No Further Service: Connecticut’s Struggle for the Legalization of Birth Control, 1940–1953
Many national newspapers viewed the Connecticut Supreme Court decision upholding the 1879 statute as an inexplicable oddity. The News and Observer of Raleigh, North Carolina, commented on Connecticut’s “strange backwardness,” and the Des Moines Tribune forthrightly declared that “the law is an ass.” But the Waterbury Democrat, which had championed the clinic raid from the first, enthusiastically called the outcome “encouraging.” Connecticut, it said, “has taken the very defensible position that legally and morally birth control cannot be countenanced through the instrumentality of the medical profession as a clearing house for the dissemination of such information and aid as would defeat the very purpose of matrimony. It is no easy thing to overthrow a natural law and to sustain arguments therefor.”
Warren Upson’s first reading of the Nelson decision convinced him that birth control proponents had only one alternative: to mount a major campaign to change the statute in the 1941 legislature. Bill Fitzgerald initially declined any comment on the ruling, but both he and Upson faced the question of what to do next when Superior Court in Waterbury reconvened two weeks hence on April 2. Upson, Pease, Florence Darrach, and Catherine Tilson met in New York on March 21 with Woody Morris, Harriet Pilpel, and Morris Ernst, and Upson described his hope of possibly persuading Fitzgerald to nolle the charges against the two doctors while proceeding with Mrs. McTernan alone as a test case. He realized the chances were substantial that Fitzgerald would not be willing to invest the time and energy such an exercise would require, but within the BCFA national staff in New York several significant figures thought that the real lesson that should be drawn from Nelson, as from Gardner before it, was that the national organization needed to exert much more dominant control over its local affiliates than previously had been the case.1
Sallie Pease called a major meeting of the Connecticut League for two p.m. Monday afternoon, March 25, at the Hartford Golf Club, and more than two hundred people attended. The meeting heard Johnson Stoddard and other advisors voice their reactions to the Nelson decision, but aside from general talk about the inevitability of a 1941 legislative push, no particular strategic decisions were made. One set of recommendations presented at the meeting, however, came from BCFA public relations director Charles Magill Smith on behalf of the BCFA staff. The CBCL, he declared, needed to make “changes in organization,” including “formation of a new committee with full authority” whose members would be chosen “primarily for their qualifications” rather than for previous involvement and who would include BCFA as well as Connecticut individuals. Such a committee could then create the Committee for the Defense of Medical Rights that the BCFA staff had been envisioning for six months as the preferable Connecticut publicity vehicle, and it could also take the place of the CBCL’s previous legal advisory committee, which “should disband,” since legal strategy decisions needed to be made primarily within a national rather than a state context. “It will probably seem wise to permit the state leagues and existing committees to become temporarily inactive,” Smith said, and “the hope of victory in this fight depends largely on complete recognition that we are fighting the Catholic Church.”
Smith’s flat-footed effort was referred to the CBCL’s Future Policies Committee for consideration, but so blatant an attempt by the BCFA staff to take control of the Connecticut scene in the wake of the Nelson defeat infuriated both Sallie Pease and Kit Hepburn. The very next day the two women went to New York and demanded an opportunity to join a scheduled meeting of the BCFA board’s executive committee. They presented an angry memo protesting Smith’s effort and how his suggestions represented “an insult to the intelligence” of the Connecticut lawyers and advisors, but the committee, withdrawing into executive session, dodged the challenge by explaining that it lacked a quorum and hence could not reach any decisions. Pease and Hepburn headed back to Hartford no less angry than they had come, but the tumultuous scene brought to a head the antipathy that the BCFA staff had been developing toward the independent-minded Pease—and her outspoken mentor—for more than six months. Florence Rose, the BCFA staffer who was Margaret Sanger’s primary confidante and aide in the New York office, claimed to her boss that “Mrs. Pease has long been a headache to lots of the Connecticut people” but stressed that “the sad part is that she and Mrs. Hepburn are evidently ‘buddies’ … which we did not realize.” Pease and Hepburn had “misrepresented grossly the facts” about Smith’s recommendations, Rose claimed, and Hepburn had apparently told BCFA executive committee chairman Gilbert Colgate precisely where he could go: “She is apparently losing her sense of fitness and propriety,” Rose asserted. The best hope, Rose added, would be for Sanger to contact her old friend Hepburn directly: “she can be such a valuable asset if her loyalty to you is greater than to Mrs. Pease.”2
While the BCFA staff was busily plotting the takeover of the Connecticut League, Warren Upson was hard at work on the next and final steps in the Waterbury cases. On March 27 Frank McEvoy entered a formal order resolving the seizure case, and two days later the clinic’s now-ageing supplies were returned and then sent to the Clinical Research Bureau in New York, where they could be used legally. Upson had continued to ponder the possibility of attempting to go forward with simply the charges against Clara McTernan, but in a phone conversation with Morris Ernst on the afternoon of March 27 they reluctantly agreed that it “would be undesirable” because no particular health reasons for birth control had existed with the three patients whom McTernan was accused of aiding and abetting. Hence, Upson concluded, “Under the circumstances, if the State offers a nolle, we must accept one,” and on Friday, March 29, he and Sallie Pease met Clara McTernan, Bill Goodrich, and Roger Nelson for lunch at the Waterbury Country Club to review what likely would happen in the formal court session on April 2.3
The tenor of the lunch conversation quickly erased Warren Upson’s remaining ambivalence about accepting three nolles. “It is apparent,” he wrote Morris Ernst several hours later, “that the doctors and Mrs. McTernan want to get out of these cases as quickly as possible. They certainly show no indication of wanting to have any further contest made, and in the light of their point of view, regardless of what the Birth Control League desires, there is only one thing for me to do, and that is to procure a nolle for them, if possible.” After lunch he had spoken again with Bill Fitzgerald, whose position was firm but reasonable: “His view is that the Waterbury doctors are guilty of violation of the law, but that to punish them would be unjust, in view of the fact that there are so many culprits in the State who will go without punishment for this crime. His disposition, therefore, is to nolle the cases,” because “he does not feel that it would be fair to secure a conviction under the circumstances,” even though “he is being subjected to pressure from different sources.”
At three p.m. on Tuesday, April 2, Clara McTernan, Bill Goodrich, and Roger Nelson filed into the Waterbury courtroom, and some minutes later the clerk called their cases and Bill Fitzgerald rose to read a five page prepared statement. He traced the early course of his investigation, and described how he understood the clinic had come into being: “through the superintendent of the Waterbury Hospital the informal permission of the hospital’s board of directors for the use of space at the Chase Dispensary was obtained. It was the understanding of the superintendent of the hospital and of the defendants Goodrich and Nelson, that three senior members of the hospital gynecological staff had been constituted, and had agreed to function, as an advisory board for this contraceptive clinic, although these physicians, who were supposed to constitute the advisory board, profess complete ignorance of the matter.”
Fitzgerald acknowledged that the defendants had “cooperated fully in establishing all of the material facts” of the case, and then he began his conclusion: “I am satisfied that these defendants believed that they had a right to do the acts referred to in the informations in these cases. They donated their time and services to what they regarded as a charitable work. I do not believe that they intended to violate the criminal laws of this state. When this Waterbury clinic was opened there were in open operation elsewhere in the state at least eight other contraceptive clinics which had been in existence for a long period of time and no question as to their right to operate had been raised in any court. These facts were known to and relied upon by these defendants.”
In “the absence of any actual criminal intent,” the charges would be nolled, for “it seems to me unjust to destroy the professional careers of these physicians by a conviction.” However, Fitzgerald emphasized in closing, “Henceforth any person, whether a physician or layman, who violates the provisions of these statutes, must expect to be prosecuted and punished in accordance with the literal provisions of the law.” With that, Judge Carl Foster dismissed the three defendants.4
Bill Goodrich was only thirty, and Roger Nelson thirty-one, and within three years each would be gone from Waterbury, called into military service. After the war Bill Goodrich switched from gynecology to radiology, helped his wife Elizabeth raise two children, and established a successful practice in Hartford before dying at the very young age of forty-nine. Roger Nelson returned from the war and eventually switched from obstetrics to a career as a hospital administrator, spending most of his life quietly in Ann Arbor, Michigan, and outliving his friend Bill Goodrich by well over thirty years.
The Fitzgeralds and the McTernans would continue to live just across the driveway from each other until 1948, when Charles McTernan retired as headmaster of the family school and he and Clara moved full time to their summer home on the Connecticut shore in Old Saybrook—where the Fitzgeralds would sometimes visit them. The McTernans “never had any ill feeling” toward Bill Fitzgerald, Clara’s stepson John later explained, because “he really didn’t have a choice.” Clara “wasn’t upset by it,” and “took it in stride,” especially since Bill Fitzgerald had conveyed to them that “he hated to do what he was doing.” Once Bill Fitzgerald privately took the opportunity “to apologize for what he was doing,” and Bill’s son Tony, born four years after the case was concluded, also grew up witnessing both the family’s friendship with the McTernans and his father’s distaste for what had happened: it was as if he had been “kind of holding his nose” during those events of 1939 and 1940.5
Sallie Pease and her colleagues at the Hartford clinic resolved to keep the office open even if birth control supplies could not be distributed, and a plaintive “Dear Patient” letter was sent to the hundreds of women who had been helped there. “Some day,” Pease told them, “if we all work together, we will have the clinics open again.” But all working together was not the spirit that was emanating from the BCFA office in New York, and within a day of the final resolution of the Waterbury charges, Sallie Pease received a personal letter from Margaret Sanger that was as unfair and unpleasant as anything Pease and Hepburn had ever suffered at the hands of birth control opponents.
Sanger began by volunteering that the Charles Smith recommendations which Pease and Hepburn had found so offensive seemed like “excellent advice,” and went on to blame Pease for the 3 to 2 loss in the Connecticut Supreme Court: “something certainly went wrong somewhere in the Connecticut League, to have lost that case and to have had so adverse and medieval an opinion.” Then Sanger moved toward her real goal: “it is the duty of some one to seek out the cause of this and to eliminate persons or even groups if future progress is to be attained. Weak leadership guided by professional limitations, either legal or medical, usually ends in defeat.” Sanger knew next to nothing about the Connecticut people who had played the major roles over the past ten months, but that did not stop her from offering a clear prescription: “resignations of dead wood or professional bias should be in order,” for “when leadership fails in achieving its goal it resigns its position and lets a new group take hold.… As President of the Connecticut League I hope you and Kate will analyze your material and face the future with a clean slate for that is what is needed.”
If some would have thought the letter harsh, Sanger told Woody Morris she feared she had been too gentle: “I should have liked to have been a little more explicit and said definitely that Mrs. Pease should resign the presidency but as I do not know how good a president she has made I only surmise that she has been a weakling.”6
Sanger’s woeful ignorance was only one aspect of a rapidly developing situation, however. When the BCFA board met two days after the nolles were formally entered, outside counsel Morris Ernst announced a dramatic suggestion, one he repeated in a letter to Pease the following day: all Connecticut clinics should be reopened at once, and several additional clinics should be opened in churches. Ernst’s reasoning was that the Nelson opinion, upon careful study, offered them some small but significant room for maneuver, as the Connecticut court had not explicitly spoken to whether the 1879 statute would be valid in a case where the need to avoid pregnancy—and utilize contraceptives—involved a threat to a woman’s very life. Hence, he advised, “a statement should be prepared indicating that the Supreme Court had not held that birth control is illegal; it merely held that the statute could be enforced if the test of use was one of general health,” and further indicating that the reopened clinics would prescribe birth control in those cases where pregnancy might involve “jeopardy to life.” In practice such a phrase could be “a generous term,” Ernst told Pease, for “jeopardy to life does not mean jeopardy of death,” and the league should have its friendly doctors draw up an exhaustive and inclusive list of all ailments whereby pregnancy might exacerbate a threat to life, a list that clinic doctors then could make specific reference to in examining each and every woman seeking birth control. “The statement of publicity in regard to the opening should be most dignified,” Ernst advised, should “in no way attack the court and in no way indicate that you are looking for a test case or trouble.” The stakes were high, but decisive action was required: “if you do not take such a step the movement will be dissipated in Connecticut,” which in turn “will encourage further attacks in other jurisdictions.”7
The following day, Saturday, April 6, the Connecticut League’s lawyers, doctors, and officers all met in New Haven to hear Sallie Pease present and endorse Ernst’s bold plan of action. She explained that Ernst of course presumed that implementing his plan would generate a test case, but several of the Connecticut attorneys, including Morris Tyler and Warren Upson, firmly believed that such a course would not generate any Connecticut Supreme Court opinion that birth control proponents would welcome. Additionally, any such venture would require the doctors staffing the reopened clinics to put their medical licenses and futures on the line, and, in light of Fitzgerald’s firm statements about enforcement when the Waterbury charges were nolled, it was very likely that such doctors would pay a stiff price if the Connecticut court once again affirmed the 1879 statute. Upson then formally recommended that the Connecticut League focus upon legislative rather than litigative remedies, and his proposal was adopted. Tyler and Johnson Stoddard further proposed that the league advise its clinics not to reopen until the statute was amended, and both that and a vaguely worded addendum saying that clinics could reopen on “life only” grounds if they so chose were approved, subject to revision by a small subcommittee.
