CHAPTER ONE

The Waterbury Origins of Roe v. Wade

Katharine Houghton Hepburn had never doubted that Sallie Pease was an ideal president for the Connecticut Birth Control League (CBCL). Hepburn’s next-door neighbor in Hartford since 1927, a Smith College graduate, and the mother of three school-age boys, Pease was only thirty-seven—nineteen years Hepburn’s junior—when she became league president in 1934. For eleven years, since 1923, when nationally noted birth control crusader Margaret Sanger had first visited Hartford, Kit Hepburn had played a central role in holding the league together. Little headway had been made toward the league’s goal of winning legislative repeal of Connecticut’s unique 1879 criminal statute that made the use and/or prescription of any form of birth control a crime for both woman and doctor alike, but in the summer of 1935 Sallie Pease had taken the lead in the league’s dramatic but initially unpublicized decision to go ahead and simply open a public birth control clinic in Hartford. Just as the league had hoped, no one moved to enforce the law or to close the clinic, and in its first year of operation the clinic’s women doctors provided birth control counseling and devices to over four hundred married women, many of them first- or second-generation ethnic immigrants from Hartford’s poorer neighborhoods.1 Quietly ecstatic at their success in extending to poor women the same medical advice that privately was available to those who could afford family physicians, by the summer of 1936 the Connecticut League also had clinics functioning in Greenwich, New Haven, and Stamford. The following two years witnessed similar growth and expansion, as clinic services opened in Norwalk, Danbury, New Britain, New London, and Bridgeport.² The Bridgeport city prosecutor expressly told inquiring reporters that the 1879 statute represented no bar to the services that the Bridgeport clinic was providing,³ and six months later, in October of 1938, the league achieved its hope of having clinic services available in all of Connecticut’s large cities when a one-morning-a-week clinic quietly opened in downtown Waterbury, Connecticut’s most ethnically diverse—and most heavily Roman Catholic—city.

Sallie Pease and Kit Hepburn were rightfully proud of the tremendous progress that had been attained by simply going ahead and opening clinics, rather than by unsuccessfully continuing to petition each biennial session of the Connecticut legislature for a statutory change, as the league had from 1923 through 1935. Neither public officials nor religious groups seemed actively interested in mounting any effort to enforce a now seemingly dead-letter law, and the Connecticut League would be able to continue moving forward with its real purpose of providing actual services to more and more needy women who wanted to limit the number of their children.

So when the Connecticut League convened for its annual luncheon meeting at the Farmington Country Club on Thursday, June 8, 1939, Sallie Pease had no hesitancy in speaking plainly about their new successes. The general director of the national Birth Control Federation of America (BCFA)—the newly renamed organization that was the direct descendant of Margaret Sanger’s initial work two decades earlier—Dr. Woodbridge E. Morris, had himself come up to central Connecticut for the luncheon, and while Hartford reporters took notes on Morris’s remarks about the regrettable level of maternal mortality in America, they also listened to Sallie Pease’s presidential report, in which she highlighted the opening of the Waterbury clinic as the league’s most prominent achievement in the preceding year. What was especially notable, she stressed, was that the Waterbury clinic, unlike any of its other Connecticut predecessors, was operating “in a public institution,” in the Chase Dispensary outpatient building of the Waterbury Hospital. So far, Pease said, it has “received no publicity, but it is there in working order and will grow.”4

Sallie Pease was a brash and flashy person, quite different in style and persona from the Greenwich and Fairfield County women who comprised much of the Connecticut League, and she hadn’t given any thought to the possible press coverage of her luncheon remarks.⁵ Friday morning’s Hartford Courant ran a modest story on page twenty-four, noting in passing the newly announced Waterbury clinic in the Chase Dispensary, but the Associated Press put the Courant story on the state news wire, and Friday morning’s Waterbury Republican printed it on page fifteen, under a headline reading “U.S. Maternal Mortality Rate Reported Poor.” Several paragraphs down, however, it stated how Pease had reported “that during the year the first clinic in a public institution in Connecticut was opened at the Chase Dispensary in Waterbury.”6

The Waterbury Republican, and its sister paper, the afternoon Waterbury American, were not the city’s only newspapers, however. There was also the afternoon Waterbury Democrat, which in many ways—as its name indicated—was the antithesis of the Republican. Republican-American publisher William J. Pape had been an outspoken and crusading opponent of the city’s mostly corrupt Democratic political establishment, and it was in large part because of the Republican’s efforts that Waterbury Mayor—and Connecticut Lieutenant Governor—T. Frank Hayes and over twenty fellow defendants were currently on trial for looting the city treasury. The Democrat had spoken up for the Hayes regime, and if the Pape papers were a voice for the Anglo-Saxon Yankee population that found its political home in the Republican party, the Democrat was viewed as the voice for Waterbury’s Irish, Italian, French-Canadian, and Lithuanian immigrant populations. Some 72,000 of Waterbury’s 99,000 citizens were either first- or second-generation immigrants to America, and while the ethnic parishes where most of them attended church might differ greatly in custom and in language, they were almost all Roman Catholic.⁷

Friday afternoon’s Waterbury Democrat featured a front-page headline, “Birth Control Clinic Is Operating In City,” and quoted Chase Dispensary supervisor Jeannie Heppel as confirming Sallie Pease’s unintentional announcement. “Pastors of Catholic churches had no comment to make today,” the Democrat went on, but the paper hardly had to tell its readers that Connecticut’s Catholic hierarchy, the Diocese of Hartford, was a staunch and unyielding opponent of birth control. Church representatives had turned out at every legislative session from 1923 to 1935 to oppose the CBCL’s petitions for statutory change, and just four weeks earlier the Reverend John S. Kennedy, associate editor of the diocese’s weekly newspaper, the Catholic Transcript, had been prominently quoted in the Democrat as telling three hundred Waterbury Catholics at a special Mother’s Day Communion breakfast that he was puzzled as to why some Connecticut prosecutors were “so anxious” to go after bingo game operators “while birth control clinics were allowed to flourish.” One Hartford woman who had received a birth control circular, Kennedy said, had contacted the Transcript to complain. Kennedy’s remarks, the Democrat volunteered, had been “most inspirational.”⁸

Different readers reacted to the Democrat’s story in different ways. Waterbury Hospital superintendent Dr. B. Henry Mason and gynecology clinic chief Dr. Charles L. Larkin both told reporters that no “birth control clinic” was operating at the Chase Dispensary, and Saturday’s Republican prominently headlined their claim—“Doctors Deny Birth Control Clinic in City”—despite Heppel’s statements to the contrary. The problem, Dr. Mason explained, was simply a matter of terminology. A gynecological clinic, the Republican said, “includes in the normal course of its work the giving of some information on birth control.” But such advice, Mason said, “is provided purely on a health basis. A woman whose health would be seriously endangered by child bearing might get medical advice at the clinic on birth control, but not robust, healthy women.” Dr. Larkin agreed: “That’s a long way from the popular conception of a birth control clinic where any woman may go who doesn’t want to have children.”9

By Saturday morning the hospital staffers finally had their stories straight, as that afternoon’s American emphasized: “Miss Heppel Agrees With Dr. Mason: Waterbury Has No Birth Control Clinic.” But Heppel’s actual statement, much like Mason’s and Larkin’s, did not exactly square with the headline: “Nobody can come here for information unless they are referred by doctors for reasons of their health,” supervisor Heppel explained. “People can’t just come in as they please and get information.” Clinic sessions were held each Tuesday, the American added, had begun last October, and were actually conducted by two young doctors, William A. Goodrich and Roger B. Nelson, who reported to Larkin.¹⁰

But the hospital officials were not the most significant readers of the Waterbury press. Friday’s Democrat had observed that the city’s Catholic clergy “might” refer the matter to Hartford Bishop Maurice F. McAuliffe, but Father Eugene P. Cryne, president of the Catholic Clergy Association of Waterbury, already had called a special meeting of the association for Saturday morning in the rectory of Immaculate Conception parish, Waterbury’s oldest Roman Catholic church. Cryne was not the most prominent or the most senior of Waterbury’s Catholic clergy, but Immaculate’s own pastor had been formally installed only one year earlier, and Monsignor Joseph Valdambrini, pastor of Our Lady of Lourdes parish and the son of a Vatican banker with a royal title, was out of town on a four-month visit to Italy. A fifty-six-year-old Connecticut native, Cryne, like many Connecticut priests, had received his religious training at St. Thomas Seminary. He had become pastor of St. Patrick’s Church, one of Waterbury’s more modest parishes, but with seventeen hundred members, mostly of Irish background, in 1933, after having previously served in a junior role at Immaculate and then in parishes just outside of Waterbury.11

Eugene Cryne was, however, in the eyes of his fellow priests, “a very forceful individual” who had a very definite sense of right and wrong. “When rules and regulations were made, they had to be abided by,” a younger priest who served under Cryne explained. Although a “very kind” man, Eugene Cryne was “a very determined person.” And the resolution that was drawn up at that special Saturday morning meeting of Waterbury’s Catholic clergy at the Immaculate rectory was a very determined and very forceful resolution:

Whereas, it is the teaching of the Catholic church that birth control is contrary to the natural law and therefore immoral, and

Whereas, it is forbidden by statute law to disseminate birth control information for any reason whatsoever or in any circumstance, and

Whereas, it has been brought to our attention that a so-called birth control clinic, sometimes called a maternal health center, is existing in Waterbury as admitted by the superintendent of Chase Dispensary, according to the papers, therefore, be it

Resolved, that this association go on record as being unalterably opposed to the existence of such a clinic in our city and we hereby urge our Catholic people to avoid contact with it and we hereby publicly call the attention of the public prosecutors to its existence and demand that they investigate and if necessary prosecute to the full extent of the law.¹²

William B. Fitzgerald, the State’s Attorney in Waterbury, had like Father Cryne seen the stories in the Friday and Saturday Waterbury newspapers. And while news of the Catholic Clergy resolution did not appear in the Sunday Republican, Bill Fitzgerald certainly heard of it Sunday morning at the latest, for he faithfully attended St. Margaret’s Roman Catholic Church, and that morning—as Bill Fitzgerald remembered even decades later—the text of the clergy’s resolution was read from the pulpit of each and every Catholic church in Waterbury and in surrounding towns.¹³

Bill Fitzgerald had been State’s Attorney for only one year. Thirty-seven years old, a Waterbury native, and an alumnus of Holy Cross College, Fitzgerald had opened a Waterbury law office immediately after graduating from Harvard Law School and passing the bar in 1926. Two years later he became a prosecutor in the city’s misdemeanor court, and in 1931 he became assistant state’s attorney, both part-time positions that supplemented an attorney’s private law practice. In May 1938, however, the special grand jury that had been impaneled to investigate Mayor Hayes and the city’s financial scandals issued a detailed, seventy-four-page report to accompany its charges, and included in it was a brief but harsh condemnation of Fitzgerald’s boss, State’s Attorney Lawrence L. Lewis, for failing until very recently to take any action against the presence of gambling devices in Waterbury social clubs. “The fact that these violations of the law were known but not prosecuted by State’s Attorney Lewis,” and others, “is a matter of distinct concern to this Grand Jury. The law enforcement authorities of the city and of the district are, therefore, deserving of the severest censure for having permitted this widespread and flagrant violation of law to continue.”14

Larry Lewis felt he had no choice but to resign and return to full-time private practice in his firm of Bronson, Lewis & Bronson, but Bill Fitzgerald rebuffed Lewis’s notion that Fitzgerald too had to step down, indicating instead that he’d like to be Lewis’s successor. That choice lay with Waterbury’s local judges, particularly resident Superior Court Judge Frank P. McEvoy, the first Roman Catholic member of Connecticut’s premier trial court bench, and on June 6, 1938, Bill Fitzgerald received their official blessing and became the first Roman Catholic State’s Attorney at Waterbury. Fitzgerald voiced high praise of Larry Lewis at his swearing in, but moved swiftly to eliminate gambling from the city, with widespread raids receiving coverage even in the New York Times.¹⁵

Bill Fitzgerald “had a first class mind,” one lifelong attorney friend and courtroom adversary later remembered, but he was “a very, very strict Catholic.” Another attorney friend, also once a communicant at St. Margaret’s, agreed that Fitzgerald was “very bright,” but was nonetheless “a very parochial, insular guy,” someone “very strongly receptive to and influenced by the clergy.” Bill Fitzgerald was active in a number of civic and church groups, and, like Judge McEvoy, served on the advisory board of Waterbury’s Diocesan Bureau of Social Service, which was directed by Father Eugene Cryne. But most people who knew Bill Fitzgerald felt that the pressure to act came largely from within, rather than from without, that even in the absence of a phone call, Bill Fitzgerald believed there was only one thing to do. After all, just one year earlier his predecessor had had to resign because of public complaints that he had failed to enforce the often-ignored but nonetheless still-valid gambling laws aggressively, and the old 1879 prohibition against birth control was certainly still on the statute books. Yes, Bill Fitzgerald was a “devout” Catholic, but “I don’t think Fitzgerald was any crusader at all,” his one-time fellow member of St. Margaret’s emphasized. As almost everyone saw it, the state’s attorney simply felt he had to do his duty. Eight days later Fitzgerald would indicate that he had been “acting upon complaints” in the wake of the newspaper stories, but probably as early as Saturday morning Bill Fitzgerald had decided that an active investigation of the Chase Dispensary clinic would have to be mounted.16

Monday morning’s Republican headlined the Catholic Clergy Association’s resolution, but devoted more attention to the continuing claims that the clinic was not what its critics said it was. Like Doctors Mason and Larkin, Dr. William A. Goodrich was portrayed as minimizing the clinic’s work: “Out of 250 women who come to the clinic yearly, he said, an average of perhaps 15 come for birth control advice. They get the same advice, he said, that women who can afford personal physicians get from their own physicians.” More pointedly, the Republican also highlighted a conversation the newspaper had had with a Hartford attorney who had represented the original CBCL clinic there. He asserted “that there is apparently no state statute under which a birth control clinic can be prosecuted as long as the clinic is operated on a health basis,” the Republican said. “The lawyer pointed out that prohibiting the giving of birth control information to women for health reasons would run counter to the public health laws of the state. The Hartford authorities were asked to prosecute, he said, by the Hartford Catholic clergy, and decided at the time that there was no basis for prosecution.”¹⁷

But the Republican’s effort was in vain. Early Monday morning William Fitzgerald took a search warrant application to the chambers of Judge McEvoy. Fitzgerald’s request stated “That he is informed and that he suspects and has reason to suspect that books, records, registers, instruments, apparatus and appliances used and kept for the purpose of violating the criminal laws,” specifically Sections 6246 and 6562, “are kept, deposited, stored and used in” the Chase Dispensary at 43 Field Street.¹⁸

Birth control was not a new subject to Frank P. McEvoy. A sixty-year-old Waterbury native, an active member of Blessed Sacrament Roman Catholic Church, and, like Bill Fitzgerald, a member of the advisory board of Father Cryne’s Diocesan Bureau of Social Service, Frank McEvoy had attended a small Roman Catholic college in New York, graduated from Yale Law School in 1907, and practiced law in Waterbury until being named a superior court judge in 1930. Friends thought of him as “soft spoken” and knew he was an “ardent horseman,” but Waterbury attorneys considered him “narrow and reluctant to accept change.” A much younger fellow Catholic attorney remembered McEvoy as “wildly Irish Catholic” and “very parochial.” Perhaps most notably, seven years earlier his wife had played the leading role in blocking any endorsement of birth control by the state convention of the Connecticut League of Women Voters. As the Republican had described it, Mrs. McEvoy “opposed it violently and threatened that she and all Catholic women would resign if it were adopted. Largely because of this, the proposal … was voted down,” and Mrs. McEvoy had received nationwide praise from some Catholic spokesmen for her activism on the issue.19

Frank McEvoy immediately granted the warrant application that Bill Fitzgerald put in front of him: “I find probable cause exists for said complaint.” Minutes later, a little before 10 a.m., Deputy Sheriff Al Francis and County Detective Koland G. Alling took the warrant and went the three short blocks that separated the Chase Dispensary from the state’s attorney’s office in the courthouse. Dispensary supervisor Jeannie Heppel had left on Saturday on vacation, but her assistant, Berta Verba, showed the two lawmen to the second floor rooms at the northwest corner of the building that the birth control clinic used. As the clinic operated only on Tuesday mornings, no one else was present, but as the Waterbury Democrat described it, the two officers “confiscated several bags and boxes of articles and returned with them to the courthouse.”

Bill Fitzgerald declined comment to inquiring reporters and sat down with his assistant, Walter Smyth, and Detective Alling to review the seized materials. They prepared a show-cause order, signed later that day by Judge McEvoy, directing Waterbury Hospital superintendent B. Henry Mason to appear in court the following Monday to explain why the diaphragms and other contraceptive articles that had been seized should not be condemned and destroyed. But much more importantly, Bill Fitzgerald noted two other things as he examined what Alling and Francis had seized. First, all of the patient records, the clinical cards that would identify who had been seen and for what reasons, were not at the dispensary, but were in the possession of a young Junior League volunteer, Virginia Goss, who maintained the clinic’s records and was married to a prominent young executive at Waterbury’s most famous manufacturing firm, Scovill Brass. And then, second, Bill Fitzgerald also learned that the founder and moving force behind the Waterbury Maternal Health Center was not one or another of the doctors from Waterbury Hospital, but instead was his next-door neighbor and family friend, Clara Lee McTernan.²⁰

Kit Hepburn and her children would always remember the phone call that had interrupted her daughter Marion Hepburn Grant’s wedding that Monday in the garden of the Hepburn family home at 201 Bloomfield Avenue in Hartford. But then it was utterly natural for Clara McTernan to call Kit Hepburn, for not only had Hepburn come to Waterbury to spur creation of the clinic, she had been making political waves across Connecticut years before Margaret Sanger had ever thought up the phrase “birth control.”21

Katharine Houghton Hepburn was a twenty-six-year-old newlywed when she and her husband, Dr. Thomas N. Hepburn, first moved to Hartford in 1904. Orphaned as a teenager when her father committed suicide and her mother died of cancer, Katharine Houghton graduated from Bryn Mawr in 1899, earned a master’s degree there the following year, and met Tom Hepburn, a medical student at Johns Hopkins, through her sister Edith, who was also in medical school. Thomas Hepburn’s internship and residency took place at Hartford Hospital, and in 1905 their first son was born, followed two years later by their first daughter, Katharine’s namesake, who later would win a 1934 Academy Award and Hollywood fame.

The following year Kit Hepburn, perhaps at the urging of her sister Edith, attended a speech at Hartford’s Parsons Theatre by English suffragist Emmeline Pankhurst and adopted women’s right to vote as her cause too. The Connecticut Women’s Suffrage Association (CWSA) had been founded back in 1869, but now was slightly moribund. Kit Hepburn’s urge to activism was initially hindered by a tremendous fear of attempting to speak in public, but she soon overcame it, and along with her friend and neighbor Josephine Day Bennett she helped create the Hartford Equal Franchise League. In 1910 Hepburn and Jo Bennett expanded their efforts into the CWSA itself, with Kit Hepburn becoming president for 1910–1911 and again in 1913. Kit Hepburn was also busy having additional children—two more boys in 1911 and 1913, and two more girls in 1916 and 1918—and Dr. Tom Hepburn was channeling much of his energy into antivenereal disease work. He played a significant role in the 1913 founding of the American Social Hygiene Association, and a very central role in its affiliate, the Connecticut Social Hygiene Association. One of Kit’s older colleagues in CWSA work, Annie Webb Porritt, an immigrant from England, was also very active in the antivenereal disease efforts, as was Jo Bennett’s father, George H. Day. Jo’s mother, Katharine Beach Day, was a major source of funds for her daughter and Kit Hepburn’s female suffrage endeavors.²²

By 1917 Kit Hepburn was testifying before the Connecticut legislature’s Judiciary Committee on behalf of the CWSA and appearing with Montana Congresswoman and suffragist Jeanette Rankin at a Parsons Theatre rally. But in the fall of that year, in the wake of Alice Paul and other national activists’ departure from Carrie Chapman Catt’s National American Woman Suffrage Association (NAWSA) to form the National Woman’s Party (NWP), Kit Hepburn resigned the presidency of the 35,000 member CWSA and along with Jo Bennett and her other colleagues began directing most of her energies into the NWP. Both groups championed congressional approval of a federal constitutional amendment that would give American women the right to vote, but Hepburn and others felt that the NWP was the more active force. In January 1919, the House of Representatives approved a woman’s suffrage amendment, and in June the Senate followed suit. Fourteen months later, in August 1920, Tennessee became the crucial thirty-sixth state to ratify the Nineteenth Amendment, and female suffrage had been won. Several weeks later the Connecticut legislature added its assent.23

The suffrage victory allowed the Connecticut activists to direct their energies toward other issues. Annie Porritt, already an elected member of the Hartford Board of Education, helped set up the League of Women Voters as a direct successor to NAWSA, continued her work with Dr. Hepburn in the Social Hygiene Association, and became active in the Joint Committee on Delinquent Women.²⁴ But another issue that both Mrs. Porritt and Katharine Beach Day began to take an interest in by the fall of 1921 was birth control.

