The Faculty Lounge

Kudos to This American Life

A few weeks ago I blogged here about a recent episode of This American Life, "Dr. Gilmer and Mr. Hyde," about the quest of one Dr. Gilmer (Benjamin) to understand why another, beloved Dr. Gilmer (Vince), had brutally murdered his own father after hearing voices that compelled him to do so. The episode ends (spoiler alert) with the revelation that Vince suffers from Huntington's, a rare, neurodegenerative disease that causes progressive physicial, cognitive, and psychological deterioration.

Listeners, it seemed to me, could naturally conclude from the episode that it was Vince's Huntington's that had caused him to murder his father. That might or might not be true in this particular case. Huntington's can cause behavioral and mood changes, including irritability, aggression and belligerence. It can also cause (less often) psychosis. But even if Huntington's caused Vince to murder his father, or somehow contributed to the murder, the extreme violence that Vince displayed — strangling his father, then sawing off his father's fingertips to preclude identification — is in no way typical of the Huntington's population as a whole. And so what most troubled me about the episode was its failure to note just how rare this kind of extreme violence is among those with Huntington's, just as it is very rare among human beings generally. And so I wrote to TAL, requesting a clarification.

I'm happy to report that the TAL producer for the episode, Sarah Koenig — who had not intended to suggest any causal link between Vince's murder of his father and his Huntington's, much less between murder and Huntington's more generally — has issued a clarification on the show's blog, and promises to make a similar clarification in the episode itself, should they ever re-air it. Kudos to TAL, and many thanks to Sarah for being incredibly gracious in our exchanges.

One clarification deserves another. In my earlier blog post, I also worried that some listeners might  conclude that Vince's father was similarly driven to commit horrific acts of sexual abuse on Vince and his sister because he, too, was (presumably) suffering from Huntington's (an autosomal dominant genetic disease). Although I think that a listener who didn't know better could reasonably conclude that Huntington's causes people to become sexual predators almost as easily as they could conclude from the episode that Huntington's causes people to become murderers, nothing in the episode suggests that Sarah, Benjamin Gilmer, or anyone else at TAL believe that Huntington's causes sexual abuse, or that they intended for listeners to reach that conclusion. I regret anything in my earlier post that suggested otherwise.

Again, I'm very grateful to Sarah and everyone else at TAL for hearing me (and other listeners) out and for agreeing to make the clarification — and just in time for HD Awareness Month!

Great Gatsby and the 1920s version of Product Placement?

I mentioned yesterday the inept reference that Tom Buchanan made in The Great Gatsby to Lothrop Stoddard's The Rising Tide of Color -- which is really a scary book.  

Right now I want to focus on something else -- the publisher of Stoddard's book.  I've been wondering why Charles Scribner's published eugenics literature (in addition to Stoddard, they published Madison Grant's The Passing of the Great Race).  Perhaps they were publishing whatever they thought would sell?  Maybe there's something deeper here.  

But then I realized that Gatsby was also published by Scribner's!  So now I'm wondering if the reference to Stoddard's book (which Tom incorrectly referred to as written by Goddard, who was another of the writers on eugenics -- though his work was published by MacMillan) was really a product placement in the novel?  That is, was Fitzgerald writing an advertisement for his press' book into the novel?  I was talking with one of my students, Thomas Thurman, about this -- and he said, quite astutely, if Fiztgerald was serious about a product placement he would have given the author's correct name and the full title of the book.  Thomas might have added that he wouldn't have made Tom look like such a fool, too.  Though maybe this was Fitzgerald's effort to subtly influence readers?

Update:  I see that the Financial Times has the rundown on how the movie's pushing clothes and jewelry.  No word yet on whether The Rising Tide of Color appears in the movie.

Update 2: Holy Cow!  Later on in the novel, it turns out that Gatsby has the Stoddard Lectures, a series of books on travel by Lothrop Stoddard's father, John Stoddard.  (Never read, of course, because the pages were never cut.)  And guess what?  John Stoddard taught at Boston Latin School and you know what Lothrop's profession was?  Legal historian.  This deserves some more commentary down the road.

Latest on North Carolina Sterilization Victim Compensation

Well, I have returned to Chapel Hill to find that there's talk again of compensation to North Carolina's sterilization victims.  Already there's opposition brewing in the North Carolina Senate, where last year's compensation movement ended.  According to one report, Senator Phil Berger said that "with budgetary constraints, it's not appropriate."  The first article I linked to gives a somewhat different take from Senator Berger -- that "There was no ability to develop consensus on one particular path forward."  Perhaps there's some possibility of trying to find some consensus on a good way to proceed -- maybe that would involve attention to the circumstances of individual sterilizations.  Or maybe that's just Senator Berger's way of saying that some people are opposed and until they change their mind -- which they're unlikely to do -- this will not pass the Senate.  Time will tell.  And as you might expect, I'll be following this story closely.

