FORCED STERILIZATION: THE BLURRED LINE BETWEEN JUSTIFIED AND ILLEGITIMATE COERCION by Rosa M.E. Román A Thesis Submitted to the Faculty of The Harriet L. Wilkes Honors College in Partial Fulfillment of the Requirements for the Degree of Bachelor of Arts in Liberal Arts and Sciences with a Concentration in Political Science The Harriet L. Wilkes Honors College of Florida Atlantic University Jupiter, Florida May 2017 FORCED STERILIZATION: THE BLURRED LINE BETWEEN JUSTIFIED AND ILLEGITIMATE COERCION by Rosa M.E. Román This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Mark Tunick, and has been approved by members of her supervisory committee. It was submitted to the faculty of The Harriet L. Wilkes Honors College and was accepted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Liberal Arts and Sciences. SUPERVISORY COMMITTEE: __________________________ Dr. Mark Tunick __________________________ Dr. Kevin Lanning __________________________ Dr. Ellen Goldey Dean, Harriet L. Wilkes Honors College _____________ Date ii ACKNOWLEDGEMENTS First and foremost, to the people impacted by compulsory sterilization, thank you for sharing your stories. Your experiences allow people like to me to analyze a practice that for many was unjustified. To my thesis adviser, Dr. Mark Tunick, and second reader, Dr. Kevin Lanning, I extend my sincere gratitude. Thank you for your unwavering patience and critical advice and critiques, not only in pursuing this project, but throughout my undergraduate studies. Most importantly, thank you to my mother, Rosemary Jiménez, brothers, Destino and Max Román, and godparents, Catalina and Angel Rivera. Your emotional support and constant love have shaped me into the driven and hard-working woman I am today. Your ability to always see the best in me has allowed me to reach my full potential. This project reflects that motivation. iii ABSTRACT Author: Rosa M.E. Román Title: Forced Sterilization: The Blurred Line Between Justified and Illegitimate Coercion Institution: Harriet L. Wilkes Honors College of Florida Atlantic University Thesis Advisor: Dr. Mark Tunick Degree: Bachelor of Arts in Liberal Arts and Sciences Concentration: Political Science Year: 2017 Ninety years ago, the United States Supreme Court ruled in favor of a Virginia statute allowing state actors to forcibly sterilize those with hereditary forms of intellectual disability, in Buck v. Bell. Fifteen years later, the Court readdressed the concept of compulsory sterilization in the 1942 case, Skinner v. Oklahoma. Skinner v. Oklahoma failed to overturn Buck v. Bell, and as a result, the Supreme Court left an opening for state actors to forcibly sterilize members of their population. I consider the history of forced sterilization and the broad spectrum of views present today. In questioning if there’s a right to procreate, this thesis concentrates on various scenarios when compelling state interests are so strong that the infringement of that right may be warranted. If an individual were to waive that right, at what point should the means of coercion be deemed illegitimate? iv DEDICATION To my mother, Your sacrifices have allowed us success. All I do, I do for you. “My identity rests firmly and happily on one fact: I am my mother's daughter.” -Spanglish v TABLE OF CONTENTS Introduction 1 Chapter 1: History of Forced Sterilization 3 Legalizing Compulsory Sterilization 5 Family Planning Initiatives 7 Chapter 2: Forced Sterilization Today 11 Universal View 11 Recent Cases 14 Chapter 3: The Right to Procreate 18 United States: Constitutional Law 18 Compelling Interests 22 Chapter 4: Incentivizing Sterilization 27 Long-term Contraception 29 Chapter 5: Conclusion 33 Bibliography: 35 Introduction: Eugenics has long been used as a means to attain a more “desirable” population, while also serving as a way to combat social problems. When the movement experienced a surge in support from the late-1800s to the early-1900s, proponents’ successful lobbying led to the legalization of forced sterilization. More than half of the country would go on to adopt eugenics sterilization legislation, usually targeting the mentally disabled, imprisoned, and socially disadvantaged. As a result, thousands became subject to infertility procedures, with California taking the lead in terms of numbers. The two renowned Supreme Court decisions of Buck v. Bell (1927) and Skinner v. Oklahoma (1942) failed to overturn compulsory sterilization, thus allowing for the practice to continue. By the mid-1900s, family planning initiatives were at the forefront of compulsory sterilization, stripping Puerto Ricans, Mexican-Americans, and Native Americans of their ability to bear children. It was