Margaret Sanger’s first enthusiastic follower in the state of Connecticut was a male attorney from Hazardville, a small village in the north-central part of the state, Henry F. Fletcher. Single-handedly, Fletcher four years earlier, in January 1917, had prevailed upon his local representative in Connecticut’s lower house to introduce, “by request,” a bill repealing the 1879 antibirth control statute. How Fletcher’s interest first occurred is unknown, but by the fall of 1916 most readers of the American press knew full well who Margaret Sanger was. Then thirty-seven years old, Sanger had first begun championing a woman’s right to control her own fertility in the summer of 1914 in her self-published monthly magazine The Woman Rebel. Heavily influenced by her own and her husband William’s political roots in socialist politics, and particularly by the perspective of Emma Goldman, Margaret quite purposefully hoped that her in-print advocacy of birth control would launch a direct challenge against the enforcement of the 1873 federal antiobscenity and anticontraception statutes that most everyone spoke of as the “Comstock Laws,” after their still very active principal proponent, New York moralist Anthony Comstock.25

Sanger’s hope of generating a federal case in which to take on those prohibitions against the interstate shipment or importation of any goods, articles or literature dealing with sexuality or reproduction quickly came to pass: in August 1914 the U.S. Attorney’s office in New York charged her with four counts of violating the Comstock statutes. Rather than prepare a defense, Sanger sat down and wrote a sixteen-page statement of her views, arranged for the printing of a hundred thousand copies of it under the title Family Limitation, obtained false identity documents, and fled to England rather than stand trial. The ensuing twelve months in Europe constituted perhaps the most intellectually important period in Sanger’s long life, but her flight from prosecution did relatively little if any harm to America’s growing popular support for women’s right to control their fertility.²⁶

While Sanger was away, however, her husband Bill was entrapped into giving a copy of the Family Limitation pamphlet to a government agent, and in September 1915, he was tried, convicted, and sentenced to a thirty-day jail sentence. One later historian calculated that Bill Sanger’s arrest “proved a powerful magnet which drew many hundreds into active participation in the birth control movement,” and that “Sanger’s trial generated considerable support for birth control as a free-speech issue.” That blossoming support also helped convince Margaret that the time was right to return to the United States, and in October 1915 she did. While she had been away the country’s first birth control advocacy group, the National Birth Control League, had been formed by Mary Ware Dennett and a number of other upper-class, northeastern women. In January 1916—with Margaret rejecting lawyers’ advice that she agree to a negotiated guilty plea in order to dispose of the 1914 federal charges still pending against her—the new league held a heavily publicized New York dinner honoring Sanger the evening before her scheduled trial. Indecisive prosecutors postponed the case once, and then again, as press interest heightened, before finally simply dropping the charges on February 18, 1916.²⁷

The government’s surrender elevated Margaret Sanger to celebrity status. Several weeks later she began a three-and-a-half-month coast-to-coast speaking tour, and birth control became more heavily publicized in America’s newspapers than ever before. In Portland, Oregon, local authorities arrested her for handing out copies of Family Limitation, but a supportive judge immediately released her. In Boston, however, when a young man named Van Kleeck Allison decided to distribute birth control pamphlets to passersby who soon included an undercover detective, a speedy trial resulted in a quick conviction and a three-year sentence, which later was reduced to sixty days. Allison’s experience did have the effect of stimulating creation of an Allison Birth Control Defense League that then changed its name to the Birth Control League of Massachusetts, and local birth control groups also emerged in other cities across the country as a result of Sanger’s triumphant tour.28

Upon returning to New York, however, much of Sanger’s energy went into a deepening competition with Mary Ware Dennett for leadership of this burgeoning national movement. Sanger intensely resented that someone other than she had founded the first national birth control group, and while the NBCL was of very modest size, Dennett in early 1917 succeeded in getting a birth control legalization bill introduced into the New York State legislature. Just as with Henry Fletcher’s contemporaneous legislative effort in Connecticut, however, Dennett’s bill attracted almost no support and never emerged from committee. But Sanger’s primary interest was not legislative lobbying, and on October 16, 1916, along with her sister and fellow nurse Ethel Byrne, and several other women supporters, Margaret Sanger opened America’s first public birth control clinic at 46 Amboy Street in the Brownsville section of Brooklyn.²⁹

Sanger had been unable to recruit a licensed physician to operate the clinic, but even on its first morning of operation a waiting line of forty-five women had formed on the sidewalk. Sanger and her colleagues fully expected to be raided and closed down by the police within days or even hours of opening, but nine days passed before a transparently obvious female undercover police officer arrived and insisted upon paying two dollars for one of Margaret’s ten-cent pamphlets. The next day she returned with three fellow officers. The clinic’s supplies were seized, and Sanger and an aide were carted off to jail. Ethel Byrne was promptly arrested as well. Released on bail after one night in custody, Sanger soon reopened the clinic but was quickly raided and rearrested.

Sanger and Byrne’s lawyer, Jonah J. Goldstein, was determined to use the arrests to challenge the constitutionality of New York’s Comstockian anticontraception statutes, and at one preliminary hearing he told the presiding judge that the law denied a woman “her absolute right of enjoyment of intercourse unless the act be so conducted that pregnancy be the result of the exercise. This clearly is an infringement upon her free exercise of conscience and pursuit of happiness.” The judge, however, expressed astonishment at Goldstein’s argument: “A right of copulation without conception is asserted upon behalf of women in general; defendant claims this is a personal right that cannot be invaded by the Legislature.” Any such contention was hogwash, he held: “That men and women and boys and girls lacking in moral stamina are deterred from fornication by the fear of detection through the pregnancy of the female cannot be doubted.”30

Goldstein nonetheless mounted a variety of legal challenges on behalf of his defendants, but in early January 1917, Ethel Byrne went to trial and was convicted. Margaret’s sex education pamphlet which Ethel had given the undercover officer was titled “What Every Girl Should Know,” but the trial court commented that “This contains matters which not only should not be known by every girl, but which perhaps should not be known by any.” On January 22 Byrne was sentenced to thirty days’ confinement and was soon jailed despite Goldstein’s protests that she be freed pending appeal. Byrne announced she would go on a hunger strike until she was released, and amidst heavy publicity and flourishing support from the upper-class women of the NBCL, Margaret’s own trial then got underway on January 29. Goldstein attempted to persuade both Sanger and the court to accept a guilty plea accompanied by only a suspended sentence so that his constitutional arguments could be appealed to higher courts without Margaret having to accept punishment in the interim, but no agreement could be arranged. On February 2, one day after Ethel had been released from jail on account of her rapidly failing health, Margaret was convicted and chose thirty days’ imprisonment in lieu of a five-thousand-dollar fine.³¹

Margaret’s own jail time passed quietly, and four months later an intermediate appellate court affirmed her conviction. Goldstein then took his arguments to New York’s highest court, and in January 1918, that bench reaffirmed her conviction but also stated, in an indirect but nonetheless tremendously important victory, that New York’s anticontraception statute could not prevent a physician from prescribing birth control to a married woman for whom it would help prevent “disease,” a word which the court then defined in a most broad and inclusive manner. Goldstein resolved to appeal the case yet further, to the U.S. Supreme Court (which eventually dismissed the appeal), but the birth controllers had already registered a crucial if underpublicized triumph.³²

The New York court’s emphasis upon doctors’ rights and obligations to protect patients against threats to their health significantly encouraged Margaret Sanger’s ongoing evolution toward a more professionalized—and less politically radical—championing of birth control. Mary Ware Dennett was committed to advocating the complete repeal of all state and federal anticontraceptive statutes, and early in 1919 created the Voluntary Parenthood League, largely a successor to her earlier NBCL, to help recruit a congressional sponsor for a federal repeal bill. Sanger, however, was increasingly persuaded that milder reform measures, legalizing only the “medically supervised” prescription of birth control, stood far, far better chances of winning support and approval. Writing in mid-1919, Sanger now argued that “when instruction in the use of contraceptives is given, it should be given by the kind of persons best suited by training and experience to give it scientifically and accurately. If everyone is permitted to impart information, those who receive it have no guaranty that it is correct or suitable to the individual’s physical requirements. Incorrect, unscientific information may bring good results in some cases, but it is more likely to cause a vast amount of disappointment and anxiety in others.”33

In November 1921 Sanger and her supporters convened the First American Birth Control Conference at New York’s Plaza Hotel. Intended in part to refocus the birth control spotlight on Sanger rather than Dennett, it also brought out-of-town birth control supporters to New York, including Katharine Beach Day, Annie Porritt, Jo Bennett, and Henry Fletcher and his wife from Connecticut. The conference’s concluding event was a large public meeting on November 13, but it was interrupted almost before it could begin by a band of New York City policemen who said they were acting at the behest of Roman Catholic Archbishop Patrick Hayes. They removed a prominent English guest speaker from the stage, and then carted Sanger off to jail when she objected. The police action set off a firestorm of press criticism and coverage, and generated a major municipal investigation of how it had been instigated. The church’s blunder transformed the conference into a national news story, and as The New Republic observed two weeks later, thanks to the church “the outlook for the birth control movement is brighter than it ever was.”³⁴

One of Sanger’s primary aims for the conference was to create a new national organization of her own, which was christened the American Birth Control League (ABCL). Katharine Beach Day played a principal financial role in helping launch the new group, and by the spring of 1922 Annie Porritt was taking a major role in the editing and publication of its monthly magazine, the Birth Control Review, which Sanger had initiated several years earlier. Before the year was out both Day and Porritt were formal members of the ABCL’s board of directors, and in October 1922, some weeks after returning from a London birth control conference that both she, Sanger, and Porritt had attended, Mrs. Day told Hartford reporters that Mrs. Sanger would be coming to town to speak in January. In mid-November both Day and Porritt attended the annual convention of the Connecticut League of Women Voters, distributed birth control literature, and spoke about mounting an effort in the upcoming 1923 Connecticut legislature to amend the state’s 1879 anticontraception statute. By early January ABCL organization secretary Clara Louise Rowe was in Hartford planning for Sanger’s visit, and Henry Fletcher had recruited Enfield state representative Samuel Sisisky to introduce a birth control bill when the legislature convened.35

Creation of state birth control leagues as affiliates of her national organization was a central part of Sanger’s plan for the ABCL, as was her firm conviction that medically supervised birth control was the goal to advocate. Just a few weeks earlier, after finally recruiting a willing female doctor, Sanger had quietly opened a New York birth control clinic, right across the hall from her ABCL office, under the rubric of a “clinical research bureau.” In Washington, Mary Ware Dennett had finally, after several years effort, found a member of Congress who was willing to sponsor a Comstock repeal measure, but in Connecticut Representative Sisisky’s House Bill 504, formally introduced on January 25, provided only that the “giving of information or advice or medicine or articles for prevention of conception by a doctor or nurse shall not be a violation” of Connecticut’s 1879 statute.³⁶

Neither Sisisky, nor Henry Fletcher, nor the other 1923 Connecticut reformers had a clear understanding of how or why the 1879 law had come into being in the form that it had, largely because neither the surviving legislative records nor the contemporaneous newspapers provided any explanatory comments or details about the statute’s consideration or passage. It had been introduced by New Haven state senator Carlos Smith just two days after a similar bill had been put before the Massachusetts legislature as a result of the efforts of the New England Society for the Suppression of Vice, a Comstock organization that boasted the presidents of Amherst, Brown, Dartmouth, and Yale among its members. The New England Society had been created as an antiobscenity lobby following a May 1878, visit to Boston by Comstock himself, and in Massachusetts its bill quickly passed the legislature without any apparent dissent or debate. The Connecticut bill was referred to the legislature’s Joint Committee on Temperance, favorably reported less than a week later, and passed by the senate, but then returned to the committee by the house. The committee, chaired by sixty-nine-year-old Bridgeport Representative and temperance advocate Phineas T. Barnum, of circus fame, then prepared a substitute bill, including for the first time the unique language that forbid not only trafficking in “obscene” literature and materials concerning sex or reproduction, but also the “use” of “any drug, medicine, article, or instrument” for the “purpose of preventing conception.” The revised measure was adopted by the senate, explained to the house by Barnum, approved by the house in slightly amended form, and then again concurred in by the senate. On March 28, 1879, it became law.37

The kickoff event for the 1923 reform campaign was a Sunday afternoon rally and speech by Margaret Sanger at Hartford’s Parsons Theatre, just two days before the legislative joint committee hearing on Sisisky’s bill at which Sanger herself would also testify. The Sunday event drew an impressive crowd of eight hundred to twelve hundred people, approximately two thirds of whom were women, and received extensive coverage in the Connecticut press. The Hartford Courant characterized Sanger as “speaking with a sincerity which her listeners seemed quick to appreciate,” and explained that “at the close of her talk many in the audience wrote questions which were brought up to the stage for Mrs. Sanger to answer.” In her speech she had emphasized that “We want to free women from incessant child bearing; we want to free her from undesired pregnancy”; during the question and answer period she “bitterly attacked” the Connecticut statute while also emphasizing that birth control “must be handled in clinics,” “places with doctors and nurses in charge where a man or woman may come for individual instruction in the use of contraceptives.”³⁸

During her Hartford visit Sanger stayed at the home of Mrs. Day, and either that evening or the next Mrs. Day and her daughter Jo Bennett had Katharine Hepburn join them for dinner with Sanger. Day and Porritt had already been laying the groundwork for formally starting a Connecticut branch of the ABCL, and that night at dinner the plan was ratified, with Mrs. Day becoming the group’s president. Tuesday afternoon February 13, when the legislature’s joint House/Senate Judiciary Committee convened for a ninety-minute hearing on Sisisky’s bill, “the old Senate chamber was packed, people standing in the back of the room and on both sides,” and with the galleries full as well. Henry Fletcher and then Annie Porritt spoke first for the birth control proponents, with Mrs. Porritt declaring that “We ask this knowledge for the poor; it is now obtainable by the rich.” Hartford attorney and city corporation counsel Robert P. Butler, an active Democrat, added his endorsement, and then Margaret Sanger stepped forward. She “was loudly applauded when she took the floor,” the Courant reported the next morning. “She wore a dark dress and a string of large amber beads. She talked directly to the committee in a low voice, but so clearly that it carried to the gallery.” Sanger spoke “not on the bill specifically, but on the general subject of birth control,” one paper said, and she “emphasized strongly that the advocates of birth control are not in favor of abortion, but desire only to prevent the beginning of life.”

Then opponents of the bill, beginning with Hartford Alderman and Catholic Council of Men representative Francis E. Jones, had their turn. He was followed by Roman Catholic Auxiliary Bishop John G. Murray of Hartford, who “talked directly at Mrs. Sanger and the advocates of the bill” in a manner that one reporter characterized as “intense.” “This method is a violation of a natural law,” Murray declared. “The Creator gave the sex function for just one purpose and to exercise it for any other purpose is a perversion of that function.” The Bishop went on to say, the Courant reported, that many families already were having too few children: “The races from northern Europe which he called the finest type of people, are doomed to extinction, unless each family produces at least four children.” After two female opponents also spoke, the hearing concluded with Sanger being given a few moments for a brief and very effective rebuttal. “The gentlemen say it is against the laws of nature to prevent conception,” Sanger declared, “yet they themselves are celibates.” As the crowd applauded, Sanger closed by joking that by her opponents’ standards, men shaving their beards also violated the law of nature and ought similarly to be prohibited.39

By any public standard the hearing and its press coverage, like the Sunday rally, had been a great success and an auspicious debut for the Connecticut birth controllers. But their rhetorical success with the crowds stood them in little stead with the legislature, for several weeks later, without debate, both the house and then the senate accepted and approved the judiciary committee’s rejection of the Sisisky bill.⁴⁰ In Washington Mary Ware Dennett’s efforts with the U.S. Congress fared no better, as two days of hearings in early 1924 were similarly followed by judiciary committee rejection of the repeal proposal. Sanger’s ABCL—which now, with Katharine Hepburn’s addition, had three Connecticut women on its board—was quite open in all but opposing Dennett’s congressional efforts. The March issue of the ABCL’s Birth Control Review stressed the league’s opposition to the “indiscriminate dissemination” of birth control information and declared that any “campaign for the repeal of these Federal laws was of secondary importance until some educational work had been done.” Indeed, the league warned, “removal of the Federal restrictions would almost certainly be followed by a flood of widespread advertising, of hastily written and probably misleading books and pamphlets.” Instead the ABCL was drafting a bill which “would free the hands of the medical profession and enable the clinical data to be passed from one group of doctors to another.” The essence of Sanger’s political strategy was conveyed most starkly in a frosty letter that Annie Porritt sent to Dennett, removing her name from Dennett’s list of sponsors. After careful study, Porritt declared, “I am emphatically of the opinion that Birth Control is primarily, in its practical aspects, a medical question, and I am also convinced that promiscuous distribution of advice without medical examinations and care, would tend to degrade the whole question, and to prevent that hearty cooperation on the part of the medical profession which is the chief hope of success.”41

The 1923 Connecticut legislative hearing had featured only one rather tardy appearance and endorsement of birth control by a medical doctor, but the reformers carefully arranged to have Boston M.D. James F. Cooper, whom Sanger had recently hired as the ABCL’s medical director and primary ambassador to physicians, in attendance along with Sanger herself when the 1925 hearing convened on March 12. The 1925 reform bill, in clear contrast to the 1923 one, authorized medically supervised birth control by amending the old 1879 statute so as to provide for a “fifty dollars fine where drugs which may prevent conception are sold without physician’s prescription.” The 1925 hearing drew a smaller crowd than the 1923 one—about one hundred proponents and some fifteen opponents, the New Haven Journal-Courier estimated, but “the idea seemed to have gained in popularity since it was brought up two years ago.” Dr. Cooper was the principal speaker for the reformers, supplemented by Sanger, Katharine Hepburn, and an Episcopalian minister from New York. The judiciary committee “was plainly on the defensive throughout the hearing,” the Hartford Times commented, but the “questions asked by the committee indicated much skepticism.” One senator asked Sanger if birth control information ought to be available to unmarried women, and Sanger said no: “Married women are entitled to the information, because they have moral obligations, which unmarried women haven’t.” The clergyman, Reverend Thomas H. Garth, contended that “no woman can be free … until she has the right of her person and can say how many children she shall bear and when,” but he was quickly contradicted by the day’s only opposition speaker, Mrs. Louise H. Fisher, representing the Connecticut Council of Catholic Women. “Legislation of this kind will increase the trend toward evading of responsibilities on the part of married people,” Fisher warned. “Persons shouldn’t enter into the married life unless they are willing to accept the obligation of children.” Noting that she herself was a mother of five, Mrs. Fisher closed by declaring that “There is already too much love of luxury and ease and this bill would encourage that very thing.”

Once again, as in 1923, the Connecticut reformers were generally pleased with the hearing, but just like two years earlier the judiciary committee quickly recommended rejection of the bill, a recommendation that was accepted without debate by both the senate and house.42 Katharine Beach Day turned some of her attention toward assisting Sanger in new political explorations that the ABCL was making in Washington with an eye toward finding a congressional sponsor for a reform bill. Henry Fletcher provided Day and ABCL executive secretary Anne Kennedy with a letter of introduction to Connecticut Senator George P. McLean, whom the women found “most sympathetic,” but neither McLean nor any of a number of other senators with whom Day and Kennedy visited early in 1926, including Nebraska’s George W. Norris, stepped forward to sponsor a bill. Mary Ware Dennett had already given up her Washington efforts and retired from the scene, and by the end of 1926, the ABCL had pulled back as well.⁴³

Birth control activism was ebbing significantly, with the ABCL registering only 2,800 new members in 1926, as opposed to over 13,000 in 1923 and over 10,000 in 1924, and in mid-1926 Connecticut showed only forty-seven subscribers to the ABCL’s Birth Control Review. Sanger spent much of late 1926 and most of 1927 in Europe, on leave from the ABCL, and when Connecticut’s 1927 legislative hearing occurred in early March, Dr. Hannah M. Stone, the director of Sanger’s Birth Control Clinical Research Bureau in New York, came in her boss’s stead. In 1927 the Connecticut women had resolved to champion a repeal bill, and Annie Porritt told the ABCL that while “it will be a miracle if it passes,” the Connecticut women “would not consider anything else.” Porritt explained in another letter that “You can buy condoms and pessaries at the drug stores” if you knew to ask for articles that were not on open display, and that the real and continuing harm done by the 1879 statute stemmed from how it “undoubtedly has deterred the doctors from recommending something which it would be illegal for his [sic] patients to put into practice.” The hearing itself featured Hannah Stone, accompanied by Day, Porritt, Fletcher, and Hepburn, telling the judiciary committee that “contraception is distinctly a medical problem” and that “it should be the duty and the privilege of the physician to advise his patients in regard to it.” The only opposing speaker, Mrs. Richard. F. Jones of West Hartford, who claimed “that there are more women in hospitals as a result of the use of preventives than on account of natural births,” was apparently not questioned on her unintended acknowledgment that tens of thousands of Connecticut women indeed did want to limit and control their fertility. Although both the Connecticut senate and house once again without debate ratified a judiciary committee recommendation that the repeal bill be rejected, one small press report stated that the negative vote in committee had been by a margin of only seven to six.44

By early 1928 Margaret Sanger was back in the United States, but Eleanor Dwight Jones, who had been the acting ABCL president during Sanger’s absence, was successfully resisting Sanger’s efforts to reassume her previous level of organizational control. With the ABCL board, including board secretary Annie Porritt, resolutely backing Jones, Sanger in June 1928 resigned as ABCL president. Political struggles persisted throughout the year as Sanger and Jones fought for control of both the Birth Control Clinical Research Bureau and the Birth Control Review, with Sanger winning on the former and losing on the latter. Porritt tried to be something of a mediator, warning Jones that “Mrs. Sanger is scarcely sane on the point of her antagonism to you,” but adding that she fully agreed with Sanger that the Clinical Research Bureau was a separate enterprise. Otherwise the Connecticut women were largely untouched by the New York battling, and focused their efforts on building some visible local support for birth control legalization in advance of the 1929 legislative session. ABCL staff organizer Constance Heck was detailed to the Fairfield County towns of Greenwich, Norwalk, and Darien to stimulate the creation of local birth control committees, and contacts were made with Protestant ministers in Hartford, Bridgeport, Stamford, and Waterbury. Up in Massachusetts the arrest and quick acquittal of one female doctor, Dr. Antoinette F. Konikow, for giving a lecture on birth control had had the effect of reviving a state league that had been moribund for almost a decade, but the great New England success of 1928 came in November when the general conference of Congregational Churches in Connecticut endorsed the upcoming repeal bill at the behest of ministers who had been recruited by the Connecticut women.⁴⁵

The success with the Congregational clergy, and the creation of a total of fourteen local town or city birth control committees, gave the birth control advocates a major boost going into the 1929 legislative session. Margaret Sanger said no to Katharine Hepburn’s request that she come up for the February 28 hearing, but an overflow crowd of almost a thousand people turned out, and the Associated Press reported that “The support was stronger this session than ever before.” Hepburn, Porritt, Jo Bennett, and Henry Fletcher were joined as affirmative speakers by Leon F. Whitney of New Haven, executive secretary of the American Eugenics Society, Bridgeport’s Reverend T. F. Rutledge Beale, the prime mover behind the Congregational Church endorsement, and prominent Hartford physician James Raglan Miller, an old acquaintance of Porritt and the Hepburns from the Social Hygiene Association.

