Today in Feminist History: Battle for Nationwide Legalization of Birth Control May Soon be Won (March 1, 1961)

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.


March 1, 1961: The battle for nationwide legalization of birth control may soon be won if some questions asked, and comments made, in the U.S. Supreme Court today are any indication of a Court majority’s views.

The case (Poe et. al. v. Ullman) involves Dr. C. Lee Buxton, head of Yale Medical School’s Obstetrics and Gynecology Department. He is challenging Connecticut’s 1879 law which prohibits anyone—even physicians—from giving advice on birth control, and totally bans contraceptives themselves.

Chief Justice Earl Warren was particularly concerned with the harm that Connecticut’s law could cause to “Jane Doe,” the pseudonym of one of Dr. Buxton’s two patients involved in the case. “Pauline Poe” is the other. It is the physician’s professional opinion that another pregnancy would threaten Doe’s life, but he cannot legally provide her with information about birth control or prescribe contraception.

Connecticut’s Assistant Attorney General, Raymond J. Cannon, defended the law as Warren engaged him in a dialogue:

“If the diagnosis of Mrs. Doe is accurate, and her life is endangered unless she receives the treatment prescribed, do you believe the state would prevent her from getting such treatment ?” asked the Chief Justice.

“It is up to the Legislature to determine what is for the greater good,” Cannon replied.

“Even if it is conceded the lady would die, you still hold that the state has the right, for the reasons you give, to prevent her from getting the needed care ?” asked Warren.

“Yes,” replied Cannon, “plus the added factor that when seeking the advice she was not suffering diseases that affected her health. Pregnancy was not involved. He [the physician] may advise that if she became pregnant she might injure her health, but he can’t tell her or advise her to use artificial contraceptives to prevent conception.”

Justice Stewart gave further encouragement to birth control advocates by making this observation:

“That’s like telling a patient he has appendicitis and will die unless it is removed, but not allowing its removal.”

The Comstock Act (1873) included birth control devices and contraceptive information in its definition of “obscene” items banned from the mails. States than passed—and enforced—their own even stricter anti-birth-control laws. There has been progress on a state-by-state basis, beginning in 1918 when Judge Frederick Crane ruled that New York State’s ban on birth control must allow for a licensed physician to prescribe birth control “to a married person for the cure or prevention of disease.” Though the “Crane decision” still put the burden of proof on the doctor to show why such an exception should be made in a particular case, and prosecution not proceed, it was definitely a first step forward.

A Federal Appeals Court ruled in 1936 (U.S. v. One Package of Japanese Pessaries, 86 F. 2d 737) that the Federal Government could not interfere with licensed physicians importing contraceptives (and presumably distributing them to their married patients). Today, almost 50 years after the long and difficult battle to re-legalize birth control began, only Connecticut and Massachusetts still retain absolute bans on birth control.

Section 53-32 of Connecticut law provides:

“Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor for more than one year or be both fined and imprisoned.”

Section 54-196 states:

“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”

With varying policies on birth control in each of the 50 states, and Congress unwilling to remove birth control and contraceptive information from the provisions of the Comstock Act, a clear ruling from the Supreme Court upholding the legality of birth control and striking down anti-birth-control statutes would be welcome—and is long overdue.


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About

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.