Birth control and public policy


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BIRTH CONTROL

A
N
D

PUBLIC POLICY



This REPORT is one of a number to be issued by the Center for the Study of
Democratic Institutions about significant issues involved in the

maintenance of a free society. The Center is now the main ac-
tivity of the Fund for the Republic, Inc. Its studies are devoted
to clarifying questions of freedom and justice, especially those
constitutional questions raised by the emerging power of non-
governmental institutions.

This series of Reports deals, sometimes in a technical way,

with specific aspects of the institutions being studied by the Cen-

ter and its group of Consultants: the corporation, the trade

union, the government, religion, the mass media, and the political

process. The Reports are published as a service to groups and
individuals with special interest in one or another of these

institutions.

This study of public policy with regard to birth control is part

of a larger study of law and morals, which Norman St. John-
Stevas has been working on with the assistance of a fellowship

from the Study of Religious Institutions of the Center for the

Study of Democratic Institutions. Dr. St. John-Stevas’s full

study will be published in England and America early next year

under the title of Life, Death and the Law/^' Dr. St. John-Stevas,

a Roman Catholic, a graduate of both Oxford and Cambridge,
is the author of Obscenity and the Law and a highly praised
study of Walter Bagehot. He has lectured at King’s College,
London, and tutored in jurisprudence at Christ College and

Merton College, Oxford. * Published 1963 by Indiana University Press.

The Center for the Study of Democratic Institutions is a non-

profit educational enterprise established by the Fund for the Re-

public to promote the principles of individual liberty expressed

in the Declaration of Independence and the Constitution. Con-

tributors to publications issued under the auspices of the Center

are responsible for their statements of fact and expressions of

opinions. The Center is responsible only for determining that the

material should be presented to the public as a contribution to

the discussion of the free society.

REPRINTED by the FAMILY LIFE BUREAU
National Catholic Welfare Conference

1312 Massachusetts Avenue, N.W.
Washington, D.C. 20005

with permission of the Center for the Study of Democratic

Institutions. Originally published in 1960.

July 1964



Birth Control
and. Public Policy

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by NORMAN ST. JOHN-STEVAS



( Publisher’s note: Present information indicates that there have been no substantial changes in the above
listed legislation since the original printing of this volume in 1960.)

Nihil Obstat:

Reverend Harry A. Echle
Censor Librorum

Imprimatur:

^ Patrick A. O’Boyle
Archbishop of Washington

May 9, 1964

Reprinted in its present form

by the FAMILY LIFE BUREAU, NCWC
July 1964

Fifty cents per copy



FOREWORD

Americans are hopelessly divided on the question of birth control. One

large group of citizens holds, with the Roman Catholic Church, that

contraception is contrary to the Natural Law, is consequently im-

moral and thoroughly unacceptable as a solution either to the popula-

tion problem facing the nations or the personal problem facing

individual families. Another large group, comprising in all probability

the majority of Americans, regards modem techniques of birth con-

trol as a blessing. Among these supporters of “planned parenthood”

are millions of religious folk. Indeed, a number of church leaders have

lately suggested that under certain circumstances the practice of birth

control may be a couple’s religious duty.

This division between Americans is inevitably the source of friction

and religious tension in the community. From time to time the contro-

versy over birth control flares up on the front pages; but even when

things are comparatively quiet, it ticks away like an angry bomb ready

to explode at any moment.

In our study of religious institutions, the issue has been unavoid-

able, for it is not just a private matter to be solved conscientiously by

individual Americans. There are laws in some states prohibiting the

practice of contraception or its promulgation. There have been bitter

controversies centered around birth control and the public hospital,

birth control and the social welfare agency, the teaching of birth con-

trol in the schools. There have been proposals that the United States

assist foreign nations in promoting birth control, and a flat rejection



of these proposals by the Catholic hierarchy. There have been de-

mands that candidates for office take a public position on the question.

These are not “private” matters.

It is most unlikely that Americans will ever reach ultimate agree-

ment on the morality of birth control. Conceivably, though, some

working agreement about public policy can be achieved. That agree-

ment will not be reached in an atmosphere clogged with exaggerated

charges, emotional recriminations, and sloganeering. It will require a

cool knowledge of the factual situation, of the arguments made for and

against the disputed practice, and of the proper relationship between

morals and law.

In this Report to the Center for the Study of Democratic Institu-

tions, Norman St. John-Stevas has produced a scholarly survey of the

whole birth-control controversy. We are pleased to share it with a
larger public. Incidentally, as the introductory note to this Report

points out, the paper forms part of a comprehensive study of morals

and law which Dr. St. John-Stevas recently completed under a fellow-

ship grant made in connection with the Center’s Study of Religious

Institutions.

John Cogley



History

From the earliest times man has attempted to control conception.

Anthropologists have established that both magical and rational meth-

ods were employed by primitive tribes.^ Amongst the civilised nations

of antiquity, the Egyptians, the Jews, the Greeks, and the Romans all

possessed knowledge of contraception. Plato wished to restrict all pro-

creation by law, confining it to men between the ages of thirty and

thirty-five and women aged twenty to forty. Aristotle also recommended

the legal regulation of conception and approved both abortion and

infanticide. By scientific research, Greek physicians and medical writ-

ers greatly improved existing contraceptive techniques.^ Their discov-

eries were utilised by the Romans, but, contrary to popular belief, con-

traceptive knowledge was not widely diffused in the Roman world,

being confined in the main to medical writers, physicians, and scholars.^

Islamic contraceptive medicine, which owed much to the Greeks, was

note: The word “contraception” is used throughout this Report in the sense of
artificial methods of birth control.

1. See Norman E. Himes, Medical History of Contraception (Baltimore, 1936),
chap. I. For the early history of family limitation see also, Marie Stopes, Con-

traception: Its Theory, History, and Practice (London, 1934), chap. IX.

2. Himes, chap. IV. Soranos of Ephesus (98-138) made the greatest single
contribution.

3. Himes, p. 100.



developed during the middle ages, but little progress was made in

Europe during the same period, the attitude of the Church being un-

favourable to such researches. It was not until the sixteenth century

that a new advance was made with the publication in 1564, two years

after his death, of Gabriele Fallopio’s De Morbo Gallico, a treatise on

venereal disease. His treatise contained the first published account of

the condom or sheath, which Fallopio claimed to have invented. The

condom was employed during the eighteenth century, both in England

and on the Continent, being mainly used in brothels, but also sold in

shops in London and elsewhere.^ At the end of the century contracep-

tives were still associated exclusively with immorality and vice, but by

the close of the nineteenth century this position had been deeply under-

mined and the way prepared for the general acceptance of contracep-

tives which has been so marked a feature of our own time.

Thomas Malthus, an Anglican curate, was the unwitting founder of

the modem birth control movement, by means of his famous Essay on

the Principle of Population, published in 1798. His thesis was simple.

Both population and food supplies tend to increase, but since popula-

tion increases faster than means of subsistence, the majority of the

human race is doomed to perpetual poverty and malnutrition. Disease

and war act as natural checks and so prevent a universal cataclysm. In

the first edition of his book Malthus offered no way of escape from this

dreadful treadmill, but in 1 803 the second edition of his Essay included

recommendations for “moral restraint.” By this Malthus did not mean

that sexual intercourse should be restrained in marriage, but that mar-

riages should be postponed to a late age or complete celibacy embraced.

Far from advocating any means of .contraception, he expressly con-

demned recourse to “improper arts.”

Radical reaction to Malthus’s pessimistic and conservative doctrine

was sharp. Generally accepted, it would put an end to all efforts at

social reform, for by his hypothesis these were automatically con-

4. Francis Grose, A Guide to Health, Beauty, Riches and Honour (2d ed.;
London, 1796), iii Mme. de Sevigne, in the previous century, had referred to
the condom, in a letter written to her daughter in 1671, as “a bulwark against

enjoyment, and a cobweb against danger.”

6



demned to failure.® Godwin wrote two ineffective replies to refute

Malthus, but it was left to Francis Place, in his Illustrations and Proofs

of the Principle of Population, published in 1822, to suggest that in the

use of artificial contraception lay the answer to population problems.®

If, he wrote, “it were once clearly understood, that it was not disrepu-

table for married persons to avail themselves of such precautionary

means as would, without being injurious to health, or destructive of

female delicacy, prevent conception, a sufficient check might at once

be given to the increase of population beyond the means of subsistence;

vice and misery, to a prodigious extent, might be removed from society,

and the object of Mr. Malthus, Mr. Godwin, and of every philanthropic

person, be promoted, by the increase of comfort, of intelligence, and of

moral conduct, in the mass of the population.”^ Place supplemented

his argument by distributing amongst the working classes a series of

“diabolical handbills” recommending contraception. Despite their out-

lining a particular method of contraception—the use of a sponge and

attached ribbon—they were not legally suppressed. Similar immunity

was enjoyed by the publications of Place’s disciples, Richard Carlile,

Richard Hassell, and William Campion. Place’s influence spread to the

United States, where Robert Dale Owen was emboldened in 1830 to

publish the first American booklet on birth control. Moral Physiology.^

Two years later. Dr. Charles Knowlton, a Massachusetts physician,

published anonymously a further treatise on contraceptive methods,

curiously entitled Fruits of Philosophy. Knowlton eventually served a

term of imprisonment for his part in publishing this book, and later it

was the subject of a celebrated English trial. Malthusian contentions

5. It is interesting to note a similar reaction of the radical New Statesman and
Nation to the suggestion that aid to under-developed countries was not an un-

mixed benefit since it exacerbated population problems (Sept. 6, 1952, 44:253).

For subsequent discussion of this editorial see 44:319, 349-50, 378.

6. Jeremy Bentham had advocated the use of birth control to reduce the poor
rates in 1797 (Himes, p. 211, n. 4).

7. Illustrations and Proofs of the Principle of Population, ed. Norman E. Himes
(London, 1930), p. 165.

8. This went through several editions within a year and had achieved an Anglo-

American circulation of 75,000 by 1877, the year of Owen’s death.

7



were revived by George Drysdale in his Elements of Social Science,

published in England in 1854, in which he advocated “preventive

sexual intercourse.”

By mid-century Malthusian prophecies and their suggested remedies

were generally discussed in educated circles, but the general public was

still ignorant of contraception and the arguments for its use. In 1877,

however, the trial of Charles Bradlaugh and Annie Besant for pub-

lishing an English edition of Fruits of Philosophy made contraception

a hotly debated subject throughout the country and amongst all classes.^

Mrs. Besant utilised a golden opportunity to spread the good news,

speaking at inordinate length and spending much of her time address-

ing the public on the laws of Malthus and the necessity for birth control,

rather than defending herself against the charge of publishing an ob-

scene libel. Both defendants were found guilty, but the following year

the conviction was set aside for a defect in the indictment. The effects

of the prosecution were startling. Before 1876 the circulation of Fruits

of Philosophy had been only one thousand per year, but by August

1881 no less than 185,000 copies had been sold, bearing out the words

of Sir Alexander Cockbum at the trial that “a more ill advised and

more injudicious prosecution never was instituted.”^® Knowledge of

contraceptive methods became widespread, and the work was carried

forward by the Malthusian League, founded in 1878, with Annie Besant

as its first secretary.^^

9. See The Times (London), June et seq., 1877, for an account of the trial.

For a reconstruction of the trial see Norman St. John-Stevas, Obscenity and
the Law (London, 1956), pp. 70-74. For the appeal decision see Bradlaugh v. R
(1878), 3 Q.B.D. 607. See also Vol. II of Hypatia Bonner’s Charles Bradlaugh

(London, 1894).

10. Himes, Medical History . . .

,

p. 243. Edward Truelove, a Freethought pub-

lisher, was summoned in 1877 for publishing Owen’s Moral Physiology. Hearing
of the case was postponed until 1878 to enable the Bradlaugh-Besant case to be

disposed of. In February 1878 the first jury failed to agree, and a second trial

was instituted. Truelove was sentenced to prison, and efforts to secure his release

failed. Truelove’s case is an important landmark in the history of birth control

in England but at the time was overshadowed by the more spectacular trial of

Bradlaugh and Besant.

11. Annie Besant renounced contraception in 1891, after becoming a theosophist.

8



Of itself the Bradlaugh-Besant trial would not have resulted in a

popularisation of contraception, but it came at a moment peculiarly

favourable to the cause. Industrialisation and the fall in the death rate

had resulted in a vastly increased population, the great depression of

1873-96 led to widespread dislocation in agriculture and industry,

women were becoming more emancipated and unwilling to bear the

burden of unrestricted families, while legislation forbidding child em-

ployment had reduced the value of children as income-earning assets.^-

Shortly after the trial, in 1880, education for the first time was made

compulsory in England, and this increased the financial burden of large

families. Contraception had still to win general social acceptance, but

after 1878 few attempts were made to suppress bona fide birth control

propaganda by law.^^ The way was thus opened for a flow of publica-

tions advocating birth control. In 1879 Annie Besant published her

own treatise. The Law of Population.^* By 1891 it had sold 175,000

copies in England alone, at the low price of sixpence each. English law

had become quiescent, but private opposition to birth control was still

strong. Thus in 1887 Dr. Henry Allbutt’s name was erased from the

medical register by the General Medical Council for publishing a

popular work on birth control. The Wife’s Handbook.*^ In 1913 the

Malthusian League for the first time published a practical handbook

on birth control, Hygienic Methods of Family Limitation, and put it in

general circulation without legal incident. After the first world war, the

social restrictions on dissemination of birth control information dis-

solved. Marie Stopes founded the Society for Constructive Birth Con-

12. Not unimportant was the discovery of the vulcanisation of rubber by Good-
year and Hancock in 1843-44, which made possible the production of a cheap,
reliable condom.

13. Truelove’s publications, as a result of an appeal, were not finally destroyed

until 1879. However, this destruction order was intrinsically part of the original

proceedings initiated in 1878.

14. This was never prosecuted in England but was prosecuted in Australia and
condemned at first instance. The conviction for publishing was later set aside
on appeal, the judge holding that the test of obscenity was not whether it pro-
moted immoral ideas but whether the language itself was obscene. Ex parte
Collins (1888), 9 L.R. (N.S.W.), 497; 5 W.N. 85.

15. See H. A. Allbutt, Artificial Checks to Population (London, 1889), p. 7.

9



trol and in 1921 opened the first birth control clinic in London. Her

work was carried on by Harold Cox, Julian Huxley, Norman Haire,

Dean Inge, Lord Dawson of Penn, and others. In 1930 theXambeth

Conference gave a grudging approval to family planning by contracep-

tives, a concession which led to a more wholehearted approval by the

Lambeth Conference of 1958. The ofl&cial visits paid by the Minister

of Health to the headquarters of the Family Planning Association in

London, in 1955 and 1958, symbolised the nearly complete triumph

of the birth control movement in Great Britain.^®

In the United States, the movement has not met with such unquali-

fied success. Dr. Knowlton was succeeded by other medical writers

advancing the cause of birth control, including A. M. Mauriceau,

J. Soule, Edward Bliss Foote, and his son Edward Bond Foote. John

Humphrey Noyes founded the Oneida colony in New York and advo-

cated his own particular method of birth control. Birth control suf-

fered a severe setback in 1873 when, thanks to the efforts of Anthony

Comstock, Congress enacted a statute excluding contraceptives and

contraceptive information from the mails, declaring them obscene.^*^

Many states followed suit and passed statutes banning the sale and dis-

tribution of contraceptives. These laws were enforced with varying

degrees of efficiency in different parts of the country but undoubtedly

hindered the acceptance of birth control by the community. In 1912

Margaret Sanger, a New York nurse, started her life’s work as a zealot

for birth control. She began studying the subject and gave her first

public lectures. In 1914 she undertook publication of a new monthly

magazine. The Woman Rebel, and was arrested and indicted under the

Comstock law. She fled to Europe and the following year her husband

was imprisoned for a short term for handing out a copy of her pamphlet

on Family Limitation. Mrs. Sanger returned to the United States and

on October 16, 1916, opened the first Birth Control Clinic in the

United States in Brooklyn. The clinic was raided and closed by the

16. Advice on contraception is still to some extent restricted when sought as
part of the National Health Service. See p. 14 of this work.

17. Coitus reservatus: intercourse which stops short of ejaculation.

18. Sec. 211 of the Penal Code.

10



police, Mrs. Sanger and her sister both being sentenced to thirty days’

imprisonment in 1917. Nevertheless, she continued her work and prop-

aganda, basing her appeal on the suffering caused to women by un-

limited child bearing rather than on Malthusian arguments. In 1917

the National Birth Control League was founded, and Mrs. Sanger

began publication of the Birth Control Review. National and inter-

national conferences were held, and in 1921 the New York Birth Con-

trol Clinical Research Bureau was opened. Repeated efforts led by

Mrs. Sanger and Mary Ware Dennett were made to repeal or amend

the federal laws restricting birth control but were not successful.^®

In 1929 the New York clinic was raided and its director and assistant

arrested. They were later discharged, and the clinic continued its work.

Public opinion gradually began to favour birth control. The gyneco-

logical section of the American Medical Association had passed a

motion in 1925 recommending the altering of the law to allow physi-

cians to give contraceptive advice; in 1931 the Federal Council of the
1 ,,,, i m ,,„ji . 111111. T-m~

—

Churches of Christ published a report favouring birth control; support
^

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also came from the American Neurological Association, the Eugenics

Society, and th^j;^gnlj:aL.Confei^i3^^^ In 1936 the Court of

Appeals upheld a ruling of the District Court that contraceptives

imported for a lawful purpose did not come within the restrictions of

federal law.-® In 1937 the American Medical Association unanimously

agreed to accept birth control “as an integral part of medical practice

and education.”

Today birth control — the Roman Catholic and Orthodox Churches
always excepted — is generally approved in the United States. The
courts have modified the operation of federal statutes, and most state

19. See Birth Control Laws by Mary Ware Dennett (New York, 1926), and
My Fight for Birth Control by Margaret Sanger (New York, 1931). In 1929
the National Committee on Federal Legislation for Birth Control was organized

with Mrs. Sanger as President to secure alteration of federal statutes. In 1930

a bill was introduced into Congress by Senator Gillett (Mass.) to exempt the

medical profession from their operation. The bill failed. Earlier, in 1923, a
straight repeal of the federal statutes in so far as they affected birth control had

also failed (the Cummins-Vaile bill). Attacks were also made on state legislation.

20. United States v. One Package, 86 F. (2d) 737 (2d Cir.) (1936).

11



statutes have been liberally interpreted. Hundreds of different types

of contraceptive are in use, and contraception has become big business.

In April 1958 Robert Sheehan estimated that the contraceptive trade

in the United States grossed $200,000,000 a year, no less than

$150,000,000 being spent on condoms.^^ Despite this activity and

considerable medical research, the ideal method of contraception still

does not, and possibly cannot, exist. Such a method should display five

features: it should be wholly effective and reliable; harmless to users

and to subsequent children; aesthetically acceptable; moderate in price;

and unobjectionable on religious and moral grounds.

