In 1914, standing in Battle Creek, Michigan, a prominent eugenicist proclaimed that 15 million sterilizations over the next 65 years would be necessary to protect the purity of the American people. While he would not realize this goal, he would play an active role in the passage of laws permitting sterilization and in the Court-sanctioned sterilization of over 60,000 “feeble-minded” people before the mid-1960s. This paper will examine the Supreme Court case Buck v. Bell (1927), one of the cases that made these sterilizations possible, and will focus on the circumstances under which such a case was allowed to proceed, some of the reasons why the Court’s decision in Buck has remained good law, and the possible implications of judicial restraint in the face of others’ inaction.
In 1914, standing in Battle Creek, Michigan, a prominent eugenicist proclaimed that the purity of the American people was dependent upon 15 million sterilizations over the next 65 years (Lombardo 47). Those with “all manner of congenital defect…from the simply backward boy or girl…to the profound idiot” should be prevented from destroying humanity (Lombardo 15). It was only eleven years later in Buck v. Bell that the Supreme Court expressed the constitutionality of this sentiment, a decision that was never overturned. This paper will explore the political and judicial environment and implications of this blemish on the American present.
It is necessary to note that understanding Buck v. Bell solely in the context of race, gender, or class would be inaccurate because the central legal question was not equal protection. Even so, there were disparate implications for Black, Native American, and Puerto Rican people (Oberman 376-7, Lombardo 248). Feeble-minded women were targeted for their abnormal sex drives (Goldstein 3, 6), and Carrie Buck, the plaintiff, was called part of the “shiftless, ignorant, and worthless class of antisocial whites of the South,” a denigration of her social standing (Lombardo 138, 248). Among the lasting takeaways of the case, therefore, should be the potential ultimate impact of normalizing widespread prejudice in society.
Eugenic philosophy began to gain popularity long before Buck v. Bell. Gregor Mendel’s work on genetics was rediscovered in 1900, providing scientific proof for hereditary traits. Some scientists extrapolated from Mendel’s research that intellect and degeneracy were also passed down. The results of the military’s Binet-Simon intelligence testing around the same time period concluded that ‘degeneracy’ was increasing (Thompson 130). These developments shifted eugenics from promoting the procreation of the ‘strong’ to advocating for sterilization in the feeble-minded as a preventative measure. Nobel prize-winning geneticists, major university presidents, and Presidents Roosevelt, Taft, Wilson, and Coolidge all believed in eugenics (Larson 123). In 1882, clear support for purifying the population was seen through immigration restrictions, and, in 1921, post-World War I xenophobia led to strict quotas (Cynkar 1432). The primary social movements advocated for ‘cleaning’ the population; the Purity Crusade aimed to decrease promiscuity, the Social Hygiene movement emphasized science as a drive for legal reform, and progressivist ideas such as efficiency in government via delegation to private experts promoted science (Lombardo 15-17). Although it is unclear whether sterilization itself was popular – despite the widespread use of these laws, multiple states, such as Oregon in 1913, at least attempted to repeal sterilization statutes by popular referendum. Even without a broad consensus, the law reflected the vocal lobbyists from these social movements rather than the opinions of the general populace (Oberman 359, 368).
The obvious criticisms arose in response to eugenics. Scientists expressed disagreement with using Mendelian genetics as justification for policies like sterilization (Lombardo 52-54). Others criticized the legislation, citing a lack of clear criteria for feeble-mindedness, insufficient scientific evidence, and the evident potential for unfair application of the law (Lombardo 53). Even so, prohibitions on marriage between the feeble-minded and others were passed around the country.
The sterilization laws initially applied only to felons and were put into practice before receiving legislative approval (Lombardo 21). In a Kansas institution, before sterilization was legalized, a doctor performed castrations in an institution for the Feebleminded (Cynkar 1432). Similarly, in Indiana, a doctor performed vasectomies on several hundred prisoners to test the effectiveness of a new procedure (Lombardo 24). The success of these initial ‘safer’ vasectomies led to the legalization of sterilization in Indiana in 1907, the first such law in the United States (Cynkar 1433).
