Courage like hers and like that of others who have undergone arrest
and imprisonment, or who night after night and day after day have
faced street crowds to speak or to sell literature--the faith and the
untiring labors of still others who have not come into public notice--have
given the movement its dauntless character and assure the final victory.
One dismal fact had become clear long before the Brownsville clinic
was opened. The medical profession as a whole had ignored the tragic
cry of womanhood for relief from forced maternity. The private
practitioners, one after another, shook their heads and replied: "It
cannot be done. It is against the law," and the same answer came from
clinics and public hospitals.
The decision of the New York State Court of Appeals has disposed of
that objection, however, though as yet few physicians have cared to
make public the fact that they take advantage of the decision. While
the decision of the lower courts in my own case was upheld, partly
because I was a nurse and not a physician, the court incidentally held
that under the laws as they now stand in New York, any physician has a
right to impart information concerning contraceptives to women as a
measure for curing or preventing disease. The United States Supreme
Court threw out my appeal without consideration of the merits of the
case. Therefore, the decision of the New York State Court of Appeals
stands. And under that decision, a physician has a right, and it is
therefore his duty, to prescribe contraceptives in such cases, at
least, as those involving disease.
It is true that Section 1142 of the Penal Code of New York State does
not except the medical man, and does not allow him to instruct his
patient in birth control methods, even though she is suffering from
tuberculosis, syphilis, kidney disorders or heart disease. Without
looking farther, the physicians had let that section go at its face
value. No doctor had questioned either its purpose or its legal scope.
The medical profession was content to let this apparent limitation
upon its rights stand, and it remained for a woman to go to jail to
demonstrate the fact that under another section of the same code--1145--the
physician had the vital right just described.
It is safe to say that many physicians do not even yet know of their
legal rights in this matter.
But here is what the New York State Court of Appeals said on January
8, 1918, in an opinion thus far unquestioned and which is the law of
the state:
Public-domain text, read in full here on John Shaqi.
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