Founding Feminists is FMF’s daily herstory column.
A victory for birth control advocates today, as charges were dismissed against all five defendants arrested on April 15th for distributing contraceptive information, a violation of Section 1142 of the New York State Penal Code.
The doctors and nurses never disputed that they gave information and advice on birth control to an undercover detective. But according to Magistrate Abraham Rosenbluth, the prosecution failed to present any evidence to contradict the assertion of the examining physician that the patient did, in fact, have a serious medical condition which would authorize the distribution of contraceptive information and devices to her “for the protection of her physical health and welfare.”
Rosenbluth’s decision was based on a 1918 ruling by Judge Frederick Crane of the New York State Court of Appeals that licensed physicians should be exempted from prosecution under Section 1142 if they are giving advice or prescribing contraceptives to a married patient “for the prevention and cure of disease.”
Magistrate Rosenbluth spent two weeks weighing the evidence gathered at two previous court sessions, then made his ruling:
Good faith is thus made the test of guilt or innocence. It may well be that, in spite of Mrs. McNamara’s purpose to search out and beguile a suspected violator of the statute, her physical condition, as disclosed to the doctors who are defendants, made their advice and instructions entirely necessary…
If Mrs. McNamara was in such physical condition, before she consulted defendants, that their prescription was unwarranted, and necessarily made in bad faith, that was easily susceptible to affirmative proof, but the prosecution at bar rested its case without any evidence to challenge the diagnosis made by the defendant…
The burden clearly rests on the people in this kind of prosecution to negative the good faith of the doctor or the nurse.
Dr. Hannah M. Stone, director of the facility, the Clinical Research Bureau at 46 West 15th Street in Manhattan, gave out a statement on behalf of herself and Dr. Elizabeth Pissoort, and nurses Marcella Sideri, Sigrid Brestwell and Antoinette Field. In it they said they held “no resentment against the misguided raid and the attempts to fingerprint us.” She continued:
Those responsible for the raid were apparently entirely ignorant that the law expressly permits physicians to give such advice for medical indications. Our Clinical Research Bureau is a most signal and valuable public health service and aids in the working program of many important social service agencies in this city. This decision is a vindication.
The raid has caused much public criticism, even from those who had not been supportive of the clinic in the past, and it has proven to be a great embarrassment to the police department. It was conducted so overzealously and ineptly that many items clearly not having any relation to birth control, such as forceps used to handle instruments being sterilized, were seized. Mary Sullivan, head of the Women’s Bureau of the New York Police Department at the time of the raid, was removed from that position on May 10th for her part in it.
Especially disturbing to the medical community was the confiscation of huge numbers of private patient files, 150 of which have been “lost.” Raids, arrests, and even jail sentences of birth control advocates were common in the early days of the movement. But in the eleven years since Judge Crane’s opinion in “People v. Sanger” (222 N.Y. 192), doctors who prescribe contraceptives to married women whose health would be endangered by pregnancy have been relatively free of harassment, at least in New York. Last month’s raid was quite unexpected, and there is much speculation as to why it occurred.
Hopefully, the public outcry over the methods used, plus the dismissal of all charges against all defendants will be enough to make this the final “raid” in New York State, and the battle for birth control can continue here without medical professionals once again living in fear of arrests and criminal prosecution when treating their patients.
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