Taking a Measure of the Past and Present

Paul Lombardo, the Bobby Lee Cook professor of law at Georgia State, has a terrific op-ed, "When Heroes Stumble," over a controversy about an award given by the American Sexuallty Transmitted Diseases Association in the name of Dr. Thomas Parran.  Here's the beginning of Lombardo's essay: 

The American Sexually Transmitted Diseases Association faces a quandary. The name of Dr Thomas Parran, a 20th century hero in the field of sexually transmitted disease prevention, accompanies a prestigious award given by the organization annually. Members are now confronted with the unsettling realization that Parran, like many honored figures of the past, also had a less heroic side. It was already known that he presided over the Public Health Service in the early years of the infamous Tuskegee syphilis study; more recently, the world learned that the scandalous intentional infection studies in Guatemala after World War II also occurred on Parran’s watch. Material from the files of Dr John Cutler, who directed the Guatemala experiments, has provided more troubling details. It suggests that Parran not only knew the details of Cutler’s work but also endorsed it with full awareness of its ethical toxicity. Should Parran, a giant of the field, be banished from its Pantheon, or should his eponymous award remain despite the newly found stain on his reputation?

Read the rest here and more on the Parran Award controversy here.

The image is of the Buck v. Bell monument in Charlottesville, which I'm using because Lombardo wrote the leading book on the case and is a leader of the movement to recognize and atone for the tragedy of forced sterilization in the twentieth century. h/t to Greg Dorr, who's the author of another leading work on eugenics in the twentieth century, Segregation's Science.

"Endangered Gender" Symposium

Two of Regent University Law School's journals are sponsoring a one-day symposium starting the evening of Friday, February 15 and continuing until noon Saturday: Endangered Gender: A Discussion on Sex-Selective Abortion.

All the panelists should prove insightful but I'm personally looking forward to hearing from Prakash Tyagi, who has the distinction of coming the greatest distance to be part of the symposium. Prakash is the executive director of GRAVIS, an Indian NGO working with the marginalized rural population of the Indian state of Rajasthan, where sex-selective abortion is a significant problem. I came to know Prakash while I was teaching at the National Law University in Jodhpur, Rajasthan as a Fulbright Scholar. I am delighted that he will be able to attend this symposium and look forward to hearing his comments about the "on the ground" situation in his part of India.

The conference is free to all registrants and there are plenty of top-notch accommodations neaby. Let me know if you'd like to come and I'll steer you in the right direction.

Buck v. Bell Trivia

Seeing Dan Ernst's note at legal history blog about Victoria Nourse's article, "Buck v. Bell: A Constitutional Tragedy from a Lost World," reminds me that I want to ask a trivia question related to Buck.  When and by whom was Buck most recently was cited as a valid case?  I think the answer will not just surprise you; it will shock you (at least to timing it shocked me).

The illustration is the hospital building at the what was then known as the "State Colony for Epileptics and Feebleminded," where Carrie Buck was sterilized in the wake of Buck v. Bell.

Latest on the North Carolina Sterilization Victims Compensation Act

Thanks to Mark Bold I see that the House has just passed an act to compensation people sterilized under the authority of the North Carolina Eugenics Board.  Today's Reuters story quotes Republican Representative Paul Stam, the North Carolina House majority leader:

Whoever they are, they deserve compensation .... We owe it to them, not in a legal sense, but in a moral sense. It was a sad program that lasted for several decades and had its genesis in a philosophy that is alien to the American spirit.

Representative Tom Tillis focused on the state's role in making the case for payments: "We had elected officials and leaders who had the audacity to know what the great race was .... There are people living today, all around this community, who have had this done to them and we have a chance to put it at rest."

Next stop is the Senate.  As the Senate takes this up, I hope they will focus on a couple of key points -- that this was state action, done in most cases for the convenience of the state, so the state could save money; that many people at the time knew this was wrong, even though the dominant mindset in the state was that sterilization was for the improvement of the human race -- and in some cases the white race; and that compensation is only going to people who are still alive, so it goes to the most direct victims.  As to opposition at the time, here is a chapter from a book on sterilization in North Carolina published in 1950 that discusses the opposition to sterilization, particularly by people who're its likely victims.

If you'd like a brief sense of the sterilization mindset in North Carolina, here is a pamphlet published by the Eugenics Board, which details the case for sterilization and also contains the administrative forms at the end of the pamphlet, which show just how much this was turned into routine bureaucratic work.

My previous posts on North Carolina's history with sterilization and the movement for compensation are available here.

The Administrative Forms for Sterilization

Well, the hearing on the bill to provide compensation to sterilization victims went well.  Several survivors and family members spoke, as well as several middle school students.   As I was driving back with a couple of law students we remarked those students and their teacher really had their act together!

