During the early
twentieth century, the United States was enduring significant social
and economic changes due to its transformation into a commercial and
industrial world power. As the need for labor escalated within many
urban areas, millions of Europeans emigrated from Southern and Eastern
Europe with the hopes of capitalizing upon these employment opportunities
and attaining a better life. Simultaneously, many African-Americans
migrated from the rural South into major cities, bearing the same intentions
as those of the European immigrants. The presence of these minority
groups generated both racial and class fears within white middle and
upper class Americans. The fervent ethnocentrism resulting from these
fears, coupled with the Social Darwinist concepts of Herbert Spencer,
would ultimately spur the American eugenics movement. Originating from
the theories of Sir Francis Galton, the cousin of Charles Darwin, eugenics
is the study of human heredity and genetic principles for the purposes
of improving the human race by limiting the proliferation of defective
gene pools. Charles Davenport, the founding father of the American eugenics
movement, was one of many elite Americans advocating for the incorporation
of the ideals of this new "science" into society. The work
of Davenport, which became known as eugenic principles, would not only
have an impact on public education, but a legal impact as well. By 1931,
thirty state legislatures had passed involuntary sterilization laws
that targeted "defective strains" within the general population,
such as the blind, the deaf, the poor, and the feebleminded. Virginia,
one of these states, held the position that involuntary sterilization
would not only benefit the overall welfare of society, but would promote
both the health and happiness of the sterilized individual as well.
In contrast to the "negative" eugenics position of the state
of Virginia, involuntary sterilization laws emphasizing breeding restrictions
for society's "unfit" neither benefit the welfare of the individual
nor that of society for several moral and legal reasons. The legal validity
of these involuntary sterilization laws would be challenged within the
Supreme Court case of Buck v. Bell. In September of 1924, at the age
of eighteen, Carrie Buck, an illegitimate daughter of an allegedly feebleminded
woman, was admitted to the Virginia's State Colony for Epileptics and
the Feebleminded. Six months earlier, the Virginia State Legislature
decisively passed their involuntary sterilization bill authorizing the
Superintendents of five state institutions to petition for the permission
to sterilize inmates. Buck, who had a mental age of nine and an I.Q.
of about fifty, had already given birth to an illegitimate child herself,
who was allegedly feebleminded as well. At the time, the Superintendent
of the State Colony, Dr. A. S. Priddy, petitioned for permission to
sterilize this woman for fear that Buck would have more mentally defective
children. The statute had provided that each Superintendent needed to
receive permission from a special Board of Directors of that institution,
who would hear the grounds for sterilization and determine whether or
not to follow through on the operation. Priddy faced immense pressure
from state officials to petition for sterilization, as they were cognizant
that the law would be challenged eventually. Therefore, they were eager
to make this the test case, during the height of the eugenics movement,
in order to see if the law would hold up in court.
ollowing the approval
of the State Colony's Board of Directors on the sterilization petition
offered by Priddy, Buck immediately appealed the decision to the local
Circuit Court of Amhearst County. Judge Bennet Gordon, presiding over
the Circuit Court, upheld the constitutionality of the Virginia statute
and decreed that the sterilization must take place within ninety days.
Analogous to the decision of the local circuit court, the Virginia Supreme
Court of Appeals, under the ruling of Judge Jesse West, unanimously
upheld the legality of the involuntary sterilization statute, which
thwarted Buck's second effort to prevent the operation from occurring.
Due to the first two court decisions, Buck then appealed her case to
the United States Supreme Court in February of 1926. While the Court
had elected not to hear any previous sterilization cases in the past,
they chose to accept the appeal of Buck and subsequently heard the case
of Buck v. Bell (Bell was the current Superintendent of the Colony in
April of 1927). Within this case, the Court faced the question of whether
or not the Virginia statute authorizing involuntary sterilization had
denied Buck the right to due process of law and the equal protection
of the laws under the Fourteenth Amendment.
I. P. Whitehead, representing the interests of Buck, based his argument
to the Supreme Court on the violation of her Fourteenth Amendment rights.
