by the immigration act of February 5, 1917 (39 Stat. 874), regulating immigration of aliens to and residence of aliens in the United States, which reads as follows:

SEC. 3. That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feeble-minded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority; persons with chronic alcoholism; paupers; professional beggars; vagrants; persons afflicted with tuberculosis in any form or with a loathsome or dangerous contagious disease; persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; polygamists, or persons who practice polygamy or believe in or advocate the practice of polygamy; prostitutes, or persons coming into the United States for the purpose of prostitution or for any other immoral purpose; persons who directly or indirectly procure or attempt to procure or import prostitutes or persons for the purpose of prostitution or for any other immoral purpose; persons who are supported by or receive in whole or in part the proceeds of prostitution; persons likely to become a public charge.

There are also provisions for the exclusion of illiterates, or of persons 16 years of age, physically capable of reading, but who can not read English or some other language. All are refused admission into the United States of America.

Mr. Chairman, I think it is a good law, and all that we are asking is, that if such persons and such types are not good for the country, to come in from the outside, that they also, by birth control, be prevented from coming into the world. If these types are not good for a country, and are a source of danger to our well-being and happiness, then I say, shall we not have the right to have these same types of persons in this country excluded from birth?

I thank you.

The ACTING CHAIRMAN. Are there any questions?

Mr. McCORMACK. Mrs. Sanger, I was rather interested in your statement that you think a married couple should wait two or three years just to get acquainted after marriage. What did you mean by that a probationary marriage or trial marriage? I think you ought to explain that.

Mr. SANGER. No; I mean a permanent marriage. I think marriages would be more permanent if there were a proper adjustment and opportunity for getting acquainted at the beginning.

Mr. McCORMACK. Suppose they do not become acquainted?

Mrs. SANGER. Of course we are going to give them a better chance to become acquainted; far better than they have to-day. If I may just digress a moment, what opportunity is there for young people to get acquainted? In the first year after marriage a woman's whole physiological condition is changed. There may be some opportunity for the man-he does not have to have his whole physiological condition changed, but for the woman who comes back from her honeymoon with headaches, morning nausea, and a new nervous strain-not only is marriage a new condition for her, but the process and the possibility of motherhood entirely changes her whole being.

Now, I say that those young people have not the first chance to get really acquainted. The man never knows his wife as a woman.

He

only knows her as a girl before marriage, and then he knows her as preparing for motherhood. I say it is unfair to the relationship of marriage. It is unfair to the child that is about to be born, and we know that it makes a great difference, and that marriage can be more permanent if there is the opportunity to become adjusted.

Mr. McCORMACK. You made reference to some statements made by President Hoover. Did you intend thereby-I am sure you did not, but I would like to have it in the record one way or the otherdid you intend thereby to let the inference be drawn that he was supporting this movement?

Mrs. SANGER. Not at all. I simply made the statement that he believes in a healthier childhood, and that children should be given the opportunity to be born well.

Mr. McCORMACK. Continence is the exercise of the affirmative mind, is it not?

Mrs. SANGER. Not always.

Mr. McCORMACK. What was that conference at which President Hoover made that statement?

Mrs. SANGER. The White House Conference on Child Health and Protection, in 1931.

Mr. McCORMACK. Continence is the exercise of the affirmative mind by the individual; that is true, is it not?

Mrs. SANGER. Not always the affirmative mind. It may be an exercise of a negative mind.

Mr. McCORMACK. But in an affirmative direction?

Mrs. SANGER. Not altogether. I think it is negative just as it is affirmative. It is denial.

Mr. McCORMACK. Well, denial. It has to be an exercise of an affirmative mind to deny themselves something that their inclination desires, does it not?

Mrs. SANGER. Well, it is a denial of a positive function, I should say.

Mr. McCORMACK. Now, as to the chemical means of contraception, what is meant by drugs, or the use of drugs? I notice this bill says: Any article, instrument, substance, drug, medicine, or thing that may be used for the prevention of conception.

What kind of drugs do you have in mind?

Mrs. SANGER. Chinosol, quinine, and various other things that may form a suppository which will kill the spermatozoa.

Mr. McCORMACK. What kind of instruments has this bill in mind? Mr. SANGER. Condoms and pessaries of various kinds.

Mr. McCORMACK. Of course, the purposes of those is for use prior, with the purpose of preventing conception?

Mrs. SANGER. Absolutely; no interference afterwards.

Mr. McCORMACK. In other words, it is a means of affording selfsatisfaction and preventing the consequences thereof by the use of artificial means?

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Mrs. SANGER. If you wish to put it that way.

Mr. CANFIELD. Mrs. Sanger, in your statement you referred to this law." Which law do you refer to?

Mrs. SANGER. Sections 211, 245, and 312 of the Criminal Code and section 305 of the tariff law.

Mr. CANFIELD. Is that the Comstock law which Congressman Hancock referred to?

Mrs. SANGER. Yes. They were enacted by Congress at the instigation of Mr. Comstock in 1873.

The ACTING CHAIRMAN. We thank you, Mrs. Sanger, for your presence and your contribution to the hearings.

(The matter submitted by Mrs. Sanger is as follows:)

SUMMARY OF THE LEGAL STATUS OF BIRTH CONTROL

FEDERAL STATUTES

(19 U. S. C. A. Section 305. Immoral articles-Importation prohibited) (a) Prohibition of importation.-All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for the prevention of conception or for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery. No such articles, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the collector that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided: Provided, That the drugs hereinbefore mentioned, when imported in bulk and not put up for any of the purposes hereinbefore specified, are excepted from the operation of this subdivision: Provided further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes.

Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided; and no protest shall be taken to the United States Customs Court from the decision of the collector. Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section. In any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits.

(b) Penalty on government officers.-This subsection makes any officer who knowingly aids or abets a violation of the preceding subsection guilty of a misdemeanor punishable by a fine of not more than $5,000, or imprisonment for not more than 10 years, or both. (June 17, 1930, ch. 497, Title III, sec. 305, 46 Stat. 688.)

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Section 211 of the Criminal Code: Every obscene or other publication of an indecent character, and every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information

directly or indirectly, where, or how, or from whom, or by what means any of the hereinbefore mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means conception may be prevented or abortion produced, whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device, or substance; and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can be, used or applied for preventing conception or producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered by any post office or by any letter carrier. Whoever shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by this section to be nonmailable, or shall knowingly take, or cause to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000, or imprisoned not more than five years, or both

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Section 245 (act of June 5, 1920, ch. 268; 41 Stat. L. 1060): That section 245 * * * approved March 4, 1909, is hereby amended to read as follows:

"SEC. 245. Whoever shall bring or cause to be brought into the United States, or any place subject to the jurisdiction thereof, from any foreign country, or shall therein knowingly deposit or cause to be deposited with any express company or other common carrier, for carriage from one State, Territory, or District of the United States or place noncontiguous to but subject to the jurisdiction thereof, to any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States, through a foreign country, to any place in or subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States to a foreign country, any obscene, lewd, or lascivious, print, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, or other matter of indecent character or any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of the hereinbefore mentioned articles, matters, or things may be obtained or made; or whoever shall knowingly take or cause to be taken from such express company or other common carrier any matter or thing the depositing of which for carriage is herein made unlawful, shall be fined not more than $5,000, or imprisoned not more than five years, or both."

Chapter 13, section 311, penal laws: Except as otherwise expressly provided, the offence defined in this chapter shall be punished as hereinafter provided, when committed within any Territory or District, or within or upon any place within the exclusive jurisdiction of the United States.

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SEC. 312. Whoever shall sell, lend, give away, or in any manner exhibit, or offer to sell, lend, give away, or in any manner exhibit, or shall otherwise publish, or offer to publish in any manner, or shall have in his possession for any such purpose any article of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how or of whom, or by what means, any of the articles above mentioned can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be fined not more than $2,000, or imprisoned not more than five years, or both.

STATE STATUTES

The laws relating to the prevention of conception in the 48 States of the United States are not uniform, and in fact many conflict with the Federal Statutes. In the following summary 24 States are grouped together because, although they have obscenity statutes, prevention of conception is not mentioned. Eleven States are classified in groups by exemption. Here the statutes vary slightly as to wording, but they all generally prohibit the sale or advertise

ment of information or material for the prevention of conception. The remaining 13 States are classified by their prohibitory provisions, rather than by their exemptions, because of their irregularities.

1. States which have not classed prevention of conception with abortion under the obscenity laws (24).

Here physicians and medical centers, hospitals, and welfare agencies could legally establish birth-control clinics, giving instruction in scientific contraception for economic and social reasons, as well as for health: Alabama, Arkansas, Delaware, Florida, Georgia, Illinois, Kentucky, Maryland, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, and Wisconsin.

2. States classified by exemptions to the statutes relating to the prevention of conception:

(a) States granting exemptions for teaching in regularly chartered medical colleges, for the publication, sale, and use of standard medical books; for the practice of regular practitioners of medicine; and for duggists in their legitimate business (5): Colorado, Indiana, Iowa, Ohio, and Wyoming.

NOTE. The Federal law makes it a crime for doctors or anyone else to send through the United States mails or by common carriers the same books or publications that are specifically exempted under the laws in these five States. (b) States which allow the teaching of contraception in chartered medical colleges and the publication of medical books, but do not mention practitioners or druggists in their legitimate business (4): Kansas, Missouri, Pennsylvania, and Nebraska.

(c) States which allow physicians to give information and prescriptions for supplies "for the cure or prevention of disease" (2): New York and Minnesota.

(d) States which allow physicians to advise and instruct patients where there is "just cause (1) New Jersey.

3. States classified by the prohibitory nature of their statutes:

(a) States prohibiting publication of any notice or advertisement, or distribution of information or material to prevent conception. Oral information not prohibited. No exemptions (8): Arizona, California, Idaho, Louisiana, Massachusetts, Montana, Washington, Nevada. (In Nevada, there is an exemption for legally licensed physicians in the legitimate practice of their profession.)

(b) States prohibiting the publication and distribution of contraceptive information (not material) (2): Maine and Michigan.

(c) States prohibiting the publication of or the giving of oral contraceptive information (1): Mississippi.

(d) States which prohibit the use of any article which prevents conception (1) Connecticut.

SECTION 305 OF THE TARIFF ACT

The use of the word "conception" first appears in the tariff act of 1873. (Vol. 17 of the Statutes at Large, pp. 598-599.)

HISTORY

Started out as tariff act as above indicated.

Carried into the Revised Statutes as section 2491, tariff act of 1883; tariff act of 1890 as section 11; tariff act of 1894 as section 10; tariff act of 1897 as section 16; tariff act of 1909 as section 9; tariff act of 1913 as section G, subsection 1; tariff act of 1922 as section 305.

Judge Swan's opinion on reargument of Young's Rubber Corporation (Inc.), plaintiff-appellant, v. C. I. Lee & Co. (Inc.) and Clarence I. Lee, defendantsappellees. United States Circuit Court of Appeals for the Second circuit There is no Federal statute forbidding the manufacture or sale of contraceptives. The articles which the plaintiff sells may be used for either legal or illegal purposes. If, for example, they are prescribed by a physician for the