FORCED :

THE BLURRED LINE BETWEEN JUSTIFIED AND ILLEGITIMATE

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

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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 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.

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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 Supreme Court ruled in favor of a statute allowing state actors to forcibly sterilize those with hereditary forms of intellectual , in

Buck v. Bell. Fifteen years later, the Court readdressed the concept of compulsory sterilization in the 1942 case, Skinner v. . 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?

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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

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TABLE OF CONTENTS

Introduction 1 Chapter 1: History of Forced Sterilization 3 Legalizing Compulsory Sterilization 5 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 sterilization legislation, usually targeting the mentally disabled, imprisoned, and socially disadvantaged. As a result, thousands became subject to procedures, with 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, 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 . 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 of the individual” (WHO 1). Agencies sentiments recognize the right to procreate, yet through practice, 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.

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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 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 , 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.

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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, 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 an asylum. Yet we fail to understand that such conduct is rational compared

to the conduct of a nation which permits unlimited breeding from the worst stocks,

physically and morally, while it encourages or connives at the cold selfishness or the

twisted sentimentality as a result of which the men and women ought to marry, and if

married have large , remain celebates or have no children or only one or two.

Some day we will realize that the prime duty of the good citizen of the right type is to

leave his or her blood behind him in the world; and that we have no business to permit

the perpetuation of citizens of the wrong type.”

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With leaders supporting the practice, it’s no shock academia followed suit. By 1914, forty-four colleges and universities were offering eugenics instruction, including Harvard, the

Massachusetts Institute of Technology, and New York University (“Eugenics in The Colleges”

186).

The ever-growing acceptance allowed for the Eugenics Records Office to take shape.

Founded by the Carnegie Institute of Station (CIW) for Experimental Evolution in

1910, the office was established to conduct biological research that would “serve eugenical interests in the capacity of repository and clearing house” (Farber 243-44). With the help of

Director Charles Davenport, the organization was able to attain substantial funding from well- known private investors like Mrs. E.H. Harriman, John Harvey Kellogg, and the Rockefeller family. While Davenport’s first studies dealt with physical traits, they soon evolved to traits that were not as easy to quantify, like intelligence (Witkowski, library.cshl.edu). With the help of

Superintendent Henry Laughlin, the association successfully lobbied for state sterilization and national restriction laws. As time progressed, however, the program that was once regarded as ahead of its time began to fizzle out. In 1935, The Carnegie Institute sent a review panel to inspect the office’s research; the panel concluded that their research did not have any scientific merit, thus funding was withdrawn and in 1940, the Eugenics Records Office closed

(Kevles 199).

Legalizing Compulsory Sterilization

While mandating sterilization was on the mind of one legislator as early as 1849, it was not until 1907 that ’s state legislature passed the first compulsory sterilization law. Then

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Governor J. Frank Hanly approved, giving the state the authority to “prevent procreation of confirmed criminals, idiots, and rapists” (1907 Indiana Eugenics Law 377). According to the Indiana Historical Bureau, by the time all Indiana sterilization acts were repealed in 1974, approximately 2,500 people in state custody had already been sterilized (IN.gov).

Since the first eugenic sterilization legislation was passed in Indiana, thirty-one states followed suit, yet none were as “effective” as California’s. In 1909, California followed Indiana and Washington as the third state to adopt forced sterilization legislation. By the time California overturned eugenic statutes in 1979, the state was responsible for approximately 20,000 procedures; put into perspective, that’s approximately one-third of the nationwide total—from

1909 to the 1960s (Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America

84).

With growing fears that state actors were overstepping their boundaries, the Supreme

Court would take on two cases regarding sterilization laws, Skinner v. Oklahoma (1942) and

Buck v. Bell (1927). I introduce these cases briefly here and provide a detailed legal analysis in

Chapter Three.

The first Supreme Court case focusing on compulsory sterilization was Buck v. Bell of

1927. Under the 1924 Virginia Eugenical Sterilization Act, Carrie Buck, a “feedle-minded” white woman, was subject to salpingectomy: surgical removal of the fallopian tubes. The intent was to “prevent those who are manifestly unfit from continuing their kind.”1 In an 8-1 decision, compulsory sterilization was upheld to weed out imbecility and protect the health of the state.

