A (sort of) brief history of early eugenic laws in the U.S.
THE LAW AND HUMAN STERILIZATION
OTIS H. CASTLE
(The following address of Otis H. Castle of the Los Angeles Bar was delivered at the fiftieth annual meeting of the American Bar Association, at Seattle, Washington, in July, 1928, and published in the Proceedings of that meeting. It is here reprinted verbatim, with the omission of a few paragraphs dealing with matters that have been covered earlier in this book.)
The use of the words "human sterilization" in the title is probably an unnecessary concession to the lawyer's passion for exactness. To every member of this group the word "sterilization" alone would convey the meaning intended. The fact remains, however, that there exist in this country to-day thousands of lawyers to whom it would suggest only such topics as sanitary precautions in restaurants and "a clean towel for every customer."
It means, of course, something vastly more radical, vastly more fundamental, vastly more controversial than that. It means the removal from a human being of his power of procreation by surgical operation under sanction of law. By the scientists it is usually called "eugenic sterilization," but that name emphasizes only one of the three purposes for which steriliztion laws are sometimes invoked. These are first, penal--a means of punishment of convicted criminals; second, therapeutic--a method of treatment of criminals and mental defectives; third, and probably most important, eugenic--an effort to improve the race by preventing persons likely to become criminals or public charges from being born. Incidental to all of these purposes is the desire to relieve the extreme congestion of our public institutions by making possible the release of certain inmates whose continued confinement would otherwise be necessary.
Sterilization, as has been said, is controversial, and that controversy is frequently conducted on the plane of emotion and prejudice rather than of logic. Even some of the judicial decisions bear marked resemblance to forensic exercises or anthologies of verse. On the one hand the opponents of sterilization feel that the power of procreation is "God given," and that to take it away under any circumstances is in itself little short of criminal and would open the door to all manner of dangerous social experiments. Its proponents, on the other hand, accept the majority dictum of the scientists that tendencies to criminal behavior and to mental and moral defectiveness are in some degree inheritable, and that bad heredity is in itself one of the maladjustments making for antisocial conduct; and they feel that this generation owes a solemn duty to future ones to protect them against the class of people to-day thronging our public institutions. They adopt their slogan from no less an author than Mr. Justice Holmes: "Three generations of imbeciles are enough."
I have been using the word "feel" advisedly, and we as lawyers realize that with respect to such matters it is natural for people to feel, and to feel strongly; but we further realize that it is advisable to think, and highly important to know. The future of sterilization as a penal, therapeutic, and eugenic measure can only be gauged in the light of the facts as to the results of its use in the past. It was in this spirit that the intensive study of sterilization in California, of which more will be said later, was undertaken, and it is in this spirit that I ask you to hear a summary of sterilization legislation in the United States. A chronological review is necessary because the statutes differ so greatly in detail as to lend themselves to no form of accurate classification.
The first act was passed by the Pennsylvania legislature in 1905 and was vetoed. On March 9, 1907, a statute was approved in Indiana, 1 providing for "such operation for the prevention of procreation as shall be decided safest and most effective" to be performed upon such inmates of institutions for confirmed criminals, idiots, imbeciles and rapists as should be deemed by a commission of two skilled surgeons, acting in conjunction with the institution physician and board of managers, to be unfit for procreation and improbable of improvement as to mental and physical condition. In 1920 the act was held unconstitutional as violative of the due process amendment of the federal constitution. The court, in a brief decision, emphasized the private nature of the hearings as well as the inmates' lack of opportunity to examine and cross-examine witnesses. 2
Washington, in 1909, adopted the first and only statute purely punitive in purpose. 3 This provided that "whenever any person shall be adjudged guilty of carnal abuse of a female person under the age of ten years, or of rape, or shall be adjudged to be an habitual criminal, the court may, in addition to such other punishment or confinement as may be imposed, direct an operation to be performed upon such person for the prevention of procreation." The act was held constitutional in 1911, the decision being that vasectomy is not a cruel punishment within the prohibition of the state constitution. 4 In 1921, Washington adopted another statute, 5 with purpose primarily eugenic and secondarily therapeutic, authorizing sterilization of feeble-minded and insane persons, epileptics, habitual criminals, moral degenerates and sexual perverts who are inmates of state institutions, when in the judgment of the Institutional Board of Health procreation is inadvisable and recovery improbable. The order of the Board is required to be served upon the inmate, or his legal guardian, who may appeal to the Superior Court of the county in which the institution is located.
California adopted its first sterilization statute in 1909, 6 enacted a new law repealing the old one in 1913, 7 and amended the act in 1917. 8 The law as it now stands provides for sterilization before discharge, with or without consent, of "any person who has been lawfully committed to any state hospital for the insane or the Sonoma State Home and who is afflicted with mental disease which may have been inherited and is likely to be transmitted to descendants, the various grades of feeble-mindedness, those suffering from perversion or marked departure from normal mentality, or from disease of a syphilitic nature." This provision is purely eugenic, but the act contains a therapeutic provision that whenever, in the opinion of prescribed officials, asexualization will be beneficial to the physical, mental or moral condition of certain recidivists in the state prisons who are also moral or sexual degenerates or perverts, they may order the operation. The act further provides for the sterilization by the state free of charge of any "idiot or fool" with the consent or upon the request of his parent or guardian. California also has in the act establishing the Pacific Colony for epileptics and feeble-minded persons a special provision for sterilization of inmates. 9 The California Penal Code further provides for the sterilization as "additional punishment" of any person adjudged guilty of carnal abuse of a female under the age of ten. 10 The California act of 1909 was held constitutional by Attorney General Webb in a well-considered opinion dated March 2, 1910. The Attorney General intimated that he would have more doubt, however, if castration were used instead of vasectomy.
Connecticut adopted a statute in 1909 which, as amended in 1919, 11 authorizes vasectomy or oophorectomy of inmates of the state prison and stats hospitals for the insane and feeble-minded when a majority of a board of three physicians shall, after examining the physical and mental condition of the inmate and his family history, determine that inadvisability of procreation and improbability of improvement exist. The law was upheld in an opinion rendered by the Attorney General of the State in 1912, on the ground that it is not class legislation and is a proper exercise of the police power in that "society owes to itself the duty of preventing procreation by persons who would produce children with an inherited tendency to crime, insanity, feeble-mindedness, idiocy or imbecility."