The committee had a thoughtful debate about the bill.  The anti-reparations arguments rested largely on this isn't the responsibility of the current generation (and also to some extent, a lot of other states did this, so North Carolina shouldn't be singled out).  That was countered by the argument that are people still living who are suffering as a result of the state's action.  I wasn't surprised by any of the arguments; but I was pleasantly surprised by the outcome.

The house judiciary committee passed the bill, so it's on its way.  Looks like this is actually going to make it -- and will be just another episode of realistic reparations.

Along the lines of the "this was done by the state" argument, I thought you might find the forms that the state prepared to facilitate the petitions for sterilization of particular interest.   The forms were reprinted in a lot of places, including a 1938 pamphlet from the Eugenics Board that made the case for sterilization.  It never ceases to surprise me how technology is harnessed to effect the ends of the state.  And how much those forms were designed to stream-line the process.  And perhaps you'd find also of interest the appendix to Moya Woodside's 1950 study of sterilization in North Carolina, Sterilization in North Carolina: A Sociological and Psychological Study, which tells the story of "illustrative cases" of people who were sterilized in the 1940s.

The illustration is the Judiciary Committee hearing, where Representative Larry Womble, who's been the champion of this issue for about a decade now, moved the bill.  This was his first appearance in the legislature, I think, since he was in a car accident last fall.

The Sterilization Mindset, Circa 1976

One of the things I've been talking about of late is the mindset of people from the 1920s and 1930s about sterilization.  They justified it in two ways.  First, on the basis of the cost to society of the children of those who would be sterilized.  The good to society outweighed the harm to the individual.  Holmes' statement in Buck v. Bell is the best known of the many utilitarian statements made by courts supporting sterilization.

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

Though Holmes' statement is the best-known, there were others.  This was a more extreme version of the sentiments the Virginia Supreme Court expressed in Buck v. Bell in 1925, which observed that Carrie Buck's welfare and that of Virginia were both promoted by sterilization.  Similarly, in Smith v. Command, a 1925 Michigan decision that upheld the state's sterilization statute, Justice McDonald emphasized the costs to the community: "That they [the people to be sterilized] are a serious menace to society no one will question."  "Under the existing circumstances it was not only its undoubted right, but it was its duty, to enact some legisaltion that would protect the people and preserve the reace from the known effects of the procreation of children by the feeble-minded, the idiots, and the embeciles."  "It is an historic fact that every forward step in the progres of the race is marked by an interference with individual liberties."

Second, on the supposed value to the people to be sterilized.  The supposed advantage was that the sterilized individuals could return to the community and not have to care for children. I'm guessing we're all skeptical of such justifications.

But what really interests me is how long a tail these justifications have -- right up to the middle of the 1970s in one case.  In re Moore, a 1976 decision in the North Carolina Supreme Court, quoted Buck v. Bell for the proposition that the state has an interest in preventing births of children who will be charges on the state.  There was no heightened scrutiny for impositions on reproductive rights.  It's a shocking opinion, really -- much better suited to the era of the 1920s then the era of modern equal protection.  Mind you, this is three years after Roe -- which was also cited, not for the proposition that individuals have fundamental rights to control reproductive decisions, but for the proposition that the state may regulate those decisions.  (In re Moore at 102 ("The right to procreate is not absolute but is vulnerable to a certain degree of state regulation.  Roe v. Wade, supra; Buck v. Bell.")).  That's astonishing that Roe v. Wade and Buck v. Bell were cited together.

The illustration is the hospital building at the what was then known as the "State Colony for Epileptics and Feebleminded," where Carrie Buck was sterilized in the wake of Buck v. Bell.

North Carolina Sterilization Victims Compensation: Draft Act

Thanks to a pointer from Daniel Goldberg, here is the current version of the North Carolina bill to provide compensation for sterilization victims.

A key part of the bill is that each "qualified recipient" shall receive $50,000.  A "qualified recipient" is: "An individual who was asexualized or sterilized under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937, and who was living on March 1, 2010."  So anyone -- without distinction regarding the circumstances -- who was sterilized by order of the Eugenics Board and surived until March 2010 is entitled to compensation.

The trusts and estates professor in me is particularly interested in this part of the bill, which excludes compensation as available assets for determination of eligibility for government assistance programs:

§ 143B‑426.56.  Compensation excluded as income, resources, or assets.

(a)        Any payment made under this section is not subject to income tax as provided in G.S. 105‑134.6(b)(23), nor to be considered income or assets for purposes of determining the eligibility for, or the amount of, any benefits or assistance under any State or local program financed in whole or in part with State funds.

(b)        Pursuant to G.S. 108A‑26.1, the Department of Health and Human Services shall do the following:

(1)        Provide income, resource, and asset disregard to an applicant for or recipient of public assistance who receives compensation under this Part. The amount of the income, resource, and asset disregard shall be equal to the total compensation paid to the individual from the Eugenics Sterilization Compensation Fund.