Pease and Hepburn were about the only Connecticut activists who felt that Ernst’s strategy of reopening the clinics was the wisest. Hilda Standish, the doctor who had opened the initial Hartford clinic in 1935 and helped operate it for almost five years, understood their sentiments but believed that the potential risk to M.D.s’ medical licenses was simply too great a danger to face. Ernst himself was disappointed that the BCFA staff had little interest in his idea, especially as Justice Hinman’s retirement raised the possibility that his successor, Arthur F. Ells, might vote differently. Ernst told friends that he thought the birth control movement was losing the fighting spirit that had carried it through the 1910s and 1920s, but Edna McKinnon of the BCFA explained to others that the national staff was more interested in ousting Pease than in listening to Ernst. Margaret Sanger remained more than a little confused about the Connecticut scene, erroneously continuing to believe that Pease and Hepburn, rather than BCFA, were the primary obstacles to aggressive action. “If there was only a good crowd of women up there who will open the clinics and keep them open until everyone of them were put into jail, they would have a better opportunity to get that law changed,” she blustered to Clarence Gamble. “God only knows how weak and timid and full of fears respectability has made the birth control movement. If we had just half of the fighting spirit that the Roman Catholics have we would lay them low and mow them down.”8
But in Connecticut matters were finally beginning to move forward. One of Sallie Pease’s biggest burdens was the problem of paying the remaining bills from the Waterbury cases, and when Warren Upson, who so far had received only a very modest fifteen hundred dollars for all his time and efforts, submitted a final statement requesting an additional twenty-six hundred dollars, Pease reluctantly sent her old friend and Bridgeport attorney Johnson Stoddard to ask if he would settle for only a further thousand dollars. Upson raised the question with his partners, and senior partner Richardson “Dick” Bronson endorsed the modification: “I fear we are stuck. When it happens that men of the quality and association of Johnson Stoddard interest themselves to get down on their metaphorical knees and ask that we accept less than that which they admit is our due, we cannot afford to be mussy about it.… We have got to swallow it.” In return Upson received only a thank-you letter from Kit Hepburn for his “very generous” contribution to the league, but the firm’s resolution of an otherwise small matter reflected once again the dedication and distinction with which Upson had handled the Waterbury cases since the first day Pease and Hepburn had come to him.9
More significantly, other Connecticut activists, particularly Florence Darrach from Greenwich, were now fully convinced that a professionally managed 1941 legislative campaign had to be the league’s next focus, and BCFA staffers from New York were all too happy to encourage this cohort as replacements for the tough-talking, independent-minded duo of Pease and Hepburn. The league’s Future Policies Committee, at Darrach’s initiative, unanimously endorsed the idea of a Committee for the Defense of Medical Rights that had been pending since the previous fall, and even Sallie Pease reluctantly told Morris Ernst that virtually everyone now agreed that a “life-threat” test case would not be an adequate solution: “even if the case were successful … it would not be worthwhile” to limit clinic services to only such patients. “This is really their basic reason for not wanting to go to the courts.”
While both Pease and Kit Hepburn believed that the increased Roman Catholic presence in the state legislature, particularly in the state senate, meant that a legislative effort was almost certainly foredoomed to be little more than a waste of money, a special plenary meeting of the Connecticut board was called for April 24 to hear a formal proposal from Darrach and the BCFA’s principal public relations firm, the John Price Jones Corporation (JPJ), a twenty-year-old organization with a staff of fifty. One of JPJ’s principal officers, D. Kenneth Rose, had played a primary role in the merger that had created BCFA two years earlier, and both Rose and a deputy, Paul Franklin, attended the Hartford meeting. They described JPJ’s past experience with BCFA and the consulting assistance they also had provided in recent years to both the Massachusetts and New York state groups. Rose contended that what the Connecticut struggle needed was “a publicity theme that will capture public interest,” and, alluding to the desirability of launching some newly named group, asserted that “what you decide on as the final name and type of organization is going to determine whether you will win or lose.” Franklin conceded that JPJ’s services were expensive but explained that “the chief benefit you get from our type of organization lies in group judgment.” Their specific proposal had two parts: first an intensive ten-week survey of the Connecticut scene and prospects by a JPJ executive at a fee of more than twelve thousand dollars, out of which would come a more detailed—and far more expensive—game plan that the CBCL could either adopt or dismiss. Rose volunteered that “We hope you will hire us to go right through,” for “We won’t take a job unless we think we shall succeed.” A motion approving the initial ten-week study was easily approved, with Darrach promising that Greenwich supporters would meet much if not all of the cost, and a new steering committee to work with JPJ—including Pease and Hepburn—was also ratified. As almost everyone realized, for worse or for better the Connecticut League had taken a step very different from any prior one in its two-decade history.10
In early May the new CBCL steering committee ratified the hiring of JPJ and within less than a week JPJ Vice President Paul Franklin began functioning as executive director of the Connecticut League. He undertook long conversations with Nowell Creadick and Warren Upson to help familiarize himself with the Connecticut scene, and both men agreed that now “the Catholic opposition was much more effectively organized than it had ever been before.” Creadick advised Franklin that doctors were the most effective representatives for birth control before the legislature, while the women could lobby candidates on the issue prior to elections. Upson, like Pease and Hepburn, cautioned Franklin that Democratic—and Roman Catholic—success in the fall elections for the 1941 legislature would leave them with very dim prospects indeed. Birth control supporters suffered a modest setback when the annual meeting of the Connecticut State Medical Society sidestepped the question of reaffirming the society’s 1931 and 1932 endorsements, but Florence Darrach told her colleagues that the Greenwich women had raised more than sixteen thousand dollars within hardly three weeks to finance the JPJ study. Franklin devoted most of his time to one-on-one conversations with attorneys, judges, and political observers from across the state, and the growing presence of Roman Catholic members in the legislature—particularly among Democrats in the state senate—was cited again and again as a serious if not insuperable obstacle. Several savvy politicians noted that ideally one could lobby for the selection of non-Roman Catholic nominees for state senate seats; otherwise, a former house speaker warned, “a legislator’s obligation to the church will outweigh his desire for votes.” Some of the attorneys also pointed out that the Connecticut Supreme Court would be highly unlikely to reverse itself in any test case that attempted to capitalize on Ells’s replacement of Hinman, and that Ells might simply follow Chief Justice Maltbie.11
On June 10 Pease, Darrach, Upson, and Franklin met in New York with Sanger, Harriet Pilpel, Loraine Campbell of the Massachusetts group, and D. Kenneth Rose, who had just moved over from JPJ to become national director of the Birth Control Federation. The experience of both Nelson and Gardner had convinced Sanger that her congressional focus back in the 1920s and early 1930s had indeed been right: “Court victories … are temporary in their effect; legislation is a final answer, for it is an expression of the will of the people.” The others mostly agreed, but with the exceptions of Pease—who voted against any legislative campaign—and Darrach, who voted against any further consideration of a test case, the participants did not clearly identify a specific strategy for the Connecticut effort to follow.
On both June 18, at the annual meeting of the Hartford clinic, and on June 26, at the annual meeting of the Connecticut League, Sallie Pease delivered her valedictory speeches as president of the Connecticut struggle. Poignant, powerful, and moving, she spoke of the emotional peaks and valleys of the preceding year, of the many intense moments since her speech a year earlier that had kicked off the Waterbury confrontation. But the bottom line, she reminded everyone, was both clear and simple: “The Women of Connecticut must have the right to decide for themselves when their children shall be born.”
The league’s annual meeting affirmed two important JPJ and Florence Darrach initiatives: formal creation some weeks hence of a publicity vehicle that would be called the Connecticut Committee to Make Birth Control Legal, and installation of the very handsome and proper president of the Hartford Seminary, Robbins W. Barstow, as figurehead president of the Connecticut League. Paul Franklin stressed to reporters that the league had reached no decision on pursuing either a 1941 legislative effort or a court case, and several weeks later, when JPJ’s initial ten-week contract with the league was about to expire, the relationship was extended—with only Sallie Pease voting no—even though everyone acknowledged that no funds were being raised anywhere except in Greenwich.12
Florence Darrach appreciated that the league’s best political chance lay in obtaining firm support from the Republican party, but she realized too that not all Connecticut Catholics were Democrats. She told her Massachusetts counterpart Loraine Campbell that it was too bad that Connecticut, unlike Massachusetts, did not have the option of proposing a popular referendum on the issue, but in mid-July she and Franklin went to have a long private chat with Connecticut’s first-term Republican governor, Raymond E. Baldwin, who seven years earlier had been the primary legislative sponsor of the league’s reform bill. A narrow upset winner over Wilbur Cross in 1938, Ray Baldwin represented a state Republican party that had transformed itself from the era of J. Henry Roraback into the progressive garb of the party’s 1940 presidential candidate, Wendell Willkie. Baldwin told Franklin and Darrach that personally he was “in sympathy with the birth control movement,” but that he did not want the issue interjected into the upcoming fall elections. “He asked Mrs. Darrach if she wanted to see him Governor again and if so said the quickest way to kill his chances and the chances of the Republican party would be for the League or Committee to introduce the birth control issue into the campaign.” The governor advised that “it would be infinitely better for all concerned for the Committee to do nothing in a political way until after the November elections. He said that the birth control issue was not as important as people believe because in the last election when he ran for Governor none of his opponents brought up the fact that he was known to be [a] supporter of birth control.” Darrach and Franklin restrained themselves from pointing out that if indeed this was so, it could in no way harm Baldwin’s reelection prospects for the issue to be raised, but they did directly ask the governor “if he would use his influence in bringing about a change in the law if the Committee agreed to do nothing in political circles until after the election.” “Of course,” Franklin noted, “he refused to answer this query.”13
The Connecticut activists continued to flummox around without settling on any firm strategy. Laurence Janney volunteered to draft a bill for the 1941 legislature, and Paul Franklin, after undertaking an amateurish poll of citizens’ opinions on birth control, sent out a low-visibility press release asserting that 93 percent of Connecticut residents backed a doctor’s right to prescribe it. Judge Kenneth Wynne told Franklin in an off-the-record conversation that a court case stood no chance of success, and while some league members did make queries about local legislative candidates, an early September newsletter correctly confessed that “the real work of the organization has yet to begin.”
By mid-September Sallie Pease and her Hartford colleagues were in open revolt against the way things were going, formally notifying the statewide steering committee that they would decline to contribute toward paying any further fees for JPJ and bluntly suggesting that need for “a workable, clear and practical plan which can be carried out mainly by volunteers” rather than “the present costly arrangement.” The Hartford group warned that “the continued employment of a high priced publicity firm from New York” might well be seized upon by birth control opponents come the 1941 legislature, and even a good Hartford friend of Darrach’s warned her that it “is not difficult to stir up an illogical opposition to measures proposed and advocated by those of you who reside so near the New York border” in wealthy Fairfield County.14
In late October Warren Upson pointed out to his Connecticut colleagues a mid-September ruling by the Massachusetts Supreme Court that potentially could be viewed as a retreat from Gardner. A Boston pharmacist, Lewis Corbett, had been arrested and convicted under the Massachusetts statute prohibiting the distribution of contraceptives for the crime of selling condoms to an undercover policeman. The court had reversed his conviction on the grounds that condoms could be used for protection against disease as well as for contraception, and in the absence of evidence that the seller knew which use a customer had in mind, no intent to violate the statute could be shown. It was a limited ruling, covering only condoms—as Harriet Pilpel later wrote, “the result of the holding is that practically speaking only the best type of contraceptives,” diaphragms, “are effectively barred from use in Massachusetts.” However, the tenor of the decision, as the Yale Law Journal noted, “is antithetical to that expressed two years earlier by the same court” in Gardner and then relied upon so centrally by the Connecticut Supreme Court in Nelson. Massachusetts lawyers did not pursue the matter, but to Upson and others in Connecticut Corbett at least offered plausible grounds for asking the Connecticut court to revisit the subject of Nelson.15
Rather than a court case, the Massachusetts activists had set their eyes on getting a popular referendum vote on medically sanctioned birth control onto the 1942 Massachusetts ballot. In May 1940, with that possibility in mind, they had commissioned a statewide poll. The results showed that 64 percent of respondents—and 45 percent of Roman Catholics—said yes when asked “Do you think people should be allowed to obtain birth control information from public clinics here in Massachusetts?” Even more notably, 82 percent of people—and 72 percent of Catholics—said yes when asked “Do you approve or disapprove of allowing Massachusetts doctors to provide birth control information to married women for health reasons?” Those answers indicated that birth control liberalization stood a far better chance with Massachusetts voters than with state legislators, and the first step toward obtaining a 1942 referendum vote was to file a minimum of twenty thousand petition signatures by late 1940. To aid in that campaign, Margaret Sanger herself scheduled a series of appearances across the state, and all went smoothly until Roman Catholic pastors in the industrial city of Holyoke called for the cancellation of her upcoming talk there. Sanger was scheduled to speak at Holyoke’s First Congregational Church, which initially held firm in its commitment until several church board members who were businessmen received personal calls from a prominent Catholic priest who expressed concern about future patronage of their businesses unless the Sanger talk was canceled. Only twenty-four hours before Sanger was to speak the church board reversed itself, and after at least one other unsuccessful attempt to secure an attractive venue, Sanger ended up delivering her remarks in a union hall. The potential lessons of this experience for a 1942 statewide referendum campaign on birth control should have been hard to ignore.16
For the Connecticut activists, the November 1940 election results were even worse than they had anticipated: Republican Governor Baldwin was turned out of office by Democrat Robert A. Hurley, and estimates were that as many as nineteen members of the thirty-five seat state senate would be Roman Catholics. No more than thirteen likely supporters of any birth control bill could be identified, but while the Connecticut proponents realized that their chances for success were “remote” at best, they nonetheless concluded that they had no real choice except to put forward at least a modest version of a doctors-oriented reform bill. A legislative campaign, even if wholly unsuccessful, would keep the issue in the public eye; it also would make a subsequent court case seem more justified. Realizing that under the circumstances a modest legislative effort would be adequate, the relationship with JPJ was terminated as of early December and a full-time local executive director, Bice Clemow—a journalist and close friend of one of Mrs. Hepburn’s sons-in-law—was hired instead. Many New York voices, including Ernst, Pilpel, and BCFA officials, as well as Pease and Hepburn, objected to the idea of a knowingly hopeless legislative campaign on behalf of any far from ideal bill, and Ernst attempted to sell the Connecticut lawyers on the same idea of a test case involving some birth control publication that he had unsuccessfully advocated in Massachusetts. The Connecticut attorneys were more interested in a test case involving an affirmative or declaratory civil suit brought on behalf of a physician who wanted to prescribe birth control for women patients, as distinct from a clinic opening and a defense against ensuing criminal charges, but one of their advisors, United States District Judge Carroll Hincks, warned that “the difficulty is to have an actual controversy” clearly shown in any such declaratory action. Consideration turned toward recruiting both a doctor/plaintiff and a senior lawyer of the “highest reputation in the bar” to bring the case, with Eleanor Calverly, who had worked for five years at the Hartford clinic, reluctantly bowing out because of family considerations.17
By mid-January 1941 a consensus had evolved that both a declaratory test case and some legislative effort should be mounted. The first two high-status attorneys who were approached each declined, but the third, former state bar association president Frederick H. “Fritz” Wiggin of the prominent New Haven firm of Wiggin and Dana, readily agreed. Some advisors were surprised by Wiggin’s acceptance, for while he had with some hesitance helped Laurence Janney with the doctors’ amicus brief in Nelson, he had also told Paul Franklin some months earlier that any test case “was doomed to failure” and that legislative reform was the league’s only recourse. Wiggin told Florence Darrach that the case would have to involve a situation where “a married woman would be very likely to lose her life” in pregnancy if refused birth control, and opined that in the Connecticut courts “this question might be decided either way, which is the equivalent of saying that I think there is a fair chance of a favorable decision.” Wiggin was unenthusiastic about but not flatly opposed to a legislative effort, and with his acquiescence Upson, Pease, Clemow, Creadick, and former house speaker William Hanna spent a long evening closeted with State Senator Alfred M. Bingham at Hartford’s Bond Hotel drafting what would be the league’s 1941 birth control bill.18
So as purposely not to overlap with the upcoming court suit, the Bingham bill—and a similar one introduced in the state house by Westport representative Anne Arnold—spoke of authorizing “hospitals or other health institutions” with five or more M.D.s—but not individual private doctors—to “prescribe contraceptive devices to meet health problems of married women.” Some doctors complained privately about that approach, but with the legislative hearing some eight weeks away, the bills attracted hardly any public attention. Instead, birth control news focused upon an angry interreligious debate between the league’s figurehead president, Robbins Barstow, and Hartford’s Father Andrew J. Kelly, who five years earlier had denounced the “busybody humanitarians” who had opened the Hartford clinic. The Barstow-Kelly brawl had been preceded by an exchange of opposing letters in the Waterbury American between Father Francis J. Barrett and Clara McTernan, but within short order the Kelly-Barstow exchanges were front-page news all across Connecticut.