Soon after, sterilization was proposed in numerous other states. In Oregon (1909), Vermont (1913), Nebraska (1913), Idaho (1919), and twice in Pennsylvania (1905/1921), sterilization legislation was vetoed (Lombardo 316). It was successful in South Dakota (1917), North Carolina (1919), Alabama (1919), Montana (1923), Delaware (1923), and New York (1912, repealed in 1920) (Lombardo 316). Although 23 states had passed at least one sterilization law by 1925, there had also been multiple judicial challenges. In Michigan (Haynes v. Lapeer Circuit Judge in 1918), New Jersey (Smith v. Board of Examiners of Feeble-Minded in 1913), and New York (Osborn v. Thomson in 1918), sterilization laws were found to violate the Equal Protection clause of the Fourteenth Amendment because it applied to only those in institutions. Indiana (Williams v. Smith in 1921) and Oregon (State Board of Eugenics v. Cline in 1921) both found that their laws’ mandated hearings were insufficient for due process. In Nevada, Mickle v. Henrichs in 1918 found a sterilization of criminals law cruel and unusual. In contrast, a 1912 case in Washington, State v. Feilen found that sterilization by vasectomy, as applied to statutory rapists and habitual criminals, was not cruel and unusual (State v. Feilen 6). The Court claimed that, since the death penalty could be imposed on convicted rapists, anything less than death was not a cruel and unusual punishment (Feilen 7). This analysis would be seen again in Buck v. Bell, more than ten years later.
The Supreme Court did briefly see a challenge to Iowa’s sterilization law in Berry v. Davis (1917) but did not need to answer the question of constitutionality. Injunctive relief had become superfluous by the time of the ruling because the act had been amended to no longer apply to the plaintiff. In the Supreme Court, the more substantive challenge to the constitutionality of compulsory sterilization, Buck v. Bell (1927), focused on a Virginia law with a violent history.
The first law proposed by Virginia’s eugenicists, though, was aimed at resolving the overcrowding of mental institutions by proposing colonies for the feebleminded (Lombardo 13). A 1912 law authorized admission of feebleminded women to the first such colony (Lombardo 18-19). In 1916, the law expanded to permit physicians to use their discretion in providing any necessary safe surgeries for the members of the Colony – the feebleminded could not effectively ‘consent’ to medical procedures, so decisions would need to be made on their behalf (Lombardo 60). Dr. Albert Priddy, also implicated in Buck, interpreted ‘surgery’ to mean sterilization procedures (Lombardo 61). By 1917, 50 sterilizations had occurred in Virginia under the guise of ‘pelvic disease’ operations and appendectomies (Lombardo 64). Priddy, however, had not been following legal procedure in committing members to the Colony. One family, the Mallorys, took advantage of his haphazard approach to paperwork and sued in 1917. The outcome of the case saw the non-consensual sterilization of one member of the family justified as a medical emergency (Lombardo 77), but the oldest child was ordered to be freed and a Juvenile Court ordered all the younger children to be brought out of the Colony by writ of habeas corpus (Lombardo 71, 76). The court proceedings had little impact on anyone outside of the Mallory family, though.
The final Virginia law, the Eugenical Sterilization Act (1924) indicated that under careful safeguard and by competent authority, vasectomies and salpingectomies could be performed on the feebleminded. Provisions for due process were included, such as the right to a lawyer and an appeal, a right to notification of an appointed or legal guardian, and a board hearing (Lombardo 98-99). The passage of this legislation was underplayed by news outlets and unnoticed by civilians throughout the state, in part due to the widespread nativism and racism after WWI (Cynkar 1436). The Virginia law was also not exceptional – ten other states already had active sterilization statutes (Lombardo 98).
After Mallory, Priddy was unprepared to begin sterilizations under the 1924 law without assurance. He, along with others on the sterilization approval Board, planned to build a test case that would go to the Supreme Court (Lombardo 101-102). The first step was creating a plaintiff. Carrie Buck was a 17-year old committed to the Colony by her foster parents due to her feeble-mindedness and promiscuity – she had an ‘illegitimate’ daughter. She had no relatives other than her mother, who was also institutionalized, and no friends, making her an easy target (Berns 765).
