Today in Feminist History: Congress, Contraception and the Comstock Act (January 18, 1934)

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.

January 18, 1934: Legalization of birth control was hotly debated in a Congressional hearing today as both sides testified about a bill to modify the Comstock Act.

Satirizing the hearings as having a goal of establishing an N.R.A. Code for storks, as has been done for industry.

It was passed in 1873 as “a bill for the suppression of trade in, and circulation of, obscene literature and articles of immoral use,” with birth control information and devices falling into those banned categories.

One of the more zealous advocates of legalization is Katharine Hepburn, a veteran of the suffrage struggle, and mother of the actress of the same name, whose daughter’s latest film, “Little Women,” was released in November. Hepburn noted:

“Just because we favor birth control, it doesn’t follow that we are opposed to children. I dare say that, all in all, we have just as many children as our opponents.”

The sections of the criminal code which Representative Walter Pierce, Democrat of Oregon, would like to repeal forbid transmission by mail or express of anything relating to contraception, with violators subject to a $2,000 fine and up to five years in prison.

The present law results in great harm caused by “bootlegged” birth control devices distributed by non-physicians to people unable to get them or any advice on how to use them properly from a reputable doctor.

“We want to bring these things out in the open so that legally licensed physicians can give authoritative information to the people who need it and are entitled to it,” said Rep. Pierce.

Of course, there were many who testified in opposition to changing the law. Radical radio priest Father Coughlin ranted for half an hour, followed by a number of members of the clergy who were also against decriminalization, representing Catholic, Episcopal, Lutheran, Methodist, and Baptist groups. But during a heated discussion on the morality of birth control, Rabbi Edward L. Israel, a birth control supporter, noted the widespread hypocrisy on this subject and suddenly demanded of opponents of lifting the ban on birth control:

“Well, then, if it is morally wrong, let us be honest and pass a law to drive contraceptive devices out of your home and mine.”

Great applause followed among the hundreds crowded into the hearing room. Judiciary Committee member John Lehr, Democrat of Michigan, then shouted over the din that it should be put into the official record that there had never been any contraceptives in his home, and added that he has six children.

There has certainly been progress in some States over the past 20 years, New York among them. In the Empire State, a judicial ruling 16 years ago allows an exemption to the State’s ban on birth control for physicians who prescribe contraceptives to their married patients “for the cure or prevention of disease,” and there hasn’t been a raid on a birth control clinic there since 1929. But the burden of proof is still on the physician to show there is a specific medical condition that would endanger a married woman’s life or health before the doctor is permitted to discuss or prescribe a contraceptive method or device to combat it.

But in some States, such as Connecticut and Massachusetts, there are no exceptions, and a total ban is still in effect, with severe criminal penalties still on the books. And, of course, the Federal Comstock Act, which bans the mailing, interstate distribution, or importation of birth control devices and literature makes it difficult for physicians in States where the laws have been liberalized to obtain contraceptives, so this is a barrier that can and should be removed either by Congress or a successful court challenge.

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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.