CHAPTER ONE
The Waterbury Origins of Roe v. Wade
Katharine Houghton Hepburn had never doubted that Sallie Pease was an ideal president for the Connecticut Birth Control League (CBCL). Hepburnâs next-door neighbor in Hartford since 1927, a Smith College graduate, and the mother of three school-age boys, Pease was only thirty-sevenânineteen years Hepburnâs juniorâwhen she became league president in 1934. For eleven years, since 1923, when nationally noted birth control crusader Margaret Sanger had first visited Hartford, Kit Hepburn had played a central role in holding the league together. Little headway had been made toward the leagueâs goal of winning legislative repeal of Connecticutâs unique 1879 criminal statute that made the use and/or prescription of any form of birth control a crime for both woman and doctor alike, but in the summer of 1935 Sallie Pease had taken the lead in the leagueâs dramatic but initially unpublicized decision to go ahead and simply open a public birth control clinic in Hartford. Just as the league had hoped, no one moved to enforce the law or to close the clinic, and in its first year of operation the clinicâs women doctors provided birth control counseling and devices to over four hundred married women, many of them first- or second-generation ethnic immigrants from Hartfordâs poorer neighborhoods.1 Quietly ecstatic at their success in extending to poor women the same medical advice that privately was available to those who could afford family physicians, by the summer of 1936 the Connecticut League also had clinics functioning in Greenwich, New Haven, and Stamford. The following two years witnessed similar growth and expansion, as clinic services opened in Norwalk, Danbury, New Britain, New London, and Bridgeport.2 The Bridgeport city prosecutor expressly told inquiring reporters that the 1879 statute represented no bar to the services that the Bridgeport clinic was providing,3 and six months later, in October of 1938, the league achieved its hope of having clinic services available in all of Connecticutâs large cities when a one-morning-a-week clinic quietly opened in downtown Waterbury, Connecticutâs most ethnically diverseâand most heavily Roman Catholicâcity.
Sallie Pease and Kit Hepburn were rightfully proud of the tremendous progress that had been attained by simply going ahead and opening clinics, rather than by unsuccessfully continuing to petition each biennial session of the Connecticut legislature for a statutory change, as the league had from 1923 through 1935. Neither public officials nor religious groups seemed actively interested in mounting any effort to enforce a now seemingly dead-letter law, and the Connecticut League would be able to continue moving forward with its real purpose of providing actual services to more and more needy women who wanted to limit the number of their children.
So when the Connecticut League convened for its annual luncheon meeting at the Farmington Country Club on Thursday, June 8, 1939, Sallie Pease had no hesitancy in speaking plainly about their new successes. The general director of the national Birth Control Federation of America (BCFA)âthe newly renamed organization that was the direct descendant of Margaret Sangerâs initial work two decades earlierâDr. Woodbridge E. Morris, had himself come up to central Connecticut for the luncheon, and while Hartford reporters took notes on Morrisâs remarks about the regrettable level of maternal mortality in America, they also listened to Sallie Peaseâs presidential report, in which she highlighted the opening of the Waterbury clinic as the leagueâs most prominent achievement in the preceding year. What was especially notable, she stressed, was that the Waterbury clinic, unlike any of its other Connecticut predecessors, was operating âin a public institution,â in the Chase Dispensary outpatient building of the Waterbury Hospital. So far, Pease said, it has âreceived no publicity, but it is there in working order and will grow.â4
Sallie Pease was a brash and flashy person, quite different in style and persona from the Greenwich and Fairfield County women who comprised much of the Connecticut League, and she hadnât given any thought to the possible press coverage of her luncheon remarks.5 Friday morningâs Hartford Courant ran a modest story on page twenty-four, noting in passing the newly announced Waterbury clinic in the Chase Dispensary, but the Associated Press put the Courant story on the state news wire, and Friday morningâs Waterbury Republican printed it on page fifteen, under a headline reading âU.S. Maternal Mortality Rate Reported Poor.â Several paragraphs down, however, it stated how Pease had reported âthat during the year the first clinic in a public institution in Connecticut was opened at the Chase Dispensary in Waterbury.â6
