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date: 29 January 2023

Pilpel, Harriet Fleischlfree

(02 December 1911–23 April 1991)

Pilpel, Harriet Fleischlfree

(02 December 1911–23 April 1991)
  • Leigh Ann Wheeler

Pilpel, Harriet Fleischl (02 December 1911–23 April 1991), civil liberties lawyer and activist, was born Harriet F. Fleischl to former schoolteacher Ethel Loewy and Julius Fleischl, a self-educated businessman who worked for his family’s dairy and poultry business. Harriet grew up in an upper-middle-class neighborhood in the Bronx where she attended Evander Childs High School, served as captain of the debate team, and became interested in public affairs. The eldest of three children—all daughters—Harriet enjoyed a special relationship with her father, who expected her intellectual and academic achievements to equal those of her most accomplished male peers.

Harriet Fleischl graduated from high school in 1928 on the eve of the Great Depression. Dubbed her class’s “budding Portia”—a reference to the heroine-lawyer in Shakespeare’s The Merchant of Venice—she continued her education and debating success at Vassar College, graduating in 1932. After hearing repeatedly that no woman could succeed in the legal profession, she temporarily gave up on her dream to become a lawyer and enrolled in an M.A. program in international affairs at Columbia University. In 1933 she completed her master’s thesis, recommending that the United States establish diplomatic relations with the Soviet Union only months before it actually did so. Her adviser, Philip C. Jessup—a prominent jurist who would later weather Joseph McCarthy’s accusations that he was a Communist sympathizer—recognized her lawyerly talents and ambitions and urged her to apply to Columbia Law School, one of a handful that accepted female students in the 1930s. That summer, Harriet Fleischl married lawyer Robert Cecil Pilpel and assumed his last name before joining a Columbia Law School class of 12 women and 248 men.

The only woman in her cohort to make law review, Pilpel landed a job—her dream job—even before graduating second in her class in 1936. Pilpel had long admired Morris Ernst, co-founder of the law firm Greenbaum, Wolf & Ernst, for his attacks on censorship and defense of the birth control movement, but she suspected that her stellar credentials might not be sufficient for a woman seeking work as a lawyer in the depths of the depression—a time when employment was scarce and female breadwinners suspect. In an effort to transform her greatest liability, her gender, into an asset, Pilpel donned an attractive dress and showed up at Ernst’s office to request an interview. Her bold move initiated what would become a lifelong partnership.

Pilpel’s interest in birth control and censorship was personal. She grew up hearing her mother, who had fifteen siblings, complain about the limitations uncontrolled childbearing imposed on women’s lives. She recalled her parents’ displeasure when public officials banned Margaret Sanger from speaking about birth control at New York City’s Town Hall in 1919. And she knew firsthand the importance of birth control to a woman’s professional success. (Her two children were born in 1939 and 1943.) So she was delighted when her first assignments at Greenbaum, Wolf & Ernst were to survey the current state of birth control laws and to research and help write a brief defending Dr. Hannah Stone, director of Sanger’s Birth Control Clinical Research Bureau. The court’s opinion in United States v. One Package (1936) circumscribed federal obscenity law by establishing, at the district court level, the right of a physician to import contraceptive devices “to cure or prevent disease.” Calling the court’s opinion a “Medical Bill of Rights,” Pilpel and Ernst persuaded the American Medical Association to adopt a new policy that urged medical schools to research and teach about contraception, thereby bringing a powerful cultural and political institution into the fight for birth control.