The afternoon was without a doubt the most lively legislative hearing the Connecticut effort had yet experienced. At the outset, Katharine Houghton Hepburn stole the show. “Three quarters of the men and women in this room are common criminals and ought to be in jail,” she declared, drawing “indignant whispers” and “scattered hisses” from some as the crowd understood her allusion to the anticontraception law. Instead, she went on, “The crime is in having too many children where parents are too poor, too unintelligent to raise many children, in raising children that can never be adjusted to society.” Also, Hepburn said, even “Roman Catholic women are coming to realize that this is their concern and not that of their priests; that they, and not the priests, have to bear the children.” When she finished, the New Haven Journal-Courier reported, “Tremendous applause went through the room.”

At least half-a-dozen members of the legislature, including three women, stood to register their support for the bill, and then it was the opponents’ turn. “The leader of the opposition,” B. L. Garrity of Shelton, announced that he had been told to oppose the bill by his wife, the mother of their nine children. “More humorous than serious,” the Journal-Courier added, “the opposition leader advised that, instead of birth control being allowed among the ‘upper stratum’ a law be passed that all couples married ten years should be forced to have five children, or be sent to jail for the rest of their lives.” “If they want the sex relationship,” he declared, “let them take what goes with it.” Garrity went on to compare birth control clinics to houses “which people don’t speak about in polite society,” but when a female committee member sought to ask Garrity whether having so many children had threatened his wife’s health, “a fight nearly developed” and the committee chairman ruled the question out of order as too personal. Louise Fisher’s opposition testimony produced no such outbursts, but another Hartford woman asserted that the bill “savors of barbarism and paganism.” Katharine Hepburn was allotted several minutes for a closing rebuttal, and tried to reiterate her earlier point that immigrant women “don’t believe it’s any business of the priests, since they, the women are the real sufferers,” but she was angrily interrupted by an opposing legislator from Bridgeport who shouted that people simply needed to “control their lust.” “Let them practice self-control, not birth control!” The hearing concluded with the committee asking the audience for a show of hands, pro and con, which one reporter estimated looked essentially even, “about 400 to 400.”46

Only five days later, however, the judiciary committee issued a negative report on the bill, and even its supposed sponsor, Senator Ernest W. Christ, told reporters that he was not in disagreement with the committee’s action. The Connecticut women were sorely disappointed, but soon learned, as Katharine Beach Day later reported, that “The Republican leaders had decreed the defeat of the bill.” The women’s organizing efforts had in part been for naught because they had insufficiently appreciated the extent to which legislative policy decisions in Connecticut were made in a “top-down” manner. In the largely one-party Republican world of the Connecticut legislature, where Republicans that year dominated the house by 194 to 68, and the senate by the much narrower margin of 21 to 14, most members followed the recommendations issued by their leaders.

One member who did not, however, was sixty-nine-year-old Bristol lawyer and legal scholar Epaphroditus Peck. While the senate accepted the judiciary committee’s negative recommendation without debate, Peck forced a floor debate and vote in the house—the first time a birth control bill had gotten that far. Like the earlier hearing, however, the floor debate turned into a raucous affair. With Katharine Hepburn in “a front row seat in the well-filled gallery,” Representative Peck spoke about how the anticontraception statute was essentially religious legislation and how there had never been a prosecution under it. He noted how at the hearing opposition to its repeal had come “exclusively from Roman Catholic sources,” and emphasized how the entire topic involved “matters purely personal.”

The primary opposition speaker was Representative Caroline T. Platt of Milford, who admitted that some liberalization might be desirable for women with health problems but contended that even most Protestants did not favor total repeal. “Trembling, seemingly with deep emotion,” Mrs. Platt argued that if birth control was legalized, population growth would come only from immigrants, and “she pleaded for ‘keeping up the proper element.’” This bill, she went on, “opens the way for every girl to become a prostitute,” and “seventy-five per cent of them will.” That statement generated “such a chorus of protesting hisses that Mrs. Platt was silenced, standing erect, her trembling hand holding a sheet of paper with her notes.” Platt then concluded by calling for “a conference of ‘conscientious doctors and wise lawyers’” to draft an amendment. Her speech, the Hartford Courant declared, had been “the first time in the history of the State” that “occupants of the galleries hissed a member of the House for arguments advanced on the floor.”

Six other representatives, four of them women, also spoke before the vote was tallied. The Courant, terming the debate “bitter,” explained that “applause for speakers both for and against the bill from onlookers and legislators went unchecked throughout the long discussion.” Representatives Helen Lewis of Stratford, Georgina Davids of Greenwich, and Marjory Cheney of Manchester all spoke in favor. In opposition, Mrs. Marion Roberts of Hartford declared that “birth control is an unnatural process and leads to degeneracy,” and a male representative from Clinton advanced an economic argument: “The workers come from the lower classes and it is here that births would be limited by such a bill. Workers are needed, and the upper classes should not put into effect legislation that will tend to reduce their number.” Then the tally was taken, and the repeal bill was rejected by the overwhelming margin of 226 to 18. Eight of the affirmative votes were from women.47

The house debate had been the most dramatic event in the Connecticut struggle to date, and the women praised Peck’s effort while welcoming the extensive favorable press coverage. Several weeks later, however, the birth control movement received its biggest national publicity boost since the New York police action in 1921 canceling Sanger’s mass rally when another New York City police raiding party descended upon the Birth Control Clinical Research Bureau on April 15. The eight officers had arrest warrants for Dr. Hannah Stone, another physician, and three clinic nurses, and carted them off in patrol wagons while also seizing all of the clinic’s medical and patient records. The raid had clearly been in preparation for some time, for undercover policewoman Ann K. McNamara had made several visits to the clinic under the guise of being a patient, and two examinations had found McNamara experiencing “several pelvic disorders.” Sanger was outraged, noting that the clinic had been “minding its own business and hoping that its powerful ecclesiastical neighbors would mind theirs,” but her new attorney, Morris L. Ernst, and many supporters found the raid nothing short of astounding, for the 1918 New York court decision in Sanger’s own case had explicitly ratified doctors’ provision of birth control advice and devices in any and all situations where they were medically appropriate for a woman’s health.

Authorities returned the patient records four days after the raid, but New York doctors were infuriated at such a police invasion of doctor-patient confidentiality, and within a week the New York County Medical Society officially adopted a resolution condemning the raid. An initial hearing on the charges against the staff members was adjourned after only Officer McNamara’s testimony, but Ernst explained his defense strategy to the press: “If the doctor is acting in good faith with the thought that the birth control information will prevent disease, that is all we have to prove. It is the burden of the prosecution to prove the bad faith of the doctor.” Five days later, when the defense got its turn in court, several very prominent doctors, including a former city health commissioner, took the stand on behalf of the clinic workers. The presiding magistrate reserved decision, but the city police commissioner issued what the New York Times termed “a virtual apology” to the clinic and the medical community, saying he agreed “absolutely” that “the relationship between patient and physician should forever remain inviolate.” Several days later the police commander responsible for the raid was demoted, and three days after that the court dismissed the charges, agreeing with Ernst that “good faith” on the part of the doctor was indeed “the test of guilt or innocence.”48

The police and/or church blunder of raiding the New York clinic, just like the 1921 intrusion, redounded greatly to the birth control movement’s advantage. The Birth Control Review declared that the controversy had “furthered the cause of birth control beyond the most optimistic hopes of its supporters,” especially because of how “the medical profession aligned itself more definitely than ever before on the side of birth control.” Just days before the raid Sanger had resolved to take new congressional soundings on the prospects for a federal reform bill by creating what she called the National Commitee on Federal Legislation for Birth Control, and while Catholic spokesmen continued to decry birth control as “intrinsically evil,” Sanger responded that it will “enable a woman to act as a free, self-directed, autonomous personality.”⁴⁹

By the fall of 1929 Sanger was attempting to recruit a hesitant Katharine Hepburn as legislative chairman for her National Committee, and the Connecticut women were looking ahead to the 1930 elections, hoping to boost the number of birth control supporters who would sit in the 1931 legislature. Nationwide there was now a grand total of fifty-five birth control clinics in twenty-three cities in twelve states, but while Katharine Beach Day reported to the ABCL that “it is very evident that there is a steady growth of sentiment throughout the state in favor of birth control,” she also stated that “it is impossible to attempt to establish a clinic until the doctors shall be free from their present dilemma” under the 1879 statute. Sanger’s National Committee sporadically sent staff organizers into Connecticut to raise money and recruit new supporters, and these efforts generated some funds, plus modest numbers of new endorsers—including, on one small Waterbury list, Miss Jeannie Heppel. However, a preliminary contact by one staffer in the summer of 1930 with a small group of Greenwich women who had had some initial discussions about possibly sponsoring a clinic just across the state line in New York came to naught.50

While the newly titled Connecticut Birth Control League had no discernable impact on the state’s November elections, the results nonetheless were extremely notable: for the first time in twenty years a Democrat—grandfatherly Yale English professor Wilbur L. Cross—won the governorship. Liberals were ecstatic, believing that Cross’s triumph over the one-party conservative Republican dominance of the state represented a “stinging rebuke” to the reticent millionaire power company president, J. Henry Roraback, who had served as Republican state chairman since 1912 and was widely believed to choose Republican gubernatorial candidates—and legislative leaders—quite single-handedly. Reformers had long accused passive state Democratic leaders of having an insidious but informal working relationship with Roraback, and while the Republicans still controlled both houses of the legislature, many thought that a new political era might be dawning in Connecticut.⁵¹

Not long after that election the CBCL women decided that their 1931 initiative would have to be a “doctors’ bill” rather than a repeal one. There was “a pretty general feeling,” they told the ABCL, “especially on the part of the women members of the legislature, that there would be less opposition to the ‘doctors’ bill’ than to a straight repeal bill,” which some supporters had “criticized as too ‘radical’ a step.” In New York, however, the national birth control strategy debate had taken a new and very important turn when one young supportive woman lawyer, Dorothy Kenyon, had advanced the novel contention that rather than continuing to focus on winning legislative repeal of federal and state anticontraception laws, it would be preferable “to get away from the law by the simple expedient of forgetting about it.” Terming this option “nullification,” Kenyon argued that it would be better to bypass legislative bodies “and concentrate upon public opinion, in the hope that some day the sentiment of the community may be strong enough to impress our enforcement officers” into nonenforcement. Kenyon’s article stimulated considerable discussion. Birth control historian Norman Himes agreed that the key would be “the failure of prosecutors to bring cases before the courts,” and attorney Alexander Lindey concurred: “nullification promises the only speedy relief.” Morris Ernst saw it somewhat differently: “Nullification will take place by the constant whittling away of the law by judicial decisions.” Birth control statutes “will not be repealed until they have already been nullified,” Ernst predicted, but the essence of change would be judicial incrementalism: “Courts which are too cowardly to declare laws in conflict with our basic Constitution wheedle out of dilemmas by casting new interpretations on old statutes, eventually destroying the word of the law givers.” One of the very few dissents came from semiretired Mary Ware Dennett: not only was legislative repeal “far easier to accomplish than has been assumed,” but “under the nullification process, one can never know where or when the lightning of occasional prosecution may strike.”52

Ernst appeared quite prescient when, hardly two weeks later, the U.S. Court of Appeals for the Second Circuit ruled in a trademark infringement lawsuit involving the manufacturer of Trojans brand condoms that there was nothing improper about such items since, under the New York court decision in Sanger’s case twelve years earlier, physicians could supply or prescribe contraceptive articles for health purposes, and condoms of course could prevent the spread of disease. Legal commentators heralded this Youngs Rubber ruling as a major step toward nullifying the federal 1873 Comstock provisions, but Margaret Sanger remained focused upon pursuing congressional approval of a doctors amendment. She had finally succeeded in recruiting a sponsor—ageing lameduck Massachusetts Senator Frederick H. Gillett—and in mid-February 1931 a judiciary subcommittee held two days of hearings on his bill, even though it had no prospects for passage, or even committee approval. Katharine Hepburn preceded Sanger as the proponents’ first speaker, telling the subcommittee that human beings should not be denied “the right to regulate intelligently the birth rate.” A prominent doctor, a well-known Protestant clergyman, and a woman representing the New York City Junior League also spoke in favor. For the opponents, an attorney representing the National Patriotic League alleged that birth controllers were puppets of “communistic agents” and a spokesman for the National Catholic Welfare Conference warned against “perverting youth through the spread of contraceptive propaganda.” An American Federation of Labor official, a female member of Congress from New Jersey, and Massachusetts Representative John W McCormack—a future speaker of the House—completed the opponents’ roster, with McCormack declaring that “I can conceive of no more dangerous piece of legislation to the future of America” than Sanger’s modest reform bill.53

Hardly a week after the Washington session, a legislative hearing was held in Boston on a doctors-exception bill that was the first significant initiative to come from Massachusetts birth control advocates in over a decade. The Birth Control League’s female officers had carefully recruited physician support, even to the extent of sponsoring a supportive article in the New England Journal of Medicine, but the bill went nowhere and some Massachusetts activists argued that efforts should be directed toward simply opening a clinic rather than appealing to the legislature.⁵⁴

In Connecticut the 1931 birth control campaign followed much the same path as in Washington and Boston. Annie Porritt was now the acting chairman of the league, as an ageing Katharine Beach Day spent more and more time in Florida, and Porritt had taken the lead in being sure that an advance text of a doctors-exception bill had been circulated among Connecticut M.D.s for their endorsement. When prominent Hartford gynecologist James Raglan Miller appeared as the leadoff speaker at the judiciary committee’s birth control hearing on February 24, he was able to present the members with a list of more than four hundred Connecticut doctors who were backing reform. The CBCL women had been deeply pleased by the extent of medical support, and while the proponents’ presentation was heavily directed toward portraying the issue as a medical question, the same standing-room-only crowd of female supporters was once again present. Three other doctors joined Miller and Katharine Hepburn among the affirmative witnesses, but primary opposition speaker Francis E. Jones, representing the Bishop of Hartford, was joined by an opposing M.D. as well as by one Mrs. T. M. Sullivan of Hartford, who warned that if the bill passed, “twenty-five years from today the State of Connecticut will be a mass of crumbling ruins.” The largely female audience laughed loudly when Mr. Jones was forced to concede that “child-bearing has its difficulties,” but the opposing doctor, Daniel E. Shea, firmly told the committee that if Connecticut doctors really backed reform, the Connecticut State Medical Society itself would be appearing before them.

The judiciary committee’s reactions were noncommittal, but some three weeks after the hearing the committee favorably reported an amended and more modest bill, allowing for doctors to prescribe birth control, but only for specific individual health needs. While it was the first time that any birth control bill had received a committee endorsement, birth control advocates voiced mixed reactions, with Katharine Hepburn terming it “much too conservative.” Although the Hartford Courant termed the favorable report “one of the surprises of the session,” the day before house floor action the Courant also reported that “opponents of the bill have been energetic in bringing pressure to bear upon their representatives ever since the bill received a favorable report.” The paper added that “A considerable number of legislators are loath to vote contrary to the wishes of constituents and equally unwilling to vote against the bill. A good many of the members of both houses are exceedingly anxious to avoid a record vote on the bill.”

When the committee’s bill was brought up for house floor debate on April 1, Bristol’s Epaphroditus Peck, as in 1929, led the fight for the proponents, joined by Marjory Cheney of Manchester and a new young Republican from Stratford, Raymond E. Baldwin. One of the three M.D.s in the house, Clinton’s David A. Fox, spoke against the bill, saying that passage would result in young people having “a bottle of gin in one hand and a birth control certificate in the other.” Legislative leaders attempted to avoid a recorded vote, but fifty-two members, all Democrats—and just two more than the required minimum—forced a formal tally. When the numbers were totaled, the bill was rejected by 172 to 76—a wide margin, but considerably closer than 1929’s 226 to 18. Nine women representatives voted in favor and ten against. The following day the judiciary committee’s favorable report was taken up in the senate. One of only two senate proponents told his colleagues that “The state has no business telling me or you or anybody else how we shall conduct our marital affairs.” His compatriot added that “some day we will laugh at our fear of passing such a bill,” but when a voice vote rejecting the bill was taken, reporters judged that only three or four of the thirty-three senators present voted aye.55

That legislative struggle and defeat mobilized a number of new medical supporters of birth control, and in very short order led to a significant alteration in the leadership—and the agenda—of the Connecticut League. Taking the lead in these changes was fifty-four year-old Yale public health professor Charles-Edward A. Winslow, who had founded the public health program at Yale and who had long known Porritt, the Hepburns, and Mrs. Day through their mutual earlier involvement in the Social Hygiene Association. Along with two gynecologist friends, A. Nowell Creadick and Yale faculty member Herbert Thoms, Winslow resolved that medical men ought to “take some rather active steps to lay a foundation” for a successful 1933 legislative effort. The first step, Winslow and his colleagues told other doctors, was “to reorganize the Connecticut Birth Control League so that it can be made a really vigorous and effective organization. What we expect to do is to concentrate our efforts entirely on the amendment that was proposed” in the 1931 legislature—i.e., authorizing doctors to provide birth control advice and supplies only to women whose health needs justified it—“and to build up an organization throughout the counties and towns of the state so that we can really exert some influence.”