(2)        Provide resource protection by reducing any subsequent recovery by the State under G.S. 108A‑70.5 from a deceased recipient's estate for payment of Medicaid‑paid services by the amount of resource disregard given under subdivision (1) of this subsection.

(3)        Adopt rules to implement the provisions of subdivisions (1) and (2) of this subsection.

The Administrative Law of Sterilization

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.

Consent?

The Sterilization Mindset

I've been working of late on the administrative law of sterilization: how the law provided a framework for the selection of people to be sterilized and how it dealt with their objections.  And also thinking some on courts' deference to legislatures....

One article that interests me in particular is Michigan Law Professor Burke Shartel's "Sterilization of Mental Defectives," which appeared in the Michigan Law Review in 1925.  Shartel apparently wrote the Michigan law for sterilization and his article was largely an explanation of the statute and also a discussion of the 1925 Michigan Supreme Court's 1925 decision in Smith v. Command, which upheld the Michigan sterilization statute only over the vigorous dissent of three justices.

Shartel was writing a couple of years even before Buck v. Bell -- and like many other writers in the 1920s, saw a cost-benefit analysis as one essential part of sustaining a forced sterilization statute.  He minimized the problem -- for instance, at one point he wrote that though there are 20,000 "feeble-minded" persons in the state, "[t]his would not be too many to sterilize, considering the population as a whole...."  Then -- following the lead of the Michigan Supreme Court -- Shartel suggested that the issue involved calculating society's need.  "If the social need be great enough the state can deprive of liberty (as it does do with the insane, the criminal, the man who objects to vaccination and so on) or it may take life (as it does as a penalty for crime or by drafting into the military service and exposing to death, etc.)."  That was a cost-benefit analysis that admitted of little room for humanity.  

Perhaps this should not surprise anyone, but Shartel (and others at the time) approached the act with great deference:

Simple doubt of the wisdom or policy of a statute is not decisive against its constitutionality.  The sterilization statute is "expressive of a state policy apparently based on the growing belief that, due to the alarming increase in the number of degenerates, criminals, feeble-minded, and insane, our race is facing the greatest peril of all time.  ... Unless for the soundest constitutional reasons, it is our duty to sustain the policy which the state has adopted." (quoting Smith)

This was an era of deference to legislatures on issues of individual rights and of the subordination of individual rights to the claims of the state.  Even before Smith, Aubrey Strode, the lawyer for the state in Buck v. Bell published a short examination and defense of the Virginia statute, "Sterilization for Defectives," in the Virginia Law Review in 1924.

When the Virginia Law Review  discussed the Virgina Supreme Court's 1925 decision in Buck v. Bell, it suggested that great deference was due the legislature: "Every possible presumption is in favor of the validity of an act until overcome beyond rational doubt."  That was the nature of constitutional law at the time, even though some -- like Harvard Law Professor Thomas Reed Powell -- understood that "calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls."  Later in that same work, Powell questioned the utilitarian calculus so many employed: "Calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls."  There were other voices calling for reason, too.  Clarence Ruddy's article in the Notre Dame Lawyer in 1927  was probably the strongest case in a law review in the 1920s against sterilization.  A year earlier, Jacob Broches Aronoff wrote in the St. Johns Law Review about the reasons for public opposition to eugenics legislation.  For instance, it "looks like a heartless method on the part of the tax-paying classes of getting rid of a duty of caring for the helpless and unfortunate of the poorer strata of society...."

Ruddy's article appeared just after Buck v. Bell was decided; one of the pernicious aspects of that case, I think, was its legitimation of sterilization.  For in the few years after it, law reviews frequently pointed to it to sustain their arguments.  For instance, William Renwick Riddell reviewing Sterilization for Human Betterment in the ABA Journal  in 1930 invoked Bell and then added that "the appalling prevalence of imbecility and the consequent drain upon the resources of the people have imprelled many to consider sterilization of the imbecile as called for ...." Riddell concluded "other jurisdictions may well profit by the example of California."  Similarly, University of Illinois Sociology Professor Donald R. Taft's review of Sterilization for Human Betterment  in the Illinois Law Review concluded that "Sterilization will eliminate many socially dangerous homes.  If, as is quite probable, a race somewhat sounder eugenically also results, we can all rejoice." 