Whitehead offered a multi-dimensional argument by displaying reasons
why the involuntary statute failed to benefit either society or the
individual. Whitehead argued that a forced salpingectomy, a surgical
procedure involving the cutting of the Fallopian tubes, was a direct
violation of the constitutional right of bodily integrity. He cited
the case Munn v. Illinois as a precedent, which defined what was meant
by "deprivation of life". According to the precedent, deprivation
of life did not only apply to life itself literally, but also more broadly
to all of those limbs and faculties by which life is meant to be enjoyed.
As Whitehead claimed, "The inherent right of mankind to go through
life without mutilation of organs of generation needs no constitutional
declaration." Therefore, Whitehead contended that a forced salpingectomy
would fall into the category of unjustifiably depriving Buck of a full
and rich life. Whitehead then disputed the arbitrariness of the sterilization
process as a breach of equal protection, since various "natural"
classes within society will be governed by different sets of rules.
Moreover, within his argument, Whitehead asserted that should the Court
allow the Virginia statute to stand as valid, there would be no limit
to the powers of the State to divest itself of individuals who did not
meet its standards. As Whitehead declared, "In the place of the
constitutional government of the fathers we shall have set up Plato's
Republic."
Whitehead certainly
provided an adequate and effective argument for why the Court should
rule in favor of the interests of Carrie Buck. Unquestionably, Whitehead's
arguments highlighting "deprivation of life" and "Plato's
Republic", reflected both the societal and individual problems
inherent in maintaining the statute. The efforts of Whitehead were indeed
at a disadvantage, since the case was heard at the height of the eugenics
movement. Although judges are required to remain impartial and unbiased,
the implementation of the eugenic doctrines was primarily advocated
for by upper-class, white males. This description undeniably fit all
nine of the Justices on the bench of the Supreme Court. While it is
certainly doubtful that any of the laudable Supreme Court Justices were
ardent eugenicists, it would not be inconceivable to assume that they
could have been somewhat influenced by the ideology of the "new
science". Even though Whitehead's overall argument was not without
flaw, it was still very effective in targeting the detrimental aspects
of the involuntary sterilization statute for both individuals and the
society at large.
Contrastingly, Aubrey Strode, the counsel representing the State Colony,
opened his legal defense by introducing the issue of cruel and unusual
punishment. Since the plaintiff never officially made a formal charge
stating that her Eighth Amendment right had been violated, it is puzzling
that the defense would even bring the matter into consideration. However,
citing the case of Hart v. Commonwealth as precedent, Strode maintained
that a sterilization operation did not violate a constitutional provision
forbidding the administration of cruel and unusual punishment, as there
would be no serious pain inflicted or a substantial danger to life as
a consequence of this medical procedure. Following his claim that the
Eighth Amendment was in no way violated within this case, Strode argued
that the implementation of an involuntary sterilization statute, which
was analogous to a compulsory vaccination statute, was a legitimate
exertion of the State's police powers. As Strode stated, "The precise
question therefore is whether the State, in its judgement of what is
best for the appellant and for society, may through the medium of the
operation provided for by the sterilization statute restore her to the
liberty, freedom, and happiness..." In essence, the core of Strode's
argument was that involuntary sterilization creates a symbiotic relationship
between the individual and society such that the individual will benefit
from sterilization through the "restoration" of his/her respective
liberty, while society will benefit because they will no longer have
to deal with supporting future generations of deficient children.
In stark contrast to that of Whitehead, Strode did not offer a legitimate
argument for the purposes of defending the interests of the Virginia
statute, on the grounds that he had misconstrued the meaning of human
rights. Strode argued that a feebleminded individual will benefit from
having his/her lost liberty "restored" following a sterilization
procedure. In other words, a feebleminded individual who had not as
yet been sterilized, did not have any liberty as a sexual being because
of the fear of producing children who would be mentally deficient. However
once sterilized, the individual and society could be free of the fear
of producing defective children and hence liberty would be "restored".