As a result, the case was not meant to be fair. Her appointed attorney was Irving Whitehead, who was on the Colony Board, the Colony payroll, and attended Colony Board meetings throughout the case (Oberman 366). He brought no witnesses, didn’t ask any useful questions, made arguments for the other side, and ignored blatantly inaccurate statements about Buck (Lombardo 135, 139). It was said afterwards that “Priddy had two attorneys and Carrie had none” (Oberman 366). Most of the witnesses who testified on her feeblemindedness had never met Buck (Lombardo 138). Later in life, she was described as an ‘avid reader’ and a ‘lucid conversationalist’, making their testimonies not only uninformed, but also likely inaccurate (Thompson 147). These witnesses led the Court to conclude that Buck was the “probable potential parent of socially inadequate offspring” (Berns 765). This vague, inconclusive statement that criticized Buck for actions yet to be taken or proven was quoted in the Buck decision. Carrie Buck’s ‘socially inadequate offspring’, Vivian Buck, who died at 8 of ‘enteric colitis’, was declared feebleminded at 7 months, but was later described as “very bright” by teachers at her school (Thompson 148). Even the circumstances of Buck’s commitment had been very questionable – she was pushed into the Colony by her foster parents, possibly because of her instance that her pregnancy was a result of a rape, committed by her foster cousin and punishable by death at the time (Lombardo 139, 140). Her appointed guardian consented to bringing suit against the colony administration on her behalf, so Buck was barely involved in her own case. It is unclear whether she ever even received the Virginia Supreme Court decision (Lombardo 154), and she only found out years later that the appendectomy she had endured had actually been a salpingectomy, a fact cited at trial (Goldstein 5).
The decision in Buck v. Bell (1927) was an 8 to 1 decision written by Justice Oliver W. Holmes, Jr. In his opinion, Holmes dealt with the major issues raised by state courts. He determined that the extensive hearing requirements in Virginia’s Eugenical Sterilization Act were sufficient for due process and that equal protection was not violated because those currently in the Colony would be released after sterilization and replaced, so everyone had the potential to be affected by the law. With regards to equal protection, he left the reasonability of class judgment to the legislature (Cynkar 1440). Holmes also argued that sterilization was not anymore unreasonable or inhumane than the draft or compulsory vaccinations, ruled constitutional in Jacobson v. Massachusetts (1905). Jacobson, the only precedent cited by Holmes, held that the state had a vested interest in the public health of the community when faced with an increasing smallpox threat (Jacobson v. Massachusetts 22, 27). There was no reference to strict scrutiny in the Buck decision, which seemed to be an oversight considering Lochner, a case that raised the question of whether the “power of the State to legislate or the right of the individual to liberty of person” should prevail in such cases (Berns 766-7). Seven of the justices on the Court were at least slightly moved by eugenics, though, making it unsurprising that they did not find individual liberty to be a major consideration in Buck (Cynkar 1451).
Holmes’ final holding, that sterilization was reasonable, faces the most criticism. His comparison of sterilization to the draft is met by academics who state that “American government, and all non-tyrannical government, is based on the recognition that there are greater evils than death”[i] (Berns 762). The use of Jacobson also has some failings. The opinion in Jacobson found that it was up to the legislature to determine what was justified by the “necessities of the case”, specifying that the court should interfere if the law reaches beyond what is needed for the public welfare (Jacobson 12, 34-35). In Buck, it was easy to see that Carrie Buck was not ‘feeble-minded’ enough to require sterilization in the name of the public welfare – her only act against society at that point had been having a child out of wedlock – especially given the quality of the witnesses. The Jacobson decision also excluded those laws that lead to “injustice, oppression, or absurd consequence.” The inequities of application across gender or class could have allowed for the Court to find the opposite conclusion under the same precedent. Jacobson also offered an extensive analysis of the scientific basis behind vaccines in order to investigate the basis for concern over public welfare, while Holmes’ decision did not even address the scientific controversies. A closer and honest look at scientific literature of the time may have led Holmes to realize that eugenics posed a more significant threat to public welfare than did Carrie Buck. Holmes also seemed to ignore the most obvious distinction: “It is a broad principle indeed that sustains a needle’s prick in the arm and an abdominal incision…it becomes something else again in terms of the results attained: no smallpox in the one case and no children in the other” (Berns 764). If someone decided not to be vaccinated, the extent of the consequences was a five-dollar fine, which was considered in Jacobson (Cynkar 1458-9). There was no option not to be sterilized in Buck.