English Law

Traditionally the law in England has followed the Prayer Book in

recognising the procreation of children as the primary purpose of

marriage. Thus, in an early nineteenth century case. Sir John Nicholl

referred to the procreation of children as “the primary and most legit-

imate object of wedlock.”22 The continued operation of the doctrine

was illustrated by a Court of Appeal case of 1946, where it was held

that a man who had consistently refused to have intercourse without

employing a contraceptive against the wishes of his wife had wilfully

refused to consummate the marriage, thus entitling her to a decree of

nullity.23 “We are of opinion,” said Lord Justice du Parcq, “that sexual

intercourse cannot be said to be complete where a husband deliberately

21. ‘The Birth Control Pill,” Fortune Magazine, April 1958. Cf. Fortune,

February 1938, for estimation of pre-war industry.

22. Brown v. Brown (1828), 1 Hagg. Ecc. 523 at p. 524. Cf. G M (1885)
10 A.C. 171 at p. 204 per Lord Fitzgerald: ‘‘The procreation of children being

the main object of marriage, the contract contains by implication, as an essential

term, the capacity for consummation.” See also D v. A (1845), 1 Rob. Ecc. 279
at p. 298 per Dr. Lushington.

23. Cowen y. Cowen (1946) P. 36.

12



discontinues the act of intercourse before it has reached its natural

termination or when he artificially prevents the natural termination,

which is the passage of the male seed into the body of the woman. To

hold otherwise would be to affirm that a marriage is consummated by

an act so performed that one of the principal ends, if not the principal

end, of marriage is intentionally frustrated. Two years later, the

House of Lords abandoned the principle.^^ “It is indisputable,” said

Lord Jowitt, with remarkable confidence, “that the institution of mar-

riage generally is not necessary for the procreation of children; nor

does it appear to be a principal end of marriage as understood in

Christendom, which, as Lord Penzance said in Hyde v. Hyde (1866)

L.R. 1 P & D 1 30, 135, ‘may for this purpose be defined as the voluntary
union of one man and one woman to the exclusion of all others.’

Accordingly, a spouse has no matrimonial remedy at English law if

the other spouse insists that intercourse shall only take place with the

employment of a contraceptive.-"^

As has been noted, contraceptive information was in the nineteenth

century classified as obscenity, and sale of contraceptives doubtless

came within the common law offence of publishing obscene matter,

but this is no longer the case. Books are no longer considered obscene

if they advocate or describe methods of birth control. “It cannot be

assumed,” said the Home Secretary in answer to a question in the

House of Commons in 1922, “that a. court would hold a book to be

24. Cowen v. Cowen (1945), 2 All E. R. 197 at p. 199.

25. Baxter v. Baxter (1948), A.C. 274. Refusal of a nullity decree to a husband

whose wife declined intercourse unless the husband took contraceptive pre-

cautions. He agreed under protest.

26. Lord Penzance, when defining marriage for this purpose, was referring not
to procreation but to the effect of polygamous marriages.

27. The effect of Baxter v. Baxter will largely depend on whether it is confined
strictly to the category of “wilful refusal to consummate” as a ground for a
nullity suit, or whether this type of consummation is accepted as valid in all

matrimonial causes. Lord Jowitt’s dictum on the purpose of Christian marriage

has been much criticised. See The Report of the Commission appointed by the
Archbishops of Canterbury and York in 1949 to consider The Church and the
Law of Nullity of Marriage (London, S.P.C.K. 1955).

13



obscene merely because it deals with the subject referred to.”-® Sale

of contraceptives is not subject to common law or statutory restriction

save for certain by-laws which restrict the sale of contraceptives from

slot machines in public places.-^ Advertisements for contraceptives are

not per se considered obscene. This lack of legal restraint is not sur-

prising, since it accords with prevailing English opinion on the subject,

summed up by the Royal Commission on Population when it stated:

“Control by men and women over the numbers of their children is one

of the first conditions of their own and the community’s welfare, and

in our view mechanical and chemical methods of contraception have

to be accepted as part of the modem means, however imperfect, by
which it can be exercised.”®^

Under the National Health Service, however, advice on birth con-

trol can only be given in certain circumstances. The^ Ministry of Health

allows contraceptive advice to be given in maternal and child welfare

clinics to those married women for whom a pregnancy would be detri-

mental to health. Many medical officers refer patients outside this

category to the voluntary birth clinics which are found in many areas.

Local Authorities may themselves, with the approval of the Minister,

open contraceptive clinics and give advice to nursing mothers requir-

28. St. John-Stevas, Obscenity . . . , p. 70.

29. The by-laws were suggested by the Home Secretary in a circular of October
22, 1949, after public controversy over sale of contraceptives from slot machines.

He circulated a model by-law, suggesting this was the appropriate remedy since
the practice was an evil only in some public places. For a discussion of what

constitutes a public place see The Justice of the Peace and Local Government

Review, January 7, 1950, 114:4.

30. Cmd. 7695 (1949) par. 427. The Commission hoped that voluntary parent-
hood would become universal (p, 430).

31. Ministry of Health Memorandum 153, Birth Control of 1930. Circular 1208
of 1931. Circular 1408 of 1934. Circular 1622 of 1937. Contraceptive advice

is to be given only to a) married women who, being expectant or nursing
mothers, are attending welfare centres and for whom further pregnancy would
be detrimental to health; and b) married women attending clinics for women
suffering from gynecological conditions for whom pregnancy would be detri-
mental to health, either because of some gynecological condition or because

of some other form of sickness, physical or mental, such as tuberculosis, heart

disease, diabetes, chronic nephritis, etc.

14



ing it on medical grounds. They may also contribute to voluntary

organisations providing such advice.^^ Many clinics of the Family

Planning Association are conducted on the premises of the Local

Authority or Regional Hospital Boards.^'^ General practitioners in the

Service are not forbidden to provide contraceptive advice for their

patients. They may not charge for advice given on medical grounds,

but may do so when no medical reason exists for limitation of preg-

nancies.^^ Contraceptive appliances are not obtainable on National

Health Service prescriptions, but if a patient needs them on medical

grounds and cannot afford to pay for them, payment may be authorised

by a Local Authority Medical Officer or hospital consultant. The Royal

Commission on Population recommended that all restrictions on giving

contraceptive advice to married women under public health services

should be removed.^'* Public authorities, the Commission held, should

not view the furnishing of advice as a concession but as a positive

duty. This accords with its expressed view that “public policy should

assume, and seek to encourage, the spread of voluntary parenthood.”^®

32. Sec. 22 of National Health Service Act, 9 and 10 Geo. 6, c. 81 (1945-46).

Government Act, 1948, 11 and 12 Geo. 6, c. 26 (1947-48), grants may be made
by Local Authorities with the consent of the Minister to bodies giving services

to residents in the area. These grants are not confined to medical cases. In the

case of the Family Plannii\g Association a special consent is necessary for each

grant. In 1954, 76 Local Health Authorities made direct payments to the Family
Planning Association; 122 referred cases to the Association; and 62 had their

own clinics.

33. In 1954 three quarters of the F.P.A. clinics were held on Local Health

Authority or Regional Hospital Board premises.

34. See supplement to the British Medipal Journal, November 6, 1954, p. 166.

35. Pars. 536 and 667. The Report did not suggest giving advice to unmarried
women, but this recommendation was made in the P.E.P. study Population Policy
in Great Britain (London, 1948), p. 152. As early as April 28, 1926, the House
of Lords had passed a motion introduced by Lord Buckmaster calling for the
removal of restrictions on advice to married women.

36. Pars. 434 and 657.

15



United States Law

FEDERAL LAW Federal law restricts the distribution of contracep-

tives in several ways. Knowingly to deposit any contraceptive in the

mails or to take such articles from the mails for the purpose of distri-

bution is a felony under federal law.^^ The ban extends to any informa-

tion as to where contraceptives may be obtained, and any written or

printed matter telling “how or by what means conception may be

prevented.” A further federal felony is constituted by depositing con-
traceptives or information where they may be obtained with an express

company or other common carrier. Books on contraception are not

specifically mentioned, but obscene books are included in the ban. To

import contraceptive articles or obscene books is also a felony and

prohibited by federal statute.^*

Read literally, these statutes impose an absolute and universal ban,

and many attempts have been made to modify their scope by legisla-

tion. All have failed.^® They have, however, been modified by judicial

interpretation. A first step was taken in 1930, when Judge Swan
stated: “The intention to prevent a proper medical use of drugs or

other articles merely because they are capable of illegal uses is not

37. 18 U.S.C.A. 1461.

38. 18 U.S.C.A. 1462 (transport and import). 19 U.S.C.A. 1305 (import). The

penalties are fines of not more than $5,000 or not more than five years im-

prisonment, or both, for a first offence; and fines of not more than $10,000 or

ten years imprisonment, or both, for a second offence. The higher penalties

also apply to customs officers who aid or abet such offences (18 U.S.C.A. 552).

39. For example, 68th Cong., 1st Sess., H.R. 6542 and S. 2290, January 10,

1923 (Cummins-Kissel [Vaile]); 71st Cong., 2nd Sess., S. 4582, May 26, 1930,
Gillet (Mass.); 72nd Cong., 1st Sess., S. 4436, April 21, 1932, Hatfield (W. Va.);

73rd Cong., 2nd Sess., S. 1842, June 6, 1933, Hastings (Del.); 74th Cong., 1st

Sess., S. 600, January 10, 1935, Hastings (Del.); 74th Cong., 2nd Sess., S. 4000,

February 12, 1936, Copeland (N. Y.); 75th Cong., 3rd Sess., H.R. 9786, March

8, 1938, Mead. For full list see Alvah H. Sulloway, Birth Control and Catholic

Doctrine (Boston, 1959), p. 190, n. 20.

16



lightly to be ascribed to Congress.”^® Without deciding the point, he

suggested that the Criminal Code should be interpreted as requiring

an intent on the part of the sender that “the articles mailed or sent by

common carrier be used for illegal contraception or abortion or for

indecent or immoral uses.” This reasoning was applied in Davis v.

United States (1933), when an intent to use the articles for illegal

purposes was held necessary for a conviction under the postal and

transport statutes.^^ The decision permitted manufacturers of contra-

ceptives and others in the trade to despatch their wares to druggists,

jobbers, and physicians. These decisions led logically to that of United

States V. One Package in 1936, when Dr. Hannah Stone was allowed

to import a package of vaginal pessaries into the United States Judge

Augustus Hand conceded that the Tariff Act of 1930 exempted only

those articles excepted by the Comstock Act of 1873, but he went on

to say that the court was satisfied “that this statute, as well as all the

Acts we have referred to, embraced only such articles as Congress

would have denounced as immoral if it had understood all the condi-

tions under which they were to be used. 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.”^^ Judge Learned Hand was clearly uneasy about

40. Young Rubber Corporation V. Lee, 45 ¥. (2d) 103 (2dCir.) (1930) atp. 108.
The case arose from an action for trademark infringement by a manufacturer
of prophylactics, the defence being that redress was contrary to public policy

since the federal statutes were being violated in carrying out the business. “We
conclude,” said Judge Swan, “therefore . . . that a manufacturer of drugs or

instruments for medical'iise may in good faith sell them to druggists or other
reputable dealers in medical supplies, or to jobbers for distribution to such

trade.” (p. 109.)

41. 62 F. 2d 473 (6th Cir.) (1933). Two charges were involved: a) mailing
circulars on contraception contrary to 18 U.S.C.A. 334, and b) transporting

articles for preventing conception contrary to 18 U.S.C.A. 396.

42. 86 F. 2d 737 (2d Cir.) (1936).

43. p. 739. Judge Augustus Hand stressed that all the federal statutes should
be interpreted by a common standard, since they were intended to constitute
a single moral code.

17



these verbal gymnastics but contented himself with observing that

people had changed their minds about such matters in recent years,

and he concurred in the judgment.

Books on contraception are specifically banned from the mails by

the postal statute, but the section restricting imports mentions only

“obscene” books. It is now established that a book on contraception

is not per se considered obscene by the federal courts. Dismissing a

charge against Contraception by Marie Stopes in 1931, Judge Woolsey

stated: “It is a scientific book written with obvious seriousness and

with great decency, and it gives information to the medical profession

regarding the operation of birth control clinics and the instruction

necessary to be given at such clinics to women who resort thereto.”

Such a book, he held, was not obscene, “for the reading of it would

not stir the sex impulses of any person with a normal mind.”^^

The federal statutes are accordingly by no means dead letters, but

contraceptives intended for bona fide medical use, for the treatment

or prevention of disease, and contraceptive books and pamphlets which

are not written in obscene language may be freely imported, trans-

ported, and mailed. In practice this means that contraceptives must

be going to or coming from doctors or other professional persons, or

anyone acting at their direction or under their supervision. Druggists,

44. For a first suggestion of this see United States v. Dennett, 39 F. 2d 564

(2d Cir.) (1930). See also U.S. v. One Obscene Book entitled “Married Love,”

48 F. (2d) 821 (S.D.N.Y.) (1931), where the book by Marie Stopes was

declared admissible at any port in the United States.

45. U.S. V. One Book Entitled “Contraception,” 51 F. (2d) 525 (S.D.N.Y.)

(1931), at 527-28. See also U.S. v. Nicholas 97 F. (2d) 510 (2d Cir.) (1938).

A book for Nicholas and some magazines for Himes coming from abroad
through the mails were seized under the Tariff Act. “We have twice decided,”
said Judge Learned Hand, “that contraceptive articles may have lawful uses
and that statutes prohibiting them should be read as forbidding them only when
unlawfully employed. . . . Contraceptive books and articles are of the same class

and those at bar were therefore lawful in the hands of those who would not
abuse the information they contained.” The magazines were sent on to Himes

as editor and, therefore, an appropriate person to receive them. The book was
detained in the post office pending an application by the addressee. “Only the

addressee can prove whether he is among the privileged classes; he ought at least
to go forward with the evidence, even if the burden of proof is not eventually

on him.” (Judge Learned Hand at p. 512.)

18



jobbers, and dealers, provided they are legitimate traders, thus enjoy

immunity. This rule applies to contraceptive books and pamphlets

going through the mails, but not to the importation of such books or

to their transport in interstate commerce.^® Under the customs law,

only obscene books are excluded, and, as has been noted, bona fide

contraceptive manuals are not any longer within this category. To

secure a conviction under the statutes an intention to use the materials

illegally must be established by the prosecution. However, for admin-

istrative purposes, consignments may be stopped by the authorities

temporarily, pending the production of prima facie evidence by the

addressee that he is a privileged recipient. The Family Planning Asso-

ciation makes it a practice to consign contraceptives and information

under a doctor’s signature and thus obviate vexatious delays. Private

persons importing, mailing, or transporting contraceptives purely for

the purpose of preventing conception, with no medical indication for

their employment, would still, at least theoretically, be caught by the

statutes.

THE LAW OF THE STATES Twenty states and the District of Columbia

have no legislation on the subject of contraception.^® Seventeen states

prohibit traffic in contraceptives but exempt doctors, pharmacists, or

others operating under special license from the statutory prohibition.

Five states, Connecticut, Kansas, Massachusetts, Mississippi, and Ne-

braska, prohibit the sale of contraceptives and advertising. The statutes

make no exceptions.^^ Eight states have no law against contraceptives

but restrict or prohibit their advertisement. In all, thirty states prohibit

46. 18 U.S.C.A. 1462, the section dealing with inter-state transportation and

import does not ban books on contraception as such, but only those “giving

information directly or indirectly where or how they [contraceptives] may be
obtained or made.”

47. Such persons could import or transport contraceptive books, provided they

did not violate the provision in n. 46 above, but presumably could not mail

them except subject to the restrictions on mailing contraceptives.

48. For a table of laws in the various states, see pages 82, 83 of this Report.

49. These prohibitions, although absolute in form and theory, are not absolute

in practice. See p. 25.

19



such advertising, fifteen making an exception for medical journals and

textbooks, etc. Sixteen states regulate the trade by requiring contra-

ceptive information to be accurate and prohibiting the sale of articles

which do not comply with certain defined standards. In some states

sale of contraceptives from slot machines is forbidden.®^

In New York, Connecticut, and Massachusetts considerable litiga-

tion has taken place to interpret the birth control statutes.

NEW YORK New York law prohibits distribution of contraceptives

and birth control information but contains the following proviso : “An
0

article or instrument, used or applied by physicians lawfully practising,

or by their direction or prescription, for the cure or prevention of

disease is not an article of indecent or immoral nature or use, within

this article. The supplying of such articles to such physicians or by

their direction or prescription is not an offense under this article.

In 1917, Margaret Sanger was sentenced to thirty days’ imprisonment

for violating the statute. Her appeal was dismissed, but the judge gave

a liberal interpretation to the section. It protected, said the court, the

physician who “in good faith gives such help or advice to a married

person to cure or prevent disease.” “Disease” was not limited to ve-

nereal disease but defined as “an alteration in the state of the body, or

some of its organs, interrupting or disturbing the performance of the

vital functions, and causing or threatening pain and sickness; illness;

sickness; disorder.

CONNECTICUT The Connecticut law forbidding birth control dates

from 1879, when it was dealt with as part of the obscenity statute, but

50. For example, Oregon, Revised Statutes (1957), sec. 435.090; Idaho, Laws

(1948), sec. 39.806.

51. For example, Wisconsin, Statutes (1955), sec. 115.15.

52. New York, Consolidated Laws (1944), sec. 106.1145.

53. People v. Sanger, 111 N. Y. 192, 194-95, (1918), 118 N.E. 637 (1918).

In People v. Byrne, 163 N.Y.S. 680 (1916), the statute had been held con-

stitutional. “Nor is it to be doubted, in my opinion, that the legislature has the
power to declare that articles should not be used to prevent conception by

married women, except in cases where attending physicians believe that preg-

nancy would be dangerous to the health of the woman.” (Judge Crosprey.)

20



since 1887 it has been a separate enactment. “Any person who shall

use any drug, medicinal article or instrument for the purpose of pre-

venting conception shall be fined not less than fifty dollars or im-

prisoned not less than sixty days nor more than one year or be both

fined and imprisoned. The statute is unique in that it prohibits not

merely the sale but the use of a contraceptive. In 1940 two physicians

and a nurse, indicted for counseling a married woman to use a contra-

ceptive, contended that the statute was unconstitutional, unless it was

interpreted to except the medical profession. The Supreme Court of

Errors rejected this argument, which had been accepted by the lower

court, and upheld the statute.^^ The court confined its decision to

situations where the “general health” of the woman would be en-

dangered by lack of contraception and left open the question whether

an exception existed where “pregnancy would jeopardize life.” This

loophole was closed in 1942. In that year a doctor sought a ruling

whether the statute would apply where pregnancy would entail specific

dangers to health because of high blood pressure, tuberculosis, or three

pregnancies within twenty-seven months. The court held (3-2) that

it did apply, and that abstention in such predicaments must have been

considered by the legislature as an alternative to the use of contracep-

tives, when passing the statute.^® Various attempts have been made to

modify the law, but all have failed.^^

MASSACHUSETTS Publication of any printed matter containing birth

control information and distribution of instruments and articles for

54. Connecticut, Statutes (1958), c. 53, sec. 32. Also c. 54, sec. 196: “Any
person who shall assist, abet, counsel, cause, hire or command another to com-
mit any offence may be prosecuted and punished as if he were the principal
offender.”

55. State v. Nelson, 126 Conn. 412; 11 A. (2d) 856 (1940). Decision taken 3-2.

56. Tileston v. Ullman, 129 Conn. 84; 26 A. (2d) 582 (1942). An appeal was
taken to the Supreme Court and dismissed, the physician being held to lack
standing to raise a constitutional issue. Tileston v. Ullman, 318 U.S. 44 (1943).