Some weeks earlier Barstow had made the simple observation that birth control was an issue of “public welfare and not morality,” to which Kelly had responded by saying that the Hartford Diocese would withdraw from an annual interfaith service on account of such sacrilege. Barstow sought to assuage Kelly’s concern, explaining that he of course thought birth control “was distinctly a moral and spiritual matter,” and for several weeks the dispute seemed to fade. Then, just after the Bingham bill was introduced, Barstow declared in another speech that “it is contrary to our American principles of civil liberty to permit a situation where one particular religious viewpoint controls legislation governing the private lives of those who do not hold that doctrinal allegiance.” Kelly responded by accusing Barstow of “aligning himself with pagan forces” and “identifying God-fearing parents with stud farm animals.” The seminary executive ought to “choose between his position as president of a Christian foundation and president of a subversive league,” Kelly added, for “if he is Christian, I am not.” Barstow replied to this outburst with polite understatement, but Kelly persevered, labeling Barstow an “agnostic” who was championing a philosophy that was “essentially, admittedly and soundly pagan.” The league subtly responded with a Hartford Courant story noting that the majority of clinic patients between 1935 and 1940 had been Roman Catholic, and for ten days the uproar subsided.19
Then, in a February 27 speech at Wesleyan University in Middletown, Kit Hepburn criticized the Nelson decision and made an innocuous passing reference to Father Kelly that was picked up by the Hartford Courant. Kelly responded that Hepburn, as a devotee of the philosophy of “naked paganism,” obviously had “little understanding of human nature” or “the content of morality.” Wesleyan President James L. McConaughy then told the Courant that while he was “very sorry” about Connecticut’s anticontraception law, he was also “just a little sorry” that Hepburn had criticized the Connecticut Supreme Court during her talk, for “I can hardly see how they could have decided otherwise than they did.” He then released a letter to Hepburn asserting that “I ardently wish that we might have birth control clinics,” and Hepburn responded that she was sorry if she had embarrassed him by her criticism of the court’s “anti-social” ruling. Another Catholic cleric, Reverend Francis J. Sugrue of South Norwalk, eagerly joined the exchange by condemning birth control’s “lecherous leaders” for advocating “reckless irresponsibility.” Kelly added that Margaret Sanger had once advocated requiring advance licensing before mothers could have children, and when Sanger called the Courant to deny it, Kelly cited a 1934 Sanger article. As matters quieted once again, Connecticut League executive director Bice Clemow told the BCFA staff in New York that “Catholic opposition is rising in the state like a tidal wave.”20
While the public and many activists had been preoccupied with these exchanges, Fritz Wiggin had sought and found a willing plaintiff. Dr. Margaret Tyler, who for four years had worked in the New Haven clinic, had abashedly refused, but in early February Wiggin, helped by longtime league activist Betty Whittemore, successfully recruited sixty-five-year-old Yale Medical School professor and private practitioner Wilder Tileston. A quiet and private man who was well-known throughout the New Haven medical community, Tileston—with active help from Margaret Tyler—set about identifying and documenting the cases of three local women for whom a pregnancy, and the absence of birth control, could be a tangible threat to their lives. On March 13 he examined “Jane Doe,” a forty-one-year-old mother of five who was referred to him by New Haven Hospital through the efforts of Dr. Tyler. Jane Doe had had her last child just two months earlier and was suffering from extremely high blood pressure; when told she must avoid another pregnancy, she had asked how. Four days later New Haven Hospital referred “Mary Roe,” a twenty-two-year-old newlywed who was suffering from ongoing lung problems as a result of having contracted tuberculosis five years earlier, for which she had spent four years in a sanitorium. Lastly, on March 20, Tileston saw “Sarah Hoe,” a twenty-five-year-old poverty-stricken mother of three children, the youngest of whom was six months old.
That same day, March 20, Wiggin filed his formal complaint in Superior Court, naming New Haven County State’s Attorney Abraham S. Ullman—who had been in the post for less than four months—as the defendant. It described the three women’s medical problems; Tileston stated that a pregnancy would be “exceedingly perilous” to Jane Doe’s life, and that “the best and safest medical treatment” for her was contraception as a “necessary preventative measure.” For Mary Roe, a pregnancy “would have a strong tendency” to reactivate her tuberculosis, which in turn “would undoubtedly disable her for a long time to come, and might cause her death.” If, through contraception, Mary Roe could avoid pregnancy for two to three years, she then should be able to have children without undue risks to her health. Sarah Hoe was presently “in good health,” the suit conceded, but another pregnancy so soon after her recent childbirth “would probably have a serious effect on her general health and might result in her permanent disability.” Additionally, a fourth child “would aggravate an economic condition already difficult, and hazardous to the health of the mother and her children.”
Having described the three cases, where “conception would probably cause (a) her death; (b) serious permanent injury to her health; (c) injury to her general health,” Wiggin asserted that the 1879 statute prohibiting Tileston from prescribing birth control for these women violated two provisions of the Connecticut Constitution and three amendments to the U.S. Constitution. Most significantly, he and Tileston contended that the law offended the Fourteenth Amendment’s guarantee against “depriving any person of life without due process of law” and also, in the context of the Amendment’s similar due process protection against deprivation of property, infringed upon Tileston’s “privilege of practicing his profession” as a doctor.21
Only five days after the case’s filing was news of it released to the press, and it received very limited publicity. Tileston told the Associated Press that “Connecticut doctors have been faced with the alternatives of turning away mothers to whom another pregnancy may mean permanent injury to health or even death itself, or of subjecting themselves to criminal prosecution,” and that the law’s intrusion had to be remedied. On April 1 there was a very brief initial hearing in New Haven which received absolutely no news coverage, and nine days later attention turned to the long-delayed legislative hearing on Senator Bingham’s reform bill.
While Robbins Barstow was the leadoff witness for the bill’s supporters, emphasizing how it would insure “the individual liberties of married citizens,” the proponents had purposely weighted their presentation to women who could speak firsthand about the importance of clinic services: Dr. Hilda Standish, Daisy M. Dennison, who had worked in the Norwalk clinic, and six former clinic patients. As two onlookers from BCFA noted, “The members of the committee listened more attentively to these women than to any of the speakers.” Twenty legislators also appeared to register their support, and then the other side took the floor, with Mrs. Francis E. Jones—whose husband had represented the opponents back in 1923 and 1931—saying that the Bishop of Hartford had asked her to register his opposition, along with that of some 131 affiliated groups for whom she also spoke. Among half a dozen opposing speakers the most notable was seventy-year-old State Labor Commissioner Cornelius J. Danaher, whom the BCFA visitors described as “a big, bull-necked, loud mouthed individual” who “pulled out all the stops” and characterized Margaret Sanger as “the crown princess of race suicide.” Then, as the hearing was breaking up, the dramatic highlight of the day occurred as forty-eight-year-old Republican Representative Bernard Matthies of Seymour, a birth control supporter, told the much larger Danaher that his had been “the damnedest speech I ever heard” and that “I have a good mind to punch you in the nose.” Danaher replied that “I’ll punch you in the nose if you don’t get out of here,” and as other legislators stepped between the two men, Matthies ended the confrontation by asking “How much did the priests pay you?”22
Proponents and press observers agreed that the bill had no prospects in the senate, and hence might not even be brought up for passage in the house, but opposition forces continued their push, with the diocesan newspaper, the Catholic Transcript, lambasting birth control as both “a flight from decency” and also “a flight to calamity.” Feeling obligated to address the hearing testimony of the former clinic patients, the Transcript declared that “the real problem is the rotten, inequitable economic system of which these people are the victims and of which many of the socially prominent birth prevention advocates are the vigilant guardians and fat beneficiaries.”
Pondering their hopeless legislative chances, Florence Darrach and other Connecticut activists realized they had seriously erred nine months earlier when they had accepted then-Governor Baldwin’s advice that birth control not be raised as an issue in the 1940 elections. In 1942, Darrach told one reporter, that mistake of deferring to the Republican leadership would not be repeated: “We didn’t start out to be politicians, but we’re sick of any party solidarity which soft-pedals our effort to legalize birth control clinics.” Mitigating that irritation was the widespread belief that the Tileston suit might well resolve the problem. Harriet Pilpel volunteered that “the complaint is an excellent job,” and Darrach told one friend that “many lawyers think that we are going to win the test case.… I am hopeful that by autumn we may be opening a few clinics” even if the legislative effort went nowhere.23
On May 13, at the prodding of birth control supporters and against the wishes of the Republican leadership, the house Public Health and Safety Committee voted twelve to three to send an amended version of the Bingham bill, one that would allow all doctors to prescribe birth control, to the house floor. One week later, after a brief and perfunctory debate and rejection by 169 to 71 of a motion to table, the house passed the bill on a vote of 164 to 64. The senate members of the Public Health and Safety Committee voted two to one against the measure, but on May 27, largely through the efforts of Senator Bingham himself, the bill nonetheless reached the senate floor, where Bingham and leading opposition Senator Joseph P. Cooney of Hartford engaged in what one paper called a “stirring” debate in front of “the largest audience of the session,” most of whom were women. Bingham declared that the central issue was “whether freedom is to be given to human beings,” but when the senate roll was called, only nine members voted in favor of the bill, and twenty-three against. Of those opponents, twenty-one were Democrats, and twenty were Roman Catholics. The Connecticut League announced that the “battle of 1943” was now beginning, and said it would single out for special attention “any politician who himself practices medically sound birth control but denies it to ill and under-privileged families.”24
Eight days after the Connecticut senate vote both houses of the Massachusetts legislature took the next step toward assuring a statewide 1942 referendum when they declined to pass the birth control proposal. Proponents had successfully overcome an attempt by opponents to derail the referendum plan on the grounds that the Massachusetts Constitution barred popular votes on religious issues, with the Massachusetts Supreme Judicial Court stating that the birth control amendment was not a religious matter. Following those legislative votes the proponents would have to submit a modest number of additional petition signatures that summer, but the referendum plan appeared to be on track for a 1942 vote.25
With the conclusion of the 1941 legislative session, the Connecticut activists vowed to take an aggressive interest in the 1942 selection of state senate candidates, particularly in politically competitive districts. Clemow and others were disappointed at the relative slowness with which the Tileston case was progressing, and because of crowded court dockets the entire summer passed without any significant developments. By mid-September Wiggin and State’s Attorney Ullman had agreed to proceed by stipulation rather than conduct an actual trial, and the Connecticut League spent the fall impatiently waiting for the case to move forward. The league’s active membership dwindled significantly in the absence of a conspicuous program, and a well-publicized mid-October dinner in Hartford featuring Kit Hepburn and chaired by Sallie Pease drew only seventy-five people. Hepburn used the occasion to reflect upon her thirty years of political activism, explaining that birth control had attracted her because “I felt that women would always be hopelessly handicapped if they did not have control of how many children they produced.” “It’s perfectly all right,” she added, “for Catholics to follow the dictates of their church, but to force their idea on other people is Nazi procedure.” Outspoken Father Kelly quickly responded by asserting that “We shall enjoy civil liberties only so long as religion is entangled with our laws,” but no rejoinder ensued. By late November Clemow warned the league’s officers that “Every week we suffer from dwindling interest and flagging courage.”26
Finally, on December 2—just five days before the Pearl Harbor attack transformed the entire American scene—Wiggin and Ullman filed the Tileston stipulation in New Haven County Superior Court. Dr. Tileston’s medical evaluations of Doe, Roe, and Hoe had been reviewed and endorsed by four prominent fellow doctors, including James Raglan Miller, and a New Haven M.D. who examined all three of the women on behalf of Ullman, Dr. Samuel J. Goldberg, likewise concurred. In Jane Doe’s and Mary Roe’s cases, Goldberg agreed, pregnancies would pose a serious threat to the woman’s life and “should be prevented by any means available.” Pursuant to both sides’ agreement, Superior Court Judge Earnest C. Simpson signed a brief order referring the questions of law posed by the suit to the Connecticut Supreme Court, and oral argument before the high bench was scheduled for early February of 1942.
