@[email protected] 5/6/20087:04:32AM REINVENTING EUGENICS: REPRODUCTIVE CHOICE AND LAW REFORM AFTER WORLD WAR II MARY ZIEGLER! [M]any feel that it is inconsistent to require both that the client consent and be feebleminded. One county specifically asks: “Could some of the ‘red tape’ be cut in regard to the consent of the feebleminded adult? We are thinking of a mother of four children, born out of wedlock, who is definitely feebleminded and who will not give consent for sterilization.” [M]any surveyed felt compulsory powers should be available. [B]ut if compulsory powers were exercised, a great deal of hostility might be stirred up which could jeopardize the whole existence of the law.1 When the United States Supreme Court decided Skinner v. United States, some observers saw the case as the beginning of the end of the movement for eugenic legal reform.2 The term eugenic, coined in 1883 by the British geneticist Francis Galton, described a belief that law could be used to improve the quality of the population.3 When the Court had last considered a Due Process or Equal Protection challenge to compulsory eugenic sterilization law in 1927, only one justice dissented from the Court’s decision to uphold the statute.4 Only fifteen years after the Buck Court stated that “three generations of imbeciles are enough,”5 the Skinner Court described the right to reproduce as “one of the basic civil rights of man.”6 Many scholars have seen this apparently dramatic shift in the Court’s position as evidence of the influence of World War II on American reproductive law.7 During the war, widespread revulsion to the Nazi political program provoked ! I would like especially to thank Ken Mack, Jon Hanson, and Adrian Vermeule for their comments and help during work on this article.
@[email protected] 5/6/2008 7:04:32AM 320 CARDOZO JOURNAL OF LAW & GENDER [Vol. 14:319 serious criticism of American sterilization laws similar to those enforced in Germany.8 As a result of this disapproval, the eugenic reform movement is seen to have no longer influenced American reproductive law after the War.9 A close examination of pro-eugenic organizations after the War tells a significantly different story. Rather than disappearing from the political scene, these organizations appear to have transformed both themselves and the very idea of eugenic law.
@[email protected] 5/6/2008 7:04:32AM 2008] REINVENTING EUGENICS 321 retarded.16 However, by the 1890s, many critics had become convinced that administrative segregation was ineffective and unnecessarily stigmatizing.17 Indeed, several states adopted so-called eugenic marriage laws, which allowed only those who could pass a battery of blood tests to obtain a marriage license.18 For a variety of reasons, eugenic marriage laws proved to be a spectacular failure. Because the laws required equipment that was often too rare and too expensive for most local physicians to acquire, the laws were unpopular as they prevented so many people from obtaining marriage licenses.19 More importantly, the laws were seen to be ineffective from a eugenic standpoint: morally unfit persons were widely believed to have sexual intercourse outside of marriage and so would be unaffected by the denial of a marriage license.20 To some observers, the need for a more coercive law was apparent.21 Between 1915 and 1940, several states responded by introducing compulsory eugenic sterilization laws.22 Focused on people housed in state institutions, the laws authorized the sterilization of a loosely defined group that included those individuals thought to be insane, handicapped, or sexually promiscuous.23 The rise of such laws in the 1910s can be partly explained by the emergence of Progressive politics.24 Many Progressives shared with eugenic theorists a belief in the superior knowledge of experts, a suspicion of rights-based arguments made by the federal courts, and a conviction that the needs of individuals had to be subordinated to those of the community.25 Eugenic compulsory sterilization laws were still frequently applied following the decline of Progressive politics.26 After the Supreme Court upheld Virginia’s compulsory sterilization law in Buck v. Bell in 1927, a significant number of states introduced sterilization laws of their own.27 The decade before the beginning of World War II was, for the most part, a successful one for proponents of eugenic legal reform.
@[email protected] 5/6/2008 7:04:32AM 322 CARDOZO JOURNAL OF LAW & GENDER [Vol. 14:319 came under attack. Newspapers in the 1940s increasingly mentioned sterilization laws only in the context of the Nazi regime.28 Many major American newspapers provided extensive, often scathing criticism of Nazi sterilization laws.29 Nazi sterilization policies were seen to be totalitarian and American eugenicists often had trouble arguing that their own sterilization laws were any different. Writing to the Washington Post, the Reverend F. J. Connell responded to a letter that had advocated the sterilization of the unfit: In his letter of January 10, Dr. H. Curtiss Wood recommends the sterilization of persons regarded as unfit for parenthood, particularly the mentally defective. . . .The argument of Dr. Wood is very similar to that [argument] presented to the Reichstag in support of the sterilization policy which was put into operation in Nazi Germany on Jan. 1, 1934. It would be interesting to know if Dr. Wood favors the entire Nazi policy or just this feature.30 Many American eugenicists had trouble responding to critiques like the one framed by Reverend Connell, and popular support for eugenics declined accordingly.
@[email protected] 5/6/2008 7:04:32AM 2008] REINVENTING EUGENICS 323 A spike in out-of-wedlock births made the compulsory sterilization of “unfit” unwed mothers appear a more attractive legislative option. Between 1950 and 1967, more than 12 states considered a measure to compulsorily sterilize unwed mothers, and yet all of these bills failed to pass.34 Similarly, there is evidence that some important members of the Senate seriously considered introducing compulsory sterilization legislation but decided against such a strategy because of the perceived unpopularity of compulsory sterilization laws.35 Even North Carolina, a state still widely applying its compulsory eugenic sterilization law from 1950 to 1965, was unable to expand its law.36 If there was widespread support for such a eugenic law, then why did the attempts to pass a compulsory law universally fail? Moya Woodside, a British sociologist and commentator on North Carolina’s law, argued that an effective eugenic law could not be compulsory but would instead have to respect free choice.37 “Laws providing for voluntary sterilization in democratic countries bear no resemblance to the German experience,” Woodside wrote. “[The] preservation of individual liberty does more in the long run to encourage sterilization as a measure of social betterment.”38 The laws that developed from 1950-1967 confirmed that Woodside’s intuition was insightful. As noted, a traditional history of eugenics often concludes that World War II spelled the end of eugenic influence on the law. This article will argue instead that World War II required eugenic laws, at least in appearance, to respect some form of reproductive choice.
