In 2011, a group of legal scholars gathered at Pepperdine School of Law for a symposium (“Supreme Mistakes”) on the “most maligned” cases in the history of the U.S. Supreme Court. The group designated Buck v. Bell, 274 U.S. 200 (1927) as one of the five worst [the others being: Scott v. Sandford; Korematsu v. United States; Plessy v. Ferguson; and Erie v. Tompkins]. Buck v. Bell, decided on this day in history, upheld a Virginia law authorizing compulsory sterilization of “feeble minded” persons “for the protection and health of the state.” Ironically, the opinion was written by Justice Oliver Wendell Holmes, Jr., usually considered to be a champion of civil liberties.
Albert Priddy, a eugenics advocate, was Superintendent of the State Colony for Epileptics and Feeble-Minded at Lynchburg, Virginia during the 1910s. [Eugenics is a form of selective breeding by which society, not nature, determines who is fit to reproduce.] With encouragement of the colony’s board of directors, Priddy sterilized some seventy-five to one hundred young women without their consent. However, the Virginia legislature had not clearly endorsed sterilization, and after a malpractice lawsuit, Priddy had to discontinue the operations in 1918. But Priddy was not ready to give up the practice: he and his like-minded associates lobbied the legislature for a clear sterilization law, which was enacted in 1924. (The new legislation was drafted by the Colony Institution’s lawyer.) The statute provided for the sterilization of “mental defectives” and “feeble-minded” persons who were confined to certain state institutions, when, in the judgment of the superintendents of those institutions, “the best interests of the patients and of society” would be served by their being made incapable of producing offspring.
In 1924, a Virginia state court adjudged 18-year-old Carrie Buck to be “feeble-minded” within the meaning of the Virginia law and committed her to the Virginia State Colony for Epileptics and Feeble-Minded. Nine months later, Priddy filed a petition to his Board of Directors to sterilize her, stating that although she was 18 years old, her mental age was 9. Priddy maintained that Buck represented a genetic threat to society. As Holmes reported, “Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child.” Holmes also contended that Carrie was sexually promiscuous, and indeed, she had a child at age seventeen, but it was the result of a rape. The institution’s board approved Priddy’s petition after giving Buck notice and the opportunity to be heard at a hearing in which evidence was presented supporting the requested order.
Buck challenged the statute in the local county Circuit Court. Her suit was filed against Dr. J.H. Bell, who had taken over from Priddy as superintendent.
Buck raised two principle arguments.
First, she argued that the sterilization law violated her substantive due process rights guaranteed by the Fifth and Fourteenth Amendments. Her suit did not challenge the procedures by which Buck was ordered sterilized. Instead, she contended that the due process clause guarantees all adults the substantive constitutional right to procreate and that the Virginia law infringed that right.
Second, she argued that the Virginia law violated the equal protection clause of the Fourteenth Amendment, which guarantees that the law treat similarly situated people alike. The sterilization law failed to provide equal protection because it singled out “feeble-minded” patients at only certain state institutions identified in the statute, but did not apply to “feeble-minded” persons at other state institutions or to “feebleminded” persons who were not committed or confined.
The county court upheld the law and affirmed the sterilization order. Buck appealed to the Virginia Supreme Court of Appeals, which also affirmed.
The Virginia high court said that neither the Equal Protection Clause nor the Due Process Clause were designed to interfere with the state’s police power to prescribe regulations that promote the health, peace, morals, education, and good order of the people.
When the case reached the U.S. Supreme Court, Chief Justice William Howard Taft assigned the job of writing the opinion to Associate Justice Oliver Wendell Holmes Jr., then 86-years old. Holmes began his opinion by detailing the procedural safeguards that supposedly were afforded Buck. Holmes observed that Buck had received notice of the superintendent’s petition for sterilization, had been given the opportunity to appear at a hearing where the propriety of her sterilization was determined based on the evidence presented, and had the right to appeal all the way to the highest court in the United States. [One wonders how many of the “feeble-minded” were able to exercise such rights.] Holmes concluded, “so far as procedure is concerned, the rights of the patient [we]re most carefully considered” and that as the order was entered “in scrupulous compliance with the statute and after months of observation, there is no doubt that, in that respect, the plaintiff in error has had due process of law.” As we will see later, the procedures actually followed would not pass muster today, and probably would not have satisfied the Court then if it had been aware of their deficiencies.
Holmes next addressed Buck’s substantive due process claim that she had a constitutional liberty to procreate. “Carrie Buck is a feebleminded white woman …. She is the daughter of a feeble-minded mother … and the mother of an illegitimate feeble-minded child,” Holmes wrote. Then Holmes compared Buck’s sacrifice of procreative freedom to the sacrifice other U.S. citizens make when called into military duty:
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.”
Holmes noted that once sterilized, Buck could be released from the institution to become a productive member of society. He then opined:
It is better for the entire 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”
He concluded his argument with the now infamous rhetorical flourish, “Three generations of imbeciles are enough.”
