In the midst of my anxiety over Ethel, my own trial opened January 29th in the same bare, smoky, upstairs Brooklyn court in which she had appeared. Justices John J. Freschi, Italian, Moses Herrmann, Jewish, and George J. O’Keefe, Irish, sat on the bench. Judge Freschi, a rather young man, presided, and on him we pinned our hopes. We did not expect anything of old Judge Herrmann except that, because he was Jewish, he might be broad-minded. As to Judge O’Keefe we had no illusions.
No less than thirty of the mothers of Brownsville had been subpoenaed by the prosecution, but about fifty arrived—some equipped with fruit, bread, pacifiers, and extra diapers, others distressed at having had to spend carfare, timid at the thought of being in court, hungry because no kosher food could be obtained near by. Nevertheless, all smiled and nodded at me reassuringly.
Formerly, a few women of wealth but of liberal tendencies had been actively concerned in the movement, but now some who were prominent socially were coming to believe on principle that birth control should not be denied to the masses. The subject was in the process of ceasing to be tagged as radical and revolutionary, and becoming admittedly humanitarian.
In this room, side by side with the ones to be helped, sat new helpers. Among them was Mrs. Amos Pinchot, Chairman of the Women’s Committee of One Hundred, formed to lend support to the defense. Her reddish hair betrayed a temper quick and easily aroused in the cause of justice. Aristocratic of bearing, autocratic by position, she was one to command and be obeyed, and was easily a leading personality in the philanthropic smart set of New York. Among her valuable services was the bringing into the fold of the mothers and aunts of the present active Junior Leaguers.
Mrs. Lewis L. Delafield’s limousine stood in front of the doors at almost every trial and it meant a great deal to the defendants to have the wife of one of the most eminent members of the New York bar in the courtroom. By her very demeanor and looks—white-haired, a fragile countenance—you knew she could touch nothing that was not fine, and that she had the spiritual courage to stand by her ideas and ideals in both her public and private life. Always she opened her home and her heart and her arms to those she loved.
Fania was called first. She was a girl with a pale and delicate face, and was too worried to bear the strain. She should not be punished for co-operating, and I told J.J. to notify the court that she was not well, though I strictly forbade him to say anything about my health. Her trial was brief, narrowing itself down to whether What Every Girl Should Know was to be classed as indecent. A few days later she was found guilty and sentenced to fifty dollars’ fine, a decision which was eventually reversed on appeal.
It surprised me that in my trial the prosecution should be carried on so vehemently, because the prosecutor had little to prove. To me there seemed to be no argument at all; the last thing in my mind was to deny having given birth control advice. Certainly I had violated the letter of the law, but that was what I was opposing.
I grew more and more puzzled by the stilted language, the circumlocutions, the respect for precedent. These legal battles, fought in a curiously unreal world, intensified my defiance to the breaking point. I longed for a discussion in the open on merit and in simple, honest terms.
I thought I might have my wish when Judge Freschi, holding up a cervical cap which the prosecuting attorney had put in evidence, said, “Who can prove this is a violation; the law states that contraception is permitted for the prevention of disease. May it not be used for medical reasons?”
This question raised my hopes high. At last the law might be interpreted according to the definition I so desired; ill health resulting from pregnancy caused by lack of its use might be construed as disease.