57. For example, 1923, 1925, 1927, 1929, 1935, 1954-57. The bills either re-
pealed the law or inserted an exception for doctors when counselling married
women for health reasons. Although sometimes passed in the House, all were
defeated in the Senate.

21



preventing conception are prohibited by a statute dating from 1879.^®

The statute was upheld as constitutional and applied in 1917, when

certain pamphlets containing birth control information were held to

be obscene.^® In 1938 the courts rejected a plea that physicians were

exempt from the operation of the statute when prescribing for health

reasons. In 1940, however, it was held that the distribution of pro-

phylactics, which could also be used for contraception, did not come

within the statute, unless it could be proved that the distributor intended

to prevent conception rather than venereal disease or knew that such

unlawful use was intended by the buyer.®^ As in Connecticut, unsuc-

cessful attempts have been made to modify the law. In 1930 a bill was

introduced into the legislature to give licensed physicians the right to

provide information to married couples, but it was later withdrawn.

The following year a petition for change was signed by 7,000 laymen,

1,300 doctors, and 400 ministers of religion, but it failed to be imple-

mented. An amendment to the same effect was defeated in the House

of Representatives in 1941 by 133 votes to 77, and in the Senate by 18

to 16. Referendums in 1942 and 1948 also failed to alter the law.®-

THE CONSTITUTIONAL QUESTION It has been suggested that the fed-

eral and state statutes regulating birth control are unconstitutional, in

that they deny the individual his personal right to pursuit of happiness

58. Massachusetts, Annotated Laws (1956), c. 272, sec. 20-21. Whether infor-

mation on the safe period would be construed as “contraceptive advice” is dubi-

ous. In 1934 the Customs allowed Mrs. Hazel Moore to import a book on rhythm
but seized others on artificial contraception (Sulloway, p. 29).

59. Cw. V. Allison, 111 Mass. 57; 116 N.E. 265 (1917).

60. Cw. V. Gardner, 300 Mass. 372; 15 N.E. (2d) 222 (1938). An appeal to
the U.S. Supreme Court was dismissed per curiam “for want of a substantial

federal question.” Gardner v. Mass., 305 U.S. 559 (1938).

61. Cw. V. Corbett, 307 Mass. 7; 29 N.E. (2d) 151 (1940); Cw. v. Werlinsky,

307 Mass. 608; 29 N.E. (2d) 150 (1940).

62. Both referendums concerned an act “to allow physicians to provide medical

contraceptive care to married persons for the protection of life or health.”

1,179,023 votes were cast in 1942, the proposal being defeated by 683,059 votes

to 495,964, with 247,697 blanks cast. In 1948, the proposal was defeated by

1,085,350 votes to 806,829, with 263,168 blanks.

22



and also take away the rights protected by the due process clause of

the fourteenth amendment.®^ Physicians, when the laws are strictly

interpreted, are also denied a fundamental right to advise patients on

professional matters involving life and health. The courts have con-

sistently taken an opposite view. The federal courts have upheld the

federal statutes as constitutional, with an exemption for physicians and

others professionally qualified.®^ Prohibition of the sale or advertising

of contraceptives or the dissemination of information on birth control

has consistently been held to be within the police power of individual

states.®® Until 1938 none of the cases had included a qualified physician

as party to the proceedings, or else the statute under review contained

a clause exempting physicians from its operation. In that year, however,

in Gardner’s case, a statute imposing an unconditional ban was upheld

by the Massachusetts courts, and an appeal to the United States Su-

preme Court was dismissed. In June 1958 five suits were filed in the

Connecticut Superior Court challenging the constitutionality of the

birth control legislation. They are at present sub judice.^^

63. See Dudley D. Miles, “The Constitutionality of Anti-Birth Control Legis-

lation,” Wyoming Law Journal, VII (1952-53), 138-142. Also H. Kalven, “A
Special Corner of Civil Liberties,” New York University Law Review, XXXI
(1956), 1223-29. “Despite the lack of judicial success to date it would seem

that the freedom of sex relations within marriage and the freedom to have

children when wanted rank high among the basic personal liberties in our
society and their curtailment presents a serious civil liberties issue,” pp. 1228-29.

64. See olim, pp. 16-19.

65. That the police power may be exercised to protect public morals, health,
and safety is firmly established. See, e.g.: Peterson v. Widule, 157 Wis. 641;

147 N.W. 966 (1914) (physical examination required for issue of marriage
license); Zucht v. King, 260 U.S. 174; 43 Sup. Crt. 24, 67 L ed. 194 (1922),
(vaccination case). For cases on birth control see Byrne, Allison, Sanger, Nelson,
Tileston, Corbett, discussed olim, pp. 20-22. See also McDonnell v. Knoxville,
110 S.W. (2d), 478 (Tenn., 1937); State v. Arnold, 111 Wis. 340; 258 N.W.
843 (1935); Barretta v. Barretta, 182 Misc. 852; 46 N.Y.S. (2d) 261 (1944);
L. F., Jr., “Constitutional Law, Police Power, Birth Control and Contraceptives,”

George Washington Law Review, VII (December, 1938), 255-57.

66. In May, 1959, a county judge declared unconstitutional New Jersey’s statute
banning the sale and distribution of contraceptives “without just cause.” He
maintained that it was so vague and indefinite that it would not fairly inform
a defendant “of the elements constituting a quasi-criminal infraction.” See The
New York Times, May 13, 1959, p. 27.

23



An attack on the birth control statutes may develop in the future

on rather different grounds. While the police power may be exercised

to protect public morals, it must be reasonable.'’* With the general

acceptance of birth control as a normal part of married life, the statutes

might be held unreasonable at some point in the future. The statutes

could also be challenged for violating the separation of Church and

State guaranteed by the first amendment. Recent theological develop-

ments have left the Roman Catholic Church practically isolated among

Christian denominations in condemning artificial birth control. It could,

then, be contended that the birth control statutes enforce the doctrine

of a particular denomination at the expense of that of other religious

communions. Alternatively, it might be argued that the statutes limited

religious freedom.

EFFECTIVENESS OF LAWS The effect in practice of the federal laws

has already been described. The effect of the state laws varies in dif-

ferent areas. In the seventeen states which exempt doctors and other

qualified persons from the operation of the laws, their effect is neg-

ligible. Birth control clinics are free to operate, provided they are in

charge of someone medically qualified, and contraceptives are freely

purchasable at drugstores and elsewhere. In the five states that theo-

retically ban all sale of contraceptives, the law has practical effects only

in Connecticut and Massachusetts."^ There are no birth control clinics in

67. See Plessy w. Ferguson, 163 U.S. 537; 16Sup. Crt. 1138,41 L ed. 256 (1896).

68. This point has now been raised in Connecticut. On May 4, 1959, three
Protestant ministers, an Episcopalian, a Lutheran, and a Methodist, asked the

Superior Court for a ruling on the Connecticut statute. The ministers claimed

that the law prohibiting dissemination of birth control advice deprived them

of their “liberty, freedom of speech, and right to freely practice their religions.”

They stated they were “bound by the teachings of the church and their own
religious beliefs to counsel married parishioners on the use of contraceptive

devices and to advise them and to counsel to use same and to give such advice

in pre-marital counselling.” The New York Times, May 6, 1959.

69. See oUm, p. 18.

70. In Mississippi, despite the law, contraceptive advice is offered as part of

the public maternal health services. In Nebraska, the law, while forbidding the

trade, also regulates it by laying down minimum standards for prophylactics.
See Statutes (1943), c. 71, sec. 1106.

24



Connecticut, although the Planned Parenthood League of Connecticut

has an office in New Haven. A number of medically supervised clinics
were opened in 1935, but in 1939 they were raided and after the deci-

sion of the Supreme Court in 1940 (State v. Nelson) all were closed

and have not been re-opened since. Doctors are officially barred from

prescribing birth control appliances for patients, but, as has been noted,

“it is common knowledge that this statute is being violated daily, except

perhaps by a few high-minded doctors. Certain contraceptives may

even be legitimately prescribed if they have other than contraceptive

uses.”- Contraceptives, creams, and jellies are sold everywhere, and

condoms may be obtained at drugstores and even from slot machines.

Supplies are sent to doctors and patients by mail, and literature on

contraception is^sold openly on bookstalls.

Like Connecticut, Massachusetts has no birth control clinics. From

1932 to 1937 clinics were opened in various cities, but as a result of

the Gardner case in 1938 they were closed and have not been re-opened.

Thousands of doctors, in the privacy of their offices, fit and prescribe

diaphragms. Condoms may legally be sold when marked “for preven-

tion of disease,” and diaphragms are sold by drugstores using devious

methods of prescription. Vaginal creams and jellies are also sold

marked “for feminine hygiene.” The Planned Parenthood League refers

women to out-of-state clinics and is able to tell them orally of certain

new and simple contraceptives. “I am not too concerned,” concludes

Judge Ploscowe, “about this failure of Massachusetts and Connecticut

to permit the dissemination of contraceptive information. The corner

71. Boston University Law Review, XXIII (1943), 117.

72. See letter from the Connecticut Commissioner for Food and Drugs to the
Secretary of the Bridgeport Pharmaceutical Association, dated September 15,

1954: “Since diaphragms have such therapeutic and other uses there is no

reason why vaginal diaphragms may not be prescribed or ordered by a physician
and such order filled by a pharmacist. We have always taken the stand that a
pharmacist is entirely within his rights to fill any prescription or order from

a physician. Such order may be given orally or in writing.”

73. The prohibition of the “use” of contraceptives has, of course, never been
enforceable.

74. Letter of October 29, 1958, from the Executive Secretary of the Planned

Parenthood League of Massachusetts to Norman St. John-Stevas.

25



drugstore is always available for the purchase of prophylactic devices

which are used mainly for contraceptive purposes. If more is desired,

then the doctors in neighboring states are available for consultation.”^®

This judgment is not shared by the Planned Parenthood Leagues,

which point out that, whereas women who can afford a private con-

sultation with a doctor may obtain contraceptive care, poorer women

cannot; that the law makes the less efficient types of contraceptive

available but outlaws the more effective; and that the poor who depend

on public clinics for medical advice are kept ignorant of the subject,

many of them being unaware that contraceptives can be obtained at

drugstores, provided they are purchased as prophylactics.

Extent of Contraception in

England and the United States

Birth control is widely practised in England amongst all classes. In June

1956 the Family Planning Association had 181 branches, operating

215 clinics, all offering advice on contraceptive techniques. In the

previous year, 250,000 people had visited the clinics. The Royal Com-

mission on Population estimated that whereas only 15 per cent of

couples married before 1910 used birth control, for those married be-

tween 1940 and 1947 the proportion had risen to 55 per cent. The

Commission estimated that in this group the proportion would ulti-

75. Morris Ploscowe, “Contraception,” “Symposium on Morals, Medicine and

the Law,” New York University Law Review, XXXI (1956), 1241. Cf. the
conclusion of the Am. Med. Assoc.: “The committee has been unable to find
evidence that existing laws, federal or state, have interfered with any medical

advice which a physician has been called on to furnish his patients. Clarification

of such laws, however, is desirable.” “Report of the Committee to Study Con-

traceptive Practices and Related Problems, appointed by the Board of Trustees

of the American Medical Association,” Journal of the A.M.A., CVIII (1937),
2217. This judgment might now be revised.

26



mately exceed 70 per cent.^® The result has been a heavy fall in the

number of births. In the period 1931-41 there were 3,000,000 fewer

births than in that from 1871-1881, the marriage rate remaining stable.

The Commission found no evidence of a decline in reproductive ca-

pacity and attributed the change to “the spread of deliberate family

limitation.

In the United States birth control is equally widespread. Planned

Parenthood Centers are found in twenty-eight states and the District

of Columbia; throughout the country, save in Connecticut and Massa-

chusetts, medical birth control care is provided by 594 maternal health

clinics and other child-spacing information centers. In 1942, 60 per

cent of the approved medical colleges provided some instruction in

contraceptive techniques."^® The American Medical Association has

recommended that medical students should be “taught the clinical con-

siderations and therapeutic application of contraceptive methods.”®®

In 1955 a national survey on family planning was carried out by a

group of social scientists.®^ They interviewed 2,713 white wives, all in

their childbearing years ( 1 8-39 ) , as a sample of the 17,000,000 women

of this group in the United States. Asked whether they approved of

family limitation in any form, including the safe period, only 5 per cent

76. Papers of Royal Commission on Population, Vol. I, “Family Limitation and

its Influence on Human Fertility During the Past Fifty Years,” pp. 7-8.

77. Pars. 617 and 619. Report of the Royal Commission o<n Population, Cmd.

7695 (London, 1959).

78. Dr. Rock estimates that 90 per cent of the married population in the United

States uses some method of birth control, including the safe period and coitus

interruptus. John Rock, “The Scientific Case against Rigid Legal Restrictions on

Medical Birth Control Advice,” Clinics, I (April, 1943), 1598.

79. A. Stone, “The Teaching of Contraception in Medical Schools,” Human
Fertility, VII (August, 1942), 108.

80. See Report of Committee, Journal of the American Medical Association,

CVIII (1937), 2217.

81. Conducted by the Scripps Foundation and Survey Research Center of the

University of Michigan. Results published in Family Planning, Sterility and

Population Growth (New York, 1959), and also in an article by Ronald F.
Freedman, Pascal K. Whelpton, and Arthur A. Campbell, “Family Planning

in the United States,” Scientific American, 200 (April, 1959), 50.

27



gave a negative answer. Seventy-three per cent of those questioned

approved family planning, whatever the method employed. Eighty-three

per cent of the fecund couples interviewed had adopted some means of

birth control, and 7 per cent planned to do so after they had had the one

or more children they wanted. The general consensus on the ideal size

of family was not less than two children and not more than four. In

seven states birth control services are made available through state or

county maternal health clinics.®^ North Carolina was the first state to

take this step in 1937. South Carolina followed suit in 1939, and

Alabama in 1940.

Christian Opinion

— Other Than Roman Catholic

Outside the Roman Catholic Church, Christian opinion on contracep-

tion has undergone a profound change. Until the end of the nineteenth

century contraception was condemned by all Christian denominations

82. North Carolina, South Carolina, Alabama, Florida, Georgia, Mississippi,

and Virginia. All are Southern states where the Roman Catholic population is
small and uninfluential. Moya Woodside has described the position in North
Carolina: “For a decade now, the material conditions for achievement of a

neo-Malthusian utopia have existed in North Carolina. Incorporated as part

of the public health service, contraceptive advice and supplies are provided free

of charge at almost all the city and county health departments throughout the

State, and public health nurses are encouraged to inform their patients about the

advantage of planned pregnancy. Yet (as we shall show in the next chapter)
the program fails to reach many women of normal intelligence or seriously to
affect their reproductive behavior, and has had practically no success with

women of borderline or subnormal mentality. Workers in the contraceptive
service are unanimous about the difficulty of persuading such persons to attend

clinics, of instructing them in procedures, and ensuring that advice is carried
out. There is further difficulty in that many are bad contraceptive risks, due
to neglected gynecological conditions following frequent childbearing, and no

method available is likely to guarantee adequate protection,” Sterilization in

North Carolina (Chapel Hill, 1959), p. 105.

28



as immoral or unnatural and contrary to divine law. Today the Roman

Catholic and Orthodox Churches are practically alone in adhering to

this position. By “contraception” is meant artificial methods of birth

control, since the Catholic Church is in agreement with other churches

that families should be planned but limits the methods employed to

abstention or use of the safe period. “To produce children without re-

gard to consequences,” states an authoritative Anglican Committee,

“is to use procreative power irresponsibly, the more so when there is

involved the imposition of one partner’s will upon the other.”®"^ Similar

judgments have been passed by Protestant leaders. Thus, Dr. Gustafson,

President of the New York Conference of the Augustana Lutheran

Church, recently declared: “An unrestrained production of children

without realistic regard to God-given responsibilities involved in bring-

ing them up in the discipline and instruction of the Lord may be as

sinful and as selfish an indulgence of the lusts of the flesh as is the

complete avoidance of parenthood.”®^

The changes in the Church of England attitude to contraception are

interesting to trace. The first Anglican position was a clear-cut con-

demnation of contraception as a threat to both church and state. The

Lambeth Conference of 1920 issued a solemn warning against “the use

of unnatural means for the avoidance of conception” and stressed that

the primary purpose of marriage was the procreation of children.®^

83. The Family in Contemporary Society (London, 1958), p. 15.

84. The New York Times, July 25, 1958.

85. The first Lambeth Conference met in 1867. Its resolutions are not theo-
logically binding but are taken to express the mind of the Anglican Church.

The 1908 Conference, like its successor of 1920, condemned contraception. The
resolution of 1920, No. 68, read: “The Conference, while declining to lay

down rules which will meet the needs of every abnormal case, regards with
grave concern the spread in modern society of theories and practices hostile
to the family. We utter an emphatic warning against the use of unnatural
means for the avoidance of conception, together with the grave dangers —
physical, moral, and religious — thereby incurred, and against the evils which
the extension of such use threatens the race. In opposition to the teaching

which, under the name of science and religion, encourages married people in
the deliberate cultivation of sexual union as an end in itself, we steadfastly
uphold what must always be regarded as the governing considerations of

29



This judgment was echoed by the House of Bishops of the Protestant

Episcopal Church, meeting at Portland, Oregon, on September 15,

1922.^^* The Lambeth Conference of 1930 again declared that the pri-

mary purpose of marriage was the procreation of children but conceded

that in certain limited circumstances contraception might be morally

legitimate. In a resolution, passed by 193 votes to 67, the Conference

declared: “Where there is a clearly felt moral obligation to limit or

avoid parenthood, the method must be decided on Christian principles.

The primary and obvious method is complete abstinence from inter-

course (as far as may be necessary) in a life of discipline and self-

control lived in the power of the Holy Spirit. Nevertheless, in those

cases where there is such a clearly-felt moral obligation to limit or

avoid parenthood, and where there is a morally sound reason for avoid-

ing complete abstinence, the Conference agrees that other methods

may be used, provided that this is done in the light of the same Christian

principles. The Conference records its strong condemnation of the use

of any methods of conception-control from motives of selfishness,

luxury, or mere convenience.”'^^ In 1958 the Lambeth Conference gave

85. {continued) Christian marriage. One is the primary purpose for which mar-
riage exists, namely the continuance of the race through the gift and heritage of

children; the other is the paramount importance in married life of deliberate and

thoughtful self-control.” Resolution 70 called for a campaign against the open or

secret sale of contraceptives. See The Lambeth Conferences 1867-1930 (Lon-

don, 1948).

86. See Margaret Sanger, My Fight for Birth Control (New York, 1931), p. 202.

87. Resolution 13, on the purpose of marriage; Resolution 15, on contracep-

tion. The Lambeth Conferences 1867-1930.

88. In the Report accompanying the resolutions, “The Life and Witness of the

Christian Community,” it is pointed out that contraception is not condemned

in the New Testament, nor by any Ecumenical Council of the Church. The
Protestant Episcopal Church again followed the lead of Lambeth. On October
9, 1934, the Bishops passed a resolution by 44-38 approving “the efforts now
being made to secure for licensed physicians, hospitals and medical clinics,
freedom to convey such information [on birth control] as is in accord with the

highest principles of eugenics and a more wholesome family life wherein

parenthood may be undertaken with due respect for the health of the mother
and the welfare of the child.” See Journal of Social Psychology, VIII (May,

1936), 229.