The New Haven trio, along with two New Haven female supporters, Betty Whittemore and Elizabeth Reed, laid plans for a June 1 annual meeting of the CBCL and agreed that Creadick would become the league’s new president, “as it seems very important to have a medical man in that position and he seems by far the best fitted.” In advance of that session, however, Doctors Thoms and Creadick successfully brought the issue of birth control before the May 21 annual meeting of the Connecticut State Medical Society. Thoms had prepared a statement saying that the CSMS supported “legalizing the dissemination of contraceptive advice for medical purposes by licensed practitioners” as per the judiciary committee’s bill, and Creadick delivered a stem-winding speech on its behalf, explicitly denouncing the doctors in the state house who had failed to back that bill. “Dr. Creadick’s discussion evoked applause” from the delegates, the Society’s minutes recorded, and it was “voted (unanimously) … that the sentiments expressed in the above statement be approved by the Society.” Ten days later, at a luncheon at the New Haven Lawn Club, the CBCL elected Creadick as its new president and unanimously resolved to pursue a 1933 edition of the judiciary committee bill in the next legislature. Annie Porritt and Katharine Beach Day remained on the board, with Porritt’s daughter-in-law, Alison Hastings Porritt, becoming the new CBCL treasurer, and Mrs. Hepburn’s friend Sallie Pease being named Hartford County chairman.56

On the national scene the American Birth Control League continued to endorse practical nullification arguments while stressing that the actual opening of clinics, rather than Sanger’s emphasis upon appealing to the Congress, was the direction in which birth control activists should move. New England’s first public birth control clinic was opened in Providence in July 1931 by the newly formed Rhode Island Birth Control League, and encountered no legal difficulties, but Sanger, in an autobiographical book published in September, continued to call for winning “the ultimate victory through congressional legislation.” The Connecticut activists, now headquartered at Creadick’s office at 79 Trumbull Street in New Haven, took note of the Rhode Island step, but resolved that an educational campaign aimed particularly at rural legislators was their only option: “The Board felt that no step towards the establishment of clinics could be taken so long as the law makes penal the use of contraceptives, and thus puts any clinic in the position of being a school of crime.”57

In February 1932 Creadick, in conjunction with New Haven’s Leon Whitney, executive secretary of the American Eugenics Society, invited Margaret Sanger to town for a major speech, with Creadick informing Sanger that “the ladies of my Board are eager to meet you and entertain you.” New Haven Police Chief Philip T. Smith did not share those sentiments, and announced he would have Sanger arrested “if she says one word over the bounds” during her March 8 talk at the Fox College theater. Sanger drew a capacity crowd of fifteen hundred, including numerous police officers, but she was not interrupted, and Smith told reporters that “I don’t propose to make a martyr of any group.” Sanger thanked Creadick for the Connecticut League’s steadfast defense of her right to speak, writing that “I had to rub my eyes to remember that this was the year of 1932 and not back in the days of 1914.” Sanger added that she had come to the “definite conclusion … that no man or woman with Catholic affiliations has any moral right to hold a position of authority for the State. They cannot help but give their first allegiance to the Church and become subject to the demands of any high official of the Church.”⁵⁸

Sanger’s leading preoccupation remained her focus on pursuing a congressional reform bill, and in May 1932 both a Senate judiciary subcommittee and the House Ways and Means Committee held hearings on similar bills introduced by two openly noncommittal legislators, West Virginia Senator—and doctor—Henry D. Hatfield and North Carolina Representative Frank Hancock. Katharine Hepburn accompanied Sanger to both hearings, telling the House committee that birth control advocates were not opposed to large families. “I personally believe in large families. I have one.” Sanger herself stressed to the committee that birth control “does not mean the interruption of life after conception occurs.” The Senate committee, however, never even voted on the bill, and when the House one did, it was defeated by a margin of 19 to 4.59

In New England, however, birth control discussion was increasingly turning to clinics, not legislatures. Nowell Creadick acknowledged in a spring report to his CBCL colleagues that their emphasis upon winning modest future legislative reform “has brought us opposition and criticism from friends,” including some within the league, but Creadick and his fellow doctors remained opposed to what he termed “the flagrant violation method” of opening a clinic. There had been some talk of filing a court case to seek a judicial declaration that doctors were not breaking any law when they sought to protect their patients’ health, but Creadick and his colleagues noted that a suit “takes time and the outcome is uncertain. It will lead us nowhere except to permit any doctor to prescribe in his office to one of his patients.” Again at their instigation, however, the 1932 annual meeting of the Connecticut State Medical Society approved a resolution backing legislation which would legalize birth control in cases where “pregnancy would be detrimental to the health of the patient.”⁶⁰

Other members of the league, however, and particularly the group of Greenwich women, focused more and more on the question of simply opening a clinic. In May 1932 several of them, particularly Nancy Carnegie Rockefeller and Florence Borden Darrach, launched the Greenwich Committee for Maternal Health with a well-attended mass meeting at Greenwich High School that was addressed by Mrs. Darrach’s husband, a prominent doctor who had just stepped down as dean of Columbia University’s medical school. Nancy Rockefeller in particular had been in contact with New York birth control advocates for almost two years, and several weeks after the rally they took further encouragement when they learned that the Birth Control League of Massachusetts had just opened that state’s first clinic, the Brookline Mothers Health Office. By early August Rockefeller and her colleagues were committed to opening a clinic in Port Chester, New York, just across the state border, with the hope of subsequently moving it into Connecticut proper. Rockefeller asked Hannah Stone, still the director of Sanger’s New York Birth Control Clinical Research Bureau, to recommend a willing physician to them, and in early September 1932, Dr. Cheri Appel, a thirty-one year-old graduate of New York University Medical School, began seeing Connecticut patients at the Port Chester facility. At long last Connecticut—almost—had a clinic.⁶¹

Most of the Connecticut League’s work, however, continued to point toward lining up backers of a modest reform bill in advance of the 1933 legislature. In late August the league lost one of its three formative figures when Annie Porritt was killed in a Hartford auto accident. A decidedly formal woman—much unlike both Katharine Day and Katharine Hepburn—who had no interest in small talk and whom even her closest friends always called “Mrs. Porritt,” she had been as central as anyone during the league’s first decade, even if her role had receded some when the medical men had moved to the fore. In December Margaret Sanger delivered speeches in Hartford and at Wesleyan University in Middletown, but the more important event was the league’s recruitment of the incoming house majority leader, Raymond E. Baldwin of Stratford, as sponsor of its 1933 bill. The general election had returned Wilbur Cross to the governorship, and the Roosevelt tide had carried a narrow Democratic majority into the state senate, creating divided control of the legislature for the first time in twenty years. Baldwin was young, a relative liberal, and visibly independent of the J. Henry Roraback tradition of Connecticut Republicanism. While the Democrats might be the more liberal party on most issues, the heavy concentration of most Catholic officeholders in Democratic rather than Republican ranks increasingly made the latter party the vehicle of choice for the birth control advocates, and Baldwin was an ideal Republican champion.62

Baldwin’s House Bill 519 provided that the 1879 ban “shall not apply to [a] licensed physician when in his opinion pregnancy would be detrimental to the health of the patient.” The judiciary committee’s hearing on it took place on March 1, and the CBCL doctors recruited Dr. Charles W. Comfort, a top officer of the Connecticut State Medical Society, as the proponents’ principal speaker. Comfort described the bill as “a purely medical measure for the purpose of preserving the health of our women.” Then Hartford’s Dr. James Raglan Miller detailed how during the final six months of 1932 fifty-seven Connecticut women had died in pregnancy, at least nine from illegal abortions and at least five from heart or kidney problems that would not have proven fatal in the absence of pregnancy. Dr. Creadick presented the committee with some five thousand petition signatures endorsing the bill, including more than a thousand from Connecticut doctors—considerably more than half of the state’s practicing physicians. Opponents, however, countered by presenting four doctors of their own to supplement Louise Fisher of the Connecticut Council of Catholic Women, who had represented opponents eight years earlier in 1925. One of the opposing doctors warned that passage of the bill would result in “moral degeneracy,” while Mrs. Fisher declared that “the laws of nature and of God are violated by the use of devices preventing conception.” The only morally acceptable answer, she explained, was simple: “for the problems, both ethical and physical, there is but one solution, marital continence.”63

Eight weeks passed before the judiciary committee voted on Baldwin’s bill, and when it did, the result was an 8 to 8 tie. Five days later that unfavorable report went to the house floor, and floor leader Baldwin offered an amendment expressly limiting application of the bill’s medical exception to married women. Representative Peck of Bristol, a veteran from previous years, sought to emphasize that this year’s bill was being championed by doctors, not the league, but Republican Montgomery C. Tiers of Colebrook asserted that passage would “open wide the gates of prostitution,” and William J. Lyons of Norwalk insisted that the bill “gives physicians the right to kill.” Peck responded that “the real question is whether you have the right to impose your judgment on me and send me to jail if my judgment is not the same as yours,” and when the tally was taken, Baldwin’s amended bill passed by the impressive margin of 169 to 80. Republican representatives backed the measure by 151 to 35, while Democrats totaled 18 in favor and 45 opposed. Fifteen of eighteen women members voted in favor, and the Hartford Courant noted that while proponents had not previously been optimistic about their chances in the senate, the dramatic house margin now left them “greatly encouraged.”

Two days later, however, the senate without debate first rejected, by 18 to 12, the limiting amendment that Baldwin had added in the house, and then the bill itself, with twenty votes in the negative. Dr. Creadick responded by telling reporters that “We have come a long way in the past ten years” and vowing “two years of careful campaigning” to change the result come 1935, but the New Haven Journal-Courier decried the outcome as one that “inhibits medical freedom” and regretted how the opposition was “purely religious.”⁶⁴

Raymond Baldwin, however, was not ready to give up, and on May 9, at his initiative, the house “voted to insist” on its previous endorsement of his bill and appointed two members, Peck of Bristol and Helen Kitchell of Greenwich, to serve as a conference committee to discuss the bill further with the senate. A single opponent, Raymond J. Devlin, represented the senate, and on May 18 Peck and Kitchell presented the house with a further revised and weakened version of the original Baldwin bill. This newest version would authorize a doctor to provide birth control information and supplies to a married woman if her health in the doctor’s judgment called for such, so long as that doctor’s judgment was “concurred in by another licensed physician” who would be designated by the state health commissioner after a request was filed by the initial doctor. This new amendment, the Courant reported, “was drafted on information that it would be acceptable to a sufficient number of senators to insure adoption of the bill in that body.”

On May 23 the house adopted the new amendment on a vote of 149 to 45, with Representative Peck explaining quite explicitly that it had been prepared by a senator who previously had voted against the bill. The house then approved the bill itself, by an increased margin of 171 to 72, but the following day the senate simply tabled the entire matter, leaving the issue in abeyance. Among the bill’s ostensible proponents, however, vocal dissent from the further compromise represented by the final house bill was growing, and on May 26 Margaret Sanger sent identical telegrams to Nowell Creadick and to Katharine Hepburn: “Have read with amazement House bill suggesting consultation [with] two physicians for women [to] receive information. Sincerely hope you will protest such shortsighted legislation. I beg you not to accept such compromise with principle and fairness. Better to leave legislation as it is.” Hepburn cabled back that “[I] Entirely agree with you,” but further internal debate over that fundamental strategic choice was precluded when the senate, on June 6, on a motion by Hartford senator Joseph P. Cooney and without apparent opposition, tabled the bill indefinitely.65

In the wake of the 1933 battle, however, Nowell Creadick stepped down as president of the league and was briefly replaced by Hartford minister William T. Hooper, who himself resigned on grounds of ill health in May 1934. The Greenwich women continued to operate successfully their clinic facility in Port Chester, New York, with Dr. Appel seeing 395 women in the first twelve months of operation and then an additional 523 new patients in the clinic’s second year of existence. In November 1933, the league won a significant victory when the Connecticut League of Women Voters reversed their 1931 stance and voted by a narrow margin of 56 to 51 to endorse birth control, and most league activists looked forward to the 1935 legislature with considerable optimism.⁶⁶ Katharine Hepburn joined Margaret Sanger for two more sets of Washington congressional hearings on birth control bills that Sanger’s National Committee was backing, and on the senate side a “doctors’ bill” actually made it to the floor before finally being killed. One commentator observed that “There is little doubt that the bill would have passed had a fair roll-call vote been taken,” but a more widespread view was that increasing numbers of people viewed the legislative effort as largely a symbolic enterprise, since the availability of some contraceptives, particularly condoms, had increased very noticeably in the wake of the federal appellate court decisions in Youngs Rubber and another subsequent case. Some journalists warned that manufacturers who suggestively advertised “feminine hygiene” products as supposed contraceptives were taking advantage of this new atmosphere to misleadingly market many products that were far less dependable than physician-fitted diaphragms, and The New Republic contended that “the contraceptive business has outgrown the birth control movement.” Even Sanger admitted that “all progress has been through judicial decisions or interpretations” and conceded that her congressional bill would merely “incorporate in the federal laws the exemptions that have already been judicially recognized,” but she continued her legislative efforts in the new Congress that began early in 1935.67

In October 1934 the Connecticut League named Hepburn’s friend and neighbor Sallie Pease as its president and carefully scrutinized the upcoming legislative elections. The November results for the state senate were mixed, and both Pease and Dr. Creadick, now the league’s legislative chairman, attempted to count possible votes in what ostensibly looked like close to a prospective tie. In late January the 1935 birth control bill, a doctors’ measure, was introduced by Willington Representative Dr. Frank C. Converse, but prospects for a favorable report from the joint judiciary committee looked bleak, and hence house proponents attempted unsuccessfully to have the measure referred to the Public Health and Safety Committee instead. A judiciary committee hearing on the bill was not scheduled until April 5, but the weekly newspaper of the Hartford diocese significantly enlivened the biennial battle by publishing a harsh editorial attack on Katharine Hepburn and Margaret Sanger. “If the communistic theories imported from Russia are widely propagated in our American colleges, it seems quite probable that Mrs. Hepburn and Mrs. Sanger shall come forth from their protracted campaign crowned with the laurels of victory.” The Transcript additionally alleged that during Katharine Hepburn’s own childbirths, her entire family had been invited in to watch the event, and that suggestion was enough to propel Hepburn into sending the diocese what press reports termed “a sizzling telegram.” In the next issue, in an editorial prominently headlined “We Apologize,” the Transcript retracted its odd accusation.⁶⁸

The April 5 judiciary committee hearing took place in front of another overflow crowd, with the proponents’ prominent physicians—James Raglan Miller, Charles Comfort from the Medical Society, and Representative Converse—supplemented this year with New Haven attorney James Wayne Cooper and Episcopalian clergyman William T. Hooper, the former league president. Dr. Comfort declared that if the law was not changed, “it is high time there were some prosecutions under it,” and recommended that “if evidence of violation is to be secured, a law officer should be stationed in each bedroom, bathroom, and doctor’s office.” Cooper argued that without a medical exception, the law was probably unconstitutional under both the Connecticut Constitution and the Fourteenth Amendment to the U.S. Constitution, as an unreasonable infringement of guarantees protecting individual life and liberty. Reverend Hooper added that “It is the sacred right of each and every individual person to determine the size of his family.” For the opponents, four state senators were joined by four M.D.s, as well as by Louise Fisher, this year officially representing the Bishop of Hartford, Maurice F. McAuliffe, plus a spokesman for the Knights of Columbus. The Knights representative called for passage of a bill prohibiting lectures about birth control, and one James W. Fitzpatrick of Waterbury denounced the bill as “the last gesture of an outworn, discredited, degenerate capitalistic system.” In rebuttal, Katharine Hepburn—whom one paper described as having “a striking resemblance” to her now-famous daughter—emphasized that “the greatest bulwark against immorality is happy marriage, and this bill will promote early and happy marriages.”

Prospects for any affirmative committee action, however, looked very poor. Sallie Pease reported that “we thought that we had a fighting chance but the Senate has had an almost complete reversal. The reason is simply that they have had a FLOOD OF MAIL FROM THEIR CATHOLIC CONSTITUENTS,” and proponents would have to answer in kind. Hartford supporter Dr. Hilda Crosby Standish responded with a letter to the editor, asking rhetorically, “what kind of birth control shall we have in this state? Shall we have the boot-legged variety, which for the most part is dangerous to health, plus abortion for the foreign born who cannot read English?” Birth control proponents, she explained, were “mostly women interested in saving the health and lives of other women,” and what they proposed was “a safe and harmless method to be taught only by licensed physicians and only to married women who are ill.” Writing to state senators, Standish concluded, might help “save some woman’s life.” By early May, however, hopes had dimmed even further, with reports indicating that a tie vote existed within the judiciary committee and that the bill would not emerge, and in early June senate chairman Kenneth J. Bradley confirmed that the bill was indeed dead.69

On Tuesday, June 4, the Connecticut League held its annual luncheon meeting in Hartford. As Sallie Pease later remembered it, the mood was “most discouraging.” “We had failed dismally in the Legislature and it seemed as though nothing but gloom had descended over the Connecticut Birth Control movement.” Before lunch the board heard an up-to-the minute report on the legislative impasse, and at the luncheon itself that news was shared with a larger group. Afterward Pease was approached by a Hartford woman, Lillian Leiterman Joseloff, whose husband operated a successful grocery store chain. There had been talk for several years, particularly in New Haven, about expanding upon the Greenwich program and opening a clinic actually in Connecticut, but nothing had come of the talk. Lillian Joseloff, however, was more direct: “I would like to finance a clinic in Hartford.”

Sallie Pease was more than eager to accept and agree. As she later put it, “we were determined not to become discouraged” and simply “wait until the next Assembly to again undertake the same campaign which had gotten us nowhere for the last twelve years.” Joseloff’s offer to support the first year of a clinic’s operation was more than enough to propel Sallie Pease into immediate action, and by the very next day she was writing to friends and potential advisors, soliciting their help. In less than three weeks’ time Pease put together an organizational structure and a board of sponsors for what would be called the Hartford Maternal Health Center, recruited two principal physicians, Hilda Crosby Standish and Eleanor Taylor Calverly, to see patients and fit diaphragms, and endorsed Dr. Standish’s plan to rent four rooms on the ground floor of an apartment building at 100 Retreat Avenue in Hartford, directly across from Hartford Hospital, for the clinic’s physical space. Standish had visited Sanger’s Clinical Research Bureau several times while she had been attending medical school in New York, and Pease herself made several quick visits to gain pointers from clinics operating in nearby states. On June 26, twenty-one members of the new board of sponsors attended a founding meeting at which Pease and Standish detailed their plans for the clinic, which would be open six hours every day to make appointments for the two afternoons each week—Tuesday and Friday—when the physicians would see patients. Standish aimed to hold the first actual clinic session on Tuesday afternoon, July 9—and, thirteen days later, she did.⁷⁰

Pease had recruited an impressive board of sponsors, but she, Standish, and their colleagues had two principal initial fears: publicity and legal vulnerability. One of her most important board recruits, prominent young attorney Lucius F. Robinson, Jr., gave her reassurance on the second score, and the Hartford press itself, Pease later explained, helped on the first: “when we were gathering people together in order to sponsor our clinic it reached the newspapers. We went to the newspapers, asked them to withhold the story for a while, told them our aims, our backers, and gave them full information.” They went along, and throughout the first three months of the Hartford clinic’s successful operation not a word of its existence appeared in either of Hartford’s two newspapers.

Since “the only advertising was by person to person,” the clinic’s initial numbers were modest, with a total of fifty-three patients seen by its doctors in the first eleven weeks of operation. Additionally, Pease and Standish mandated purposely strict rules as to which women could be seen by clinic doctors: “Married, living with husband, at least one child unless physically unfit for pregnancy, physically or economically unable to have another pregnancy at present and unable to pay for private care.” Fiscally the clinic—which cost a modest two hundred and fifty dollars per month to operate—was separate from the Connecticut League, with its own distinct—but very heavily overlapping—board, but physically the two organizations were hardly distinguishable, as the league moved its own office into the clinic’s rooms at 100 Retreat Avenue in early September.71

The Hartford clinic’s publicity-free inception came to a sudden and unplanned end when Katharine Hepburn mentioned the new facility during a talk at Connecticut State College in Storrs on the evening of October 23 and the Associated Press put a story on the wire, thus forcing the hands of the Hartford newspapers. Lucius F. Robinson, Jr., moved quickly to head off any problems: “The birth control clinic confines itself strictly to advising married patients whose health, in the opinion of competent medical experts, requires the giving of such service,” he told the press. “I do not believe that the” 1879 anticontraception statute “was intended by its framers to preclude such action. If it is to be construed otherwise, then I believe that grave doubts exist as to its constitutionality.”

Hilda Standish was surprised by the talk that there might be an actual threat of prosecution, but the Hartford papers said that “a complaint” had been filed with city prosecutor Nicholas F. Rago on October 24 and that “the possibility of legal action” was being studied. “No warrants for arrests had been issued by mid-afternoon,” the Hartford Times ominously reported, and the next morning’s Courant featured an unnamed clinic official—probably Sallie Pease—saying she was “awfully upset that the whole thing has come out so publicly. We have felt that our best work could be done privately, in cooperation with doctors and social workers” who referred appropriate needy patients. “We realize that the subject is controversial and we have no desire for antagonism.”

Pease and Standish were nonetheless confident “that it was such a stupid law [that] it would never stand up in court,” and the Connecticut press wasted no time in coming to the clinic’s defense. The Hartford Times supportively declared that the clinic operators “have not set out to defy the law but to carry out a medical and sociological service,” and the New Haven Journal-Courier emphasized that there had never been a known prosecution under the 1879 law. “Its enforcement would require a police surveillance over the intimacies of family life [that is] apparently impractical.” But, the paper added, “whether such [birth control] advice can be forbidden under the state and federal constitutions is a question requiring settlement.”