These oversights are not surprising given Holmes’ background. He was a prominent eugenicist who generally was compelled by science as a way to manipulate and speed up ‘natural’ progressions (Lombardo 164, Thompson 129). In a major public address, he proclaimed that he desired for science to ‘pass’ from the “combative to the dogmatic stage” and to gain “such catholic acceptance that it shall take control of life and condemn…with instant execution what now is left for nature to destroy” (Larson 124). He also subscribed to Malthusian population theories, arguing that assistance to the poor would lead to overpopulation and a fight over resources (Thompson 129). His commitment to judicial restraint on substantial due process questions could have led him to his opinion in Buck (Cynkar 1446). Holmes’ decisions, though, were often ruled by how well the policy silences unfit ideas. This perspective makes clear the alignment between his stance on free speech and this opinion in Buck, in that both contribute to the marketplace of ideas, one by allowing for debate to crowd out ‘inferior’ speech and the other by forcibly removing ‘stupidity’ (Berry 436).
Butler’s silent dissent on Buck has primarily been attributed to his religious motivations (Thompson 133). This idea was propagated by a letter sent by Holmes, in which he wrote that “Butler knows this is good law…I wonder whether he will…vote with us in spite of his religion” (Larson 125). While many Catholics were against eugenics, it was primarily Christian morality that drove the sanitation and sexual morality movements in support of eugenic policies (Lombardo 46). For instance, Evangelist Billy Sunday gave a widely-attended talk in Manhattan on how he was “tired” of emphasis given to personal liberties in the face of more compelling public interests (“35000 Hear Sunday”). When considering Butler’s motivations in a broader context, then, it is more likely that Butler was compelled by his consistent belief in morality of a law as a necessary consideration of Court decision-making and his commitment to individual freedom and due process (Thompson 138). His acute foresight, however silent, was reflected by the Virginia statute’s eventual repeal in 1974.
Other than Buck v. Bell, there were several opportunities for the Court to take a different stance. The National Council of Catholic Men convinced Whitehead to bring a rehearing via petition, but Whitehead edited the agreed-upon documentation before submission to avoid the possibility that the Court may give it serious consideration. The rehearing came to nothing (Lombardo 179). Two years prior to Buck, Smith v. Command (1925) in Michigan considered a right to bodily integrity (Lombardo 181). In the case, a ‘feebleminded’ 16-year-old sued to contest a court’s order that he be sterilized, a directive issued with his parents’ consent. In its decision, the Michigan Supreme Court added to Buck, writing that the “right to beget children is a…constitutional right,” but that this was overwhelmed by the public welfare (Smith v. Command 142). Ultimately, the order, not the statute, was vacated because statutory due process protections were not followed. Four justices wrote that eugenic theory was not compelling or that sterilization violated ‘bodily integrity’ (Smith 146, 148). The dissent contended that the statute violated equal protection because “Feeble-mindedness…exempts the rich and sterilizes the poor. This is class legislation” (Smith 150-151). Two years before Holmes wrote his decision in Buck, many criticisms of his legal justifications had already been articulated.
Skinner v. Oklahoma (1942) still serves as the only direct Supreme Court test of Buck[ii]. The Oklahoma law ordered compulsory sterilizations of habitual criminals but exempted certain crimes. Considering some of the same issues as Buck, the Court unanimously declared the law unconstitutional. Even so, each opinion refused the opportunity to overturn Buck. Justice Douglas wrote the majority opinion based on an Equal Protection violation, finding that the exemption of some types of crimes was arbitrary (Skinner v. Oklahoma 538-539). He also continued to define marriage and procreation as basic civil rights (Skinner 541). Although Justice Stone’s concurrence went further in its skepticism towards the science behind eugenics, both opinions cited Buck as an appropriate foreclosure on the right of procreation (Skinner 545). Justice Jackson added to both, arguing that “there are limits to the extent to which a…majority may conduct biological experiments at the expense of…a minority…But this Act falls down before reaching this problem…On it, I would also reserve judgment” (Skinner 546-547).
Skinner could have been an opportunity to set aside the trivial equal protection violation (“Constitutionality” 1386). The Oklahoma law had punitive characteristics, so the Court could have evaluated whether sterilization was cruel and unusual (“Constitutionality” 1385). Or, they may have determined whether procedural due process and non-speculative evidence was available when analyzing whether someone’s unborn child would be a criminal (“Constitutionality” 1386). There was also an opportunity to consider the fundamental right to have children or the race, class, or gender based use of sterilization (“Constitutionality” 1387).