1 See 274 U.S. 200 (1927) at 207

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Fifteen years later, the practice was readdressed in Skinner v. Oklahoma of 1942. The petitioner, Skinner, was convicted of three , including stealing chickens. Under

Oklahoma’s Habitual Criminal Act of 1935, those convicted of two or more crimes could be subject to compulsory sterilization. Because there was an exclusion for white-collar crimes, such as embezzlement and political offenses, it was determined that the legislation violated the Equal

Protection Clause of the 14th amendment. The holding unanimously reversed the law based on the exclusion, not the practice of sterilization, thus failing to overturn Buck v. Bell.

Since neither decision declared government mandated sterilization to necessarily violate a constitutional right to procreate, state actors continued to forcibly sterilize members of the population, stripping them of their right to procreate, as was the case in Indiana and California, among others.

Family Planning Initiatives

The War on , declared by Lyndon Johnson in 1964, resulted in a disbursement of funds to family planning initiatives (“STERILIZED in the Name of ” 1129).

Different than procedures carried out by state institutions, family planning initiatives allowed for compulsory sterilization procedures to be carried out on individuals who were not institutionalized. Physicians were able to effectively target Puerto Rican, Mexican-American, and Native American women by not presenting all the information, having women sign consent forms while under duress, or carrying out the procedure without any form of valid consent.

In , increasing unemployment and growing poverty led to population control programs. In an effort to combat the two issues, Law 116 of 1937, permitting eugenics

7 sterilization, was passed. In response, numerous birth control clinics were opened throughout the island. The notorious procedure, , was so well-known in Puerto Rico that it was referred to as la operación, meaning the operation. In a combined effort, family planning agencies and physicians promoted the procedure over other forms of birth control:

“A good many physicians on the Island were already aware of the problems of the

population, the prestige of the private hospital was great, and a number of physicians

came informally to learn more about operative techniques. Many physicians thought […]

contraception methods are too difficult for lower class Puerto Ricans and they regarded

post-partum sterilization as the most feasible solution to the problems” (Stycos 3).

Many women were unaware that the procedure was permanent. The misinformation provided by physicians led patients to believe that tubal ligation was reversible, due to the nature of the operation: tying tubes. The connotation attached to tying is the ease of untying, which rural women took as a given. Consequentially, by 1965, one third of women of childbearing age (20-

49) had been sterilized—the highest percentage anywhere at the time.2

Ten years later, Madrigal v. Quilligan (1975) would bring to light the sterilization of

Mexican-American women in the 1960s and 70s at the Los Angeles County-USC Medical

Center. Numerous women who were admitted to give birth left the hospital sterilized. While many only spoke Spanish, they signed consent forms in English. Their signature was obtained hours or minutes before or after labor, signifying duress. As a means to obtain written consent, some doctors went as far as to deny patients pain medicine until the paperwork was signed (No

2 According to data provided by the 1965 Master Sample Survey of Health and Welfare in Puerto Rico. Survey analyzed on page 344 of “The Role of Sterilization in Controlling Puerto Rican Fertility” by Harriet B. Presser. Over 34% of the 1,071 sampled women had been sterilized. 8

Más Bebés). The class-action lawsuit filed by ten women made the argument that they had the right to bear children under Roe v. Wade (1973). While the judge acknowledged their “severe emotional and physical stress because of these operations” (“STERILIZED in the Name of

Public Health” 1135), the defendant persuaded him that the operation would not have been conducted had the doctor believed the patients not requested and understood the nature of the procedure, although as previously indicated, the women involved claim otherwise. While the decision did not pan out in their favor, the case is a prime example of coercive population control.

Heavily impacted by the War on Poverty, Native American women were also targeted

(Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America 202). With funding from the Department of Health, Education, and Welfare, the Indian Health Service sterilized 3,406 women without their permission in New , , Oklahoma, and South

Dakota, as determined in a 1976 study conducted by the Government Accounting Office.3

It was only when the United States was forced to face the horrifying under Nazi rule, did a noticeable shift take place. While not instantaneous, as warped family planning initiatives depict, there was now a call to end forced sterilization. “Activists condemned practices they associated with , , , and exploitation” (Eugenic Nation: Faults and

Frontiers of Better Breeding in Modern America 209). By the 1960s-70s, repeals in legislation

3 Assessed on page 3 and 4 of General Accounting Office. No. B-164031(5): http://www.gao.gov/assets/120/117355.pdf. “Several different consent forms were used. The most widely used form did not (1) indicate that the basic elements of informed consent had been presented orally to the patient, (2) contain written summaries of the oral presentation, and (3) contain a statement at the top of the form notifying subjects of their right to withdraw consent. One consent form document did meet the Indian Health Service requirements, but when used was filled out incorrectly.” 9 made it more difficult for state actors to forcibly sterilize members of the population. With less cases, the practice became a topic of little discussion.