On October 29, with prosecutors having made no move, the Maternal Health Center’s board met to review the situation. Lucius Robinson reported that Rago “does not wish to prosecute unless pressure is brought” upon him, and while there was some possibility that either Pease or Standish might be arrested, Robinson full well expected that nothing further would come of the matter. Dr. Standish asked the board “if some patients could be taken for economic reasons only,” but the issue was parried and it was reiterated “that there should be a strict rule that no patient should be taken unless she were referred directly by a recognized social worker or physician and that her social history should be checked up.” Robinson additionally recommended that each patient should sign her case history, and that “there must be a medical reason and only those whose health requires information should be accepted at present.”72

The brief but successful Hartford crisis convinced the Greenwich women that they now could safely move their Port Chester clinic operation into Connecticut, and on November 15 the Greenwich Maternal Health Center saw its first patient in its new quarters at 191 Lake Avenue in Greenwich. Florence Borden Darrach, the chairman of the Greenwich group, had solicited an extensive review of their possible legal vulnerability from a prominent lawyer who lived in Greenwich, Luke B. Lockwood, and it at least partially reassured the women who reviewed it. Under the 1879 statute, now Section 6246 of the Connecticut Code, and a companion “accessory” statute, Section 6562, which provided for punishment of anyone who “aided or abetted” the commission of a substantive offense under 6246, it would first be necessary, Lockwood pointed out, for a prosecutor to prove that a female patient “had actually used the articles in question for the purpose of preventing conception, and second that the person charged with accessoryship did actually lend assistance to the principal. As you can imagine,” he went on, “the practical difficulties in the way of proving guilt under Section 6246 are very great and I doubt whether evidence could ever legally be obtained which would result in a conviction.” However, Lockwood added, “the question of whether or not a conviction could be obtained is entirely different from the question of whether or not the activities in question are legal or illegal,” and “it must be obvious … that the activities are illegal but that the chance of a conviction is fairly remote.” Of much greater practical concern, Lockwood warned, was a different provision also dating from the 1879 statute, Section 6244, which prohibited the possession of “any article or instrument of indecent or immoral use or purpose,” which Lockwood feared might be applied to diaphragms and other birth control supplies. In light of “the very real danger of prosecution” under that provision, anyone working for the Greenwich clinic “should be advised of the danger involved.” “I cannot help but feel,” he concluded, “that any such activity would be very unwise.”73

Lockwood’s comprehensive but cautious counsel did not cause the Greenwich women to hesitate, and as clinic operations moved forward both there and in Hartford, Sallie Pease became convinced that the extensive newspaper publicity had been all to the good, as the number of patient referrals increased steadily. New Haven and Stamford women were discussing opening clinics in their cities, and New Britain and Winsted supporters were planning to drive women from those towns to the Hartford clinic. Patient acceptance rules were being gradually liberalized, and a favorable early 1936 federal district court decision in a New York case involving birth control supplies that had been shipped from Japan to Dr. Hannah Stone was read by the Connecticut women as another sign that any possible legal problems could be overcome. When both Katharine Hepburn and Dr. Standish spoke at a January 13 meeting of Hartford birth control supporters, the Courant gave the event prominent coverage, and noted Standish’s report that the Hartford clinic had now had over two hundred patients, of whom, she added, “more than 50 per cent were Catholics.”

The printing of that statistic, however, was enough to energize one Hartford priest, Reverend Andrew J. Kelly of St. Anthony’s Roman Catholic Church, who the following Sunday alleged that the Hartford Public Welfare Department and doctors at Hartford Hospital were instructing women clients to go the Maternal Health Center under the threat of losing aid if they did not. “Busybody humanitarians from West Hartford,” a wealthy suburb, should not “foist their kind of morality” on city residents, Kelly declared. Katharine Hepburn immediately denounced the allegation of coercion, but welfare department officials and hospital doctors offered only vague comments on the issue of referrals, with one physician telling the Courant that “It is too bad the subject has to be brought up.” Sallie Pease bluntly responded that “It’s a lucky thing that there are humanitarians in West Hartford who believe that it is merciful to save the life of a mother of eight children,” and the story quickly subsided. Several weeks later Pease in a Boston talk jokingly thanked Father Kelly for his help, saying “We have since been getting his parishioners,” and advising fellow birth control supporters that “I cannot make too strong an appeal [for you] to secure publicity every way you can.”74

Throughout the spring and summer of 1936 the Connecticut clinic facilities continued to expand. A New Haven clinic began operating on May 11, and a Stamford one opened several weeks later. The Greenwich women began providing “visiting” clinic services in Danbury, Westport, and then Norwalk, and the Hartford clinic expanded its patient hours to three afternoons a week. Doctors Standish and Calverly, and Mrs. Hepburn, all kept up a heavy schedule of speaking engagements before church and women’s groups, and word of the league’s clinic services spread more and more widely. When the league’s annual meeting took place in Hartford in mid-June, Sallie Pease stressed that “The opening of more and more clinics all over the State is the work cut out for the League.” There had been ongoing talk as to whether any statutory reform effort should be mounted in the upcoming 1937 legislature, or whether it would be better to “continue as we are now” and “‘let a sleeping dog lie.’” At the meeting “it was decided to leave it entirely in the hands of the doctors and for the League to take no part unless it was requested to do so.” Worries about actual legal vulnerability under the existing statute had almost entirely ceased, as prosecutors to date had done nothing, and in early September Lucius Robinson confidently predicted that “I doubt very much if they ever do.”⁷⁵

On December 7, 1936, the U.S. Court of Appeals for the Second Circuit gave birth control proponents their most significant legal achievement ever when it affirmed the earlier district court ruling against the government’s efforts to seize birth control devices that had been shipped to Dr. Hannah Stone from Japan. Stone and Margaret Sanger’s lawyer, Morris Ernst, immediately heralded the ruling, United States v. One Package, as “the end of birth control laws,” and later called the decision “the successful termination of a 60 year struggle.” By holding that the federal 1873 Comstock statute could not be applied in ways that obstructed public health, the appellate decision—much like the New York ruling in Sanger’s case almost two decades earlier—effectively meant that birth control could be prescribed and distributed in all instances where doctors believed that the avoidance of pregnancy would be beneficial to a woman’s health. Some commentators read the decision more modestly than Ernst, but most observers agreed that it was likely the final word, as the chances of review by the U.S. Supreme Court seemed slim at best. Sanger and her colleagues, including Katharine Hepburn, held two days of discussions in New York about the decision, and Hepburn emphasized that neither in Congress nor in Connecticut was there any practical value to further legislative efforts: with both clinics and the necessary supplies now fully available, Ernst was right: “I think we should say we have won.” Even Sanger was now persuaded, and she heralded the ruling as a long-sought triumph, “an emancipation proclamation to the motherhood of America.” Through the judiciary, she said, “an informed and potent public opinion finally found expression,” and legal scholars both then and in later years wholeheartedly agreed. The May 1937 issue of the Columbia Law Review observed that “it is difficult to escape the conclusion that the Comstock Act … has been almost emasculated by judicial nullification,” and one respected commentator later termed the Youngs Rubber to One Package set of holdings “a striking illustration of the court[s] adjusting a statute to changing public information and sentiment.”76

Public opinion polling—just beginning to become dependable in the late 1930s—appeared to support Sanger’s interpretation: a clear consensus now existed among the American people that birth control information and supplies should be fully available to those married women and couples who desired them. A May 1936 American Institute for Public Opinion query asked respondents, “Should the distribution of information on birth control be made legal?,” and 70 percent of those who expressed an opinion said yes. A Fortune magazine survey several weeks later asked “Do you believe in the teaching and practice of birth control?,” a decidedly more intimate question, and received 63 percent yes. In July 1937 the American Institute asked “Do you favor the birth control movement?,” and found a 71 percent yes among those who offered an opinion. When the Ladies Home Journal asked women respondents “Are you in favor of birth control?,” 79 percent answered yes, including 51 percent of Catholic women. In 1937 North Carolina became the first of several states to offer birth control information through its public health program, and when in October 1938 the American Institute, picking up on this development, asked “Would you like to see a government agency furnish birth control information to married people who want it?,” 62 percent said yes and only 24 percent said no. By late 1939 those proportions had shifted to 71 percent yes and 18 percent no.77

One group that had been lagging significantly behind American public opinion, however, was organized medicine. While the Connecticut State Medical Society had endorsed the legalization of birth control back in 1931, the premier national doctors’ group, the American Medical Association (AMA), had avoided any affirmative statement despite intensive efforts by birth control proponents, particularly Dr. Robert L. Dickinson, to get the Association on record. Dickinson and Morris Ernst saw the One Package decision as a significant aid in prodding the AMA forward, and when U.S. Attorney General Homer Cummings announced in late January 1937 that the government would not even appeal the Second Circuit’s ruling to the Supreme Court, Ernst and Sanger’s National Committee heralded the legal development as “the liberation of the medical profession.” Some doctors, however, and particularly the Director of the AMA’s Bureau of Legal Medicine and Legislation, Dr. W C. Woodward, took a decidedly different stance toward One Package. In early April the AMA Journal editorialized that the decision “has no reference to the right of physicians to advise the practice of contraception … or to prescribe or supply articles for the prevention of conception,” and explicitly criticized the National Committee’s statements: “This propaganda is essentially misleading.” When Ernst and several prominent colleagues submitted a letter of rebuttal, Dr. Woodward simply hardened the Journal’s stance: “the committee’s propaganda seemed likely to bring physicians unwittingly into conflict with federal and state laws.”

But Robert Dickinson and other birth control supporters on the AMA’s Committee on Contraceptive Practices, particularly Massachusetts’s Dr. John Rock, now had a clear majority of votes, and on June 8, the AMA’s House of Delegates formally adopted a committee report endorsing, the dissemination and teaching of the best methods of birth control. The New York Times called the action a “landmark in the annals of American medicine,” and printed extensive excerpts from the committee’s report in a front-page story. The AMA report read as if it could have been drafted by Sanger or Ernst, and it went out of its way to say that One Package also ought to control the remaining laws in places like Connecticut and Massachusetts: “Although the statutes in force in the several states that forbid the dissemination of information concerning methods for the prevention of conception do not in express terms exempt physicians from their operation, it seems fair nevertheless to assume that the state courts, if called on to construe them, will adopt lines of reasoning similar to those followed in the case cited and in other cases decided by the United States courts, leaving physicians free to give information concerning contraception when required to meet the medical needs of patients.” Sanger was so pleased that she termed the AMA action “really a greater victory” than One Package itself, and with seemingly all obstacles to the establishment of clinics all across the United States now removed, she and her colleagues dissolved the National Committee and declared victory.78

The Connecticut Birth Control League was happily busy operating its four clinic facilities, all of which continued to chalk up steadily increasing numbers of new patients. The league and Connecticut’s doctors had passed up any 1937 legislative campaign, but the issue nonetheless had received helpful publicity when one of the legislature’s most bombastic members, Representative John G. Fitzgerald of Ansonia, had introduced an antibirth control bill specifying that “All members of the legislature who advocate birth control must be sterilized within 30 days after adjournment, by surgeons appointed by the government.”⁷⁹ One young member of the Connecticut League, however, Catherine Jackson Tilson, a recent graduate of Yale Law School and a former patient of Hannah Stone’s, thought that the rosy legal predictions being offered by Ernst and Sanger were highly misleading, and shared her opinion both with her Connecticut colleagues and with Sanger. Tilson feared that optimistic observations “may do us considerable harm,” particularly in Connecticut, because they raised the danger of “antagonizing now latent opposition.” She personally believed that any Connecticut court case would come out favorably, but “an adverse decision is not without the realms of possibility.” Morris Ernst, however, remained fully optimistic, and he told a Hartford audience of birth control supporters that any legal risks were minimal: “I am of the opinion that no locality will successfully attack any practice approved by the federal courts.”⁸⁰

On June 3, 1937, however—just five days before the AMA’s formal ratification of its landmark birth control resolution—Lieutenant Charles Duffee of the Salem Police Department and three colleagues, armed with a search warrant signed by John J. McGrath of the Salem Board of Health, arrived at the North Shore Mothers Health Center in Salem, one of seven birth control clinics now being operated by the Birth Control League of Massachusetts. As they knew—for undercover policewoman Beatrice V Clark and a female colleague had just left the clinic—Dr. Lucille Lord-Heinstein was in the midst of seeing patients, and the patients were detained and questioned while the officers packed up the clinic’s medical records and supplies. While the staff “displayed marked calmness and at times amusement at” the police methods, Dr. Lord-Heinstein, nurse Flora Rand, and social worker Carolyn T. Gardner were taken to Salem police headquarters for questioning, and all three women were charged with violating the Massachusetts birth control statute by distributing contraceptive devices.

The Salem clinic had been operating for seven months, and the BCLM had heralded its opening by announcing that it had “the backing of a large committee from Salem and nearby towns, comprised of leading physicians, ministers, public spirited citizens and representatives from the boards of welfare agencies.” The BCLM had also noted that in the opinion of its lawyers, the prominent Boston firm of Palmer, Dodge, “advice given for medical reasons does not come under prohibitions of our statutes,” and in April 1937, when the chief of police in Fitchburg and local Catholic clergy had raised questions about a new clinic that the league had opened there, the league’s attorneys had successfully impressed the chief by stressing that six other clinics were already operating across the state.

But when the three Salem defendants appeared in court on June 22, Judge George B. Sears refused to return the patient records that had been seized and set trial for July 13. The prosecution’s first witness that day was Policewoman Clark, who testified that she had first visited the Salem clinic in late May under a false name, and then had returned on June 3 along with a civilian woman, Rose Barlotta, whom she had paid for her assistance. Mrs. Barlotta had been examined, was found to have severe hypertension, and was fitted for a diaphragm, which she had then turned over to the officers as evidence. Defense attorney Robert G. Dodge put all three defendants, plus three well-known Massachusetts doctors and prominent clinic chairwoman Dorothy Bradford on the stand, and Judge Sears said he would reserve his decision. Dodge filed a posttrial brief that Sears commended as “very able,” but one week later, on July 20, Sears entered a verdict citing the 191 Massachusetts Supreme Judicial Court affirmation of Van Kleec Allison’s conviction and concluding that “I must find the defendant guilty” even though they did not believe “they were acting contrary to law.” He imposed a fine of one hundred dollars upon each of the defendants, and the league filed notices of appeal.81

Two weeks later, on the evening of August 2, vice squad officer interrupted a clinic session at the Brookline Mothers Health Office the Massachusetts League’s oldest facility. They seized all of the clinic’ supplies, one medical file, and identified and questioned the eight patients who were present. “The raid was conducted in a very courteous manner,” Dr. Ilia Galleani reported, “except when one of the lieutenants asked one of the new patients if she were a single woman. To this she replied indignantly that she had seven children and had had eight.” Criminal charges were soon filed against Dr. Galleani, and the very next morning Boston police arrived at the South End Mother Health Office. Lacking a warrant, the clinic staff refused them entry and promptly removed all records and supplies from the office before the officers returned that afternoon. At that same time other officer visited the headquarters of the Massachusetts League and questioned president Linda M. Hawkridge and staff member Caroline Carter Davis, both of whom were charged and then arraigned the following day. Shell-shocked by the rapid-fire succession of raids and arrests, the league board, with only one member dissenting, quickly voted to close all clinics in the state “temporarily.”

Linda Hawkridge sought to take a somewhat more confident stance in public than the doctors and league members exhibited in private “We gladly welcome this investigation, which we hope will clarify the Massachusetts law,” she told reporters. “We have no intention of breaking the law, and we have nothing to hide. We have never denied that we gave contraceptive advice, for we consider that a doctor has the right to do what he can to preserve the life of his patients.”⁸²

Ilia Galleani’s September 15 trial was the next legal step for the Massachusetts League. Two Brookline police officers testified that they had gathered their evidence against Dr. Galleani by secretly sitting under a clinic window one evening a week before the raid and listening to her conversations with patients. Galleani herself took the stand, and defense attorney John M. Raymond attempted to emphasize the One Package precedent to Judge Philip S. Parker, but Parker, like Sears in the Salem case, was unpersuaded. “There is a great difference, in my mind between advice given privately by a physician in a particular case to preserve life and an office that is openly conducted like this with free administration and advice to anybody who might apply.” “To open a clinic,” he added, “does not come within the purview of the statute or of the decisions, and to open a clinic may lead to abuse.… Of course,” Parker went on, “contraception may be a good thing. Many people believe in it—I do—although a large number of persons in our community do not believe in it. But there you get into the legislative field, and it would be absolutely improper for a court to say that birth control ought to be practiced. That is a legislative proceeding entirely. While I might be in favor of it, it is not my province to pass on that question.” Dr. Galleani, he said, was guilty, and would be fined four hundred dollars.83

Within the following week the cases against the three Salem defendants, plus a fourth colleague, clinic volunteer Pamelia Ferris, were set for a hearing in Superior Court, and initial proceedings took place in the cases against Hawkridge and Davis. On October 6 they were found guilty and fined two hundred dollars each, and on October 15 Essex County Superior Court Judge Wilford D. Gray upheld Sears’s verdicts against Lord-Heinstein, Gardner, and Rand, and also levied a hundred-dollar fine against Ferris. BCLM leaders were most pessimistic about the cases against Hawkridge and Davis, who were being prosecuted for the general distribution of birth control literature, rather than for medical instruction of individual patients, as in the Salem and Brookline cases, but everyone involved was shaken. Ilia Galleani told league vice-president Loraine Campbell, “How sad that all that we worked for has been suddenly smashed. I sincerely hope that it will be temporary for the sake of all those poor women who needed the advice so badly.… But let us hope that the higher courts will judge in our favor. It seems difficult to believe that they will not.”

League activists were upset that most of the trial proceedings had been marked by an “absolute failure to show what our work really consisted of,” but the lawyers managed to postpone any further proceedings in either the Brookline or Boston cases while appeals of the Salem convictions went forward to the Massachusetts Supreme Judicial Court. In New York, preeminent birth control lawyer Morris Ernst made light of the Massachusetts worries. “It will take an aroused medical profession to influence the judiciary in Massachusetts,” he told one medical audience, but “I am not much worried.” “If the cases in Boston are fought, as I am sure they will be, in a forthright manner, and if you doctors and lawyers and people with the same point of view will pass your resolutions along to the birth control people in Boston and will give them support, there is no question of the outcome. I say that for this reason: I do not believe there is any such thing as law in the abstract.… The law is nothing more or less than the pressure of public opinion at any particular time on particular judges.”84

Fifteen Massachusetts doctors, including John Rock, wrote to the membership of the Massachusetts Medical Society to ask that each doctor join in a statement of protest. “Two fundamental rights of physicians have been violated,” they declared. “First, in the seizure and holding of confidential medical records by the police; second, by police interference with the right of physicians to practice medicine in accordance with accepted methods.” Both One Package and the June AMA resolution had backed “the rights of physicians to give contraceptive advice,” they emphasized, and within several weeks more than seventeen hundred Massachusetts doctors, more than one third of those in the state, joined their petition of protest.

Ernst might hope that such statements would be determinative, but the Massachusetts women already were seeking their lawyers’ reassurance that the Salem case could be appealed to the U.S. Supreme Court in the event that the Massachusetts court, which would hear the appeal in early February 1938, affirmed rather than reversed the convictions. One person, however, who was vocally unhappy with the way that Massachusetts matters were being handled was Katharine Houghton Hepburn, and as usual she minced no words in stating her opinion. Telling Massachusetts League president Linda Hawkridge that “I am sorry to have said anything that annoyed you,” Hepburn nonetheless insisted that the Massachusetts women were erring seriously: “I can’t help feeling that going to jail is better tactics than paying fines. Have no fines been paid anywhere in Massachusetts? I spoke in Springfield and they had just closed up the clinic without the police even asking them to. It just seemed to me foolish.” Perhaps the Massachusetts League needed more aggressive lawyers, Hepburn volunteered, such as New York’s Morris Ernst.⁸⁵

Aside from Hepburn, the Connecticut women had paid the Massachusetts crisis relatively little heed. Busy with expanding and extending clinic operations across the state, Sallie Pease and her colleagues pressed ahead with plans to start additional clinics. The Hartford Maternal Health Center, helped by twelve volunteer interns from Hartford Hospital, had seen almost seven hundred new patients in calendar 1937. A New London doctor, Dorothea H. Scoville, was fitting diaphragms for every needy woman whom league supporters in that area referred to her, and a new clinic had just opened in New Britain. Essential to Pease’s expansion plans was the hiring of a skilled, part-time field worker, someone who could approach and draw together interested potential clinic sponsors in the two major Connecticut cities, Bridgeport and Waterbury, that still lacked clinics. Seeking to reach beyond the very modest fifteen-hundred-dollar annual budget of the Connecticut League, Pease mentioned her hope to Clarence J. Gamble, a wealthy and idiosyncratic nonpracticing Pennsylvania doctor who was affiliated with neither Sanger nor the American Birth Control League but who was actively subsidizing the establishment of new clinics. Gamble told Pease he would be happy to pay half of the salary for such a field worker, and recommended that the league hire forty-five-year-old Leah Tapper Cadbury, a Haverford native and Bryn Mawr graduate with an “attractive personality” who had done birth control work in Philadelphia for Gamble after previously serving as a volunteer nurse during World War I and as executive secretary of the Women’s Educational and Industrial Union of Boston. Cadbury, Gamble said, “would be very effective as an organizer,” and Pease, overjoyed by the recommendation, immediately agreed and sent Cadbury a telegram inviting her to Hartford two days later. On November 15, 1937, Leah Cadbury—with one half her salary paid by Gamble, and the other half by Hartford’s Lillian Joseloff—began work in Bridgeport for the Connecticut League.86

Cadbury’s work in Bridgeport went exceedingly well, and on January 25, 1938, she spoke with her initial Waterbury contact, Anne Chase Hart, a daughter of one of Waterbury’s most prominent families, the founders of the Chase Brass Company, and visited with two local physicians, Joseph L. Hetzel and Waterbury Medical Association president J. Harold Root, both of whom reacted enthusiastically to the idea of a Waterbury clinic. Anne Hart gave Cadbury the names of other Waterbury women, including her sisters Edith Chase and Mildred Chase Ely, and her sister-in-law, Florence Chase, who might be supportive, and on January 29 Cadbury returned to Waterbury intent on organizing an initial meeting of potential clinic sponsors. Some Waterbury residents were preoccupied by the burgeoning news reports of the financial scandals within the city government, but Cadbury was able to schedule a meeting for Monday afternoon, February 7, at the downtown home of Ruth Northrop, and also visited with Waterbury Hospital superintendent Dr. B. Henry Mason and with several Protestant clergymen. She tried firmly but unsuccessfully to persuade Mason to attend the meeting, telling him it would be “quite inadequate without you.” “The public medical service in Waterbury is so completely your province that we can make little progress without your direction and criticism.” One of the clergymen did agree to attend, and another recommended, perhaps surprisingly, that she call on two Roman Catholic clergymen, Eugene P. Cryne and Joseph Valdambrini, and she did. As Cadbury reported back, “I have seen both Father Cryne and Father Valdambrini. Each explained that he could not possibly come to the meeting, but we had, to me, an interesting and delightful interview. Thank you for your suggestion that I see them.”

