Woman of Valor (21 page)

“Ethel was a smoldering fire, Margaret a blazing fire,” as Olive Byrne Richard later distinguished them, saying elsewhere of her mother that “she liked to experience things but she had no endurance.” Yet, the differences were about politics as well as character. As a hardworking nurse for the remainder of her life, Ethel would cleave to simple values. She could never countenance the deal that had been struck with authorities on her behalf or tolerate the aristocratic men and women who were being welcomed into the birth control cause. She had, indeed, confided to Margaret from jail: “I saw Mrs. Grace [Sargeant Crane] for a minute and she expressed her
pride
! in knowing the Birth Control Sisters! And I thought when I looked at her all done up in her thousand dollars worth of elegance, You should worry; ain't it a fact.” But Margaret's view of the ability of upper class women to make things happen had by then dramatically changed from the unbridled contempt of her
Woman Rebel
days. “It is true that the fashionable seem far removed from the cause and its necessity,” she wrote back. “But we cannot doubt that they and they alone dominate when they get an interest in a thing. So little can be done without them.”
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The trials of Margaret Sanger and Fania Mindell got underway on January 29, 1917, while Ethel was still imprisoned and making headlines. Thirty Brownsville mothers who had been clients of the clinic were subpoenaed by the prosecution, and they filled the courtroom laden with bags of bread and fruit to eat, and with pacifiers and extra diapers to service the infants they held at their breasts. Newspaper reporters described a courtroom configuration of those who could barely afford the carfare to bring them to downtown Brooklyn seated beside the fashionable, formidable representatives of the Committee of 100, whose chauffeurs waited outside to drive them back to Manhattan. These accounts created an indelible impression of the birth control movement as a respectable alliance of wealthy and powerful women helping their less fortunate sisters, distinctions of class giving way to the common bond of gender.
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The prosecution called Mindell first, and she was summarily charged with selling Margaret's pamphlet,
What Every Girl Should Know
. Her case was adjourned until the judges had time to read the disputed copy, at which time she was found guilty on obscenity charges and given a $50 fine, which Gertrude Pinchot graciously agreed to pay. (This decision was subsequently reversed on appeal, essentially disposing of the definition of birth control literature as “obscene” under New York State law and providing the basis for Goldstein's later defenses of Sanger and others on charges brought against them in 1919 for distributing birth control propaganda.)
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Margaret's own trial began after additional technical objections by Jonah Goldstein were overruled. The policewoman, Mrs. Whitehurst, took the stand first as a witness for the prosecution. She testified that she had found Mrs. Sanger in the clinic's back room holding a box of suppositories and a rubber birth control appliance. A second witness also claimed to have heard her make abusive comments about the Jewish people, a canard that a third witness disputed, but the tactic, alas, had already done its damage.

Since Margaret openly admitted that she had given out birth control information, the question of her guilt under the state Comstock law was never in question. Most of the trial testimony, however, centered on the narrower issue of whether she had gone beyond verbal instruction to actually fit her clients with cervical devices. To the prosecutor this seemed an even more heinous crime. Boxes of confiscated pessaries, condoms and douching solutions were introduced as evidence, and one Brownsville mother did testify that Margaret had not only explained the contraceptive utility of the pessary when properly fitted but also offered to “adjust it myself,” yet it was never clear that she, in fact, had done so. Margaret only admitted that she had “lectured” women on sexual physiology and hygiene, because they often did not themselves understand the reproductive functions and could not, therefore, comprehend how contraception worked. “Their gratitude was touching,” she had earlier told one newspaper reporter. “Some of them sought to kiss our hands because we had taken an interest in them.”
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The discrepancy between the prosecutor's allegations and the testimony of witnesses evidently troubled the three presiding judges. Indeed the most sympathetic among them, Judge Freschi, then specifically raised the basic question Margaret set out to test—whether the statute's Section 1145 medical exemption did countenance contraception when prescribed for the prevention of disease. This was an important breakthrough in the legal proceedings, because Margaret as a nurse did not have technical standing in court to demand clarification of physicians' rights under the existing statutes. Goldstein seized on the opening, and recognizing that the court had not been willing to hear expert medical witnesses, he had the Brownsville mothers tell their own tragic stories about multiparity, miscarriage, infant death, poverty, hunger, and disease.

