Constitutional Freedoms And Medical Legitimization In Popenoe V. Walker

2056 words - 9 pages

The constant emergence of new information and subsequent technology generates controversy in government censorship and the essential imposition of an older, temporary response to acceptable social morals. Obscenity is not a definable entity, yet is dynamic and relies on the evolving availability of knowledge that individuals use to formulate their perceptions of certain acts or suppositions. Contraception has long been a polemic issue between malleable populations and governments that through censorship produce a specific designation for obscenity. In the case of Walker v. Popenoe (1945), Dr. Paul Popenoe challenged the Postmaster General’s decision to ban the distribution of his pamphlet ...view middle of the document...

In addition, with many soldiers returning home from World War II, many married American couples were on the cusp of settling in and establishing their families. Although this coincided with the post-World War II baby boom, many families could only provide for a certain number of children and contraception would allow for sexual expression without the essential threat of pregnancy. Popenoe’s emphasis on marital sexuality and the availability of contraceptives to facilitate prosperous marriages and prevent divorces transcends obscenity and utilizes appropriate language in suggesting methods to solidify the base of American families, durable marriages.
The invocation of the Comstock Act of 1873 to dictate “Preparing for Marriage” as illegal elicits the antiquated nature of the statute in relation to the dissemination of new information concerning contraception. Though some may deem Popenoe’s inclusion of marital sexuality obscene, the work serves a larger educational purpose to advise married couples on how to maximize their marriage and solely relates to acts occurring within the marital institution. The official intention of the Comstock Act of 1873, 72 years before the Popenoe case, was to ban obscenity and material providing for the prevention of conception and producing abortion. Banning obscenity without a concrete definition becomes troublesome when individuals posses different interpretations on the legality of certain content. Although Popenoe’s pamphlet referenced contraception, it did so to promote actively sexual and healthy relationships between newly married couples rather than promoting the widespread use of contraception and sex for pleasure. Seventy-two years after the instillation of the Comstock Act, medical advancements and evolving notions of sexual expression render the older interpretations of the Act ineffective. In addition, the Postmaster General’s immediate ban of Popenoe’s pamphlet through the Comstock Act, without first testing the content in a trial by jury effectively denied Popenoe of his Fifth Amendment right to due process. A particular emphasis on the violation of Popenoe’s fundamental Constitutional privilege in conjunction with the evolving societal perception of obscenity provokes flaws from the outdated Comstock Act.
Popenoe enlisted the help of the American Civil Liberties Union in an attempt to demonstrate the unconstitutional nature of the Postmaster General’s legislative ban of his pamphlet and the subsequent violation of his right to a fair trial by jury. Despite the perceived focus of sexual obscenity in Walker v. Popenoe, the ACLU was not always concerned with sexuality as a civil liberty. In the 1930s, the economic depression accentuated “working-class people in particular needed the ability to limit their families to a size they could support financially”. The ACLU was not as concerned with contraception itself as it was the right to limit one’s family size and dictate better control financial...

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