New York v. Sanger

After her release, Sanger filed an ex post facto appeal. Goldstein argued it before the Court of Appeals of the State of New York, saying: The Comstock Act "violates both the federal and state Constitutions," and by preventing the

dissemination of information to all persons . . . it fails to make provision for cases of women who suffer from certain infirmities . . . endangers their lives and brings about a condition injurious to their health.

However, the court thought the Comstock Act was within the police powers of the legislature, because it benefited "the morals and health of the community." On the other hand, if the law prevented a "duly licensed physician" from taking proper care of his married patients, then the law would be unconstitutional. However, Sanger was not a doctor, and therefore the law did not apply to her. Besides, physicians were "excepted from the provisions of this act."

Nevertheless, warned Judge Frederick E. Crane, the law does not allow even doctors to advertise such matters or to give "promiscuous advice to patients irrespective of their condition." It does protect a doctor who "gives such help or advice to a married person to cure or prevent disease."

With these words, Crane upheld Sanger's conviction under the New York obscenity law--laypeople could not distribute information on birth control without violating the 1873 Comstock Act. However, by claiming that the Comstock Act provided for a medical "exception," Crane established the right of doctors to provide contraceptive advice to married women for "the cure and prevention of disease." (Formerly "disease" meant venereal disease and applied to men only. Crane broadened the interpretation of "disease" to include women's ailments.)

Sanger used Crane's decision to launch a nationwide chain of doctor-staffed birth control clinics, and lobbied for state laws allowing "doctors only" to prescribe contraceptive devices. In 1921, her emboldened American Birth Control League tried to remove all state and federal restrictions on the right of physicians to prescribe birth control devices. Not until United States v. One Package (1936), did Sanger achieve her goal of reversing the Comstock Act's classification of birth control literature as obscene. Thirty-five years later Congress rewrote the statute to remove any mention of birth control. Many states banned the use of contraceptives by married couples until Griswold v. Connecticut (1965), and not until 1972 could unmarried couples legally use birth control devices (Eisenstadt v. Baird).