Woman of Valor (50 page)

Margaret arranged for an eccentric American birth control donor by the name of Ethel Clyde to fund Ishimoto's clinic and also sent supplies from the Clinical Research Bureau in New York. A Birth Control Consultation Centre quietly opened in Tokyo in 1934. By 1937 the facility had moved to a new location, and its dedication became the media highlight of Margaret's visit. With great fanfare, she called the clinic the first of its kind outside the West and placed Ishimoto's name in the company of such great women in history as Mary Wollstonecraft, Susan B. Anthony, Olive Schreiner, and Ellen Key. Ishimoto had by then come under intense political pressure, and she was grateful for Margaret's inspiring visit. Indeed, within weeks of these events, Japan's air force bombed Shanghai. All dissent from official government policy was suppressed, and domestic resources were diverted to the nation's military agenda.

“You left us a fresh strength to push back all the depressed feelings which are hanging around us,” Ishimoto wrote Margaret in New York. “I am writing under dimmed lights—fear of war planes above us—with a heart full of love, admiration and gratitude.” Four months later, on December 15, 1937, Ishimoto was arrested by Japanese authorities, charged with promoting “dangerous thoughts” and jailed for ten days. The clinic was closed, its records confiscated, and birth control activity suppressed in Japan until after World War II. On her release from what turned out to be only the first of several internments, she wrote again to Margaret with unusual grace and startling prescience:

By this time, Margaret was safely returned to the United States. She had planned a much longer trip that would have finally taken her to China and Malaysia, but once again personal circumstances intervened, when she fell and broke her arm. Very much in pain, she spent only eight days in Tokyo and then returned home, leaving her companions to seek further adventure without her. Florence Rose, in fact, was still in Shanghai when the bombing began.

Margaret responded to the news from Japan with a mixture of defiant anger and sad resignation. She renewed her membership in Jane Addams's International League for Peace and Freedom but privately acknowledged the inevitability of a war to stop the spread of Fascism in Asia and in Europe. The storm clouds blackening the two continents put a halt to her own international initiatives and to those of her emissaries abroad as well.

Agnes Smedley, in these years, was marching with the Red Armies across China, forging a friendship with Mao Zedong, and faithfully promoting the cause of a united Communist front for China through the articles and books she published in the West. She was never formally admitted to the Chinese Communist party and always claimed independent status as a freelance revolutionary. Indeed, highly considered British intelligence documents identify her as an anarchist and syndicalist, not as a Communist, but American intelligence thought otherwise.

Smedley kept in touch with Margaret, who collected a few thousand dollars from John D. Rockefeller, Jr., in 1937 and sent it to a Chinese doctor and an American missionary in Shanghai. They briefly opened a clinic and distributed sponges and foam powder. En route to the war front later that year, Smedley wrote to request that some of these supplies (along with a phonograph and records for her personal use) also be sent to her in the care of a friend at a YWCA in an outlying province. Margaret was also speaking on behalf of Chinese independence at the time under the auspices of Pearl Buck, who had become the Far East's most popular spokesperson in the West with the publication in 1931 of her best-selling and prize-winning book,
The Good Earth
. After Buck gave a highly publicized speech in Washington calling Margaret one of the most courageous women of the times, the two women quickly became intimate friends. Margaret in return lent support to East—West, the then mainstream China advocacy organization that would only come under anti-Communist fire years later during the McCarthy era.
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Agnes Smedley returned to the United States from China in 1939, her whereabouts tracked by FBI agents, who described her in confidential documents as having an extensive Communist background and many contacts with known party members at home, and who warned that she was always armed. Her last surviving correspondence with Margaret in 1941 would request support for birth control clinics in Hong Kong run by British relief organizations. If by this time Margaret harbored any suspicions of her old friend, she did not let on and immediately sent $500 for the use of a British friend of Smedley's, who was the head of a Hong Kong Eugenics League. Whether the two women ever met or spoke again, however, is not documented, though at the time of Smedley's death in England in 1950, of complications following surgery, the FBI was still linking them. Under interrogation by the House Committee on Un-American Activities the following year, a federal government employee, accused of Communist ties, testified that Smedley had given him a letter of introduction to Sanger, but he claimed never to have reached her.
²⁰

 

Terribly distressed over the deteriorating situation in Europe and in India, Edith How-Martyn retired with her husband to Australia. In the absence of adequate resources for foreign work, and unable to get to London herself, Margaret then resigned the presidency of the Birth Control International Information Centre, and it merged with Britain's National Birth Control Association (later renamed the Family Planning Association), a domestic advocacy and service organization, which served as an umbrella for local clinics, much as the American Birth Control League (and later the Planned Parenthood Federation) did in America.

