Involuntary sterilization in the United states started with the Eugenics movement in early 20th century. Eugenics was a compulsory sterilization movement that was of decreasing non-favorable population, including disables, feeble-minded and non-Anglo people in US. (Barnett, 2004). Although the idea of manipulating human reproduction to improve the species has been traced back to Plato’s Republic (circa 368 BCE) and beyond, the word eugenics has a recent and precisely identifiable origin. (Barnett, 2004). In true Victorian style, Galton—a scientific polymath and Charles Darwin’s cousin—drew on Greek for his coinage: eu (true or noble) and genos (to give birth). Fears of human degeneration in “decadent” industrialized society were a recurring theme in find siècle narratives of “cultural crisis”, and one of the roots of the eugenics movement. (Barnett, 2004) The rising prestige of science in Victorian society created interest in the possibilities of noble birth and good health.
Both Galton’s word and his concept spread rapidly in the early 20th century. In 1907, the Eugenics Education Society was founded in London, UK, and from 1912 an annual International Eugenics Conference attracted such luminaries as George Bernard Shaw and Winston Churchill. In Europe, eugenics became associated with the idea of racial hygiene. (Barnett, 2004) This concept found most favor in the Nordic states: from 1926 Denmark, Finland, Norway, and Sweden instituted compulsory sterilization programs. At this time a distinction began to emerge between positive and negative eugenics. Positive eugenics encouraged the reproduction of the intelligent, the healthy, and the successful, and tended to be voluntarist in tone. (Barnett,2004). Negative eugenics aimed to eliminate, through sterilization or segregation, those deemed physically, mentally, or morally “undesirable”. The possibilities generated by a science of heredity captivated reform-minded enthusiasts who were seeking scientific solutions to a range of problems associated with urbanization, epidemics, poverty, moral degeneration, immigration, and race suicide. (Dyck, 2014). Eugenics societies developed around the world and gave these organizations significant intellectual credibility while these groups popularized the topic of eugenics as a progressive response to the growing pains associated with modernity. (Dyck, 2014). The notion of defects, however, included a wide range of behaviors and symptoms that were increasingly medicalized in an attempt to gauge heredity.
The interplay between biology and environment was well recognized, challenging investigators to more carefully consider definitions of defect and the process of inheritance. For example, alcoholism suggested that individuals might suffer from biological defects that caused their bodies to metabolize alcohol in defective or dysfunctional ways. Regardless of the pathology of the behavior, however, alcoholic parents were also considered ill-equipped to raise children; improper supervision and care contributed to the development of adults with maladapted reasoning, judgment, and morality. The results captivated the attention of reformers more so than the actual causes, which minimized the desire to disaggregate inheritability into biological and social constituents. The programs, however, interpreted these results differently and as a result they often developed distinct approaches to addressing the issue of population reform. Both positive and negative eugenicists allied themselves to the popular concept of social hygiene, which emphasized the moral responsibility of individuals to preserve their “germ-plasm” by avoiding dysgenic activities (mainly drinking, idleness, and promiscuity). (Barnett, 2004). American programs tended to characterize race as the offending toxin in need of cleansing. Sterilization Racism is defined as the organization of racist controlling images, policies, and practices of delivering reproductive healthcare that operate to constrain, minimize, or completely eliminate the reproductive activities of women of color. (Volsho, 2010). Race evolved as a rather amorphous term that embodied elements of nationalism, heritage, ethnicity, and ideology. (Dyck, 2014).
From its inception, eugenics had been embraced by the United States Scientific and political greats such as Alexander Graham Bell and Theodore Roosevelt were advocates of the movement (Fischer, 2012). Bell even served as the honorary president of an international eugenics conference held in the United States. State fairs began having ‘fitter family’ competitions-in which the qualifications usually included IQ tests and syphilis serology (Fisher, 2012). One strategy to increase the ‘fitness’ of the American population was to remove anyone who was not of Northern European ancestry. Proponents of this notion suggested that African-Americans be sent to reservations just as Native Americans had been (Fisher, 2012). Nativists began lobbying the government for more restrictions on immigration specially to refuse immigrants from Eastern Europe. The American Psychiatric Association (APA) called for tighter policing of potential immigrants to refuse entry to people with mental illness and to fine those who brought people with mental illness to the country (Fisher, 2012). As the focus of eugenics shifted to breeding, the United States led the world in preventing the reproduction of undesirables. In the late 1960s and through the 1970s, reports of coercive, involuntary, and otherwise nonconsenting sterilizations of American Indian, African American, Mexican, and Puerto Rican origin women began surfacing in the United States. (Volsho,2010).
