Buck v. Bell
In Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927), the U.S. Supreme Court upheld a Virginia state law that authorized the forced sterilization of "feeble-minded" persons at certain state institutions. The case has been all but expressly abrogated by later Supreme Court opinions. Justice OLIVER WENDELL HOLMES JR., considered by many to be a champion of civil liberties, wrote the majority opinion for the court.
In 1924 the state of Virginia passed a law that provided for the sterilization of "mental defectives" and "feeble-minded" persons who were confined to certain state institutions, when, in the judgment of the superintendents of those institutions, "the best interests of the patients and of society" would be served by their being made incapable of producing offspring. On January 23, 1924, a Virginia state court adjudged 18-year-old Carrie Buck to be "feeble-minded" within the meaning of the Virginia law and committed her to the Virginia State Colony for Epileptics and Feeble-Minded.
Nine months later, A.S. Priddy, then superintendent of the Virginia institution, petitioned the institution's board of directors for an order compelling Buck to be sterilized by a surgical operation known as salpingectomy (the cutting of the fallopian tubes between the ovaries and the womb, and the tying of the ends next to the womb). After giving Buck notice and the opportunity to be heard at a hearing in which evidence was presented supporting the requested order, the board of directors approved the superintendent's petition.
Buck, her guardian, and her attorney challenged the Virginia sterilization law in the Circuit Court of Amherst County, Virginia. Their lawsuit was filed against Dr. J.H. Bell, who had succeeded Priddy as superintendent of the institution. The lawsuit raised two principle arguments.
First, the suit maintained that the sterilization law violated Buck's SUBSTANTIVE DUE PROCESS rights guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution. The suit did not challenge the procedures by which Buck was ordered sterilized. Instead, Buck and her representatives contended that the DUE PROCESS CLAUSE guarantees all adults the constitutional right to procreate and that the Virginia law violated this right.
Second, Buck's representatives argued that the Virginia law violated the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT, which guarantees that the law treat similarly situated people alike. The sterilization law failed to provide equal protection, they argued, because it singled out "feeble-minded" patients at only certain state institutions identified in the statute, while having no application to "feeble-minded" persons at other state institutions or to "feebleminded" persons who were not committed or confined.
The county court upheld the Virginia law and affirmed the sterilization order, and Buck and her representatives appealed to the Virginia Supreme Court of Appeals, which also affirmed. Buck v. Bell, 143 Va. 310, 130 S.E. 516 (Va. 1925). In affirming the lower court, the Virginia Supreme Court of Appeals said that neither the Equal Protection Clause nor the Due Process Clause were designed to interfere with the state's POLICE POWER to prescribe regulations that promote the health, peace, morals, education, and good order of the people. The state's police power, said the Virginia high court, gives the state legislature authority to make laws that spur industrial growth, develop resources, and add to Virginia's wealth and prosperity.
When the case reached the U.S. Supreme Court, Chief Justice WILLIAM HOWARD TAFT assigned the job of writing the opinion to Associate Justice Oliver Wendell Holmes Jr., then 86-years old. Holmes began his opinion by detailing the procedural safeguards that were afforded Buck, though neither Buck nor her representative had taken issue with them. Holmes noted that Buck had received notice of the superintendent's petition for sterilization, Buck was given the opportunity to appear at a hearing where the propriety of her sterilization was determined based on the evidence presented, and Buck had the right to appeal all the way to the highest court in the United States. "There can be no doubt," Holmes concluded, "that so far as procedure is concerned, the rights of the patient [we]re most carefully considered."
Holmes next addressed Buck's substantive due process claim that she had a constitutional liberty to procreate. "Carrie Buck is a feebleminded white woman …. She is the daughter of a feeble-minded mother … and the mother of an illegitimate feeble-minded child, "Holmes wrote. Then Holmes, a Civil War veteran, compared Buck's sacrifice of procreative freedom to the sacrifice other U.S. citizens make when called into military duty for their county: "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 for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence."
Noting that once sterilized, Buck could be released from the institution to become a productive member of society, Holmes reflected on what he thought to be the wider benefits of the Virginia sterilization law: "It is better for the entire 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."
As to the equal protection argument, Holmes said that "so far as the [institution's] operations enable those who otherwise must be kept confined to be returned to the world, and thus open the ASYLUM to others, the equality aimed at will be more nearly reached."
Seven justices joined Holmes's majority opinion upholding the Virginia sterilization law. Only Associate Justice PIERCE BUTLER dissented, but he did so without filing an opinion. The dissenting voices of history have been much louder.
Historians and legal scholars have criticized Holmes's opinion for being unenlightened and unduly harsh, pointing to portions of the opinion where Holmes assumed that DISABLED PERSONS were not among the "best citizens," that the "degenerate offspring" of "feeble-minded" persons would either become criminals or starve, and that unless such persons were sterilized society would become swamped by incompetence. The Supreme Court itself has since rendered several opinions that have all but expressly abrogated Holmes's opinion in Buck, including one opinion that overturned a forced sterilization law on grounds that "[m]arriage and procreation are fundamental to the very existence and survival of the race." Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).
In Holmes's defense, other historians and scholars have pointed out that the Virginia sterilization law was written by a democratically elected state legislature and upheld by three separate courts. They also note that compulsory sterilization was part of the Eugenics Movement, a popular but paternalistic reform movement that was based on the premise that the "lower classes" were too ignorant to practice BIRTH CONTROL or otherwise take care of themselves and that eradicating "feeble-minded" persons from the population was humane.
Scholars on both sides of the historical debate acknowledge that Holmes personally was an enthusiast for population control devices but question why Holmes's opinion in Buck v. Bell could not have been as prescient as his opinions on other subjects like the FIRST AMENDMENT, where his articulation and application of the "clear-and-present-danger" test revolutionized free speech JURISPRUDENCE. In the final analysis, Buck v. Bell serves as a striking counter example to Holmes's supporters who like to remember the former associate justice as an unyielding liberal champion of individual rights.