April 8, 1924 — US Congress, Washington DC

If agreeable to the gentlemen of the committee, we will divide the testimony that we will present to you under two different categories. One, the direct reasons for the passage of this bill from the point of view of law and the rights of citizens. The other bits of testimony that we are ready to present to you if you desire and if agreeable to you, are certain evidences that the utilization of this knowledge in this country and throughout the world has tended toward racial and individual welfare.

This is not logically and directly speaking necessarily an argument for the passage of this bill, but it is distinctly reassuring, I should say, to Congress when it stands for this measure, to know that the action is in harmony with what has been generally considered by all impartial observers as something which makes for race progress and race betterment.

To begin with, the logic, which is less human but possibly more convincing to a committee made up exclusively of lawyers; the continuance of the five statutes which this bill proposes to amend seems to us not tenable, either on grounds of justice or public policy, because first, the majority of the people do not approve of the suppression of knowledge of the regulation of parenthood by the control of conception. When I make this somewhat dogmatic statement I offer to you the best and most conclusive proof there is, namely, the official figures on the birth rate of our country.The birth registration area, you know, does not cover all our States. If I am correctly informed it covers 22 States, but presumably the population of those 22 States in about the same character as the population of the remainder of the States, and therefore the birth rate, so far as it is recorded, is an exceedingly valid argument.

The birth rate for the country, averaging those States, stands at 22.8 a thousand. And also note a birth rate that I might call natural, unguided by the mind of man, but simply resulting from instinct and physical impulse; such a birth rate would run from 50 a thousand up, and 50 is an exceedingly conservative figure. Therefore, family limitation by intention has already long been achieved in the United States, as in every other civilized country in the world, and for a very long period, in spite of the fact that we have maintained for half a century laws which theoretically keep our entire population in absolute ignorance.

The realization that a restricted birth rate has been achieved by practically all the sophisticated and well-to-do and educated classes of our country is made very graphic by just a partial survey of Congress itself. Congress is, I should say, a very fair slice of American life. It is representative of the education and sophistication and general morality of the United States. The Congressional Directory does not uniformily give personal statistics, but a survey of the 225 instances where families are mentioned in the Congressional Directory reveals that the average congressional family consists of 2.7 children. The sizes of the families vary from 11 down.There is one family that has 11 children, two have 10, one has 9, three have 8, one has 7, seven have 6, fifteen have 5, twenty-two have 4, forty have 3, eighty have 2, and twenty-six have 1 child.

Those figures, gentlemen, are very significant, because of the fact that our Congress in both Houses is made up for the most part of people that we should call thoroughly mature, and therefore these statistics would seem to be representative.

No citizen, so far as I know, has yet come to Congress and said this to his Representative or Senator: “Will you please keep these present laws as they stand now? I personally consider the control of conception rightly classed as indeceny. I have no knowledge on the subject, and I don’t want any. Moreover, I wish my ignorance legally perpetuated because I do no think I should be trusted with it. I need to have my Government protect me from the temptation to misuse it.”

No citizen, I take it, has thus far come to you with that plea on his own behalf. The protests — and you have received some against this measure —  have seemed to be wholly on the ground that access to this forbidden knowledge would be dangerous for somebody else, not for the people who themselves protest. Unless it can be proved that there are more citizens who are deliberately asking to be kept in ignorance than there are those who want access to this knowledge there can be no justification for not passing this measure. In view of the proof which the birth rate gives that the majority believe in, because they achieve family limitation, it is hardly likely that those who want to be kept in ignorance can be anywhere near a majority. Asking that others be kept in ignorance is not a valid argument for any legislation.

There are not and never have been any Federal laws which make it a crime to regulate parenthood by the control of conception. Therefore, strictly speaking, the subject of what is ordinarily called birth control is not the subject before the committee. It is not, strictly speaking, the subject involved in the Vaile bill. It is only the circulation of knowledge as to how conception may be controlled that is the criminal act — not the act of the control of parenthood itself.

The utterly un-American nature of this statute becomes clear if one pictures what it would mean if some other item of scientific knowledge was similarly prohibited. For instance, suppose we had laws prohibiting knowledge about the principles on which automobiles are operated. Those are scientific principles. We would not have a law that prohibited the use of automobiles. We would simply have a law, to follow the absurd analogy, prohibiting anyone from learning how to make automobiles. Such a suggestion is preposterous.

We should be consistent in regard to the prohibitions as to knowledge. The abuse of knowledge should be handled in some other way than attempting to maintain ignorance on the part of the population. The present laws as they stand are predicated on distrust by the Government of the mass of its citizens, which is an intolerable principle for laws in a supposed democracy. It is a principle, for instance, which no Member of Congress would care to expound, I think, let us say, in a preelection campaign. Fancy a Senator or Congressman making a campaign address in which he would state that he deemed his constituents too weak morally to be trusted with scientific knowledge about sex matters. It is incredible. We do not ordinarily cast a wholesale insult upon our fellow citizens. We think too well of the average American to do that, and certainly no such insult should be found in our laws.

In answer to the inquiry that one member of the committee made as to the way this law was originally passed, I might briefly give you a little sketch of it, as taken from the Congressional Record of 1873. In the seventies there were a number of publishers who were making inordinate sums of money by the most shocking traffic in pornographic literature. It was disgusting. The trade was carried on mainly with young students, many college boys and even many high-school students, and it was a traffic which was shocking. Anthony Comstock was particularly interested in putting this traffic out of business. He came down to Congress in 1873, in the short session, armed with specimens of this nasty, disgusting literature. He showed these specimens to man after man in both Houses, and they agreed with him that it should be stopped. It was close to the end of the session,and Congress was exceedingly busy even in those days, and they had a legislative jam toward the close of the session. But they were convinced by their conversations with Mr. Comstock that this was a nefarious piece of business and should be stopped. When the measure came up for action it was passed very hurriedly without debate at all. So far as I know it was not formally reported out by any committee. It was done out of good will and approval of the main idea. The majority of the Members of Congress did not know that they, in voting to put obscene literature out of circulation in the United States, were including in it, by the very mistaken judgment of Anthony Comstock, or his carelessness, a sweeping and unqualified prohibition of all scientific information in regard to the control of conception. But it was so. It happened. It was a mistake. It was clearly a blunder. A few Senators and one or two men in the House raised an objection. They said, “Let us be careful, gentlemen; this is an important matter. We must see to it that this law is framed so that when it appears in cold print it will say what we intend it should say.”

It was discovered afterwards that it did not say what it was intended to say, and the country has been victimized ever since. And it is the correction of an obvious blunder that we bring now to you, through the instrumentality of this Cummins-Vaile Bill.

Source: Hearings Before the U.S. House Committee on the Judiciary, Subcommittee No. 3 (Judiciary), and Senate Committee on the Judiciary, Sixty-Eighth Congress, First Session, on Apr. 8, May 9, 1924 (Washington DC: Government Printing Office, 1924), pp. 9-12.