The Latest on the North Carolina Sterilization Victims Compensation Movement

Here is an editorial from yesterday's Winston Salem Journal on the movement for compensation for victims of North Carolina's sterilization movement and here is an editorial from John Hood, the head of the John Locke Foundation.  Next month promises to be very important in the legislature; I'm looking forward to the discussion.  Previous posts here at the faculty lounge on this topic include:

Two Eugenics Memorials

The Presumption of Constitutionality and Sterilization Legislation

Gauging Attitudes from Law Reviews: The Case of Sterilization

Designing Compensation for Sterilization Victims, part I

Designing Compensation for Sterilization Victims, part II

North Carolina Sterilization Victims Compensation

Update as of June 5:  here are my other posts:

The Administrative Forms for Sterilization

North Carolina Sterilization Victims Compensation: Draft Act

The Sterilization Mindset, Circa 1976

 

 

Two Eugenics Memorials

Following up on the discussion of late about compensation to sterilization victims, now that I have a picture of the Eugenics Highway Marker in Raleigh, I want to make some use of it.  The use I want to make of it is to compare it to Virginia's highway marker, to see how the two states present their histories to the public.

The North Carolina marker isn't long, so there's a real limit to what it can do.  Recall that it says "State action led to the sterilization by choice or coercion of over 7,600 people, 1933-1973.  Met after 1938 one block E."  (That's in the Old Education Building, which -- irony of ironies -- is now the Justice Department.)

Compare that with the Virginia highway marker on eugenics, which is in Charlottesville (at 800 Preston Avenue).  By the way, it's not the easiest to see from the street -- it's hidden behind a couple of trees.  The Virginia marker is substantially longer.  It reads:

In 1924, Virginia, like a majority of states then, enacted eugenic sterilization laws.  Virginia's law allowed state institutions to operate on individuals to prevent the conception of what were believed to be "genetically inferior" children.  Charlottesville native Carrie Buck (1906-1983), involuntarily committed to a state facility near Lynchburg, was chosen as the first person to be sterilized under the new law.  The U.S. Supreme Court, in Buck v. Bell, on 2 May 1927, affirmed the Virginia law.  After Buck more than 8,000 other Virginians were sterilized before the most relevant parts of the act were repealed in 1974.  Later evidence actually showed that Buck and many others had no "hereditary defects."  She is buried south of here. 

The Virginia marker contextualized the law (most other states did it); the purpose behind the statute; Carrie Buck's story; and then tells us about the number of people who were also sterilized.  I think I prefer the longer version, though there's something also quite powerful about North Carolina's emphasis that "state action" was behind the sterilization of 7000 North Carolinians.

The Presumption of Constitutionality and Sterilization Legislation

As I was reading General Holder's letter to the Fifrth Circuit earlier today, I was struck by a parallel to some of the debate regarding sterilization legislation.  Holder remarked that "Acts of Congress are 'presumptively constitutional,' Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Court stressed that the presumption of constitutionality accorded to Acts of Congress is 'strong.'”  This is reminds me of an argument made -- repeatedly -- by advocates of sterilization that there should be deference (sometimes on the factual question of whether sterilization is a good way of limiting the burden on the public and at other times whether sterilization is a reasonable exercise of the police power).  Consider, for instance, the Virginia Law Review's discussion of the Virgina Supreme Court's 1925 decision in Buck v. Bell.  It suggested (at 421) that great deference was due the legislature: "Every possible presumption is in favor of the validity of an act until overcome beyond rational doubt."  That was the nature of constitutional law at the time, even though some -- like Harvard Law Professor Thomas Reed Powell, writing a few years later, also in the Virginia Law Review -- understood that "calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls."

Moreover, Michigan Law Professor Burke Shartel's "Sterilization of Mental Defectives," which appeared in the Michigan Law Review in 1925, focused on the Michigan's legislature's finding of "facts" regarding the effects of sterilization.  Shartel's article was, in essence, a defense of the Michigan Supreme Court's 1925 decision in Smith v. Command, which upheld the Michigan sterilization statute only over the vigorous dissent of three justices.  Shartel argued (at 21) that "the court ought to require the facts on the basis of which the constitutionality of a law is assailed to be established by the assailant 'beyond a reasonable doubt.'"  Shartel was asking for deference on issues of "fact," whereas the Virginia Law Review note had a broader sense of deference, I think -- deference regarding the scope of the police power (or at least on the "reasonableness" of sterilization, which I take it was central to deciding whether that was sterilization was a valid exercise of the police power).  Therein was a huge problem, given the deference that many courts showed to what was "known" about the desirability of sterilization and the costs and benefits of eugenics.  I'll have a lot more to say about the sterilization mindset shortly.

Goldberg Guest Post on Sterilization

The following is a guest post from my friend Daniel Goldberg of East Carolina University's Bioethics and Interdisciplinary Studies Department.  I hope we'll hear some more from him as the discussion about compensation of victims of North Carolina's sterilization program moves forward:

Thanks much to Al for the invitation to contribute to TFL.  I am a peculiar academic creature; about 60% of my work involves public health ethics and population-level bioethics, and about 30-40% of my work is original research in the history of medicine and public health.  Although I am no historian of eugenics, my period of the mid-to-late 19th c. (and into the early 20th), and my interest in the history of public health, combined with my work on race, class, inequities, and the social determinants of health means that I cannot afford to be entirely ignorant about the enmeshment of fin-de-siècle and progressive public health activities and eugenics.

