Appellant
United States
Appellee
Dr. Hannah M. Stone, claimant for "one package" (of merchandise)
Appellant's Claim
That Stone did not have the legal right to import one package of contraceptive devices into the United States, according to the 1930 Tariff Act.
Chief Lawyer for Appellant
Morris L. Ernst
Chief Lawyer for Appellee
Lamar Hardy
Judges
Augustus N. Hand, Learned Hand, Thomas Swan
Place
New York, New York
Date of Decision
7 December 1936
Decision
Laws prohibiting Americans from importing contraceptive devices or items causing "unlawful abortion" did not apply to physicians who used the items to protect the health of patients.
Significance
This decision allowed contraceptive devices to be imported into the United States, paving the way for the 1937 decision of the American Medical Association that birth control was a medical service that could be taught in schools ofmedicine.
Anti-obscenity laws became popular in the states after the Civil War. So censorious was public opinion that in 1869 Harriet Beecher Stowe endured widespread criticism for mentioning Lord Byron's incestuous activities with his sister in the Atlantic Monthly. In 1873, Congress passed the federal Comstock Act, which made criminal the mailing or advertising of "obscene" materials--including literature on birth control.
No Fun for Anyone
The act was named after Anthony Comstock of New Canaan, Connecticut. Devotionto his mother--who died when he was ten--compelled him to "protect" women from smut, quack doctors, and other influences he thought harmful to them. In 1872, he joined a YMCA fight against pornographic literature. To persuade Congress to pass the federal obscenity act, Comstock displayed piles of pornography, along with contraceptives, and abortifacients (items that cause abortion), damning them all as equally immoral.
Comstock was a busy man. He founded the New York Society for the Suppressionof Vice to arrest "criminal offenders," a term that included writers, poets,painters (those who used nude models), abortionists, and advertisers of birthcontrol devices. He prodded government agents to harass druggists and physicians who sold or distributed birth control devices. As special investigator for the post office in New York City, in 1905, he instituted legal proceedingsagainst George Bernard Shaw's play Mrs. Warren's Profession. Shaw retaliated by calling his opponent's puritanical endeavors "Comstockery."
Comstock's Nemesis
"Comstockery" resulted in the jailing of Margaret Sanger at least nine timesfor campaigning for the right of women to use birth control. Born Margaret Higgins on 14 September 1879, in Corning, New York, the future reformer was oneof eleven children. She attributed her mother's early death at age fifty toher frequent pregnancies.
After the death of her mother, the young teacher turned to medicine, enrolling in White Plains Hospital--a drafty 12-bed building with no plumbing or central heating--where she completed two years of nurse's training. She became head nurse in the woman's ward, and in 1912, married William Sanger in a quickceremony--reporting for her 4:30 a.m. shift the next day.
With $50, Sanger and her sister Ethel Byrne opened the first birth control clinic in America on 16 October 1916--an act of civil disobedience. The clinicoccupied two rooms at 46 Amboy Street in the Brownsville section of Brooklyn,New York. In the ten days before police closed the clinic, almost 500 womenarrived to get information about birth control and contraceptive devices. Sanger was arrested and sentenced to 30 days in prison. Her appeal to the New York Court of Appeals resulted in a 1918 ruling that allowed doctors to advisetheir married patients about birth control for health reasons.
Five years after opening her clinic, Sanger founded the American Birth Control League, which lobbied politicians to make contraception legal. The group urged Congress to exempt doctors from laws that banned the prescription and mailing of contraceptive devices.
To achieve that end, Sanger asked the staff of her American Birth Control League to find proof that the Comstock Act did impede the distribution of birthcontrol materials. They found it in the 1930 amendment to the Tariff Act. This law used original 1873 Comstock Act language prohibiting "the importation into the United States, from any foreign country, any article whatever for preventing conception, or induced abortion."
In 1932, at Sanger's request, a Japanese doctor sent her a package of contraceptive supplies. Customs officers stopped the package. Sanger asked the physician to mail the package again, this time addressing it to her part-time employee, Dr. Hannah M. Stone, a qualified, licensed gynecologist. At the arrivalof the package of 120 rubber pessaries (devices placed in the vagina to block conception), agents again confiscated it, ordering Dr. Stone to return it.Sanger, the American Birth Control League, Dr. Stone, the National Committeeon Maternal Health, and lawyer Morris Ernst immediately went to court, claiming the supplies were medical exemptions under the law. Using Dr. Stone as theclaimant, they filed the case in the U.S. District Court for the Southern District in New York City on 10 November 1933.
A Public Sea Change
It took two years before the case came to trial. During this time, contraception was so popular that the government's regulatory agents could not stop birth control items from being bought and sold. Druggists and doctors dispensedthem with impunity and even the Sears, Roebuck catalog advertised them as "preventives." In 1935, the American Medicine journal noted that mailingcontraceptive devices was "as firmly established as the postage stamp."
Polls at this time showed that 70 percent of the American public wanted birthcontrol made legal. One poll, commissioned by Ladies' Home Journal, found that 79 percent of readers--51 percent of them Catholic--favored loosening the laws.