There was a popular idea to isolate women with mental illness and retardation in institutions during their reproductive years. However, some protested isolation as too expensive. John Harvey Kellogg argued that America was creating an ‘aristocracy of lunatics’ in providing what he thought was luxurious housing to people with mental illness similar to the rumors in Germany. It was only a matter of time before the idea of sterilization became popular. In 1907, an Indiana prison physician began forcibly sterilizing inmates. He had no legal backing for performing these procedures at the time, but the state legislature soon passed a sterilization law to allow him to continue (Fischer, 2012). Thirty other states followed suit. Conditions that were grounds for involuntary sterilization included mental retardation and mental illness. The APA formed a committee on eugenics in 1912 and weighed in on the issue of sterilization the following year (Fischer, 2012). The committee’s official report concluded that sterilization of people with mental illness should be recommended to prevent propagation. It was cheaper than preventing reproduction by segregation in state hospitals. During the next few years, several reports advocating sterilization appeared in the APA’s journal. At least two APA presidential addresses promoted it as an answer to the ‘menace’ of people with mental illness (Fischer, 2012). One article, reporting on the files of a private psychiatrist in California, concluded that outpatients should also be sterilized before they ‘hit the backwards’ (Fischer, 2012).
Laws that restrict Eugenics: Bill SB 1135 Approved by Governor September 25, 2014. Filed with Secretary of State September 25, 2014. SB 1135. This bill would prohibit sterilization for the purpose of birth control of an individual under the control of the Department of Corrections and Rehabilitation or a county correctional facility, as specified. The bill would also otherwise prohibit any means of sterilization of an inmate, except when required for the immediate preservation of life in an emergency medical situation or when medically necessary, as determined by contemporary standards of evidence-based medicine, to treat a diagnosed condition and certain requirements are satisfied, including that patient consent is obtained. If a sterilization procedure is performed pursuant to these exceptions, the bill would require psychological consultation and medical follow-up, as specified. The bill would require the department, if a sterilization procedure is performed on one or more individuals under its control, to annually publish on its Internet Web site data related to the number of sterilizations performed, disaggregated by race, age, medical justification, and method of sterilization. The bill would require each county jail or other institution of confinement, if a sterilization procedure is performed on one or more individuals under its control, to annually submit to the Board of State and Community Corrections data related to the number of sterilizations performed, disaggregated by race, age, medical justification, and method of sterilization, and would require the board to annually publish that data on its Internet Web site.
The bill would require the department and all county jails or other institutions of confinement to provide notification to all individuals under their custody, and to all employees who are involved in providing health care services, of their rights and responsibilities with regard to the sterilization of inmates. (Bill Text). The next law that restricts the compulsory sterilization is reproductive rights. Reproductive rights/reproductive health. This Act sets forth the fundamental rights of individuals to make autonomous decisions about one’s own reproductive health, including the fundamental right to use or refuse reproductive health care. This includes the fundamental right of an individual to use or refuse contraception or sterilization, and to make autonomous decisions about how to exercise that right; and the fundamental right of an individual who becomes pregnant to continue the pregnancy and give birth to a child, or to have an abortion, and to make autonomous decisions about how to exercise that right. This Act restricts the ability of the State to deny, interfere with, or discriminate against these fundamental rights. (AN act concerning health). The purposes of this Act are: To establish laws and policies that protect individual decision-making in the area of reproductive health and that support access to the full scope of quality reproductive health care for all in our State; and to permit regulation of reproductive health care, including contraception, abortion, and maternity care, only to the extent that such regulation is narrowly tailored to protect a compelling State interest, which for the purposes of this Act means: consistent with accepted standards of clinical practice, evidence based, and narrowly tailored for the limited purpose of protecting the health of people seeking such care and in the manner that least restricts a person’s autonomous decision-making. (An act concerning health). Also, the Fundamental rights, and Reproductive sterilization rights can be used as the protection against compulsory sterilization.
Cases regarding Eugenics: There were several historical cases regarding the compulsory sterilization. The first one was Buck v. Bell. That was the first case that was brought into the court showing the eugenics as an unlawful action. In case of Buck b Bell, plaintiff Carrie Buck, an eighteen-year-old woman described as ‘feeble-minded,’ challenged a 1924 Virginia statute that authorized the superintendent of the State Colony for Epileptics and Feeble Minded to order her sterilization. Carrie Buck’s mother and illegitimate child were also described as ‘feeble minded.’ (Eisenberg, 2013). This statute permitted superintendents of institutions for the mentally impaired to require individuals to be sterilized if they found that it is ‘for the best interest of the patients and of society. In the case of Carrie Buck, State Colony followed the procedural guidelines of the Virginia statute precisely as they were written. (Eisenberg, 2013) After the superintendent filed his petition and presented the written evidence in favor of her sterilization, Carrie Buck was granted her hearing and allowed to appeal, as the statute stipulated. However, the focus in Buck v. Bell ‘is not upon the procedure but upon the substantive law. In response to the contention on Carrie Buck’s behalf that there could be no justification for the sterilization order. (Eisenberg, 2013). Eventually the overview of the case was “Defendant in error, the superintendent of the state institution, sought an order for the sterilization by salpingectomy of plaintiff in error, an inmate in a state institution. After a hearing, the state trial court ordered that plaintiff in error be sterilized. The state supreme court affirmed the sterilization order, and plaintiff in error sought review.