The full-scale outbreak of World War II significantly hampered the Connecticut League’s ability to attract volunteers and funds, and led the officers to focus their hopes even more heavily upon eventual success in the Tileston case. In late January Fritz Wiggin and his junior colleague, John Q. Tilson, Jr., filed their brief with the Connecticut Supreme Court, arguing that the 1879 statute had been intended solely as an antiobscenity measure and should not be construed as applying to medically approved contraception in cases where serious health threats existed. The Nelson ruling, they contended, “is not inconsistent with” such a position, for it “clearly reserved for future decision the question of whether a physician may lawfully prescribe contraceptive devices where medical prescription is necessary to the life of the patient.” If the 1879 statute was read as prohibiting the prescription of birth control in such serious cases, they added, “it would be an unreasonable interference with the life and liberty of the physician and of his patients” as protected by the Fourteenth Amendment and hence would be unconstitutional.
Wiggin and Tilson maintained that Gardner was “much weakened as authority” by Corbett, which signaled “a distinct change in the opinion of the Massachusetts court.” The unspoken inference was that if the Massachusetts court could so quickly and nimbly change direction, so too could the Connecticut one. They echoed Upson’s emphasis from two years earlier that citizens possess an inherent right to protect their lives and health, and that “any attempt by the Legislature to outlaw medical contraception would be arbitrary and invalid since it would be taking from the citizen his inalienable right to liberty and health.” They concluded by trying to magnify the differences between Tileston and Nelson, for “the facts in this case are far different” and Nelson “has no application to a situation where serious injury to health or danger to life is involved.”
“Ab” Ullman was viewed as a friendly professional adversary by Wiggin and Tilson, and Ullman’s brief in opposition was calm and straightforward. It noted, as the proponents had unspokenly conceded, that Sarah Hoe’s case, unlike Doe’s and Roe’s, was indistinguishable from Nelson, and cited both the Connecticut precedent and Gardner as holding that “The language of these statutes forbids an exception for physicians under any circumstances.” Additionally, in light of Connecticut’s recent history, “The repeated rejection of proposed changes demonstrates the legislative intent to include all persons and all cases” under the statute. “We may doubt the wisdom of the statute or question its propriety,” Ullman conceded, “but the manifest intention of the Legislature of this State for all-out prohibition cannot be denied,” and for the court to hold otherwise “would in effect constitute legislation by judicial interpretation.”27
Fritz Wiggin firmly instructed the league that he did not want a large turnout of members for the February 4 oral argument, for “This would be unusual, and … might irritate the Judges,” but Wiggin received a slightly frosty reception, particularly from Chief Justice Maltbie, even in the absence of any visible crowd. One league officer congratulated Wiggin on his “calm and dignified answers” to Maltbie’s many questions, and league office secretary Mabel Robbins said that she had been similarly impressed: “I do not see how we can fail to get a favorable ruling after listening to your argument. The Chief Justice showed a decided prejudice at the beginning but it seemed to me you had no difficulty later in overcoming it.” Robbins added that her certainty that they would prevail had been further strengthened by Ullman’s argument, for it seemed as if “the prosecuting attorney was more for than against us.”
Wiggin himself, however, was a good deal less optimistic. “The Chief Justice said very frankly during the argument,” he told one activist, “that what bothered him the most was the repeated refusals of recent sessions of the General Assembly to amend the law in any way even to permit contraception under the advice and direction of physicians. He said it was asking a good deal in the face of this to request the court to read an exception into a statute which on its face has no exceptions. I gave him the best answers I could to that but I feel that if certain members of the court are favorably disposed to us, which I hope is so, they will have a hard time bringing the Chief Justice around.”28
For the next four months the Connecticut League did little more than sit and wait for the court to issue its decision. Kenneth Rose had succeeded in changing the name of the national group from the Birth Control Federation to the Planned Parenthood Federation of America (PPFA), and in May the Connecticut League followed suit, becoming the Planned Parenthood League of Connecticut (PPLC). Then, on June 2, came the decision from the Connecticut Supreme Court: a 3 to 2 affirmance of both the statute and Nelson. As before, Justices Newell Jennings and Christopher Avery dissented, but the majority opinion, supported both by Chief Justice Maltbie and Justice Brown, was authored by the Court’s sole new member since Nelson, and the hypothetical swing vote, Justice Arthur F. Ells. The legislature, both in 1879 and from 1917 to the present, had clearly intended that all contraception be forbidden: “The manifest intention of the legislature of this state, to date, for all-out prohibition cannot very well be denied.” Additionally, the legislature was constitutionally entitled to believe, and mandate, that abstinence from sexual relations, rather than the use of contraceptives, should be practiced by married women for whom a possible pregnancy could prove life-threatening. Avery and Jennings voiced agreement with the plaintiff’s contention that Nelson had been largely based upon Gardner, which had been fundamentally undercut by Corbett, but they were the minority.29
The Connecticut League was disappointed but not stunned by the outcome, and immediately vowed to appeal to the U.S. Supreme Court. National PPFA quickly suggested that PPLC engage Morris Ernst to handle the appeal, and, in part because it initially was indicated that Ernst would do it for free, and in part because Wiggin did not at first seem especially interested, the Connecticut leadership readily agreed. Everyone appreciated that it was not certain that the Supreme Court would choose to hear the appeal, but PPLC officials felt they had little choice but to hope for the best, because, as Mabel Robbins told one colleague, “it would be tragic to have to go to the Legislature again.”
In late August Ernst and Pilpel filed the initial appeal papers with the Supreme Court. A month later Ab Ullman filed a brief opposing statement, emphasizing that “the real parties in interest” in the case were Doe, Roe, and Hoe, rather than Dr. Tileston, and that in their absence as actual plaintiffs, no decision of the case on its merits could properly take place. Two amicus briefs, one by Warren Upson on behalf of Connecticut doctors, and one by Charles E. Scribner of New York on behalf of other M.D.s, were also being prepared, and a “Dear Doctor” letter soliciting signatures for the Connecticut amicus brief was mailed to some fifteen hundred physicians. Over five hundred affirmative replies quickly came in, but the letter’s tough language, indicating that physicians’ rights were “under attack” by Ullman in “a barefaced assault on the entire medical profession” understandably angered the exceedingly cooperative state’s attorney. Upson took upon himself the task of remedying the frayed relationships, and after two weeks of time-consuming exchanges among all the parties a “Dear Doctor” letter was sent out in Upson’s name telling recipients that Ullman was simply “a conscientious public servant who is doing his duty.” Finally, in late October, both Ernst’s principal brief and the two amicus briefs were filed, with a total of over seven hundred doctors listed as endorsers, a tally that drew great considerable attention in the Connecticut press.30
On November 3, however, birth control supporters suffered a huge and embarrassing setback when the voters of Massachusetts overwhelmingly rejected the referendum proposal that would have legalized the medical prescription of contraception for married women for whom a pregnancy would threaten their health. In the eyes of the Massachusetts proponents, the margin of defeat—58 to 42 percent—was wholly the result of what they viewed as an intensive Roman Catholic advertising campaign against the measure, a campaign whose featured slogan had been “Birth Control Is Against God’s Law—Vote NO.” Six months before the vote the proponents had overcome yet another legal maneuver aimed at derailing the plebiscite, but the fall campaign had been an intense and emotional affair, and the Massachusetts activists were not wholly surprised at the outcome.31
The PPLC viewed the Massachusetts result as extremely disheartening, but was overjoyed at Connecticut’s own election results: Republican Raymond E. Baldwin was returned to office as governor, and, more importantly, for the first time in twelve years there was a Republican majority in the state senate as well as in the house. This offered “a fighting chance for success” in the 1943 legislature, Florence Darrach told league members, but PPLC’s hopes remained focused on the Tileston case, and when the U.S. Supreme Court announced on November 9 that it would hear the appeal, those hopes were raised even further.
Inside the Supreme Court, however, Tileston v. Ullman looked like an unremarkable and probably fatally flawed appeal. Two serious problems were readily apparent. First, as law clerk Vern Countryman related to Justice William O. Douglas: “no ‘case or controversy,’” as required by the U.S. Constitution, “is presented on this appeal.” Ullman’s and Wiggin’s initial stipulation a year earlier stated only that prosecutors “claim or may claim” that medical prescription of birth control violated the 1879 statute, and, as Countryman pointed out, “This does not evidence a present controversy—it shows no more than that there may be a controversy now, or there may be a controversy arising in the future, or that no controversy will ever arise” with actual criminal charges being filed against an offending physician. Second, and even more notably, Countryman told Douglas, “I don’t believe that [the] Appellant,” Dr. Tileston, “has the standing to raise the constitutional questions here asserted. All of the constitutional rights which [the] Appellant contends are violated belong not to him, but to his patients”—just as Ullman had emphasized in pointing out that the three women were the real—but missing—plaintiffs in the case. “Were it not for these jurisdictional defects,” Countryman volunteered, “I believe that the case on the merits under due process is a substantial one,” and that the Court’s affirmance of Gardner four years earlier was not determinative: “this case is not similar. In the Gardner case there was no showing of the circumstances of the patients for whom the physician prescribed the contraceptives.” But Fritz Wiggin, however, had failed to include the women themselves as plaintiffs.32
Morris Ernst and Harriet Pilpel had some sense of the serious procedural obstacles that they faced, and in late November they moved to recruit the country’s top expert in declaratory judgment suits—and a personal friend of Dr. Tileston’s—Yale law professor Edwin Borchard, to their side. The proponents also agreed that both Upson and Scribner would submit supplementary amicus briefs, but despite almost daily correspondence amongst all the attorneys throughout the month of December, neither Borchard nor Ernst devoted much thought to the possibility that the Justices would consider the omission of the three women patients as plaintiffs to be a fatal flaw.33
The oral argument of Tileston v. Ullman before the Supreme Court began late in the afternoon of Wednesday, January 13, 1943, and Morris Ernst was no more than two minutes into his initial remarks when Chief Justice Harlan Fiske Stone interrupted him to ask whether the Fourteenth Amendment issue in the case, in light of Wiggin’s initial complaint, was limited simply to the question of whether the Connecticut statute deprived someone of “life” without due process of law. Ernst answered that in the initial appeal papers to the U.S. Supreme Court he had cited the full Fourteenth Amendment panoply of “life, liberty, or property,” but Stone replied that the issue here was of course limited to whatever the Connecticut Supreme Court itself had passed upon. Ernst responded that the life of the patient was indeed involved, but Stone rightfully countered that the life claim had to involve the life of the plaintiff who was invoking the Fourteenth Amendment, namely Dr. Tileston. Justices William O. Douglas and Robert H. Jackson followed up with other questions, but then Chief Justice Stone jumped back in to ask whether there really was any actual controversy here, since the original complaint had not alleged any real threat of prosecution. Ernst answered that Nelson was powerful evidence of just such a threat, and Stone replied that the complaint might have satisfied that problem had it cited Nelson, but it had not. Fortunately for Ernst, who later called the experience “most uncomfortable,” the Court adjourned each day at precisely four-thirty p.m. Warren Upson believed that Ernst had done “a splendid job” at coping with Stone’s onslaught, but there was no way of curing the original shortcomings that had been inherited from Fritz Wiggin.
Upson, Ernst, and Charles Scribner spent a good part of the evening looking up references that might help to extricate Ernst from his predicament when the argument resumed on Thursday morning, but Ernst made no more headway against the Chief Justice then than he had on Wednesday. Finally, in open acknowledgment of how dire the situation was, Ernst volunteered that if the Court concluded that Stone was indeed correct, he would request a continuance and seek a formal clarification from the Connecticut Supreme Court that “liberty” and “property” had indeed been at issue. Then Ernst introduced his colleague Edwin Borchard, who also tangled with the Chief Justice over the question of whether the 1879 statute’s very existence represented a threat of prosecution sufficient to create an actual controversy.
New Haven attorney William L. Beers, whom Ullman had hired six weeks earlier to help with Tileston, opened the opposition argument. Beers focused upon the procedural problems, contending that Dr. Tileston “had shown no substantial right of his own” to be at issue. Then Ab Ullman addressed the merits, saying that “a state has the right to control the marital relations of its citizens” and that birth control involved “moral and sociological problems that are appropriate for the legislature but not for the courts.” Ernst had reserved a few minutes of his time for rebuttal, and finally for the first time was able to speak to the merits without being interrupted by questions about the technical flaws.34
Afterward both Ernst and Upson were appropriately downcast about the likely outcome. Upson wrote Ab Ullman that “I thought that you and Bill Beers did altogether too well in arguing your side,” and to Nowell Creadick he explained that the real problem was not their opponents, but the combination of Fritz Wiggin and the Chief Justice. “I think that there are some members of the Court who would like to decide in our favor,” but “I think that the technical difficulties may prevent a decision on the merits.” If that indeed was the case, “I think we can safely assume that the majority of the Court was not with us.” Ernst told one friend that he fully expected the Court to reject the appeal, and when he and Upson met with the leaders of the Connecticut League to advise them about introducing a bill into the 1943 legislature, both men strongly recommended that a legislative campaign be mounted, for the chance of success in the Supreme Court now looked very modest indeed.
Ernst and Borchard were sufficiently perturbed at how the oral argument had gone that they agreed to take a decidedly unusual step: a postargument letter addressed to Chief Justice Stone that reiterated once again their assertion that the simple presence of Nelson as a precedent served as a more than adequate threat of criminal prosecution for a doctor such as Wilder Tileston should he prescribe contraception for a Jane Doe or Mary Roe. “During the oral argument several observations were made by members of the Court as to which there was no opportunity for comment,” Ernst cheekily asserted. “If this letter may properly be circulated and if in your judgment it would be of aid to the Court, I respectfully urge its distribution.”35
Harlan Fiske Stone neither circulated nor acknowledged Ernst’s impudent letter. He had no need to, for the outcome of Tileston v. Ullman had been decided two days after oral argument and two days before Ernst had mailed his missive. Just as the barrage of questions at the argument had suggested, there was no doubt or disagreement within the Court that Tileston was indeed a fatally flawed case. As Justice William O. Douglas jotted to himself during the Justices’ private conference, Wiggin’s citation of “‘life’ only” under the Fourteenth Amendment was not correctable. Tileston—or Wiggin—“need not have [limited] his const[itutional] claim but he did.” Stone or some other Justice noted the apparent “close collaboration between pl[aintiff] and def[endant]” that was reflected in the case’s record, and in the absence of clearer evidence of a true controversy, “we have no case here … we take cases only where there is [a] case or controversy as defined in [the] Constitution.” Chief Justice Stone said that he would prepare a brief, unsigned per curiam opinion on behalf of his unanimous colleagues explaining the case’s defects and dismissing the appeal.