The two-hour February 7 meeting at Mrs. Northrop’s drew thirty-two women and the sole clergyman. Cadbury had carefully arranged for Lillian Joseloff, Dr. Eleanor Calverly, and administrator Mabel Robbins from the Hartford clinic to arrive during a break halfway through the session, but first she spoke about the prospects for a Waterbury clinic and invited those present to offer their comments. “Some people thought that no immediate action could be taken at this meeting because they didn’t want to rush into something while they are all upset by the scandals in their city government,” Cadbury reported, but then “Miss Edith Chase suggested, and others agreed, that they all ought to go home and think over the possibility of starting a clinic, and then get together about a month hence, when they could decide if they would like to try to open a clinic with help from the League.” Then Dr. Calverly described to the group how a clinic operates, and the meeting adjourned. “I am much encouraged,” Cadbury wrote to Sallie Pease, “first by the number and the quality of the women there; and second by their suggesting themselves a plan for future activity instead of leaving this to me.”87

Cadbury quickly followed up on her initial success. Writing to Edith Chase to thank her for her “very wise” suggestion of a second meeting, Cadbury said she wanted to send out a letter describing the first session to people who were not present but might be interested, and hoped she could include a date and place for the second meeting. Chase responded by suggesting Monday afternoon February 28 at her sister Mildred Ely’s home, but emphasized to Cadbury that the Waterbury women had a particular concern: “Many are interested in the legal side of the matter—and it would be worthwhile, I think, to have some sheets of printed matter showing exactly the Connecticut laws on the subject.” Cadbury then sent out more than ninety copies of a letter describing the first meeting, inviting people to the second, and enclosing several sheets that discussed Connecticut clinics and the law. “A few doctors in the city are already giving contraceptive advice to poorer residents at little or no charge,” she informed her recipients. “It was the feeling of the group” at the first meeting, “however, that a local, properly organized, birth control service is much needed; and that, even if some obstacles now stand in the way, means may be found to remove or avoid them.” Cadbury stated the potential obstacles frankly: “Will some groups in the city be actively hostile?” “Is it dangerous to attempt anything in Waterbury just now which may be illegal?” She closed by encouraging everyone to visit the Hartford clinic whenever might be convenient, and wrote to Sallie Pease that her expectations for Waterbury were very bright: after the second meeting, she estimated, “I doubt if there will be any need for me, even in organizing a committee for a center. All of the women interested are experienced in such work—they know how to form good committees, and how to raise money.”

Cadbury’s upbeat portrayal of the first meeting, however, drew gentle dissents from some recipients of her letter. Mildred Ely emphasized that while she was happy to host the second session to discuss a clinic, “I am not yet interested enough in it to sponsor it here in Waterbury and am very decidedly against starting a clinic here at the present time,” since other existing local charities were already finding it difficult to secure funds and “it would be almost impossible to raise enough money to get it started.” Ely’s sister Anne Hart, Cadbury’s initial contact, sounded a similar but different note while apologizing that she would be out of the state and unable to attend: “I do feel that there is much feeling of opposition right now in town and think a later time might be better.” Edith Chase and others, however, told Cadbury that the number one reason for hesitation was fear of legal trouble. “I have the greatest sympathy with the dread which many of you feel about any possible difficulties with the law,” Cadbury wrote one concerned woman, but “it appears incredible, however, that any group as astute as the Catholics could attempt a prosecution under the Connecticut law.”88

Only twenty-two people attended the February 28 meeting, in part because of bad weather, but two doctors, two ministers, a hospital social worker, a female employment supervisor at Scovill Brass, and an experienced former nurse were among those who did. The two doctors spoke condescendingly about how inept poorer patients had proven to be with diaphragm usage, and Miss Ruth A. Davis, the social worker, indicated that she sometimes provided contraceptive advice to hospital clinic patients. “The two ministers,” Leah Cadbury later reported, “were surprised to hear that reputable doctors gave contraceptive advice. They had often wanted it for their parishioners, but had not dared to ask for it, thinking that the doctors would be offended.”

But then the most significant comment in the meeting, indeed the most significant event in Leah Cadbury’s time in Waterbury, suddenly took place. Clara Lee McTernan, a thirty-nine-year-old former nurse who had not been present at the first meeting, “offered to try to start a transportation service,” taking Waterbury women to the Hartford clinic. Until that moment, Leah Cadbury’s initially optimistic hopes for Waterbury had looked increasingly uncertain. The Chase sisters had appeared to be backing away from any possible sponsorship of a clinic, legal concerns appeared widespread, the disappointing turnout for the second meeting was ten people fewer than had attended the first, and Cadbury’s own time in Connecticut was soon coming to an end. But Clara McTernan meant what she said, and Millicent Pond, the Scovill supervisor, quickly volunteered that she would be willing to drive. For Leah Cadbury, the remainder of the discussion was of lesser significance, and afterward she spoke with both McTernan and Pond. The very next day Clara McTernan drove to Hartford to meet the clinic staff there, and Mabel Robbins “showed her all the workings of the Hartford Center.”89

Writing to Sallie Pease, Leah Cadbury could scarcely contain her delight at the emergence of Clara McTernan. “I believe that she will accomplish something,” Cadbury predicted. McTernan had lived in Waterbury for six years, since her 1932 marriage to widower Charles C. McTernan, seventeen years her senior and founder and headmaster of the McTernan School for boys. Clara, a nursing graduate of St. Barnabas Hospital in Newark, had initially worked as a nurse in the Newark public schools and at a summer camp that Charles McTernan and his first wife operated on the Connecticut shore in Old Saybrook. Two years after the 1930 death of the first Mrs. McTernan, Clara had married Charles, who had two college-age sons, and had moved to Waterbury and begun working at the family school that adjoined their home on Columbia Boulevard. “She has been much concerned,” Leah Cadbury told Pease, “at the lack of facilities for giving the poorer women contraceptive advice.” As a school nurse in Newark “she made constant use of the maternal health center there, and is entirely familiar with clinic service.” And, given the social prominence of the McTernan School, “she is in touch with many people in Waterbury.”

Mabel Robbins had given McTernan the names of all Waterbury-area women who had visited or written the Hartford clinic. “Her immediate plan,” Cadbury explained, “is to go to some ministers and directors of welfare agencies and offer to arrange transportation of women whom they may want to send to Hartford, provided they will take care of the clinic fee of three dollars for each patient. She hopes to make arrangements for four women by the end of the month.” Additionally, Cadbury would pass on to McTernan the “card file of more than 100 names of the people with whom I have had some contact, or of whose real interest I have learned, so that she will not have to break ground anew for herself, but she has a hard job ahead of her.” The Chase sisters, Cadbury conceded, “do not want to take any active part in the work,” although they might be persuaded to make modest financial contributions. Any idea of trying to establish an independent clinic, Cadbury went on, was almost certainly unwise, particularly because fund-raising obstacles might be heightened further if emergency tax assessments were imposed on residents to make up the large municipal deficit that was one product of the city’s newly revealed financial scandals. But also, Cadbury mentioned for the first time, trying to finance an independent Waterbury clinic might simply prove unnecessary as “there seems to be a good chance of introducing birth control into the maternal health service of the Chase Dispensary, in the not impossibly distant future.”90

Little more than two weeks after her initial visit to the Hartford clinic, Clara McTernan took her first two patients there for a fitting. Leah Cadbury, back home in Pennsylvania, told McTernan she was overjoyed at the news: “Eighteen days to get going! You compete with radishes for speed!… I have been thinking with much appreciation of your courage and determination to start some kind of birth control work in Waterbury,” and explained how “one of the advantages of birth control work over other social reforms is that individuals can really accomplish something! You could slave yourself to death for peace and not make a dent in the armed frontiers of the world, but already you’ve g[iven] two whole families a tremendously important boost toward a fundamentally sound home life. They can never be completely hopeless and without some control over circumstances again. It’s the effectiveness of individual effort in this work that I find so perfectly thrilling.”

Cadbury also reminded McTernan of the additional plans they had both discussed for Waterbury, and recommended she talk with Edward H. Davis, an enthusiastic supporter and a colleague of Millicent Pond’s at Scovill, about “mapping out your final approach to the Hospital Board about using the Dispensary. I wish you could wangle it somehow so that you don’t have to ask them to approve or disapprove of birth control, but take advantage of Dr. Mason’s statement: ‘It’s none of our business what the doctor and the patient talk about. We hire him to do a good job, and what he prescribes is up to him and the patient.’” Hence, Cadbury suggested, “Perhaps without going to the Board officially, you can make the arrangements with the doctors themselves. But connecting with the Dispensary is work for the future. I think that you are starting in just the right way to build up interest and a demand for local service.”91

Less than a month after Clara McTernan took her first patients to Hartford, the other portion of Leah Cadbury’s Connecticut work came to fruition as a committee of Bridgeport area women publicly announced that a clinic would open there on May 1. The following day city prosecutor John P. Flanagan said that unnamed opponents of the clinic had asked him to examine the matter, but within twenty-four hours Flanagan told reporters that “there are no statutes prohibiting such a clinic and that, therefore, he cannot act in the matter.” Flanagan added that “instructions will be given to … the police department that plans for the clinic will not be stopped and that there must be no move toward prosecution, as had been demanded by several of the complainants.”⁹²

If prospects for the future seemed bright in Connecticut, such was not the case in Massachusetts, where the Birth Control League’s appeal of the Salem convictions had been argued before the state Supreme Court by attorney Robert G. Dodge on February 7 and 8. Dodge had filed an impressive seventy-page brief with the Massachusetts court, giving particular emphasis to the One Package precedent, and a supporting amicus brief had been submitted on behalf of twenty-one doctors, including John Rock and a former state medical society president, Channing Frothingham. Essex County assistant district attorney John J. Ryan, Jr., answered with an exceedingly modest seven-page submission that argued a simple but basic theme: “If the Legislature had intended to make any exceptions in favor of doctors, nurses, social reformers, or any other class of individuals, it would have been a simple matter to expressly state the exception in the statute” prohibiting the distribution of birth control devices, Ryan stressed. “If these defendants are dissatisfied with the existing laws of this Commonwealth, they should address their complaint to the Legislature.”

Even Dodge himself felt that the Massachusetts’ judges questions at oral argument had been “not very encouraging,” but he told league president Linda Hawkridge that if they lost there they should “certainly” appeal to the U.S. Supreme Court. “I do not like to predict the decision of that court on any constitutional point, but I should say that the chances would be sufficiently good to make it distinctly advisable to take the case to Washington.” But some interested observers were still convinced that the Massachusetts League was mishandling the situation, and Katharine Hepburn remained among the most vocal complainants. “I am awfully sorry to have bothered you by things that I have said,” she once again apologized to the Massachusetts leaders, “but closing the clinics, even in towns where they were not raided and appealing cases instead of just refusing to pay the fines is to me—well, I’d better not say what I think. I just wish that you’d had Morris Ernst for your lawyer instead of what you’ve got. I don’t know him—not even his name—so there’s nothing personal about it—but I hope that I don’t meet him on a dark night—I might shoot him. Seriously, I wish you the best of luck and will try to keep my mouth shut—but it’s hard.”93

But Hepburn’s best wishes did not do the trick, for on May 26 the Massachusetts court unanimously affirmed the Salem convictions, fully accepting Ryan’s contention that the federal and New York precedents notwithstanding, it was not the province of the judiciary to create exceptions to inclusive statutory language. “The relief here urged,” the court said, “must be sought from the law-making department and not from the judicial department.” The Massachusetts League announced that it was “undaunted” and would appeal to the U.S. Supreme Court. It criticized the Massachusetts ruling as “a decision so out of touch with the realities of the world,” and attorney Dodge told Linda Hawkridge that their appeal to the Supreme Court would focus on the issue of “whether a state legislature may interfere with the practice of medicine under the guise of the police power” regulation of morality and health.

But now even Hawkridge was wondering whether the Massachusetts League should stick with stodgy and proper Robert Dodge, and on June 14 she called on prominent Harvard Law School professor Felix Frankfurter, widely noted as a potential nominee for both past and future Supreme Court vacancies, to seek his advice on whether the league should replace Dodge with New York’s Morris Ernst. Frankfurter’s recommendation was clear and blunt: “Mr. Ernst is a friend of mine and is a fine person for this Jersey City type of thing [a reference to an ongoing case in which Ernst was representing labor union organizers against tough Jersey City Mayor Frank Hague and his political machine], but he is not the person for the United States Supreme Court. Mr. Dodge is.” Frankfurter cautioned Hawkridge, however, that the league’s chances might not be good no matter who argued their case, for “everything that is foolish and socially wrong is by no means unconstitutional.” Dodge’s best strategy, Frankfurter hinted, would be to employ the social and health policy emphases of a “Brandeis brief,” but he added that “More I ought not to say.”

The Massachusetts outcome also finally raised serious worries in national birth control circles, with Margaret Sanger terming the decision “the most serious setback the movement has ever had.” But while Ernst agreed with Dodge that a Supreme Court appeal was essential, and while Ernst’s junior associate Harriet Pilpel told birth control leaders that Gardner would be “one of the most important cases ever to go before the court,” another prominent birth control lawyer, Charles E. Scribner, contended that any such appeal “would be utterly futile” since the Massachusetts court was clearly correct that statutory changes must be made by the legislature. To settle this strategic disagreement, both Sanger and the leaders of the American Birth Control League, along with Dodge and Hawkridge, convened a lengthy late June meeting in New York. Everyone present agreed that there was much to gain and little to lose by pursuing an appeal, and one ABCL legal advisor reported that he had even half persuaded Scribner, who was absent, that an appeal was the best course. Without any dissent the meeting formally voted to endorse an appeal, but also to do everything possible to keep publicity about the case to an absolute minimum. Six weeks later Dodge filed his petition for Supreme Court consideration, and the Massachusetts Attorney General’s office informed the Court that they would file no opposing papers until the justices ruled in early October on whether they would hear the appeal. Many New England birth control workers, however, were far more pessimistic than the lawyers. Dr. Mabel H. Pearson, who supervised the Connecticut League’s Danbury clinic, wrote to a friend who worked for the Massachusetts League that “to press this legal fight in Massachusetts” was “a great pity.” “The law is on the statute books, the courts are bound to confirm it, and it is most unlikely to be considered unconstitutional. The legal battle causes a great deal of most unfortunate publicity, and its failure gives tremendous impetus to the antagonists of birth control, especially the Catholic faction. They are now only waiting for the final adverse decision to demand a show-down in Connecticut and this may easily result in our clinics being closed also. It would seem to be a much better plan (and this is the considered opinion of many in this state) to abandon the losing legal fight which only clinches the unfortunate result, and to concentrate your money and resources and influence in trying to change the law” in the legislature. Any Supreme Court victory “is most unlikely … and I fear very much that the birth control movement will suffer a bad set-back from this attempt to force their hand.”94

In Connecticut, however, all tangible developments continued to be favorable, and league leaders certainly did not share Pearson’s bleak forebodings. Sallie Pease told the CBCL’s annual meeting in early June that “the wind is blowing our way and our ultimate objective—the recognition of birth control as an established social service to the community—is coming slowly but surely.” New state board members elected at that meeting included Clara McTernan, and by late that summer McTernan’s efforts to begin providing birth control services at the Waterbury Hospital’s Chase Dispensary in downtown Waterbury were well on their way to fruition. Undoubtedly Clara McTernan’s most important new Waterbury recruit was a young man whom she had known for years, ever since he had served as a counselor at Charles McTernan’s summer camp while an undergraduate at Yale—William A. Goodrich. A Waterbury native whose father had practiced medicine there until his death in 1929, Bill Goodrich had graduated from the Loomis School, then Yale, and had entered Columbia Medical School in 1931. When he graduated four years later, he went on to a two-year internship at Hartford Hospital, and he had been one of the dozen young interns who had worked with Hilda Standish and Eleanor Calverly at the Hartford Maternal Health Center. In the summer of 1937 he had married and opened his own obstetrics and gynecology practice in Waterbury, and in the summer of 1938 he readily accepted Clara McTernan’s request that he become the lead doctor for what would be called the Waterbury Maternal Health Center.

Bill Goodrich in turn recruited as a second doctor for the clinic his new friend Roger B. Nelson, an obstetrician who had moved to Waterbury hardly two months earlier after graduating from Cornell Medical School in 1934 and then taking internships and residencies in Rochester and New York City. Nelson had been drawn to Waterbury by one of the city’s senior obstetrician/gynecologists, Dr. Charles L. Larkin, who served as the chief of gynecology at the Waterbury Hospital’s Chase Dispensary and whose son had just graduated from the McTernan School. McTernan discussed with Goodrich her hope of offering birth control services at the Chase Dispensary, either under the auspices of the weekly gynecology clinic or under the auspices of a new and distinct birth control clinic, and Goodrich spoke to a number of the other doctors on her behalf. By mid-September McTernan had recruited another woman with nursing training, Kathryn Jennings, to help her in assisting the two doctors at clinic sessions, another interested supporter, Harriet Griggs, to serve as clinic treasurer, and one of the young Junior League members who often assisted at dispensary clinics, Virginia Goss, to keep the clinic’s records. She wrote to hospital superintendent Dr. Mason to ask formal permission for once-a-week use of two rooms at the dispensary, and with most of her preparations complete, she drafted a proper statement of purpose for the nascent Waterbury clinic:

Believing that there is a definite need for a clinic where the poor of Waterbury may go for scientific advice about birth control, it is our aim to establish such a clinic in Waterbury. We shall ask the Board of Directors of the Waterbury Hospital to let us use rooms in the Chase Dispensary for this clinic, but it is to be a separate organization and is not to be connected with the Hospital or Dispensary in any way. Funds for its maintenance are to be raised by volunteer subscriptions.

The clinic will be known as the Waterbury Maternal Health Center and will be affiliated with the Connecticut Birth Control League and the Birth Control Clinical Research Bureau of New York City. Records will be kept according to standards set up by these organizations. It will have a Board of Sponsors of about fifty representative Waterbury citizens.

Three doctors—Charles L. Larkin, Charles Brown, who had attended one of Leah Cadbury’s meetings, and John G. Foster, another local birth control supporter—“will be the advisory physicians in charge,” McTernan wrote. “Dr. William Goodrich and Dr. [Roger] Nelson will be the acting physicians. At each clinic session there will be a graduate nurse and a secretarial worker in attendance. The services of these workers as well as the services of the doctors will be given without charge.” Information and supplies, she added, “will be given only to married women living with their husbands,” and “the object of this organization is to serve women of limited means.” By early October, without personally having spoken with either Mason or any of the three physicians who ostensibly would be “in charge,” Clara McTernan nonetheless was just about ready to begin conducting weekly Tuesday morning birth control sessions with her young recruits in second-floor rooms at the hospital’s Chase Dispensary.95

On Monday morning October 10, 1938, the United States Supreme Court, in a ruling that stunned and dismayed the birth control lawyers, dismissed the Massachusetts League’s appeal of the Salem convictions. At nine a.m. the very next morning, Tuesday, October 11, Clara McTernan arrived at the Chase Dispensary to begin the first of the Waterbury clinic’s weekly sessions.

If the Gardner ruling had no immediate effect on Clara McTernan, however, it shocked and disheartened the Massachusetts and New York activists. Robert Dodge told Linda Hawkridge that “I did not expect that the result would be what it is, namely a decision on the merits to the effect that our attack upon the constitutionality of the statute is without any substantial basis.” On Friday the four Salem defendants appeared in court and each paid their hundred-dollar fines, and several days later Hawkridge and Caroline Carter Davis, the defendants in the separate Boston case, withdrew their appeals and each paid their fines of two hundred dollars.

In New York Morris Ernst and his colleagues now thought that the Massachusetts League had made a huge error in allowing the Salem case to go to the Supreme Court without a detailed account of the clinic’s actual birth control work being included in the record of the appeal. “Interpretation of the statute,” Ernst later wrote, “was asked of the Court in the most abstract and lifeless terms.… No specific evidence was introduced. No particularized human problem was presented,” and in the absence of such, “a naked statement as to clinic procedure was insufficient to stir the Court to a liberalized interpretation of the prohibitory statute.” Instead, Ernst’s junior colleague Harriet Pilpel suggested, what was needed was “a case in which a person’s life and health would be seriously jeopardized if birth control information were denied her.” If that was demonstrated at a trial, “It is not unreasonable to suppose,” Pilpel hypothesized, that “a different result might follow.”