In 1911 New Jersey enacted a statute 12 providing for sterilization upon order of a board of examiners of inmates of state reformatories and charitable and penal institutions, including feeble-minded persons, epileptics, rapists, and confirmed criminals. This was held unconstitutional by the New Jersey Supreme Court in 1913, in a case involving an epileptic, as a denial of equal protection of the laws, in that its confinement solely to epileptics who were inmates of state institutions constituted too narrow a classification. The court felt alarm that such a law might prepare the way for further legislation, even to the extent of bringing "the philosophic theory of Malthus to bear upon the police power to the end that the tendency of population to outgrow its means of subsistence should be counteracted by surgical interference." 13
In Iowa the first act was passed in 1911. 14 It was repealed and a new statute substituted in 1913. 15 This provided for vasectomy or salpingectomy of persons twice convicted of felony or of sexual offenses other than "white slavery" and once convicted of "white slavery." It also authorized sterilization of inmates of public institutions for criminals, rapists, idiots, feeble-minded persons, imbeciles, and other defectives upon the decision of a majority of a board that procreation would produce children with a tendency to disease, degeneracy, or deformity, or that the physical or mental condition of the inmate would be improved thereby, or that the inmate was a sexual or moral pervert. Voluntary sterilization of persons afflicted with syphilis or epilepsy, upon application to the Board of Parole or a District Judge, was also authorized. This act was held unconstitutional by the United States District Court, Southern District of Iowa, Eastern Division, in 1914. 16 This was an action to enjoin the Board of Parole from subjecting a twice-convicted felon to the operation. Only the penal provisions of the statute were involved. It was held first, that vasectomy is a cruel and unusual punishment. The court could see no distinction in this regard between castration and vasectomy, holding that "the purpose, and the shame and humiliation and degradation and mental torture are the same in one case as in the other." The court further held that since there were no provisions for notice or hearing or examination of witnesses on the question of whether the felon had been twice convicted, the act was violative of due process, or, on the other hand, if it should be said that the statute automatically decided that question and nothing remained for the prison physician to do but to execute that which was already of record, then the act constituted a Bill of Attainder in that it inflicted a punishment, namely, deprivation of the right to enter into the marriage relation, for past conduct without a jury trial. The case reached the Supreme Court of the United States in 1917, but inasmuch as in 1915 the Iowa Act of 1913 had been repealed and a new act passed which did not apply to plaintiff, that court held that the question had become moot and reversed the decree granting the injunction and remanded the cause. 17 The present Iowa statute, adopted in 1915, 18 authorizes sterilization of inmates of any state institution who are afflicted with insanity, idiocy, imbecility, feeble-mindedness, or syphilis, with the written consent of the husband, wife, parent, guardian, or next of kin, upon the decision of the superintendent of the institution and a majority of its medical staff that it is for the best interests of the patient and of society.
Nevada, in 1911, passed a purely penal statute. 19 It was held unconstitutional in 1918 by the United States District Court for the District of Nevada as violative of the state constitutional provision against "cruel or unusual punishment," the court distinguishing State vs. Feilen, the Washington case, on the ground that there the prohibition was against "cruel" punishment only. 19a
New York was next to pass a sterilization statute, in 1912. 20 The act authorized sterilization of inmates of state hospitals for the insane and feeble-minded and charitable institutions, and of rapists and confirmed criminals in state prisons and reformatories, upon order of a board of one surgeon, one neurologist and one physician, after examining the mental and physical condition of the subject, his record and family history, the probability of improvement and the advisability of procreation. It was held unconstitutional by the Supreme Court of Albany County on the ground that its limitation to those persons of the classes indicated who were confined in institutions denied equal protection of the laws. 21 The court was evidently influenced by its belief that sterilization has no value whatever, either penal, therapeutic, or eugenic. The judgment of the Supreme Court was affirmed by the Appellate Division, 22 and the case was on appeal therefrom when in 1920 the statute was repealed and the question became moot.
North Dakota has a statute, approved in 1913, 23 for the sterilization of inmates of state prisons, reform schools, schools for the feeble-minded and hospitals for the insane, upon the order of a board after examining the physical and mental condition of the subject, the probability of improvement and the advisability of procreation. Voluntary sterilization upon written consent is also authorized.
Kansas, in 1913, adopted a sterilization statute 24 which it repealed by the substitution of a new one in 1917. 25 The act applies to inmates of state hospitals for the insane, epileptics or feeble-minded persons, and of the state school for girls, and of the state prison and reformatory. The operation is performed upon the decision of the chief medical officer and the governing board of any such institution and the Secretary of the State Board of Health that the mental or physical condition of an inmate would be improved thereby, or that procreation by such inmate would be likely to result in defective or feeble-minded children with criminal tendencies, and that the condition of such inmate is not likely so to improve as to make procreation desirable.
Wisconsin also adopted an act in 1913 26 providing for sterilization of inmates of all state and county institutions for the criminal, insane, feeble-minded, and epileptic. A special board is appointed by the State Board of Control to "take evidence and examine" into the mental and physical condition of such inmates, and if in a given case it decides that procreation is undesirable, the operation may be authorized by the Board of Control.
1913 was also the year of adoption of the first statute in Michigan. 27 The act applied solely to institutional inmates, and upon the ground that this was an unjustifiable sub-classification of the persons to whom it might normally apply, it was in 1918 declared unconstitutional as a denial of equal protection of the laws. 28 The decision followed and relied upon Smith vs. Board of Examiners, the New Jersey case. Michigan adopted a second statute in 1923 29 which, as amended, 30 applies to idiots, imbeciles, and the feebleminded, but not the insane, both within and without the state institutions. A board of three physicians examines the subject and the court may order sterilization of an adjudged defective whenever at a hearing it is found that procreation by such defective is probable and would produce children with an inherited tendency to mental defectiveness whom such defective would not be able to support, and that there is no possibility that the condition of such defective will improve so as to make procreation advisable. Voluntary sterilization of adjudged defectives upon order of court, and with the consent of parents or guardians, is also provided for. This law was held constitutional in 1925 by a court divided five to three as a proper and reasonable exercise of the police power, justified by the findings of biological science, with results beneficial both to the subject and to society, affording equal protection of the laws, and not violative of due process. 31
Nebraska adopted a law in 1915 32 for the sterilization of institutional inmates about to be paroled or discharged upon the decision of a medical board that procreation by such inmates would be harmful to society, but only with the written consent of the inmate, or his spouse, parent, guardian, or next of kin.
The New Hampshire statute adopted in 1917, 33 and amended in 1921, 34 is almost identical with that of Nebraska.
Oregon's first statute, dating from 1917, 35 provided for sterilization of feeble-minded, insane and epileptic persons, habitual criminals, moral degenerates, and sexual perverts who were inmates of institutions maintained at public expense, the operation to be ordered when, in the opinion of a majority of the State Board of Eugenics, procreation would be inadvisable and improvement in the mental condition of the subject improbable. In 1921 it was held by the Oregon Circuit Court for Marion County that this act, if confined in its operation to the inmates of certain state institutions, would constitute class legislation and that its procedural provisions failed to afford due process of law. 36 Oregon's second statute, 37 as amended, 38 applies to all "persons" who are feeble-minded, insane, epileptic, habitual criminals, moral degenerates, and sexual perverts, and who are or are likely to become a menace to society, and to persons convicted of rape, sodomy, or the crime against nature, or any other crime specified in Section 2099, Oregon Laws, or of attempting to commit such crimes. The context of the law shows that it is expected to be applied only to institutional inmates. Whenever the State Board of Eugenics deems that procreation by a person of the prescribed class would produce children with an inherited tendency to feeble-mindedness, insanity, epilepsy, criminality, or degeneracy, or who would become a menace or a ward of the state, an operation for sterilization may be performed with the consent of the defective and, in the case of the feebleminded and insane, with the further consent of his guardian, next of kin or nearest friend. If such consent cannot be had, the operation may be ordered if a court, after a trial, affirms the findings of the State Board. Oregon and Delaware are the two states in which the use of castration has predominated.