On Monday, February 1, the Tileston decision was announced. It noted that Wiggin’s original complaint “contained no allegations asserting any claim under the Fourteenth Amendment of infringement of appellant’s liberty or his property rights.” Additionally, the complaint’s reference to “life” clearly meant that of Dr. Tileston’s patients, not the doctor himself, and for that constitutional argument to be made, the patients themselves, and not merely their doctor, would have to be plaintiffs in the case.36
The Connecticut League’s lawyers were disappointed but not surprised by the Court’s quick and decisive action. Dr. Tileston called the result “not unexpected” and pointed out that the issue would now go before the 1943 legislature. Warren Upson told Morris Ernst that “everybody feels that you did a superb job under difficult handicaps,” but conceded that any “further action through the courts will be difficult. The only possibility” would be “a criminal suit in which a patient is actually prosecuted,” and such a case “obviously” would be difficult to generate.
Ernst himself was both angered and embarrassed. He tried to persuade Wiggin and John Tilson to consider petitioning the Connecticut Supreme Court to reopen Tileston so that the initial defects could be corrected and the case resubmitted to the U.S. Supreme Court, but Wiggin wanted nothing more to do with the matter. Ernst broached the same idea to Upson, and Upson discussed the question with William Beer, who in turn raised it both with Ab Ullman and, very privately, with Chief Justice Maltbie and Justice Arthur Ells. Ullman already had greeted news of the decision with an odd statement for the supposed victor, stressing that the ruling “did not involve the merits of birth control” and that the statute could soon be reviewed by the legislature. Ullman was unenthusiastic about any reopening of Tileston, however, and Beer further told Upson that “both Maltbie and Ells are hostile to any clarification in the Connecticut Supreme Court.”37
Morris Ernst wanted both PPLC and PPFA to commit themselves immediately to mounting another case, this time on behalf of a patient as well as a doctor, but in Connecticut, league officials were now focusing upon the legislative session that lay immediately ahead. The Hartford Courant had responded to Tileston by stating that now the birth control debate would occur “in a considerably different climate from the one that prevailed a few years ago,” and that “a different outcome” might result because of the new Republican majority in the state senate. Upson and Yale’s Dr. C.-E. A. Winslow had helped an enthusiastic Republican house member, C. William Janson of Westport, draft the league’s reform bill, a purposely novel measure stating that only registered pharmacists could sell contraceptives. By mid-March, however, even the resolute Upson thought its chances in the senate were no better than “doubtful,” and in private league activists began to talk of searching for a willing plaintiff or two as soon as the legislative session concluded.38
The 1943 legislative hearing took place on March 31, with Warren Upson taking advantage of the unconventional bill to stress that at present the sale of contraceptives—as distinct from both “use” and the attendant “aiding and abetting” statute—was neither prohibited nor regulated by state law. Louise Fisher, once again leading the opposition on behalf of the Bishop of Hartford, forthrightly insisted that the measure “basically attacks the Catholic principles of family life and is an infringement on the moral rights of the individual in that it attempts to alter the natural law and encourages the abuse of a normal human faculty.” Labor Commissioner Cornelius J. Danaher repeated his bravura performance from the 1941 hearing, this time invoking the costs of World War II as an additional reason for opposing a bill that represented “a direct assault on our strength as a nation.” It was “a matter of national survival,” Danaher insisted, that “America must propagate the family and perpetuate the species.… There should be no rationing of babies.” Shifting to more natural ground, the commissioner added that “contraception is an offense against the moral law” before returning to his patriotic theme that “We need more men and women who think more of their country and less of their own comfort, convenience or pleasure.”
Danaher’s rhetorical dominance of the hearing was bad enough in itself, but the Hartford papers stressed the more serious news that quiet vote counting within the thirty-six-member state senate showed at least twenty firm votes against the Janson bill. On April 14, after rejecting several opposition amendments, including one to pay women two hundred fifty dollars per childbirth, the house passed the measure on a vote of 155 to 84. One week later, however, when the bill was debated in the senate, the final roll-call vote was even worse than expected, a 24 to 11 defeat. Upson and others turned a new ear toward Ernst’s and Pilpel’s renewed suggestions that a new court case be developed, and one senator advised Upson that he should discard any hope of ever getting any birth control bill through the state senate, for “in a highly Catholicized state” that “is almost next to the impossible.”39
PPFA staffers recommended that the Connecticut and Massachusetts leagues consider joining forces behind some case, but Upson warned PPFA director Ken Rose that too much emphasis on creating another case could be detrimental to PPLC: “I think it would be harmful to the organization to have the members get the impression that all they have to do is raise the money and leave it to the lawyers to win the battles.” New PPLC president Harriet Crawford Janney, an experienced social worker whose husband had authored the amicus brief in Nelson, agreed with Upson’s warning, but after one meeting of both Connecticut and Massachusetts activists to discuss a joint educational program, little occurred in either state until the beginning of the fall.40
Throughout September PPFA staffer Edna McKinnon explored test case possibilities in both Massachusetts and Connecticut. Some thought was given to the idea of simply opening a clinic, probably in Greenwich, if a willing doctor could be found, but several months passed without any significant progress. Late in the year the Connecticut attorneys realized that league sponsorship of a clinic could leave all league officers and board members open to criminal charges under the state’s all-purpose conspiracy statute, and enthusiasm understandably cooled. National public opinion polls indicated that popular acceptance of birth control was continuing to grow, with 85 percent of women—and 69 percent of Catholic women—endorsing the availability of contraceptive information. But birth control opponents remained vocal, with Father Edgar Schmiedler, Director of the Family Life Bureau of the National Catholic Welfare Conference, writing in Reader’s Digest that birth control was “a cause that threatens the whole Western world” and in particular was “a decided menace to the future leadership of the white race.” Offering a decidedly unique view in the midst of World War II, Schmiedler explained that “Japanese birth-control devices in the homes of America can be more destructive than Japanese bombers over Pearl Harbor. Bombs destroy. Birth control not only destroys but poisons.” But Schmiedler sounded pessimistic about the American future irrespective of Japanese imports, decrying “the putrid cess-pool that so much of American family life has become.” And the spread of birth control was the cause: “Loosen one thread in the moral fabric and the whole garment speedily disintegrates.”41
By early 1944 both the Connecticut and the Massachusetts activists were still trying to identify a possible test case plaintiff. Finally, in mid-March, Harriet Janney discovered an interested doctor, Josephine Evarts, in Litchfield County in northwestern Connecticut, and on March 20 both Janney and Edna McKinnon visited her. Born forty-three years earlier in Vermont, Jo Evarts had graduated from Vassar and then from Columbia University’s College of Physicians and Surgeons. She had practiced in Kent, Connecticut, since 1929, and she told Janney and McKinnon that she was intrigued by the idea of a test case in part because her father had been an attorney. She of course dispensed contraceptives to her own patients, and there were two women, one with high blood pressure, and one with kidney disease, either or both of whom might make ideal coplaintiffs. Evarts struck them as “completely fearless” yet “cautious,” and ten days later Evarts had lunch in New York with PPFA director Ken Rose and two of the organization’s legal advisors, Charles Scribner and Morris Hadley. Evarts told them that one of the patients was leaving the area, and that while she herself remained willing if a case could proceed without publicity, that she also hoped “that a doctor could be found in some other county.” The lawyers nonetheless began making discreet inquiries with attorneys and local judges in Litchfield County, and Pilpel and Ernst moved assertively to ensure that if a case indeed developed, this time they would not be left trying to repair errors that others had made at the outset.42
By the time of PPLC’s annual meeting in mid-May the prior idea of doing a public education campaign in conjunction with the Massachusetts league had been discarded, but in considering it an effort had been made to identify a possible director for the program, and a recently widowed PPLC board member, Mary Van Zile Cunningham, had become the leading candidate. “Molly” Cunningham’s late husband Gerald, the longtime rector of Stamford’s St. John’s Episcopal Church, had been an officer of the Connecticut League as early as 1928, and Molly herself had been active in the Stamford clinic in the late 1930s. Now, with the Massachusetts venture shelved and the 1945 legislative session on the horizon, the league decided that the time had come to return to having a full-time executive director of the sort that Bice Clemow had been in 1941, and Molly Cunningham was the choice.
Hiring Molly Cunningham was the best move the Connecticut League had made since Sallie Pease and Kit Hepburn had been effectively deposed four years earlier. Born in 1888 in New York City, where her father was a reporter for the New York World and her mother a Republican district leader on the East Side, Molly Cunningham grew up in a political family; a much-discussed uncle on her mother’s side was one-time Connecticut Governor Morgan G. “Crow Bar” Bulkeley, so named because of the implement he had used to gain access to the state house chamber during one particularly contentious legislative session in the 1890s. After marriage, living on the Lower East Side of Manhattan, Molly Cunningham had worked as a poll watcher at East 12th Street and Avenue C; even forty years later she would recall her happiest experience in life as having been the historic rally at the Cooper Union celebrating the ratification of the Nineteenth Amendment and the winning of female suffrage.
In seeking to legalize women’s access to birth control, “We are fighting for the same fundamental principle as the suffrage,” Molly Cunningham told that PPLC annual meeting. But no concrete progress was being made on the possible test case involving Dr. Evarts, and, despite Morris Ernst’s energetic prodding, no case was developing in Massachusetts, either. Cunningham and Connecticut president Janney began to discuss commissioning a professional public opinion poll of state voters’ views on the birth control issue as a useful weapon in the 1945 legislative session, and sometime in the summer Cunningham went to see Dr. Evarts, who indicated she was so busy that “she has not a minute for anything but her profession.” By early in the fall the Connecticut activists were focusing on the 1944 elections and the 1945 legislature, and a dispirited Morris Ernst was telling Margaret Sanger that in spite of all the meetings, letters and phone calls, “somehow nothing seems to develop” in either Massachusetts or Connecticut.43
The November 1944 elections once again returned Ray Baldwin to the Connecticut governorship, but otherwise the results were a Democratic sweep, resulting in perhaps the most unfavorable state senate the Connecticut League had ever faced. Molly Cunningham acknowledged that any 1945 birth control bill would face “sure defeat,” but an effort nonetheless had to be made. In a situation where there was little if anything to lose, Cunningham immediately undertook a most creative stratagem, politely writing to the Bishop of Hartford, Maurice F. McAuliffe, to ask “if you think any useful purpose would be served” by her and Harriet Janney meeting with him to discuss what sort of bill the league might pursue in the 1945 legislature. Not surprisingly, Bishop McAuliffe wrote back without delay to say that any meeting “would be useless” and “unprofitable,” for “the opposition of the Catholic Church to artificial birth prevention is a matter of fundamental natural moral principle upon which there can be no compromise.”44
Cunningham and Janney also lost no time in approaching Ernst and Pilpel to see if a test case could indeed be mounted as an alternative to their hopeless legislative prospects. Ernst immediately sent out a polite but pointed letter of inquiry to Dr. Evarts, asking to meet with her soon: “I am quite persuaded that a properly conducted case could be won in the United States Supreme Court without any hazard to the doctors or patients involved. The great difficulty resides in the lack of courage on the part of the medical profession.” Morris Ernst would never be accused of excess subtlety, nor of lacking in hopefulness; a prominent profile of him earlier that year in Life magazine had highlighted his “quick-smiling charm” and “constitutional optimism”; it had also noted his “constant mouthing of well-known names,” his “overpowering preoccupation with sex,” and his “mild and middle-aged tendency toward bottom pinching.” The Connecticut women were already well acquainted with both aspects of Ernst’s personality, but for them the primary question was finding a willing plaintiff, and Ernst’s upbeat insistence that victory could indeed be won was deeply heartening. Ernst similarly continued to press the Massachusetts League, but by early 1945 no case was developing there, and he likewise had received no response from Dr. Evarts to either his first letter or to a second.45
In late January Representative Philip Curtis of Norfolk introduced a bill authorizing physicians to prescribe birth control “when necessary to save life or prevent serious injury to health,” and four weeks later PPLC released the results of a statewide survey that pollster Elmo Roper had conducted in December. Seventy percent of respondents answered yes when asked if doctors should be able to supply birth control to all married couples who requested it; 85 percent said yes if the married woman “would probably become an invalid” as a result of another pregnancy. The poll news received disappointingly modest coverage in Connecticut newspapers, and no one suggested that the clear evidence of overwhelming popular support for the Curtis bill would have any effect on the state legislature.
On February 23—eleven months after Harriet Janney had first contacted her—Dr. Jo Evarts finally met with the eager Morris Ernst. She suggested he contact a Lakeville attorney whom she knew, G. Campbell Becket, and four days later Becket saw Ernst in New York. Becket in turn visited with the state’s attorney for Litchfield County, J. Howard Roberts of Thomaston, and broached the idea of an adversarial but friendly test case. Roberts said he was not at all eager to defend the Connecticut birth control statute, but nonetheless told Becket that “he would cooperate in every possible way” and that any patients’ names could of course be kept private. Evarts “still seems enthusiastic and ready to go,” Becket reassured Ernst and Pilpel, and Ernst began trying to schedule a personal meeting with Howard Roberts.46
On May 1 the public hearing on the Curtis bill took place before the joint legislative Committee on Public Health and Safety. The PPLC women played only supporting roles, and the principal affirmative speaker was a Roman Catholic union member and blue-collar worker from Stamford, John J. Hinman, who appeared on behalf of no organized group. He was followed by several ministers who were members of PPLC’s new Clergy Advisory Committee; Reverend C. Lawson Willard of New Haven’s Trinity Episcopal Church told the committee that “If this bill does not pass it will mean that one group in this state which is not the majority of the people,” will be able to “force the rest of us who are not members of that church and who do not accept their practice to conform with a practice in which we do not believe.”
