How birth control became legal in Canada. It starts with an eugenicist

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Thousands of academics are gathering in Vancouver for the annual Congress of the Humanities and Social Sciences from June 1-7. They will present papers on everything from child marriage in Canada to why dodgeball is problematic. In its Oh, The Humanities! series, the National Post showcases some of the most interesting research.

One by one, they took the stand. All women, all Francophone, all desperately poor. Most were in their 20s or 30s, but many had 10 children or more.

In defiance of Depression-era social norms, and under the threat of public shame, they admitted, through an interpreter, that, yes, they’d asked for birth control. Yes, despite the protests of their husbands and priests, they believed it was their right. Only two of more than 20 women said they felt they’d done anything wrong. Infant and child mortality were high — they were worried any more babies they had would die … or that they would. Some admitted to inducing at-home abortions that would not have been necessary if they could have been in touch sooner with Dorothea Palmer, a social worker from the Parents’ Information Bureau who had visited their homes to distribute family planning pamphlets and product samples.

The bureau was the brainchild of the wealthy industrialist A.R. Kaufman of the Kaufman Rubber Company, maker of Sorel boots. He got the idea after his seasonal workers — whom he laid off every winter after the rush for boots dried up — complained they were nearly destitute. Inspired by other birth-control crusaders of the time, Kaufman decided their real problem was too many children. He arranged sterilization operations for his workers and hired dozens of women, mostly nurses, to make home visits and give contraceptive advice to his workers and, soon after, to the broader community and other communities nationwide.

Palmer was one of these women. She stood accused of advertising contraceptives, which was then an obscenity under the Criminal Code of Canada. She was the last person ever prosecuted for that offence, though it remained on the books until 1969. She was remarkable, says historian Elizabeth Koester, but the women of the tiny, impoverished town of Eastview (now Vanier, a suburb of Ottawa) were the unsung heroines of the Eastview Birth Control Trial of 1936-37.

Koester was attracted to the tale because of its complicated characters and its intersection with two historical subjects she is interested in: eugenics and the law. Koester, a former lawyer and recent University of Toronto PhD graduate, is working on turning her dissertation into a book about the history of eugenics in Ontario.

Historians in Canada have tended to focus on eugenics legislation and coerced sterilization, rather than other aspects of the law or why such laws came to be, Koester said. Most have, understandably, focused on Alberta, where nearly 3,000 supposedly “unfit” people were surgically sterilized between 1928 and 1972.

Koester is giving a talk on the Eastview trial at the joint conference of the Canadian Society for the History of Medicine and Canadian Association for the History of Nursing, part of the larger Congress of the Humanities and Social Sciences taking place in Vancouver from June 1-7.

Palmer prevailed in her case. A magistrate dismissed the charge against her on March 17, 1937, thanks in large part to the brilliant, “theatrical” lawyer Kaufman hired, Franklin Wellington Wegenast. He successfully mounted a defence that Palmer had acted in the public good.

The six months of proceedings at times devolved into a circus. Testimony from social-service organizations and religious groups veered into deep questions about morality, social justice, the rights of women, church and state, and war and peace.

Wegenast “threw everything plus the kitchen sink at the issues,” Koester said. At one point he sent two men out to nearby druggists to look for contraceptives. They returned, triumphant, and dumped armfuls of condoms and spermicidal potions on the courtroom table. This was to show that birth control was seen as a public good, and was widely available if you knew where to look — so it was unfair to single Palmer out.

The prosecutor called dozens of Eastview women whom Palmer had served to testify that she had, indeed, advertised contraceptives to them. But this strategy blew up in the Crown’s face because the facts were not actually in dispute, Koester explained. In fact, Palmer “told the cops to go ahead and arrest her, because the minute she got out of jail she’d go back to doing what she’d been doing.”

Wegenast cross-examined the women and they made his case for him: It was, unquestionably, a good thing that they could prevent unwanted pregnancies and space the births of their children.

And that’s where the story gets complicated. Because Kaufman, through the Parents’ Information Bureau, didn’t act out of an authentic desire to help women, and men, gain bodily autonomy and control over their reproductive destinies. That language wouldn’t have been familiar even to the woke-est feminists of the time.

No, he thought the wrong kinds of people were having children.

Specifically, poor, “feeble-minded,” and especially Catholic people, toward whom he harboured “virulent” prejudice, Koester said.

Kaufman was a founding member of the Eugenics Society of Canada, which advocated for immigration restriction, segregation of people perceived to be mentally deficient, and policies to encourage “fit parenthood,” all based on the idea of applying the emerging science of selective breeding to human beings.

Kaufman didn’t openly advocate for sterilization without consent and he has gotten a bit of a pass, as historical baddies go. There’s even a school and a YMCA named after him in Kitchener.

Some historians believe he sent Palmer to Eastview, a French Catholic stronghold, specifically because he was eager to test the public-good defence and was spoiling for a fight with the Church.

Palmer, in a 1978 interview, speculated that she’d been set up to do “the men’s dirty work.”

“She felt perhaps that Kaufman had put her in that situation knowing what would happen,” Koester said. However, Palmer also said she’d chosen to break decades of silence about the trial because she was proud of what she’d done and wanted her granddaughter to know about it.

“I don’t think she had a eugenic bone in her body. She believed (contraception) was a woman’s right,” Koester said.

Palmer fought for her beliefs at great personal risk to her reputation and even her safety. Two men allegedly grabbed and groped her as she tried to enter the courtroom one day, threatening her with rape as if to teach her some kind of twisted lesson.

“She kneed them in the groin,” Koester said. “She was just fabulous.”