Like her mentor Morris Ernst, Harriet Pilpel was an activist who used law to make social change. Even so much of Pilpel’s work for Greenbaum, Wolf & Ernst—where she became a partner by the middle of the 1940s—involved mundane legal tasks associated with contracts regarding intellectual property, copyright, and entertainment law. Nevertheless, through this work she formed relationships with prominent activists and political figures such as Margaret Sanger, Alfred Kinsey, Benjamin Spock, Betty Friedan, and Robert Kennedy—individuals whose agendas Pilpel herself often supported. In addition Pilpel served as legal counsel to organizations such as the Planned Parenthood Federation of America (PPFA), the Association for Voluntary Sterilization, and the Sex Information and Educational Council of the United States. She also served on the boards of a number of national organizations, including the Alan Guttmacher Institute, the National Abortion Rights Action League (NARAL), and the American Civil Liberties Union (ACLU), as well as the President’s Commission on the Status of Women in the 1960s. Through her work with these individuals and groups, Pilpel functioned not just as a legal expert but also as a dynamic conduit of information and ideas about issues of sexuality and civil liberties.

The U.S. Supreme Court and other federal courts considered and often embraced Pilpel’s perspectives on freedom of speech, sexuality, and civil liberties. In two early cases involving the First Amendment—Associated Press v. National Labor Relations Board (1937) and Hannegan v. Esquire (1946)—Pilpel helped to persuade the Court to recognize employees’ freedom of speech and magazine editors’ right to second class postal rates. As chief counsel for sex researcher Alfred Kinsey, Pilpel guided the district court, in U.S. v. 31 Photographs (1957), to reinterpret the Tariff Act of 1930 so that it would allow scholars to import material that might otherwise be condemned as obscene. When she represented the PPFA in Poe V. Ullman (1959) and later Griswold v. Connecticut (1965), Pilpel used Kinsey’s research on sex and marriage to argue that laws against birth control undermined healthy marriages among the law-abiding and discouraged respect for the law among the many who flouted it. After persuading the Supreme Court to recognize a constitutional right to marital sexual privacy in the realm of birth control, Pilpel helped to extend it to single people in Eisenstadt v. Baird (1972), abortion in Roe v. Wade (1973), and minors in Carey v. Population Services (1977). In Harris v. McRae (1980) she also tried, unsuccessfully, to include poor women by arguing for a fundamental right to decide whether or not to procreate.

Supporting the “right to choose” aligned Pilpel with the women’s rights movement that emerged in the 1960s and 1970s, but when Pilpel applied the right to choose to producers and consumers of pornography, she found herself at odds with other feminists. She debated prominent anti-pornography feminists such as Andrea Dworkin, on William Buckley’s popular show Firing Line in 1985, and Catherine MacKinnon, at an ACLU Biennial Meeting, over whether pornography violated women’s rights. Pilpel brought to these debates a half-century of activism and litigation in the realm of speech and sexuality, relying heavily on Kinsey’s findings and an expansive interpretation of the First Amendment to defend pornography as constitutionally protected speech.

In 1982, after Greenbaum, Wolff & Ernst disbanded, Pilpel joined the law firm of Weil, Gotshal & Manges. Two years after the death of her first husband in 1987, Pilpel wed Irving Schwartz, a hospital administrator. She continued to work until a heart attack ended her life two years later in New York City.

As a female activist and lawyer whose work spanned most of the twentieth century, Harriet Pilpel shattered barriers. She became a successful attorney at a time when the profession was largely closed to women, brought fresh perspectives to a civil liberties bar dominated by men, used legal arguments to make change in the broader culture, and brought the findings of social scientists and concerns of movement activists into the courtroom. Her tireless efforts to expand the reach of the First Amendment and the reproductive rights of women laid groundwork for debates that would continue into the twenty-first century.

Bibliography

Transcribed interviews with Pilpel can be found in the Schlesinger-Rockefeller Oral History Project at Harvard University’s Schlesinger Library. Manuscript files that document her professional life are available in Smith College’s Sophia Smith Collection. See also Pilpel’s own articles and books. Biographical information on and assessments of Pilpel’s civil liberties career can be found in Samuel Walker, In Defense of American Liberties: A History of the ACLU (1990), and Leigh Ann Wheeler, How Sex Became a Civil Liberty (2013). For Pilpel’s work on behalf of women and reproductive rights, see David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), and Susan Hartmann, The Other Feminists: Activists in the Liberal Establishment (1998). An obituary on Pilpel can be found in the New York Times, 24 Apr. 1991.