Holmes neatly dodged the equal protection argument by stating “so far as the [institution’s] operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.” In other words, if we sterilize these people fast enough, then turn them loose, there will be enough room in the institutions to round up the rest of them.
Justice Pierce Butler dissented, but did not file an opinion.
On October 19, 1927, Dr. Bell sterilized Carrie Buck. Buck was paroled following the procedure, but remained under the control of the Colony and was forced to make annual medical visits to Dr. Bell. Her marriage to William Eagle after she left the colony lasted for twenty-five years, until his death.
Although compulsory sterilization is now seen as an abuse of human rights and eugenics is a discredited science, Buck v. Bell was never overturned, and Virginia did not repeal its sterilization law until 1974.
On May 2, 2002, the seventy-fifth anniversary of the Buck decision, Virginia governor Mark Warner apologized for Virginia’s eugenics program, calling the movement “a shameful effort in which state government never should have been involved.” A state historical highway marker was dedicated to Buck v. Bell in Charlottesville on that day.
Modern historians and legal scholars have criticized Holmes’s opinion for being unenlightened and unduly harsh, pointing to portions of the opinion where Holmes assumed that disabled persons were not among the “best citizens,” that the “degenerate offspring” of “feeble-minded” persons would either become criminals or starve, and that unless such persons were sterilized society would become swamped by incompetence.
In Holmes’s defense (if there is one), it could be said that the Virginia sterilization law was written by a democratically elected state legislature, and its judgment was presumably entitled to some deference. Moreover, compulsory sterilization was part of the very popular and widely-accepted Eugenics Movement, a paternalistic reform movement based on the premises that the “lower classes” were too ignorant to practice birth control or otherwise take care of themselves and that eradicating “feeble-minded” persons from the population was humane.
Besides the dubious moral premise of the decision, subsequent historians have also criticized the results of the case on grounds of which the Supreme Court was not aware. In fact, the procedural due process with which the case was conducted was quite tainted. It turns out that Carrie’s lawyer, Irving Whitehead, was on the Board of Directors for the Virginia State Colony of the Feeble Minded. Furthermore, he was a major supporter of sterilization and of Dr. Albert Priddy. Paul Lombardo, whose book Three Generation, No Imbeciles: Eugenics, The Supreme Court and Buck v. Bell (Johns Hopkins University Press, 2008) tells the story behind this trial, reports that “following his failure at trial, Whitehead secretly met with Priddy and the Board and voiced satisfaction that the case was proceeding as planned.”
While the Supreme Court was unaware of Buck’s fraudulent representation, it too had biases. The Supreme Court Chief Justice, William Howard Taft, was himself an active member of the national eugenics movement. Lombardo indicates that “[Taft] encouraged Justice Holmes to write an opinion that concentrated on the Buck family’s inherited defects.”
The Buck case had international repercussions. Hitler’s 1933 law “For the Prevention of Hereditarily Diseased Offspring” resulted in more than four thousand sterilizations; at the Nuremberg trials, Nazi doctors read from the Buck opinion, claiming the U.S. precedent as a defense.
But compulsory sterilization laws remained in force.
In 1942, the U.S. Supreme Court declared it unconstitutional to sterilize persons as a punishment for a crime on grounds that “[m]arriage and procreation are fundamental to the very existence and survival of the race.” Skinner v. State of Oklahoma, ex. Rel. Williamson, 316 US 535 (1942). But other reasons for sterilization were not affected by this decision.
What was the rationale of people who supported compulsory sterilization? Two main arguments were offered in support of this policy. One was the desire to remove problematic behavior from the social environment (and “to prevent our being swamped with incompetence” as Justice Holmes put it). The second was to reduce social costs imposed by the unfit on the fit.
According to a history of involuntary sterilization in the United States by Philip Reilly (who is a lawyer, physician, and author of Genetics, Law and Social Policy (Reilly 1977), “from 1900 to 1960, more than 60,000 mentally ill or mentally retarded adults in the United states were sterilized without their consent for eugenic reasons.” (Philip R. Reilly, The Surgical Solution: A History of Involuntary Sterilization in the United States, Baltimore, MD: Johns Hopkins Univ. Press, 1991). The Oregon Board of Eugenics, later renamed the Board of Social Protection, existed until 1983, with the last forcible sterilization occurring in 1981.
But involuntary sterilization was not limited to individuals in mental institutions. In the South, the practice of administering sterilizations to women of color without consent and frequently without their knowledge was so common it was called “The Mississippi Appendectomy.” As Dorothy Roberts documents in Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, teaching hospitals in the South even performed unnecessary hysterectomies on poor black women as practice for their medical residents. Other women of color were also at risk. In 1967, the government admitted sterilizing 3,406 American Indian women without their permission. And in fact, the U.S. District Court, District of Columbia, stated in the 1974 ruling in Relf v. Weinberger, 372 F.Supp. 1196 (pursuant to affidavits filed) that an estimated 100,000 to 150,000 poor people were sterilized annually under federally-funded programs.
Coercive and involuntary sterilization has now been recognized as a crime against humanity and condemned by a variety of international organizations.