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Citizens or Brood Mares?

During the week before spring break students in the American Seminar discussed a fine book by David J. Goldberg, Discontented America: The United States in the 1920s (1999), and learned that the era of  F. Scott Fitzgerald was not all jazz, flappers, and bathtub gin.  The most famous trial of the 1920s was that of Sacco and Vanzetti, two anarchists who were charged with murder and robbery, and convicted in 1921 but because of a vigorous legal defense, several appeals, and worldwide publicity, were not executed until 1927.

Margaret Sanger, founder of the American Birth Control League

Much less well known but set against the same reactionary mood of the decade is the lonely struggle of a Russian immigrant, Antoinette Frederica Konikow, to educate women about their own bodies.   Born in Russia in 1869 and schooled in Switzerland, Konikow was a Marxist by nineteen.  She received her medical degree from Tufts University in 1902.  Konikow joined the Communist Party but kept her attention focused on birth control and was an early member of the Birth Control League of Massachusetts.  After several years away from Boston, she returned in 1919 as an experienced lecturer for Margaret Sanger’s American Birth Control League.  Dr. Konikow faced a formidable challenge.

 

In the case of Commonwealth v. Allison, a young man who had been distributing birth control pamphlets to women factory workers in 1916 was arrested, and the next year convicted of violating the 1879 “Act Concerning Offenses Against Chastity, Morality, and Decency,” designed to prevent the dissemination in any way of contraceptive information.  He was sentenced to an eighteen month term in the Deer Island House of Correction.  The Birth Control League of Massachusetts organized after his arrest and raised funds for his legal defense.  When he won an early release from confinement, the BCLM lost its martyr and by 1920 ceased to exist.

In 1923 Dr. Konikow  had advertised the first series of lectures for women only on the “physiology and hygiene of sex, motherhood, puberty, adolescence, social diseases, and birth control.”  Public discussion of the last subject was illegal, and depending upon the interpretation of the 1879 law, some of her other topics probably were as well.  At age fifty-eight, Dr. Konikow began her series as usual in 1928.  After displaying two types of pessaries to the women in her audience, and warning never to use them because they were hazardous to one’s health, she was arrested by female detectives from the Boston Police Department.

Desperate, Konikow contacted Mrs. Blanche B. Ames, a redoubtable woman who had first organized the Birth Control League of Massachusetts.  The doctor told Ames that contraceptives were sold in drug stores all over Boston, but that she, a physician, had been arrested for pointing out two types that were dangerous to women’s health.  Under the Act of 1879 she could be fined $100 to $1,000; or sentenced to as much as five years in state prison, or two and a half years in the city jail or house of correction.

Mrs. Ames quickly revived the BCLM, and began the search for a criminal lawyer to handle Konikow’s case.  Despite her wealth, as a member of one of the richest families in the state, and her social connections, several lawyers refused her appeals to defend the physician.  Others made lame excuses.  But attorneys who were friends advised her that the best criminal lawyer in Boston was John P. Feeney, an Irish Catholic.  Mrs. Ames did not want such a man defending Dr. Konikow, feeling that an attorney of his religion and ethnicity could not be trusted.  When she could find no other lawyer, she agreed to interview Feeney, and later reported to her committee that he knew more about birth control, contraceptive methods, and drugstore sales than she did, and that he had agreed to take the case.

Dr. Konikow opened her billing records so that her defense committee could satisfy themselves that “an ugly rumor” that she had performed abortions was untrue.  Her record was confirmed by the secretary of the Massachusetts Medical Society.  If it had been found that Konikow had done even one abortion, her legal defense would have collapsed.

She was tried on 1 March 1928 in Boston Municipal Court before Judge Creed, a naturalized Russian prosecuted by Irish Catholics and defended by one.  The courtroom was filled with her supporters from the BCLM, and women from Harvard and Wellesley.  Attorney Feeney spoke to the judge so quietly that the women struggled to hear his words.  The defense lawyer made two contentions.  First, his client had not “exhibited a pessary” under the meaning of the law, i.e., she had not offered it for sale, or recommended its use.  If Konikow was guilty of this charge, then so were professors in all the medical schools in the Commonwealth.

Second, though the law did not specifically exempt physicans, it should be interpreted in that way, just as the Supreme Judicial Court had already ruled that the law prohibiting abortions did not apply to a doctor acting in good faith and for the health of a patient.  This argument anticipated the “doctors only” bills adopted in most states by 1936.

Judge Creed accepted both of Feeney’s contentions and Dr. Konikow was acquitted.  What none of the women in the courtroom knew during the trial, but which was revealed later by Feeney, was that he and Judge Creed were very good friends.  It suggests that there might be a grain of truth to the old saw that “a good lawyer knows the law, a great lawyer knows the judge.”  Feeney warned Konikow, Ames, and the BCLM women that if the doctor was arrested again she might not be so lucky in the judge assigned to her case.

His warning had no effect.  Dr. Konikow resumed her lecture series for the seventh time, advertising the course on women’s health again in January 1929.  Her trial and acquittal marked a profound change in public opinion in Boston on the subject of birth control in just a dozen years.  Women who lived through the first third of the 20th century in the Boston area remembered that the subject of birth control was almost as bitter as that of Sacco-Vanzetti.  This change in attitudes was the result of a fortuitous alliance between patrician defenders of free speech like Harvard Law School Professor Zechariah Chafee, Jr.,  who were unwilling to break the law, and one brave woman who defied it, James Michael Curley and other Boston mayors, the police, and the hierarchy of the Catholic archdiocese.

About The Author: Michael Chesson was the Founding Dean of the American College of History and Legal Studies.

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