obeying an unjust law. 

But however far in the future the end of State and Federal campaigns to suppress knowledge and maintain ignorance about sexuality and family planning may be, the eventual outcome is not in doubt. The only question tonight is whether those who will be fortunate enough to grow up in a time when access to accurate information about sexuality and effective methods of birth control are freely available will take them for granted, and allow them to be slowly chipped away, or will be willing to fight as hard to retain these rights as those who are battling today to establish them. 


David Dismore is the archivist for the Feminist Majority Foundation. His journey from would-be weather forecaster to full-time feminist began with the powerful impression made by a photo and a few paragraphs about the suffragists in his high school history textbook; years later, he had his first encounter with NOW—in which he carefully peeked in a window before opening the door to be sure men were allowed. He was eventually active in the ERA extension campaign of 1978, embarked on a cross-country bikeathon for it in 1982 and even worked for pioneers Toni Carabillo and Judith Meuli.