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Chapter 2: Forced Sterilization Today

Today, when people in the United States speak of forced sterilization, it’s often in terms of history. Internationally, however, the concept is still confronted—addressed because of more recent occurrences or lack of legislation banning the practice. Expressing the universal view, international judgements and statements condemn compulsory sterilization, recognizing that although sterilization can be an effective form of contraception, it can also be an illegitimate practice. Because of this expressed sentiment and the previously mentioned 1960s-70s transition, there are only a limited number of forced sterilization occurrences today. Nevertheless, these instances prove the need for loopholes in legislation to be addressed.

Universal View

In the past, the universal view on forced sterilization was more accepting, with countries like , India, and adapting their own programs. However, globally, state actors often unjustly targeted minority groups as they were perceived as inferior to the rest of the population. Subsequently, procreation went on to be viewed as an inherent right, thus the practice became frowned upon. As a result, international judgements and statements would go on to denounce the practice.

In 1994, the coordinated the International Conference on Population and

Development (ICPD) in Cairo, Egypt. The end result was Programme of Action, adopted by 179 governments. Their four goals entailed universal education, reduction of infant and child mortality rates, reduction of maternal mortality, and access to reproductive and sexual health

11 services including family planning. The widely-accepted recognition of reproductive early on was unprecedented.

More recently, in addressing the lack of attention concerning forced sterilization in

Australia, the CEO of Women With Australia (WWDA), Carolyn Frohmader, aims to push for equal protection under the law for those subject to extreme violations of sexual and . The organization recognizes these rights as fundamental:

“They include the right to bodily integrity, autonomy and self-determination – the right of

everyone to make free and informed decisions and have full control over their body,

sexuality, health, relationships, and if, when and with whom to partner, marry and have

children - without any form of , stigma, coercion or violence” (Frohmader

9).

The Rome Statute of the International Criminal Court adopts the position that sterilization requires one’s voluntary consent. Drafted on July 17, 1998 and effective as of July 1, 2002, the statute established the International Criminal Court. Covering genocide, , and war crimes, the treaty has been signed by 139 states. “Enforced sterilization” was included as a against humanity. Though the United States signed under the Clinton administration, George W. Bush’s administration decided they would not submit the treaty for ratification. Despite Bush’s decision, the May 2010 National Security Strategy (a periodic document prepared for Congress outlining the major national security concerns of the United

States), stated that although the United States is not a party, “the Obama administration has been prepared to support the court’s prosecutions and provide assistance in response to specific requests from the I.C.C. prosecutor and other court officials, consistent with U.S. law, when it is in U.S. national interest to do so” (“International Criminal Court,” state.gov).

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Another prime example is from June 2014. A UN interagency statement issued by the

World Health Organization (WHO), Office of the United Nations High Commissioner for

Human Rights (OHCHR), UNAIDS, United Nations Development Programme (UNDP), United

Nations Population Fund (UNFPA), UNICEF, and UN Women called for an end to “forced, coerced, or otherwise involuntary sterilization” (WHO 3). The statement mentions that in other countries, people continue to be sterilized without their consent based on their (women are disproportionately subjected to forced sterilization), HIV positive status, ethnicity (indigenous peoples and minorities), disabilities, and identity ( and persons).

While they recognize sterilization as a method of contraception that should be available to all, it’s also acknowledged that “failure to provide information and to ensure full, free and informed consent for sterilization procedures […] is a violation of basic ”

(WHO 5).

As recognized by the former sentiments, the right to procreate, linked to freedom and autonomy and recognized as necessary for human existence, is worthy of value and respect, but societal pressures can temper that notion. While international views accept this right as legitimate, there are policies in place that limit it.

In China, a one-child policy, in place from 1979-2015, was established as a temporary measure to curb a surge in population and demand for limited resources. Set by each province’s family planning bureau, a fine was imposed for those with two children. In the early 1980s, the

Chinese government requested that when a woman gave birth to her first child, an IUD must be forcibly implanted and after the second, the woman must be sterilized by tubal ligation (Wee).