Influenced by this change in attitude, the district court agreed to hear United States v. One Package in 1935. Dr. Stone testified that she had imported the pessaries for experimental purposes, to test them for reliability in preventing contraception and disease. She said she also prescribed them towomen who should not bear children. The United States sought a decision directing the forfeiture and destruction of "one package" of pessaries. On 6 January 1936, Judge Grover Moscowitz ruled that the Tariff Act did not extend to the prevention of contraceptives intended for medical use.
However, the government appealed, and Ernst, relying on donations to cover his fees, defended his client before a three-judge panel of the Second CircuitCourt of Appeals in New York. At the trial, a number of doctors spoke on Dr.Stone's behalf. Even a government witness agreed with them, saying that froma medical standpoint, sometimes it was vital to prescribe a contraceptive for some patients to prevent or cure disease.
The judges reached their decision on 7 December 1936. They believed that while only the Tariff Act was at issue in this case, all aspects of the ComstockAct were part of a consistent effort to suppress immoral articles and obsceneliterature. As for the Tariff Act itself, Section 305(a) had coupled the word "unlawful" with the word "abortion," though not with the word "contraception," making the importation of contraceptive items legal. The court also decided contraceptives were necessary for the lawful purposes Dr. Stone had described and allowed them to enter the United States.
Fallout
In 1937, the American Medical Association (AMA) finally reversed its long-held refusal to study contraception and began to support state and federal reforms. As Sanger biographer Ellen Chesler has written, the AMA regarded birth control "as a responsible element of normal sexual hygiene in married life. Tothis end, it recommended that the subject be taught in medical schools, thatscientific investigation of various commercial materials and methods be promoted, and finally that the legal rights of physicians in relation to the use of contraceptives be clarified."
Although the birth control movement claimed victory in United States v. One Package, not until 1971 would Congress rewrite the Comstock law to remove the specific mention of birth control material. The use of contraceptive devices--even for married couples--remained illegal until 1965, when the Supreme Court overturned the laws in 1964 with Griswold v. Connecticut. In1972, the Court made the use of contraceptive items lawful for single peopleas well in Eisenstadt v. Baird.
Related Cases
United States
Appellee
Dr. Hannah M. Stone, claimant for "one package" (of merchandise)
Appellant's Claim
That Stone did not have the legal right to import one package of contraceptive devices into the United States, according to the 1930 Tariff Act.
Chief Lawyer for Appellant
Morris L. Ernst
Chief Lawyer for Appellee
Lamar Hardy
Judges
Augustus N. Hand, Learned Hand, Thomas Swan
Place
New York, New York
Date of Decision
7 December 1936
Decision
Laws prohibiting Americans from importing contraceptive devices or items causing "unlawful abortion" did not apply to physicians who used the items to protect the health of patients.
Significance
This decision allowed contraceptive devices to be imported into the United States, paving the way for the 1937 decision of the American Medical Association that birth control was a medical service that could be taught in schools ofmedicine.
Anti-obscenity laws became popular in the states after the Civil War. So censorious was public opinion that in 1869 Harriet Beecher Stowe endured widespread criticism for mentioning Lord Byron's incestuous activities with his sister in the Atlantic Monthly. In 1873, Congress passed the federal Comstock Act, which made criminal the mailing or advertising of "obscene" materials--including literature on birth control.
No Fun for Anyone
The act was named after Anthony Comstock of New Canaan, Connecticut. Devotionto his mother--who died when he was ten--compelled him to "protect" women from smut, quack doctors, and other influences he thought harmful to them. In 1872, he joined a YMCA fight against pornographic literature. To persuade Congress to pass the federal obscenity act, Comstock displayed piles of pornography, along with contraceptives, and abortifacients (items that cause abortion), damning them all as equally immoral.
Comstock was a busy man. He founded the New York Society for the Suppressionof Vice to arrest "criminal offenders," a term that included writers, poets,painters (those who used nude models), abortionists, and advertisers of birthcontrol devices. He prodded government agents to harass druggists and physicians who sold or distributed birth control devices. As special investigator for the post office in New York City, in 1905, he instituted legal proceedingsagainst George Bernard Shaw's play Mrs. Warren's Profession. Shaw retaliated by calling his opponent's puritanical endeavors "Comstockery."
Comstock's Nemesis
"Comstockery" resulted in the jailing of Margaret Sanger at least nine timesfor campaigning for the right of women to use birth control. Born Margaret Higgins on 14 September 1879, in Corning, New York, the future reformer was oneof eleven children. She attributed her mother's early death at age fifty toher frequent pregnancies.
After the death of her mother, the young teacher turned to medicine, enrolling in White Plains Hospital--a drafty 12-bed building with no plumbing or central heating--where she completed two years of nurse's training. She became head nurse in the woman's ward, and in 1912, married William Sanger in a quickceremony--reporting for her 4:30 a.m. shift the next day.