The Waterbury Republican, and its sister paper, the afternoon Waterbury American, were not the cityâs only newspapers, however. There was also the afternoon Waterbury Democrat, which in many waysâas its name indicatedâwas the antithesis of the Republican. Republican-American publisher William J. Pape had been an outspoken and crusading opponent of the cityâs mostly corrupt Democratic political establishment, and it was in large part because of the Republicanâs efforts that Waterbury Mayorâand Connecticut Lieutenant GovernorâT. Frank Hayes and over twenty fellow defendants were currently on trial for looting the city treasury. The Democrat had spoken up for the Hayes regime, and if the Pape papers were a voice for the Anglo-Saxon Yankee population that found its political home in the Republican party, the Democrat was viewed as the voice for Waterburyâs Irish, Italian, French-Canadian, and Lithuanian immigrant populations. Some 72,000 of Waterburyâs 99,000 citizens were either first- or second-generation immigrants to America, and while the ethnic parishes where most of them attended church might differ greatly in custom and in language, they were almost all Roman Catholic.7
Friday afternoonâs Waterbury Democrat featured a front-page headline, âBirth Control Clinic Is Operating In City,â and quoted Chase Dispensary supervisor Jeannie Heppel as confirming Sallie Peaseâs unintentional announcement. âPastors of Catholic churches had no comment to make today,â the Democrat went on, but the paper hardly had to tell its readers that Connecticutâs Catholic hierarchy, the Diocese of Hartford, was a staunch and unyielding opponent of birth control. Church representatives had turned out at every legislative session from 1923 to 1935 to oppose the CBCLâs petitions for statutory change, and just four weeks earlier the Reverend John S. Kennedy, associate editor of the dioceseâs weekly newspaper, the Catholic Transcript, had been prominently quoted in the Democrat as telling three hundred Waterbury Catholics at a special Motherâs Day Communion breakfast that he was puzzled as to why some Connecticut prosecutors were âso anxiousâ to go after bingo game operators âwhile birth control clinics were allowed to flourish.â One Hartford woman who had received a birth control circular, Kennedy said, had contacted the Transcript to complain. Kennedyâs remarks, the Democrat volunteered, had been âmost inspirational.â8
Different readers reacted to the Democratâs story in different ways. Waterbury Hospital superintendent Dr. B. Henry Mason and gynecology clinic chief Dr. Charles L. Larkin both told reporters that no âbirth control clinicâ was operating at the Chase Dispensary, and Saturdayâs Republican prominently headlined their claimââDoctors Deny Birth Control Clinic in Cityââdespite Heppelâs statements to the contrary. The problem, Dr. Mason explained, was simply a matter of terminology. A gynecological clinic, the Republican said, âincludes in the normal course of its work the giving of some information on birth control.â But such advice, Mason said, âis provided purely on a health basis. A woman whose health would be seriously endangered by child bearing might get medical advice at the clinic on birth control, but not robust, healthy women.â Dr. Larkin agreed: âThatâs a long way from the popular conception of a birth control clinic where any woman may go who doesnât want to have children.â9
By Saturday morning the hospital staffers finally had their stories straight, as that afternoonâs American emphasized: âMiss Heppel Agrees With Dr. Mason: Waterbury Has No Birth Control Clinic.â But Heppelâs actual statement, much like Masonâs and Larkinâs, did not exactly square with the headline: âNobody can come here for information unless they are referred by doctors for reasons of their health,â supervisor Heppel explained. âPeople canât just come in as they please and get information.â Clinic sessions were held each Tuesday, the American added, had begun last October, and were actually conducted by two young doctors, William A. Goodrich and Roger B. Nelson, who reported to Larkin.10
But the hospital officials were not the most significant readers of the Waterbury press. Fridayâs Democrat had observed that the cityâs Catholic clergy âmightâ refer the matter to Hartford Bishop Maurice F. McAuliffe, but Father Eugene P. Cryne, president of the Catholic Clergy Association of Waterbury, already had called a special meeting of the association for Saturday morning in the rectory of Immaculate Conception parish, Waterburyâs oldest Roman Catholic church. Cryne was not the most prominent or the most senior of Waterburyâs Catholic clergy, but Immaculateâs own pastor had been formally installed only one year earlier, and Monsignor Joseph Valdambrini, pastor of Our Lady of Lourdes parish and the son of a Vatican banker with a royal title, was out of town on a four-month visit to Italy. A fifty-six-year-old Connecticut native, Cryne, like many Connecticut priests, had received his religious training at St. Thomas Seminary. He had become pastor of St. Patrickâs Church, one of Waterburyâs more modest parishes, but with seventeen hundred members, mostly of Irish background, in 1933, after having previously served in a junior role at Immaculate and then in parishes just outside of Waterbury.11