30



unanimous approval to contraception, passing a resolution in the fol-

lowing terms: “The Conference believes that the responsibility for de-

ciding upon the number and frequency of children has been laid by

God upon the consciences of parents everywhere: that this planning, in

such ways as are mutually acceptable to husband and wife in Christian

conscience, is a right and important factor in Christian family life and

should be the result of positive choice before God. Such responsible

parenthood, built on obedience to all the duties of marriage, requires a

wise stewardship of the resources and abilities of the family as well as

a thoughtful consideration of the varying population needs and prob-

lems of society and the claims of future generations.

The change in attitude from 1920 to 1958 was brought about partly

by social changes. In 1920 there was widespread fear of underpopula-

tion, while in 1958 prospects of overpopulation aroused anxiety, espe-

cially in India, Africa, and the West Indies, all strongly represented at

the Conference. A second factor influencing the decision was the mod-
ern development of knowledge of the safe period, showing that nature

provided her own method of birth control. Most important was the

theological development of the doctrine of Christian marriage which

had taken place since 1920. The Conference of that year had been un-

equivocal in stressing procreation as the primary purpose of marriage,

and this had been repeated in 1930. The 1958 Conference, on the pther

hand, did not stress the reproductive end of marriage in this way. Bib-

lical revelation, it was agreed, did not limit the function of sexuality

and the family to the reproductive process but stressed equally the

companionate purpose of marriage. These two ends are not separable

in importance, “are not subordinated one to the other; they are not

89. The Lambeth Conference 1958 (London, 1958), Resolution 115. Cf. the
Report on “Responsible Parenthood and the Population Problem,” the conclu-

sions of a study group appointed by the World Council of Churches which met
at Mansfield College, Oxford, April 12-15, 1959. The twenty-one members
were drawn from the main confessions represented on the World Council. With
the exception of the Orthodox members they reached similar conclusions to
the Lambeth Conference on the use of contraceptives. The Ecumenical Review,
XII (October, 1958), 85-92.

31



directly related to one another; their relationship, in the developing

experience of Israel, is to be found in yet a third area — that of the place
of the family in giving responsible security to the children born of the

love of husband and wife.”®‘‘ Procreation of children and promotion

of the mutual love of the spouses are thus accepted as co-equal ends.

A parallel development in Anglican theology has been the increasing
stress on henosis, the union of man and wife in one flesh that takes

place within the marriage relationship. Christ himself stressed this

aspect of marriage, and St. Paul developed the doctrine.^- The act of

coitus, far from being a merely physiological device to perpetuate the

race, has a quasi-sacramental character of the highest importance in

developing the personal and spiritual life of the married couple. Tradi-

tional theology is inadequate in stressing the procreative purpose of

marriage and underestimating the intrinsic importance of the sexual

act. Some writers have gone so far as to suggest that it is henosis that

is primary in marriage and not procreation. Thus Canon Warner writes:

“The unitive achievement of sexual intercourse precedes procreation

and is primary in time sequence as well as in its inner constitutive nature

as object He adds that the traditional doctrine is right in the sense

that procreation must not be totally excluded from marriage, but it is

not the primary end of every act of coitus, nor is it its object.®^

90. The Lambeth Conference 1958, II, 143.

91. See, for example, D. S. Bailey, The Mystery of Love and Marriage (London,

1952).*

92. Matt. 19:6. St. Paul. Ephesians 5:23-33.

93. “Theological Issues of Contraception,” Theology, LVII (January, 1954),
8-14 at p. 11. Canon Warner means by object, “that at which the action aims
and in which it naturally results, and with the attainment of which it is com-

pleted.” R. C. Mortimer, Elements of Moral Theology, p. 63. Procreation is

thus the possible result of coitus but not its object. “We are left, then, with the
act of coitus, which, in its natural functioning, has one ‘object’ in uniting (or

deepening the union of) man and woman, and an occasional end (among others)
of fertilising the ovum.”

94. The reason for this is that the act of procreation is necessarily associated

with the act of union in the natural order. The writer seeks to save himself from

inconsistency by invoking the natural order at this point by stressing that the

use of contraceptives must not be judged in relation to isolated acts of inter-

course, but in the context of actual or prospective family life.

32



Given that the ends of marriage are co-equal, may the parties sep-

arate them at will or are they restricted for separation to the periods

of natural infertility? Anglican theologians have given different an-

swers to the question, but the consensus appears to be that at least in

certain circumstances the use of contraceptives is legitimate. Contra-

ception may be a positive good. It extends man’s rational control over

his own nature, the children bom are desired and welcomed, and sexual

intercourse can be regulated according to the needs of a personal rela-

tionship and not controlled by decisions about the desirability of con-

ception. But may the couple manipulate natural processes at their own

will? If one regards the biological pattern as something “given,” which

a couple are required by God to submit themselves to in order to receive

the blessing of matrimonial union, the answer will be negative. Man

may use his reason to fulfill the biological pattern more completely but

not to supersede it. Coitus accompanied by the use of a contraceptive

is ontologically and morally distinct from coitus without such a device.

If on the other hand one regards coitus as a purely spatio-temporal

event without metaphysical implications, then contraceptives may be

freely employed.

With these considerations in mind, the anonymous author of the

first of three articles on contraception in the authoritative Anglican

publication. The Family in Contemporary Society, concludes that the

Church should not give its approval to contraception as a positive good.

“It is, to say the least,” he observes, “suspicious that the age in which

contraception has won its way is not one which has been conspicuously

successful in managing its sexual life. Is it possible that, by claiming

the right to manipulate his physical processes in this matter, man may,

without knowing or intending it, be stepping over the boundary between

the world of Christian marriage and what one may call the world of

Aphrodite — the world of sterile eroticism against which the Church
reacted so strongly (perhaps too strongly) in its early days? For one

of the characteristics of the latter world was (and is) the exercise of

unlimited self determination in sexual activity.”®^ Despite this con-

95. (London, S.P.C.K., 1958), p. 135. The first contribution is found at pp.
132-37.

33



demnation in general, the writer points out that it is possible to conclude

that contraceptives may be used in particular circumstances, for al-

though the act will be ontologically distinct, it may be morally equiv-

alent, as the best symbol of love and union available in the circum-

stances. The justifying circumstances are not specified.

The second contributor concludes that contraception may be used

legitimately as a normal part of married life.®® It represents a respon-

sible use of human freedom in the interests of personal relationship or

the needs of the community as a whole. The conclusion is identical with

that in Canon Warner’s article, where he writes: “In general it is mor-

ally legitimate to use a material agent in order to forward the well-being

of man in his personal relations in society; e.g., wearing glasses or deaf

aid. If on moral grounds the unitive object of an act of coitus must be

achieved without involving the procreative end, then there is nothing

in principle wrong in using a material agent, for the agent is forwarding

the personal relational factor essential for marriage, and good mar-

riages are essential for society and the welfare of children.”®'^ Both these

latter theologians reject the view that the spiritual effects of coitus are

dependent on its conforming to certain empirical physiological features.

But what then is the criterion by which the morality of physical sexual

acts between man and woman is to be judged? The conclusion is ineluc-

table that there is no objective criterion, but that the -tightness or wrong-

ness of using contraceptives will depend on the integrity of the parties’

assessment of the circumstances and the purity of their motives. How,

then, one may legitimately ask, is one to distinguish between use of

a contraceptive and other sexual actions, such as sodomy, which have

96. pp. 137-47.

97. Theology, LVII, 12. Canon Warner concludes that complete abstention

is morally wrong, as is the exclusive use of the safe period. Coitus interruptus

and reservatus are neither procreative nor unitive in the full sense and must

therefore be condemned. The use of a condom is illegitimate as it impairs
“unitive orgasm.” Diaphragms and suppositories are legitimate. On oral con-
traceptives he writes: “We have here an interference with the actual function
of an organ [the ovary] by which the biological processes are prevented from

achieving their ‘object,’ ” at p. 14. Their use is not justified if a contraceptive is

available which does not radically inhibit a physiological function.

34



a relational value but which are condemned by Christian moralists.

Perhaps it might be answered that whereas the use of a contraceptive

preserves the physical structure of the act, a perversion such as sodomy

destroys it altogether, but this is not wholly convincing. At any rate,

neither of the writers disposes of the difficulty.

The theologians whose views have just been described criticise the

terms of traditional moral theology and question their applicability at

the present time, but they adopt them in modified form for their own

use. They are writing within the Catholic tradition. Other contemporary

theologians have considered the problem from the Protestant viewpoint.

Reinhold Niebuhr has not dealt with the subject at great length, but

he indicated his views briefly in the course of the first series of Gifford

lectures for 1939.^® “The prohibition of birth control,” he said, “as-

sumes that the sexual function in human life must be limited to its

function in nature, that of procreation. But it is the very character of

human life that all animal functions are touched by freedom and re-

leased into more complex relationships. This freedom is the basis of

both creativity and sin.” In place of the Catholic idea of the law of

nature, he suggests the substitution of the Lutheran notion of the “order

of creation,” giving as an example natural bisexuality. “It is not possi-

ble to escape the natural fact that the primary purpose of bisexuality

in nature is that of procreation. But it is not easy to establish a univer-

sally valid ‘law of reason’ which will eternally set the bounds for the

function of sex in the historic development of human personality.”

Dr. Niebuhr, while drawing no immediate concrete conclusions, is here

asserting the transcendence of the personal and rational over the purely

biological, while taking the latter into account. It would thus seem

that given certain circumstances man may morally use contraceptives

in sexual intercourse.®^ What those circumstances are must be left to

98. The Nature and Destiny of Man (New York, 1949), vol. I, 281-82.

99. Cf. Joseph Fletcher: “With the medical technology of contraception, parent-

hood and birth control become matters of moral responsibility, of intelligent

choice. We are able to control our fertility. No longer do we have to choose
between reproduction and continence. Sex is no longer a helpless submission to
biolo^cal consequences. Nor is the only alternative a denial of sexual love.

35



the Christian insight of the individual, an approach commended in the

third of the articles appearing in the Anglican publication already

referred to.^®^

This approach is at first sight identical with that of utilitarians and

libertarians who assert that conception of children should be the full

voluntary choice of the parents.^^^ The difference hes in the motivation

determining the choice, for utilitarians would lay no claim to Christian

insight. Karl Barth is another contemporary theologian who has dis-

cussed contraception at rather greater length.^^^ Having conceded that

family planning is generally accepted by theologians as desirable, he

goes on to discuss the legitimacy of the means that may be employed.

Abstinence he characterises as an “heroic” course, which is not wrong

in itself but may be psychologically dangerous. The safe period might

seem the ideal expedient, but the anxiety caused by its unreliability, as

well as its check on the spontaneous nature of sexual expression, are

grave objections to its use. Coitus interruptus is fraught with psycho-

logical dangers and its practise may well imperil marital union. There

remains the last alternative of contraception, the use of mechanical

99. {ccmtinued) either in toto or according to lunar calculations in a sophisticated

and doubtful rhythm mathematics. When such calculations enter in, the spon-
taneity of love goes out. Rhythm is a denial of freedom; it offers only an alterna-
tion of necessities, not a method of true control.” Morals and Medicine (Princeton,

1954), p. 96. Also, Paul Ramsey, “Freedom and Responsibility in Medical and Sex

Ethics: A Protestant View,” New York University Law Review, XXXI (1956),
1194.

100. The Family in Contemporary Society, pp. 149-54. Cf. the second article:

“The fact that man in his freedom stands above nature and is therefore at
liberty to interpret sex in terms of personality and relation and to use it for

personal and relational ends, leads to the conclusion that contraception is

morally right in certain circumstances.” (p. 145)

101. See Horace M. Kallen: “I similarly appraise the right of men and women
to full knowledge of all that the sciences of nature and man have established
regarding sex and reproduction, and to decide for themselves upon the number
of children they want and the intervals at which they want them.” “An Ethic
of Freedom: A Philosopher’s View,” NYULR, XXXI (November, 1956) 1167.
Cf. Glanville Williams, “The Control of Conception,” in The Sanctity of Life
and the Criminal Law (New York, 1957), pp. 34-74.

102. Die Kirchliche Dogmatik, III, 300-11.

36



devices which are not evil in themselves. If, says Dr. Barth, human

interference with the natural act of coitus is regarded as wrong in itself,

then all four methods must be rejected without distinction. If, on the

other hand, family limitation is recognised as desirable, then it should

be recognised that all the methods are open to some objection, and this

is the price to be paid for an extension of freedom. In making the choice

between the various methods certain considerations apply. The choice

must be made in faith and with a free conscience, and it must be a joint

decision of husband and wife taking into account the significance of

their joint life together and the whole purpose of the matrimonial

union. These Protestant approaches are similar in that they offer no

binding principle which can be universally applied but rather state that

in certain circumstances the informed Christian conscience can con-

clude that contraception is lawful without the incurring of sin.

Official acceptance of birth control by Protestant churches has kept

pace with theological developments. In March 1931 the Federal Coun-

cil of Churches of Christ in America approved of artificial methods of

birth control by a vote of 24-4.^^^ Since then numerous other Protestant

churches and sects have followed suit.^®^ In 1954 the Synod of the

103. See Margaret Sanger, My Fight for Birth Control, p. 344.

104. These include the Connecticut Council of Churches; the American Uni-

tarian Association; the General Council of Congregational and Christian

Churches; the Protestant Episcopal Church (House of Bishops and House of
Deputies); the Quakers. Baptists, Disciples, and Jehovah’s Witnesses leave the

matter to be decided by the individual. For various statements of Christian

views see The Churches Speak Up on Birth Control, published by the Planned
Parenthood Federation of America, New York. The pamphlet quotes a state-
ment of the Federal Council of Churches: “The public has a right to expect
guidance from the church on the moral aspects of birth control. As to the
necessity for some form of effective control of the size of the family and
spacing of children, and consequently of control of conception, there can be no
question. It is recognized by all churches and physicians. There is general
agreement that sex union between husbands and wives as an expression of
mutual affection without relation to procreation is right. This is recognized by
the Scriptures, by all branches of the Christian church, by social and medical
science, and by the good sense and idealism of mankind.” The General Assembly
of the Church of Scotland has been advised by its Committee on Temperance and
Morals to approve the practice of contraception provided it is not resorted to
for selfish motives. See The Times (London), May 5, 1960.

37



Augustana Lutheran Church, at its meeting in Los Angeles, endorsed

birth control.^^^ The Methodist Church took unanimous similar action

at its General Conference in 1956.^®® In England, Methodists have

expressed similar views. Typical of numerous Protestant statements

is the following by the Reverend James L. Novarro: “We Baptists

definitely consider fertility and conception as providential and a power

given to man to be properly utilised. Fertility and conception should

not be left up to accident, but should be well planned, thereby contrib-

uting to the moral, spiritual, and physical health of all concemed.”^^*^

Baptists, however, like many Protestant sects, have not officially sup-

ported birth control but leave it to the consciences of individual mem-

bers of their congregation to decide for themselves. It seems beyond

question that the overwhelming weight of Protestant opinion favours

artificial birth control at least to some degree.

Judaism has no agreed opinion on birth control. The Central Con-

ference of American Rabbis, as well as individual Jews, have supported

contraception, but Orthodox Judaism has taken a different stand. The

Rabbinical Alliance has stated: “Orthodox Judaism does not condone

any artificial birth control measures by the male spouse, under any

circumstances. Only in cases where the health of the female is jeopar-

dised are certain birth control measures allowed and then only through

direct consultation between the medical and rabbinic authorities.”^®®

105. But not all Lutherans accept this; the Missouri Synod of the Lutheran

Churches, for example, has condemned it as sinful.

106. The New York Times, May 4, 1956. See October 17, 1956, for acceptance
by United Lutheran Church Convention.

107. See welcome of Norman H. Snaith, President of Methodist Conference,
to the Lambeth Report. The Times (London), August 27, 1958.

108. See Simple Methods of Contraception (New York, 1958), p. 43.

109. See Planned Parenthood News, No. 22 (Fall, 1958), 4. See also Rabbi

Emanuel Rackman, “Morality in Medico-Legal Problems: A Jewish View,”
NYULR, XXXI (November, 1956), 1207.

38



Anglican and. Protestant

Opinion and the Law

Although Protestant opinion was responsible for the passing of the

Comstock law and its state derivatives, the profound changes which

have taken place in its assessment of birth control now render it hostile

to such legislation. Those who accept contraception as a positive good

could hardly favour its theoretical outlawing. The same is true of those

who favour its use in exceptional circumstances only, and those who

leave the whole matter to be decided by the individual conscience. To

legislate on the matter would be to substitute the collective moral assess-

ment of the community for that of the individual. In Connecticut and

Massachusetts the Protestant churches have taken a leading part in

seeking to repeal or amend the legislation passed by their predecessors.

This zeal may not have been totally disinterested, since the laws in

question are now by an historical paradox enthusiastically supported

by the Roman Catholic community, and. the movement for repeal is

certainly influenced by dislike of Catholic power, as well as by a less

reasonable anti-Catholicism. Protestants and others might well be sat-

isfied by the lifting of the ban on contraceptive advice given for medical

reasons, and although this limitation has become illogical with the

theological acceptance of contraception as part of married life, it might

well be acceptable, since in practice it means that married couples

who wish to obtain contraceptives may do so. In England, of recent

years, the Anglican Church has made no effort to secure legal restriction

on the distribution of contraceptives, save for an intervention to ban

the sale of such articles by slot machines.

Protestant opinion would not, however, favour the complete with-

drawal of the law from this field. Rather, it would limit its role to pre-

serving public order and public decency. It would be generally agreed

that advertisement of contraception should be restricted, both for aes-

thetic reasons and as a means of keeping contraceptives from the un-

39



married and from the teenager. The same motivation would restrict

sales from slot machines and might well favour a ban on the sale to

unmarried persons under a certain age. The argument that unrestricted

sale would lead to an increase in promiscuity is a powerful one and

appeals to many who do not object to the use of contraceptives by

married couples. The difficulty is that such laws are difficult to enforce,

although they are not totally ineffective, as is illustrated by the restric-

tions imposed on sale of liquor to minors. The law could also be use-

fully employed in setting minimum standards to which manufacturers

and distributors of contraceptives should adhere.

Contraception and. the

Roman Catholic Church

The Catholic Church has always condemned contraception, and, de-

spite the changed attitude of other churches, maintains its traditional

position.^^® The Church Fathers, and later St. Thomas Aquinas, held

contraception to be sinful and contrary to scriptural teaching.^^^ Thus

St. Augustine declares that “intercourse even with one’s legitimate wife

is unlawful and wicked where the conception of the offspring is pre-

vented. Onan, the son of Juda, did this and the Lord killed him for

it.”ii2 This interpretation of the sin of Onan is not universally accepted.

Some scholars have maintained that Onan was punished not so much

for indulging in coitus interruptus as for breaking the levirate law

which required a man to raise children to his brother’s widow, so that

110. See the various condemnations of the Holy Office, viz.: May 20, 1851;
April 19, 1853; March 26, 1897; November 23, 1922.