The South Dakota statute was adopted in 1917. 39 As amended in 1925, 40 it provides that if a county board of insanity deems it safe for any feeble-minded person to remain at large, he may avoid commitment to an institution by undergoing sterilization. Compulsory sterilization of inmates of the state school and home for the feeble-minded may be ordered by the State Commission for the Control of the Feebleminded upon a finding of inadvisability of procreation and improbability of improvement.
Montana has a statute, adopted in 1923, 41 providing for voluntary sterilization of hereditary idiots, the feeble-minded, insane, and epileptic who are institutional inmates, with the consent of the next of kin or legal guardian, and without such consent on order of the State Board of Eugenics after a hearing.
The Delaware statute of 1923 42 provides for sterilization of inmates of institutions for the insane, feeble-minded, and epileptic upon order of the superintendent of the institution and one physician and one alienist appointed by the board having control of such institution, upon examination and decision that procreation is inadvisable.
Now we come to Virginia and to Buck vs. Bell, the leading case. The act approved March 20, 1924, 43 recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives under careful safeguard; that sterilization may be effected in males by vasectomy, and in females by salpingectomy, without serious pain or substantial danger to life; that the commonwealth is supporting in various institutions many defective persons who, if now discharged, would become a menace, but if incapable of procreating might be discharged with safety and become selfsupporting, with benefit to themselves and to society, and that experience has shown that heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy, and crime. Whenever the superintendent of a state institution shall be of the opinion that it is for the best interests of the patient and of society, he may cause the operation to be performed upon inmates afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness, and epilepsy, upon complying with certain procedural requirements. These requirements include a hearing by the board of directors of the institution after notice to the inmate and to his legal guardian, and also to his parents, if any, if he be a minor. The evidence is reduced to writing and the right of appeal to the courts from the order of the board is carefully preserved.
Carrie Buck was a feeble-minded inmate of a state institution, the daughter of a feeble-minded mother, and herself the mother of an illegitimate feeble-minded child. The operation was ordered to be performed upon her. She appealed to the Circuit Court for Amherst County, and thence to the Supreme Court of Appeals, which upheld the order and the statute itself, specifically holding that the act provides equal protection of the laws and due process, and does not impose cruel and unusual punishment. 44 The case reached the Supreme Court of the United States in 1927, and that body, speaking through Mr. Justice Holmes (Mr. Justice Butler dissenting without written opinion), after stating that the procedural phases of the act were clearly sufficient and that the attack was not upon the procedure but upon the substantive law, said:
"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. 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. Jacobsen vs. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765. Three generations of imbeciles are enough.
"But, it is said, however it might be, if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitude outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course so far as the 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." 45
The judgment of the Virginia court was affirmed.
The Idaho statute of 1925 46 applies to all "persons" (the context, however, showing an intent to limit "persons" to institutional inmates) who are feeble-minded, insane, epileptic, habitual criminals, moral degenerates, or sexual perverts, and who are or are likely to become a menace to society. If the State Board of Eugenics deems that procreation by such a person would produce children with an inherited tendency to criminality, or any of the named diseases or defects, and that improvement in the condition of the defective is improbable, sterilization may be performed with the written consent of the defective and, in the case of feeble-minded and insane persons, his guardian, next of kin, or nearest friend. If such consent cannot be obtained, the operation may be ordered by a court of competent jurisdiction.
Minnesota 47 and Maine 48 both adopted acts in 1925 providing for voluntary sterilization of institutional inmates upon order of a board, with the consent of the patient in certain cases, and of his spouse, next of kin, or guardian.
Utah, in 1925, 49 passed a law for the sterilization of any inmate of a state institution who is afflicted with hereditary sexual criminal tendencies, insanity, idiocy, imbecility, feeble-mindedness, or epilepsy, if a special board finds that such inmate is the probable potential parent of socially inadequate offspring likewise afflicted and that the operation can be performed without detriment to his general health.
To summarize the existing legal situation, it may be said that a sterilization law of a penal nature has been held in Washington not to violate a constitutional provision against "cruel punishment," 50 but in certain Federal Courts such punishment, even though effected by means of vasectomy, has been held to be "cruel and unusual." 51 This question has never reached the United States Supreme Court, not being involved in Buck vs. Bell, but it is interesting to note that the Virginia Supreme Court of Appeals in its decision in that case went somewhat out of its way to cite State vs. Feilen approvingly and to find that vasectomy is "practically speaking harmless and one hundred per cent safe." 52
When sterilization laws are invoked as eugenic and therapeutic measures, the present tendency undoubtedly is to hold that, so far as their purpose is concerned, they are properly within the police power. The only dissent from this general position is in the New York and New Jersey cases, 53 which are decidedly opposed to the weight of authority. Even when a proper exercise of the police power, however, such a statute must afford equal protection of the laws and due process of law. In Michigan, New York, and New Jersey the limitation of sterilization laws to institutional inmates has been held to be a denial of equal protection of the laws, 54 but the Supreme Court of the United States in a later and more persuasive decision takes precisely the opposite view, characterizing the contention that equal protection is denied in such cases as "the usual last resort of constitutional arguments." 55 This accords with the holding of that court in other cases that a classification is not open to objection from the standpoint of equal protection of the laws, unless it is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion. 56
From the standpoint of due process of law, all that now can be said is that the Indiana Court held the act of that state to be lacking in due process, while the Virginia and United States Supreme Courts held the Virginia statute to afford due process. The Indiana statute contained virtually no provisions for trial, examination of witnesses, or appeal, while in the Virginia act such provisions were rather full. The statutes of most of the other states occupy a middle ground. Precisely where the line of lawfulness will be drawn is undetermined.
Nineteen states to-day have sterilization laws in good standing. Such laws in four other states have been held unconstitutional and have never been amended to meet the objections of the courts. Of the existing laws, three have been adjudicated and held constitutional and the others have not been litigated, although the constitutionality of several has been upheld in opinions by the attorneys general of the states concerned. The motive or purpose of eleven laws is both eugenic and therapeutic, of six purely eugenic, and of two eugenic, therapeutic, and penal. Seven statutes provide both for voluntary and compulsory sterilization, seven for compulsory sterilization only, and five for voluntary sterilization only, that is to say, sterilization with consent. At least five states prohibit unauthorized operations, except as a medical necessity, this type of legislation being similar to that providing for therapeutic abortions. Eight thousand five hundred and fifteen operations had been officially performed under the various sterilization laws in the United States prior to January 1, 1928, and of this total number 5,820 were in California.