Having moved to North Carolina just a few years ago, and now living in eastern North Carolina (which is substantially poorer, sicker, more rural, and more African-American than the Piedmont), I have taken a particular interest in the activities of the sterilization task force and the history of involuntary sterilization here in my adopted fair state and in my region.

 I am at heart an intellectual historian, and one of the things I find fascinating is the way in which ideas are social actors.  That is, ideas can have a powerful effect on material history, and one of the most obvious ways in which this happens in context of health is the importance of individual agency.  The conventional view that American political culture is highly individualist turns out upon close scrutiny to be exactly correct, and there is virtually no doubt that this individualism has had and continues to have a profound impact on our ideas about health, our causal attributions of disease and health, and on our ideas about the remedies we should implement to ameliorate poor health.

 Thinking about the sterilization program, and communicating with peers, colleagues, and community members on its history in eastern North Carolina in particular, what has become plain is the complexity of some of the issues underlying it.  Not, of course, that this complexity serves to diminish either the horror of involuntary sterilization or its class and race-based applications.  But there is ample social epidemiologic evidence showing that single parentage is a significant determinant of all sorts of adverse health outcomes, as is having multiple dependents.  Moreover, social disadvantage tends to cluster, which means that across a population, those who are single parents are more likely to suffer from other disadvantages (low income, low educational attainment, exposures to violence, racism, discrimination, etc.)  So persons experiencing deleterious social and economic conditions often face the enormous obstacles posed by compound disadvantage.

What interests me about the role of individualism in thinking about the sterilization program is the way in which the problem to be solved -- reproduction that creates all sorts of problems and burdens for the mother, larger family, children, etc. -- is read according the script of that individualism.  In other words, the very real problems posed by the deleterious social and economic conditions in which many of the victims of the program lived and worked are reformulated as problems of the individual body, of the woman for whom sterilization was sought.  If the social problems for which reproduction is a proxy are in fact recast as pathologies of the individual body, then the obvious remedy is to eliminate the pathology, in this case, surgically.

But note that under this interpretation, the intervention alleviates the pathology on both the individual and the collective level -- through sterilization, the pathology inscribed within the individual woman’s body is eliminated, but so too is the pathology inscribed on the body politic.

 Lest this seem far-fetched, we have very good evidence in the history of eugenics that this kind of thinking was critical, that what Robert Jay Lifton terms a ‘biocracy’ had an enormous amount to do with the breadth and social power of scientific racism and eugenicist interventions.  Individual ‘degeneracy’ -- a key term of art in eugenicist thought -- was a stain on the society itself, analogized to a lesion which should properly be excised or alleviated in some manner provided through the instrumentarium of biomedicine and science.

 But the individualism of American culture is of course contingent.  What if a different social imaginary dominated the way we think about health, disease, and disadvantage? What if the problems posed by adverse socioeconomic conditions, single parentage, and multiple dependents were seen as failures in the social safety net, as social problems that were both fundamentally caused by breaches in social and collective policies (whose effects accumulate over generations) and sustained, as Engels might surmise, by continued failures to provide material assistance and break what Madison Powers and Ruth Faden term ‘densely-woven patterns of disadvantage’?  If that were the case, and the problem was seen as a social problem than as one of individual bodies and their pathologies, then the solution would hardly seem to be sterilization of any kind, but amelioration of the social and economic conditions that caused and sustained the destitution and suffering the proponents of the program sought to ameliorate.

 

Gauging Attitudes from Law Reviews: The Case of Sterilization

I'm now getting a chance to get back to working on the growing movement for compensation for victims of North Carolina's state-ordered sterilization.  (I've previously written a couple of posts on designing a compensation plan and a couple of other posts discussing North Carolina's practices.)  I've been thinking a lot about the varying levels of coercion that were involved here.  Some of the cases were among the most egregious state-sponsored intrusions on personal autonomy anywhere in the United States in the twentieth century; in other cases (perhaps not many, but at least some) those who were sterilized actively sought out the sterilization.

One thing that is important to making a case here is that there were a lot of people at the time -- like as far back in the 1930s -- who argued that involuntary sterilizations were improper.  That is, people at the time realized that this was wrong.  This is not a case of us reading back our early twenty-first century sense of what's right onto decisions made by legislators in the 1930s when North Carolina passed a sterilization act that passed constitutional muster.  (Recall that the first North Carolina sterilization act was struck down in 1933 by the North Carolina Supreme Court because it had a shocking lack of due process.)

