Birth control today; 9; Abortion and the Law

WBA presents birth control today. Freedom and responsibility. This is a series of programs about birth control and how it affects us and our society. Today we will discuss legal aspects of contraception. There have been some encouraging developments on the legal scene regarding contraception. The legal Almanac series on laws governing family planning reports 16 states and acted progressive measures in 1965 and 1966. Foremost was the Massachusetts repeal in 1066 of an 87 year ban on the manufacture and dissemination of contraceptive devices and birth control information and a simultaneous enactment of positive permissive legislation in 1065 the only other severely restrictive state law that of Connecticut which actually for bayed the use of contraceptives was held unconstitutional by the U.S. Supreme Court. Here today to discuss the legal aspects of contraception and their influence on us are Mr. David Kraus prosecuting attorney for to pick a new county

Indiana Doctor Frank paid an obstetrician and gynecologist at the woman's clinic in Lafayette and Dr. John Williams psychiatrist of the student health center at Purdue. The obvious place to begin this discussion is with a look at them status of contraception in the United States Mr. Kraus Can you give us a summary of the early statutes in this area were quite restrictive. For example the Comstock Act of 1873 a federal statute that prohibited the importation mailing or introduction into interstate commerce of contraceptive devices. More recently the United States code in its definition of non mailable materials through there'd be items sent through the mail defines among those to be every article or thing designed adapted or intended for preventing conception and any kind of writing giving information directly or indirectly

how or by what means conception may be prevented. These are some federal statutes. Our own Indiana legislation although there isn't a great deal on it is also restrictive in that it prohibits the sale of any article of indecent or more use which could be interpreted to include contraceptive devices and also prohibits. The furnishing or accounting or description of drugs medicines instruments or apparatus for preventing conception. So we start out with quite restrictive statutes and we have seen a number of ways in which these have been diluted. For example the Massachusetts case of several years ago providing a similar restrictive statute said that if the item on it said that

it was sold for the prevention of disease then the statue this was legal under their statute prohibiting sale of contraceptive devices as long as it was marked that was for the prevention of disease. Again. We've had no other restriction or limiting of these statutes. Probably the most recent one was the Griswold case which was a case out of the state of Connecticut. In that case a counselor for a Planned Parenthood Association an adopter physician were convicted of being a centuries to the use of contraceptives in that they counseled with families on their in a particular case on their use. And the Supreme Court the United States reversed their conviction. They established a rather new concept of constitutional law which they referred to as the concept of the marital privacy and created what they call a zone of privacy.

Their theory was that that there were certain matters that were private between the husband the wife and that they included in those areas this idea of counseling with regard to family planning. A recent case that came out of the state of Indiana applied that seems zone of privacy although it slightly different context. Amanda been convicted in the state courts of commission of the act of sodomy involving He and his wife and I believe the Circuit Court of Appeals in Chicago then reversed that conviction on this same area of the zone of privacy. Mr. Cross you mentioned the Comstock Law and described it as being very restrictive and then you indicated that it has been diluted or modified or other legislation has been less severe. Can you give us an idea of the different degrees of restriction or how varied laws regarding contraception now are.

Well you would have and probably still do have and some of the states statute in the books that absolutely prohibit the sale or the counseling or the advice on how to use these contraceptives. Then you have for example an exception in our own Indiana statute that specifically says the statute does not apply to physicians and to pharmacists who are allowed by law to do so and in the case of physicians at least counsel only advice of contraceptive devices. We're talking about the legal aspects of contraception and of course people make the laws. I want to ask other panel members to give ideas why legislation is perhaps as restrictive as the Comstock Law might be passed Dr. Payne do you know why a person would pass restrictive legislation in this area. I see there's been a Laureano vests and rightly should because it's possible that the restrictions we've