The redoubtable Louise Fisher once again appeared as the leadoff opposition speaker on behalf of the Diocese of Hartford. “Contraception and contraceptive devices are against the law of nature and the law of God,” she reiterated, and twenty years of PPLC publicity “has helped to tear down the moral fiber of our young people,” leading to a new wave of “free love and trial marriages.” She was joined by a new opposition representative, Lebanon attorney Thomas J. Dodd, but their remarks were almost unnecessary. Three weeks later the Public Health and Safety Committee killed the Curtis bill without even a recorded vote, and a downcast Molly Cunningham offered a bleak forecast: “It requires more imagination than the average person possesses to become excited about the attainment of a goal as remote as changing the birth control law in Connecticut seems to be at this point.”47
Harriet Janney unsurprisingly told those who attended PPLC’s annual meeting that “court action is indicated as the way to accomplish our objectives,” and on June 14 Ernst and Pilpel finally met with State’s Attorney J. Howard Roberts. Prosecutor Roberts was polite but noncommittal as Ernst, Pilpel, and “Cam” Becket discussed a possible case, and promised to think it over and get back to them. Becket subsequently told Ernst “obviously” Roberts “doesn’t relish the extra work” that such a thankless venture would entail, and four months passed without Roberts saying anything more than that he was too busy to offer a conclusive answer.
By early fall it looked as if a helpful Bridgeport attorney, Irwin E. Friedman, whom Ernst had happened to meet in a Nantucket restaurant during the summer, might have secured a cooperative prosecutor in the Fairfield County town of Westport, but that possibility then required the recruitment of a willing Westport area doctor in place of Jo Evarts, and Molly Cunningham had no such success. In November Ernst spent several days back in Litchfield County meeting with Becket and Jo Evarts, with Dr. Evarts telling him that she now had found two ideal patients, but in the absence of any firm commitment of cooperation from Howard Roberts the matter remained stationary. Ernst pondered sending Roberts a formal letter, either from himself or Evarts, detailing the patients’ cases and notifying him that the law. was being broken, but 1945 turned into 1946 without any further developments.48
Molly Cunningham warned her colleagues against “a certain defeatism” that was openly emerging within the Connecticut League, but four months later, with nothing new having transpired, even she was confessing to the board that “the line between realism and defeatism is a rather fine one.” The widespread apathy, she said at PPLC’s annual meeting, no doubt was “due in part to the fact that many doctors continue to give and private patients receive contraceptive service” and the resulting “general impression that everyone has access to birth control information”; hence many people believed that the old 1879 statute had no actual effect on anyone. At that May 1946 annual meeting Harriet Janney stepped down after three years as league president and was succeeded by Barbara Davenport, but less than three months later Davenport resigned because her husband’s business activities required her to be in New York City full time. Two months went by before a successor, Julie Howson, a longtime activist who fifteen years earlier had been a staff member at the American Birth Control League office, was selected and confirmed, and most of 1946 passed without the Connecticut League wrestling with anything more significant than these dual successions of officers.49
In mid-October of 1946 PPLC finalized plans to introduce another doctors’ bill in the upcoming 1947 legislature, and arranged for the measure to be formally sponsored by a committee of one hundred leading Connecticut physicians. When the November elections resulted in a huge Republican sweep, Molly Cunningham rapidly spread the word that “the legislative outlook is the best in a great many years,” as twenty-seven Republicans—and only nine Democrats—would be in the 1947 state senate. Hence the bill would have “more than a good chance of success,” and Cunningham notified Ernst and Pilpel that the still-uncertain test case prospects should be put on hold until after the spring legislative outcome was known.50
On Friday, February 7, Avon Republican Representative John deK. Alsop introduced House Bill 953, authorizing physicians to prescribe contraceptives if a doctor believed that a pregnancy “would endanger the life or injure the health of a married woman.” Alsop, a thirty-two-year-old Yale graduate who had won a Bronze Star and France’s Croix de Guerre for a high-risk operation behind Nazi lines while serving as a captain in the OSS, was a prominent young star in state politics and was widely viewed as a likely future governor. His sponsorship was a major coup for PPLC, but the bill’s prospects were nowhere near as rosy as Molly Cunningham initially had predicted. The composition of the Public Health and Safety Committee was less than ideal, and, much more importantly, ten of the senate’s twenty-seven Republicans were Roman Catholic, as were seven of the nine Democrats. Alsop warned Cunningham that Republican Party leaders were saying privately that the bill’s chances were “quite doubtful,” and he recommended that the proponents keep a low public profile until the bill had been reported out of committee. The savvy Cunningham took Alsop’s warning to heart, and called on Harry B. Strong, chief of staff to newly elected Republican Governor James L. McConaughy, who had been caught in the crossfire of the Kit Hepburn-Father Kelly birth control exchanges six years earlier when he was president of Wesleyan. Back then McConaughy had said publicly that “I ardently wish that we might have birth control clinics,” but now, Strong told Cunningham, “the Governor will take no sides in the matter.… He will neither interfere nor make any expression on the bill.” Just as Alsop had indicated, evidence was mounting that the Republican leadership, now facing a new political scene in which a good portion of the party’s own supporters and elected officials were Roman Catholics, wanted no part of championing the legalization of birth control, especially if it might prevail and Republicans receive the potentially harmful credit.51
The tenor of the 1947 legislative battle underwent a sudden and angry shift in early March when the Diocese of Hartford threatened to cancel the Catholic hospital staff privileges of five physicians whose names had appeared in state newspapers as members of the Committee of 100 doctors backing the Alsop bill. Two Bridgeport M.D.s, Elwood K. Jones and Allen F. Delevett, were notified that “it is utterly incompatible for a doctor on St. Vincent’s Hospital Staff … to publicly endorse and engage in the Planned Parenthood Program” and that “either you withdraw your name from the Committee” within one week “or you must resign from the Courtesy Staff.… We feel strongly that right is right and there can be no other alternative.” Similar notices were sent to three Waterbury doctors regarding their staff privileges at St. Mary’s Hospital.
The March 11 legislative hearing on the Alsop bill took place just several days after those letters were circulated, and two of the Waterbury doctors, Joseph L. Hetzel and Arthur H. Jackson, were among more than a dozen Connecticut physicians who joined other sponsors to speak in support of the measure. Alsop himself tried to sound optimistic about his bill’s chances, and sought to rebut newspaper reports that it had little likelihood of passage, but even the optimistic Molly Cunningham showed a private tally of sixteen firm no’s, only thirteen yes’s, and seven uncommitteds. Opponents from previous years such as Louise Fisher and Thomas Dodd were joined by a new representative of the Hartford Diocese, former state Senator Joseph P. Cooney, but the extensive press coverage of the hearing focused almost exclusively on news of the imminent dismissals facing Hetzel, Jackson, and their equally unrepentant colleagues.52
The Alsop bill remained quietly in committee for the balance of the month, but the diocesan threats against the doctors helped mobilize new support for the legalization of birth control. The Hartford Courant editorialized that the only real issue was “the right of physicians to put science at the service of their patients,” but that endorsement provoked Hartford’s vociferous Father Andrew J. Kelly to insist that “human legislators have no jurisdiction to change divine laws.” The “suicidal individualists” who were the “proponents of birth prevention are not out to change a particular statute,” Kelly warned. “They would change, and by change I mean liquidate, the eternal moral code which makes man, in all his human acts, responsible to his Divine Creator.”
In late March the five targeted doctors wrote to Hartford Bishop Henry J. O’Brien firmly requesting reinstatement of their staff privileges at St. Vincent’s and St. Mary’s, but on April 2 Father Lawrence E. Skelly, the diocesan director of hospitals, notified them that the church would not reconsider: “The action taken by the Hospital has nothing to do with your right to your opinion or belief in any matter professional or otherwise.” If the diocese did not terminate their privileges, Skelly said, “your public action might give the impression that the Hospital endorses your views on this question.… The Hospital had no choice save to take action which would as directly, as distinctly and as publicly disassociate itself from your stand.” The doctors responded with a public letter sent to each member of the Connecticut legislature, emphasizing how the diocesan retaliation for their taking a public stand on an issue pending before the General Assembly represented “a serious threat against the right of physicians to free speech on medical subjects.”53
Several town and county medical societies released formal statements condemning the dismissals, and a veteran Republican legislator from Bridgeport called for terminating state grants to the offending hospitals until the doctors were reinstated. A representative of the Waterbury Ministerial Association met privately and unsuccessfully with the diocesan chancellor to urge reconsideration, and the American Civil Liberties Union contacted the doctors seeking a full report on what had transpired. Then, on April 24, the Public Health and Safety Committee approved the Alsop bill by a vote of thirteen to six, and public attention shifted back to the legislative scene. Reporters were saying that confirmed senate opponents numbered at least twenty-two, while sympathetic legislators indicated it was only nineteen, and PPLC activists focused upon a series of evanescent rumors that one or another declared opponent was privately having second thoughts.
Late in April the Connecticut State Medical Society’s House of Delegates voted overwhelmingly to endorse the Alsop bill, and on May 7 the house passed the measure by a wide margin in a standing rather than recorded vote. But the outlook for the senate vote, scheduled on May 14, remained either bleak or hopeless. The Courant weighed in with another powerful editorial, declaring that “this is a vote on the legal rights of responsible physicians, and nothing else,” but when senate Republicans caucused privately on the Alsop bill later that same day, the internal tally showed twelve no’s, eleven yes’s, and four uncommitted or absent. The two most committed senate backers of the bill, Herbert S. MacDonald and Charles S. House, had planned to push for a roll-call vote on the floor if the private Republican tally looked more promising, knowing that several wavering members would more likely vote in the affirmative if their position was to be formally recorded, but the caucus result precluded that effort. The following day, May 14, when the bill was called up on the senate floor, the outcome was preordained, and the roll was not called. Reporters watching the voice vote on which the bill was defeated guessed that the margin was 23 to 12, with all nine Democrats being joined by fourteen Republicans, but Senator MacDonald later remembered hearing “19 audible ‘Nos’ … 14 vociferous ‘Yeas’, and three carefully disguised mumbles.”54
The legislative defeat was yet another dispiriting experience for PPLC. The Courant noted that the absence of a recorded senate vote “reflects little credit” on the legislature, and rued that P. T. Barnum’s “hypocritical anachronism” would continue to remain a valid state law. “One of these days Connecticut will yet emerge into the twentieth century.” The more conservative Hartford Times, however, rebuked its morning rival by editorializing that “it is idle for proponents of the legislation to insist that only a medical or health question is involved and not a religious or moral one, as long as a great religious organization holds to the contrary and its members”—or at least those holding legislative office—“are loyal to it.” Dr. Hetzel of Waterbury hoped the ACLU would consider possible legal action against the Catholic hospitals for dismissing the doctors in retaliation for exercising their right of free speech, and when four doctors in Massachusetts—where birth control proponents were just beginning to work toward another referendum vote in 1948—were similarly terminated in late May, Hetzel suggested joint action and pointed out that the retaliatory actions had widened the birth control effort into a wider civil liberties struggle. Molly Cunningham made much the same point at PPLC’s annual meeting, reminding her colleagues that “our particular fight is merely part of a larger and broader battle,” but in Waterbury Dr. Charles L. Larkin, the senior medical staff member at St. Mary’s—and the same man who had played such a shy and curious role in the 1939 Chase Dispensary situation—publicly rebuked Hetzel for pursuing the matter. There was no doubt, Larkin said, that Hetzel and his colleagues had been “working against one of the basic beliefs of the Catholic Church.” There was likewise no doubt that the diocesan authorities had “a right to make such a ruling,” and “There is no reason why we cannot go along just as we have in the past.”55
The ACLU offered the doctors its formal support, but by mid-June most of Hetzel’s colleagues had decided not to initiate a law suit. Both Hetzel and one other physician, Oliver L. Stringfield, pondered the question for several more months before likewise deciding no, and PPLC as well again turned its attention toward possible court case challenges to the Connecticut law. Nothing new emerged there, however, and the league began to consider involving itself in the 1948 state legislative elections on a specific senate district by senate district basis. By mid-October seven senate districts whose incumbents had not supported the Alsop bill, and which were susceptible to an electoral switch, had been identified, and PPLC started targeting those specific seats for intensive efforts in advance of the 1948 elections. By early 1948 actual organizing work was underway in four of those seven districts, and in April a half-time field worker, Nancy Doggett Williams, was hired to concentrate upon those areas. “Armed with a Vassar Alumnae address book and her own ingenuous personality,” PPLC president Julie Howson told league officers, “she is able to find committee chairmen in the most hopeless districts.” Also that spring, Boston Archbishop Richard J. Cushing delivered a major antibirth control speech in Hartford, declaring that “contraception is anti-social and anti-patriotic as well as absolutely immoral,” but otherwise the first six months of 1948 were relatively quiet. John Alsop advised Molly Cunningham that a PPLC defeat of even a single opposing senator could very well trigger enough reaction to insure 1949 passage of a birth control bill so long as Republicans did relatively well in the 1948 elections, and hopes for actually winning such a long-awaited triumph gradually increased.56
By July 1948 PPLC was concentrating its efforts upon two districts whose Republican incumbents had opposed the Alsop bill: Stanley Stroffolino in South Norwalk and Darien, and Alice V. Rowland in Ridgefield and Danbury. An attempt to block Stroffolino’s renomination as a Republican had failed, and a similar effort against Rowland was torpedoed when the families of the two principal PPLC volunteers were explicitly threatened with economic retaliation or worse if they did not desist. The leading volunteer had brushed off a visit by three unknown men who had “told her that she would be wise to stop her political efforts and hinted that there were many ways” in which she or her family might be penalized, but one week later the woman, “obviously on the verge of tears,” phoned Molly Cunningham: “My husband and I thought that we were unreachable, but we find we are not. We have just had a letter from a lawyer that is upsetting to us both. I am not at liberty to tell you any more about” it, the woman said, other than that it involved a local Danbury police court. PPLC then turned its efforts toward supporting Rowland’s Democratic—and probirth control—opponent, Minna Geddes, but on the Sunday before the November election a statement was read from the pulpits of each and every Catholic church in the district, informing parishioners that the Republican candidate, rather than Geddes, had to be backed: “support of any candidate advocating birth control measures is a violation of the natural law of God which the Catholic church and Catholics are duty bound to uphold, and for any person to support such a program is a violation of the Sixth Commandment of Almighty God.” As Father John J. Kennedy of Danbury’s St. Peter’s Roman Catholic Church told reporters, “this is not a political issue, but one of a question of natural moral law,” and “no Catholic person in conscience can support any candidate favoring such legislation.”57
Alice Rowland and Stanley Stroffolino both won reelection, and elsewhere other results were even worse: Democratic victories across much of Connecticut insured a total of at least twenty-one birth control opponents in the state senate, and in Massachusetts the referendum vote to legalize medically necessary birth control went down to defeat by a large margin—57 to 43 percent—that was almost as wide as the 1942 loss. Boston Archbishop Richard J. Cushing and the Boston Archdiocese had mounted a major campaign against the measure, utilizing weekly pulpit announcements and extensive radio ads that employed an updated slogan hearkening back to 1942: “Birth control is still against God’s law.” The church effort had been much more intense and outspoken than six years before; several months prior to the vote Boston College Law School Dean William J. Kenealy had told a legislative audience that use of birth control transformed marital sex into “mutual masturbation” and “a gross abuse of a God-given faculty” that hence amounted to nothing more than “pleasure by means of an unnatural act.” Any form of contraception, Kenealy had insisted, was “intrinsically evil and is therefore never justified”; the “only moral remedy is either periodic or total abstinence.”58
In the aftermath of both the Massachusetts and Connecticut setbacks, Molly Cunningham and her PPLC colleagues resolved to go through the motions of supporting a 1949 version of the Alsop bill even though there admittedly was no chance of success. Casting about for other options, PPLC thought again of initiating some kind of test case; as Cunningham told Harriet Pilpel, “I am becoming obsessed slowly but surely with a desire to somehow get off the dead center in which we find ourselves.” Cunningham’s deputy Nancy Williams wrote to her old friend Dorothy Bowles, whose husband Chester had won the Connecticut governorship in the Democratic sweep, but Mrs. Bowles responded brusquely that “I am afraid I cannot discuss with you the subject most on your mind. The Planned Parenthood Program is unquestionably a religious issue and for that reason I really cannot discuss your problem.” Just as with previous, supposedly progressive governors such as Republican Ray Baldwin and Democrat James McConaughy, so too with liberal Democrat Chester Bowles would the legalization of birth control remain an untouchable issue.59
In early February a 1949 edition of the doctors’ bill was introduced in the legislature by Bozrah Republican Representative Lawrence M. Gilman. New PPLC president Katharine B. McKinney attempted to recruit Margaret Sanger to come to the state and speak at PPLC’s annual meeting, confessing that “We are at a low ebb in our efforts to get the law changed here and we badly need the inspiration.” The effort went awry, however, when McKinney was told that “Mrs. Sanger was willing to speak … provided that [PPLC] was willing to adopt a militant policy against the Roman Catholic Church. It was decided,” the board concluded, “that the League could not adopt such a policy at this time and therefore would withdraw the invitation to Mrs. Sanger to speak.”