Their testimony may have been compelling, but it had little to do with the question of Margaret's guilt or innocence under the law. Goldstein therefore tried to strike a deal in the judge's chambers, requesting a suspended sentence for his client in exchange for her promise not to violate the law again, while he appealed to higher courts on the larger issue of the clear intent of the state's Comstock laws with respect to physicians' rights to prescribe contraception on medical grounds. The court, however, would only comply if she promised to obey the law without limit of time, an agreement she refused to make. “I cannot promise to obey a law I do not respect,” she calmly responded to clapping and shouting in the courtroom. When order was restored, Goldstein asked for leniency on his client's behalf, but she was found guilty and given the choice of paying a $5,000 fine or being sentenced. She chose prison and was given thirty days in the workhouse. By the newspaper accounts of the trial, a single word was then uttered loudly from a far corner of the room. The word was “Shame!”
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Margaret vowed publicly to repeat her sister's hunger strike in jail, and with that threat the women's facility on Blackwell's Island refused to have anything to do with her. She was instead sent to a quieter, more commodious penitentiary for women in Queens. Sobered by having seen Ethel's condition, and recognizing the diminished news value of a repeat performance, especially during a week when the Germans were sinking more American battleships and diplomatic relations between the two countries had been broken, she spent her incarceration compliantly in a private cell. She actually welcomed the rare opportunity to rest and be alone, and told her supporters in a published letter that their “loving thoughts pouring into her” protected her from sadness. She found that what she most resented was the poor quality of the prison food and, desperately hungry, wrote lightheartedly to Ethel questioning which fate was worse, slow starvation over thirty days or “getting the job done quick.” In subsequent years, she would support movements for penal reform and prisoners' rights.
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By her own account, she passed her time reading to the illiterate women on her corridor, most of whom were convicted drug addicts and prostitutes. She even lectured them on sex and birth control over the protest of a resident matron who claimed they knew “bad enough already.” She wrote compassionately of these women to Theodore Debs, the brother of Socialist Party leader Eugene, describing them as innocent victims of childhood poverty, large families and neglect. “I wish I could wrap them all up in my arms and love them back to life again,” he responded. “But the same beastly system which ruined them will pursue them implacably to the morgue and the potters field.” Of Margaret's own situation he said heatedly: “when I think of you caged like a beast, my blood boils with bitter indignation.”
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The only drama in Margaret's prison sentence came as she was about to be released on the bright but cold morning of March 6, 1917. For a month she had flatly refused on civil libertarian principles to submit to the indignity of the routine fingerprinting of prisoners. As the hour of her departure approached, several prison guards attempted to force her hands down on an ink pad, but she resisted and finally emerged the victor to a welcoming party of friends and supporters.

Ethel was there, along with Jonah Goldstein, Anna Lifschiz, Margaret's secretary, and Kitty Marion, a veteran of British suffrage militancy. The civic-minded Women's City Club of New York, which had recently appointed a birth control committee, was also represented, and the Committee of 100 sent the social worker, Helen Todd, chairwoman of the successful Carnegie Hall rally, as its standard bearer. A Russian Jewish immigrant by the name of Rose Halpern carried a bouquet of flowers from the mothers of Brownsville, and just before she died at the age of ninety-three, nearly sixty years later, she spoke to her daughter of her delight in having been present on this historic occasion.
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Margaret's
Autobiography
reports that when she finally appeared after her unexpected delay, the group began to sing the
Marseillaise
—“Ye sons of freedom wake to glory”—while the women prisoners, assembled at the windows of their cells inside, looked on. The French national anthem, then known to Americans as a favored marching song of Allied troops in Europe, made a curious refrain of welcome for a woman of Socialist and pacifist convictions. But it was no less odd than the composition of the assembled group, whose class-consciousness may have been keenly reflected in the manner one of its patrician representatives referred to the occasion. She called it Margaret's “coming out party.”
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An appeal was filed, even though Margaret was self-evidently guilty and had already served her jail sentence. The saga of the Brownsville clinic continued through January 8, 1918, when a verdict was rendered by Judge Frederick Crane of the Court of Appeals of the State of New York. Crane upheld Sanger's conviction under Section 1142 of the state's obscenity law and thereby affirmed the state's right to prohibit laymen and women from distributing contraceptive information. His opinion, however, offered an interpretation of Section 1145 of the law that granted specific license to physicians to prescribe contraception not just to prevent or cure venereal disease, but on more broadly defined medical grounds. The decision offered protection from the risk of prosecution to doctors and to pharmacists acting on medical orders.