had like in behind as. Compared to other things. I'm sure that the customs and practices this particular form of life are changed and basically because of the freedoms that we feel that we should have and certainly of all things has seems now that this business of the sexes is here too. Be listened to. I've felt that that is has to be less than a restriction on all of this because pregnancy results in children and children when it means something to a family possibly like more help on the farm. But today certainly the increased size of the family is that of more expense to rarer and to educate

to clothe an extreme burden so that really the whole restriction is a matter of going against the will of these people and the resulting in an unwanted pregnancy. Well I think in order for us to think and talk intelligently about legislation I think we do have to put some thought on the motivation that leads to legislation in order to do this. I think we have to be students of the history of man in general and students of the history of medicine perhaps in particular thinking of the area that we're considering at this time. Basically I'm willing to assume that legislate tours are acting. On behalf of the benefit of man as they see it and understand that legislation that they pass in one given year and one given period of time might be based upon disease risks that exist at a certain

period in time that might not exist at another period in time. Legislation might have something to do with surgical technique or chemical techniques or pharmacological techniques that are available or not available had any given period of time as Wilma leaves are changing seams. So what seems to be reasonable legislation at a given point in time may not seem to be appropriate or reasonable legislation at another period of time. Similarly I think much of our legal structure is based upon value systems too and I think that it's only reasonable to recognize that there are evolutionary processes in our value systems to. Legislate tors might act. Passing laws to suppress unwanted behavior. Sometimes it seems as though they act to suppress unwanted thoughts not

only on other people but even in themselves on occasion. Sometimes it seems as though the passage of statutes might be based more upon a desire perv indication or desire for power over other individuals than upon fashionable thinking at a given point in time so I think the motivation for legislation is a very complex thing has to do with the society the sociology of the time and also the psychology of the legislate tours. Mr. KRAUSE while I was going to comment that I believe in this area of legislation with regard to contraception and in the area also of abortion contraception certainly the religious. As well as the moral background is was a compelling influence for the legislation. And I'd point out for example both of the cases that I referred to the Grizz wall case out of Connecticut and the other case on the label of the merchandise out of Massachusetts were came out of areas

which are very strong Catholic background for many of the voters there and for many of the law enforcement officials and the Catholic Church has consistently opposed at least until recently certainly as a matter of their doctrine have opposed birth control procedures other than in a very limited area. And I think that has the example of how or why they have had that legislation and why you've had the prosecution in the cases many areas we haven't had occasion to have a great deal of prosecution on these cases for example mainly because we don't have a great deal of compliance for example the question with regard to birth control devices. And the application of the law prohibiting their sale. Other than through legitimate sources such as the position of the druggist do with the coin operated in a machine this sort of thing.

I don't recall that we had any any complaints people wanted to come forward and prosecute which would indicate that. And I don't see many cases on the Indiana in the books of any of the cases where they have been prosecutions for this because I believe this is a reflection of the general attitude of people not to not to pursue these statutes. I think we've opened up another area that could be a problem. We are talking about contraception but we also refer to contraceptive devices contraceptive information. Dr. Williams referred to chemicals. If you as an attorney were going to be researching. Contraception in preparing a case where could you look under contraception under contraceptive devices under a vending machine under sex where would you look. Well course if what you're saying is what do you look in the statute to find the book find the books where you look in the

books to find the statute and as I indicated there isn't there aren't very many Indiana statutes in this area. They happen to be under the burns system of organised by an organization the statutes are they are listed under indecency obscenities and profanity and why they happen to be listed there as a matter more for the for the man of the people to do the breaking down of the statutes. By the by the publishers the people who publish these statutes it's up to them how they organize them. Other systems like the West Publishing Company that publish citations of the various cases may have an entirely different way of breaking down or deciding what area a particular type of violation goes into. Mr. Cross you mentioned that the there just are not a lot of cases of people coming forward and wanting to prosecute in violation of laws. So apparently the mere existence of a law on the book does not mean that legal action will be taken there.