Eugene Cryne was, however, in the eyes of his fellow priests, âa very forceful individualâ who had a very definite sense of right and wrong. âWhen rules and regulations were made, they had to be abided by,â a younger priest who served under Cryne explained. Although a âvery kindâ man, Eugene Cryne was âa very determined person.â And the resolution that was drawn up at that special Saturday morning meeting of Waterburyâs Catholic clergy at the Immaculate rectory was a very determined and very forceful resolution:
Whereas, it is the teaching of the Catholic church that birth control is contrary to the natural law and therefore immoral, and
Whereas, it is forbidden by statute law to disseminate birth control information for any reason whatsoever or in any circumstance, and
Whereas, it has been brought to our attention that a so-called birth control clinic, sometimes called a maternal health center, is existing in Waterbury as admitted by the superintendent of Chase Dispensary, according to the papers, therefore, be it
Resolved, that this association go on record as being unalterably opposed to the existence of such a clinic in our city and we hereby urge our Catholic people to avoid contact with it and we hereby publicly call the attention of the public prosecutors to its existence and demand that they investigate and if necessary prosecute to the full extent of the law.12
William B. Fitzgerald, the Stateâs Attorney in Waterbury, had like Father Cryne seen the stories in the Friday and Saturday Waterbury newspapers. And while news of the Catholic Clergy resolution did not appear in the Sunday Republican, Bill Fitzgerald certainly heard of it Sunday morning at the latest, for he faithfully attended St. Margaretâs Roman Catholic Church, and that morningâas Bill Fitzgerald remembered even decades laterâthe text of the clergyâs resolution was read from the pulpit of each and every Catholic church in Waterbury and in surrounding towns.13
Bill Fitzgerald had been Stateâs Attorney for only one year. Thirty-seven years old, a Waterbury native, and an alumnus of Holy Cross College, Fitzgerald had opened a Waterbury law office immediately after graduating from Harvard Law School and passing the bar in 1926. Two years later he became a prosecutor in the cityâs misdemeanor court, and in 1931 he became assistant stateâs attorney, both part-time positions that supplemented an attorneyâs private law practice. In May 1938, however, the special grand jury that had been impaneled to investigate Mayor Hayes and the cityâs financial scandals issued a detailed, seventy-four-page report to accompany its charges, and included in it was a brief but harsh condemnation of Fitzgeraldâs boss, Stateâs Attorney Lawrence L. Lewis, for failing until very recently to take any action against the presence of gambling devices in Waterbury social clubs. âThe fact that these violations of the law were known but not prosecuted by Stateâs Attorney Lewis,â and others, âis a matter of distinct concern to this Grand Jury. The law enforcement authorities of the city and of the district are, therefore, deserving of the severest censure for having permitted this widespread and flagrant violation of law to continue.â14
Larry Lewis felt he had no choice but to resign and return to full-time private practice in his firm of Bronson, Lewis & Bronson, but Bill Fitzgerald rebuffed Lewisâs notion that Fitzgerald too had to step down, indicating instead that heâd like to be Lewisâs successor. That choice lay with Waterburyâs local judges, particularly resident Superior Court Judge Frank P. McEvoy, the first Roman Catholic member of Connecticutâs premier trial court bench, and on June 6, 1938, Bill Fitzgerald received their official blessing and became the first Roman Catholic Stateâs Attorney at Waterbury. Fitzgerald voiced high praise of Larry Lewis at his swearing in, but moved swiftly to eliminate gambling from the city, with widespread raids receiving coverage even in the New York Times.15
