RECAP: “Birth Control Law and Reform in the Age before Roe,” Colloquium w/ Kennesaw State Prof. Lauren MacIvor Thompson

If the leak of the Dobbs decision was a surprise, the ruling was anything but. As Kennesaw State Assistant Prof. of History Lauren MacIvor Thompson noted in introducing her September 2 talk at the Kinder Institute, the rolling back of Roe was entirely consistent with how the story of women in the United States has long been one of incomplete gains and the revocation of pre-existing rights. Especially for scholars of reproductive and contraceptive history like herself, Dobbs only raised questions of what comes next.

If we go back to the nation’s beginning, however, we see that questioning the morality and legality of birth control and abortion was in no way foreordained. Throughout early American history, women—often de facto family physicians—managed their bodies with no interference from the state. Surgical abortions gained popularity in the 1820s, with Madame Restell openly advertising her clinics in newspapers. Similarly, contraceptive methods were widely advertised in mail order catalogs—even if in coded form, at times—late into the 19th century. Even the nation’s first law governing abortion, passed by Connecticut in 1821, was done so out of concern for dangerous medications that had found their way to the public.

This would begin to change in the mid-19th century, when Horatio Sorer launched his “physicians’ campaign,” petitioning the governors of every state to criminalize abortion through rhetoric focused on a eugenicist appeal to racial fears; the belief that fetal life began at conception; and a moralistic framing of abortion as violating the ethics of marriage and endangering the foundations of the state. Sorer’s quest would gain momentum in the 1870s, when the Comstock Act opened abortion and birth control up to federal regulation as forms of obscenity, but as Prof. Thompson showed, the real story resides between the lines. Specifically, though every state had criminalized abortion in some form or fashion by the turn of the century, the laws in place almost always contained exceptions for physicians—overwhelmingly white and male—to continue the practice when they saw fit. We see, in this, how physicians’ need to consolidate their professional authority in a medical sphere where they competed openly with midwives and homeopaths was the most pronounced force driving state statutes outlawing abortion. In fact, women sought abortions at roughly consistent rates before and after these statutes, and scientific advancement would see women turn to trained physicians for abortions in increasing numbers in the 1930s. By then, physicians themselves had begun chafing at the harsh anti-abortion laws, despite the fact that previous generations of doctors had led to their passage. As they saw it, any measure of legal scrutiny obstructed them from practicing as they wanted.

It was during these first decades of the 20th century that the history of contraception began to entwine itself with the history of abortion, and two figures with markedly different arguments came to the fore. Originally animated by socialist ideals regarding women’s sexual freedom, Margaret Sanger, a trained nurse, opened the Brownsville Clinic in 1916 on the dual grounds that, without birth control, working class women would never be free and that access to birth control would solve the moral problem of abortion. She was twice arrested under the Comstock Act, eventually fleeing to Europe to escape the law’s ire, and when she returned in 1921, her radicalism had noticeably faded. As founder of the newly formed American Birth Control League, and editor of the ABCL-published Birth Control Review, Sanger wooed physicians and eugenicists alike with her “Doctor’s Only Bill,” which wouldn’t repeal Comstock-related birth control regulations outright but would instead cede all authority over birth control to doctors.

Two things become apparent here, Prof. Thompson argued. First, that we should cease to view Sanger as an activist and should instead historically frame her as part of the medical establishment at the root of the deeply problematic 20th-century history of women and minority health. Second, that when interpreted as such, we can far better understand her debate with contemporary birth control reformer Mary Dennett. After three dangerous pregnancies and persistent subjection to chauvinism—at home, at the doctor’s office, and, following her very public divorce, in the press—Dennett threw herself into activism: as literature coordinator for NAWSA, as a member of the Greenwich Village-based Heterodoxy collective, and as founder of the National Birth Control League. For Dennett and the NBCL, the birth control question was one of civil liberties and free speech. Doctors had a responsibility to provide information about contraception but only parents, not the law, could decide whether or not to use it. Materializing this philosophy would require a wholesale repeal of the Comstock Act’s birth control clause, which Dennett realized would only be possible with physicians’ stamp of approval. In what, for Prof. Thompson, represented the first of three touchstone moments in the early-20th-century history of birth control reform activism, Dennett worked tirelessly throughout 1920 to garner support for her Comstock amendment from the New York Academy of Medicine to no success, a stark reiteration of the degree to which medical power and professionalization had started to control birth control strategy in the United States.

The second touchstone came with 1936’s U.S. v. One Package of Japanese Pessaries, which may have rejected the constitutionality of the Comstock Act’s ban on the sale and shipment of contraceptive devices but, yet again, had nothing to do with morality, nor anything to do with civil liberties. Rather, in an appellate opinion penned by Augustus Hand, the court ruled that the Comstock Act could not be deployed to compromise the work of competent, conscientious physicians, thus legally codifying their authority over contraceptive health. A year later, the AMA endorsed birth control, which brought on the third touchstone, Clarence Gamble’s North Carolina experiment, which distributed and tested faulty foam powder contraception in poor Black communities and, in doing so, laid bare how laws that governed birth control by empowering physicians so easily gave way to racial discrimination and misogynistic paternalism.

The mere existence of Gamble’s program, Prof. Thompson noted in closing, illustrates how much changed in the time between Mary Dennett battling white physicians and white physicians wresting away control of the movement, and subsequent, quite famous legal interventions only reaffirmed this. In Griswold, courts were swayed by arguments regarding doctor expertise, not the civil liberties of married couples, and Roe contained no feminist element at all but instead seemed intent only on growing the power of doctors by championing their constitutional rights as professionals.