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Coercion in California: Eugenics Reconstituted in Welfare Reform, the Contracting of Reproductive Capcity, and Terms of Probation Janet Simmonds

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Coercion in California: Eugenics Reconstituted in Welfare Reform, the Contracting of Reproductive Capcity, and Terms of Probation Janet Simmonds Hastings Women’s Law Journal Volume 17 Article 5 Number 2 Summer 2006 1-1-2006 Coercion in California: Eugenics Reconstituted in Welfare Reform, the Contracting of Reproductive Capcity, and Terms of Probation Janet Simmonds Follow this and additional works at: https://repository.uchastings.edu/hwlj Part of the Law and Gender Commons Recommended Citation Janet Simmonds, Coercion in California: Eugenics Reconstituted in Welfare Reform, the Contracting of Reproductive Capcity, and Terms of Probation, 17 Hastings Women's L.J. 269 (2006). Available at: https://repository.uchastings.edu/hwlj/vol17/iss2/5 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Women’s Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. SIMMONDS - FOR CHRISTENSEN 4/12/2006 9:48 AM. Coercion in California: Eugenics Reconstituted in Welfare Reform, the Contracting of Reproductive Capacity, and Terms of Probation Janet Simmonds∗ I. INTRODUCTION In an era where courts are reaffirming landmark right to privacy decisions,1 such as Griswold v. Connecticut,2 Eisenstadt v. Baird,3 and Roe v. Wade,4 and expanding the scope of a constitutionally protected right to privacy, it is seemingly unthinkable to imagine that the exercise of such rights is being legally perverted to promote eugenic ideals. However, this is precisely what has been happening. In particular, this Note addresses how the state of California and private actors within the state are using legally sanctioned means to coerce women into making decisions regarding their reproductive capacities that are in effect, and perhaps in purpose, eugenic in nature. Today, the application of eugenics5 is thought of as a bygone horror. ∗ J.D. Candidate, May 2006, University of California, Hastings College of the Law; M.A., Anthropology, San Francisco State University, May 2002; B.A. Anthropology, Rice University, January 2000. I would like to thank Professor D. Kelly Weisberg and the members of the Hastings Women’s Law Journal, especially associate editor Sarah Orman and members Sandra Kain and Kristen Ross, for their assistance in editing this note. I would also like to express my gratitude to my family, in particular my mother Barbara and my husband Denver, for their unconditional support. 1. See Lawrence v. Texas, 539 U.S. 558 (2003) (holding the right to privacy protected by the Constitution includes the right to engage in intimate conduct undisturbed by the government). 2. Griswold v. Connecticut, 381 U.S. 479 (1965) (holding a Connecticut restriction on contraceptive use a violation of the constitutional right to marital privacy). 3. Eisenstadt v. Baird, 405 U.S. 438 (1972) (extending the holding of Griswold; unmarried individuals also have a constitutional right to privacy that precludes a restriction on contraceptives). 4. Roe v. Wade, 410 U.S. 113 (1973) (holding the constitutional right to privacy includes the right to abortion). 5. Eugenics is defined as “[t]he study of hereditary improvement of a breed or race, especially of human beings, by genetic control.” THE AMERICAN HERITAGE DICTIONARY (2nd ed. 1983). HASTINGS WOMEN’S LAW JOURNAL 269 SIMMONDS - FOR CHRISTENSEN 4/12/2006 9:48 AM 270 HASTINGS WOMEN’S LAW JOURNAL [Vol. 17:2 Most notably, eugenical thought was the basis of a series of crimes against humanity utilized to further the racist ideologies of fearsome regimes like that of Hitler6 or Pol Pot.7 Yet, the United States has its own intimate history with the pseudo-science.8 A dark moment in our judicial history is forever recorded in the Supreme Court opinion of Buck v. Bell.9 In Buck, the Court upheld a Virginia law that provided for the sterilization of persons who were institutionalized for insanity or imbecility.10 It is from this case that we get Justice Wendell Holmes’ infamous quote, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough.”11 The Court has since criticized the case, and even very recently had occasions to reference it, yet the Court never overturned the holding.12 6. JAMES M. GLASS, “LIFE UNWORTHY OF LIFE”: RACIAL PHOBIA AND MASS MURDER IN HITLER’S GERMANY (Basic Books 1997). In an effort to “[rebuild] a genetically fit race” after World War I, German officials used means of applied biology and negative eugenics to cleanse society of the diseased and criminal aspects of society: Jews and other undesirables. Id. at 31. From 1934-1945, an