Continuing on a series of posts on the North Carolina sterilization victims compensation movement, I want to talk some about the administrative law of sterilization -- particularly the process by which people were selected for sterilization and how the approval process worked. This is a topic on which there is less information than I'd like, because -- completely understandably -- the patient records are not generally available. Johanna Schoen provides important information on this in her book Choice & Coercion: Birth Contrl, Sterilization and Abortion in Public Health and Welfare.
What we do have, in addition to the statute, are two administrative manuals that told state officials how to proceed with sterilization petitions before the Eugenics Board, which was the body that had to give approval for publicly-funded sterilization. The 1948 Administrative Manual is here, courtesy of the fabulous North Carolina State Library. It's the first one that the state produced. It has a brief history of the North Carolina movement for sterilization -- and points out in particular that North Carolina was influenced by California's experience. The Manual cites the 1935 pamphlet, Eugenical Sterilization in North Carolina, which relies on Gosney's and Popenoe's study of 6000 sterilizations in California.
Following the North Carolina statute, the 1948 manual details who may be sterilized -- the "feebleminded, epileptic, and mentally diseased" -- and the circumstances in which this may happen: "when it is believed that such an operation would be for the best interests of the individual concerned, or for the public good, or when it is believed a child or children might be born who would have a tendency to serious mental or nervous disease or deficiency."
Then the manual gives specific instructions regarding who has the responsibility and power to file sterilization petitions -- the executive head of a penal or charitable organization or the county superintendent of public welfare and it gives instructions regarding the forms to use depending on whether the person to be sterilized is institutionalized or resident in the community. Form 1 was for institutionalized individuals; form 2 was for people resident in the community. The instructions for filing out those forms note that "the social information presented by the petitioner should contain all of the circumstances surrounding the person's life insofar as they have a bearing upon ... A. The likelihood of the person to procreate a child or children who would have a tendency to serious physical, mental, or nervous disease or deficiency, and B. The reasons why it is considered to be for the public good that the individual have the operation." I guess it's telling that the instructions do not call for specific evidence of why this is in the best interest of the individual, even though the sterilization statute says that is one reason supporting sterilization.
The manual then turns to the issue of consent. It observes that it is easier to get approval from the Eugenics Board if either the individual or an authorized family member consents. There was a form (6B) for individuals who were competent to consent (after 21 years of age; not confined in one of the four state mental hospitals, nor adjudged mentally unsound). For others, where there would be consent of the spouse, parent, next of kin, or guardian, there was another form (6A). If the person to be sterilized was married, then the spouse's consent was needed. If the spouse could not be located, then the victim's next of kin could suffice. If the person to be sterilized was a minor, consent of a parent -- preferably the father -- was needed, or a guardian ad litem if there were no parent.
If the "necessary consents are not secured," then the Eugenics Board had to hold a hearing "in which reasons for and against the operation are heard." All of that leads into the Board's decision whether "the petition will be for the best interests of the person named in the petition or for the public good."
A few key questions that emerge from this broad outline. First, what did petitioners do in order to secure "consent"? Second, in what proportion of cases was there "consent" -- and, thus, in what proportion was there not even the likely coerced "consent" of the victims or their family members? Third, as to the Board's deliberations. When, if ever, did the Board reject a petition when there had been "consent"? What was the nature of the evidence that the Board required in cases where there was no consent? And in what proportion of contested cases did they reject contested petitions? (One piece of data this is available is that from 1933 to 1935 the Board considered 236 petitions and approved 231 of them; I'm not sure how many, if any, of the five rejected petitions involved "consent." Of the 235 petitions approved, there was one appeal and in that one case, the Superior Court held the Eugenics Board's decision.) Of course I'd like this data broken down by race and gender as well. Once we have that data I think we'll be in a very good position to know the full depths of the administrative state's imposition on its citizens' fundamental rights. Of course I'd love to get some picture as to how the process worked from the view of petitioners -- the hospitals and the county superintendent of public welfare -- about how they selected people to suggest for sterilization.
What can we make out of a procedure manual, then? The basic instructions the Eugenics Board provided for determining eligibility. It also gives us a sense of how the Eugenics Board approached the petitions for sterilization; that is, it gives us the bare bones of their deliberative process. Again I say that I'd love to have access to the entire run of records to build a clearer picture of how the Board operated -- this needs some serious quantitative examination. But in the absence of those records, reading the procedure manuals can reveal a lot.
Now I want to compare the 1948 manual with the 1960 manual, which backed off some of the statements about desirability of eugenics. It recognized the wide-ranging effects of sterilization -- "these effects will be physical as well as emotional and that there will be both positive and negative factors to consider." And that sterilization should be part of a "broad system of protection and supervision of those individuals unable to meet their responsibilities as parents and citizens. In the plan for sterilization, it is necessary to have the participation of the individual and of his close family connections, as well as the participation of the social worker in cooperation with the physician, psychiatrist, and psychologist." This admits of several explanations -- in some ways it shows a more humane attitude, which seems a lot less focused on what sterilization is going to do for the state. In other ways it may make a gross intrusion on personal autonomy seem like something that's family-centered. I think part of the change in the manuals reflects a change in attitude towards sterilization; where the 1948 manual focused on the public good, this one frames the issue -- again, perhaps disingenuously -- from the perspective of the person to be sterilized. "The law" provides, the manual noted, "for sterilization of individuals ... when such individuals are found to be in need fo the protection of sterilization from the standpoint of their social, emotional, mental and physical development and related environmental factors." It had this focus on the patient, despite the fact that the 1933 law that emphasized public good was still part of the North Carolina code.
The 1960 manual provided more guidance -- many would likely say not enough, but certainly more -- on what consent meant: "that the individual for whom sterilization is being considered, the spouse, parents, and/or next of kind have participated in the casework plan leading to the decision for sterilization. The signing of the consent form One of the other changes in the 1960 manual is the addition of form 7 to provide more guidance on a person's "social history," to "giv[e] an explanation as to why sterilization seems to be indicated."
The image is the Justice Department Building in Raleigh -- formerly the Education Building -- where the Eugenics Board met.