not until the mid to late-1900s when a shift in attitude led to a widespread repeal of state eugenics laws. Though the history of sterilization in the United States is dark, if done at one’s own accord, it can serve as an effective form of birth control. While views on forced sterilization today vary between culture, this is a notion generally concurred upon: “sterilization should only be provided with the full, free and informed consent of the individual” (WHO 1). Agencies sentiments recognize the right to procreate, yet through practice, China has efficiently limited that right in the name of a compelling interest. In f the United States, judicial repeals have diminished cases of forced sterilization, but recent occurrences demonstrate the loopholes left by legislators, consequently affecting the severely disabled and imprisoned. 1 The right to procreate, originally determined in Skinner v. Oklahoma (1942), is a right like any other—it can be limited. However, as the case also spells out, the strict scrutiny standard should be applied to future cases, as it’s vital to our existence. Since the practice is often unwarranted, there are only a limited number of scenarios when the practice is justified: overpopulation and severe disability. While laws addressing overpopulation are subject to constitutional review, the case of Ashley X, a severely disabled girl who underwent a hysterectomy, raises an ethical rather than a constitutional issue, but is a case of forced sterilization nonetheless. A person may waive their right to procreate, but the waiver must be voluntarily given; when incentives are involved, the line between persuasion and coercion is blurry. While using enticements to persuade the regular person is merely persuasive, for those whose circumstances are extreme, they can serve as a coercive tactic, thus stripping them of voluntary consent. In analyzing real and hypothetical cases when consent for infertility procedures or long-term contraception, like Norplant, was given in exchange for an enticement, I hope to make the line more distinct. 2 Chapter 1: History of Forced Sterilization In 1849, the famed biologist and physician, Gordon Lincecum, proposed the first compulsory sterilization bill. Had it been brought to a vote, Wisconsin would have allowed state actors to sterilize the mentally handicapped and those whose genes were deemed undesirable. While the concept appeared earlier on, it was not until 1883 that the term eugenics was coined by one of the movement’s earliest supporters, Sir Francis Galton. Coming from the Greek word eugenēs, meaning well-born, Galton defined eugenics as: “The science of improving stock, which is by no means confined to questions of judicious mating, but which, especially in the case of man takes cognizance of all influences that tend in however remote a degree to give the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable than they otherwise would have had” (Inquiries into Human Faculty 17). In other words, his hope was that the practice would result in a population with sought-after hereditary characteristics. Galton was inspired to explore this new area of focus by the work of his cousin, Charles Darwin. Darwin’s book, On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life, focused on natural selection and is now regarded as the foundation for evolutionary biology. According to Galton, the book was a “marked epoch” (Memories of My Life 287) in his development; he “devoured its contents” (288). Because of its profound effect, he became involved in anthropometrics and psychology, a pioneer for fingerprint identification, and a founder of biometric statistics, inventing approaches 3 like correlation and regression analysis. Additionally, as a proponent for nature playing a significant role in human behavior, he would go on to coin the phrase nature versus nature (Gillham 83). Galton’s promotion of eugenics allowed the movement to gain increasing support within the United States and catch attention elsewhere. One early supporter was Theodore Roosevelt, who served as President of the United States from 1901-1909. In a letter to Charles Davenport, a pioneer of the eugenics movement, dated January 3, 1913, he wrote: “My dear Mr Davenport, I agree with you if you mean, as I suppose you do, that society has no business to permit degenerates to reproduce their kind. It is really extraordinary that our people refuse to apply to human beings such elementary knowledge as every successful farmer is obliged to apply to his own stock breeding. Any group of farmers who permitted their best stock not to breed, and let all the increase come from the worst stock, would be treated as fit inmates for