So that leads me to two issues.  First, who were those who argued against sterilization?  Well, some of them were professors and law students writing in law reviews.  If there were debate today, one might look to blogs to gauge the ideas of law students and faculty -- maybe.  (There's some work that needs to be done on legal academic blogging -- we had a lot of that about half a dozen years ago; it may be time to revisit that.)  But back in the 1930s?  Looking at law reviews is a good way to get a rough gauge of the legal profession's attitudes towards sterilization.  For instance, J. H. Landman's 1932 book Human Sterilization was reviewed in a number of journals.  Landman was somewhat skeptical of sterilization, but often the reviews went beyond him and were quite critical of sterilization.  To take a few examples, George Roche's review in the California Law Review (22 Cal. L. Rev. 129 (1933) was quite critical of Landman for failing to engage more fully the deep moral qualms about sterilization.  For instance, Roche wrote that we get the impression that, while consciously rejecting the more extreme and doctrinaire point of view, the author does not always recognize the Devil in disguise."  Reviews in the University of Pennsylvania Law Review (81 U. Pa. L. Rev. 653 (1932-1933)) and the Boston University Law Review (12 B.U. L. Rev 749 (1932)) said -- in essence -- let's slow this down.  And a few years before, the Yale Law Journal had a somewhat more mild approach -- still a "could we please look at the evidence first"  approach -- in a review of a 1930 book, E.S. Gosney's and Paul Popenoe's Sterilization for Human Betterment (39 Yale L.J. 592 (1929-1930)).  The Harvard Law Review's even shorter review of Sterilization for Human Betterment concluded with an observation that the imminence of eugenic legislation was disturbing  (43 Harv. L. Rev. 162 (1929-1930)).  Not wild criticisms by any means, but certainly concern about what was coming.

Then again, the review in the Southern California Law Review,  (6 S. Cal. L. Rev. 349), in 1933 began with an epigraph from Nietzsche!

I teach you the Superman! Man is something that shall be surpassed. What have ye done to surpass him? All beings that have come into the world heretofore have created some- thing beyond themselves. Are ye going to be the ebb of the tide? Are ye going back to the animal Or ahead to the superman?

Behold, I teach you the superman!

Also sprach Zarathustra, I. Nietzsche.

With such a beginning, one might have expected support for eugenics; in fact, the review criticized Landsman for not considering a stronger argument for sterilization:

Dr. Landman proposes that segregation rather than sterilization might more properly solve the problem of what is to be done with the socially inadequate people.  But he does not at all discuss what must be a foremost question in any consideration which presumes that our present arbitrary standards are the ones upon which to build the normal man, and which on the basis of that standard designates certain individuals as mental deficients.  I refer to the question of outright extermination of the "unfit."  One of the leading reasons assigned for the necessity of human sterilization of the incompetent is state economy.  It is urged that caring for these cacogenic persons--whether in hospitals, insane asylums, prisons or institutions for the feeble-minded--costs the State vast sums of money.  Besides there is the damage done by defective abroad in society.  If individuals are so imperfect that society feels it necessary to prevent them from perpetuating themselves in the race lest they burden future generations with the care of their offspring, why not just exterminate them now and rid the State once and for all of the burden?  Surely a survey which purports to outline the field of inquiry into the problem of human sterilization and its ramifications is incomplete unless it considers this possibility.

I take it the author of the review, Ernestine Tinsley, understood the absurdity of this proposal and that she was using it to undermine the idea of eugenics.

Roundup of North Carolina Sterilization Victims Compensation

Here is a video of Charmaine Fuller-Cooper speaking to the UNC Center for Civil Rights about the movement for compensation for North Carolina sterilization victims.  I'm excited to have the sense that things are moving forward.  This is a topic I've been talking about here for some time now.  I continue to think there are some important issues in designing a compensation plan (and here).  Also, here's Debra Goldschmidt's CNN story on compensation and also a link to a discussion I had at the legal talk network with James Bowden and Craig Williams about compensation.

Designing Compensation for Sterilization Victims, Part II

Following up on a post from a few days back on how we could approach the problem of designing a compensation plan for victims of North Carolina's sterilization program, I want to try out an idea.  What's on the table now is $50,000 for every now-living survivor -- that's what the Governor's Task Force is recommending.  There are some obvious advantages to these kinds of payments.  No amount of money will return victims to the position they were in, so we have to settle on some rather arbitrary figure in every case and rather than trying to gauge varying levels of suffering, it makes everyone's life easier to give the same amount.  This may work particularly well where everyone has suffered in pretty much the same way.  That flat approach was used in the compensation of Japanese Americans interned during World War II who survived until 1986.  

