Founding Feminists is FMF’s daily herstory column.
January 8, 1917: Ethel Byrne was found guilty today of violating New York State’s anti-birth-control law while working at her sister Margaret Sanger’s birth control clinic when it was raided on October 25th.
She did not contest the accusation that she broke the law, since all three of those arrested that day want to challenge the law itself, Section 1142 of the New York State Penal Code. The law was passed in late 1873, deals with “indecent articles,” and makes it a crime for anyone to furnish or have in their possession any article for the prevention of conception, to advise anyone to use such items, or even to tell someone where such prohibited items may be obtained. The State law followed passage of the Comstock Act by Congress in March, 1873, which similarly classes contraceptive information and devices with banned and indecent items and bars them from the mails.
As a kind of “afterthought,” the State Legislature enacted another section of the law, Section 1145, in 1881, which appears to exempt licensed physicians from the ban, but only if they are prescribing for “the prevention or cure of disease.” Clearly, the burden of proof would be on the physician to show that there was some special and compelling reason, involving the patient’s health, why an exception should be made in a particular case. Because Section 1142 is so explicit in banning contraceptives and birth control information – and violations can bring jail sentences – physicians are not willing to openly discuss birth control or prescribe contraceptives to their married patients until Section 1145 becomes equally explicit about their right to discuss and prescribe birth control on the same basis as other medications or devices.
There were around 100 women in the courtroom today in support of Byrne and they made their feelings known by bursting into applause as Jonah Goldstein, Byrne’s attorney, made his argument against Section 1142. Also present and testifying was Rose Halpern of Brooklyn, representing the patients who are being denied contraceptive information and devices by the law. She has six children between the ages of 16 months and 10 years, and must support them – and any more that may be born – on her husband’s $17 a week salary.
Justice Garvin ruled solely on whether the law had been broken and not on its merits, leaving the issue of constitutionality to higher courts who will rule as the conviction is appealed. The judge postponed sentencing until the 22nd. Margaret Sanger and Fania Mindell’s trials are scheduled to begin on the 29th, and they will be charged with the same “offense” as Byrne.
There have been numerous arrests of those who have attempted to distribute information about birth control, including William Sanger, Margaret Sanger’s husband. In December, 1914, he was tricked into giving a “Family Limitation” pamphlet to someone who posed as a friend of his wife’s and a supporter of birth control, but who was in reality an agent of the self-styled anti-vice crusader Anthony Comstock. Upon conviction on September 10, 1915, Sanger chose to serve time in prison rather than pay the fine imposed.
The opening of the country’s first birth control clinic on October 16th was a much more overt defiance of the law than the occasional and secret distribution of birth control information, so the sentences for the three who were arrested may be severe, but all are determined to keep fighting against the unjust laws that ban birth control devices and information.
INFLATIONARY NOTE : $17 in 1917 = $313.64 today.