Just as Margaret's friend Dr. William Robinson had anticipated, the court provided a legal rationale for building a system of contraceptive service delivery with doctors in charge, the constraint under which Margaret subsequently built the birth control movement. She would have preferred a broader decision, licensing nurses as well, so she had Goldstein petition the U.S. Supreme Court to hear the case. Louis Brandeis, who had achieved distinction as a lawyer through his briefs grounded in social and economic arguments, was newly appointed to the court. He signed Goldstein's petition for a Writ of Error, which was docketed and scheduled for oral argument. America's entry into the world war caused postponements, however, and a hearing was not held until November of 1919. At that time, the court without explanation refused to accept jurisdiction.

While still in jail in February 1917, Margaret had received a frustrated letter from Ethel complaining: “I haven't heard from JJ [Jonah Goldstein]. I have felt just a bit peeved over this law business, which is about the way I imagine you feel too.” But Margaret wrote back that it was foolish to think that Goldstein could “have saved us.” “To me he did everything in his power to clear the issue and to keep it clean,” she continued, “free of the commercial taint the enemy tried hardest to put in.” Twenty-five years later, on the occasion of an anniversary celebration, she was even more effusive with praise for his lawyering: “Your genius got the decision out of the clinic raid for the ‘
DOCS
', she wrote Goldstein. “You should be thanked and praised, not I, but you are used to that system, I know.”
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America's entry into World War I in the spring of 1917 unleashed a shameful assault on political dissent in this country, a hysteria that only intensified after the success of the Bolshevik Revolution in Russia later that year, whose early stages most Socialists and radicals supported. The nation's residual intolerance of nonconformists and troublemakers was whipped into a frenzy of officially sponsored hatred and persecution by Woodrow Wilson's infamous propaganda machinery. Anyone who dared to remain unconvinced of the virtue of “the war to make the world safe for democracy,” was put at substantial risk. Congress passed Federal Espionage and Seditions Acts threatening all speech, press, and assembly believed to obstruct the war effort with substantial fines, imprisonment, and even deportation, when the perpetrators were foreign born. The Wilson administration proudly announced that it had put a virtual police state into effect by instituting military surveillance of all internal radical activity, and states and municipalities quickly followed suit with local ordinances empowering police and investigatory apparatus of their own.

In the year and a half of official military engagement and during the “red scare” that followed the armistice of November 1918, American radicals were made scapegoats of this nationalist and militarist fever. The IWW became a permanent casualty of the mania when its meeting halls throughout the country were raided and plundered, and hundreds of its leaders, including Bill Haywood, were convicted of criminal activity. Seventy-five different magazines and journals on the left were enjoined from publication in a single year, and
The Masses
closed down forever. Five members who had been lawfully elected to the New York State Assembly as Socialists were summarily expelled. In the most celebrated incidences of repression, Eugene Debs received a ten-year prison sentence for delivering standard Socialist rhetoric linking the war effort to capitalist imperialism at a rally in Canton, Ohio, while Emma Goldman and Alexander Berkman were imprisoned and then forced to leave the country as convicted traitors. Even Elizabeth Gurley Flynn and Carlo Tresca, who had for the moment broken all formal ties to the IWW and other radical organizations, were harassed and arrested by federal agents, though never convicted, in both New York and Chicago.
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