Meanwhile, the civil war for independence in India put all other concerns there on hold. Many of the outspoken local reformers who had supported Sanger were jailed for their defiance of the Raj, and any hope of addressing the nation's pressing population problem awaited the partitioning of India and Pakistan in 1947 and the restoration of peace under the independent government of Prime Minister Nehru.
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In adversity, Margaret once again found renewed strength. The rise of Fascism, with its reactionary social goals and its sad consequences for her dearest friends, stirred her deepest passions, and the military campaigns advanced by men always rekindled her most strident feminism.

In impassioned remarks prepared for the Century of Progress exposition in Chicago in 1934 she had quoted from the American poet Walt Whitman:

The achievements being celebrated as “progress,” she pointed out, by and large reflected a “masculine psychology” or a “male supremacy.” Men had spanned the oceans, conquered air, explored distant universes, harnessed energy, and controlled infection and disease here on earth. Yet these enormous scientific achievements were in danger of becoming little more than “instruments of destruction.” Harkening back to the argument she had first made forcibly in the aftermath of World War I, she insisted that the most powerful nations of the world were again poised on the brink of war, because the control of population had never been made a priority. Indeed, the situation was getting worse. The world's population was increasing by an estimated 50,000 people a day. The expansionist aggressions of Germany and Japan were proving her point.

Echoing her earlier writings, she called on the women of the world to rise up and rebel, not through superficial remedies, but by concentrating all their energies on their reproductive rights. She again confidently predicted that “all the great grandiose schemes for world improvement” would fail until women empowered themselves by achieving control of their fertility.

“The solidarity of Woman is as noble as the brotherhood of man,” she concluded. “Instead of a world created by irresponsible hordes in hatred and antagonism,
Free Woman
shall guide us into a future created by all-embracing love through the consciousness of birth control.”

“Shall women of today be able to hold the freedom they have so far gained?” she again demanded in a 1937 speech. “Not unless they cease being incubators for war mad dictators.”
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The stage was set for Margaret's postwar reemergence as a lonely voice for controlling the world's population by first recognizing and addressing the ever-precarious status of its women. But first there were matters at home to resolve.

D
uring her long trip to India in 1936, Margaret had plenty of time to think over the question of whether a continued lobbying effort in Washington would be worth the effort. As a British colleague visiting the United States had put it the year before, perhaps she really was “needlessly knocking her head against a brick wall.” Commercial contraception was overwhelming the government's meager regulatory and enforcement capacity, leaving little chance that licensed druggists and/or physicians would be harassed. Even the Sears, Roebuck catalog had begun to advertise “preventives.” In 1935, the journal
American Medicine
had maintained that the mailing of contraceptive supplies and instruction was “as firmly established as the use of a gummed postage stamp,” and while she was abroad, a much-anticipated report of the American Medical Association committee studying contraception found no actual evidence of interference with medical practice by existing state or federal laws. Margaret's rationale for lobbying as a tool to educate public opinion was also substantially undermined by the publication of polls showing that 70 percent of Americans, comprising at least a clear majority in every state, now supported the legalization of birth control. (Within two years a major poll commissioned by the
Ladies' Home Journal
would find 79 percent of its own readers in favor nationwide, a figure that included 51 percent of all Catholic women surveyed.) Economic issues were paramount: women wanted contraception, not because of abstract eugenic concerns or social considerations, but simply so they could space or limit the number of their children in accordance with family income. From an educational standpoint, her campaign had done its work, even if the Comstock laws technically remained valid.
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Still not ready to give up, Margaret at first dismissed the admonition of her British friend as hopelessly idiotic. “This sort of thing is so English,” she told her aide, Hazel Moore. “They spend 3 weeks in USA and tell us how to run our government.” But further controversy then erupted over the continued utility of her Washington enterprise when the American Birth Control League circulated a pamphlet claiming that the laws no longer served as any impediment whatsoever. Forced to respond, she asked her staff to find evidence to the contrary and came up with only a handful of cases, almost all of them involving overzealous customs officers who had stopped contraceptive literature and supplies at the borders on the authority of a 1930 amendment to the Tariff Act reiterating the original Comstock provisions. One such incident had involved Moore, who was detained while returning from England carrying birth control literature. There had been only one recent interstate incident, however, and it had never been litigated. Lawyers representing Margaret, the ABCL, and Robert Dickinson's National Committee on Maternal Health finally sat down with Morris Ernst and agreed that the courts had all but achieved the objectives of legislative reform.
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This was even becoming true in the remaining importation disputes. In 1932, a package of contraceptive supplies sent to Margaret by a Japanese physician, whom she had met at an international birth control conference, had been intercepted by United States customs. At the urging of Ernst, Margaret then requested that the materials be mailed again, but this time she had the shipment addressed to Dr. Hannah Stone, so as to stage a clear case on medical exemption. This would complete the recent judicial reconstruction of the Comstock prohibitions on obscene literature and interstate transport of contraception. The case,
United States v. One Package Containing 120, more or less, Rubber Pessaries to Prevent Conception
, was filed in the United States District Court for the Southern District in Manhattan on November 10, 1933, with Dr. Stone as claimant. Margaret found a donor to cover Ernst's fees.

