We’ve Only Been Fighting For Reproductive Freedom for, What? A Century

Legal decisions about women’s reproductive rights are always, officially, about something else: privacy, religious freedom, the definition of obscenity. But as last week’s Hobby Lobby decision and its fallout have reminded us, at the root, they are always about power. The term “birth control” was coined in 1914 by Margaret Sanger, founder of Planned Parenthood and the instigator of the 1936 trial that allowed contraception to emerge from back-alley shadows into the light of the laboratory.

“Birth control” and “family planning” were meant to sound less inflammatory than “contraception”—reversing the godly act of conception. Yet by introducing the idea of control, this new terminology also raised the question of who was in control. Women? Where would that end? A hundred years later, it remains abundantly clear that the idea of women having control over their own bodies remains threatening to a degree that most grown-up women find baffling, when it’s not frankly terrifying.

Margaret Sanger is a complex hero for the reproductive-rights movement for several reasons, not least of all because she was always staunchly anti-abortion. But she recognized as obvious a connection that modern anti-choice zealots refuse to admit: that the most effective way to prevent abortion was to make contraceptives and sex education as widely available as possible. Modern protesters against Planned Parenthood are also fond of smearing Sanger—a dyed-in-the-wool socialist—as a eugenics-supporting Nazi, even though her books were among the first to be banned by Hitler’s regime. It’s true that Sanger was fascinated by the eugenics movement, which in the early 20th century was a respected field of scientific enquiry with a broad goal of improving the health and life expectancy of the population—or, at least, some parts of the population. Racist thinking was hardwired into the movement, so that even when eugenicists pushed public-health goals like clean drinking water and vaccination, these were shadowed by an obsession with “race suicide” and the risk to the white race posed by immigration and interbreeding. Conservationist and eugenicist Madison Grant, author of the 1916 bestseller The Passing of the Great Race, advocated a top-down, government-mandated approach to eugenics. He and other male leaders wanted to steer clear of Sanger, who trusted poor women to use sex education and birth control to limit their family size, and refused to acknowledge race as a category of “fitness.” Throughout her life, Sanger argued that the only way to avoid abortion, infant and maternal mortality, and family misery, was through the use of contraception.

By the mid-1930s, Sanger had been fighting for more than 20 years for the right of women to understand—let alone control—their reproductive systems. Born Margaret Higgins in Corning, New York, in 1879, she was one of 11 surviving children of Irish Catholic immigrants. Her mother had 18 pregnancies in 25 years and died before she was 50. Her visceral, relentless suffering, combined with Margaret’s father’s fiery socialist beliefs, together shaped Sanger’s views on the necessity of family planning as a way of alleviating the hardships and heartache of the poor. After she married, Sanger worked as a nurse in the New York slums, where she cared for women overburdened and weakened by having far too many children, who had butchered themselves with attempts at abortion. She became determined to bring these families the basic contraceptive information that had long been quietly available to upper-class women.

Her first volley was the column she published in the socialist New York Call newspaper in 1912, “What Every Girl Should Know,” which was censored by the sex-obsessed postal inspector, Anthony Comstock. (Sanger responded with a column under the same headline the next week, with just the words “NOTHING: By order of the Post Office Dept.” running down the page.) Sanger’s fight was as much about freedom of speech as about women’s bodily rights: She was repeatedly arrested for writing and trying to share medically accurate information about sex. In 1921 she founded the American Birth Control League, the precursor to Planned Parenthood, and opened the first legal birth control clinic in 1923, taking advantage of a local New York judge’s ruling that physicians should be exempted from the ban on discussing contraception. Yet all the nascent pro-choice movement’s actions were hampered by the impossibility of freely conducting and discussing research into more effective methods of contraception. Europeans had the diaphragm (which Sanger had already been arrested for trying to import.) Americans had various douches and suppositories, the rhythm method, a wing and a prayer.

Sanger had already been jailed nine times when she went to lobby Congress in 1934 (alongside feminist social reformer Katharine Houghton Hepburn, the mother of Katharine Hepburn). Her bill would allow doctors, at least, to share birth-control information—yet she could find no representatives willing to support it publicly. Never one to repine in defeat, however, Sanger decided to trigger another trial. She asked a Japanese doctor to send a package of 120 rubber contraceptive pessaries for testing, addressed to Dr. Hannah Mayer Stone, the volunteer medical director of Sanger’s birth control clinic and an unsung hero of this fight. The pessaries were duly seized at customs, allowing Sanger and her team to contest that medical supplies should be exempt from the long arm of the federal Comstock law.