Thirty years later, in Cook v. Oregon (1972), the Court ruled that the State had a sufficiently compelling interest in continuing sterilization policies to survive strict scrutiny. Legislatures were preventing murderers, perverts, pyromaniacs, and thieves from plaguing future generations (Leslie-Miller 134). In Stump v. Sparkman (1978), a mother authorized her ‘somewhat retarded’ daughter’s sterilization without informing the patient. The Supreme Court was only able to consider whether the judge who authorized the procedure, despite having approved the petition in error, was granted immunity. Finally, in 1981, Poe v. Lynchburg Training School & Hospital was heard in the US District Court for the Western District of Virginia. The American Civil Liberties Union (ACLU) brought a class action suit challenging the Eugenical Sterilization Act. Many who had been sterilized under the law had never been informed of the procedure and its ramifications (Poe v. Lynchburg Training School & Hospital 792). No monetary damages were requested, although they did demand that sterilizations be ruled unconstitutional (Lombardo 251). The Court determined that the constitutionality of the statute was decided by Buck (Poe 792). The ACLU ultimately settled the case in exchange for a brief and underwhelming educational campaign (Lombardo 254).
While Buck had been decided amidst public support, many later cases went against public consensus. By the 1970s, most Americans were aware of the German eugenics campaign and recognized its similarities to state policies. Early in the Nazi regime, an innocent scientific collaboration with Germany was a source of pride for American eugenicists (“English Attack”, Lombardo 209). The Chief of the Eugenics Research Association even wrote that anti-Nazi propaganda was obscuring the brilliance of their eugenics policy. He warned that “the future will incontestably prove which nations have been the wiser” (Berns 773). As the Holocaust progressed, however, Americans recognized that “in Germany, it was ein Reich, ein Volk, ein Führer, in America Johnson and Popenoe were calling for an ‘Aristo-democracy’. The difference may [have] be[en] one of terminology only” (Berns 774). A smaller international influence was the spread of eugenic ideas to Canada. Alberta and British Columbia passed sterilization acts for inmates about to be discharged, causing over 500 cases to be brought and settled (Lombardo 265).
The legacy of Buck extends to the current political . In Roe v. Wade (1973), the inclusion of marriage and procreation in the right to privacy explicitly excluded the privacy violations ruled on in Buck and Jacobson. Arkansas still permits for involuntary sterilization of incompetents, and as recently as 2007, compulsory sterilization bills have been proposed (Lombardo 275-276). In 2001, the 8th Circuit Court of Appeals ruled coerced sterilization of a disabled woman in Missouri constitutional, citing Buck (Goldstein 6). From 2010 to 2015 in Tennessee, sterilization was used to bargain in plea deals with female defendants, and from the 1990s to 2010 in California, hundreds of female prisoners were sterilized without state approval (Goldstein 1).
Post-Buck, the South had only just begun to pass sterilization legislation. Opposition from religious groups and the popular belief in the cohesive family unit had prevented passage, but with the lobbying momentum from Buck, bills passed (Fletcher 1). Ultimately, the politics driving eugenics led to racist and classist practices in the Deep South such as the Mississippi Appendectomies, leading many women to be sterilized against their will and without their knowledge.
This fight over what may constitute the public welfare that started with Buck may extend into today with the potential for genetic testing in prenatal care and egg selection in the oocyte market (Oberman 383-387). Even if these technologies become the ‘new eugenic sterilization’, it is important to remember that they will not raise the same question of the extent to which liberty includes bodily autonomy from law. They may relate to the right to procreation, but the right of government to regulate selection processes in the oocyte market, for example, may prevent unequal implications like race-based selection rather than enabling them.
