• U.S.

CONNECTICUT: Unreasonable Restraint

2 minute read
TIME

Still stirring controversy in Connecticut last week was a relic of the long-forgotten crusades of Anthony Comstock (1844-1915) and his bluenose New York Society for the Suppression of Vice. In 1879, during the Comstock agitation in New York and neighboring states, the legislature in Comstock’s native Connecticut made it illegal to use, or to help or advise anyone to use, “any drug, medicinal article or instrument for the purpose of preventing conception.” Penalty: $50 fine and up to one year in jail.* Despite perennial campaigns to soften or repeal it, and despite the evident availability of contraceptives in many Connecticut drugstores, the ban is still on the books: it is stoutly supported by the state’s Roman Catholic clergy, and in Connecticut, Roman Catholics make up a powerful voting bloc (47% of the population).

Last week Connecticut’s highest court, the Supreme Court of Errors, upheld the birth-control ban for the third time in the past two decades. Before the court was a package of four related test-case suits, brought by Dr. C. Lee Buxton, chairman of the Yale Medical School’s obstetrics and gynecology department, and three patients who had medical reasons for wanting to prevent conception. Plaintiff Buxton claimed a right, as a physician, to “practice his profession free from unreasonable restraint.” The three patients claimed a right to the benefit of a physician’s advice in dealing with a “dangerous threat to their health and happiness.”

The five judges of the Supreme Court of Errors (two Protestants, two Roman Catholics, one Jew) unanimously ruled that any revision of the birth-control ban was up to the legislature, not the courts: “Courts cannot write legislation by judicial decree; this is particularly so when the legislature has refused to rewrite the existing legislation.” Vowed the plaintiffs: On to the Supreme Court of the U.S.

* The record indicates that nobody has ever been made to pay the penalty. The ban’s purpose is not to punish but to deter.

More Must-Reads from TIME

Contact us at letters@time.com