Harriet Pilpel

What does obscenity have to do with birth control? Legally, quite a bit. Or at least it did when the landmark modern statute that criminalized both was passed in 1873. That law, usually called the Comstock Act, criminalized mailing any “obscene, lewd, or lascivious book” but also “any article or thing designed or intended for the prevention of conception or producing an abortion.” The government acted to reign in both because they were perceived as threats to the power of male, Christian authorities.

The courts would go on to distinguish birth control and abortion from the legal category of obscenity in a 1936 case. The defendant there, hand-picked by Margaret Sanger to represent the birth control movement, was a pioneering Jewish doctor, Hannah Mayer Stone. But the Comstockian association of the two issues would continue to influence activists and artists for decades to come. There’s no clearer example of this than the legal career of Harriet F. Pilpel (1911–1991), a stalwart, lifelong opponent of both prongs of the Comstock Act.

Pilpel graduated second in her class at Columbia Law School in 1936, but the judge who regularly hired Columbia’s second-best student told her he refused to employ a female clerk, and most law firms discriminated openly against both women and Jews. Pilpel didn’t care, though, because she was already set on practicing at Greenbaum, Wolff, and Ernst, a Jewish firm that had mounted successful defenses against obscenity charges, most famously in the cases of James Joyce’s Ulysses and the birth control advocate Mary Ware Dennett.

Pilpel is mostly remembered now for serving as general counsel to Planned Parenthood during the decades in which contraception and abortion were legalized by the Supreme Court, as well as for her leadership role at the American Civil Liberties Union. She insisted, in 1964, that the ACLU defend women’s reproductive rights and the civil liberties of homosexuals, two issues it had until then refused to touch. Less frequently noted have been Pilpel’s contributions as a tireless anti-censorship advocate. She presciently argued against movie censorship in the New York Times in 1946, and, in 1957, won for the Kinsey Institute the right to import sexually explicit materials for study. She wrote a monthly legal column for Publisher’s Weekly for decades, and even published alongside Thomas Pynchon and Tillie Olsen in a literary journal.

By the 1970s, some prominent male First Amendment lawyers, like Pilpel’s mentor Morris Ernst, and Norman Mailer’s cousin Cy Rembar, were worrying about the consequences of their legal victories in the area of obscenity. But Pilpel remained steadfast. In a 1973 lecture, she outlined the recrudescent challenges to free expression imposed by the Burger Court, and argued for a redoubled commitment to First Amendment protections: “There should be as free a marketplace for sexual ideas and descriptions as we have now with reference to other kinds of ideas and descriptions.” Speculating on why the court had recently retreated from its more liberal positions of the 1960s, Pilpel noted that “the Court majority consists of middle-aged or elderly gentlemen of the upper middle class … [who] are not completely comfortable about sex and therefore objectify their subjective concerns” and who display “conventional middle class distaste for the vulgar and profane.” “I’m all in favor of good taste,” she went on, “but I don’t think it should be enshrined as a matter of constitutional law” — precisely because she understood that “taste” so often works to reproduce the privilege of “gentlemen of the upper middle class.”

Raised as a Reform Jew, active as an adult in the Ethical Culture Society, and married to an employee of the Joint Distribution Committee, Pilpel, like most lawyers, never seems to have attributed her commitments in the field of obscenity law to her Jewishness. But she emphasized the way that prosecutors use “obscenity charges as a means of suppressing views which are dissident, satirical, irreverent, or merely unpopular” — an argument with particular resonance for American Jews who were self-conscious about their vulnerability as members of a demographic minority. Contraception was also personal, given her commitments to her career and family: “Birth control and the freedom of women to choose whether or not to have children was of burning interest to me,” she said, “partly because I always wanted to have a career and children, but if I had no control over when I had the children it wouldn’t have been possible for me to plan my career.” It may be just a historical accident that the battles begun at the turn of the 20th century by Emma Goldman and Margaret Sanger to deliver safe and effective contraception to Jewish immigrant women were fought and largely won, decades later, by a professionally empowered American Jewish woman. But if so, it is an enormously satisfying one. 

Josh Lambert is the academic director of the Yiddish Book Center and visiting assistant professor of English at the University of Massachusetts, Amherst.
He is a contributing editor to Tablet magazine, and the author of American Jewish Fiction: A JPS Guide (2009). This piece is adapted from his new book,
Unclean Lips: Jews, Obscenity, and American Culture (New York University Press, 2013).