111. St. Augustine, De nupt. et con. i, 15; Lombard, Sent, iv, d. 31; St. Thomas,
Summa Theol. II-II. 154:1. St. Paul, in a passage possibly referring to contra-
ception, denounces women who “exchanged natural for unnatural intercourse,”
Rom. 1:26.

112. De adulterinis conjugiis II. xii.

40



she should not be left without a child and the tribe would continue. The

punishment for breach of the levirate marriage law, however, is laid

down elsewhere in the Old Testament. Apart from the Onan text,

the Old Testament also contains the general injunction to “increase

and multiply,” but this passage is also open to varying interpreta-

tions.^^'^ It has also been suggested that the slaying of Sarah’s seven

husbands by the devil was a punishment for their employment of con-

traception, but this seems unlikely, since the angel, when overcoming

the reasonable reluctance of Tobias to marrying her, and so risking

the same fate, refers to her as a virgin.

Scriptural texts apart, the Church has based its condemnation of

contraception on the natural law. The nub of the Catholic position is

contained in canon law where it is stated that the primary end of mar-

riage is the procreation and education of children.^^® Pius XI, in his

encyclical on Christian Marriage, stressed the “unnatural” character

of contraception : “since therefore the conjugal act is destined primarily

by nature for the begetting of children, those who in exercising it

deliberately frustrate its natural effect and purpose, sin against nature

and commit a deed which is shameful and intrinsically vicious. The

Pope thus re-stated the traditional teaching of the Church, basing his

pronouncement on the doctrine elaborated by St. Thomas Aquinas.

113. Deut. 25:7-10: “The woman shall come to him before the ancients, and
shall take off his shoe from his foot, and spit in his face, and say: ‘So shall it
be done to the man that will not build up his brother’s house’: and his name
shall be called in Israel, the house of the unshod.”

114. Gen. 1:28; repeated to Noe, Gen. 9:1.

115. Tob. 3:8; 6:22. The reason given for the death of the husbands is that they
were among those “who in such manner receive matrimony, as to shut out
God from themselves, and from their mind, and to give themselves to their
lust, as the horse and mule, which have not understanding, over them the devil
hath power.” (6:17). For a discussion of the text see Michael J. Gnienthaner,
Catholic Biblical Quarterly, VIII (1946), 98, who concludes that the text does
not refer to contraception.

116. Canon 1013.1.

117. Casti connubii (New York, 1931), p. 26.

118. See Summa Theol. II-II. 154. 1.

41



The Catholic natural law tradition accepts as self evident that the

primary purpose of sexual intercourse is procreation and relegates as

secondary such ends as fostering the mutual love of the spouses and

allaying concupiscence. This conclusion is based on two propositions,

that man by the use of his reason can discover God’s purpose in the

Universe, and that God makes known his purpose by certain “given”

physical arrangements. Thus, man can deduce that the purpose of

sexual activity is procreation — the continuation of the human race —

and the physical arrangements God has provided may not be sup-

planted at man’s will. We now know that not every act of coitus is
conceptual, and Catholic theology recognises that some coital acts

are conceptual and relational, others relational only. But to recognise

this fact is not to conclude that acts may be rendered conceptual or

non-conceptual at man’s will. Man is free to act only within the pattern

imposed by nature.

It is frequently objected that this argument from “nature” is incon-

clusive, since in other matters nature is not allowed to run its course.

Beards are shaved, fingernails are cut, rivers dammed. Catholics do not

suggest that such activities are immoral. Why, therefore, should they

in the jingle case of sexual relations equate unnatural with immoral?

To this objection Catholics answer that there is no purpose perceived

by reason in allowing hair or nails to grow to inordinate length or rivers

to flow always in the same channels. The chief purpose of sexuality,

on the other hand, is undeniably reproduction. Some Catholic writers,

however, have accepted this objection to the condemnation of contra-

ception, pointing out that the argument is not universally applicable.^^®

They still condemn contraception as contrary to natural law, but on

the grounds of its eventual harmful effects on the race rather than on

its perversion of a faculty. However beneficial a contraceptive act may

119. See W. Breen, “Neo-Malthusianism: A Critique of Its Critics,” Irish
Ecclesiastical Record (November, 1931), 467. E. J. Mahoney, “‘The Perverted

Faculty’ Argument Against Birth Prevention,” Ecclesiastical Review, LXXIX
(1928), 133-145. Cf. Ecclesiastical Review, LXXIX (August, 1928), 408 and
LXXIX (November, 1928), 527. One example might be “chewing gum,” which
employs the natural faculties of the salivary glands and frustrates their purpose

yet is not considered immoral.

42



be in the individual case, it must be condenmed, for if raised to a

general line of conduct evil results would inevitably follow.

The somewhat stark Augustinian-Thomist approach to marriage,

with its emphasis on its social and procreative purpose and virtual dis-

regard of the personal factors of friendship and love between the part-

ners, has been challenged by a number of Catholic writers and rejected

as inadequate. They would like to see stress laid on the personal

aspects of marriage, its role in increasing mutual love and perfecting

the personalities of the spouses. To further this aim the traditional

terminology of “primary” and “secondary” ends should be abandoned.

Dr. Herbert Dorns, in his book entitled The Meaning of Marriage,

denies that the constitution of marriage consists in a subservience to

a purpose outside the spouses themselves, for which they marry. “It

consists in the constant vital ordination of husband and wife to each

other until they become one. If this is so, there can no longer be

sufficient reason, from this standpoint, for speaking of procreation

as the primary purpose (in the sense in which St. Thomas used the

phrase) and for dividing off the other purposes as secondary. The

meaning of marriage is the community of life between the spouses, of

which the child is the fruit and visible embodiment. This approach,

claim its supporters, does not diminish the importance of the child in

marriage but stresses it in a different way. It is peculiarly apposite at a

time when many seek to explain man in purely physiological terms, and

it brings theology up to date by taking into account a whole range of

biological and psychological data of which scholastic theologians were

unaware. It is helpful in disposing of the problems raised by sterile

unions, virgin marriage, and the practice of periodic continence.

Pius XI seems to have foreshadowed this view to some extent in his

encyclical on marriage. “This mutual, interior moulding of husband

120. Sec Dietrich von Hilderbrand, Die Metaphysik der Gemeinschaft (Munich,

1930); Herbert Dorns, Sinn und Zweek der Ehe (Breslau, 1935); Bernardine
Krempel, Die Zweekfrage der Ehe in Neuer Beleuchtung (Zurich, 1941);
Benoit Lavaud, “Sens et fin du mariage: La these de Dorns et sa critique,”
Revue Thomiste, XLIV (1938), 737.

121. The Meaning of Marriage (New York, 1939), p. 87.

43



and wife,” wrote the Pope, “this determined effort to perfect one

another, can in a very real sense, as the Roman Catechism teaches, be

said to be the chief reason and purpose of matrimony, provided matri-

mony be looked at not in the restricted sense as instituted for the

proper conception and education of children, but more widely as a

blending of life as a whole, and the mutual interchange and sharing

thereof. While retaining the traditional doctrine of the ends of

marriage, the Pope is taking into account the motives of the parties,

which in most cases will be based on mutual love rather than on a

desire to have children. Dr. Dorns and his followers have had a pro-

found influence on contemporary Catholic writing on marriage and

have concentrated the attention of religious writers on the hitherto

neglected “secondary” ends of marriage, of the complexity of which

theologians are now much more aware. They have not, however, secured

the abandonment of the traditional terminology. Had they done so,

the way might possibly have been opened for the acceptance by the

Catholic Church*of contraception in certain limited circumstances, and

it was perhaps this fear which lead to an ecclesiastical censure for Dr.

Dorns’ book, and a categorical reassertion of the primary and second-

ary ends of marriage in a Vatican decree of 1944.^23 j)j- Dorns’ views

do not, however, lead inevitably to this result. Even if relational and

conceptual ends of marriage are placed on an equal basis, the con-

demnation of contraceptives is not excluded, for coitus can still be

treated as a given act, the intrinsic nature of which is the giving and

receiving of seed. Unless it is this, then neither its conceptual nor rela-

tional ends are achieved, and it becomes an onanistic act of self-love,

ontologically distinct from true coitus

122. Casti connubii.

123. The following question was addressed to the Holy Office. “Can the opinion
of certain recent writers be admitted who either deny that the procreation and
education of offspring is the primary end of marriage, or teach that secondary

ends are not essentially subordinated, but equally principal and independent?”

Reply: Negative. A.A.S., XXXVI (April, 1944), 103.

124. This presumably would be the Catholic reply to the Anglican arguments
discussed earlier. Furthermore, if any variation is admitted in coitus of a funda-

mental nature, unlimited variations must be allowed.

44



Catholics employ a number of subsidiary arguments in their con-

demnation of contraception. It has, they maintain, certain harmful

effects on personal and social health, which are the inevitable result of

disregarding natural law. First, the health of the woman suffers, for

she needs certain vital substances contained in male semen, and ab-

sorption of these is greatest from the womb.^^® Contraception may be

a contributory factor in causing cancerous growths, and cancer of the

breast is more common amongst sterile married women than in those

who have borne children.^^® It is said that the use of contraceptives

induces sterility, and one physician, not a Catholic, has maintained that

it causes lunacy.^^^ By interfering with the consequences of pregnancy

it may cause neurasthenia and an unsatisfied sex craving which leads

to over-indulgence and destroys matrimonial harmony. These views

are supported by a substantial body of medical opinion, but there is

also weighty authority which rejects them. Thus the Biological and

Medical Committee of the Royal Commission on Population concluded

that the methods generally in use in England for preventing conception

caused no injury to the genital passages, if employed in accordance with

instructions, and added that there was no evidence that birth control

methods approved by the medical profession impaired fecundity.^^®

Other doctors point to the beneficial effect on a mother’s health when

she is relieved from the prospect of endless pregnancies, and the dan-

gers of pregnancy to women suffering from tuberculosis, diabetes,

nephritis, or heart disease. Birth control has the negative virtue that it

prevents recourse to abortion, which is far more dangerous.

125. See Dr. Halliday Sutherland, Laws of Life (London, 1935), p. 41.

126. Sutherland, p. 47.

127. For the lunacy statement by Sir Robert Armstrong-Jones, see Edward
Moore, The Case Against Birth Control (New York, 1931), p. 28. For a full
discussion of the harmful medical effects of birth control, see R. de Guchteneere,

Judgment on Birth Control (New York, 1931), pp. 135-64; Moore, The Case
Against . . . , pp. 21-31; E. Podvin, A Doctor Speaks Out on Birth Control (Int.
Catholic Truth Society; Brooklyn, 1937).

128. Papers of the Royal Commission on Population, Vol. IV (1950), pars. 46
and 52.

129. Royal Commission on Population Report, Cmd. 7695 (H.M.S.O., 1949),
p. 159. “Our survey of the history of family limitation leaves us in no doubt
that, if these methods were not available, other means would be used, and
some of them, e.g., criminal abortion, the prevalence of which is even now
distressingly high, are very undesirable.”

45



Catholics further stress that the use of contraception leads to popu-

lation decline, and the truth of this is now firmly established. The

Royal Commission on Population concluded that the decline in the

birth rate in England was not due to a fall in reproductive capacity

but to the spread of deliberate family limitation.^®® Similar conclusions

were reached by the French authorities, and in 1920 a law was passed

in France outlawing sale of contraceptives in order to arrest popula-

tion decline.

Whether population decline is an absolute evil is open to question.

The high standard of living in Western Europe and the United States

could never have been obtained without a massive growth in popula-

tion, but it seems equally evident that increasing population is holding

back living standards in many undeveloped parts of the world, espe-

cially in the Far East.^®^ A nation that fails to increase its population
may have valid economic reasons for not doing so, but a nation that

does not replace its population, provided living standards are adequate,

may justifiably be regarded as in some respects decadent. The situation

revealed by the Royal Commission on Population, that the British

nation is no longer replacing itself, the deficiency being in the region

of 6 per cent, is certainly alarming, especially when the need of the

Commonwealth for immigrants is considered.^®^ The prospect of a

rapidly aging population supported by an ever-diminishing portion of

130. Report, par. 626.

131. See Report, pp. 60ff. This point is more fully discussed when the question
of world population is considered.

132. Report, par. 626. The Report found that 2.2 is the average size of the
British family. “A further spread of the practice of family limitation, and a
continued improvement in its effectiveness, must be expected to take place and

will tend to reduce average family size, but only slowly” (par. 630). The British
birth rate has, in fact, increased from 16.1 in 1950 to 16.5 in 1957. An optimistic
view was expressed by Professor P. B. Medawar in the first Reith lecture for
1959 on The Future of Man. ‘‘As for replacement,” he said, ‘‘I do not know
that any demographer, on present evidence, now fears a serious decline in the
population of Great Britain. The latest estimates suggest that we are just about
breaking even. ... In so far as purely biological pressures can influence mar-

riage rates and ages, I guess that the present upward turn may be genuine and
not just temporary.” The Listener, LXII (November 19, 1959), 865.

46



younger people is not encouraging. As the Royal Commission mildly

concluded: “It is possible that with a diminishing proportion of young

people the community might lose something in energy, initiative, enter-

prise, and other qualities associated with youth.”^®®

Contraception, Catholics maintain, is corrupting to the individual,

since it reduces self-control and its employment in the majority of cases

will be for selfish reasons. Marriage will be degraded to a legahsed form

of prostitution. Furthermore, contraceptives undermine public moral-

ity by removing the fear of pregnancy, which is a powerful deterrent

against promiscuous intercourse.^^^ An argument for employing con-
traceptives can be made for particular cases, but once they are made

generally available, no means exists of restricting their use to these

cases.

These Catholic arguments are countered by those favouring contra-

ception with a list of benefits accruing from its employment. It prevents

over-population, avoids the birth of unwanted children, reduces infant

mortality and juvenile deUnquency, safeguards the mother’s health,

and facilitates early marriage. The argument on this level, however,

tends to be artificial. Sociological arguments are employed by Catholics

mainly for polemic purposes and as a gloss to illustrate the argument

from natural law. Moreover, now that CathoUc theologians have sanc-

tioned the use of the safe period as a legitimate method of birth con-

trol, a number of the arguments have lost their force. Under-popula-

tion or promiscuity might well result from a wide dissemination of

knowledge of the arithmetic of periodic continence. The Catholic atti-

tude to the safe period may here be conveniently considered at greater

length.

133. Report, par. 647.

134. This contention is borne out by the data available. Kinsey found that in

his sample of 5,700 women, fear of pregnancy ranked third in the factors de-
terring them from pre-marital intercourse. 89 per cent cited moral objections,

45 per cent lack of desire, 44 per cent fear of pregnancy, 44 per cent fear of
discovery, 22 per cent lack of opportunity, 14 per cent fear of disease. Sexual

Behavior in the Human Female (Philadelphia, 1953), p. 332. Amongst college
women, investigators have found that fear of pregnancy ranks as a primary
factor—50 per cent. D. D. Bromley and F. H. Brillen, Youth and Sex: A Study
of 1300 College Students (New York, 1938).

47



THE SAFE PERIOD For ccnturics doctors have speculated about the

possibility of a sterile period in women, but until this century no reli-

able means was available to calculate its duration. In 1930, however,

two doctors. Dr. Ogino of Japan, and Dr. Knaus of Austria, working

independently, published the results of their researches, which though

differing in detail indicated the same method for calculating the length

of the period. A woman’s menstrual period is normally twenty-eight
days and during this time ovulation occurs only once, the ovum or*egg

being discharged from an ovary into the Fallopian tubes. Conception

can only take place when the egg is present. Thus, if the date of ovula-

tion can be accurately calculated, the commencement of the sterile

period can be ascertained. The latest research based on the findings of

Ogino and Knaus indicates that ovulation takes place on the fifteenth

day before the onset of menstruation. The days must be computed

from the beginning of the menstruation following ovulation rather than

that before it, since the physiological process is leading up to the new

menstruation. The method also assumes that the pattern over a year

of a woman’s menstrual cycle will be uniform. This does not mean that

every period will be of the same length but that the variations will

remain within constant limits, e.g., 25-30 days. Once a woman’s par-

ticular pattern has been established by careful observation then a

formula can be worked out which will indicate her sterile period. Al-

lowance must be made for the irregularities in the cycle, a variable

factor in different women but constant in the same subject, for the

period in which male sperm can survive in the female genital tract,

approximately two-three days, and for the period of life of the ovum,

one day. Thus in the case of a woman with an absolutely regular cycle

of 28 days the fertile period will be five days.^^^

135. A formula commonly proposed is as follows. Take —15 and —2 from the
minimum length of a woman’s cycle and —15 plus 2 from the maximum length
and this will give the fertility period. Thus in a woman with a period pattern
of 24-29 the fertile period will be from the seventh to the sixteenth day of her

cycle. This condensed formula is based on the following data. Menstruation

will occur between 24 and 29 days after the onset of the last menstruation. As
ovulation occurs on the 15th day before menstruation, 14 days must be sub-

tracted from 24 and 29, giving 10 and 15, the dates between which ovulation

48



Use of this method to control conception has a number of advan-

tages. It involves no mechanical contrivance and allows physiological

union, it avoids the risk of physical injury which appliance methods

may cause, and it demands the exercise of a degree of self control. On

the other hand it has obvious disadvantages. First it can only be used

after a period of extended observation and the help of a competent

physician. Even after the most careful observation a woman can easily

make an error of calculation in using her chart. Ovulation exception-

ally may take place on days other than the fifteenth or may be brought

on prematurely by sexual intercourse. An emotional disturbance may
upset the menstruation cycle and after pregnancy a considerable time

may elapse before the cycle returns to stability. It requires absolute

continence on certain days and some married couples may find this

almost impossible.

An alternative method of fixing the date of ovulation is a basal body
temperature chart. Directly after ovulation, the basal or lowest normal

daily temperature rises and remains at the higher level until shortly

before the next period of menstruation. Here again previous observa-

tion of the temperature pattern for a considerable period is necessary,

and obviously mistakes can be easily made. Furthermore, the method

provides no protection against conception resulting from intercourse

in the two or three days before ovulation has taken place. On the other

hand, by combining this method with that of Ogina-Knaus the number

of days on which intercourse must be restricted can be reduced, and

this is of especial importance where there is a wide variation in the

menstrual cycle.

Yet another method of fixing the time of ovulation has recently been

evolved. In order to nourish the egg, the womb secretes sugar, and this

sugar is only present at the time of ovulation. When the egg dies, the

sugar disappears. A piece of chemically prepared tape can be held
against the womb, which turns green if the sugar is present and remains

135. {continued) may occur. From 10 a further three is subtracted to allow for
survival of fertilizing capacity in the sperm, and one must be added to 15 to allow

for the survival period of the ovum. Thus if intercourse takes place from the first

to the sixth day of the cycle and from the seventeenth to the twenty-ninth, no
conception should occur.

49



neutral if it is not. A period of four days’ abstention after the tape
shows green is advised.^^^ Experiments are also proceeding to develop

a drug which will stabilise the menstrual period, and this would be

especially helpful for women with highly irregular periods.

