Carrie
Buck was guilty of nothing but having been born. Seventeen years old and an
“inmate” of the Virginia State Colony for Epileptics and Feebleminded, she was
alleged to be “mentally defective.” So too was her mother and her infant
daughter, the latter being the product of rape by one of her foster parents’
relatives. (The circumstances of the baby’s conception may be a reason the
family had Carrie and the child committed.)
Background
The
year was 1924, and the Old Dominion had recently decreed that people like Carrie
could be involuntarily sterilized to prevent them having “socially inadequate”
offspring. So, the state went to court to get approval for Carrie to be
neutered. She probably wasn’t at the trial, but if she had been she would have
seen a sham proceeding.
The
players in this farce included the institution’s superintendent, Dr. Albert
Priddy, Commonwealth Attorney Aubrey Strode, and Carrie’s court-appointed
attorney, Irving Whitehead. All three were proponents of the pseudo-science
known as “eugenics,” the moralistic movement that sought to improve the human
gene pool by breeding out traits that supposedly cause various social ills.
Among the “inadequate classes” of persons that eugenics targeted were the
feeble-minded, insane, criminalistic, epileptic, inebriate, blind, deaf,
deformed, diseased and dependent.
Virginia’s
law was not as strident as the most hard-core eugenics statutes, but it did
reflect a belief that some people who are “a danger to society” could be
discharged from state institutions if they were unable to bear children. “The
health of the patient and the welfare of society may be promoted in certain
cases by the sterilization of mental defectives,” the law said. Carrie Buck was
thought to be such a person, and her case was orchestrated to test the
constitutionality of the Virginia law.
Trial
and Appeal
At
the trial, Mr. Strode presented Dr. Priddy and numerous other “expert
witnesses” to prove Carrie’s “feeblemindedness.” Her attorney, Mr. Whitehead—who
had served on the state institution’s board of directors and would be
disqualified by today’s conflict-of-interest-standards—presented no witnesses
on his client’s behalf. Not surprisingly, the Virginia trial and appellate
courts quickly decided that the law was valid and that the “inmate” met the
standards for sterilization. Then, as planned, Whitehead petitioned the US
Supreme Court to hear Carrie’s appeal and get a final imprimatur of
constitutionality.
On
May 2, 1927, as the clerk called “Oyez! Oyez! Oyez!” (“hear ye” in Law French),
nine berobed justices entered the Supreme Court chamber to announce the decision
in Buck v. Bell. (Dr. Priddy had been succeed by Dr. J.H. Bell as
superintendent, hence he was the respondent.)
Presiding
was Chief Justice William H. Taft, the only ex-President ever to serve on the court.
To Taft’s right, as is the tradition, was the senior associate justice, Oliver
Wendell Holmes, Jr., who had been on the high court for a quarter century. When
he retired five years later at the age of 90, he completed an incredible
record: a total of 50 years in judicial robes, including 20 years on the
highest court of Massachusetts.
Holmes’ long tenure, many opinions, and
distinguished scholarship make him one of the titans of American jurisprudence.
But titans can be wrong, no matter how clearly and forcefully they state their
views. Holmes
was influenced by Social Darwinism, the now discredited belief that “survival
of the fittest” can be used to understand the evolution of whole societies, not
just animal species. Eugenics had not yet been tainted by the Nazi’s later
enthusiasm for it, and it seems that few questioned its underlying morality. They
simply analogized it to the selective breeding of animals.
The
Decision
With
strong voice and imposing manner, Holmes read his rather short (1,100 word)
opinion. After summarizing Virginia law and the state’s justification for it,
he detailed the legislature’s built-in safeguards: notice to the inmate of the
state’s intentions, appointment of a guardian, a formal hearing, the right to
appeal, etc. etc. All very proper. As Holmes put it, “the rights of the patient
are most carefully considered.” He added that he had “no doubt” that in respect
of procedural safeguards, Carrie had been given due process of law.
But
Carrie’s appellate lawyers were not arguing that the procedures were wanting.
They argued that the very substance of the law was improper; that even if
procedural steps were in place, her fundamental rights under the constitution
had been violated. In other words, Carrie Buck’s case rested on the proposition
that you can’t enforce an unfair law fairly, and such a law still
violates one’s right to “due process.”
Scornful
of due process arguments and disinclined to second guess a state legislature,
Holmes disposed of Carrie’s position rather summarily. He wrote than the facts
proved she was likely to be the parent of “socially inadequate offspring,” that
sterilization would not harm her health, and that the good of society would be
promoted if the surgery were carried out. Then the crusty, thrice-wounded Civil
War veteran revealed his true colors:
We have
seen more than once that the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call upon those who already
sap the strength of the State [to make] these lesser sacrifices [such as
sterilization] … in order to prevent our being swamped with incompetence. 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. The principle that
sustains compulsory vaccination is broad enough to cover cutting the Fallopian
tubes. Three generations of imbeciles are enough.
Whoa! Did he just
write that? “Three generations of imbeciles are enough”?! That sentence jumped
off the page when I first read it, and it haunts me today. It is hard, if not
impossible, to find a less empathic statement in a Supreme Court opinion. And
judged by today’s standards, the outcome is nothing short of draconian: Carrie
Buck, a teenage rape victim, was to be involuntarily sterilized by the
Commonwealth of Virginia on the basis of faulty science, faulty facts, and
flaming bigotry against the disabled.
Buck v. Bell
Today
In 1881 Holmes had
published a classic treatise, The Common Law, in which he wrote:
The life
of the law has not been logic; it has been experience. The felt necessities of
the time, the prevalent moral and political theories, institutions of public
policy, avowed or unconscious, even the prejudices which judges share with
their fellow men, have had a good deal more to do than the syllogism in determining
the rules by which men should be governed. The law embodies the story of a
nation’s development through many centuries and it cannot be dealt with as if
it contained only the axioms and corollaries of a book of mathematics.
It is clear that
the “felt necessities” of the 1920s greatly influenced the Supreme Court when
it decided Buck v. Bell, and there was little disagreement at the time
about the outcome’s rectitude. There was no sense of moral outrage. There were
no vituperative editorials, no calls for impeachment. Only one justice, Pierce
Butler, dissented from Holmes’ decision, and he declined to write an opinion.
More than ninety years
later the case has not been forgotten. It has never been explicitly overruled, but
its principles are dead. Holmes would understand why the “prevalent moral and
political theories” of today inspire contempt for his decision.
The Aftermath
Carrie Buck was
released from the Virginia Colony shortly after her tubal ligation. She went on
to marry twice and is said to have spent much of her remaining 56 years helping
others. But she always regretted that she could not have more children. “They
done me wrong. They done us all wrong,” she is quoted as saying.
She died in 1983 at
the age of 76 and is buried in Charlottesville, VA, near the grave of her
illegitimate child, Vivian, who died of measles at age eight with no sign of
mental handicap.
# # #
Next: Cases in
the wake of Buck v. Bell.
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