This presumption stands in direct conflict with the inherent ideals
of natural law and the equal rights of all individuals, which serve
as the foundation of our nation. Strode further discredited his own
argument by posing the question, "Who then is to consent or decide
for this appellant whether it be best for her to have this operation?."
Here, within his own opinion defending eugenics, Strode still questioned
where the authority lied when deciding whether or not a person should
be sterilized. Perhaps he resorted to stating this question instead
of providing an answer for it because by addressing the limitless power
of the state, he could only weaken his position in defense of the Virginia
State Colony.
After hearing the arguments of both Whitehead and Strode, the Supreme
Court reached their decision on May 2, 1927. The Court had ruled in
favor of the State Colony by a margin of eight to one. The author of
the majority opinion, Justice Oliver Wendell Holmes, Jr., stressed that
Buck's challenge could not be against the sterilization procedure itself,
because the process afforded Buck several appeal opportunities prior
to the actual operation. Therefore, Holmes asserted, the essence of
Buck's challenge lay against the constitutional validity of the law.
Holmes held that the Virginia statute did not violate any provisions
of the Constitution, by maintaining the notion that sterilization laws
were beneficial to both the individual and the society at large. Holmes
claimed, "It is better for all the world, if instead of waiting
to execute degenerate offspring for crime, or let them starve for their
imbecility, society can prevent those who are manifestly unfit from
continuing their kind." Here, Holmes held the presumption that
the offspring of feebleminded individuals would ultimately resort to
a life of crime, or suffer from being unable to care for themselves;
therefore, through the implementation of sterilization laws, society
could protect those deficient individuals from having to endure these
hardships. In order to strengthen his opinion on how sterilization laws
ultimately benefit society, Holmes applied the precedent of Jacobson
v. Massachusetts (1905).
Within
Jacobson, a case in which Holmes himself supported the majority ruling
of Justice Harlan, a Massachusetts law authorized cities to require
residents to be vaccinated against smallpox. However, Jacobson, a resident
of the city of Cambridge, refused to comply with the requirement on
the grounds that a mandatory vaccination law was in violation of his
Fourteenth Amendment right. Analogous to the court's decision within
Jacobson, which upheld the validity of mandatory vaccination laws in
the interest of societal welfare, Holmes maintained that within Buck,
that the involuntary sterilization laws were a legitimate exercise of
the state's police power with the sole intention of protecting public
health and the safety of its citizens.
Comparable to the argument of Strode, the opinion of Holmes contending
that involuntary sterilization laws were both beneficial to the individual
and society can be conclusively undermined. Within cases when an individual's
fundamental rights are at stake, a higher level of judicial scrutiny
must be employed. Holmes had exercised this level of judicial scrutiny
through his renowned dissents within the First Amendment protection
cases including Abrams v. United States and Gitlow v. New York. Holmes,
regarded as "The Great Dissenter", consistently argued that
an anarchist who had been urging general strikes against the government
was still protected by rights guaranteed through the First Amendment
of the Constitution. Paradoxically, Holmes acknowledged rights existing
within both the Abrams and Gitlow cases, but failed to consider the
inherent rights at stake within Buck. While the objective of a utilitarian,
such as Holmes, is to strive to achieve the greatest available good,
one must recognize the staunch distinction between a "rule"
utilitarian from an "act" utilitarian. An "act"
utilitarian would support any action that would benefit the greatest
good, even if it meant infringing upon human rights. Conversely, a "rule"
utilitarian would look to follow what is right morally, such as preserving
human rights, which subsequently would maximize utility and create the
greatest good. The fact that Holmes conceded that individual rights
must be considered, within Abrams and Gitlow, is evidence that his thinking
is consistent with a "rule" utilitarian. However, a "rule"
utilitarian would never advocate an opinion supporting a eugenic philosophy
at the expense of violating human rights. As Whitehead had stated, Carrie
Buck had a right to bodily integrity which was derived from doctrines
of natural law and unjustifiably violated by the state of Virginia.
Under no circumstance would she, as an individual, have been better
off having that inherent right stripped away from her.