There are, however, other compensation schemes.  The 9.11 Victims Compensation Act (also known  -- revealingly -- as the Air Transportation Safety and System Stabilization Act) is one that provided differential amounts -- vastly differential, actually -- based on the lost income of 9.11 victims.  That bothers me in a lot of ways, in that it compensated families differently based on how much their loved ones made.  (Even with that differential, I understand that some of the families of high-earning victims thought that they were under-compensated.)  Without wading too much into a topic that's a distant analogy to this issue, it seems like if you're going to have a compensation program like this and not going to give everyone the same, perhaps some of the differential should be based on how much the survivors were dependent on the deceased.

I have already raised the possibility, however, that there may be some significant differences between the sterilization cases in North Carolina.   That is, that the levels of intrusion on personal autonomy varied -- perhaps dramatically -- in some of these cases.  There are well-documented instances of shameful interference with personal autonomy.  But what I'm less clear on are the "voluntary" cases, where at least some people seem to have sought out state-supported sterilization.  And so that leads to a question, which a friend asked recently, would some kind of program more akin to 9-11 be appropriate here?  Because we do not have a good estimate of the number of still-living victims (and thus are not quite sure what the cost of the program will be) and there are some important (though potentially not resolvable) questions about the level of coercion involved, perhaps we should think about setting aside an appropriate amount of compensation and then have a special master try to make more focused determinations based on whatever records are available.  I'm wondering if something like that might well address the differences between the cases?

The illustration is from the North Carolina Historical Highway Marker Program, on McDowell Street between Jones and Edenton Streets in Raleigh.  What particularly interests me about this marker is they got the story right in a very few number of words -- the program was state-sponsored and some were sterilized involuntarily -- through varying levels of coercion -- and others by "consent."  Though "consent" may often have involved a lot of coercion.  Next time I'm over in Raleigh I'll have to get a picture of that.  And also a picture of the NC Department of Justice, which -- irony of ironies -- now occupies the Old Education Building.  That is the building where the Eugenics Board met.

Designing Compensation for Sterilization Victims

In 1943 the North Carolina Law Review published an article by Harvard Law Professor Thomas Reed Powell on "Compulsory Vaccination and Sterilization: Constitutional Aspects. "  Powell was trying to provide guidance on just what the Constitution  permitted in terms of public health measures, from vaccination through sterilization.  The article reads very much like the opinion of a realist; there are several references to how ambiguous the law is and how difficult it is to predict what will happen in subsequent cases.  "If all this seems sadly vague and amorphous to those who extract certainties out of test tues, it can only be answered that of such is the kingdom of jurisprudence," Powell wrote towards the end.  He thought that the twin Supreme Court precedents of Buck v. Bell (1927) and Skinner v. Oklahoma (1942) offered little "light on what they or their successors would do with milder measures, except to make clear that they would be zealous in insisting upon strong scientific support for the necessity and the efficacy of prophylactic prescriptions and upon adequate procedural safeguards in picking the persons subjected to them."  Later Powell observed that Skinner v. Oklahoma -- which struck down Oklahoma's law that permitted sterilization of those convicted of three felonies -- would not be a "stumbling block in the way of any sane public health program however much it may intrude on privacy and preclude self-determination."

Powell's article was published while North Carolina was in the midst of a decades-long program of sterilization.  Several years after that Duke Law Professor James Bradway -- a famous figure in the development of legal aid and also clinical education -- published a brief article that summarized North Carolina's law regarding involuntary and voluntary sterilization.  He included  the good news for physicians that there were immune from civil liability for participation in what Bradway termed involuntary sterilizations (those ordered by the Eugenics Board), "except in the case of negligence in the performance of said operation."

Now North Carolina is debating what, if anything, it ought to do about that.  In 2003 then Governor Mike Easley issued an apology to victims.  At the end of last month the "Governor’s Task Force to Determine the Method of Compensation for Victims of North Carolina’s Eugenics" recommended that each now-living person who was sterilized receive $50,000.  The kin of those who have already passed away will receive nothing under this plan.  And while one might think that the victims would have no children, a fair number of people who were sterilized had already had children.

I've been following this with increasing interest over the last six months or so and am now mightily interested in it.  (Here's Debra Goldschmidt's CNN story on this and also a link to a discussion I had earlier in the week at the legal talk network with James Bowden and Craig Williams on this).  There are several issues that especially interest me in all of this.  First, just how did the government's program function?  Who was selected for sterilization; how did the administrative agency -- the state Eugenics Board -- operate; what are the demographic data on the gender, age, race, and family status of those sterilized?   (North Carolina's first sterilization act, passed in 1929, was struck down by the North Carolina Supreme Court in Brewer v. Valk in 1933 because it didn't afford enough due process.)  Judging from the Eugenics Board Meeting minutes that are on the North Carolina Sterilization Victims Compensation Fund website the hearings were perfunctory and often no family members challenged the petition for sterilization.  And rather hauntingly -- though understandably -- there were well-established administrative procedures for this, including a type-script manual produced in 1948, and pre-printed sterilization petitions for state officials to fill out.