With $50, Sanger and her sister Ethel Byrne opened the first birth control clinic in America on 16 October 1916--an act of civil disobedience. The clinicoccupied two rooms at 46 Amboy Street in the Brownsville section of Brooklyn,New York. In the ten days before police closed the clinic, almost 500 womenarrived to get information about birth control and contraceptive devices. Sanger was arrested and sentenced to 30 days in prison. Her appeal to the New York Court of Appeals resulted in a 1918 ruling that allowed doctors to advisetheir married patients about birth control for health reasons.
Five years after opening her clinic, Sanger founded the American Birth Control League, which lobbied politicians to make contraception legal. The group urged Congress to exempt doctors from laws that banned the prescription and mailing of contraceptive devices.
To achieve that end, Sanger asked the staff of her American Birth Control League to find proof that the Comstock Act did impede the distribution of birthcontrol materials. They found it in the 1930 amendment to the Tariff Act. This law used original 1873 Comstock Act language prohibiting "the importation into the United States, from any foreign country, any article whatever for preventing conception, or induced abortion."
In 1932, at Sanger's request, a Japanese doctor sent her a package of contraceptive supplies. Customs officers stopped the package. Sanger asked the physician to mail the package again, this time addressing it to her part-time employee, Dr. Hannah M. Stone, a qualified, licensed gynecologist. At the arrivalof the package of 120 rubber pessaries (devices placed in the vagina to block conception), agents again confiscated it, ordering Dr. Stone to return it.Sanger, the American Birth Control League, Dr. Stone, the National Committeeon Maternal Health, and lawyer Morris Ernst immediately went to court, claiming the supplies were medical exemptions under the law. Using Dr. Stone as theclaimant, they filed the case in the U.S. District Court for the Southern District in New York City on 10 November 1933.
A Public Sea Change
It took two years before the case came to trial. During this time, contraception was so popular that the government's regulatory agents could not stop birth control items from being bought and sold. Druggists and doctors dispensedthem with impunity and even the Sears, Roebuck catalog advertised them as "preventives." In 1935, the American Medicine journal noted that mailingcontraceptive devices was "as firmly established as the postage stamp."
Polls at this time showed that 70 percent of the American public wanted birthcontrol made legal. One poll, commissioned by Ladies' Home Journal, found that 79 percent of readers--51 percent of them Catholic--favored loosening the laws.
Influenced by this change in attitude, the district court agreed to hear United States v. One Package in 1935. Dr. Stone testified that she had imported the pessaries for experimental purposes, to test them for reliability in preventing contraception and disease. She said she also prescribed them towomen who should not bear children. The United States sought a decision directing the forfeiture and destruction of "one package" of pessaries. On 6 January 1936, Judge Grover Moscowitz ruled that the Tariff Act did not extend to the prevention of contraceptives intended for medical use.
However, the government appealed, and Ernst, relying on donations to cover his fees, defended his client before a three-judge panel of the Second CircuitCourt of Appeals in New York. At the trial, a number of doctors spoke on Dr.Stone's behalf. Even a government witness agreed with them, saying that froma medical standpoint, sometimes it was vital to prescribe a contraceptive for some patients to prevent or cure disease.
The judges reached their decision on 7 December 1936. They believed that while only the Tariff Act was at issue in this case, all aspects of the ComstockAct were part of a consistent effort to suppress immoral articles and obsceneliterature. As for the Tariff Act itself, Section 305(a) had coupled the word "unlawful" with the word "abortion," though not with the word "contraception," making the importation of contraceptive items legal. The court also decided contraceptives were necessary for the lawful purposes Dr. Stone had described and allowed them to enter the United States.
Fallout
In 1937, the American Medical Association (AMA) finally reversed its long-held refusal to study contraception and began to support state and federal reforms. As Sanger biographer Ellen Chesler has written, the AMA regarded birth control "as a responsible element of normal sexual hygiene in married life. Tothis end, it recommended that the subject be taught in medical schools, thatscientific investigation of various commercial materials and methods be promoted, and finally that the legal rights of physicians in relation to the use of contraceptives be clarified."
Although the birth control movement claimed victory in United States v. One Package, not until 1971 would Congress rewrite the Comstock law to remove the specific mention of birth control material. The use of contraceptive devices--even for married couples--remained illegal until 1965, when the Supreme Court overturned the laws in 1964 with Griswold v. Connecticut. In1972, the Court made the use of contraceptive items lawful for single peopleas well in Eisenstadt v. Baird.
Related Cases
- New York v. Sanger, 118 N.E. 637 (1918).
- Griswold v. Connecticut, 381 U.S. 479 (1964).
- Eisenstadt v. Baird, 405 U.S. 438 (1972).
Further Readings
- Chesler, Ellen. Woman of Valor: Margaret Sanger and the Birth Control Movement in America. New York: Doubleday/Anchor Books, 1992.
- Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Macmillan Publishing Group, 1994.
- Sicherman, Barbara, and Carol Hurd Green. Notable American Women: TheModern Period. Cambridge, MA: The Belknap Press, 1980.
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