Besides the opinion of Holmes infringing upon the natural rights of
Carrie Buck, he was also wrong to contend that society would benefit
from involuntary sterilization laws. Within his opinion, Holmes made
the parallel between mandatory vaccination laws and involuntary sterilization
laws, holding that both would benefit and protect society. However,
there is actually a prominent difference between these two types of
laws. Mandatory vaccination laws are very socially useful as a public
health measures to prevent the spreading of fatal diseases throughout
the population. Unquestionably, once someone is properly vaccinated
for a disease, there is absolutely no chance of that individual contracting
that respective disease. In fact, Holmes used the analogy within his
opinion that involuntary sterilization laws could be viewed as a form
of vaccination itself. "The principle that sustains compulsory
vaccination is broad enough to cover cutting the Fallopian tubes."
These laws, when applied, will serve to "vaccinate" the population
as a whole against future offspring who are unfit and thereby create
a healthier society. However, unlike a legitimate vaccine, the involuntary
sterilization laws are not foolproof. It is untrue that sterilization
of the mentally deficient would guarantee the elimination of all future
generations of feebleminded individuals. Many retarded children may
be born from two completely healthy and normal parents. Similarly, physically
and mentally normal children may be born from two feebleminded parents.
Due to this fact, which was not even mentioned within the opinion of
Holmes, the assumption that society can be forever cleansed of the mentally
retarded through sterilization is erroneous. Moreover, cleansing society
of defective gene pools beginning with feeblemindedness is dangerous,
and determining where to draw the line on what constitutes defect delivers
society into the hands of a fascist like Adolf Hitler.
This very issue
of determining what or who is defective is a flaw in Holmes' decision.
Holmes' decision can be criticized because he "allegedly"
held Buck's daughter to be feebleminded. One should note that Buck's
daughter had been officially labeled feebleminded after only one month
following conception, solely because her mother had been mentally deficient.
However, according to Ruth Macklin of the Albert Einstein College of
Medicine, "It was discovered that the child had died of smallpox
in the second grade but at that time she was a brighter-than-average
student who was doing perfectly well." The fact that Buck's daughter
was a mentally competent second grader only reinforces the fact that
a retarded parent was capable of having a completely healthy and normal
child. This evidence clearly contradicts Holmes' historic statement
that "three generations of imbeciles are enough", as Buck's
daughter was clearly not a third generation imbecile. Due to the fascist
nature of eugenics where the power of the state is limitless, as mentioned
by Whitehead, one cannot overlook the chance that Buck's daughter might
still have been sterilized had she lived beyond eight years, due to
her initial diagnosis.
Despite all of the flaws within the opinion of Holmes, Carrie Buck was
officially sterilized in 1928. The only dissenter within the case, Justice
Pierce Butler, offered no opinion. The fact that Butler offered no opinion
really damaged the credibility of any opposition against the majority
ruling. Butler's lack of rationale explaining why he chose to dissent
was detrimental to those standing against the eugenics movement, as
there was nothing legally stated concerning how dangerous eugenics laws
could be upon society. Coupled with Butler's inadequate dissent, the
decision of Holmes was responsible for invigorating the American eugenics
movement. Following Buck v. Bell, involuntary sterilization statutes
spread across the nation like wildfire. According to Edward Larson of
The Johns Hopkins University, "The annual average number of operations
performed under compulsory sterilization statutes in the United States
jumped tenfold, from 230 during 1907-27 to 2,273 during the 1930s."
The
Buck decision had a huge impact upon the fundamental right to privacy;
it questioned whether or not feebleminded women had the fundamental
right to reproduce. Issues in Buck concerning who should be allowed
to reproduce, along with the presence of eugenics movement advocating
forms of birth control, would pave the way for other "fundamental
right to privacy cases" in the future including the well-known
Griswold v. Connecticut and Roe v. Wade.
