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.

Comments

[Ediberto Roman]

Great essay Al! I hope to post some related info. on similar efforts in Puerto Rico during this period.

[anonymous]

I would also recommend looking into the Steinach operation, a partial and sometimes complete vasoligation undertaken with the assumption that it would produce mental and physical benefits to the patient. The operation was very popular among the wealthy in the 1920s and 1930s, notable recipients included Sigmund Freud and William Butler Yeats. It was marketed primarily to the public as an anti-aging panacea. There are also examples of doctors in asylums in Indiana I believe in the 1910s in which sterilization was purported to have a calming effect on inmates. This is not to say that the primary goals were the ones you described, but to note that there was an element of therapeutic value beyond simply not "burdening" the victims of sterilization with children.

[Jennifer Hendricks]

It isn't so shocking that Roe v. Wade and Buck v. Bell would be cited together. Roe itself cited Buck for the same proposition about the state's power to regulate. The citation appears at the end of this critical paragraph (which I have condensed):

"On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute .... With this we do not agree. ... The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. ... In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past."

The other citation for this argument is to Jacobson v. Massachusetts (1905), upholding mandatory smallpox vaccination. Jacobson, however, merely confirmed a criminal conviction for refusal to be vaccinated. I don't think it countenanced forcible vaccination.

[Alfred Brophy]

Jennifer,

Thanks for this. The part of Blackmun's opinion you quote acknowledges some limits on the autonomy of individuals; how much was in debate. The upshot of Roe is that individuals have broad autonomy over procreation decisions. Roe did not license broad state interference with personal autonomy; in fact, it limited state interference. That is, Roe did not provide support for the broad police power claimed in Moore. I wouldn't have thought Roe would be a useful case to cite, since it limited the state's power. Moore should discuss it, obviously, because it suggests a limitation. But cite it approvingly as though it was entirely consistent with the outcome? That's surprising -- or, as I said in the post, even astonishing.