estimated 1 percent of Germans were sterilized under a 1933 sterilization law (aimed at Jews). Id. at 39. The German bureaucrats saw this as a way to save national funds and get rid of welfare for the biologically inferior. Id. The actual numbers of sterilizations performed by the Nazis is hard to pinpoint; the numbers vary from 360,000 to 3,500,000 between 1933 and 1945 alone. Paul A. Lombardo, Medicine, Eugenics, and the Supreme Court: From Coercive Sterilization to Reproductive Freedom, 13 J. CONTEMP. HEALTH L. & POL’Y 1, 12 (1996); Holocaust Museum Houston Holocaust Facts, http://www.hmh.org/ed_faqs.asp (last visited April 11, 2006). In the end, the Nazis began the “Final Solution” to completely rid Europe of Jews. Overall an estimated 5,830,000 Jews were killed during the Nazi regime, plus other undesirables, such as Communists, trade unionists, Socialists, Roma and Sinti (Gypsies), Jehovah’s Witnesses, Soviet citizens, Soviet prisoners of war, and homosexuals. 7. The Cambodian Genocide Program, http://www.yale.edu/cgp/ (last visited April 11, 2006). The Khmer Rouge regime, led by Pol Pot, killed an estimated 1,700,000 Cambodians (21 percent of the population) between 1975-1979. The purpose of the genocide was to reconstruct Cambodia as a Communist Peasant society. Thus, large numbers of professionals, military personnel, and ethnic minorities were killed. Those who were spared were relocated from the urban areas to the countryside, where they were starved and forced to work as laborers. Peace Pledge Union Information, Talking about Genocide- Genocides Cambodia 1975, http://www.ppu.org.uk/genocide/g_cambodia1.html (last visited April 11, 2006). 8. Eugenics has largely been debunked, but lives on in works such as that of RICHARD HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (The Free Press 1994). 9. 274 U.S. 200 (1927). 10. Id. 11. Id. at 207. 12. Justice Souter in his concurrence in Tenn. v. Lane, cited the case in reference to the “situation of disabled individuals before the courts.” 541 U.S. 509, 534 (2004). Buck was a footnote in Chief Justice Rehnquist’s opinion in Board of Trustees v. Garrett, 531 U.S. 356, 369 (2001): “The record does show that some states adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell. But there is no indication that any SIMMONDS - FOR CHRISTENSEN 4/12/2006 9:48 AM Summer 2006] COERCION IN CALIFORNIA 271 In 2003, California Governor Gray Davis issued a formal apology to the victims (and their families) who were sterilized under California’s eugenics laws.13 Davis said, “The people of California are deeply sorry for the suffering you endured over the years. Our hearts are heavy for the pain caused by eugenics. It was a sad and regrettable chapter in the state’s history, and it is one that must never be repeated again.”14 The strong implication in Davis’s statement is that eugenic measures that deny citizens their reproductive rights are a thing of the past. Yet, today in California, there exist several forms of coercive measures that result in the loss of reproductive rights. In this Note, I will first traverse the history of the eugenics movement in California. Next, I will look at the California welfare system’s use of a family cap (or child exclusion) program to limit the number of offspring born to poor women. Then I will discuss Project Prevention, a California- based organization that coerces poor, drug-addicted women into relinquishing their fertility for a drug fix. Next, I will briefly address the creative sentencing used in the probation terms of semi-permanent contraception proposed in two California cases. Finally, I will ground these discussions in the right to bodily integrity that is held within the constitutional right to privacy. Throughout this Note I will also focus on the trope of deserving poor versus undeserving poor that underlies our laws and attitudes. II. A BRIEF HISTORY OF EUGENICS IN CALIFORNIA A. EUGENICS The ideology of eugenics is at odds with the American ideals of freedom and bodily integrity. Even now, however, in a time when personal autonomy has been cemented by American jurisprudence, eugenical means of population control continue and thrive. These methods, which interfere with reproductive privacy, are not mere remnants from a bygone era when America played a leading role in the eugenics movement worldwide; these methods are recreated every day. 1. A General Look Rooted in hard science, eugenics promised to solve some of the biggest social problems plaguing the modern world. Eugenics comes from the Greek; it means “to be well born.”15 The eugenics movement developed state had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.” (Citation omitted.) 13.
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