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Buck v. Bell: A Case Study
By Scott Polirstok

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.

Following 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 judgment 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 benefited 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 women's 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.

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Last Updated: 8/14/14