On October 19 Ernst visited Boston and told the Massachusetts League that while the Gardner outcome was “a tremendous blow” to birth control nationally, they had no choice but to fight. Ideally, he suggested, they might generate a new court case, perhaps one in which some prosecutor could be persuaded to contest the sale of a book concerning contraception to a willing doctor or to fight an action brought by a doctor and a patient. With Robert Dodge unwilling to serve as Ernst’s junior partner in any such endeavor, the Massachusetts women recruited Boston’s Samuel Hoar as new local counsel, but Katharine Hepburn, watching from Hartford, continued to insist that the best tactics of resistance were being ignored. Caroline Carter Davis replied that Hepburn was wrong: “the question of refusing to pay fines has been discussed again and again and the practically unanimous verdict is ‘Very harmful to the cause—an insane idea.’” Instead, Davis said, “we plan to stage other cases which will be of such a definite, appealing nature that it will be impossible for the courts to befog the issue. Our chance of winning them is very slight,” she conceded, “but we feel that they will furnish the best possible publicity for education should we have to resort to legislation.”

But recruiting a willing doctor, even from among the league’s leading supporters, proved seemingly impossible because of how a case that would imaginably risk any sort of conviction might thereby place the physician’s license to practice medicine in danger. Finally, in May 1939, just after deciding to change its name from the Birth Control League of Massachusetts to the “Massachusetts Mothers’ Health Council,” the Bay State group resolved to proceed with a “book” case, but by that time attorney Hoar’s schedule for the balance of the year was seemingly full and the women were left in much the same position they had been in eight months earlier when Gardner had been dismissed by the Supreme Court.96

In January 1939 birth control forces had won a significant but little-publicized victory when a federal judge in Puerto Rico had dismissed criminal charges of distributing contraceptive articles that had been brought against two San Juan doctors and four assistants under the old federal Comstock statutes. Relying directly on the One Package precedent, District Judge Robert A. Cooper expressly held in United States v. Belaval that “prescribing or furnishing contraceptive materials by a physician is an exception to the statute.” “It is inconceivable,” he went on, “that Congress could by legislation prevent a physician from prescribing properly to save life or guard health.” Since even antiabortion statutes contained exceptions for life-threatening circumstances, Cooper added, “It can hardly be successfully contended … that a physician is prohibited from giving contraceptive advice and materials in a case where in good faith … he believes it is necessary for the preservation of life or health.” “It is not only the right but the duty of a physician, when in his judgment such is necessary for the protection of life or health,” Cooper concluded, “to prescribe contraceptives.”⁹⁷

More prominent public attention, however, was given to a January meeting marking the formal ending of the eleven-year-old rift between Sanger and her Birth Control Clinical Research Bureau on the one hand and the American Birth Control League, which Sanger had left in 1928, on the other. Now, with Sanger herself increasingly living in semiretirement in Arizona, the two long-competing groups would merge into one, which would be called the Birth Control Federation of America (BCFA). ABCL president Dr. Richard N. Pierson would become president of the new group, and a younger doctor, Woodbridge E. “Woody” Morris, would soon come on board as general director.

In Connecticut, the months between Clara McTernan’s successful opening of the Waterbury clinic on October 11 and Sallie Pease’s fateful remarks at the Connecticut League’s June 8 annual meeting passed quietly and productively. The once-a-week Waterbury sessions drew very modest numbers of patients, a significant proportion of whom had already received diaphragm fittings at the Hartford or New Haven clinics. Only about one new patient per week had an initial consultation with either Bill Goodrich or Roger Nelson, at which they received a fitting and were instructed to return a week later for contraceptive jelly once they had successfully mastered the diaphragm’s insertion. While in part the small initial numbers testified to the success Clara McTernan already had had in arranging transportation to the Hartford clinic for needy women, McTernan and her colleagues nonetheless felt satisfaction at being able to assist new patients who, as in one case, had had one child each year for four years in a row, or, in another, four children within a five-year period. In both Hartford and New Haven the new patient totals outstripped Waterbury’s by hundreds and hundreds, in part because of patients who were also referring their friends, and also because both clinics had now quietly dispensed with the prior requirement that specific health grounds exist before a married woman could receive a diaphragm fitting and jelly. Like Hartford, New Haven too was discovering that “Catholics predominate more than ever, numbering 214 as against 163 Protestants and 20 Jews” among new patients, and New Haven’s chairman gave an upbeat report to the same luncheon audience that heard Sallie Pease’s proud remarks about their notable achievement in Waterbury: “we feel that the clinic has made a place for itself in the community and that the future holds in store a period of expanding usefulness.”98

Bill Fitzgerald’s top priority late Monday morning June 12 was to locate and obtain the clinic’s patient record cards that were in the possession of Virginia Goss. By that time Ginny Goss already had heard about what had transpired that morning at the Chase Dispensary, and when her good friend Dorothy Chase Carmody, whose attorney husband Ed was one of Bill Fitzgerald’s closest friends, called to tell her that the state’s attorney wanted the clinic’s records, Ginny Goss had no doubt what she should do. With hardly a moment’s hesitation, Ginny Goss took the four dozen or so large yellow record cards and the clinic’s other paperwork and “got out of Waterbury,” heading for a summer home on Fisher’s Island, New York, off the Connecticut shore.

But Bill Fitzgerald would not be so easily stymied. A young attorney in Ed Carmody’s firm of Carmody and Thoms, M. Heminway Merriman, Jr.—hence “Junie” to all who knew him—had previously been recruited as Waterbury’s representative on the Connecticut League’s Legal Advisory Board. Clara McTernan had never had a substantive conversation with him about the clinic, but now Merriman was pressed into service by Ed Carmody. Merriman called Ginny Goss at Fisher’s Island and instructed her to return to Waterbury posthaste, and to bring the clinic records with her. She complied, gave the records to Merriman, and by midday Tuesday Carmody and Thoms had handed over the clinic records—patient cards and all—to Bill Fitzgerald.

Sallie Pease and Katharine Hepburn were absolutely livid when they learned that Merriman and Carmody had voluntarily surrendered the patients’ medical records to the state’s attorney, and the two women wasted hardly a moment before heading to Waterbury in person. There, in a scene that Pease would later recall as “brief, concise, and thunderous,” she and Hepburn told the Carmody and Thoms lawyers exactly what they thought of them and announced that the Connecticut League would having nothing further to do with them. In consultation with Clara McTernan and several of the clinic’s local supporters, they began casting about for Waterbury counsel that would energetically defend the clinic’s and the league’s interest, and by late Wednesday, June 14, Pease and Hepburn had found just the right person: J. Warren Upson, a thirty-five-year-old Yale Law School graduate who was a junior partner to former State’s Attorney Larry Lewis in one of Waterbury’s most distinguished law firms, Bronson, Lewis & Bronson.99

Warren Upson knew Bill Fitzgerald well, in part because of Fitzgerald’s seven years of service as Larry Lewis’s deputy. But Warren Upson was already one of Waterbury’s most significant political figures: as attorney for publisher William J. Pape and for the Republican-American newspapers, he had played a leading role in the fight against T. Frank Hayes’s political machine for several years before Hayes and his cronies had finally been indicted on the fiscal corruption charges for which they were now standing trial. Part of Hayes’s operation had been to control the local Republican party, in addition to his own Democratic one, through voter-registration fraud which had allowed dual Republican registration for several thousand loyal Democrats, a scheme that Upson and Pape had successfully challenged in state courts. Afterward, Upson had been the unsuccessful 1936 Republican candidate against local U.S. Congressman J. Joseph Smith, and in 1939 he was in his third year as Republican town chairman, a post that kept him almost constantly in the local news. Waterbury reporters thought of him as “frank and honest,” “brilliant of mind and bed-rock in character.”¹⁰⁰

The legal situation that Warren Upson inherited on Thursday morning June 15 was unsettled but threatening. Bill Fitzgerald had been telling the newspapers little more than “no comment” for three days: “I haven’t anything to say about the investigation and will make no announcement until the investigation is thoroughly completed.” Other figures were similarly evasive, with hospital superintendent Dr. B. Henry Mason insisting “I am too busy to hear anything or think anything about dispensaries or clinics today.” Gynecology chief Dr. Charles Larkin also “said he was too busy to think about the investigation,” but did volunteer that he “hoped he would not be brought into the matter.” Dispensary deputy Berta Verba, whose boss Jeannie Heppel was still away on vacation, declared “I have nothing to say and I don’t know anything about the details.”

BCFA general director Dr. Woody Morris in New York was fully abreast of the situation, and late Wednesday he managed to get Dr. Mason on the phone. The superintendent indicated “that he was anxious to clear his skirts of the birth control clinic. I inferred from him that the hospital would prefer to be considered as an accommodating landlord,” and nothing more. Morris asked Dr. A. Nowell Creadick in New Haven to be sure that the Waterbury doctors did not lack either resolve or medical support within the state, and Margaret Sanger wrote Creadick to express the same sentiments, warning somewhat prematurely that “the case will never get anywhere unless they do allow themselves to be arrested and take the case to the highest courts.”

Wednesday’s and Thursday’s Waterbury Democrat accorded front-page coverage to statements endorsing the Catholic Clergy Association resolution and Fitzgerald’s investigation that had been issued by the Notre Dame Alumnae Association and the Irish-American Social Club, but behind the scenes Warren Upson knew that the real danger lay in the ongoing interviews that Fitzgerald’s office was now conducting with former women patients of the clinic whose identities and addresses had been on Ginny Goss’s yellow record cards. Late Thursday afternoon Fitzgerald’s deputy Walter Smyth told Upson that the state’s attorney wanted Clara McTernan to come in Monday morning for formal questioning, and when Larry Lewis visited with Bill Fitzgerald on Friday, Fitzgerald told him that and more.

The state’s attorney would proceed with a prosecution before the end of the month, but “He is undecided as to whom to prosecute—a number or all connected with the local office. If one he probably will select Mrs. McT[ernan].” While Fitzgerald indicated that there was some prospect that he would charge league officials in addition to Waterbury clinic personnel, he also indicated that he would be willing to proceed by a detailed stipulation of the facts, rather than by going to trial and “calling witnesses who might be somewhat embarrassed by the nature of the testimony.” He might even agree, Fitzgerald told Lewis, “that in each case there was a health motive behind the instructions and contracepti[ve]s given, but he would refuse to agree that in each case the health of the user was directly or vitally concerned.” That would leave Lewis and Upson to decide “whether it is advisable to take the dignified course of having the question disposed of upon a stipulated statement of facts submitted eventually to the Supreme Court, or whether it is advisable to proceed to the rough and tumble” of a trial. Fitzgerald’s immediate priority, however, he told Lewis, was to establish precisely who was the legal owner of the diaphragms and other supplies that had been seized in the raid: the hospital, the Connecticut League, the clinic group, or some number of individuals. The hospital would certainly refuse to appear at Monday’s scheduled show-cause hearing to assert any claim to the seized materials, and while Lewis and Upson were relatively certain that they themselves would either appear or request a continuance, they were uncertain as to precisely who the claimant ideally ought to be.

But Warren Upson was far more worried about their substantive prospects than about the Monday hearing. While the BCFA office in New York already had had Harriet Pilpel send him a detailed file on One Package, Upson and Lewis also had discovered and read the Massachusetts court decision in Gardner, and they immediately appreciated its significance: “Mass. case probably is decisive & will be followed by Conn. Court,” Lewis jotted to Upson.101

Saturday morning Sallie Pease issued a bold public statement declaring that the Connecticut League was “delighted that the question of the legality of the birth control clinics throughout the state has been brought up.” “Laws and the interpretation of laws must change with changing times. The growth of birth control clinics all over the United States has been in response to tremendous public demand,” and no “medieval law” such as the 1879 Connecticut statute “can halt the march of progress and health.” Saturday afternoon she, Upson, Kit Hepburn, and Clara McTernan met with Margaret Sanger, BCFA lawyer William J. “Mac” McWilliams, and Harriet Pilpel at Pilpel’s country home in Newtown, not far from Waterbury, along with Bridgeport attorney Johnson Stoddard and New Haven lawyer Morris Tyler, both of whom had supported and advised the league clinics in their cities. The New Yorkers were highly impressed with Upson as he described the Waterbury situation, and the group agreed that Upson and Lewis should appear at Monday’s hearing on behalf of both the Connecticut League and the Waterbury Maternal Health Center. They would seek a continuance of the hearing on the seized materials, and after Fitzgerald filed criminal charges against one or more individual defendants, they would seek to proceed by stipulation rather than conduct a full-blown trial.

Monday morning Upson and Larry Lewis, as well as Bill Fitzgerald, appeared before Superior Court Judge Frank McEvoy. Deputy Sheriff Al Francis and Detective K. G. Alling brought four bags and two boxes containing all the seized contraceptive supplies into the courtroom, and Fitzgerald informed McEvoy that the materials had been “kept to violate the criminal laws of the state” and that the Waterbury Hospital had disclaimed any interest in the articles. Upson explained that both the league and the Waterbury clinic wanted to contest Fitzgerald’s motion to have the supplies destroyed, and while McEvoy “examined several of the objects” he pressed Upson to identify exactly who the officers of the Waterbury clinic were. With obvious reluctance Upson named Clara McTernan, Virginia Goss, and Harriet Griggs, whose names thus appeared in the local press for the first time that afternoon, and McEvoy then agreed to continue the hearing on the fate of the seized materials until July 3.

Soon after the proceeding before McEvoy concluded, Warren Upson and Clara McTernan appeared as scheduled at the courthouse office of Bill Fitzgerald. With Walter Smyth, Detective Alling, and a stenographer looking on, the state’s attorney undertook a polite but firm interrogation of his next-door neighbor. Holding the yellow patient record cards, Fitzgerald asked McTernan to confirm that the Waterbury clinic had begun operation in October 1938, and that even earlier she had been referring women patients to Hartford. Fitzgerald asked whether she had ever personally spoken with any members of the executive committee of the Waterbury Hospital’s board of directors, or with Dr. Mason, and McTernan said no. She had sent Mason one letter, “asking if we could have use of the dispensary,” but “I never received an answer.” Fitzgerald then asked her if she had had any personal contact with Doctors Larkin, Brown, and Foster, the clinic’s ostensible advisory committee. “I never spoke to any of these men … I understood from Dr. Goodrich that these men had consented to be on the committee.”

Fitzgerald moved on to the question of the clinic’s financing, and McTernan noted that “the majority of patients did not pay anything.” Indeed, as some of the seized records showed, the clinic’s entire income since the day it had started had totaled only ninety-seven dollars, and of that only ten dollars had come from patients. And those patients, she emphasized, “they just couldn’t come there—they were sent either by a doctor or came through the gyn[ecology] clinic.” Fitzgerald had also obtained a twelve-name list of people identified as the “Waterbury Committee,” and while Clara McTernan readily conceded that these people were the clinic’s official sponsors, she stressed that for many of them it involved only pro forma lending of their names. Only Edith Chase, her friend Lucy Burrall, Burrall’s sister Mary, Edward and Edith Davis, and Deborah Elton had contributed any money, and while one or two others, including Ruth Northrop, had attended the group’s only meeting, some on the list—including Jeannie Heppel—had not done even that.

Bill Fitzgerald was also very curious about whether Ginny Goss and Kathryn Jennings, like McTernan herself and the two doctors, had been at all involved in giving contraceptive instructions to patients, but McTernan repeatedly stressed that they had not. He asked whether Sallie Pease had attended a clinic meeting, and McTernan said no, but she answered in the affirmative when he inquired about Katharine Hepburn. Finally, Fitzgerald asked, “in anticipation of opening the clinic or Health Center, did you receive any legal advice or seek any legal advice of, or take into consideration any opinion rendered by any attorney?” “No, I did not,” McTernan responded. “Did it occur to you that it may have been illegal?” “No. Not when a doctor gave advice to a patient for health reasons.”

That afternoon Ginny Goss underwent similar questioning, and by late in the day Fitzgerald made it clear to Upson and Lewis that criminal charges would be filed by the end of the week, apparently against only McTernan, Goodrich, and Nelson. Fitzgerald agreed that he would furnish them with a draft stipulation at that same time, and Upson formally notified all three prospective defendants that the Connecticut League had engaged him to handle their defense at no cost to themselves. Sallie Pease readily sent Upson an initial retainer of a thousand dollars, which had been contributed by a friend or relative of Kit Hepburn’s, but Pease registered her dissent from the strategy that the Saturday meeting had been agreed upon: “Please have a jury trial and not a stipulation. They are no good.” And when Upson notified her that “I don’t believe that there is any possibility of any person connected with the state organization” being charged by Fitzgerald, Pease was downright distressed: “I am terribly disappointed that he won’t arrest me—the big sissy.”102

Monday night Kit Hepburn called Upson to report on her efforts to mobilize the Connecticut State Medical Society, but the group’s new executive secretary, Dr. Creighton Barker, was saying that he could do nothing more than reiterate the general endorsements of birth control that the society had rendered back in 1931 and 1932. Upson was preparing to have Goodrich and Nelson—whom he told Harriet Pilpel “are cooperative to the fullest extent”—and several senior doctors such as A. Nowell Creadick review Fitzgerald’s draft stipulation as soon as it was made available, and with criminal charges on the immediate horizon the Connecticut League appointed a special five-person executive committee—Pease, Hepburn, Upson, Creadick, and Johnson Stoddard—and instructed its other clinics “to proceed with their work as usual.”

Late Thursday Upson informed Pease that he believed Fitzgerald would be ready to proceed against the three defendants by sometime Friday, and early Friday afternoon Lewis and Upson, at Fitzgerald’s request, brought Clara McTernan, Bill Goodrich, and Roger Nelson before Superior Court Judge Kenneth Wynne. As all the parties stood before the bench, Wynne formally issued the arrest warrants that Fitzgerald had prepared, and all three defendants immediately pled not guilty. Fitzgerald requested bail of five hundred dollars per person, and Larry Lewis objected, saying such a requirement was unnecessary. Judge Wynne—a savvy veteran of state politics who had served as executive secretary to Governor Simeon Baldwin in 1914–15 and to Wilbur Cross from 1931 to 1935—immediately agreed: “no one can gainsay the fact that they are acting in accordance with what they think they have a right to do,” and released the defendants to Lewis’s custody. Newspapers all across Connecticut greeted the charges with prominent front-page headlines, and accorded significant attention to supporters’ statements. Woody Morris termed the arrests “an outrage to every physician,” and Nowell Creadick insisted that “We welcome the opportunity now offered for a final adjudication.” The old 1879 statute, Kit Hepburn declared, “was designed to prevent immorality and indecency, and not to interfere with competent physicians in protecting the health and well-being of their patients.”103

The precise charges against the three defendants alleged that Goodrich and McTernan had both violated the Connecticut law by furnishing birth control devices to three specific women: a twenty-two-year-old mother of two who had visited the dispensary no fewer than forty-four times for a variety of illnesses in less than four years, a twenty-two-year-old mother who had borne three children within three years, and a twenty-three-year-old mother who had borne four children within four years—and all of whom had made “repeated” use of the devices, the charges said. Roger Nelson similarly was charged with having furnished birth control devices to three other women, one of whom had had four children within five years.

Upson and Harriet Pilpel met again on Saturday to review Fitzgerald’s straightforward and largely unobjectionable draft stipulation of facts and to discuss what arguments against the Connecticut law Upson should stress in filing his demurrer—as the document was termed in Connecticut courts—challenging the constitutionality of the charges against McTernan and the doctors. There was some question as to whether Fitzgerald’s declaration in the charges that the women patients had indeed “used” the furnished devices was wholly sufficient to prove the “use” that would be required to convict the three defendants under the accompanying “accessory” section of the law, but Upson and Pilpel were more interested in whether particular “health” grounds for contraception could be shown for most if not all of the Waterbury clinic’s patients. Upson sought unsuccessfully to persuade Fitzgerald to return the patient record cards, both for that purpose and on the grounds that they were really the physicians’ property, but the league did assign a nurse from the Hartford clinic, Mrs. A. L. Wasserman, the difficult task of contacting and interviewing all of the patients beyond those cited in the charges to see if health grounds could be shown. Both Goodrich and Nelson, as well as Woody Morris, reviewed the stipulation, giving particular attention to Fitzgerald’s descriptions of the six particular women patients who were cited, but Upson was disappointed, although not surprised, that Mrs. Wasserman’s inquiries were “not accomplishing much as far as finding more health reasons.”104

On Thursday, June 29, both Upson and Fitzgerald again appeared before Judge Wynne. Fitzgerald filed slightly amended charges which acknowledged that Goodrich and Nelson were “duly licensed physicians” and McTernan a “duly qualified nurse,” and Upson filed a three-page demurrer which straightforwardly challenged the anticontraception statute as “an unconstitutional interference with the individual liberty of the citizens” of Connecticut under both the state constitution and the Fourteenth Amendment to the U.S. Constitution, particularly when there was no exception for a physician “where the life or health of a patient is at stake.” Upson also stressed to the court that Goodrich and Nelson had not received remuneration for their clinic work, and Judge Wynne set July 25 as the deadline for Upson’s full brief challenging the charges and the statute and August 15 for Fitzgerald’s reply. In the interim the question of an actual trial would remain on hold until Wynne ruled on Upson’s basic constitutional challenge. Four days later Judge McEvoy, after hearing a concise exchange in which Fitzgerald cited Gardner to prove that the statute “must be enforced unless it is repealed,” and Upson responded by quoting One Package and Belaval, agreed to an identical briefing schedule for the seizure case.105

In early July all of the Connecticut League’s supportive attorneys met and agreed that henceforth all of the state’s clinics should specify in writing a particular health reason for each married woman to whom they provided birth control services. A sensationalist weekly newspaper that circulated widely in the state, the Bridgeport Herald, printed a baseless front-page, banner-headlined story alleging that Fitzgerald’s Waterbury probe “may reveal before long, startling facts concerning alleged abortion practices of two or more Brass City medicos.” The suggestion was wholly fictional, but even more than fifty years later, Roger Nelson and his wife Rosalie remembered the implicit accusation in the Herald as their clearest and most painful memory of the Waterbury case.