@[email protected] 5/6/2008 7:04:32AM 2008] REINVENTING EUGENICS 325 between offenders who committed similar and equally serious crimes could not survive rational basis review.43 In spite of the limited scope of the holding, there is evidence to support a contention that Skinner was an anti-Nazi decision. Press coverage of Nazi sterilization policy peaked in 1941,44 a year before Skinner came out. The Court used rhetoric that could support an anti-Nazi reading, condemning Oklahoma’s law as interfering too much with “a sensitive and important area of human rights.” and depriving “individuals of a right which is basic to the. race—the right to have offspring.”45 But those who supported eugenic sterilization laws had powerful motivations, often believing intensely in the rightness of eugenics whether or not the Nazis were associated with it. These motivations might have made it easier to see distinctions between Nazi sterilization policies and American sterilization laws.
@[email protected] 5/6/2008 7:04:32AM 326 CARDOZO JOURNAL OF LAW & GENDER [Vol. 14:319 The laws passed between 1950 and 1967 to address the illegitimacy problem help explain what was considered objectionable about Nazi reproductive policy. For various reasons, eugenic laws had long targeted unwed mothers on public assistance. Some legislators and theorists emphasized the “unnecessary” costs of paying relief to unwed mothers and their children.51 Other eugenic theorists stressed that women who repeatedly had sexual intercourse outside of wedlock were necessarily defective and would have defective children.52 Following the theory of August Weismann, these theorists argued that immoral sexual behavior could deform a woman’s germ plasm and, in turn, produce defects in her children.53 By the 1950s, many no longer believed that unwed mothers were always hereditarily defective, but it was still often thought that the children of unwed mothers themselves had social problems, either because of bad heredity, exposure to a bad environment, or both.54 In the 1950s, a variety of newspapers suggested that America was experiencing an illegitimacy crisis.55 A greater proportion of unwed mothers were reported to be white,56 and a greater proportion of those on welfare were believed to be unwed mothers.57 Elyce Ferster wrote in 1966 that the new explanations and “arguments advanced in favor [of such compulsory sterilization] are the same as those used by proponents of eugenic sterilization. Society has the right to prevent itself from being swamped by mental illness, mental retardation, crime, poverty, etc.”58 In Ferster’s view, only the rhetoric of lawmakers had changed. Ferster stated that “eugenicists argued that the prevention of procreation was necessary because children of parents having these defects would have the same defects by reason of heredity. Now the claim is that children will have the same defects because the parents are too socially inadequate.”59 As Ferster predicted, between 1950 and 1967, many state legislatures were attracted to these arguments, but they ultimately rejected a compulsory sterilization 51 Baltimore Welfare Denounced, WASH. POST, Dec. 11, 1947 at 1 (explaining argument that welfare encouraged illegitimacy); see also William Sheridan, Jr., Illegitimacy and ADC, CHI. TRIB., May 9, 1955 at 20 (state legislator condemning costs imposed by unwed mothers on welfare).
@[email protected] 5/6/2008 7:04:32AM 328 CARDOZO JOURNAL OF LAW & GENDER [Vol. 14:319 sterilization legislation to cover “grossly sexually delinquent persons.”66 The Jolly bill provided that mothers of unwed children be brought before the State Eugenics board and be required to demonstrate why they should not be sterilized.67 After the birth of a third illegitimate child, there would be a rebuttable presumption in favor of sterilization.68 North Carolina rejected these proposals not because state legislators believed that unwed mothers could produce fit children, but rather because they believed that compulsory sterilization was an ineffective means of stemming the tide of unfit parents.69 Dr. John C. Burwell, a member of the neo- eugenic Human Betterment League of North Carolina, wrote: Recent legislative attempts in North Carolina to ameliorate the problem of illegitimacy by some form of compulsory legislation may be. detrimental. to those of us interested in voluntary sterilization. Detrimental in that these attempts leave an implication in the public mind that any consideration of sterilization is on a compulsory basis.70 B. Penalties and Wrong Choices At one point, other states considered compulsory sterilization in addition to legislation that would impose a short prison term and a fine on unwed mothers. In Illinois, for example, state Senator George M. Brydia proposed a compulsory sterilization provision for unwed mothers.71 Several alternative bills were met with greater approval, including Senate Bill No. 1066, which provided for a one-year prison sentence and a fine for women who had a second illegitimate child and a three to five-year sentence for mothers of three or more illegitimate children, and House Bill No. 1561, which allowed the Family Court to remove existing children from the custody of an unwed mother.72 Similar proposals passed in other states after related compulsory sterilization measures failed. In Louisiana, a 1958 commission charged with addressing the state’s illegitimacy problem considered, but ultimately rejected, a compulsory sterilization measure on the grounds that such laws were “intrinsically evil, completely immoral and violative of all concepts of Christianity.”73 The commission recommended, and the state eventually adopted, Act 75, which instead provided for a one-year prison sentence and a fine designed to deter unfit parents from having children.74 66 Id. at 92; see also Ellen Key Blunt, Sterilization Bill, WASH.POST, Jan. 27, 1965, at C1.