The decision of the Supreme Court in Buck vs. Bell, together with the making available for the first time of the results of the important California experience, will doubtless greatly stimulate sterilization legislation. Indeed, new bills of this character are now pending in state legislatures. For this reason certain suggestions and recommendations may be in order.
(1) The investigation seems to establish that vasectomy and salpingectomy have no practical value as punishment pure and simple. If adopted as a penal measure, however, such provision should be in a separate act from that authorizing sterilization for therapeutic and eugenic reasons, in order that the latter may not be affected by any decision holding it unconstitutional as punishment. This is not to be construed as indicating an acceptance of the position that penal sterilization is cruel or unusual. On the contrary, this writer believes that the courts will swing to the opposite view, just as they did in the case of electrocution. In the light of the scientific testimony to the contrary, it can hardly be maintained that sterilization is, as a matter of fact, cruel. If the word "unusual" in our constitutions means that forms of punishment may not follow the advance of science, then those constitutions are out of pace with the time.
(2) The state itself should not perform sterilization purely as a therapeutic measure, without the application or consent of the patient or some one legally authorized to speak for him, together with medical opinion indicating the necessity of the operation. It should be noted that sterilization may have therapeutic value from two points of view, the first purely physical, as in the case of women with bad hearts, lungs, or kidneys, and the second psychological, as in the case of women who suffer a mental collapse through fear of pregnancy.
(3) In compulsory eugenic sterilization the first problem is as to the classes of persons to whom it should be applied. The safest formula is "any case of mental disease or defect which will probably produce incompetent children." The second problem is as to due process. In this regard, the writer believes, many of the states have been unduly lax. The procedural requirements for sterilization of an individual should hardly be less than for his commitment to an institution. There should be a hearing upon notice, with testimony reduced to writing and an opportunity to examine and cross-examine witnesses, and the right of appeal, at least upon questions of law, should be definitely preserved. Certain findings of fact should be necessary in all cases:
(a) Reasonable probability of procreation.
(b) Reasonable probability that the children will have an inherited tendency to defectiveness.
(4) An important subject which is suggested for further study is that of sterilization by surgeons in private practice, a comparatively widespread procedure. Should it be encouraged, or circumscribed, or left as it is? Should some record, open to proper officials, be required to be kept? As we have seen, at least five states prohibit such operations except as a medical necessity. When performed for such purpose there can surely be no objection to them anywhere, nor can there be when they are done pursuant to a court order based upon a finding of desirability. But how about the case of a man who, in the absence of any medical necessity, requests a surgeon to sterilize him, either because he realizes that he is eugenically unfit to be a father, or because he cannot assume the economic burdens of parenthood, or because he desires to be safely promiscuous? What should be the public policy in such cases? And what is the liability of the surgeon to the patient or to his wife or guardian? Here is food for thought.
This paper has been intended as a work of information rather than of propaganda, and I thank you for its reception in that spirit.
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1 Indiana laws 1907, chap. 215.
2 William vs. Smith, 190 Ind. 526, 121 N. E. 2.
3 Rem. and Bal. Code, sec. 2436.
4 State vs. Feilen, 71 Was. 65; 125 Pac. 75; 41 L. R. A. (N. S.) 418.
5 Washington Laws 1921, chap 53.
6 California Statutes 1909, chap. 270.
7 California Statutes 1913, chap. 363.
8 California Statutes 1917, chap. 489.
9 California Statutes 1917, chap. 776, sec. 42.
10 California Penal Code, sec. 646.
11 Connecticut General Statutes, Revision of 1918, as amended by Public Acts of 1919, chap. 69.
12 New Jersey Statutes 1911, chap. 190.
13 Smith vs. Board of Examiners, 85, N. J. Law 46; 88 At, 963
14 Acts of 34th Iowa General Assembly, chap. 129.
15 Acts of 35th Iowa General Assembly, chap. 187.
16 Davis vs. Berry, 216 Fed. 413.
17 Berry vs. Davis, 242 U. S.468.
18 Acts of 36th Iowa General Assembly, chap. 202.
19 Nevada Crimes and Punishments Act, sec. 28.
19a Mickle vs. Henrichs, 262 Fed. 687.
20 New York Laws 1912, chap. 445.
21 Osborn vs. Thomson, et al.
22 Osborn vs. Thomson, 169 N. Y. Sup. 638.
23 N. D. Laws 1912, chap. 56.
24 Kansas Session Laws 1913, chap. 305.
25 Kansas Session Laws 1917, chap. 299.
26 Wis. Laws 1913, chap. 693.
27 Michigan Public Acts 1913, Act 34.
28 Haynes vs. Lapeer, 201 Mich.138, 166, N. W. 938.
29 Michigan Public Acts 1923, Act. 285, sec. 2.
30 Michigan Public Acts 1925, Act 71.
31 Smith vs. Command (Mich.), 204 N. W. 140, 40 A. L. R. 515.
32 Neb. Laws 1915, chap. 237.
33 N. H. Laws 1917, chap. 181.
34 N. H. Laws 1921, chap. 152.
35 1917 Oregon Session Laws, chap. 279; 1919 Oregon Session laws, chap. 264.
36 State Board of Eugenics vs. Cline.
37 Oregon General Laws, chap. 194.
38 Oregon General Laws 1925, chap. 198.
39 S. D. Laws 1917, chap. 236; Revised Code of 1919, sec. 5538.
40 S. D. Laws 1925, chap. 174.
41 Mont. Session Laws 1923, chap. 164.
42 Del. Laws 1923, chap. 62.
43 Va. Acts 1924, chap. 394.
44 Buck vs. Bell, 143 Va. 310, 130 S. E. 516, 51 A. L. H. 865.
45 Buck vs. Bell, 274 U. S. 200, 71 L. Ed. 1000, 1002.
46 Idaho Session Laws 1925, chap. 194.
47 Minnesota H. F. 1925, chap. 154.
48 Maine Public Laws 1925, chap. 208.
49 Utah Laws 1925, chap. 82.
50 State vs. Feilen, supra.
51 Davis vs. Berry, supra; Mickle vs. Henrichs, supra.
52 Buck vs. Bell, 143 Va. 310, 130 S. E. 516, 51 A. L. R. 855, 859.
53 Osborn vs. Thomson, supra; Smith vs. Board of Examiners, supra.
54 Haynes vs. Lapeer, supra; Osborn vs. Thomson, supra; Smith vs. Board of Examiners, supra.
55 Buck vs. Bell, 274 U. S. 200, 71 L. Ed. 1000, 1002.
56 Stebbins vs. Riley, 286 U. S. 137, 143; 45 Sup. Ct. 424; Graves vs. Minnesota, 47 Sup. Ct. 122; Swiss Oil Corp. vs. Shanks, 47 Sup. Ct. 393.