Various studies have been undertaken to ascertain the effectiveness

of the rhythm method of birth control in practice. In an investigation

carried out by the St. Louis University Department of Sociology, two-

thirds of the doctors who replied to a questionnaire thought the method

was not too complicated for most women. As to its effectiveness,

opinion was very divided, ranging from estimates of 5 per cent to

100 per cent, the midpoint in the distribution of estimates being 71

per cent.^"^® An investigation of women using the rhythm method at
the Free Hospital for Women at Brookline, Massachusetts, revealed
that the risk of pregnancy was 14.4 per cent for every hundred years

of exposure. For women using contraceptives the equivalent figure was

6 to 1 Other doctors have estimated that if the rules are strictly

observed the percentage of failures is 3 per cent.^^^

136. The New York Times, April 24, 1958. Dr. Doyle of Boston carried out
the experiments.

137. G. S. Schnepp and J. Mundi, “What Doctors Think of the Rhythm
Method,” American Ecclesiastical Review, CXXIII (July-December, 1950),
111. The questionnaire was sent to 523 physicians, of whom 273 replied. Catholic
doctors comprised 39 per cent. For an estimate of 100 per cent effectiveness see

Leo J. Latz and E. Reiner, “Further Studies on the Sterile and Fertile Periods

in Women,” American Journal of Obstetrics and Gynecology, XLIII (1942), 79.

138. Schnepp and Mundi, p. 114. “Of the 192 doctors, 171 or about 89 per cent

checked this question, and their opinions ranged from 5 per cent to 100 per

cent effectiveness. Taking the average of all estimates, or the mean, we found it
to be 65.1 per cent with a standard deviation of 25 per cent; the latter indicates

a considerable spread of opinions. The median, or midpoint in the distribution

of estimates, was 71 per cent effectiveness.”

139. C. Tietze, S. R. Poliakoff, and J. Rock, “The Clinical Effectiveness of the

Rhythm Method of Contraception,” Journal of Fertility and Sterility, II (1951),
444.

140. S. Fleck, E. F. Snedecker, and J. Rock, “The Contraceptive Safe Period,”

New England Journal of Medicine, CCXXIII (1940), 1005-09.

50



From the medical and other evidence available, one may reasonably

conclude that while the safe period as a method of birth control does

not merit the contempt with which it has often been dismissed by those

advocating the use of appliances, it is by no means foolproof, and exag-

gerated claims on its behalf are not supported by fact. No contraceptive

is wholly reliable, but in the present state of knowledge the margin for

error is greater in rhythm than in appliance control. The conclusions

of Dr. Tietze and others seem justified when they write that the rhythm

method offers a satisfactory degree of protection against unwanted

pregnancy to “rigorously selected and carefully instructed wives, who

with their husbands are intelligent and strongly motivated. For others

and for those to whom pregnancy would be dangerous, the effectiveness

of the method in preventing conception is not considered adequate.”^*^

CATHOLIC MORAL VIEWS ON RHYTHM Despite its Condemnation by

St. Augustine,^^^ u§e of the rhythm method is now approved by the

highest authorities in the Catholic Church.^^® Pius XII removed all

doubt from the matter in two statements in 1951.^^^ The Catholic ideal

is one of fertility, not of sterility, and, all things being equal, a large

family is probably considered preferable, but the Church has not given

its approval to indiscriminate breeding. Rather, the practice of family

planning is enjoined as a duty, the dispute with contemporaries being

141. Tietze et al.. Journal of Fertility and Sterility, II, 444.

142. On the Morals of the Manichaeans, XVIII, 65.

143. The statement of Pius XI in Casti connubii that married couples were not
acting unnaturally if they exercised their right to intercourse “although on

account of natural reasons, either of time or of certain defects, new life cannot
be brought forth,” is sometimes quoted as approving the deliberate use of

rhythm, but strictly interpreted it has reference only to such situations as sterile

marriages and the lawfulness of intercourse during the safe period.

144. Express approval to employment of the rhythm was given and the cir-
cumstances appropriate to its use discussed. See “Address to Italian Catholic

Union of Midwives,” A.A.S., XLIII (October 9, 1951), 835, and “Address to
National Congress of the Family Front,” A.A.S., XLIII (November 26, 1951),
855-60. For an appraisal of the statements see Gerald Kelly, S. J., Medico-Moral
Problems (St. Louis, 1956), IV, p. 29, and Linacre Quarterly, XIX (1952), 39.

51



confined to the means employed. The general consensus of theologians

is that the deliberate use of the safe period as a means of family plan-

ning is morally indifferent, and that the morality of its employment

will depend on the presence of certain circumstances.^^® Two indis-

pensable conditions are that both parties to the marriage freely agree

to its use and both are able to bear the strain which it may impose. In

addition, there must be some serious reason for its employment. “The

matrimonial contract,” said Pius XII in 1951, “which confers upon

the parties the right to satisfy the inclination of nature, constitutes them

in a state of life, the state of matrimony. Now upon the parties who
make use of this right by the specific act of their state, nature and the

creator impose the function of providing for the conservation of the

human race. ... It follows from this that to enter upon the state of

matrimony, to make constant use of the faculty proper to it and only

in matrimony allowable, and on the other hand consistently and de-

liberately, and without serious reason, to shirk the primary duty it

imposes would be to sin against the very meaning of married life.”^^®

The extent of the duty to procreate the race will clearly vary with

external circumstances, such as local population and economic con-

ditions. Serious reasons, justifying resort to rhythm, will in most cases,

however, be personal, and these may be financial, medical, eugenic, or

social.^^^ In each case the judgment whether to use rhythm must be

conscientiously made by the married partners after a careful survey of

the relevant circumstances.

145. For a typical article representing the majority view see J. A. Ryan, “The

Moral Aspect of Periodic Continence,” The Ecclesiastical Review, LXXXlX
(1938), 28. For a contrary view see N. O. Griese, The Morality of Periodic

Continence (Washington, 1943). His principal conclusion is that to use the

safe period systematically in marriage is “objectively unlawful,” although it

can be justified in individual cases for just cause. It is “per se illicitum, per

accidens autem licitum”

146. A.A.S., XLIII, 835-54.

147. For a discussion of serious reasons see John L.. Thomas, Marriage and

Rhythm (London, 1957), pp. 85-112.

52



Catholics and. the Law

Does Roman Catholic theology require that contraception be banned

by law? As has been seen, it is unequivocally condemned as contrary

to natural law, but one cannot conclude with some rigorists that the

question is immediately answered in the affirmative, since all contra-

ventions of natural law are not fit subject for legislation. Fornication,

adultery, and lying, for example, are contrary to natural law, but civil

sanctions are not advocated for such offences. Non-philosophic criteria

must be applied before the question can be disposed of. A breach of
natural law must be a fit subject for legislation and injure the common

good substantially before it is forbidden by law. The law must be

capable of enforcement and equitable in its incidence. Finally, if it

would cause greater evils than those it is intended to avoid, recourse

to legislation must be eschewed.

The banning of the use of contraceptive's by law, as in Connecticut,

fulfills none of these criteria. Using a contraceptive is essentially a

private act, and though it may have harmful social consequences it is

impossible to isolate any particular act and demonstrate that harmful

consequences flow from it. In practice such a law is obviously unen-

forceable, and the attempt to enforce it would involve an intolerable

interference with the private life of individuals. Private individuals and

married couples would have to be subjected to constant supervision,

the home would be invaded by investigators, and the police state ad-

vanced to a new point.

Banning the sale of contraceptives and the dissemination of birth

control information, on the other hand, is a possible subject for legisla-

tion, since these are public acts, capable of regulation by law. Cer-

tainly such laws are difficult to enforce, but their effect would be far

from nugatory, given a climate of moral opinion which approved their

content. Thus in a predominantly Catholic country such laws would

not be unreasonable, and they are found in countries such as Spain,

53



Italy, and Ireland.^^® It might, of course, be maintained that moral

condemnation renders a law superfluous, but this view is unrealistic,

since law is closely connected with the moral opinion of the community

and is a powerful, although subsidiary, means of maintaining moral

standards.

Some would condemn such laws on abstract grounds, namely, that

they violate the freedom of the individual to make his own choice. But

on this abstract level the argument would not appeal to Catholics,

who maintain that there can be no right to commit an immoral action.

Nor would the contention that condemnation of contraception is a

specifically Catholic doctrine fare better, since Catholics hold that the

prescripts of natural law are binding on all men, and the Church her-

self is powerless to change them. Protestants and others often argue

that to allow the sale of contraceptives in no way diminishes Catholics’

rights, since they are under no obligation to use them. In a certain

sense this is true, but a society in which contraceptive sales and propa-

ganda are unfettered clearly exerts a strong pressure on its members

to use them or at least makes it more difficult for them to abstain from

their employment. The plain fact is that if religion is more than a

148. In Ireland, The Censorship of Publications Act, 1929, No. 21, forbids the
writing or publication of matter “which advocates or might reasonably be sup-

posed to advocate the unnatural prevention of conception”; a law of July 31,

1920 forbids the divulging of methods of contraception, etc.

In Spain, an Act of January 24, 1941, forbids any form of public instruction on

methods of birth control, and the exhibition or offering for sale of contraceptives.

Customs regulations forbid the importation of contraceptives. Doctors, however,

are not forbidden to prescribe contraceptives, but birth control advice may not
be given as part of any public health service and there are no birth control clinics

in Spain. The laws appear to be effective.

In Italy birth control propaganda is forbidden but sale of contraceptives is allowed

in pharmacies. No birth control clinics exist and contraception may not be
advised by those discharging public health service duties.

149. This point is illustrated unintentionally by those who produce evidence of
Catholics who attend birth control clinics as part of the argument for lifting
legal bans. In fact, as the United Nations Population Commission and others have
recorded, while Catholics in the U.S.A. do use contraceptives, they do so less
than non-Catholics. See U. N. Economic and Social Council Report, E/CN,
(September, 1955), para. 153, and N. E. Himes, Medical History . . .

,

pp. 414-16.

54



purely personal and private exercise, if it sets out
to provide a Weltan-

schauung, then it is bound to have social effects
which may diminish the

freedom of those who reject the faith. To expect a
society in which the

majority of its inhabitants condemn contraception as
a moral and social

evil to allow its unfettered spread in the
name of a doctrine of abstract

right is to ask for the impossible. It is
only because moral opinion in

Britain and the United States accepts contraception
as more or less a

good that it is so largely uncontrolled.

Does Catholic theology then oblige Catholics in
non-Catholic coun-

tries, and specifically in England and the
United States, to work for

such prohibitory laws or to defend them where
they exist? Such a ques-

tion can certainly not be answered by means
of a logical deduction

from a natural law premise, but the particular
social situation in the

country under consideration must instead be
carefully examined. By

the constitution and political philosophy of
both England and the

United States, Catholics certainly have a right
to work for the passage

of such laws, using all the normal political
means, such as public cam-

paigns, distribution of literature, and lobbying
of legislators, to attain

their end. By such means in the past laws restricting
gambling, betting,

and drinking have been added to the statute book,
but not by Catholics.

Indeed, they reject the doctrinal suppositions
which these laws embody

and might argue that their personal freedom
was unfairly diminished.

The right then exists, but whether Catholics would
be wise to follow

Protestant precedent and exercise it is open to
considerable doubt.

Laws embodying moral precepts are only enforceable
if they are

supported by a corresponding moral consensus in the
community. The

Volstead Act should have made this plain enough. A law forbidding

the sale of contraceptives would be effective only
if the vast majority

of citizens believed their use to be wrongful,
and possibly not even

then. The laws of Connecticut and Massachusetts on
birth control are

not in fact enforceable and, save for the
exclusion of birth control

clinics, are without effect. Even here the presence of
clinics over the

state lines does much to neutralise their exclusion from the
states them-

selves. Catholics, then, in campaigning for the
maintenance of such

laws, gain little for public morality. They do,
however, increase the

55



fear of Catholicism in the minds of non-Catholics and increase the

likelihood that when Protestants visualise the Church the image will

not be that of a religious body but of a political power structure. This

is a high price to pay for the maintenance of ineffectual statutes. The

argument from natural law is unconvincing, since outside the Catholic

Church even those who accept the concept of natural law are unable to

see that it forbids birth control. While without bearing on the truth or

falsity of the natural law premise, an almost universal scepticism should

be treated as relevant when a policy of enforcing the precept by means

of civil legislation is considered.

Aside from metaphysics. Catholics could justify a prohibitive law if

they could show that demonstrable evils flow from the practice of con-

traception. If a declining population and a falling standard of life could

be traced directly to birth control, then a strong case would have been

made out for banning it. On these grounds, birth control has been

banned in France, the law being inspired by imperial and sociological

rather than theological reasons. In England a similar situation might

come about in the foreseeable future, but in the United States such a

contingency is remote. Again, if contraceptive methods could be

shown to be harmful to health, a prohibitory law might be justified, but,

as has been noted, the evidence on the point is conflicting and allows

no such conclusion. Finally, the argument that recourse to contracep-

tives increases lust and promiscuity would, if established, give grounds

for a ban, but increase in such vice is not measurable and, if it were,

could not be conclusively demonstrated to result from contraception.

In summary, then, one may say, that while the prophetic mission of

the Church to judge and if necessary condemn society is not questioned.

150. By a law of July 31, 1920. Use of the mails is restricted by article 91 of the
Decree Act of July 20, 1939. Importation of contraceptive propaganda, etc., is

restricted by a decree of February 5, 1946. No birth control clinics operate, nor
is advice given, under public health services. Exemptions exist for doctors to

prescribe contraceptives, such as the danger to a mother’s health from further

pregnancies.

151. The U.S. birth rate is high; the rate of 24.9 per 1000 in 1954 having in-

creased to 25.0 in 1957. See Table 56. Statistical Abstract of the U.S.A. (Wash-

ington, 1958).

56



a strong case exists for the abandonment of Catholic
efforts to secure

a total legislative ban on contraceptives. Efforts
to preserve public

morality would be more constructive if confined to measures
command-

ing general support, such as the banning of sales
of contraceptives from

slot machines or the restriction of sales to adults.
Statutes regulating

contraception belong more appropriately to the field of public
nuisance

than to the criminal law proper.

Catholics might also legitimately and prudently oppose
laws which

in any way commit the state to approve or advocate birth
control. Two

events in the United States during 1959 raised this issue
sharply. In

July 1959 the Draper committee, appointed to study
the foreign aid

programme, submitted its third interim report to the President.^^^
With

the report went a covering letter stating that the
committee recom-

mended that, when requested by aid-receiving nations, the United
States

should help them to formulate programmes “to deal with
the problem

of rapid population growth and should support
research leading to

better understanding of this problem.” Mr. Draper agreed
with report-

ers that this reference included the provision of
birth control informa-

tion by the United States but added hopefully that the
point should not

be unduly stressed.i^'^^ In September the issue was raised
again when

the Senate Foreign Relations Committee published a
report by the

Stanford Research Center recommending that the United
States should

study the possibility of backing large-scale foreign
tests of birth control

devices.

In November a reaction came from the Roman Catholic Bishops of

the United States, who announced they would fight any attempt
to use

152. Where a prohibitory law is impossible a regulatory law
may be desirable

even if it “recognises” indirectly the existence of an
evil.

153. U.S. Government Publications, Washington D. C., 1959:
No. 776. Publica-

tion #13550. Letter to President of United States from
President’s Committee to

study military assistance program and administration.

154. Facts on File, July 23-29, 1959, p. 240. The Report itself did
not stress this

point, recommending the provision to requesting countries of
“demographic

information.”

155. U.S. Government Publications, Washington, D. C., 1959: No.
778. Publica-

tion #16204. U.S. foreign policy, possible non-military scientific
developments

and their potential impact on foreign policy problems of the United
States.

57



foreign aid funds to promote “artificial birth prevention programmes”

in underdeveloped countries. Condemning such programmes as a

“morally, humanly, psychologically, and politically disastrous approach

to the population problem,” they stated that the logical answer to

world population problems was not to decrease the number of people

but to increase the food supply, “which is almost unlimited in poten-

tial.”^^® This statement caused a political storm. Bishop James A.

Pike, the Protestant Episcopal Bishop of California, condemned the

statement and asked whether it was binding on candidates for public

office. The reference was clearly to Senator Kennedy, one of the aspir-

ants for the Democratic nomination in 1960, who replied that he

thought such policies would be mistaken since they would be inter-

preted as discriminatory. The United States -had never urged them

either at home or in Western Europe.^®^ If faced with a bill embodying

such a programme, he stated he would judge the measure by whether

“it would be in the interests of the United States.” If it became law, he

would uphold it.^^®

Senator Kennedy’s replies were both judicious and constitutionally

correct. The Catholic Bishops were also within their rights in making

their statement, and it might well be taken as a guide for future Catholic

political activity in this area. This should be limited to securing gov-

ernment neutrality on the issue, not an ideal objective, but one which

recognises an irreconcilable conflict of moral and social views within

the community.i^® The proposition that adoption of an artificial birth

control programme should be made a condition precedent of receipt

of foreign aid funds would in any event probably command little sup-

156. The Times (London), November 26, 1959.

157. Mr. Stevenson and Senator Humphrey were in favour of providing informa-
tion on request, only Senator Symington expressing himself unequivocally in

favour of birth control. See The Economist, December 5, 1959.

158. Time, December 7, 1959. No foreign aid money has in fact been spent on
this objective.

159. An example of a state government exceeding the bounds of neutrality
occurred in Pennsylvania in December, 1948, when the Board of Public Assistance
approved a resolution permitting case workers to refer relief clients to birth

control information centres. See Pittsburgh Post-Gazette, December 24, 1958

and Commonweal, January 23, 1959.

58



port. The supply of foreign aid funds at the request of an
individual

state in order to implement such a programme would, on
the other

hand, be found unobjectionable by many. But just as
Catholics would

be wise in recognising the majority view and refraining
from pressing

for prohibitive domestic legislation, so the majority
favouring contra-

ception would be judicious in refusing such requests and so
recognising

the susceptibilities of the minority. To dub such a policy one of allow-

ing the minority to dictate to the majority is to
mis-state the issue. It

would be better described as a judicious recognition of the
existence of

a considerable minority opinion, the flouting of
which would inevitably

lead to serious diminution of civil peace. Reasonable
concessions to

such opinion offer a better as well as a more effective basis
for the

working of a democracy than the mechanical application of
the prin-

ciple that the will of the majority must always prevail.

Some Catholic Problems

TAX-SUPPORTED HOSPITALS AND PUBLIC HEALTH SERVICES The giv-

ing of contraceptive advice in tax-supported
hospitals or as part of

public health services has caused sharp conflict between Catholics
and

Protestants. Catholics claim that since their money is being used to

finance public institutions, practices which they consider
immoral

should not be followed. Protestants and others also claim
that since

their money is employed, practices which they consider morally ac-

ceptable should not be excluded by Catholic veto. In England,
as has

been noted, advice on contraception may be given as part of a public

health service but is subject to restriction. In certain southern
states in

the United States, where Catholics are few, such advice is
given in

health centres and hospitals, but in many municipally financed hos-

pitals in the north it is forbidden.

59



The issue came to a head in 1958 in New York, where for many
years city hospitals had followed an unwritten rule that advice on birth

control should not be given. In July 1958, a Protestant physician. Dr.