There obviously must be a complaint of some sort. This is true it is the complaint the person coming in the making the complaint that really will bring the prosecution. And areas where you're not getting complaints. You're then more likely to devote your attention to areas where you are getting your public complaints. Suppose you do get a complaint about some violation that has to do with contraception. Do you not then run into a problem of how the statute is interpreted. Oh yes you have to read the statute you have to read the Supreme Court cases even to know that have been the site of that statute and frequently there may not be many many cases under that statute. If there are then you have to go to other states that have similar laws. That's what seems to me that you're belaboring something here that there shouldn't be any fear of contraception and there's a whole other thing and now if this is what we're trying to. Do.

Just close to me I've never heard of anyone in the state of Indiana I have getting into any particular difficulty over the fact of a sale or the use of the contraception. I think that this is a common knowledge that these are available and possibly they're not right out on Main Street but certainly in all drugstores and other places so that if we want to put people to use at ease that you're not breaking the law. This is not the point in my mind here. We should say absolutely. Three we have got a lot of unmarried young people on this campus. The area that Dr. Willems is associated with here at the university and it concerns young people. How does your work relate to contraception and the law. Well the practice of medicine is the larger area that

I suppose we should consider just briefly while we're moving on to a specialized consideration. Of contraceptive counseling. We assume in the university community. That the students who come to us for help. Are either mature or competent minors. That is those of them that are under 21 years of age. When we deal with them as competent individuals we have to have some kind of a working definition of competency. And once again just a reminder I'm talking about the practice of medicine in general because we could be considering matters such as the removal of an ingrown toenail we could be considering a matter such as the prescription of penicillin for the appropriate infection of some sort or we could be considering the matter of the prescription of the contraceptive of some kind. When we determine the competency of the young person we're mainly interested in finding out whether this person understands the

nature of his difficulty or whether or not he understands the causal factors that are associated with whatever kind of a problem that he brings to our attention. We determine whether or not he is competent to understand the treatment program the diagnostic processes and we most particularly are interested in their ability to understand the possible undesirable effects of either diagnostic processes or treatment programs that we engage in all of this is very carefully explained to the person and if it seems in our judgment that he's able to understand. What we're. Discussing we would consider him to be competent to enter into what amounts to a verbal written contract with some particular object in mind. This applies in a general way to our practice of contraceptive counseling to what we determine as best we can that this young person is competent to

understand what it is that he is about. The risks involved. The processes and procedures to be followed. The reasons for undertaking these we would all investigate with some detail. Once again as has been reported elsewhere we really have not had any difficulties along this line because of a great deal of publicity that has been associated with it in recent months about the availability of the so-called pill on university campuses and also concerning the possible undesirable side effects of oral contraceptives for women. We are now formulating. A a form of a printed form which a student will complete indicating that they have been told in detail of the nature and the purpose and the possible

undesirable side effects of the medication that they are taking and they sign this form and it's entered into their medical medical folder. Technically speaking this may not be necessary but considering current published it as I see it seems to be advisable to follow this procedure at least for the time. Do I understand correctly that you do not particularly concern yourself with what some people might describe as the the legal or moral question of whether or not the individual is married. How this is a tricky area to consider. I think the probably best to say that the physicians who practice within the student health centers all across the country are pretty much engaged in individualized practice of medicine. This should be explained just a little bit. We're oftentimes asked what the student health center policy is concerning a certain matter. For

example oral contraceptives. The answer that we routinely give it was that the student health center does not have any policy. And as a matter of fact the student health center per se is not engaged in the practice of medicine. The physicians who work within the student health center are themselves and gauged with them with the practice of medicine. Some physicians how this could be easily understood might be opposed upon the basis of moral or religious grounds through the prescription of oral contraceptives as a as an example. These physicians certainly would in no way be obligated to engage in any kind of a practice to which they were personally opposed. On the other hand it's easy to imagine that some physicians might have more liberal or permissive if you will attitudes or outlooks toward certain practices within the field of medicine and they would act accordingly.