OTIS H. CASTLE
(The following address of Otis H. Castle of the Los Angeles Bar was delivered at the fiftieth annual meeting of the American Bar Association, at Seattle, Washington, in July, 1928, and published in the Proceedings of that meeting. It is here reprinted verbatim, with the omission of a few paragraphs dealing with matters that have been covered earlier in this book.)
The use of the words "human sterilization" in the title is probably an unnecessary concession to the lawyer's passion for exactness. To every member of this group the word "sterilization" alone would convey the meaning intended. The fact remains, however, that there exist in this country to-day thousands of lawyers to whom it would suggest only such topics as sanitary precautions in restaurants and "a clean towel for every customer."
It means, of course, something vastly more radical, vastly more fundamental, vastly more controversial than that. It means the removal from a human being of his power of procreation by surgical operation under sanction of law. By the scientists it is usually called "eugenic sterilization," but that name emphasizes only one of the three purposes for which steriliztion laws are sometimes invoked. These are first, penal--a means of punishment of convicted criminals; second, therapeutic--a method of treatment of criminals and mental defectives; third, and probably most important, eugenic--an effort to improve the race by preventing persons likely to become criminals or public charges from being born. Incidental to all of these purposes is the desire to relieve the extreme congestion of our public institutions by making possible the release of certain inmates whose continued confinement would otherwise be necessary.
Sterilization, as has been said, is controversial, and that controversy is frequently conducted on the plane of emotion and prejudice rather than of logic. Even some of the judicial decisions bear marked resemblance to forensic exercises or anthologies of verse. On the one hand the opponents of sterilization feel that the power of procreation is "God given," and that to take it away under any circumstances is in itself little short of criminal and would open the door to all manner of dangerous social experiments. Its proponents, on the other hand, accept the majority dictum of the scientists that tendencies to criminal behavior and to mental and moral defectiveness are in some degree inheritable, and that bad heredity is in itself one of the maladjustments making for antisocial conduct; and they feel that this generation owes a solemn duty to future ones to protect them against the class of people to-day thronging our public institutions. They adopt their slogan from no less an author than Mr. Justice Holmes: "Three generations of imbeciles are enough."
I have been using the word "feel" advisedly, and we as lawyers realize that with respect to such matters it is natural for people to feel, and to feel strongly; but we further realize that it is advisable to think, and highly important to know. The future of sterilization as a penal, therapeutic, and eugenic measure can only be gauged in the light of the facts as to the results of its use in the past. It was in this spirit that the intensive study of sterilization in California, of which more will be said later, was undertaken, and it is in this spirit that I ask you to hear a summary of sterilization legislation in the United States. A chronological review is necessary because the statutes differ so greatly in detail as to lend themselves to no form of accurate classification.
The first act was passed by the Pennsylvania legislature in 1905 and was vetoed. On March 9, 1907, a statute was approved in Indiana, 1 providing for "such operation for the prevention of procreation as shall be decided safest and most effective" to be performed upon such inmates of institutions for confirmed criminals, idiots, imbeciles and rapists as should be deemed by a commission of two skilled surgeons, acting in conjunction with the institution physician and board of managers, to be unfit for procreation and improbable of improvement as to mental and physical condition. In 1920 the act was held unconstitutional as violative of the due process amendment of the federal constitution. The court, in a brief decision, emphasized the private nature of the hearings as well as the inmates' lack of opportunity to examine and cross-examine witnesses. 2
Washington, in 1909, adopted the first and only statute purely punitive in purpose. 3 This provided that "whenever any person shall be adjudged guilty of carnal abuse of a female person under the age of ten years, or of rape, or shall be adjudged to be an habitual criminal, the court may, in addition to such other punishment or confinement as may be imposed, direct an operation to be performed upon such person for the prevention of procreation." The act was held constitutional in 1911, the decision being that vasectomy is not a cruel punishment within the prohibition of the state constitution. 4 In 1921, Washington adopted another statute, 5 with purpose primarily eugenic and secondarily therapeutic, authorizing sterilization of feeble-minded and insane persons, epileptics, habitual criminals, moral degenerates and sexual perverts who are inmates of state institutions, when in the judgment of the Institutional Board of Health procreation is inadvisable and recovery improbable. The order of the Board is required to be served upon the inmate, or his legal guardian, who may appeal to the Superior Court of the county in which the institution is located.
California adopted its first sterilization statute in 1909, 6 enacted a new law repealing the old one in 1913, 7 and amended the act in 1917. 8 The law as it now stands provides for sterilization before discharge, with or without consent, of "any person who has been lawfully committed to any state hospital for the insane or the Sonoma State Home and who is afflicted with mental disease which may have been inherited and is likely to be transmitted to descendants, the various grades of feeble-mindedness, those suffering from perversion or marked departure from normal mentality, or from disease of a syphilitic nature." This provision is purely eugenic, but the act contains a therapeutic provision that whenever, in the opinion of prescribed officials, asexualization will be beneficial to the physical, mental or moral condition of certain recidivists in the state prisons who are also moral or sexual degenerates or perverts, they may order the operation. The act further provides for the sterilization by the state free of charge of any "idiot or fool" with the consent or upon the request of his parent or guardian. California also has in the act establishing the Pacific Colony for epileptics and feeble-minded persons a special provision for sterilization of inmates. 9 The California Penal Code further provides for the sterilization as "additional punishment" of any person adjudged guilty of carnal abuse of a female under the age of ten. 10 The California act of 1909 was held constitutional by Attorney General Webb in a well-considered opinion dated March 2, 1910. The Attorney General intimated that he would have more doubt, however, if castration were used instead of vasectomy.
Connecticut adopted a statute in 1909 which, as amended in 1919, 11 authorizes vasectomy or oophorectomy of inmates of the state prison and stats hospitals for the insane and feeble-minded when a majority of a board of three physicians shall, after examining the physical and mental condition of the inmate and his family history, determine that inadvisability of procreation and improbability of improvement exist. The law was upheld in an opinion rendered by the Attorney General of the State in 1912, on the ground that it is not class legislation and is a proper exercise of the police power in that "society owes to itself the duty of preventing procreation by persons who would produce children with an inherited tendency to crime, insanity, feeble-mindedness, idiocy or imbecility."
