When Birth was Obscene: Court Case Puts Pregnancy Back on Newsstands  

In 1938, in response to the publication of Life magazine’s “Birth of a Baby” issue, police and vice societies raided newsstands in cities across the United States. In addition to confiscating these magazines, New York police officers arrested several news dealers for violating Section 1141 of the Penal Code, better known as the obscenity clause. In its trial memorandum, the prosecution charged that “the photographs and drawings in the magazine are disgusting, obscene, indecent and unlawful.”

This aggressive response shocked and puzzled many contemporary readers. After all, Life’s issue contained no nudity, nor depictions of sexual activity and, prior to the arrests, had been sent to the homes of its 650,000 subscribers with little objection. The subsequent trial, where famed censorship lawyer Morris Ernst successfully defended the article, helped to de-stigmatize public representations of pregnancy and birth and further the goals of public health advocates.

By modern standards, “The Birth of a Baby” seems quaint in its modesty. The article consists of 35 panels of still photographs, reproduced from a seventy-two-minute educational film by the same title, with brief text summaries beneath each still. It is the fictional story of Mary, a married woman who becomes pregnant and who learns, along with the reader, about the major stages of pregnancy and birth.

Censors were most concerned about the article’s illustrations, particularly the diagrams displaying the development of a fetus and its eventual birth. Readers also saw an actual baby’s head emerging from the birth canal. The area around the baby’s head, however, is so thoroughly enveloped in white sheets that there is no evidence (save the textual commentary) that a baby is actually emerging from a woman’s body.

The Court Case: Corrupting the Morals of Youth?

Both the prosecution and the defense in the Life case professed to act out of concern for the young. On April 7, 1938, the night before the issue hit the newsstands, Richard Brooks reported on his WNEW radio show in New York that police chiefs throughout New England viewed the article as “muffled propaganda for birth control” and, accordingly, believed it “would be detrimental to the morals of youth.”

The prosecution, taking its cue from Bronx District Attorney Samuel Foley, argued that the article would cheapen sex or even increase illness and mortality by encouraging sexual activity among the innocent. At court, the prosecution pointed out that the issue was sold in candy stores and could be “sold in the rack with...magazines such as Boy’s Life, Boy Scout magazines and other periodicals intended for persons of tender and immature years.” Foley cited the 1868 English case of Regina v. Hicklin, in which Lord Chief Justice Cockburn defined “obscenity” as that which tends “to deprave and corrupt those whose minds are open to immoral influences and into whose hands a publication of this sort may fall.” The prosecution believed that “The Birth of a Baby” “would suggest impure and libidinous thoughts in the young and inexperienced,” and therefore should be banned.

Sex Education not Obscene

To rebut the obscenity charge, Life hired Morris Ernst, who in 1933 had successfully defended Ulysses, thereby lifting the ban on James Joyce’s novel. Since that ruling Ernst had maintained an amazing win record, and his cases would be standard points of reference in censorship and obscenity cases for decades to come.

Ernst loved to argue cases that illustrated how out of touch statutes were with contemporary attitudes, and thus he enthusiastically agreed to defend Life. In the Defendant’s Reply Memorandum, he cited the 1936 case of United States v. Levine, in which Judge Learned Hand gave the following opinion on Hicklin: “No civilized community not fanatically puritanical would tolerate such an imposition, and we do not believe that the courts that have declared it, would ever have applied it consistently.” Even if Hicklin were applicable, the defense continued, the “Birth of a Baby” pictures did not tend to corrupt, since the matter was presented in a “coldly scientific” and dignified manner. Ernst then presented the testimony of numerous experts, including psychologists, doctors, educators, and clergymen, who concluded that the Life article was actually beneficial to children. Rather than encourage sexual activity, the article would correct children’s misconceptions about sex.

Ernst thus used the trial as a referendum on sexual education and public health. Almost ten years earlier, in United States v. Mary Ware Dennett, Ernst had successfully defended the distribution of a sex education pamphlet through the mail; now he cited that case to support his claim that sexual education was not obscene. In a letter dated April 9, 1938, in which he asked hundreds of prominent members of the community for opinions on the article, Ernst labeled the attempted suppression of the magazine “an attack on public health and welfare.”

At trial, he argued that “maternal and infant mortality thrives on ignorance,” and piled on statistics to support the need for sexual education. In the defendant’s memorandum, the defense cited 1936 data showing that 150,000 babies and mothers had died, including 12,000 mothers who died from childbirth, 30,000 babies who died within twenty-four hours after birth and 40,000 babies who died before they were one month old. “Physicians are almost unanimous in their opinion,” Ernst wrote, “that a large percentage of these deaths of mothers and babies can be prevented if expectant mothers realize the importance of good medical attention, and seek it. The obvious remedy for the high death-rate is a program of education.”

Ernst summed up his argument succinctly: “Life is not obscene unless human birth is.” Life—and birth—were ultimately ruled not obscene.

On the Stands Today

Magazines celebrating birth and female sexuality are now omnipresent. Almost anyone seeking information about pregnancy and childbirth these days has a wealth of information readily available. Those without access to Internet sites such as babycenter.com or to cable television programs like A Baby Story can choose from numerous magazines (Fit Pregnancy, Parents, American Baby, etc.) that offer facts and advice on women’s reproductive health. Add Time and other news magazines, which occasionally run features about birth and pregnancy-related topics, and one finds quite a bit of sexual content at hand.

Unlike the 1938 Life article, none of these magazines strips birth of its sexual origins. Twenty-first century articles are much more likely to describe pregnancy in graphic terms that were inconceivable in the 1930s. Interestingly, while few would argue that these magazines are “obscene,” early twentieth century prudishness about the body seems to linger, as images of the birth process are still uncommon. Pictures of babies emerging from the birth canal are apparently, still offensive to many. But thanks in part to Morris Ernst’s efforts, birth is no longer considered indecent.

* Joel Silverman is a Ph.D. candidate in American Studies at the University of Texas at Austin. He is writing his dissertation on Morris Ernst’s influence on sexual liberty in the twentieth century.