Exceptions were made early on for ethnic minorities and rural couples whose first child was a girl, while more were introduced later. In 2016, due to an aging population and disproportionate

13 female-to-male sex ratio, a second-child policy replaced the former. According to the Chinese government, the policy is responsible for preventing 400 million births, although some claim it has not made that significant of an impact (Parkinson).

Allowing for families to have a child recognizes the purpose of procreation, to further the race, but by limiting the number of children one can bear, the policy reflects that in certain scenarios, outside circumstances must be considered. In this case, there is a compelling government interest in not exhausting limited resources, so the government enacted a program that fit their scenario: population control, which is justified. However, when circumstance changed, their policy did as well.

While China is a chief example of a country that has made a sterilization policy work, it’s understandable why international agencies have denounced forced sterilization. As depicted in

Chapter One, the history of the practice has often been problematic, since it was often used in terms of eugenics—weeding out “undesirable” qualities versus serving a genuine compelling state interest.

Recent Cases

In the United States, state laws generally prohibit forced sterilization. In the case of

California, the practice was banned in 1979. Before, legislation allowed for state actors to do as they pleased, but today it’s not as simple. While consent is required and may be obtained, sterilization is sometimes ‘encouraged’ using coercive measures, as was the case in two

California prisons between 2006 and 2010.

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A study conducted by The Center for Investigative Reporting, uncovered that the

California Department of Corrections and Rehabilitation sterilized 148 inmates without state approval. According to state documents, from 1997 to 2010, the state paid doctors $147,460 to perform the sterilizations. While Heinrich, a physician tasked with performing tubal ligation, claims he never pressured anyone, his commentary is telling. He stated that what local contract doctors received was minimal “compared to what you save in welfare paying for these unwanted children – as they procreated more” (Johnson). Former inmates claim the individuals deemed likely to return to prison upon release were the ones targeted. Some assert they were not well- informed of risk factors and were repeatedly asked by their doctor until they agreed. Heinrich stated that he suggested tubal ligation to his pregnant inmates based on their medical history— having three or more C-sections. Since future could lead to complications, his suggestion was valid. However, former inmates claim this was not applicable to their situation, as they did not have multiple C-sections. They were continually pressured to reconsider having the procedure; some eventually complied.

When it came to light that sterilization was being practiced illegally, as doctors under contract did not go through the proper channels, California legislators took action. Because some patients did not agree to the procedure out of their own volition, a bill was unanimously passed by the California Senate and Assembly and signed into effect by Governor Jerry Brown on

September 25, 2014. Different than when forced sterilization legislation was repealed in 1979, this bill closes the loophole that allowed physicians to sterilize inmates, as it can often be done using coercive tactics. Subsequently, Senate Bill 1135 further restricts forced sterilization from being practiced; it prohibits:

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“any means of sterilization of an inmate, except when required for the immediate

preservation of life in an emergency medical situation or when medically necessary, as

determined by contemporary standards of evidence-based medicine, to treat a diagnosed

condition and certain requirements are satisfied, including that patient consent is

obtained” (93).

Demonstrating a shift from sentiment decades ago, the bill’s sponsor, Senator Hannah-Beth

Jackson, felt the measure was appropriate. As Jackson said in a statement, “pressuring a vulnerable population into making permanent reproductive choices without informed consent is unacceptable, and violates our most basic human rights” (Schwarz).

Despite sterilization in the past being an accepted practice with varying degrees of approval throughout its trajectory, the consensus is no longer as clear as it was in the past. While sterilizing the severely disabled was always controversial, in the scenario I now present, the main differentiating factor is the parents making the choice versus the state. Ashley “X,” born in 1997 began showing “symptoms of hypotonia, feeding difficulties, choreoathetoid movements, and developmental delay” (Gunther & Diekema 1014) at one month old. Over the years, her unknown condition remained the same. “She is, and in the opinion of her physicians always will be, unable to sit up, roll over, grasp objects, or speak” (Newsome, psychologytoday.com). At six years old, she became subject to growth-attenuation therapy, stunting her growth, allowing her to be better cared for as her parents age. Besides emotional benefits, “more movement means better circulation, digestion and muscle condition, and fewer sores and infections” (Gibbs). High doses of estrogen resulted in severe uterine breakthrough bleeding, causing major discomfort.