Hillman, employed at Kings County Hospital, announced that he was

going to fit a Protestant patient with a contraceptive diaphragm but

was forbidden to do so by Dr. Morris Jacobs, New York City Com-
missioner of Hospitals. A public controversy followed, with Protestants
and Jews demanding that the ban be lifted in the interests of accepted

therapy and preventive medicine and the Roman Catholic Chancery

Office stating: “It would be extremely unfortunate if our hospitals and

medical faculties, aimed for the preservation of life, should be per-

verted to seek for the prevention of life.” On September 17, 1958, the

full Hospital Commission ruled in favour of Dr. Hillman and reversed

the ban. The Board laid down that municipal hospitals “should pro-

vide such medical advice, preventive measures and devices for female

patients under their care whose life and health in the opinion of the

medical staff may be jeopardised by pregnancy and who wish to avail

themselves of such health services.” A certificate of medical necessity
signed by two physicians must be issued, the consent of the patient,

and that of her husband if possible, obtained, and the Board recom-

mended a conference with her spiritual adviser. Physicians, nurses,

and other hospital employees who have religious or moral objections

to contraceptive procedures were to be excused from participation in

contraceptive procedures. Later the same month, the New York De-

partment of Welfare adopted a similar policy.^®®

The compromise seems reasonably satisfactory. Catholic doctors

and patients are in no way obliged to follow procedures violating their

moral principles and religious beliefs, while non-Catholics are assured

that they will not be denied access to contraceptive medicine where this

might endanger health. At the same time the susceptibilities of Catholic

160. For an account of this incident see The New York Times, September 17,
18, and 23, 1958. Also America, October 4, 1958 and for a comment see Com-

monweal, September 12, 1958, “Controversy in New York,” by James Finn. See
also A. W. Sulloway, Birth Control and Catholic Doctrine (Boston, 1959).

60



taxpayers are recognised by leaving
general contraceptive advice to be

given by voluntary agencies founded
for that specific purpose.**^

CATHOLIC HOSPITALS In Catholic
hospitals, birth control advice,

unless it relates to the practice
of continuous or periodic continence,

may not be given.*®^ As an internal
domestic matter this raises no

problem, but controversy has arisen
over the position of doctors on the

staff of Catholic hospitals who have
associated themselves with the

work of birth control organisations. Thus
in 1947 six Protestant physi-

cians were dismissed from three
Connecticut hospitals for their work-

outside the hospital-for the Planned
Parenthood League. Again, in

1952, St. Francis Hospital in
Poughkeepsie, New York, presented

seven Protestant physicians with
an ultimatum to quit the Planned

Parenthood League or resign from the
hospital staff. Three agreed to

resign from Planned Parenthood, but four
declined and were suspended.

After a number of protests, they were
reinstated at the beginning of

1953 163 Other Catholic hospitals have
sought to make it a condition

of employment that doctors will not
give birth control advice, either

in the hospital or in private
practice.i®"*

To require Protestant doctors employed
in Catholic hospitals to

refrain from giving advice on birth control
in the course of discharging

their hospital duties is reasonable
enough. A doctor is free to make a

161 This compromise, because the factual
situation is different, is not the same

as that suggested in connection with
the foreign aid programme. The two situa-

tions are also theoretically distinguishable,
since artificial birth control facilities

provided in municipal hospitals within these
restricted limits do Mt commit the

municipality to a policy of generally furthering
birth control. The foreign aid

programme, on the other hand, is an act of
policy involving the whole nation

as such.

162. See Ethical and Religious Directives for
Catholic Hospitals (St. Louis,

1955), No. 30.

163. Conn., see Time, April 21, 1947 and The
New York Times, April 18 and

May 5, 1947. New York, see The New York Times,
February 1 and 2, 1952, and

January 22, 1953. See also New Republic, January 22, 1945,
for a similar incident

at St. Joseph’s Hospital, Paterson, N. J.

164. St. Elizabeth’s Hospital, Newark, N. J., set such a
condition in 1945. New

Republic, January 22, 1945.

61



contract with any hospital, and if he objects to any specific term he can

make his services available elsewhere. But to extend hospital jurisdic-

tion to private practice or to activities carried on outside the hospital

in a personal capacity is a grave infringement of individual liberty.

While there might be a case for excluding a Catholic doctor who sup-

ported Planned Parenthood, because of the scandal his attitude would

give to Catholic patients and hospital personnel, the coercion of a

Protestant doctor to go against his conscience is wrong in principle. It

also betrays a confusion in practical aims. A Catholic hospital is pri-
marily a hospital and exists to give the best medical treatment available

to its patients. If conditions such as that forbidding Protestant doctors

to prescribe contraceptives outside the hospital were generally imposed,

it would materially restrict the medical talent on which the hospital

could draw. Apart from this, attempts to dominate a doctor’s entire

professional life will be generally construed as tyrannical and can only

serve to embitter relations between the Catholic and other local, reli-

gious, and civic communities.

CIVIC PROBLEMS Catholics often use local political pressure to

counter birth control organisations. Thus in 1952 Planned Parenthood

was excluded from membership in the Welfafe and Health Council of

New York because the Catholic agencies represented threatened to

withdraw. Six months later, however, the Council voted for admission

of Planned Parenthood, whereupon the Catholic agencies resigned,

thus handicapping the Council’s work.^®^ In 1955 Catholics boycotted

the Princeton, New Jersey, Community Chest fund-raising campaign,

thus compelling the withdrawal of Planned Parenthood from the

Chest.^®® Whatever one may think of the prudence of such actions, and

this can only be judged in the context of local conditions. Catholics are

well within their democratic social rights in taking them. They hardly,

however, seem “necessary,” since membership in a cooperative enter-

prise does not imply approval of the constituent members. Further-

165. See The New York Times, January 15, 1953; March 13 and 19, 1953;
May 8, 29, and 30, 1953; July 1, 1953.

166. The New York Times, September 1, 1955.

62



more, the line between legitimate and
illegitimate social pressures can

be easily crossed, as was the case in
Holyoke, Massachusetts, in 1940,

when owing to Catholic pressure Mrs. Margaret
Sanger was deprived

of a public meeting place to state
her views, until one was provided at

the last moment by the local textile workers
union. Such action was

clearly against the spirit of the
Constitution with its guarantees of free-

dom of speech and the right to hold orderly
public meetings.^®’ The

hostility aroused against the Catholic
community by these tactics would

be hard to overestimate; they strengthen
in the non-Catholic mind the

ever-present fear of Catholic power and do
much to nullify the per-

suasive force of Catholic teaching. In
proportion to their ill effect,

their good effect is small, and Catholics
would be well advised to

abandon them.

THE BIRTH CONTROL PILL Experiments have
been proceeding for

some time to develop an oral means of
contraception.^'** AU women,

when pregnant, secrete a natural hormone,
progesterone, which pre-

vents ovulation during the pregnancy period.
A synthetic substitute for

this hormone, progestin, has been developed,
which has the same effect

of inhibiting ovulation and can be taken
through the mouth. The drug

has been used in tests carried out in
Puerto Rico and California, and

the Puerto Rican experiments have proved
successful. The drugs have,

however, produced bad side effects, such as nausea
and dizziness, and

have proved very expensive. Much remains to be done
before they can

be put on the market commercially.^*®
Another method of inducing

167 For a full description of Mrs. Sanger’s
experiences in Holyoke see Kenneth

Underwood, Protestant and Catholic (Boston, 1957).
The secretary of the local

union providing the hall was in fact a Catholic.
Catholic

the cancellation of birth control exhibits
at fairs in Chicago in 1940 (TheJIew

York Times, July 8, 1940) and in New York in 1941
(The New York Times,

August 22, 1941).

168. A full account of progress and remaining difficulties is given
in R^hard

L. Meier’s Modern Science and the Human Fertility
Problem (London, 1959).

169. See The New York Times, September 19, 1958, where
Dr. Rock reported

figures of 100 per cent success for the experiments.
These varied with the results

reported in June by Edward Tyler and Henry Olson
which showed a 9.3 per

63



temporary sterility has been suggested by Dr. Sieve of Boston, who

has used phosphorylated hesperedin to form a viscous barrier around

the ovum and so prevent penetration by the male sperm. While early

experiments met with success, later ones failed.^^® It has been sug-

gested that such a drug would be acceptable to Catholics, since it leaves

the physical nature of the sexual act unimpaired, but Catholic moralists

have been unanimous in condemning the use of drugs as a violation

of the divine law, since they prevent the natural end of the sexual act,

procreation. The only justification for their use would be a medical

rather than a contraceptive motive, e.g., relief from pain caused by

menstruation, when their employment would be justified on the prin-

ciple of double effect. This principle, it may be noted, also justifies the

sale of prophylactics, which while they may be used to prevent con-

ception are not sold with that purpose but rather to prevent disease.

Thus their distribution to members of the armed forces would not be

contrary to Catholic moral teaching.^'^^

169. (continued) cent rate ineffectiveness. See Robert Sheehan, ‘The Birth Con-

trol Pill,” Fortune, April, 1958. Also, Reuben Hill, J. Mayone Stycos, and Kurt
Back, The Family and Population Control (University of North Carolina Press,

1959)

. See The Times (London), March 31, 1960, for an account of experiments

in England which show that although a pill has been developed with a high

degree of effectiveness, harmful side-effects persist.

170. Science, October 10, 1952, pp. 373-85.

171. See American Ecclesiastical Review, CXXII (1950), 225 and CXXXVII
(1957), 50; John J. Lynch, ‘‘Fertility Control and the Moral Law,” Linacre

Quarterly, XX (1953), 83. Use of pills to regularize a woman’s menstrual cycle
would not be contrary to Catholic teaching. For a discussion of the moral prob-

lems raised by birth control pills see Denis Calaghan, ‘‘Fertility Control by

Hormonal Medication,” The Irish Theological Quarterly, XXVII (January,

1960)

,
1-15.

172. For an expression of caution lest impression given that prevention of

disease is more important than avoidance of wrongdoing see Irish Ecclesiastical

Record, January, 1942, p. 83.

64



World Population Growth

and Christian Responsibility

Since the end of the Second World War,
experts first, and then the

public in general, have been increasingly
aware of the enormous

problems created by the rapid rise in world
population. “The problem

of population,” states Sir Julian
Huxley, “is the problem of our age.””»

Numerous monographs have been published
on the consequences of

the rise. The United Nations has carried
out an important series of

investigations into the causes and extent of
the increase and in 1954

convened an international conference in
Rome to exchange informa-

tion.*” The magnitude of the problem is
stated dramatically in the

United Nations publication. The Future
Growth of World Populatwn,

where the author points out that whereas
the human race took 200,000

years to reach 2,500,000,000, it
will take only thirty years to add

another 2,000,000,000. If the present
rate of increase continues, within

600 years only one square metre of
earth will be left for each person

to live on. In 1950 the world population
was 2,500,000,000; by 1958

it had reached 2,800,000,000; by 1980 a
population of 4,280,000,000

is forecast. The world population is expected
to double within the next

fifty to sixty years, and if current estimates
are correct a world popula-

tion of between 6,000,000,000 and 7,000,000,000
can be expected by

the end of the century.

Population growth is a world-wide
phenomenon, but it is taking

place much faster in the undeveloped countries
of Asia, Africa, and

173. Scientific American, March, 1956, p.
2.

174. For example. World Population and
Resources (London, P.E.R: 1955);

F Le Gros Clark (ed.). Four Thousand Million
Mouths (London, 1951L J>ee

also The Family in Contemporary Society,
where world population problems

are considered at length. For United Nations
publications see the series of Popu-

lation Studies (St/SOA/Series A), especially
The Determinants

quences of Population Trends (No. 17)
and The Future Growth of World

Population (No. 28). The population estimates
quoted are taken from thes

publications.

65



tropical South America than in the advanced countries of Europe

and even, in some cases, the United States.^^® In some places, such as

Puerto Rico, the annual increase is about 3 per cent, compared with

an increase for the United States in 1954 of 1.8 per cent. In Africa

from 1951 to 1955 the population was increasing by 2.2 per cent per

year; in Asia as a whole, by 1.7 per cent, the figure being higher for

individual countries. This is to be compared with a .7 per cent annual

increase for Europe.^^® Highest rate of increase amongst the developed

countries is shown by the United States, where a population estimated

at 166,000,000 in 1955 is expected to reach 204,000,000 by 1970.

Europe does not reflect this pattern of increase, the 5 1 ,000,000 popula-

tion of the United Kingdom, for example, being expected to be only

53.700.000 by 1970. France’s population of 43,300,000 will be

47.400.000 in that year. By contrast, countries such as China and

India will increase from 600,000,000 to 799,000,000 and from

386,000,000 to 504,000,000 in the same period.

Industrial and agricultural revolutions have contributed to this swift

growth, but the primary cause is the reduction of disease and a fall in

the death rate. Modem medical science has made decline in mortality
an almost universal phenomenon, the only exception being Middle

Africa, where physical and cultural obstacles remain to be overcome.^"^^

In Puerto Rico, for example, the death rate fell from 11.8 per thousand

in 1947 to 7.2 in 1955.^’^® The scope for further reduction is illustrated

when one considers the infant mortality rates in different countries.

In Britain it is now 26.5 per thousand, but in India, despite improve-

ment, it is 200. Countries appear to pass through a fourfold cycle in

relation to births and deaths. First, both birth and death rates are high,

and this is followed by a period of high birth rates and falling death

175. Ireland is the only country where population has declined over the past

fifty years.

176. U. N. Economic and Social Council: Population Commission Report 1957,

p. 4. See also Background Facts on World Population and Population Trends

(U.N.E.S.C.O., 1957).

177. The Future Growth of World Population, pp. 3-5.

178. The Demographic Year Book (U. N., 1956).

66



rates. Then both birth and death rates fall, and finally
the country

passes into a period of low birth and death rates. In
the West, stage

two of the cycle was not reached until improvements
in agriculture

and the industrial revolution were under way, but
in the East the

decline in death and disease has not been similarly
matched. Thus,

while the advanced countries can maintain and even raise
the standard

of life for their increased population, the
technologically undeveloped

countries, where the population by contrast is seriously
undernourished,

can barely maintain even existing standards, any advance
being imme-

diately swallowed up by the increased numbers. In India, for
example,

the average daily diet is only 1 ,590 calories per
person less than half

that of the United States-and two-thirds of the
Indian population is

underfed. In all, 70 to 75 per cent of the world’s population
does not

have enough to eat, 70 per cent of these being concentrated
in Asia

and 18 per cent in Africa and parts of South
Americu.^’^^

A world in which material resources are so unequally divided, and

where the poorest parts are those where the population
-is increasing

most rapidly, raises an acute problem for the Christian
conscience.

The late Pope Pius XII analysed the problem in a number of
messages

and encyclicals; it was discussed at Lambeth in 1958; and
an inter-

national Protestant study group met at Oxford in April 1959,
at the

request of the World Council of Churches, to consider the
world

population problem and the related question of family planning.
There

is, however, no unanimity amongst Christians as to what
action should

be taken.

A number of Catholic writers dismiss the population problem as

an illusion. They point out that the problem is theoretical rather
than

practical, since the prophesied catastrophe is dependent on the
present

rate of expansion of the race continuing into the future.
Some resort

to ridicule, pointing out that if the egg of every housefly
was hatched,

the whole surface of the globe would be covered by a mass of
flies to

a height of three miles within ten years. Again,
projecting present

179. Speech of Sir Russell Brain to Annual General Meeting of
Family Plan-

ning Association in London, June 7, 1958. Family Planning,
VII (July 2, 1958),

pp. 3-5.

67



population increases into the future, they show that in 5,000 years the

weight of human beings would equal the weight of the earth; in 14,000,

the weight of the universe; and, even given stellar emigration, within

a few thousand years the stars themselves would be fully occupied.^®®

This reductio ad absurdum is hardly helpful, any more than is the atti-

tude of those religious writers who maintain that, whatever the figures

of expansion, God in due course will provide means of subsistence.

Such a total rejection of reason is alien to the tradition of Western

Catholicism. Others draw comfort from Thomas Doubleday’s law first

enunciated in 1837, stating that Nature always counteracts the

endangering of the existence of a species by an increase in fertility, and

this is especially so when the danger arises from lack of food. Conse-

quently, “the state of depletion or the deplethoric state is favourable to

fertility, and ... on the other hand, the plethoric state, or state of reple-

tion, is unfavourable to fertility in the ratio of the intensity of each

state. Thus, once the general standard of living is raised, the pop-

ulation problem will solve itself

Of course, the raising of the standard of living to the requisite level

will need an intense and concerted international effort, but Catholic

social scientists welcome this. They see the population problem as a

spur driving mankind forward to the development of a universal com-

munity. This positive attitude is evident in the writings of all Catholic

thinkers who recognize the urgency of the problem. They stress that

individual states have no absolute ownership of territories and natural

resources but hold them on trust for the whole of the human race.

Thus in his very first encyclical Pope Pius XII declared that the human

race has a true unity of nature, a unity of purpose, and a unity of

dwelling place on earth, “of whose resources all men can by natural

180. See John L. Russell, “Christian Theology and the Population Problem,”

The Month, XDC (April, 1958), 197 at 198. The article as a whole is a serious
discussion of the problem.

181. Halliday Sutherland, Laws of Life, p. 197.

182. Doubleday’s law in modified form has received recent support in Dr.

Eversley’s Social Theories of Fertility and the Malthusian Debate (Oxford, 1959).

68



right avail themselves to sustain and develop life.”^®^
The goods created

by God should be equitably shared, and wealthier
countries are bound

by principles of justice and charity to share
their resources with coun-

tries which are less well provided.

It follows, writes Cardinal Montini, “that
a really adequate study

of the relations between population and
density and means of sub-

sistence must tend to take place on a world-wide
scale, while the prob-

lem to which they give rise cannot be solved
except on that same scale,

through the industrious solidarity of all peoples,
so that those artificial

barriers which divide them being removed, there
may arise a more

orderly circulation of people, of capital,
and of material goods. With

this subordination of particular national
economic welfare to the com-

mon good of the society of nations, frontiers will no longer
be valleys

which divide, but bridges which unite, and material
goods will be free

to fulfill their natural function of satisfying
everyone’s needs.’’^*^ The

Protestant and utilitarian approach of reducing
population pressure by

spreading contraception as a social policy is
condemned not only as a

violation of natural law but as a facile avoidance
of the true solution

to the problem. “What an error it would be,”
stated Pius XII in his

Christmas message of 1952, “to blame the natural
law for the present

miseries of the world, when it is clear that these derive
from the lack

of mutual solidarity of men and peoples.

Given, then, a high degree of international
co-operation to raise

living standards, how many people could the earth support?
Estimates

183. -Summi pontificatusr A.A.S., XXI (October 20, 1939),
426. See also

letter to Archbishop McNicholas, A.A.S., XXXI (December 24,
1948) 69-70:

“The Creator of the Universe has provided all His
good gifts primarily for t e

good of all; consequently, the sovereignty of
individual states, however much

this is to be respected, ought not to be carried
so far that access to the earth s

bounty, which is everywhere adequate to support
multitudes of human beings

should be denied to needy but worthy persons who have been
born elsewhere.”

184. Letter to Cardinal Siri on 26th Italian
Catholic Social Week held at

Palermo, September 27, 1953. UOsservatore Romano,
September 28-29, 1953.

185. A.A.S., Series 2, XX, 42. Mgr. Montini in his letter also
rejected attempts

to solve population problems by contraception.
“Such attempts include, not

only the direct killing of the innocent, but
also any defrauding of nature’s

intentions, which, as such, express the will of the
Creator Himself.