The calendar moved slowly, but the trial finally got underway in 1935 and produced a ruling by Judge Grover Moscowitz that the tariff prohibitions could not be used to prevent the importation of contraceptives intended for legitimate medical use. The government appealed, and in the spring of 1936, with the backing of all factions of the birth control movement, Ernst defended the case before a three-judge panel in the Second Circuit Court of Appeals in New York, consisting of Judge Thomas Swan and the cousins, Augustus and Learned Hand. Swan and Augustus Hand had, of course, already delivered landmark readings of the Comstock provisions in the
Young's Rubber
and
Dennett
cases, and it came as little surprise when their ruling in this instance ordered the release of the confiscated package of pessaries. The sweeping nature of the decision, however, was unanticipated. Augustus Hand argued that although the importation statute alone was under consideration, all components of the Comstock law should be construed consistently. He advised that the language of the original law no longer be read literally—that the intent of the 1873 prohibitions had been to protect against materials thought problematic and dangerous fifty years earlier, but no longer so considered. Acknowledging an extensive body of medical and sociological evidence introduced by Ernst into the trial record as proof that contraception had become a safe and essential element of modern medical practice, Hand insisted that the law henceforth be interpreted to embrace “only such articles as Congress would have denounced as immoral if it had understood all the conditions under which they were to be used.” He continued: “Its design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well-being of their patients.” Hand admitted having relied on “common sense” to interpret Congressional intent in this manner.
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Margaret was out of the country when the decision was rendered, but on her return, she handily turned the victory into a public relations triumph. Claiming the “greatest legal
VICTORY
in the Birth Control Movement,” she inveigled the press into celebrating with her.
Time
magazine branded the decision “another successful milestone” in her “tireless” campaign. The
Nation
, long an advocate on the left, applauded the emergence of the birth control movement into “the bright light of scientific acceptance and friendly publicity.”
Life
, the newest addition to Henry Luce's burgeoning publishing empire, featured a four-page photo spread spanning her life in a series of flattering poses, along with shots of Noah, the two Sanger boys, and such prominent friends and supporters as Ellis, Wells, Pearl Buck, and Kit Hepburn, identified as the mother of the actress. In January of 1937, over the vocal protest of the city's Catholic community, Margaret received the annual award of honor given by the Town Hall Club, a New York civic association, and within months—on July 3, 1937, for publication on Independence Day—she announced the dissolution of the National Committee, “its work accomplished.”
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Her news release acknowledged the Second Circuit's decision, and along with it, the historic endorsement of contraception by the American Medical Association at its annual meetings that year. A resolution to study contraception and to support state and federal legislative reform had first been introduced at the AMA convention of 1932, where it was voted down in executive session. It took until 1935 just to get an investigation of the matter underway and two years after that to complete the undertaking. In the interim, however, the powerful organization handed Margaret an official rebuke in the form of a resolution condemning the support of lay propagandists by medical doctors. The 1937 action finally granting a medical imprimatur to artificial contraception represented a dramatic policy reversal, one which also conceded Margaret's long-held view on what constituted the only acceptable standards for its use: “Voluntary family limitation is dependent largely on the judgment and wishes of individual patients,” the report proclaimed. Although insisting that birth control remain under strict medical supervision, the AMA no longer regarded its proper use only in the event of pathological indications but as a responsible element of normal sexual hygiene in married life. To this end, it recommended that the subject be taught in medical schools, that scientific investigation of various commercial materials and methods be promoted, and finally that the legal rights of physicians in relation to the use of contraceptives be clarified. All in all, it was another page 1 story for birth control.
⁵