Sanger and Brown’s adversary was a ghost. Comstock had taken his magnificent Victorian mutton-chops to the grave in 1915, but since 1873, the law named for him had made it illegal to transport through the U.S. mail anything deemed “obscene, lewd or lascivious.” This included information or materials connected to contraception, the treatment of venereal disease, or abortion. Suppression of vice, Comstock believed, lay in the suppression of everything from medical information and educational materials to journalism and art—he memorably tangled with George Bernard Shaw in 1905, when the New York police, tipped off by Comstock, interrupted and shut down Shaw’s play Mrs. Warren’s Profession.

Like a chain of craft-supply stores, the postal service seems like an odd adversary for pro-choice advocates. Yet “comstockery,” as Shaw contemptuously labeled it, was a law similar to Prohibition: rife with unintended consequences and inherently susceptible to overreach. In importing the pessaries, Sanger had specifically violated the Tariff Act, an offshoot of the Comstock law that restricted bringing contraceptives into the country. “Year after year this vicious law legally tied the hands of reputable physicians,” Sanger wrote, “while quacks and purveyors of bootleg contraceptives and ‘feminine hygiene’ articles and formulas flourished.” Her use of the term “bootleg” was intended to conjure dark memories of the recently repealed 18th Amendment and the criminality it had unleashed.

Her case, the inimitably named “United States vs. One Package of Japanese Pessaries,” went to trial on December 10, 1935, in the U.S. Court for the Southern District of New York, where Judge Grover M. Moscowitz ruled that the Tariff Act “could not reasonably be construed so as to prevent the importation by physicians of articles for the prevention of conception when intended for lawful use.” The federal government immediately appealed, however, and the case was argued again in 1936 in the U.S. Court of Appeals. This time the judges even more firmly rejected comstockery, ruling that obscenity laws could not be used to restrict the legitimate activities of doctors. The case rested there: The Attorney General refused to take it to the Supreme Court. A new normal was quickly established. The year after the trial, the American Medical Association endorsed family planning as an essential part of comprehensive health care for adults.

“At last, mothers can be told!” Sanger exulted, in a jubilant article for The New Republic in 1938. With a knowing nod to medical terminology, she wrote that, “with sharp, surgical precision the historic decision cut through the tangled confusion of federal laws,” and labeled the decision a “Bill of Rights for the medical profession.” She warned, however, that much work still needed to be done at the state level to assure the right of access to contraception for all women. Thirty years later, she was proven right by “Griswold vs. Connecticut,” the landmark 1 case in 1965, which was triggered when Planned Parenthood fell foul of a state law against distributing contraceptive advice to married couples.

Sanger’s victory in 1936 was populist at heart. After all, men of means had usually been able to find a way to keep their families to a reasonable size and their wives alive after age 40—or to keep their mistresses from getting in trouble. But for the women who lived in tenements, on farms, in factories, or standing up all day on shop floors, the freedom to obtain basic sex education and contraceptive devices from their doctors was revolutionary. It was never an issue of preventing childbearing, but instead, for spacing out children long enough that a mother could wean her baby and fully recover before she became pregnant again. An editorial in The Nation in January 1937, hailing Sanger’s court victory, noted that the Depression had played an important role, by uniting disparate groups—public-health authorities, social workers, and relief officials—behind the push to make “simple, safe, cheap methods of birth control … available especially for the benefit of those on relief and the unemployed generally, and to all whose economic security was threatened.”

The Depression also saw a minor revolution in the cultural understanding of happiness and success in America. During the 1930s a library of self-help books, and a rogue’s gallery of self-styled gurus, materialized to tell Americans that they had the power to surmount economic devastation by exercising their willpower and believing in success. Amid systemic economic failures that were far outside an individual’s power to fix, these books preached that success lay in self-control, discipline, and a positive mental attitude. It was a persuasive fantasy, and it effectively redefined happiness as the result of analysis and choice, rather than of fatalistic submission to the will of God. The language of Sanger’s campaign—birth control, planned parenthood—dovetailed perfectly with the tenets of the self-help movement. More and more people came to support the logic of men and women taking charge of the most basic element of domestic economics: the number of children they had to support.

The sexual choices and behaviors of American women of course continued to be shaped by class, race, opportunity, age, and marital status, but the overturning of the Comstock laws, decoupling contraception from obscenity, was an essential step. Crucially, for scientists, it meant that research could be freely shared and discussed, allowing ideas that were merely pipe dreams in the late ’30s—a pill that could prevent pregnancy?—to become reality in the space of a generation. By forcing birth control into public attention in the courts, Congress, and newspapers, Margaret Sanger and her allies repeatedly made the case that domestic happiness relied on the freedom of all married couples, not merely the wealthy and well connected, to choose the size of their families. The notion of reproductive choice had entered the nation’s vocabulary, and its connection to women’s happiness—and that of their families—had tentatively taken root. Unfortunately for us, nearly 80 years later, there are still a great many powerful people who don’t believe that women have the right to happiness.