The legislative hearing on the Gilman bill took place on April 12 and was largely a rerun of previous years’ proceedings. Gilman himself announced that he would willingly amend the measure so as to authorize the medical prescription of birth control only in life-threatening situations, but less apologetic proponents included a representative from the Connecticut Conference of Congregational Churches and the president of the Connecticut State Medical Society. Other doctors who spoke for the bill included Hilda Standish and Josephine Evarts; the opponents also featured several physicians plus diocesan representatives Louise Fisher and Joseph P. Cooney, as well as a Meriden state senator who had introduced a bill prohibiting legislative consideration of any birth control proposals for the next four years. A representative from Ansonia tellingly declared that “A bill of this nature is an insult to the Catholic people in our great state,” and Ridgefield Senator Alice Rowland inquired as to why the proponents did not favor a statewide referendum vote, as in Massachusetts, even though Connecticut law did not provide for such an option.60
Three weeks after the hearing the Public Health and Safety Committee approved the Gilman bill on a secret ballot vote of twelve to five, but with observers reporting a minimum of twenty-six senators in firm opposition, the measure was not brought to the floor of either the house or the senate. Molly Cunningham immediately told her colleagues that “It is not at all too soon to be thinking about the nominations and elections” of 1950, but nothing of any political significance occurred during the balance of 1949. PPLC president Katharine McKinney passed away unexpectedly in September after a sudden illness, and was replaced by her predecessor, Julie Howson, at much the same time that the leaders of the Massachusetts League were told by their lawyers that any test case should be brought not there but in Connecticut. Molly Cunningham continued to look for just such an opportunity throughout the fall and then into the early months of 1950, but nothing whatsoever materialized. In mid-February the sixty-two-year-old Cunningham informed the board that she wanted to step down as executive director as of the end of May, and the board easily and immediately agreed that Nancy Doggett Williams should step up to be Cunningham’s successor.61
On May 18 Molly Cunningham delivered her sixth and final annual report as PPLC’s executive director. She emphasized that “one of my greatest disappointments is that no suitable court case has been found,” and reminded the board that “the fundamental issue of our fight to change the Connecticut birth control law is that of civil liberties.” She had to concede that the outlook was not bright; doctors’ enthusiasm for actively supporting reform seemed to be waning, and two Yale Law School students who had undertaken an exhaustive survey of the league’s strategic options had come up with little to recommend. A new president, Mary Parker Milmine, would be succeeding Julie Howson, and Cunningham herself was not exactly retiring; that fall she would win election to the state house as a Republican representative from New Canaan.
Other than Cunningham’s victory, PPLC activists found relatively little to celebrate in the November 1950 election results. Chester Bowles was turned out of office by Republican John Davis Lodge, but the Democrats retained a nineteen to seventeen majority in the state senate. Back in 1948 a few Republicans privately had mused as to whether the birth control issue was partially to blame for Bowles’ victory, in that the Catholic church’s electoral activism in selected legislative races might well have increased turnout among top-of-the-ticket Democratic voters, and now the same theory was bandied about once again to explain the narrow loss of Republican U.S. Senate nominee Prescott Bush to Democrat William Benton—even though Lodge at the same time had topped Bowles by some seventeen thousand votes.62
Given the dim legislative outlook, new PPLC president Molly Milmine, a Bryn Mawr graduate whose husband was assistant headmaster of an exclusive prep school, pressed for continued consideration of test case ideas as well as preparations for a 1951 doctors’ bill. The initial legislative plan was to have four identical bills introduced—one each by Republican and Democratic members of both the house and the senate, but only three materialized, as not a single senate Democrat was willing to publicly support the legalization of contraception. In part the problem was that party leadership control of the legislature, and particularly the senate, had grown tighter and tighter in the five years since Hartford political boss John M. Bailey had become Democratic state chairman, with real authority being exercised by Bailey rather than by the elected legislators; in part the problem more specifically was the result of Bailey’s extremely close, life-long friendship with former Hartford state Senator Joseph P. Cooney, who had been hired as principal legislative counsel and lobbyist by the Hartford Diocese several months after Bailey had become head of the state Democratic party.
Bailey was forty-seven, a graduate of Catholic University and Harvard Law School; Cooney was forty-four, a graduate of Georgetown University and Georgetown Law School, and in 1929 the two had begun a law practice together. In early 1933, during the second of four terms in the state senate, Joe Cooney had successfully sponsored Bailey for Bailey’s first public post, a two-year appointment to a Hartford Police Court judgeship. The two had remained close ever since, and once Bailey became Democratic party chairman in 1946, the centralization of political power in Connecticut quickly returned to a level that had not been seen since the heyday of Republican J. Henry Roraback two decades earlier. By the time that the 1951 legislature convened, Bailey’s power reached even well beyond the unusual authority of selecting Democratic floor leaders and committee chairmen; in the senate he employed the private caucus of the Democratic majority as a vehicle for all but totally eliminating public roll call votes from the senate’s procedures. During the entire 1951 session only eight roll-call votes took place in the senate, and on none of them did even a single Democratic senator vote against the Bailey leadership’s position.63
PPLC’s three identical doctors’ bills were introduced in the house and senate on January 30, but league officials had no serious hopes of success. Prior to the April 11 hearing the issue received almost no public attention, but officials of the Hartford Diocese convened two private meetings, one in New Haven and one in Hartford on the day of the hearing, to be certain that opponents would be appropriately represented and otherwise well-prepared. Diocesan chancellor Monsignor John J. Hayes chaired both sessions and was responsible for overall strategy, Joseph Cooney later indicated, while Cooney himself was in charge of organizing the appropriate speakers for the hearing. “The purely political aspects of the matter,” Cooney explained, “were taken care of by Monsignor Hayes,” who “directly approached the senators.” Hayes also “arranged to have letters sent to Senators and Representatives by constituents,” and also “arranged for women to sit in the galleries at the hearing and to voice their opposition.”
The official diocesan representatives, including Cooney and Louise Fisher, played a smaller role at the actual hearing than did a number of outspoken legislative opponents of birth control. Bridgeport Representative Wilton Reinhardt insisted that “I think these bills can well be a step toward legalizing abortion,” but overall, as the Hartford Times observed, “much of the bitterness evidenced at previous hearings was lacking” at the 1951 one. The two principal affirmative speakers were New Haven’s Reverend C. Lawson Willard and West Hartford urologist Dr. Robert H. Hepburn, whose mother—and PPLC’s landmark activist—had passed away less than a month earlier. Willard afterward thanked the committee and formally reminded them that the bills were designed “entirely to protect the health and lives of mothers,” rather than to facilitate “the limitation of the number of children,” but the proponents full well realized that no birth control bill, under whatever rationale, would ever be passed by John Bailey’s state senate.64
The prominence of the Bailey-Cooney alliance influenced a number of onlookers, including PPLC president Molly Milmine and executive director Nancy Williams, to adopt a harsher, Sanger-like attitude toward the Catholic hierarchy than previously had characterized the Connecticut reformers. One New Haven protestant minister, new to the state, told Milmine after watching the opponents’ performance at the hearing that “When you witness the bigotry and the blindness of the Totalitarianism of the Roman Catholic Church in this country, you can see that we have a real problem on our hands here.” Milmine replied that he was quite right: “I entirely agree with you that we are fighting here something which is potentially as dangerous as Totalitarianism, and am tempted sometimes to rush the League into this more important and imminent fight.” By mid-May, with the birth control bills still in committee, Nancy Williams underscored “the growing problem of Catholic domination in government” to PPLC’s board. “The undeniable control by the Roman Catholic church of the Democratic party” had forged “the chains which bind the state Senate”; it also raised, in Milmine’s words, the larger issue of “the danger the church is to the freedom of the individual.” And, as Williams trenchantly explained, it was all on account of “a law which the Catholics themselves do not respect and which stays on the books for one reason only. It is a symbol of Catholic power.”65
By the third week of May the Public Health and Safety Committee had voted eleven to four in favor of a birth control bill, but only after herculean efforts by Cornwall Representative Frank E. Calhoun did the measure actually make it to the house floor. On May 28 it passed on a vote of 121 to 62, with only three Democrats in favor, and ninety-two members not voting. Senate Public Health and Safety chairman Frank J. Monchun refused to bring the measure to the senate floor, however, despite a PPLC letter-writing campaign and distribution of leaflets in his Windsor district. The flyers attacked the 1879 law as “an infringement of personal liberty” and explained how PPLC’s doctors’ bill would protect “this ‘freedom of choice’ which is our birthright.” Molly Milmine attempted to arrange a face-to-face meeting with John M. Bailey, “but each and every attempt to approach him proved futile.” As close observer and former state Senator Herbert S. MacDonald commented on the unbreakable 1951 senate logjam, “All too obvious was the force of the State Democratic Chairman whose allegiance to the Catholic Church was all that was needed!”66
In the wake of yet one more legislative defeat, the PPLC leadership once again turned its focus toward potential court cases. At least one board member suggested they consider opening clinics in several cities “to test the actual enforcement of the present law,” but Milmine continued to ponder some of the complicated declaratory judgment possibilities that had been suggested by the two Yale Law School students a year earlier. More experienced legal advisors judged those options too difficult to succeed, and spoke more positively of an actual clinic venture, but when Nancy Williams solicited Wiggin and Dana’s opinion, Fritz Wiggin offered a distinctly chilly evaluation. There was no reason to believe that the Connecticut Supreme Court would decide differently on the basic question than it had back in Tileston, Wiggin declared. While there was “a reasonable possibility” that the United States Supreme Court might void the statute on Fourteenth Amendment due process liberty grounds if a criminal conviction under it was placed before them, any Connecticut prosecutor faced with a clinic opening might well proceed simply under the state’s all-purpose conspiracy statute rather than get tied up in trying to win convictions under the use and aiding-and-abetting provisions. Faced with Wiggin’s pessimistic perspective, Milmine, at the urging of Hartford insurance lawyer Buist Anderson, turned instead to a new and much younger possible lawyer, Hartford tax specialist John H. Riege, and in October PPLC formally asked Riege to survey test case prospects and report back by mid-December.67
In early November Riege met privately with retired Connecticut Chief Justice William M. Maltbie “and had a very interesting and helpful discussion with him for an hour or so concerning some of our problems,” Riege told Milmine. Then in December Riege briefed the PPLC board on their potential legal options, explaining that the best possibility appeared to be a suit by a doctor and several patients requesting a declaratory judgment and an injunction against the 1879 statute from a federal district court. “The probability of obtaining a favorable decision in the [federal] District Court is greater than in the Connecticut Supreme Court,” Riege explained. Additionally, any case involving an actual criminal prosecution of a doctor and/or patient would run the risk of significant punishment if the Connecticut courts, as expected, continued to follow Nelson and Tileston, and if the U.S. Supreme Court—as was “perhaps even probable,” Riege warned—declined review pursuant to Gardner. Accepting Riege’s projection that the chances of success were “reasonably good” in a federal declaratory action, the PPLC board authorized him and Milmine to proceed with further work toward creating such a case.68
During the early months of 1952 PPLC attempted to settle on a more experienced federal appellate litigator who could handle a case in conjunction with Riege. Some members objected to selecting Morris Ernst, and the Connecticut lawyers turned toward two other New York possibilities, Whitney North Seymour, of Simpson, Thacher and Bartlett, and John M. Harlan, a partner of the husband of one of PPLC’s board members, Laura Bushby. Talk of PPLC’s plans spread, and Riege scheduled a mid-March meeting with Seymour. Then, early in March, Milmine, Nancy Williams, and Laura Bushby all received telephone calls from the campaign manager for 1952 Republican Senate contender Prescott Bush. The manager “asked that the Planned Parenthood court case be postponed for the sake of Mr. Bush’s campaign,” but Molly Milmine “had replied that in her opinion postponement would be impossible.” When this news was shared with the board’s executive committee, former president Julie Howson “suggested that information about the nature of the case might reassure Mr. Bush, and it was agreed that this information [would] be given through Mr. Wilkie Bushby,” the board member’s husband. Riege’s meeting with Whitney Seymour and his son Whitney, Jr., as well as PPFA attorney Fifield Workum, another Simpson, Thacher partner, took place as scheduled on March 20, and by early May preparatory work was underway, with a clear understanding that nothing would be ready for actual filing in advance of the November 1952 elections.69