Bill Fitzgerald âhad a first class mind,â one lifelong attorney friend and courtroom adversary later remembered, but he was âa very, very strict Catholic.â Another attorney friend, also once a communicant at St. Margaretâs, agreed that Fitzgerald was âvery bright,â but was nonetheless âa very parochial, insular guy,â someone âvery strongly receptive to and influenced by the clergy.â Bill Fitzgerald was active in a number of civic and church groups, and, like Judge McEvoy, served on the advisory board of Waterburyâs Diocesan Bureau of Social Service, which was directed by Father Eugene Cryne. But most people who knew Bill Fitzgerald felt that the pressure to act came largely from within, rather than from without, that even in the absence of a phone call, Bill Fitzgerald believed there was only one thing to do. After all, just one year earlier his predecessor had had to resign because of public complaints that he had failed to enforce the often-ignored but nonetheless still-valid gambling laws aggressively, and the old 1879 prohibition against birth control was certainly still on the statute books. Yes, Bill Fitzgerald was a âdevoutâ Catholic, but âI donât think Fitzgerald was any crusader at all,â his one-time fellow member of St. Margaretâs emphasized. As almost everyone saw it, the stateâs attorney simply felt he had to do his duty. Eight days later Fitzgerald would indicate that he had been âacting upon complaintsâ in the wake of the newspaper stories, but probably as early as Saturday morning Bill Fitzgerald had decided that an active investigation of the Chase Dispensary clinic would have to be mounted.16
Monday morningâs Republican headlined the Catholic Clergy Associationâs resolution, but devoted more attention to the continuing claims that the clinic was not what its critics said it was. Like Doctors Mason and Larkin, Dr. William A. Goodrich was portrayed as minimizing the clinicâs work: âOut of 250 women who come to the clinic yearly, he said, an average of perhaps 15 come for birth control advice. They get the same advice, he said, that women who can afford personal physicians get from their own physicians.â More pointedly, the Republican also highlighted a conversation the newspaper had had with a Hartford attorney who had represented the original CBCL clinic there. He asserted âthat there is apparently no state statute under which a birth control clinic can be prosecuted as long as the clinic is operated on a health basis,â the Republican said. âThe lawyer pointed out that prohibiting the giving of birth control information to women for health reasons would run counter to the public health laws of the state. The Hartford authorities were asked to prosecute, he said, by the Hartford Catholic clergy, and decided at the time that there was no basis for prosecution.â17
But the Republicanâs effort was in vain. Early Monday morning William Fitzgerald took a search warrant application to the chambers of Judge McEvoy. Fitzgeraldâs request stated âThat he is informed and that he suspects and has reason to suspect that books, records, registers, instruments, apparatus and appliances used and kept for the purpose of violating the criminal laws,â specifically Sections 6246 and 6562, âare kept, deposited, stored and used inâ the Chase Dispensary at 43 Field Street.18
Birth control was not a new subject to Frank P. McEvoy. A sixty-year-old Waterbury native, an active member of Blessed Sacrament Roman Catholic Church, and, like Bill Fitzgerald, a member of the advisory board of Father Cryneâs Diocesan Bureau of Social Service, Frank McEvoy had attended a small Roman Catholic college in New York, graduated from Yale Law School in 1907, and practiced law in Waterbury until being named a superior court judge in 1930. Friends thought of him as âsoft spokenâ and knew he was an âardent horseman,â but Waterbury attorneys considered him ânarrow and reluctant to accept change.â A much younger fellow Catholic attorney remembered McEvoy as âwildly Irish Catholicâ and âvery parochial.â Perhaps most notably, seven years earlier his wife had played the leading role in blocking any endorsement of birth control by the state convention of the Connecticut League of Women Voters. As the Republican had described it, Mrs. McEvoy âopposed it violently and threatened that she and all Catholic women would resign if it were adopted. Largely because of this, the proposal ⊠was voted down,â and Mrs. McEvoy had received nationwide praise from some Catholic spokesmen for her activism on the issue.19
Frank McEvoy immediately granted the warrant application that Bill Fitzgerald put in front of him: âI find probable cause exists for said complaint.â Minutes later, a little before 10 a.m., Deputy Sheriff Al Francis and County Detective Koland G. Alling took the warrant and went the three short blocks that separated the Chase Dispensary from the stateâs attorneyâs office in the courthouse. Dispensary supervisor Jeannie Heppel had left on Saturday on vacation, but her assistant, Berta Verba, showed the two lawmen to the second floor rooms at the northwest corner of the building that the birth control clinic used. As the clinic operated only on Tuesday mornings, no one else was present, but as the Waterbury Democrat described it, the two officers âconfiscated several bags and boxes of articles and returned with them to the courthouse.â
Bill Fitzgerald declined comment to inquiring reporters and sat down with his assistant, Walter Smyth, and Detective Alling to revie...