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.

Closely related to those questions are very difficult questions to determine about the amount coercion (or, conversely consent -- if any) involved.  As the Task Force's final report acknowledges, there were varying levels of coercion involved in all of this.  For many people the sterilization was involuntary; for others there was coercion; and for some (Johanna Schoen's Choice & Coercion, Birth Control, Sterilization, and Abortion in Public Health and Welfare, the leading book on this subject, suggests that perhaps as many as 20% during the 1960s) the process was "voluntary."  Apparently many women, especially in the 1960s, sought state-supplied sterilization as a method of family planning.  How many of those "voluntary" requests (what Schoen called elective sterilization) were coerced in some way, or suggested to those requesting them by government officials, or family members, is unclear.  We may never know that information.  Undoubtedly, some of this state action resulted in some of the most outrageous interferences in personal autonomy practiced in the US in the twentieth century.

Third, there are some really important questions about what the compensation program ought to look like.  What program would in some measure be fair to people whose personal autonomy was so deeply affected, so long ago?  It's obvious that no amount of money can compensate for some harms.  One response in some cases has been to provide a flat sum.   Often times in thinking about these kinds of programs we need to balance limited state money against the desire to do something meaningful in terms of repair and also to try to assist people who have been harmed in a very direct and continuing way.  So often we think about providing money only in those cases were there remains a direct, living connection -- only to those immediate victims who are still alive.   Moreover, we often think that it is perhaps best to come up with a single figure and give that to every living victim, rather than trying to calibrate harm between victims.  The most prominent case of this is the Civil Liberties Act of 1988, which provided $20,000 to every Japanese-American person interned during World War II who survived until 1986.  That had some obvious and unfortunate lumpiness, in that many people who had suffered internment -- and whose descendants had suffered from property loss -- received nothing.  There are other cases of this kind of reparative action; one of my favorite examples is from the Salem witchcraft trials.  Several decades after them, as cooler heads prevailed in Massachusetts, family members of those executed received modest payments.

Even before we get to the question of money, though I think there are some very important -- indeed, critical -- questions that need to be answered.  I was talking with a friend about this the other day and she asked -- quite appropriately -- how many people are we talking about.  And I had to say, we just don't know.  And because she's a very shrewd lawyer she quite correctly pointed out that perhaps that's something we need to get some data on.  I have found that legislators like to know what the bill will be.  The guesstimates of the number of people still alive vary wildly.  But even beyond numbers of people still alive we owe it to ourselves and the victims to have a better sense of how this happened and what happened.  And I should think that there should be some attention to the question of how much coercion was involved.  It is at least worth some consideration whether those people whose reproductive freedom was most forcefully infringed deserve more than others. After asking the question, we may decided that everyone deserves the same and that is certainly a very reasonable conclusion.  Or we may think that not all of these state-implemented and in many cases state-imposed decisions are equal.

The politics of this are most interesting; I was pleasantly surprised to learn that the John Locke Foundation and I are on the same page on this.  I agree with a lot of their report, perhaps especially their list of ways that this differs from other claims for reparations, like reparations for slavery.  I found this statement from their report amusing -- and probably true -- "There is probably no greater concern among compensation opponents than the argument that such a move could be used to provide justification for providing reparations for slavery. It does not help the cause for compensating eugenics victims that the term 'reparations' is often used in connection with compensation."

As I have said in the context of compensation for the Tulsa riot of 1921 -- an issue for which victims still await some reparative action and will likely wait forever -- there are some limiting factors here that distinguish this from other claims and make this particularly compelling.  First, the government was the bad actor here; this is not a claim for general societal discrimination.  Second, the harm is extraordinary and of a greater magnitude that many other intrusions on personal autonomy and liberty; third, many people at the time knew it was wrong and spoke against it; fourth, there remain direct living connections between harm and repair.  Thus, there is some opportunity to make good on injustices imposed lo those many years ago.

This post follows up on a post from earlier in the week here.

Comments

[Daniel S. Goldberg]

Wonderful post, Al.

I wonder if it might be important to separate the ethical from the practical political issues regarding compensation, which is not to say the latter is unimportant. That is, whether we think a moral obligation exists to compensate victims of the sterilizations conducted under the auspices of the state eugenics program seems to me to be entirely distinct from the pressing practical problem of determining the denominator to whom payments are owed.

I'm an ethicist, so I am biased, but I think the primary question is the determination of whether compensation is owed to a person sterilized (and here issues of "voluntary" and "involuntary" are obviously relevant, although having looked at some of the records, and generally being a scholar whose work focuses on the ways in which larger social, economic, and political factors structure 'choice,' I am dubious as to the true voluntariness of many of these procedures).

Once we have decided this issue, then the very real and very important problem of identifying to whom compensation is owed and how many there may be is relevant. But it would be a terrible mistake, IMO, to permit problems of the latter to vitiate the ethical assessment of the former. Practical problems in locating and ascertaining how many people may have been sterilized do not provide any ethical justification for deciding there is no obligation to compensate at all. This would be a rank instance of the naturalistic fallacy.

[Alfred Brophy]

Thanks for the kind and thoughtful words, Daniel. Agreed completely that the lack of records or ambiguities in issues of consent should not bar recovery. I also agree, as I suggested in paragraph 5, that "consent" is a difficult issue to even begin to unpack and that a lot of what may appear in the records, such as they are, to be "consent" may not be. Though I believe we need to be clear about what the records permit us to know and that we ought to fully examine them. Part of this process is understanding what happened and why and we should do that now. It may help the case for compensation in many ways; in other ways it may clarify what the appropriate response should be.

I'm glad that people are talking and very much looking forward to the discussion of this, which I guess will take place in the legislature's May session. Hope to hear much more for you, Daniel, in particular.