In 1911 New Jersey enacted a statute 12 providing for sterilization upon order of a board of examiners of inmates of state reformatories and charitable and penal institutions, including feeble-minded persons, epileptics, rapists, and confirmed criminals. This was held unconstitutional by the New Jersey Supreme Court in 1913, in a case involving an epileptic, as a denial of equal protection of the laws, in that its confinement solely to epileptics who were inmates of state institutions constituted too narrow a classification. The court felt alarm that such a law might prepare the way for further legislation, even to the extent of bringing "the philosophic theory of Malthus to bear upon the police power to the end that the tendency of population to outgrow its means of subsistence should be counteracted by surgical interference." 13
In Iowa the first act was passed in 1911. 14 It was repealed and a new statute substituted in 1913. 15 This provided for vasectomy or salpingectomy of persons twice convicted of felony or of sexual offenses other than "white slavery" and once convicted of "white slavery." It also authorized sterilization of inmates of public institutions for criminals, rapists, idiots, feeble-minded persons, imbeciles, and other defectives upon the decision of a majority of a board that procreation would produce children with a tendency to disease, degeneracy, or deformity, or that the physical or mental condition of the inmate would be improved thereby, or that the inmate was a sexual or moral pervert. Voluntary sterilization of persons afflicted with syphilis or epilepsy, upon application to the Board of Parole or a District Judge, was also authorized. This act was held unconstitutional by the United States District Court, Southern District of Iowa, Eastern Division, in 1914. 16 This was an action to enjoin the Board of Parole from subjecting a twice-convicted felon to the operation. Only the penal provisions of the statute were involved. It was held first, that vasectomy is a cruel and unusual punishment. The court could see no distinction in this regard between castration and vasectomy, holding that "the purpose, and the shame and humiliation and degradation and mental torture are the same in one case as in the other." The court further held that since there were no provisions for notice or hearing or examination of witnesses on the question of whether the felon had been twice convicted, the act was violative of due process, or, on the other hand, if it should be said that the statute automatically decided that question and nothing remained for the prison physician to do but to execute that which was already of record, then the act constituted a Bill of Attainder in that it inflicted a punishment, namely, deprivation of the right to enter into the marriage relation, for past conduct without a jury trial. The case reached the Supreme Court of the United States in 1917, but inasmuch as in 1915 the Iowa Act of 1913 had been repealed and a new act passed which did not apply to plaintiff, that court held that the question had become moot and reversed the decree granting the injunction and remanded the cause. 17 The present Iowa statute, adopted in 1915, 18 authorizes sterilization of inmates of any state institution who are afflicted with insanity, idiocy, imbecility, feeble-mindedness, or syphilis, with the written consent of the husband, wife, parent, guardian, or next of kin, upon the decision of the superintendent of the institution and a majority of its medical staff that it is for the best interests of the patient and of society.
Nevada, in 1911, passed a purely penal statute. 19 It was held unconstitutional in 1918 by the United States District Court for the District of Nevada as violative of the state constitutional provision against "cruel or unusual punishment," the court distinguishing State vs. Feilen, the Washington case, on the ground that there the prohibition was against "cruel" punishment only. 19a
New York was next to pass a sterilization statute, in 1912. 20 The act authorized sterilization of inmates of state hospitals for the insane and feeble-minded and charitable institutions, and of rapists and confirmed criminals in state prisons and reformatories, upon order of a board of one surgeon, one neurologist and one physician, after examining the mental and physical condition of the subject, his record and family history, the probability of improvement and the advisability of procreation. It was held unconstitutional by the Supreme Court of Albany County on the ground that its limitation to those persons of the classes indicated who were confined in institutions denied equal protection of the laws. 21 The court was evidently influenced by its belief that sterilization has no value whatever, either penal, therapeutic, or eugenic. The judgment of the Supreme Court was affirmed by the Appellate Division, 22 and the case was on appeal therefrom when in 1920 the statute was repealed and the question became moot.
North Dakota has a statute, approved in 1913, 23 for the sterilization of inmates of state prisons, reform schools, schools for the feeble-minded and hospitals for the insane, upon the order of a board after examining the physical and mental condition of the subject, the probability of improvement and the advisability of procreation. Voluntary sterilization upon written consent is also authorized.
Kansas, in 1913, adopted a sterilization statute 24 which it repealed by the substitution of a new one in 1917. 25 The act applies to inmates of state hospitals for the insane, epileptics or feeble-minded persons, and of the state school for girls, and of the state prison and reformatory. The operation is performed upon the decision of the chief medical officer and the governing board of any such institution and the Secretary of the State Board of Health that the mental or physical condition of an inmate would be improved thereby, or that procreation by such inmate would be likely to result in defective or feeble-minded children with criminal tendencies, and that the condition of such inmate is not likely so to improve as to make procreation desirable.
Wisconsin also adopted an act in 1913 26 providing for sterilization of inmates of all state and county institutions for the criminal, insane, feeble-minded, and epileptic. A special board is appointed by the State Board of Control to "take evidence and examine" into the mental and physical condition of such inmates, and if in a given case it decides that procreation is undesirable, the operation may be authorized by the Board of Control.
1913 was also the year of adoption of the first statute in Michigan. 27 The act applied solely to institutional inmates, and upon the ground that this was an unjustifiable sub-classification of the persons to whom it might normally apply, it was in 1918 declared unconstitutional as a denial of equal protection of the laws. 28 The decision followed and relied upon Smith vs. Board of Examiners, the New Jersey case. Michigan adopted a second statute in 1923 29 which, as amended, 30 applies to idiots, imbeciles, and the feebleminded, but not the insane, both within and without the state institutions. A board of three physicians examines the subject and the court may order sterilization of an adjudged defective whenever at a hearing it is found that procreation by such defective is probable and would produce children with an inherited tendency to mental defectiveness whom such defective would not be able to support, and that there is no possibility that the condition of such defective will improve so as to make procreation advisable. Voluntary sterilization of adjudged defectives upon order of court, and with the consent of parents or guardians, is also provided for. This law was held constitutional in 1925 by a court divided five to three as a proper and reasonable exercise of the police power, justified by the findings of biological science, with results beneficial both to the subject and to society, affording equal protection of the laws, and not violative of due process. 31
Nebraska adopted a law in 1915 32 for the sterilization of institutional inmates about to be paroled or discharged upon the decision of a medical board that procreation by such inmates would be harmful to society, but only with the written consent of the inmate, or his spouse, parent, guardian, or next of kin.
The New Hampshire statute adopted in 1917, 33 and amended in 1921, 34 is almost identical with that of Nebraska.
Oregon's first statute, dating from 1917, 35 provided for sterilization of feeble-minded, insane and epileptic persons, habitual criminals, moral degenerates, and sexual perverts who were inmates of institutions maintained at public expense, the operation to be ordered when, in the opinion of a majority of the State Board of Eugenics, procreation would be inadvisable and improvement in the mental condition of the subject improbable. In 1921 it was held by the Oregon Circuit Court for Marion County that this act, if confined in its operation to the inmates of certain state institutions, would constitute class legislation and that its procedural provisions failed to afford due process of law. 36 Oregon's second statute, 37 as amended, 38 applies to all "persons" who are feeble-minded, insane, epileptic, habitual criminals, moral degenerates, and sexual perverts, and who are or are likely to become a menace to society, and to persons convicted of rape, sodomy, or the crime against nature, or any other crime specified in Section 2099, Oregon Laws, or of attempting to commit such crimes. The context of the law shows that it is expected to be applied only to institutional inmates. Whenever the State Board of Eugenics deems that procreation by a person of the prescribed class would produce children with an inherited tendency to feeble-mindedness, insanity, epilepsy, criminality, or degeneracy, or who would become a menace or a ward of the state, an operation for sterilization may be performed with the consent of the defective and, in the case of the feebleminded and insane, with the further consent of his guardian, next of kin or nearest friend. If such consent cannot be had, the operation may be ordered if a court, after a trial, affirms the findings of the State Board. Oregon and Delaware are the two states in which the use of castration has predominated.
