Birth control laws : $b shall we keep them, change them, or abolish themDennett, Mary Ware
History
Birth control laws : $b shall we keep them, change them, or abolish them
Dennett, Mary Ware
Birth control; Birth control -- Law and legislation -- United States
Sometimes a mistaken method of preventing vice entails worse evils
than the vice it would prevent. The Liberals oppose the methods
of these postal laws (the Federal obscenity laws) because they
regard them as an example of saving at the spigot and losing at
the bung, an instance of expending a dollar to save a dime. The
question straightway narrows itself into one issue, viz., that of
method. It is agreed on all hands that obscenity should be checked,
and if possible eradicated. The only point is _how_. We regard
these laws as unconstitutional, useless, unnecessary, impolitic
and immoral. They are unconstitutional, because the United States
Constitution simply empowers Congress to establish post offices
and post roads—no more. How then can these words be construed
to authorize our representatives to sit in judgment on the moral
quality of the parcels entrusted to the mails? The Post Office as
we conceive it is a mechanical not an ethical institution. Judge
Story says in his work on the Constitution that Congress can not use
this power (viz., to establish post-offices and post-roads) _for any
other ulterior purpose_, which means, if it means anything, that
while the government may for postal reasons, or for the convenience
and necessity of the service, exclude such articles as liquor and
dynamite, it can not sit in judgment on the intellectual or moral
quality of the communications entrusted to it.
It has many times been suggested that the matter of birth control
legislation be settled by a test case taken to the supreme court on the
ground of unconstitutionality. But in view of the fact that the Supreme
Court declined to act on Margaret Sanger’s case when it was appealed
from the New York courts, and in view of various other precedents, it
has not seemed a promising way to get results, certainly not quick
results. It might take several years at best to carry a case through,
and in the meantime Congress might be only too glad to utilize the fact
that a decision was pending, to postpone its own responsibility to act
on the repeal bill on which it has been asked to act for six years
past. The obvious fact that the ban on the circulation of knowledge
in the Comstock law is contrary to the right of freedom of the press
should alone be sufficient reason for its repeal by Congress. And both
birth control advocates and Congress should pay attention to the fact
that there is first class legal opinion that all the “doctors only”
laws, if enacted, would also be unconstitutional.
Public-domain text, read in full here on John Shaqi.
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