The AMA may have been willing to yield at long last to the reality of established contraceptive use, but it was not prepared to accept any conclusive reading of the Second Circuit Court's ruling with respect to physicians' rights. Physicians were still not fully protected, the
Journal of the American Medical Association
cautioned, with a headline declaring “Contraceptive Advice, Devices and Preparations Still Contraband.” And, despite the conciliatory nature of its own committee report, the AMA once again accused Margaret directly of “misleading propaganda,” jealously keeping its distance. To the AMA the court's ruling dealt narrowly with the issue of importation, not more broadly with “the right of a physician to advise the practice of contraception.” What is more, the ruling technically applied only within New York, Connecticut, and Vermont, those states within the jurisdiction of the circuit court.

Morris Ernst, in a statement endorsed by an entire committee of birth control lawyers, replied to the contrary that the
One Package
decision explicitly stated the court's intent to move beyond the narrow issue of importation and provide a consistent reading of all parts of the Comstock law, in line with
Young's Rubber
and
Davis
. He insisted that the Second Circuit ruling did not “stand alone” but conformed to the Sixth Circuit's findings in
Davis
and represented “the last word on the subject.” This was all but confirmed in his view by the fact that the United States solicitor general decided not to appeal the ruling to the Supreme Court. Ernst further argued that state courts could be expected to follow the lead of the federal judiciary. Forty of the then forty-eight states at this juncture either had no statutes prohibiting contraception or already exempted physicians and/or pharmacists. He told a conference of birth control advocates that “the law process is a simple one—it is a matter of educating judges to the mores of the day.” Enthusiastic in his praise for Margaret's work in Washington, he added that “it is perfectly easy to win a case after Margaret Sanger has educated the judges, and she has educated any number of them. I have merely been a mouthpiece.”
⁶

In fact, as the legal setbacks to clinics in Massachusetts and Connecticut would soon demonstrate, subsequent judicial decisions at the state level did not turn out to be as salutary as Ernst predicted. The legal history of contraception during the following three decades would confirm the AMA's caution, along with the wisdom of Margaret's earlier observation that laws are best made by legislators, not judges. This was also the view expressed by Learned Hand in his separate, though concurring, decision in the
One Package
case. Though reluctant to dissent in this instance, Hand did declare his reservation about the underlying rationale of the majority's decision. He was unwilling to buy the view of his colleague and cousin, Augustus, that it had never been the intention of the original Comstock law to forbid contraceptives, whether or not they were prescribed by physicians and intended for lawful use. “Many people have changed their minds about such matters in sixty years,” he wrote, “but the act forbids the same conduct now as then; a statute stands until public feeling gets enough momentum to change it, which may be long after a majority would repeal it, if a poll were taken.” The courts in Massachusetts and Connecticut would soon echo these sentiments, and local prohibitions endured there until the
Griswold v. Connecticut
decision of 1965 established that the private use of contraceptives by married Americans is an inherent constitutional right.
⁷

It would not be until 1970 that Congress finally rewrote the federal Comstock laws and formally removed the label of obscenity from contraception. Two years later, the Supreme Court, in
Eisenstadt v. Baird
, would extend the right of contraceptive practice to the unmarried.

 

Yet the full impact of the legal cloud that remained over birth control was felt less by the state courts than by the administrative agencies of the federal, state, and county governments, where contraception was incorporated into public health and social welfare programs only in the most haphazard fashion, and only in regions of the country where it would not stir controversy. In the final report of her National Committee, Margaret estimated that the country needed no fewer than 3,000 contraceptive clinics, approximately ten times the existing number of public and private facilities combined. She called on the federal government to provide them through existing public health channels.

“We urge caravans of education and help for mountain women, farm women, mothers on distant homesteads, mothers in all districts, city and country, who are now neglected,” she wrote, and echoing her earliest and boldest pronouncements, she asked that “an army of equipped, sympathetic nurses take up this task.” The statement revealed, if not explicitly, another reason for closing up the lobbying effort in Washington. She could no longer defend, even on pragmatic grounds, the pursuit of narrow legislation authorizing only doctors to prescribe contraceptives. Doctors were simply too expensive. Reversing her long-standing legislative position, she acknowledged that if the public was paying, the cheaper services of nurses and medical paraprofessionals should also be legalized.
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