The South Dakota statute was adopted in 1917. 39 As amended in 1925, 40 it provides that if a county board of insanity deems it safe for any feeble-minded person to remain at large, he may avoid commitment to an institution by undergoing sterilization. Compulsory sterilization of inmates of the state school and home for the feeble-minded may be ordered by the State Commission for the Control of the Feebleminded upon a finding of inadvisability of procreation and improbability of improvement.
Montana has a statute, adopted in 1923, 41 providing for voluntary sterilization of hereditary idiots, the feeble-minded, insane, and epileptic who are institutional inmates, with the consent of the next of kin or legal guardian, and without such consent on order of the State Board of Eugenics after a hearing.
The Delaware statute of 1923 42 provides for sterilization of inmates of institutions for the insane, feeble-minded, and epileptic upon order of the superintendent of the institution and one physician and one alienist appointed by the board having control of such institution, upon examination and decision that procreation is inadvisable.
Now we come to Virginia and to Buck vs. Bell, the leading case. The act approved March 20, 1924, 43 recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives under careful safeguard; that sterilization may be effected in males by vasectomy, and in females by salpingectomy, without serious pain or substantial danger to life; that the commonwealth is supporting in various institutions many defective persons who, if now discharged, would become a menace, but if incapable of procreating might be discharged with safety and become selfsupporting, with benefit to themselves and to society, and that experience has shown that heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy, and crime. Whenever the superintendent of a state institution shall be of the opinion that it is for the best interests of the patient and of society, he may cause the operation to be performed upon inmates afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness, and epilepsy, upon complying with certain procedural requirements. These requirements include a hearing by the board of directors of the institution after notice to the inmate and to his legal guardian, and also to his parents, if any, if he be a minor. The evidence is reduced to writing and the right of appeal to the courts from the order of the board is carefully preserved.
Carrie Buck was a feeble-minded inmate of a state institution, the daughter of a feeble-minded mother, and herself the mother of an illegitimate feeble-minded child. The operation was ordered to be performed upon her. She appealed to the Circuit Court for Amherst County, and thence to the Supreme Court of Appeals, which upheld the order and the statute itself, specifically holding that the act provides equal protection of the laws and due process, and does not impose cruel and unusual punishment. 44 The case reached the Supreme Court of the United States in 1927, and that body, speaking through Mr. Justice Holmes (Mr. Justice Butler dissenting without written opinion), after stating that the procedural phases of the act were clearly sufficient and that the attack was not upon the procedure but upon the substantive law, said:
"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. 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. Jacobsen vs. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765. Three generations of imbeciles are enough.
"But, it is said, however it might be, if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitude outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course so far as the 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." 45
The judgment of the Virginia court was affirmed.
The Idaho statute of 1925 46 applies to all "persons" (the context, however, showing an intent to limit "persons" to institutional inmates) who are feeble-minded, insane, epileptic, habitual criminals, moral degenerates, or sexual perverts, and who are or are likely to become a menace to society. If the State Board of Eugenics deems that procreation by such a person would produce children with an inherited tendency to criminality, or any of the named diseases or defects, and that improvement in the condition of the defective is improbable, sterilization may be performed with the written consent of the defective and, in the case of feeble-minded and insane persons, his guardian, next of kin, or nearest friend. If such consent cannot be obtained, the operation may be ordered by a court of competent jurisdiction.
Minnesota 47 and Maine 48 both adopted acts in 1925 providing for voluntary sterilization of institutional inmates upon order of a board, with the consent of the patient in certain cases, and of his spouse, next of kin, or guardian.
Utah, in 1925, 49 passed a law for the sterilization of any inmate of a state institution who is afflicted with hereditary sexual criminal tendencies, insanity, idiocy, imbecility, feeble-mindedness, or epilepsy, if a special board finds that such inmate is the probable potential parent of socially inadequate offspring likewise afflicted and that the operation can be performed without detriment to his general health.
To summarize the existing legal situation, it may be said that a sterilization law of a penal nature has been held in Washington not to violate a constitutional provision against "cruel punishment," 50 but in certain Federal Courts such punishment, even though effected by means of vasectomy, has been held to be "cruel and unusual." 51 This question has never reached the United States Supreme Court, not being involved in Buck vs. Bell, but it is interesting to note that the Virginia Supreme Court of Appeals in its decision in that case went somewhat out of its way to cite State vs. Feilen approvingly and to find that vasectomy is "practically speaking harmless and one hundred per cent safe." 52
When sterilization laws are invoked as eugenic and therapeutic measures, the present tendency undoubtedly is to hold that, so far as their purpose is concerned, they are properly within the police power. The only dissent from this general position is in the New York and New Jersey cases, 53 which are decidedly opposed to the weight of authority. Even when a proper exercise of the police power, however, such a statute must afford equal protection of the laws and due process of law. In Michigan, New York, and New Jersey the limitation of sterilization laws to institutional inmates has been held to be a denial of equal protection of the laws, 54 but the Supreme Court of the United States in a later and more persuasive decision takes precisely the opposite view, characterizing the contention that equal protection is denied in such cases as "the usual last resort of constitutional arguments." 55 This accords with the holding of that court in other cases that a classification is not open to objection from the standpoint of equal protection of the laws, unless it is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion. 56
From the standpoint of due process of law, all that now can be said is that the Indiana Court held the act of that state to be lacking in due process, while the Virginia and United States Supreme Courts held the Virginia statute to afford due process. The Indiana statute contained virtually no provisions for trial, examination of witnesses, or appeal, while in the Virginia act such provisions were rather full. The statutes of most of the other states occupy a middle ground. Precisely where the line of lawfulness will be drawn is undetermined.
Nineteen states to-day have sterilization laws in good standing. Such laws in four other states have been held unconstitutional and have never been amended to meet the objections of the courts. Of the existing laws, three have been adjudicated and held constitutional and the others have not been litigated, although the constitutionality of several has been upheld in opinions by the attorneys general of the states concerned. The motive or purpose of eleven laws is both eugenic and therapeutic, of six purely eugenic, and of two eugenic, therapeutic, and penal. Seven statutes provide both for voluntary and compulsory sterilization, seven for compulsory sterilization only, and five for voluntary sterilization only, that is to say, sterilization with consent. At least five states prohibit unauthorized operations, except as a medical necessity, this type of legislation being similar to that providing for therapeutic abortions. Eight thousand five hundred and fifteen operations had been officially performed under the various sterilization laws in the United States prior to January 1, 1928, and of this total number 5,820 were in California.