By 1938, over 27,000 compulsory sterilizations had been performed in the United States (Thompson 131). By the mid-1960s, not accounting for American contributions to Nazi eugenics policy, this had risen to over 60,000 (Thompson 143). Judicial restraint in Buck v. Bell may have been the most active kind of inaction, making restraint almost illusory. Holmes appeared suspiciously like an activist when he wrote later that he “was getting near to the first principle of real reform” by upholding a state law to sterilize ‘imbeciles’ in Buck (Berry 437). It is easy to argue that Holmes was only using restraint, and that this blemish on the American present “rests more with inept or corrupt counsel…in a set-up case involving a patient who should not have been subject to the procedure under the science of the day, than the Court that followed their lead” (Larson 128). But this begs a question larger than Buck of the Justices in whose intellect we vest the interpretation of our basic political rights: If challenging inept and corrupt counsel is not the responsibility of the Court, even when they are given multiple chances to rule in favor of the Constitution, then on whose shoulders will preventing these casualties fall on when we are faced with a similar challenge again?
[i] More succinctly, “Give me liberty, or give me death!”
[ii] Loving v. VA, although often cited when discussing Buck, was decided via a question of Equal Protection, inapplicable to Buck.
- “35000 Hear Sunday Talk to Men Only”. New York Times, 30 Apr. 1917. Web.
- Berns, Walter. “Buck v. Bell: Due Process of Law?” The Western Political Quarterly 6.4 (1953): 762-75. Web.
- Berry, Roberta M. “From Involuntary Sterilization to Genetic Enhancement: The Unsettled Legacy of Buck v. Bell.” Notre Dame Journal of Law, Ethics & Public Policy 12.2 (1998): 401-448.
- Berry v. Davis. 242 U.S. 468. U.S. Supreme Court. 1917. Rpt. by Justia. Web.
- Buck v. Bell. 274 U.S. 200. U.S. Supreme Court. 1927. Rpt. by Justia. Web.
- “Constitutionality of State Laws Providing Sterilization for Habitual Criminals.” The Yale Law Journal 51, no. 8 (1942): pp. 1380–1387.
- Cynkar, Robert J. “Buck v. Bell: ‘Felt Necessities’ v. Fundamental Values?” Columbia Law Review 81, no. 7 (1981): pp. 1418–1461.
- “English Attack on Our Eugenics”. New York Times, 9 Nov. 1913. Web.
- Fletcher, John C. “Book Review — Sex, Race, and Science: Eugenics in the Deep South.” New England Journal of Medicine. N.p., n.d. Web. 20 Apr. 2017.
- Goldstein, Dana. “Sterilization’s Cruel Inheritance.” New Republic. N.p., 04 Mar. 2016. Web. 20 Apr. 2017.
- Gould, Stephen Jay. “Carrie Buck’s Daughter.” Natural History July 1984: n. pag. Print.
- Jacobson v. Massachusetts. 197 U.S. 11. U.S. Supreme Court. 1905. Rpt. by Justia. Web.
- Larson, Edward J. “Putting Buck v. Bell in Scientific and Historical Context: A Response to Victoria Nourse.” Pepperdine Law Review 39.1 (2011): 119-128.
- Leslie-Miller, Jana. “From Bell to Bell – Responsible Reproduction in the Twentieth Century.” Maryland Journal of Contemporary Legal Issues 8.2 (1997): 123-150.
- Lombardo, Paul A. Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Baltimore: Johns Hopkins UP, 2010. Print.
- Oberman, Michelle. “Thirteen Ways of Looking at Buck v. Bell: Thoughts Occasioned by Paul Lombardo’s ‘Three Generations, No Imbeciles.’” Journal of Legal Education 59, no. 3 (2010): pp. 357–392.
- Poe v. Lynchburg Training School and Hospital. 518 F. Supp. 789. US District Court for the Western District of Virginia. 1981. Rpt. by Justia. Web.
- S. L. “Constitutional Law. Eugenical Sterilization Statutes.” Virginia Law Review 12, no. 5 (1926): pp. 419–422.
- Skinner v. Oklahoma. 316 U.S. 535. U.S. Supreme Court. 1942. Rpt. by Justia. Web.
- Smith v. Command. 231 Mich. 409. Supreme Court of Michigan. 1925. Web.
- State v. Feilen. 70 Wash. 65. Supreme Court of Washington. 1912. Web.
- Stump v. Sparkman. 435 U.S. 349. U.S. Supreme Court. 1978. Rpt. by Justia. Web.
- Thompson, Phillip. “Silent Protest: A Catholic Justice Dissents in Buck v. Bell.” Catholic Lawyer 43.1 (2004): 125-148.
- “Upholds Operating on Feeble-Minded”. New York Times, 3 May. 1927. Web.