69



vary from 5,000,000,000 on to 16,000,000,000, Colin Clark calcu-

lating in 1953 that the world could support 10,000,000,000 to

15,000,000,000 if cultivation and conservation of agricultural land

were to reach Dutch standards.^®® To achieve this a great technological

effort would have to be made by the richer nations. More scientists and

agricultural experts would have to be trained and made available, new

methods of crop rotation and soil management introduced, and more

arable land developed by irrigation, possibly using sea water. Genetic

improvement of seed and stock would also help to raise yields. Japan

provides an encouraging example of how food production can be

raised. During the last sixty years, food supplies have increased faster

than the population, and Japan now supports 3.6 times as many people

per hectare of cropland than the rest of the Far East, despite the lower

fertility of her land.^®^ China has also made extraordinarily rapid

progress, increasing food production by 50 to 100 per cent, according

to Lord Boyd Orr, in the past three years. He attributes the increase

to a substitution of deep ploughing for the old earth-scraping techniques

and the use of fertilisers and insecticides. “China,” says Lord Orr,

“has one quarter of the world’s population but seems capable of

feeding it well.”^®® Great areas of forest and scrub land could be

cleared and brought under cultivation.^®® New sources of food supplies

could be developed from soil-less agriculture and synthetic manufac-

ture, and the oceans themselves could be utihsed for the vegetable

186. James J. Norris, “The Population Explosion,” America, Cl (April 25,

1959), No. 4. P.E.P. estimated that an annual increase of 2.25 per cent per

acre in food production was essential to provide a minimum diet for all. World
Population and Resources (London, 1955), xviii.

187. See A. F. Zimmerman, Overpopulation (Washington, 1957), p. 32. Japan

supports seven times as many people per hectare of cropland as the world
average and fourteen times as many as the United States.

188. The New York Times, May 14, 1959.

189. Estimates vary as to how much of the earth is cultivatable but a com-
mon figure is 4,000 million acres, or 12 per cent of the area. Of this
four-fifths is under cultivation (U. N. Determinants and Consequences of
Population Trends [1954], p. 182). An increase of 25 per cent is possible
and perhaps more. Once pests were cleared from the tropic zones cultivation

could proceed rapidly.

70



substances and fungi which they contain. All this would involve astro-

nomic expenditure, one estimate of the aid required to raise undevel-

oped countries to a subsistence level being $18,000,000,000 per year.

Huge as this figure is, it moves into the range of the attainable, when

one considers that the military expenditure of the United States and

the Soviet Union is already at least five times the amount.^^® Utilisation

of solar and atomic energy could speed this revolution considerably.

A supplementary solution to world population problems stressed by
Catholic writers is increased opportunity for emigration. In a letter to

the American Bishops in 1948, Pius XII declared that man had a

natural right to emigrate, since God had provided material goods for

the use of all. “If then,” said the Pope, “in some locality, the land

offers the possibility of supporting a large number of people, the

sovereignty of the state, although it must be respected, cannot be

exaggerated to the point that access to this land is, for inadequate or

unjustified reasons, denied to needy and decent people from other

nations, whenever this does not hinder the public welfare as measured

on honest-weight scales. Immigration laws should be liberal-

ised, but there are obvious limits to this process. If Australia, for

example, were to be peopled by Indians, the maximum that could be

absorbed over a long period would be 15,000,000, which in 1955

represented the annual increase of India’s population for only three

years. Again, the capacity of individuals to cross from one culture

to another of a radically different nature is clearly limited, and a whole-

sale immigration would be destructive to the migrants and the social

structure of the receiving countries.^®^

190. Norris, America, Cl, No. 4. Much progress has been made. The F.A.O.
Report for 1958-59 notes that while food production rose by 4 per cent dur-

ing the period, world population rose 1.6 per cent.

191. Letter dated December 24, 1948. (A.A.S., 2nd Series XVI, 69-71.) For
other statements of Pius XII on migration see “Exsul familia,” A.A.S., 2nd

Series, XIX, 649-704.

192. World Population and Resources, p. 180.

193. For a symposium on emigration problems see The Catholic Lawyer, IV
(Spring, 1958), No. 2, 103-51.

71



Sharing of resources, increase of food supplies, more emigration,

are the solutions put forward by Catholics for solving the problems

created by world population increase. Protestants and others also

support these measures, but emphasise them rather less, because they

advocate the spread of family planning as a remedy. It should be

made clear that while family planning in the long run may have a

material effect on the increase in population, it cannot be adopted

quickly enough to stem the minimum increase of 1 ,000,000,000 people

which is likely to be achieved by 1980.^®^ This would be so even if the

United Nations used its influence to encourage world-wide family plan-

ning, but attempts to secure the adoption of such a policy have been

blocked by Roman Catholic and Communist countries.^®® Thus in

1952 the World Health Organisation dropped a Norwegian proposal to

study contraception as part of its official programme after opposition

from Catholic delegates.^®^ The United Nations has accordingly adopted

194. For example, Karl Barth has stated: “It is the duty of Christians a) to

support policies which involve sacrifices by the developed countries on behalf

of the underdeveloped ones and b) to advocate policies designed to increase

the mobility of capital and labor between the developed and underdeveloped

parts of the world.” The Family in Contemporary Society, p. 163. For a

typical Protestant article advocating family planning see Theodore A. Gill,

“The Demographic Explosion,” Christian Century, LXXV (August 6, 1958),
No. 32, 895.

195. See George L. Zeegers, “The Meaning of the Population Problem of

the World,” Cross Currents, VIII (Winter, 1958), 22. Also Simple Methods

of Contraception (New York, 1958), p. 11.

196. Communism maintains that there is no true population problem, but
shortage has been created by the capitalist system. China adopted a birth

control programme in 1956-57, but at the end of the year it was rumoured
that it had been abandoned. The last public statement on the Soviet position

was made at the Population Conference of 1954 when contraception was
condemned. In April 1960, however, it was announced from Peiping that

Professor Ma Yin-Chu had been dismissed from his post as President of
Peiping University. The significance of this is that Professor Ma had urged
that China’s enormous population was an obstalcle to progress. It would seem

that China has now given up controlled population policies and is relying
exclusively on increased agricultural production to raise the standard of living.

See The Times (London), April 19, 1960. For a discussion of the significance of

Professor Ma’s dismissal see Stephan Schattmann, “The (2ase of Mr. Ma
Yin-Chu,” The Listener, May 19, 1960.

197. The New York Times, May 20, 1952.

72



a policy of neutrality on the subject, one of the agreed principles of co-

operative action established at the 1954 World Population Conference

being to respect different ethical and religious values and to promote

mutual understanding. This attitude of Roman Catholic countries has

been severely criticised but is not unreasonable. The United Nations

is not a super-state whose majority decisions are binding on all mem-

bers but an agency for co-operation between equal partners. If delegate

countries take radically conflicting stands on birth control, the only

possible line for the United Nations to follow is neutrality. At the same

time advice and the services of experts are available to individual

states on request.

A way out of the United Nations dilemma, as far as Catholic coun-
tries are concerned, might be offered by the rhythm method of birth

control. Catholic theologians are generally agreed that a justifying

cause for resorting to rhythm would be the social welfare of a particular

community which would benefit by a reduction in population.^^® This

of course would mean a widespread public dissemination of knowledge

about rhythm, and many moralists consider that communication should

be cautious. On the other hand, these scruples might well be counter-

balanced by the knowledge that the alternative would be use of unnat-

ural means of birth control. As early as 1939 Catholic writers were

advocating the foundation of Catholic medical bureaus to give rhythm

advice, and the need has become very much more urgent since then.-®®

From 1952 to 1954, with the help of the United Nations, experiments

were in fact carried out in India in the use of the rhythm method. Two

locations were selected, Lodi colony, an urban middle class centre,

and Ramangaram, a small rural town in Mysore. The project ended

198. See John L. Thomas, Marriage and Rhythm (London, 1957), p. 117.
Also America, XCII (October 9, 1954), 2; Commonweal, LXII (June 3, 1955),
9; William Gibbons, The Catholic Value System in Relation to Human Fertility:
Studies in Population (Princeton University, 1949), pp. 107-34.

199. For the controversy see The Clergy Review, XIII (1937), 150, 199, 273,

358, and XIV (1937), 92, 184, 469.
200. For example, John O’Connell, “Birth Control Clinics Needed,” Ameri-
can Ecclesiastical Review, Cl (1939), 246.

73



abruptly in 1954. About 75 per cent of the 2,362 married couples in

the two centres expressed a desire to learn about family planning, but

only 13.6 per cent of the couples in Ramangaram and 28.3 per cent of

those in Lodi colony proved capable of learning the method. By the end

of March 1954 only 5 per cent and 7.5 per cent respectively were

known to be following the method regularly. Difficulties reported were

a wide variation in women’s cycles, mistakes in calculation, and the

reluctance of husbands to agree to long periods of abstinence.-®^ On

the other hand. Dr. Abraham Stone who went to India to give instruc-

tion in rhythm methods under the auspices of W.H.O. in 1951 reported

a success rate of 65 per cent.^®^

India has not confined its activities to propagating the rhythm

method, and hke Japan, the other Eastern country with a population

policy, has sought to increase knowledge of contraception.-®^ The pos-

sibihties of wider application of rhythm, however, remain, and as scien-

tific advance renders it a more reliable and simple method of control,

it may well be more widely employed. Its major advantage is that it

is the only possible method of international family planning, being

acceptable to all major world religions, not only Judaism and Chris-

tianity, but also Buddhism, Hinduism, Confucianism, and Islam.

201. World Population and Resources, p. 219.

202. The New York Times, October 20, 1951, p. 17.

203. Japan has also legalised abortion for medico-social reasons by the

Eugenics Protection Law of 1948, subsequently amended. The results have
been astonishing, 2,679,000 births in 1947 having been recced to 1,563,000

in 1957, over 70 per cent of the reduction being attributable to abortion.

The effects on health have been deplorable and the policy may be modified.
763 health centres in Japan give advice on abortion, sterilisation, and contra-

ception. See Family Planning, VII (October, 1958), No. 3.

74



Conclusions

1. The use of contraceptives is accepted by the majority in England

and the United States as a normal and acceptable practice in married

life.

2. Although books advocating or describing artificial birth control were

at one time considered obscene by courts in England and America,

they are not so today, unless their manner of presentation is inten-

tionally prurient.

3. In England sale and advertisement of contraceptives is not subject

to common law or statutory restriction, save for certain by-laws which

restrict the sale of contraceptives from slot machines in public places.

4. In the United States distribution and advertisement of contraceptives

are restricted by federal law. Importation is similarly restricted. Federal

law has been interpreted so that the statutes only operate if the articles

are to be “unlawfully employed.”

5. In the United States, twenty states and the District of Columbia

have no legislation on contraception. Seventeen prohibit traffic in con-

traceptives subject to various exceptions. Five states prohibit sale and

advertisement of contraceptives absolutely. Eight states restrict adver-

tisement only. Sixteen states regulate the trade by statute.

6. Statutes restricting or prohibiting the distribution of contraceptives

are not per se contrary to the United States Constitution.

7. The state laws restricting or prohibiting sale, etc., of contraceptives

have practical effect only in Connecticut and Massachusetts. The effect

of the laws in these two states is to exclude birth control clinics.

8. Christian opinion is united in approving family planning but divided

over the moral legitimacy of different methods employed.

75



9. The Anglican Church and many Protestant churches accept the

use of contraceptives in marriage, subject to the consent of the spouses,

as not being contrary to Christian moral principles.

10. Anglicans and Protestants would hmit the role of law in relation

to contraceptives to preserving public order and decency and might

favour a ban on sale to unmarried persons under a certain age.

1 1 . The Roman Catholic and Orthodox Churches reject contraception

as contrary to the law of God. The Roman Catholic Church bases its

condemnation on the natural law, binding on all men, and not merely

on Roman Catholics.

12. The decline of population in England and Western Europe is

traceable to the widespread use of contraceptives, but population

decline is not of necessity an evil.

13. The medical evidence of the effect of contraceptives on health is

conflicting.

1 4. The methods of family planning acceptable to the Roman Catholic

Church are limited to abstinence and use of the safe period.

15. Medical evidence shows that the use of the safe period is a

reasonably reliable method of birth control but that the margin for

error is greater than in appliance control. Its successful employment

requires intelligence and self-control.

16. Roman Catholic opinion and the law: The proposition that an

act is contrary to the natural law does not imply that the act should be

forbidden by the law of the state. Whether such legislation is desirable

is a jurisprudential rather than a theological question, which must be

decided in relation to the conditions prevailing in a given community.

While Roman Catholics in a democracy have every right to work for

legislation outlawing the sale and distribution of contraceptives, the

conclusion is reached, for reasons given in the text, that the Roman

Catholic community in England and the United States would be wise

not to attempt to secure a total legislative ban on contraceptives but

76



should limit its efforts to securing a policy of state neutrality on the

issue and the passing of measures to preserve public morality, com-

manding the general support of the community. The particular con-

clusion is reached that a statute, such as that in Connecticut, which

forbids the use of contraceptives violates Catholic principles of juris-

prudence.

17. The conflicts of principle between Catholics and Protestants as

to whether birth control advice should be given in tax-supported hos-

pitals are irreconcilable, and only a compromise is possible. The three

principles now acted on by the New York city hospitals might well

be generally followed: 1. Birth control advice should be available to

any female patient if a) she wishes to avail herself of it; b) her

health would be jeopardised by pregnancy. 2. Employees of the hospital

having religious or moral objections to contraceptive procedures should

be excused from participation. 3. Contraceptive advice not required

for medical reasons should be left to voluntary agencies and doctors

in private practice.

18. Catholic hospitals are justified in imposing conditions of employ-

ment that exclude the giving of birth control advice to patients in the

hospital, but such conditions should not extend to a doctor’s practice

unconnected with the hospital. The association of non-Catholic doc-

tors, outside the hospital, with birth control organisations is no concern

of the hospital authorities.

19. The medical experiments now in progress to develop a contracep-

tive pill, even if successful, will not lessen Catholic-Protestant conflict

over birth control, since such a pill is subject to the same condemnation

by Roman Catholic theologians as other forms of contraception. The

only “pill” acceptable to Roman Catholics would be one to regularise

periodicity in women.

20. World population growth presents a challenge to the Christian

conscience to secure an intense and concerted international effort to

raise living standards. Given such an effort, the prospects for a very

considerable increase in world food production are favourable.

77



21. Increased opportunity for emigration from the more densely to

the less densely populated parts of the world would alleviate but not

solve world population problems.

22. Receipt of help under the United States foreign aid programme

should not be made conditional on the adoption of artificial birth

control policies by the recipient state, nor should foreign aid funds

be used to implement such programmes, even at the request of the

designated state.

23. The United Nations policy of neutrality on the question of contra-

ception is the only one possible in view of the conflicting opinions of

member states. Rhythm is the only method of birth control that would

be acceptable as a means of international family planning.

78



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JULY, 1960

81



Birth Control Legislation

In the United. States

Exemptions
for medical
schools.

Advertise- text books.

States No Laws
Sales

Prohibited
Allowed to
Doctors

Allowed to
Pharmacists

Special

License
ment

Prohibited
professional

journals Citation

Alabama

Alaska

Arizona 1

Arkansas 2

California 3

Colorado 4

Connecticut 5

Delaware 6

D. of Columbia

Florida

Georgia

Hawaii I* 7

Idaho 8

Illinois

Indiana 9

Iowa 10

Kansas 11

Kentucky 12

Louisiana 13

Maine 14

Maryland

Massachusetts 15

Michigan 16

Minnesota 17

Mississippi 18

Missouri 19

Montana 20

Nebraska 21

Nevada 22

New Hampshire

82



States No Laws
Sales

Prohibited
Allowed to
Doctors

Allowed to
Pharmacists

Special

License

Advertise-

ment
Prohibited

Exemptions
for medical
schools,

text books,
professional

journals Citation

New Jersey 23

New Mexico

New York 24

North Carolina

North Dakota

Ohio 25

Oklahoma

Oregon 26

Pennsylvania 27

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Washington 28

West Virginia

Wisconsin ^ g H 29
Wyoming so

•Outside only.

••Without just cause.

•••Sales to unmarried persons and from slot machines forbidden.

1. Ar. Code (ann) 1939:43-302. 2. St. 1947, 82:944-54. 3. Business & Professional Code 1954. 601. 4. Stats.
1953, 40-9-17. 5. Stats. 1958. 53-32. 6. Code 1953. 16:2501-2504. 7. Laws 1955. 155-73. 8. Code 1948.
18-603, 39:801 to 810. 9. Stats. 1956. 10:2803-10:2806. 10. Code 1950 725; 5, 6, 10. 11. Gen. Stats. 949,
21-1101. 12. Revised Statutes 1953. 214:190 to 214:270. 13. Revised Statutes 1950. 14:88. 14. Revised Statutes
1954. 134:11. 15. Annotated Laws 1956. 272:20 & 21. 16. Stats. 1938, 28:229. 17. Stats. 1947, 617:25.
18. Code 1942, 2289. 19. Statutes 1953. 563:300:280:290. 20. Statutes 1947. 94:3616 to 94:3619. 21. Revised
Statutes 1943. 28:423. 22. Revised Statutes 1956. 202. 190. 220. 210. 230. 23. Stats. 1952. 2A 170-76 24.
ConsoUdated Laws 1944. 106:1142:1145. 25. Code 1954, 2905. 34 to 37. 26. Revised Statutes 1957. 435.010
to 435.990. 27. Purdon’s Statutes. 1945:18-4525. 28. Rev. Code 1951. 9.68.030. 29. Stats. 1953. 351.235.
30. Stats. 1945.9-513-515.

83



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TITLES IN THE FAMILY LIFE BUREAU, NCWC, REPRINT SERIES

In Leaflet Form

PLANNING FAMILY FINANCES
from Royal Bank of Canada Monthly Letter, May 1962
(five cents per copy; four dollars per hundred)

THE PARENT IS THE PRIMARY TEACHER by Rev. George Hagmaier, C.S.P.
from The Catholic World, April 1962

(five cents per copy; four dollars per hundred)

PURPOSE OF CFM by Rev. William F. Nerin
from Apostolate, Fall 1962

(five cents per copy; four dollars per hundred)

ABORTION AND THE RIGHT TO LIFE
based on Model Penal Code on Abortion and

Kansas State Senate Bill No. 343 of 1963

(five cents per copy; four dollars per hundred)

LOVE, O LOVE, O CAREFUL LOVE by Jane Hanover Adams
from AMERICA, October 26, 1963
(five cents per copy; four dollars per hundred)

CHRISTIAN UNITY AND CHRISTIAN MARRIAGE by Gerald Kelly, S.J.
from Theology Digest, Winter 1963

{ten cents per copy; seven dollars per hundred)

AS CHRIST LOVED THE CHURCH by Rev. Thomas W. Burke
from The Way, April 1964

(ten cents per copy; seven dollars per hundred)

In Book Form

CONTRACEPTION AND MARITAL LOVE by Paul M. Quay, S.J.
revised from Theological Studies, March 1961
(thirty-five cents per copy)

JUSTIFIABLE ABORTION: MEDICAL AND LEGAL FOUNDATIONS by Eugene
Quay
from The Georgetown Law Journal, Winter 1960 and Spring 1961
(two dollars and fifty cents per copy)

BIRTH CONTROL AND PUBLIC POLICY
originally issued by the Center for the Study of Democratic Institutions

(fifty cents per copy)