The decision of the Supreme Court in Buck vs. Bell, together with the making available for the first time of the results of the important California experience, will doubtless greatly stimulate sterilization legislation. Indeed, new bills of this character are now pending in state legislatures. For this reason certain suggestions and recommendations may be in order.
(1) The investigation seems to establish that vasectomy and salpingectomy have no practical value as punishment pure and simple. If adopted as a penal measure, however, such provision should be in a separate act from that authorizing sterilization for therapeutic and eugenic reasons, in order that the latter may not be affected by any decision holding it unconstitutional as punishment. This is not to be construed as indicating an acceptance of the position that penal sterilization is cruel or unusual. On the contrary, this writer believes that the courts will swing to the opposite view, just as they did in the case of electrocution. In the light of the scientific testimony to the contrary, it can hardly be maintained that sterilization is, as a matter of fact, cruel. If the word "unusual" in our constitutions means that forms of punishment may not follow the advance of science, then those constitutions are out of pace with the time.
(2) The state itself should not perform sterilization purely as a therapeutic measure, without the application or consent of the patient or some one legally authorized to speak for him, together with medical opinion indicating the necessity of the operation. It should be noted that sterilization may have therapeutic value from two points of view, the first purely physical, as in the case of women with bad hearts, lungs, or kidneys, and the second psychological, as in the case of women who suffer a mental collapse through fear of pregnancy.
(3) In compulsory eugenic sterilization the first problem is as to the classes of persons to whom it should be applied. The safest formula is "any case of mental disease or defect which will probably produce incompetent children." The second problem is as to due process. In this regard, the writer believes, many of the states have been unduly lax. The procedural requirements for sterilization of an individual should hardly be less than for his commitment to an institution. There should be a hearing upon notice, with testimony reduced to writing and an opportunity to examine and cross-examine witnesses, and the right of appeal, at least upon questions of law, should be definitely preserved. Certain findings of fact should be necessary in all cases:
(a) Reasonable probability of procreation.
(b) Reasonable probability that the children will have an inherited tendency to defectiveness.
(4) An important subject which is suggested for further study is that of sterilization by surgeons in private practice, a comparatively widespread procedure. Should it be encouraged, or circumscribed, or left as it is? Should some record, open to proper officials, be required to be kept? As we have seen, at least five states prohibit such operations except as a medical necessity. When performed for such purpose there can surely be no objection to them anywhere, nor can there be when they are done pursuant to a court order based upon a finding of desirability. But how about the case of a man who, in the absence of any medical necessity, requests a surgeon to sterilize him, either because he realizes that he is eugenically unfit to be a father, or because he cannot assume the economic burdens of parenthood, or because he desires to be safely promiscuous? What should be the public policy in such cases? And what is the liability of the surgeon to the patient or to his wife or guardian? Here is food for thought.
This paper has been intended as a work of information rather than of propaganda, and I thank you for its reception in that spirit.
____________________
1 Indiana laws 1907, chap. 215.
2 William vs. Smith, 190 Ind. 526, 121 N. E. 2.
3 Rem. and Bal. Code, sec. 2436.
4 State vs. Feilen, 71 Was. 65; 125 Pac. 75; 41 L. R. A. (N. S.) 418.
5 Washington Laws 1921, chap 53.
6 California Statutes 1909, chap. 270.
7 California Statutes 1913, chap. 363.
8 California Statutes 1917, chap. 489.
9 California Statutes 1917, chap. 776, sec. 42.
10 California Penal Code, sec. 646.
11 Connecticut General Statutes, Revision of 1918, as amended by Public Acts of 1919, chap. 69.
12 New Jersey Statutes 1911, chap. 190.
13 Smith vs. Board of Examiners, 85, N. J. Law 46; 88 At, 963
14 Acts of 34th Iowa General Assembly, chap. 129.
15 Acts of 35th Iowa General Assembly, chap. 187.
16 Davis vs. Berry, 216 Fed. 413.
17 Berry vs. Davis, 242 U. S.468.
18 Acts of 36th Iowa General Assembly, chap. 202.
19 Nevada Crimes and Punishments Act, sec. 28.
19a Mickle vs. Henrichs, 262 Fed. 687.
20 New York Laws 1912, chap. 445.
21 Osborn vs. Thomson, et al.
22 Osborn vs. Thomson, 169 N. Y. Sup. 638.
23 N. D. Laws 1912, chap. 56.
24 Kansas Session Laws 1913, chap. 305.
25 Kansas Session Laws 1917, chap. 299.
26 Wis. Laws 1913, chap. 693.
27 Michigan Public Acts 1913, Act 34.
28 Haynes vs. Lapeer, 201 Mich.138, 166, N. W. 938.
29 Michigan Public Acts 1923, Act. 285, sec. 2.
30 Michigan Public Acts 1925, Act 71.
31 Smith vs. Command (Mich.), 204 N. W. 140, 40 A. L. R. 515.
32 Neb. Laws 1915, chap. 237.
33 N. H. Laws 1917, chap. 181.
34 N. H. Laws 1921, chap. 152.
35 1917 Oregon Session Laws, chap. 279; 1919 Oregon Session laws, chap. 264.
36 State Board of Eugenics vs. Cline.
37 Oregon General Laws, chap. 194.
38 Oregon General Laws 1925, chap. 198.
39 S. D. Laws 1917, chap. 236; Revised Code of 1919, sec. 5538.
40 S. D. Laws 1925, chap. 174.
41 Mont. Session Laws 1923, chap. 164.
42 Del. Laws 1923, chap. 62.
43 Va. Acts 1924, chap. 394.
44 Buck vs. Bell, 143 Va. 310, 130 S. E. 516, 51 A. L. H. 865.
45 Buck vs. Bell, 274 U. S. 200, 71 L. Ed. 1000, 1002.
46 Idaho Session Laws 1925, chap. 194.
47 Minnesota H. F. 1925, chap. 154.
48 Maine Public Laws 1925, chap. 208.
49 Utah Laws 1925, chap. 82.
50 State vs. Feilen, supra.
51 Davis vs. Berry, supra; Mickle vs. Henrichs, supra.
52 Buck vs. Bell, 143 Va. 310, 130 S. E. 516, 51 A. L. R. 855, 859.
53 Osborn vs. Thomson, supra; Smith vs. Board of Examiners, supra.
54 Haynes vs. Lapeer, supra; Osborn vs. Thomson, supra; Smith vs. Board of Examiners, supra.
55 Buck vs. Bell, 274 U. S. 200, 71 L. Ed. 1000, 1002.
56 Stebbins vs. Riley, 286 U. S. 137, 143; 45 Sup. Ct. 424; Graves vs. Minnesota, 47 Sup. Ct. 122; Swiss Oil Corp. vs. Shanks, 47 Sup. Ct. 393.
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