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30 September 2010

Sterilisation in America

In 1927, the Court in Buck v. Bell, 274 U.S. 200, upheld a statute instituting compulsory sterilisation of the unfit, including the mentally retarded, "for the protection and health of the state." It was largely seen as an endorsement of negative eugenics—the attempt to improve the human race by eliminating "defectives" from the gene pool.

Carrie Buck was a perfectly normal 18 year-old, young woman.  Her grandmother had mental and emotional problems.  Her mother had the mind of an 8 year-old and a history of prostitution and "immorality." Carrie had been put up for adoption.  In her teens, she became pregnant.  Her family and physician claimed that she was "feeble-minded" and had her instituionalised in the state mental hospital.  It was learned latter that Carrie had been raped by her adopted mother's nephew and the family had her institutionalised to "save the family's reputation."

Once Virginia SB 281, the “Eugenical Sterilization Act,” passed, the state and state doctors were looking for a case to test the law.  Carrie was it.  She lost through the state courts and her lawyers were granted cert by SCOTUS.  Carrie's lawyers argued that involuntary sterilisation violated the protections of the 14th Amendment and 5th Amendment. They contended that the due process clause guarantees all adults the right to procreate which was being violated. They also made the argument that the equal protection clause in the 14th Amendment was being violated since not all similarly situated people were being treated the same. The sterilisation law was only for the "feeble-minded" at certain state institutions and made no mention of other state institutions or those who were not in an institution.

In a landmark 8-1 decision, the Court upheld the involuntary sterilisation law and this opened the floodgates.  the Court accepted that she, her mother and her daughter were "feeble-minded" and "promiscuous," and that it was in the state's interest to have her sterilised.

In the infamous words of Justice Oliver Wendell Holmes, writing for the majority:

"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, 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…Three generations of imbeciles are enough".

She was sterilised and lived into her 80s, was a perfectly normal woman of average intelligence, manners, morality, and mother to the child of the rape until the little girl, an honours' student, died from the measles.

It is estimated that close to 100,000 Americans were forced to undergo sterilisation against their will.

In Skinner v. Oklahoma, 316 U.S. 535 (1942), the Court ruled that compulsory sterilisation could not be imposed as a punishment for a crime because the Oklahoma law excluded white-collar crimes, which did not also carry sterilisation penalties.  Obviously, this produced equal protection problems and headaches.

The Oklahoma law allowed for a person convicted of three or more crimes "amounting to felonies involving moral turpitude".   Skinner had been convicted twice of bank robbery and one for stealing chickens.  It was a common belief during that era was that "criminality" was possibly a hereditary trait that needed to be weeded out of the human gene pool via eugenics.

Section 195 of the law made the following exception:  offences arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses, shall not come or be considered within the terms of this Act." other words, "white and middle/upper class" people. 

Justice William O. Douglas writing for the majority:

"Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment, the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn."


"The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws."

Skinner is often mistaken as having overturned Buck and declared forced sterilisations to be unconstitutional.  THIS IS UNTRUE.  The case turned on the Equal Protection argument and the disparate treatment for classes of criminals.


The last known forced sterilisation occurred in Oregon in 1984, but there is nothing to stop the government from beginning this horror in the future.  That should make the hearts of Tom Friedman, Paul Krugman, Ezekiel Emanuel, John Holdern, etc., go aflutter.  One child policy???

As a libertarian, these cases are close to my heart.  The State should never be able to do things like this to anyone.  This sad chapter of American history was born in evil, which eventually was adopted by Nazi Germany.

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