Sterilization Laws Are Still on the Books — and Pose New Dangers Post-Roe

The repudiation of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey awakens fears around the repercussions of an unchecked and compromised high court. Now as a result, in a period when the protections against the deprivations of privacy and liberty are weakened, the U.S. must brace itself as the legacy of eugenics threatens to break forth.

Recall Carrie Buck, a 16-year-old in a muggy Virginia town, almost a century ago. In the summer of 1923, Buck — who had lived her whole life under the guardianship of foster parents, John and Alice Dobbs — was raped by a Dobbs family nephew. Buck’s mother, Emma, was locked away at the Virginia State Colony for Epileptics and Feebleminded in Lynchburg under the auspices of clinical “immorality,” prostitution and the crime of having syphilis.

Carrie Buck became pregnant as a result of the rape. In her third trimester, Buck was committed to the very same Virginia State Colony as her mother, on the basis of “mental incompetence,” “incorrigibility” and “promiscuity.” By early 1924, Virginia had passed the Eugenical Sterilization Act, meant to protect the state’s right to strip “defective” and “socially inadequate” people of their reproductive potential. Early that same year, against her will, Carrie Buck’s fallopian tubes were gutted.

In a cruel legal wile, Buck’s attorney, Irving Whitehead, was not only a vehement eugenicist but also a close friend of the superintendent of the residential facility that had sterilized her. He called no witnesses. He made no effort to dispute claims, later revealed to be false, that questioned Buck’s intelligence and mental fortitude, nor did he challenge the idea that people’s reproductive capacity should be forcibly excised due to disability. His counsel was a sham.

Robert Shelton, a justice of the peace who served as Buck’s guardian while she was institutionalized, appealed the Amherst County judge’s decision to side with the Virginia State Colony. By 1927, Buck v. Bell had reached the Supreme Court. Justice Oliver Wendell Holmes Jr., in an 8-to-1 decision, delivered the now-infamous majority opinion.

The Court found that, under the Fourteenth Amendment, the State is within its right to sterilize somebody should they become institutionalized and found to be “afflicted with a hereditary form of insanity or imbecility.” The “imbecility” in the Buck case was a euphemism for her involuntary pregnancy. In his measly 1,000-word opinion, Holmes wrote, “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.”

“Three generations of imbeciles are enough,” he concluded.

It is almost a century later and Buck v. Bell, while weakened, has not been overruled. States retain the right to sterilize their citizenry on the basis of “defect” or disability. In its most pernicious interpretation, the state may determine defect to include, as it did in the 1920s, categories as unspecific and sinister as social inadequacy, immorality and promiscuity. Buck remains one of the most twisted cases in U.S. history — and today, in a world of judicial dynamism and precariousness, is a latent tool in service of the ugliest currents of society.

With Roe v. Wade being nullified on the basis of a narrowed Fourteenth Amendment, it is imperative to remember the ways in which, when it is not providing equal protection under the law, the Fourteenth Amendment has been weaponized as a tool of oppression and state control. More than 60,000 people were forcibly sterilized in the wake of the Buck ruling. This century, under the Trump administration, immigrant women were detained and carved out through medically unnecessary hysterectomies.

As of June 2022, a new generation has fewer constitutional rights than the one who preceded it. Justice Clarence Thomas’s concurring opinion in Dobbs v. Jackson outlines a path for rescinding a string of rights — some long protected under the Fourteenth Amendment — such as a right to contraceptives, gay marriage, sexual privacy and even interracial marriage.

These efforts are rooted in the very same legal illogic as Buck and motivated by the same contempt for justice that Irving Whitehead harbored.

We mustn’t forget this soft mandate, handed down by the courts, for states to intervene, not in pregnancy, but in the ability to reproduce in anybody institutionalized with anything the state deems an inadequacy. Historically, the communities that have been violated and exploited the most by this mandate include Black and Indigenous women, immigrants, trans folks — and, critically, people with disabilities.

In a post-Roe world, the promises of societal progress and bodily liberty, long the roar of a country constantly seeking to better itself, are duller. Today, 31 states unabashedly have laws sanctioning the sterilization of disabled people. In Nevada and Iowa, these laws, only three years old, are fresh. Seventeen of these states consider disabled children eligible for forced sterilization. This most recent assault on reproductive rights, decades in the making, renders conceiving of a future free from state control of our bodies, persecution of disability and intolerance of difference markedly more difficult.

Carrie Buck’s story reminds us that draconian laws last. It is not only a question of abortion and forced sterilization. The role that eugenics can play in an era of conservative and quasi-theological judicial activism is expansive: medical experimentation, forced institutionalization, marriage equality for people with disabilities, access to health care, and beyond. At a time when the court of the land has the appetite to obliterate half a century of precedent and progress, we are faced with immediate uncertainty. The legal apparatus that has, for over a century, functioned as a bludgeon for disabled Americans (and others) now threatens indiscriminately — and no one has the luxury of not knowing the consequences.