The court affirmed and held that the statutory hearing procedure provided due process under U.S. Const. amend. XIV. The court held that the state could properly sterilize those determined to be feeble minded to prevent the birth of feeble-minded children who might lead lives of crime or indigency. The fact that the sterilization order procedure only applied to inmates in state facilities and not to the general public did not deprive the inmates of equal protection.” (Buck vs Bell, 1927). Just over a decade after the Buck v. Bell decision was handed down, the Supreme Court, in Skinner v. Oklahoma, struck down an Oklahoma law requiring compulsory sterilization for persons with more than two convictions for felonious offenses to be sterilized. (Esinberg, 2013). In case Skinner v Oklahoma, the defendant was convicted of more than two felonies and, under the Habitual Criminal Sterilization Act (act), Okla. Stat. Ann. tit. 57, § 171 et seq., was ordered to be rendered sterile. The Oklahoma Supreme Court affirmed the order that the operation be performed. Defendant was granted certiorari. (Skinner v. Oklahoma, 1942). While Skinner is often credited as the only case to expressly distinguish Buck v. Bell, it did not expressly overrule it. Although both Skinner and Buck v. Bell address compulsory sterilization statutes, analysis in Skinner takes a narrower focus, pertaining only to punitive sterilization of criminals and avoids discussion on the ethics of forcibly sterilizing the mentally ill. Skinner not only sidesteps addressing Buck v. Bell by narrowly focusing on punitive sterilization, but it also applies a heavier focus on the Equal Protection Clause of the Fourteenth Amendment. While Buck v. Bell dismisses Carrie Buck’s equal protection contentions, Skinner focuses primarily on the equal protection issues presented, and the Court applied a more rigorous strict scrutiny test in its analysis of the Oklahoma statute. The Equal Protection Clause is found in the Fourteenth Amendment of the United States Constitution. (Eisenberg, 2013). Another case regarding compulsory sterilization is case Strump vs Starkman. In this case on remand from the United States Supreme Court, plaintiffs, a husband and a wife, (Lina Kay and her husband Leo Sparkman) sought review of an order from a district court, which dismissed their case and pendent state law claims against defendants, a state court judge, the wife’s mother, the mother’s attorney, several doctors, and a hospital. In 1971 the DeKalb County Circuit Court received Ora McFarlin’s petition, prepared and filed by her attorney, for court authorization to have Dr. John Hines perform a tubal ligation on McFarlin’s daughter Linda Kay. (Turner, Court. ‘Stump v. Sparkman, 2004) The petition alleged that Linda Kay was 15 years old, was mentally ‘somewhat retarded,’ had been staying overnight away from home with young men, and could not be controlled by her mother; and that having a tubal ligation would be in her best interests. (Turner, Court. ‘Stump v. Sparkman, 2004)
The petition included Ms. McFarlin’s agreement indemnifying Dr. Hines from any liability he might incur in performing the operation. Linda Kay was not served with the petition, and no one was appointed to represent her interests. (Turner, Court. ‘Stump v. Sparkman, 2004). The petition was assigned to Circuit Judge Harold Stump, who treated it as an ex-parte (usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance) matter and granted it the same day the court received it. Six days later Linda Kay’s mother took her to the hospital on the pretext she was going to have an appendectomy, and Dr. Hines performed the tubal ligation. Two years later Linda Kay married Leo Sparkman, and discovered the tubal ligation during efforts to determine why she could not become pregnant. The Sparkmans chose federal court for their lawsuit against Linda Kay’s mother, her mother’s attorney, Dr. Hines, the hospital in which she had been sterilized, and Judge Stump. (Turner, Court. ‘Stump v. Sparkman, 2004) Federal jurisdiction was predicated on their claims that Judge Stump had violated 42 U.S.C. 1983, the federal civil rights statute,3 and that the other defendants had conspired with him to do so. Judge Stump had acted outside his jurisdiction in granting the mother’s petition; he had forfeited his judicial immunity ‘because of his failure to comply with elementary principles of procedural due process’; and therefore, the Sparkman’s’ complaint stated a claim that they were deprived of their constitutional rights by the wife’s sterilization without her knowledge or consent, so they filed a § 1983 suit along with pendent state law claims against defendants, including a state court judge. (Sparkman v. McFarlin, 1979). The district court granted the state court judge’s immunity plea and dismissed the suit, but the court reversed. The Supreme Court, however, sustained the plea and reversed the court. On remand from the Supreme Court, the court in a plurality decision affirmed the district court’s dismissal of the claims against the remaining defendants. (Sparkman v. McFarlin, 1979). The court held that no cause of action was stated against the private defendants for alleged conspiracies with immune state officials, since such private persons were not conspiring with persons acting under color of state law against whom a valid claim could be stated. Finally, the court held that there was no pendent jurisdiction for the state law claims. (Sparkman v. McFarlin, 1979).