The Volokh Conspiracy
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In this, the fifth and final piece in a series of excerpts from my new book, "Sex and the Constitution," I will briefly address Margaret Sanger and the birth of the birth control movement.
As we saw in my fourth piece in this series, with the enactment of the federal and state Comstock laws, the sale of contraceptives and the dissemination of information about contraception were for the first time in history deemed unlawful throughout the United States.
In the spring of 1914, Margaret Sanger, who was born in upstate New York in 1879, rallied a small group of radical friends in her New York City apartment to launch the Woman Rebel, "a militant-feminist monthly." A dynamic, titian-haired woman of Irish ancestry, Sanger was endowed with unfailing charm, fierce determination and persuasive wit.
In direct defiance of the federal Comstock Act, Sanger announced in the very first issue of the Woman Rebel that she would "advocate the prevention of conception" and that she would "impart such knowledge in the columns of this paper." It was at this time that Sanger and her group coined the term "birth control." The campaign Sanger initiated that spring would grow into "one of the most far-reaching social reform movements in American history."
Sanger and her husband moved to New York City in 1911 and soon became part of the radical culture of Greenwich Village. Sanger tended obstetrical patients in the tenement districts on the Lower East Side, an experience that exposed her for the first time to the squalor and suffering caused by the combination of poverty and unwanted pregnancy. Sanger later wrote about how pregnant women, desperate to avoid childbirth, brought "themselves around" by drinking "drops of turpentine on sugar, steaming over a chamber of boiling coffee or of turpentine water, rolling down stairs, and finally inserting slippery-elm sticks, or knitting needles, or shoe hooks into the uterus."
After treating several patients for septicemia, an infectious disease associated with the use of unsterilized abortion tools, and then watching them die, Sanger determined to learn more about reproductive control. She later wrote that, as a result of this experience, "I resolved that women should have knowledge of contraception. They have every right to know about their own bodies. I would strike out—I would scream from the housetops. I would tell the world what was going on in the lives of these poor women. I would be heard."
Sanger saw contraception as a ticket to personal freedom for women. Unwanted pregnancies and limitless childbearing were not only dangerous to women's health, but they also prevented women from developing their skills and capacities as individuals and limited their potential as productive members of society. Sanger believed fiercely that if women could achieve the "basic freedom" of voluntary motherhood, they would be able to help "remake" the world.
In the Woman Rebel, Sanger urged her readers "to speak and act in defiance of convention." Sanger wrote that it was a woman's duty "to look the whole world in the face with a go-to-hell look in the eyes, to have an ideal; to speak and to act in defiance of convention." A few days later, the postmaster of New York informed Sanger that that issue of the Woman Rebel could not be distributed through the United States mail and that it would be confiscated under the authority of the Comstock Act.
After Sanger was indicted for violating the Comstock Act, she fled the country, but only after distributing 100,000 copies of Family Limitation, a 16-page pamphlet that offered detailed information that she had gathered about the most effective and available means of contraception. The pamphlets were distributed with a letter asking that they be passed on to "poor working men and women who are overburdened with large families." As she wrote to her friend Upton Sinclair, Comstock now would have something "to really indict me on."
While Sanger was still in exile, Anthony Comstock had Sanger's husband, William, arrested for selling a copy of Family Limitation to an undercover vice officer. The publicity surrounding William's arrest in 1915 excited widespread public discussion of birth control. The New York Tribune observed that "at last birth control—that matter about which men, and especially women, have thought so much and have dared talk so little and then furtively—is to be brought out into the open."
It was clear that, in no small part due to Sanger's courageous campaign, attitudes were beginning to change. When William Sanger came to trial in 1915, the courtroom was filled with prominent supporters of birth control. Sanger admitted that he had broken the law, but he maintained that it was the "law" itself that was on trial. The case drew national headlines, and Comstock himself bombastically testified for the prosecution. The judge, a devout Catholic, called William Sanger "a menace to society" whose crimes violated "not only the laws of the state, but the laws of God." He then sentenced him to 30 days in prison. In protest, the crowd burst into "a medley of shouts and cries."
Ten days later, Comstock, who over the decades had become the United States' most feared moralist, died of pneumonia. By the time of his death, he had become in the eyes of many Americans a tiresome "relic of a bygone era." By the end of 1915, "the public silence over birth control had been broken" and birth control leagues had been established in cities across the nation. There was growing public support for amending the Comstock laws, and several months later the charges against Margaret Sanger were dismissed.
On July 1, 1916, the radical socialist Alexander Berkman predicted what he saw as the outcome of the struggle for birth control: "The end is not hard to foresee. … The law will be ignored and defied with increasing frequency till general sentiment will compel its repeal. What is a crime today will be an accepted and approved fact tomorrow." Half a century, in its landmark decision in Griswold v. Connecticut, the Supreme Court made this the law of the land.
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These five brief excerpts from "Sex and the Constitution" were all drawn from the early chapters of the book. They do not even touch upon the role of the Supreme Court, which takes up much of the work. I hope they have piqued your curiosity. This is, dare I say, a fascinating story, and one that continues to this day.
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Geoffrey R. Stone is the Edward H. Levi distinguished service professor of law at the University of Chicago.