On July 25 Warren Upson filed a powerful and impressive fifty-four-page brief in the case before Judge Wynne and a similarly detailed argument in the seizure proceeding. “The decisions of the federal courts are uniformly to the effect that statutes with respect to contraceptive[s] are not to be construed as interfering with the bona fide practice of medicine,” he emphasized. Additionally, Upson argued, the clear intent of Connecticut’s 1879 legislature “was to prohibit the production and dissemination of obscene information and literature,” and “any use of a contraceptive device upon the advice of a physician is not an offense against morality.” What the statute intended to prohibit was the immoral and hence unlawful use of contraceptives, not all use of contraceptives, Upson contended: “it is admitted that, for instance, the indiscriminate dissemination of contraceptive information to high school girls could be prohibited. This would be a justified exercise of the police power, because if contraceptive information was widely available to high school students, the restraint upon immoral practices inherent in the fear of pregnancy would be removed.”

Upson presented lengthy renditions of the Belaval and One Package decisions, and then shifted to a higher philosophical plane, asserting that the 1879 statute “does violence to the inherent rights of man.” The state, he went on, “has no right to govern or attempt to govern the conduct of a citizen of a State if his conduct does not in any degree impinge upon a similar freedom of conduct of other citizens of the State.” Relying upon an obscure 1888 decision by the Wisconsin Supreme Court, Upson added that “any citizen of Connecticut may deal with his own body in any way he wants to, and it is his natural right to do, if, in so doing, he does not impair any similar right on the part of another citizen.”

Then Upson moved to the specifics at hand: “The power to commence a pregnancy is one of the inalienable rights of the citizens of Connecticut.” Having already called contraception the “antithesis” of abortion, he returned to that contrast: “the State has the right to control abortions, but in the attempt to control conception, the State interferes with a natural right which inheres in its citizens.… the decision as to whether or not a married couple shall have children is a decision peculiarly their own.… If the people of Connecticut have any natural rights whatsoever, one of them certainly is the right to decide whether or not they shall have children, and to this natural right, the right to use contraceptive devices is a natural concomitant.”106

Four days later, and well ahead of schedule, Bill Fitzgerald filed considerably shorter and more modest briefs with both Wynne and McEvoy. Relying almost wholly on the Massachusetts Supreme Judicial Court opinion in Gardner, Fitzgerald insisted that “Every claimed constitutional defect asserted by the defendants” here also “was present in the Massachusetts statute involved in the Gardner case.” Within forty-eight hours Frank McEvoy notified Upson and Fitzgerald that the seizure matter would proceed to a full ruling on the merits, and Upson pondered whether to introduce additional evidence—by having McTernan, Dr. Creadick, and perhaps Sallie Pease take the stand at a formal hearing—or simply let the matter proceed to a decision based upon the written contentions that already had been filed. He knew it would be “undesirable to have Dr. Nelson and Dr. Goodrich testify” because that would “enable the State to examine them exhaustively as to the medical indications of all of the patients treated at the Waterbury clinic,” and after discussing the issue with both Connecticut and New York colleagues, Upson on August 4 notified McEvoy that the claimants would add nothing further.¹⁰⁷

Shortly before noon on Monday, August 7, Judge Kenneth Wynne filed a brief opinion upholding Warren Upson’s demurrer to the charges against Clara McTernan and the two doctors. Expressly rejecting Fitzgerald’s claim that Gardner was determinative, Wynne brusquely noted that the Massachusetts statute prohibited distribution of contraceptive articles, while the Connecticut one prohibited use. “The court has no right to read exceptions into the statute” for qualified medical personnel, Wynne acknowledged, “but is convinced that without these proper exceptions the statute is defective on the broad constitutional grounds” articulated by Upson.

Bill Fitzgerald was away on vacation, and while Warren Upson had little doubt that the state’s attorney would appeal Wynne’s decision to the Connecticut Supreme Court, Upson told reporters that he would move for the formal dismissal of the criminal charges when the local Superior Court resumed its normal term in September. Connecticut papers quoted Kit Hepburn as calling the ruling “a wise and humane decision,” and Sallie Pease termed it “a great triumph of common sense over a ridiculous” law. Woody Morris hailed the outcome as a “milestone,” but in private Warren Upson warned both Pease and BCFA staffers that McEvoy quite likely would rule against them in the seizure case, and that they should keep their expectations in check: “we have been successful so far, but this does not mean ultimate success necessarily.”108

Clara McTernan was away from Waterbury in mid-August but was overjoyed by the news of Wynne’s decision. “You must be the world’s best lawyer to have accomplished what you did,” she wrote Warren Upson. “I would like to open the clinic again in September, or whenever you think it advisable.” She and others also heartily congratulated Upson for his stand against Mayor Hayes, who had been convicted on August 16 after a seven-month trial and would soon resign his office. But not everyone was pleased with Wynne’s ruling, and the pastor of Bill Fitzgerald’s St. Margaret’s Roman Catholic Church used his August 13 sermon to declare that Wynne’s decision had no weight and that regardless of state law, the Catholic church “will continue to follow the law of nature and of God which is opposed to birth control.”

At two p.m. on August 23 Frank McEvoy filed a lengthy opinion surveying Connecticut’s birth control struggles reaching all the way back to 1917 and vociferously upholding the 1879 statute and its application to the Waterbury clinic’s supplies. Relying literally word-for-word on Fitzgerald’s July 29 brief, McEvoy stated that the Connecticut use statute was similar to the Massachusetts distribution one and that “Every claimed constitutional defect asserted by the defendants to exist in section 6246 … was present in the Massachusetts statute involved in the Gardner case.” Furthermore, the Connecticut League and its clinics were organized “for the express purpose of violating the plain provisions of section 6246,” and the supplies should indeed be condemned and destroyed. Upson quickly announced that he would appeal McEvoy’s decision to the state Supreme Court, and Sallie Pease told reporters that “I fail to see how he can rule upon the intention of the Connecticut Birth Control League or on physicians with whom it cooperates when they have not appeared before him in court.”109

Upson advised a chagrined Clara McTernan that she should not start making plans to reopen the clinic, but he did approve her request to quietly accept contributions so that the Hartford clinic could provide new supplies of contraceptive jelly to the Waterbury clinic’s indigent former patients. McEvoy’s rhetorical emphasis upon how the Waterbury Hospital had disclaimed any interest in the clinic sufficiently irritated Sallie Pease that she made new efforts to see if any supportive statement could be extracted from the hospital’s board of directors, principally through Ruth Northrup, who had hosted Leah Cadbury’s first meeting and whose husband was the board’s treasurer, but the effort did not come to fruition.¹¹⁰

On Thursday afternoon September 21 Warren Upson brought McTernan, Goodrich, and Nelson before Judge John A. Cornell to seek formal dismissal of the charges pursuant to Kenneth Wynne’s August ruling. But Cornell, who was sitting in Waterbury pursuant to the rotational system of assignments employed for Connecticut’s Superior Court judges, indicated, much to Upson’s astonishment and consternation, that he was not fully persuaded that Wynne’s opinion included an explicit finding that these individual defendants had indeed been working in a professional medical capacity when they provided birth control services at the Waterbury clinic. Upson understandably thought that this was at best a highly picayune and trivial distinction, but even after he and Lewis, plus Fitzgerald, spent over an hour discussing the matter with Cornell the following day, the judge remained unpersuaded. Four days later Cornell again postponed any decision for another week, and both Upson and Fitzgerald, who could not actually appeal Wynne’s decision until Cornell granted the pro forma dismissals, became even more exasperated with the persnickety judge. In a move that was just as unusual as Cornell’s behavior, the two adversaries jointly went to Hartford to call upon the Chief Justice of Connecticut, William M. Maltbie, to explain their quandary and seek his advice. Maltbie, who himself had served eight years as a Superior Court judge before joining the Supreme Court in 1925 and ascending to the chief justiceship in 1930, was known to his colleagues for his “easy friendliness” and “warm and gentle humility,” and he willingly considered his visitors’ novel predicament. He agreed to review the copies of each side’s papers that Fitzgerald and Upson left with him, and within a day of their visit he sent each of them, and Judge Cornell, a friendly but firm letter intimating that perhaps a further joint stipulation would resolve Cornell’s difficulty and pointedly observing that “The primary purpose is to secure a decision as to the proper interpretation of the statute and its validity rather than to penalize the defendant[s].”111

Oddly but unfortunately, even Maltbie’s missive did not convince Cornell to resolve the matter. Upson met with him once again, and several days later Cornell informed both Upson and Fitzgerald that he had decided to write to Maltbie and would continue to hold the judgment in abeyance. Upson and Pease consulted with one of Morris Ernst’s junior partners, Alexander Lindey, and Upson concluded that he could either try to persuade Bill Fitzgerald to drop or nolle the charges against Goodrich and Nelson—“so that whatever happens … their right to practice medicine and earn a livelihood will not be affected” by a conviction that would place their medical licenses in jeopardy—and proceed to an eventual ruling on the merits based simply on Clara McTernan’s case, or apply to the Connecticut Supreme Court for a writ of mandamus ordering Cornell to enter a judgment.

Early in October Cornell reassured Upson and Fitzgerald he would act once he had a response from the chief justice, but two more weeks passed without news, and finally in late October Bill Fitzgerald wrote to Maltbie, politely observing that the McEvoy case was now on the Supreme Court’s docket and that it made sense for both cases to be heard jointly. Finally, on October 31 Maltbie broke the six-week-old logjam by giving Fitzgerald a letter formally assigning Kenneth Wynne to return to Waterbury for one day to enter the necessary judgments. On Friday afternoon November 3 the three defendants appeared before Wynne, and in a brief, five-minute hearing the judge entered judgments of “not guilty.” State’s Attorney Fitzgerald announced he would appeal, but Warren Upson now felt confident that irrespective of whether the Connecticut Supreme Court affirmed or reversed Judge Wynne on the merits regarding the 1879 statute, “it is almost certain that none of the accused will be convicted or go to jail for violation of the Connecticut law.” Five days later the case was officially forwarded to the Connecticut Supreme Court, with oral argument expected sometime before Christmas. Upson himself remained circumspect about estimating their chances for success with the high court, but his New Haven friend and colleague Morris Tyler confidently told BCFA director Woody Morris that “My own feeling is that our chances are 90 to 10 of a favorable decision.”¹¹²

While Upson had been busy attempting to extract their apparent legal victory from the procedural morass created by Judge Cornell, the Connecticut League, in part at the urging of the national Birth Control Federation, had been seeking to use the legal crisis as an opportunity to highlight public and medical support for birth control. BCFA representative Edna Rankin McKinnon, the youngest sister of well-known pacifist Jeanette Rankin, pressed the Connecticut League “to emphasize the medical side” and sponsor a Committee for the Defense of Medical Rights which would distribute tens of thousands of flyers stressing the threat to doctors. “This intrigued all except the president,” Sallie Pease, who “was not enthusiastic” about such a strategy, McKinnon told her BCFA superiors, and in short order the BCFA staff began to view Pease as an obstacle to the professional public-relations effort they believed the Connecticut situation required. Upson and his fellow lawyers, however, vetoed any mass mailings while the cases remained in the courts, but the attorneys welcomed the suggestion that a major amicus brief on behalf of doctors be prepared for the Connecticut Supreme Court. Nowell Creadick and the other members of the league’s Medical Advisory Committee issued a strong warning to fellow M.D.s that “the liberty of the doctor to practice as he sees fit” was in danger of “intolerable restraint” if the courts upheld Fitzgerald, and even the Waterbury Women’s Club unanimously passed a resolution calling for quick judicial action so that “physicians may fulfill, without legal handicap, their medical obligations.”113

On November 20 Bill Fitzgerald, confined to bed with “a bad attack of grippe,” requested that the Connecticut Supreme Court hearing be postponed from December until early January. Upson and the Connecticut attorneys, along with BCFA’s advisors in New York, engaged in repeated discussions of how a doctors’ amicus brief should be handled, with some fearing that such an effort would only serve to stimulate submission of an opposing amicus brief on behalf of Roman Catholic M.D.s. In early December the question was finally resolved when Laurence A. Janney, a New York lawyer and Connecticut resident whose wife was active in the state league, took the initiative and volunteered to write one without charge. Focusing on questions of statutory interpretation and presumed legislative intent, rather than on the broader constitutional issues that Upson had emphasized before Judge Wynne, Janney’s skillful brief was submitted to the court on behalf of seventy-six Connecticut doctors.¹¹⁴

Upson’s own briefs in both the seizure case and in Fitzgerald’s appeal of Wynne’s dismissal of the three criminal charges closely tracked what he had submitted to Wynne and McEvoy, repeating word-for-word the natural rights and individual liberty arguments he had made five months earlier. He devoted somewhat more attention than previously to arguing that Gardner was an inapposite precedent, in that it did not involve a statute criminalizing the use of contraceptives, but just as before, both of Bill Fitzgerald’s briefs emphasized Gardner very extensively. “To say that the Gardner case differs from the cases at bar because Connecticut General Statute 6246 penalizes the use of contraceptives and the Massachusetts statute does not in terms do so is to split hairs,” Fitzgerald declared. What was central here, the state’s attorney stressed, was “the constitutionally permissible purpose of preventing immorality, discouraging promiscuous sexual intercourse … promoting the public morals … protecting purity, preserving chastity, encouraging continence and self-restraint, defending the sanctity of the home,” and “lessening the incidence of the commission of the crime of abortion by those persons married or single who would otherwise be encouraged by the dubious and unproven but supposed power of artificial contraceptives to defeat the process of nature.” Fitzgerald then devoted six full pages, some twenty percent of his brief, to quotations describing how “natural” family planning, or the “rhythm method,” was a perfectly legal alternative to the use of contraceptives for those Connecticut couples who wanted to limit the number of their children.115

On Thursday, January 4, both Upson and Fitzgerald argued their cases before the five-member Connecticut Supreme Court of Errors—a particularly appropriate name, unsuccessful litigants often joked—and the tenor of the exchanges left both Upson and Sallie Pease extremely worried as to what the decision would be some weeks hence. The justices “did not seem to be particularly favorable to our point of view,” Upson told Woody Morris, as they were not much interested in the federal precedents and “seemed to have a feeling that the law in question was one for the determination of the legislature” rather than the courts. “I am rather pessimistic about the outcome,” Upson warned Mac McWilliams, and he alerted Alexander Lindey that they ought to give some advance thought to preparing for an appeal to the U.S. Supreme Court. Sallie Pease articulated her concern about the Connecticut justices more poignantly, later recalling that “We left with a sinking feeling in our hearts, for they seemed so old, so remote from the urgencies of life, so entangled in the musty depths of the law.”¹¹⁶

Just as Pease thought, the composition of the Connecticut Supreme Court offered few reasons for optimism. Four of the five justices had attended Yale Law School, and the fifth, Harvard, and four were Congregationalists and the fifth a Baptist, but it was not an aggressive or creative court. The two youngest members were each fifty-seven years of age, all five justices were Republicans, and all five had previously served as Superior Court trial judges, in line with a long-established Connecticut tradition. Three of the five had themselves served as members of the legislature, and a fourth, George E. Hinman, had served as an important legislative staff member in half-a-dozen terms. Chief Justice Maltbie was known to be a believer in judicial restraint, and when he retired a decade later, a cumulative tally showed that in his twenty-five years on the court he had written only thirty-three dissents while taking part in over 3,600 decisions. The court’s other most notable member, Newell Jennings, was the only nonlegislative veteran, and while he was known for brief, pithy opinions, he was not viewed as terribly more liberal than Maltbie. Hinman, just weeks away from mandatory retirement at age seventy, was small and visibly frail, and Allyn Brown, the youngest justice, later wrote of their fifth colleague, Christopher L. Avery, a description that in many observers’ eyes could have applied to all five members: “conservative in his views and inclined to be laconic in speech … he could be described as ‘a typical Yankee.’”117

As Upson, Pease and their colleagues awaited an early or mid-March decision from the Connecticut court, all of the league’s other clinics continued to operate normally. In late January one central Connecticut man thoughtfully wrote to the Hartford clinic to say that his wife, a patient of the clinic for over a decade, had recently left him: “I understand that she is running around a great deal. The authorities tell me that she must be an oversexed person as well as mental.” Dr. Eleanor Calverly immediately wrote on the woman’s chart “Separated from husband—Give her no more supplies. Discontinued,” and Dr. Hilda Standish acknowledged the husband’s letter: “We are very glad to have the information you sent us about your wife as it is not our policy to furnish any supplies to married women who are not living with their husbands.”

The Connecticut clinics continued to receive supportive press attention, and magazine stories chronicled a new total of at least 553 birth control clinics nationwide, but Warren Upson had realized that he and the league might be in an insoluble strategic bind should the Connecticut Supreme Court reverse Wynne, much as he now feared. If that did happen, he explained to Woody Morris, “I expect that thereupon all these cases would be nolled by Mr. Fitzgerald and the accused would be discharged,” leaving them without punishment but also leaving the league without any means by which to appeal to the U.S. Supreme Court a Connecticut decision affirming the validity of the 1879 statute. “It does not seem to me,” Upson went on, “that we can ask these accused to refuse to accept a nolle,” and hence stand trial on the original criminal charge, “if it is offered by the State. Certainly the two doctors, who want to preserve their status as citizens, so that they can practice medicine, should not jeopardize their future by refusing a nolle.” However, “Mrs. McTernan, if she saw fit to do so, could, I suppose, stand trial in order to have this question clearly presented to the United States Supreme Court,” so long as Fitzgerald nonetheless agreed to grant the two other nolles, and in New York in particular there was a clear appreciation that “it would be better for the future status of the movement if one case could go through the courts to its conclusion.”118

On Wednesday, March 20, the Connecticut Supreme Court handed down its decision in State of Connecticut v. Roger B. Nelson et al.: a 3 to 2 ruling, written by elderly Justice George E. Hinman, that the 1879 statute should not be read as having any implicit exception for doctors and that it could constitutionally be used to prosecute the three Waterbury defendants. Hinman’s opinion—joined by Chief Justice Maltbie and by Justice Allyn Brown—emphasized all the occasions from 1923 through 1935 when the state legislature had declined to repeal the ban on contraception or amend it to exempt qualified medical personnel from its coverage. “Rejection by the Legislature of a specific provision is most persuasive,” Hinman wrote, “that the act should not be construed to include it.” On Upson’s constitutional argument, Hinman went on, there was not only the Massachusetts court’s rejection of it in Gardner, but more importantly, there was also the U.S. Supreme Court’s dismissal of the Gardner appeal: “We infer that this action may not be interpreted otherwise than as confirming the constitutionality of the Massachusetts statute in the respects in which it was attacked in the Gardner case,” and the Waterbury trio’s claims here were “essentially analogous.”

Finally, the Hinman majority offered some more general views:

Whatever may be our own opinion regarding the general subject, it is not for us to say that the Legislature might not reasonably hold that the artificial limitation of even legitimate child-bearing would be inimical to the public welfare and, as well, that the use of contraceptives, and assistance therein or tending thereto, would be injurious to public morals; indeed, it is not precluded from considering that not all married people are immune from temptation or inclination to extra-marital indulgence, as to which risk of illegitimate pregnancy is a recognized deterrent deemed desirable in the interests of morality.

Hinman concluded with a common refrain for judicial restraint in the face of suspect statutes: “If all that can be said is that it is unwise or unreasonably comprehensive, appeal must be to the Legislature, not to the judiciary.” Justices Newell Jennings and Christopher Avery dissented without filing an opinion. Almost as little more than a footnote, the Connecticut court unanimously reversed Frank McEvoy in the seizure case, holding that the statute under which McEvoy had granted Fitzgerald’s initial search warrant properly applied only to searches for gambling devices: “the judgment is set aside and the case remanded with direction to dismiss the proceeding and order return of the seized property to the defendants.” In the context of the other decision, this was, to say the very least, an utterly hollow victory.119

Within several hours of the announcement of the Court’s decision, Warren Upson, Sallie Pease, and several other league activists met hurriedly in New Haven. Hilda Standish was already being quoted by the press as calling “this stupid, outmoded law” and the decision affirming it “a disgrace to our state,” but Sallie Pease had presumed for weeks that if indeed the case was lost, the Connecticut League would have no choice but to close down all of its clinics. Hence, by early afternoon telegrams in her name went out to all of the eight other centers, saying simply “I suggest that it is advisable to close.” Without dissent the local committees agreed; Florence Darrach in Greenwich told reporters that “since this organization is responsible and law abiding, there will be no further service.” And for more than twenty-five years—from March 20, 1940, until the middle of 1965—with only one brief and dramatic exception, there would indeed be no further service until P. T. Barnum’s 1879 handiwork was finally voided by the United States Supreme Court.¹²⁰