PPLC’s annual meeting agreed to shift the state office from Hartford to New Haven. Office manager Mabel Robbins, who had been with the league for over sixteen years, going back to the early days of the original Hartford clinic, would be retiring at the end of June, and by late May PPLC had arranged to rent space at 38 Trumbull Street, in a largely residential block of lovely nineteenth-century town houses, just down the street from where Nowell Creadick had housed the league’s office in the 1930s at 79 Trumbull. In late August, with nothing further having occurred concerning the possible court case, Seymour, Jr., alerted Riege that he and his father were coming to think that the procedural hurdles involved in any federal suit were considerable, and that even if those were overcome, the likelihood of success on the merits was “no better than fifty-fifty.” He recommended that PPLC focus instead on legislative reform possibilities, but Riege reminded him in reply that “there is practically no chance of obtaining relief from the Connecticut Legislature” and that odds of fifty-fifty in a court case were much better prospects than anything else available. To Milmine, Riege put their choice somewhat more bluntly: “we do not see how the political situation could deteriorate much further.”70
In mid-October Milmine and Riege went to New York for a major meeting with both Seymours. Seymour, Sr., now estimated their chances at 45 percent and recommended that PPLC wait until the conclusion of the spring 1953 legislative session; he also suggested that they probably should file an action in state rather than federal court. Three weeks later PPLC’s strategic options shifted dramatically when the fall election results showed a Republican sweep and an apparent count of seventeen or perhaps eighteen firm supporters of birth control legalization in the thirty-six member state senate. In mid-November the board agreed to concentrate upon a legislative campaign, and Milmine advised Riege to focus on who ideally could litigate a state court test case come mid-1953 should that indeed prove necessary. By mid-January Riege had recommended and Milmine had interviewed a young partner at the Hartford law firm of Robinson, Robinson, and Cole, Bruce W. Manternach, and a legal fallback seemed ready should the legislative route fail once again.71
On February 3 the 1953 version of PPLC’s doctors’ bill was introduced by Fairfield Representative Norman K. Parsells. Within several weeks, however, indications of its likely prospects turned starkly negative with word that Republican Party leaders were fearful of future electoral fallout should the bill indeed pass and then be signed into law by Republican Governor John Davis Lodge. Moving swiftly to try to sidestep any Republican leadership decision to simply keep the bill in committee, PPLC leaders requested a personal meeting with Governor Lodge.72
On Thursday, March 12, Nancy Williams and PPLC legislative committee chairman Jane Daniells met with Lodge and his chief of staff, former state Senator Charles S. House. Apparently the session was an unmitigated disaster, with the prickly Lodge believing that the PPLC duo had obtained the appointment under “false pretenses.” Within several days, as PPLC supporters from around the state wrote to Lodge urging him to back the Parsells bill, the governor apparently concluded that Williams and Daniells erroneously had passed the word that Lodge was opposed to passage. “I did not express an opinion on [the] legislation & I did not say I wanted to kill it,” an angry Lodge jotted to himself. Lodge evidently had intimated to his visitors that perhaps the legislature might pass a bill providing for a popular referendum on birth control legalization, with the unspoken suggestion being that he and the Republican leadership would approve only this, as no referendum outcome could be blamed on the governor or his party. Republican National Committee member Meade Alcorn then sent Lodge a brief memo John Riege had prepared at Alcorn’s suggestion, arguing that if a bill was not passed in 1953, the issue would only loom larger in future elections, and another PPLC supporter, Fairfield County attorney Leonard D. Adkins, began peppering the governor with feisty letters challenging him to start enforcing the 1879 statute if he did not believe it should be altered. The often-indecisive Lodge replied only that “I have expressed no opinion” on the Parsells bill.73
The 1953 hearing on the birth control measure was held on April 1, and it was a relatively brief and understated affair. Joe Cooney once again led the way for the diocesan opposition, and he quickly took the opportunity to throw down the political gauntlet of a popular vote resolution of the issue in the face of the bill’s proponents: “It is our contention that the opponents of this bill are not a minority, and that any time the legislature wants to place the matter on a referendum, it will prove conclusively that our viewpoint is upheld by the majority of Connecticut citizens.” Four days later Cooney repeated his suggestion, recommending that a birth control referendum be held in conjunction with any regularly scheduled state election, and Connecticut’s newspapers gave wide voice to his challenge.74
PPLC lost little time in objecting to the referendum idea, arguing that it would be unconstitutional, very costly, and likely would incite religious strife. The Public Health and Safety Committee on April 7 voted 12 to 9 against a referendum proposal, in spite of reports that Governor Lodge and Republican leaders strongly backed the idea. Committee reconsideration was scheduled for April 15, and a number of advisors and supportive legislators advised PPLC to accept a referendum measure, whether or not it would prove constitutional. Senate committee chairman Benton H. Grant of Stamford privately advised Molly Milmine that “a bill with referendum may be able to pass the Senate,” where as one without such a requirement stood “no chance whatsoever,” but on April 14 the PPLC board voted unanimously to oppose any referendum proposal and to seek legal action to block it should it emerge from the legislature.75
On April 15 the Public Health and Safety Committee adopted a referendum amendment by 10 to 8 and then approved the amended bill by 11 to 8. The following day, amid rumors that the Roman Catholic hierarchy, despite Cooney’s public pose, actually opposed any birth control referendum, diocesan Chancellor Hayes met privately with Governor Lodge in Stamford. Hayes reminded the governor how strongly the church supported the 1879 statute, evidently stressing how “the use of the sex function solely for pleasure … is an unnatural practice.” Of course, Hayes noted, “we are not trying to impose our religious views on others,” but “we feel that the moral principles which are the foundation of this law are unchangeable.” Much more pointedly, the chancellor also told Lodge that “passage of the bill would be indelibly associated with your party administration and your leadership,” and warned that any referendum would only stimulate interfaith bitterness. “We would, of course, win overwhelmingly as they realize, but at the risk of much unpleasantness.”76
Senate chairman Grant, who had emerged as a reluctant champion of the referendum measure, tried to persuade Molly Milmine that PPLC should change its mind and accept a popular vote, but on April 23, to Milmine’s tremendous relief, Legislative Commissioner Elmer S. Ryan formally ruled that any referendum bill would be unconstitutional. That resolved PPLC’s most immediate worry, but it also all but guaranteed that no other version of a birth control bill would emerge from the 1953 Connecticut legislature. Senator Grant explained to one constituent that given the number of districts that encompassed urban, Catholic voters, the religious composition of the state senate, irrespective of party, was unlikely to change anytime soon. Hence the prospects for any legislative legalization of birth control were unlikely to get any better even in future legislatures: “I do not expect the existing statute to be altered in any way within a generation.”
Molly Milmine and other onlookers reluctantly acknowledged that Senator Grant was undeniably correct. Milmine already had put Bruce Manternach in touch with a Sharon physician, Dr. Robert L. Fisher, who had suggested he might act as a test case plaintiff along with a patient or two, and now Warren Upson added his voice, telling Milmine he was “enthusiastically in favor” of court action. “I believe that the existing law is unconstitutional” and would be so declared if and when the question came before the United States Supreme Court on the merits.77
PPLC nonetheless did not want to give up the 1953 legislative fight without at least some further struggle, but on May 5 the Public Health and Safety Committee tabled the birth control bill by a vote of 11 to 8. The birth control story remained in the news, however, when Yale Law School professor Vern Countryman—Justice Douglas’s clerk on Tileston—took United Press International correspondent David Robinson on a Saturday afternoon visit to a Liggett Drug Store in Hamden, where for three dollars Countryman easily purchased a box of Ramses condoms. “From the drug store,” Countryman later recounted, “Robinson and I went to the Hamden Police Station where I approached the lieutenant on duty at the desk, showed him my purchase, and said I wished to file criminal charges against the drug store. The lieutenant’s response was that the articles I had purchased were legal.” Countryman unsuccessfully tried to persuade first the lieutenant, and then a Hamden police detective, otherwise, but was told to see the local prosecutor, who was away from home. Early Monday morning Countryman and Robinson called on the prosecutor, who “was not enthusiastic” and, per Corbett, noted the difference between prophylactic and contraceptive uses. Countryman reiterated his desire to file charges, but then the prosecutor mentioned that the Liggett’s was a locally owned franchise, not a corporate property. For Countryman, who purposely had chosen a chain store, that was a fatal flaw, for he had not wanted to target some unfortunate individual druggist. Countryman dropped his request, and his venture immediately faded from Connecticut’s front pages.78
The day after Countryman’s saga concluded, Cornwall Representative Frank Calhoun, the 1951 birth control sponsor, and New Canaan Representative Molly Cunningham, PPLC’s former executive director, began circulating a discharge petition to bring the 1953 bill to the house floor with or without a Public Health and Safety Committee report. Within four days they had more than the 140 necessary signatures, and the bill was placed on the house calendar. Leonard Adkins and several other PPLC supporters in the Norwalk area attempted a different version of the Countryman ploy by mailing condoms to the Fairfield County state’s attorney and to Governor Lodge, but they attracted only news coverage, not indictments. The prosecutor contented himself with saying that yes, mailing the rubbers was a violation of the law; the governor continued to decline comment, but even four decades later many small foil packages of desiccated, 1953-vintage condoms could still be found safely stapled to the incoming letters in Lodge’s official papers in the Connecticut State Archives.79
On May 27, following a ninety-minute debate, the house passed PPLC’s doctors’ bill on a vote of 147 to 75, with only four Democrats among the yeas. Almost a dozen opponents warned against “the subjugation of man to passion and artificial sensuousness” or the danger of “race suicide”; one Wallingford representative recommended that “if our women would only get out their knitting bags and knit a few booties for the future generations, I think they would be well satisfied and happy, instead of self-centered.” The following day a somewhat different bill was brought to the senate floor, but only after a private Republican caucus had agreed that the measure would be killed on an unrecorded voice vote. Only two senators spoke publicly on behalf of it; afterward one of them, Public Health and Safety Committee chairman Ben Grant, bluntly told his constituents that the bill had failed on account of one single organization: “I do not know of one non-Catholic opposed to the bill.” The thirty-year battle over birth control, he said, showed Connecticut’s democratic institutions to be feeble and dishonorable: “The issue hangs like a ghost over the Legislature. It causes more double talk, insincerity, cringing and juggling than all other issues put together.… Representative government is revealed at its frightened worst.”80
Molly Milmine reacted to the legislative denouement by trying to pump renewed effort into PPLC’s search for a test case and willing plaintiffs. Only in the state’s more rural counties were court dockets free from serious backlogs that would delay action on a case for many months after it was filed, and by early August Milmine believed she had found an appropriate and eager female patient, someone to combine with Dr. Fisher, through a recommendation from Jo Evarts. Bruce Manternach, however, the Hartford attorney who earlier had been retained to handle a case, now had a full fall schedule, and by early October he was telling Milmine that it would be December or January before he would have any time for PPLC’s potential endeavor.81
PPLC since 1946 had been providing a very modest subsidy for a Yale infertility clinic that was directed by Dr. Herbert Thoms, the chairman of the medical school’s obstetrics and gynecology department, and by late in the summer of 1953 PPLC had agreed to lend similar financial assistance to a marriage consultation service, based in the department of psychiatry, so that a part-time psychiatric social worker, Miriam Cohen Harper, could be added to the staff. Then, late in August 1953, Nancy Doggett Williams told Molly Milmine that she would be tendering her resignation as executive director, effective September 30, in order to take another job that was closer to her home. On top of that, PPLC fund-raising was running twelve thousand dollars behind the projected annual budget, and Williams’s one assistant, Jennie Heiser, who was primarily responsible for fund solicitations, had indicated that she would be leaving sometime within the next four to eight months.
No real efforts to locate or identify a replacement for Williams took place during September or October, and budget worries were somewhat alleviated by the absence of having to pay a director’s salary. Milmine continued to try to stimulate development of a test case, and a board subcommittee discussed future legislative options, but as of early November some board members wondered whether hiring a new director should be further postponed so that expenses could be minimized. One officer recommended that Milmine contact Helen Buxton, the wife of the newly named Yale ob/gyn department chairman and infertility clinic director, who was succeeding the retiring Dr. Thoms, as one of a number of potential new donors, and by the end of November the sense of imminent financial crisis had passed, even if the director’s job remained vacant.82
Then one day Jennie Heiser was saying hello to the woman whose home was next door to the office, at 40 Trumbull, a woman in her fifties whom both Heiser and Molly Milmine knew as the executive secretary of the New Haven Human Relations Council. The neighbor understood that Nancy Williams had not yet been replaced, and Heiser, referring to their delayed search for a successor, half-seriously asked, “How would you like to be director of Planned Parenthood?” The neighbor answered “Phooey,” but Heiser mentioned the idea, and the conversation, to Molly Milmine, who agreed that it was worth following up. So the subsequent day or soon thereafter, Molly Milmine went next door to talk with Estelle Trebert Griswold about the possibility of becoming the new executive director of Connecticut Planned Parenthood.83