Buck v. Bell would eventually be overturned fifteen years later within
Skinner v. Oklahoma. Here, Oklahoma's Criminal Sterilization Act allowed
the state to sterilize a person who had been convicted three or more
times of respective felonies. Justice Douglas, author of the unanimous
majority opinion, held that the Oklahoma recidivist statute was in violation
of the Fourteenth Amendment and its Equal Protection Clause. Skinner
overturned Buck on the grounds that the latter violated the basic civil
right to procreate. Justice Douglas had viewed procreation as one of
the fundamental rights requiring the judiciary's strict scrutiny. It
is very interesting to note that the way in which eugenics had been
perceived at the times when important court cases involving sterilization
were brought, ultimately impacted on how the court ruled. The case of
Buck had been brought before the court at the height of the eugenics
movement in 1927, and to no one's surprise, the law was upheld. Conversely,
the case of Skinner was brought to the court at a very low point in
the American eugenics movement around the time of the atrocities committed
by Adolf Hitler and Nazi Germany during 1942, and not surprisingly the
law was repealed.
Despite the fact
that the decision of Holmes was eventually overturned, Carrie Buck along
with thousands of other feebleminded Americans were victims to an immorality
that was sanctioned by individual states and upheld by the Supreme Court.
In looking back at that time, clearly neither the individual nor society
benefitted from these involuntary sterilization laws. It is interesting
to note how such attitudes toward individuals with mental handicaps
have changed over time. Since the late 1950's in this country, the movement
toward civil rights and later the movement for womens' rights have contributed
greatly to the thinking and legislation governing the rights of the
handicapped including their reproductive rights.
Notes
1. Thomas Shapiro, Population Control Politics: Women, Sterilization,
and Reproductive Choice (Philadelphia: Temple University Press, 1985)
33-40.
2. Phillip Reilly,
The Surgical Solution: A History of Involuntary Sterilization in the
United States (Baltimore: The Johns Hopkins University Press, 1991)
84-87
3. Buck v. Bell,
274 U.S. 200, 201, No. 292 US Supreme Ct., 1927.
4. Buck v. Bell,
274 U.S. 200, 201, No. 292 US Supreme Ct., 1927.
5. Buck v. Bell,
274 U.S. 200, 203, No. 292 US Supreme Ct., 1927.
6. Buck v. Bell,
274 U.S. 200, 203, No. 292 US Supreme Ct., 1927.
7. Buck v. Bell,
274 U.S. 200, 203, No. 292 US Supreme Ct., 1927.
8. Buck v. Bell,
274 U.S. 200, 205, No. 292 US Supreme Ct., 1927.
9. Ruth Macklin,
Mental Retardation and Sterilization: A Problem of Competency and Paternalism
(New York: Plenum Press, 1981) 66.
10. Buck v. Bell,
274 U.S. 200, 205, No. 292 US Supreme Ct., 1927.
11. Ruth Macklin,
Mental Retardation and Sterilization: A Problem of Competency and Paternalism
(New York: Plenum Press, 1981) 67.
12. Edward Larson,
Sex, Race, and Science: Eugenics in the Deep South (Baltimore: The Johns
Hopkins University Press, 1995) 28.
13. Ellen Brantlinger,
Sterilization of People With Mental Disabilities: Issues, Perspectives,
and Cases (Westport CT: Auburn House, 1995) 22.
Works Cited
Buck v. Bell. 274
U.S. 200, 205. No. 292 US Supreme Ct. 1927.
Brantlinger, Ellen.
Sterilization of People With Mental Disabilities: Issues, Perspectives,
and Cases.
Westport CT: Auburn House, 1995.
Larson, Edward.
Sex, Race, and Science: Eugenics in the Deep South. Baltimore: The Johns
Hopkins University Press, 1995.
Macklin, Ruth.
Mental Retardation and Sterilization: A Problem of Competency and Paternalism.
New York: Plenum Press, 1981.
Reilly, Phillip.
The Surgical Solution: A History of Involuntary Sterilization in the
United States. Baltimore: The Johns Hopkins University Press, 1991.
Shapiro, Thomas.
Population Control Politics: Women, Sterilization, and Reproductive
Choice. Philadelphia: Temple University Press, 1985.