We have talked about contraception in general and how laws have affected contraception. We have talked a little bit about specifics in the case of Dr. Wilms comments here at the university about contraceptive counseling and perhaps the dispensing of contraceptive devices. Let's talk about another area an area that I have not seen in statutes that of contraceptive sterilization unless I'm wrong it's really quite new Dr. Peter. Is there a legal question involved if so what is the legal status of contraceptive sterilization contraceptive sterilization if you're using a double edged word. If you stir alive somebody that is a contraceptives are not going to get pregnant as far as the law is concerned. There again is no law in Indiana as to one way or the other on this I think only two states out of the 50 have anything on their statute. Mr. Kraus can probably correct me on this but

as far as the status of so-called voluntary sterilization is concerned I think that this is where. If you are a population control minded are obviously going to get into because I think that when the family is completed and this is where we're going to use it I'm assuming we're not going to use it on the coeds that for a reason which is is stated before socioeconomic reason that they have enough to rare and to educate. They want a permanent method done and this of course can be done on the woman or the husband or the wife. Dr. Payton does the position have to concern himself with a perhaps implied if not written legal concern.

There has always been a regulation on this approved hospitals. A doctor in his own office. Say that he's doing a vasectomy on the male where the little cords are say tied and cut. Whether or not he really feels like protecting himself that's entirely up to him. Within the hospital and let us say there are three kinds of hospitals the Catholic hospital has a code which obviously will not permit this procedure in a tax supported hospital. Most of them are very very afraid of doing this procedure unless it's on a medical basis. So-called hospitals like the one that is non-denominational are nonprofit.

This procedure is done. By having the parties sign. You can call it consent or. Request. If they have requested a sterilization and have signed so. There has never been a case where a doctor has had to defend himself. Such as in court. We feel that since the legality is wrong thing most hospitals require at least. Three children. They also require consultation and they require proper signature by the husband and wife. At least this woman let us say her guardian or at least someone else who is responsible for. I think that

the procedure is very wise for this group. People who permanently do not want any more children. I know of very few doctors who feel that this is a procedure to steer away from or to fear in doing. We've talked now about voluntary sterilization. What about something we hear less about involuntary sterilization. Mr. Cross How about the sex offender or the mentally incompetent individual who may be a problem with regard to sex. There are some procedures available for the involuntary sterilization of certain people who have been committed to a maximum security institution as criminally insane.

But I think it's probably in the first place is probably numerically a pretty small percentage of people involved. And it's one where there's. Great deal of discussion about IT pros and cons on both sides and I'm very glad to hear that the number is small because it seems to me that to impose an involuntary sterilization upon an individual who has been. Judged and confined to an institution because of mental illness would be to assume that this individual is never going to recover from his mental illness. This is an assumption I believe that very few psychiatrists would want to make. Most of us or I might say incurable optimists as long as individuals alive we like to think that he has hope of recovery. Which would cast a new light entirely upon the question of involuntary sterilization.

Our thanks to Dr. Wilms Dr. Payton and Mr. Kraus. Contraception in the law is not really a controversial issue these days. Contraceptive devices are easily available in the United States to those who need them. Statutes do exist regulating the distribution and advertisement of contraceptives. However they have been interpreted so that the statutes only operate if the articles are unlawfully employed in determining what is unlawful. The judge's decisions tend to focus upon the issue of obscenity rather than of contraception. Reform will continue to improve federal and state legislation. This is been birth control today. Freedom and responsibility. The next program in this series will focus on the abortion controversy. Today's guests were Dr. Frank titration and gynecologist of the women's clinic in Lafayette. Dr. John H Wilms psychiatrist at the student health center at Purdue. And Mr. David Jake Crouse prosecuting attorney for county. The series was written and

produced by Colleen Gary and narrated by David Bond a recording engineer is Morris announcer Roger priest. The series is presented to the instructional radio division of WBA at Purdue University in West Lafayette Indiana. This is the national educational radio network.