Therefore, to avoid that, a lifetime of hormone injections, and in the case Ashley was raped, a hysterectomy was performed as a part of her treatment. The hospital’s ethics committee

16 performed a cost-benefit analysis and determined that in Ashley’s case, denying her the right to procreate was warranted.

While the legitimacy of the “Ashley treatment” is discussed in Chapter Three, it’s important to discern the differentiating factors that led to her sterilization. Unlike other cases of forced sterilization, the decision was not made by state actors nor was it done because she was viewed as inferior. Though her parents relinquished her right to procreate, the treatment ensures she will be properly cared for by the people who love her.

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Chapter 3: The Right to Procreate

In Chapter Two I delineated that the universal view today recognizes sexual and reproductive rights as fundamental human rights and calls for an end to sterilization obtained through the use of coercive, discriminatory, or violent practices. In the United States, the right to procreate is implicitly expressed in the Due Process and Equal Protection Clauses of the 14th amendment, and is generally observed. First alluded to in Buck v. Bell, the notion was rejected.

Fifteen years later, Skinner v. Oklahoma would recognize the right, but on the grounds that it perpetuates the race. Later cases like Griswold v. (1965), which confronted a ban on contraceptives, and Roe v. Wade (1973), which legalized , reiterate this right. While the right to procreate is fundamental, it’s qualified, meaning “the public interest in procreation for survival does not mean procreation for maximum population at subsistence level; the social interest is in responsible procreation" (Dillard 13).

United States Constitutional Law

In the United States, fundamental rights are defined as natural rights that are inherent in state citizenship and require the highest level of protection. While some are explicitly expressed in the Bill of Rights, implicit ones are “found” in the Due Process Clause of the Fourteenth

Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” There are two general deciding factors for determining what constitutes a fundamental right that is incorporated into the due process clause: one, how rooted it is in our tradition and two, the general perception of the idea.

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Buck v. Bell (1927) had the opportunity to recognize the right to procreate, but didn’t. As mentioned in Chapter One, Carrie Buck was “a feeble-minded white woman who was committed to the State Colony […]. She is the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child” (274 U.S. 200, 205). Subject to salpingectomy by the superintendent of the State Colony for Epileptics and Feeble Minded, her guardian, R. G. Shelton, appealed. Faced by a court that deemed her a strain on society and lower in status than the rest of the population, Justice Holmes wrote the majority opinion expressing their sentiment:

“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. Three generations of imbeciles are enough” (274 U.S. 200, 207).

As the Court wanted to make clear, there were three generations of “imbeciles,” but despite that claim, Carrie’s daughter, Vivian, was by all accounts an adequate student. At one point, she was on the honor roll (Gould 338). While she died at age eight, her previous work brings into question the legitimacy of the tests conducted to determine imbecility and it being a heredity characteristic. Although judges are supposed to have an impartial role in legal proceedings, the majority opinion indicated their antiquated view. It’s easy to understand why the right to procreate would not be expressed for another fifteen years.

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In 1942, the right to procreate was definitively expressed in Skinner v. Oklahoma as an implicit liberty right. As previously mentioned, under Oklahoma’s Habitual Criminal

Sterilization Act, Skinner was subject to a for having been convicted of three crimes amounting to ‘felonies involving moral turpitude:’

“In 1929 he was convicted of the crime of robbery with fire arms and was sentenced to

the reformatory. In 1934 he was convicted again of robbery with firearms and was

sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In

1936 the Attorney General instituted proceedings against him” (316 U.S. 535, 538).

The defendant was given no “opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring,” (316 U.S. 535, 1112) though even if his offspring were to commit crimes, it could be the result of environmental factors.

While the right to procreate was expressed as “fundamental to the very existence and survival of the race” (316 U.S. 535, 541), the Court’s intention was not to reexamine the practice that limited it, but to signify the danger in the practice:

“The power to sterilize, if exercised, may have subtle, far-reaching and devastating

effects. In evil or reckless hands it can cause races or types which are inimical to the

dominant group to wither and disappear. There is no redemption for the individual whom

the law touches. Any experiment which the State conducts is to his irreparable injury. He

is forever deprived of a basic liberty” (316 U.S. 535, 541).

Because forced sterilization can unreasonably burden this basic liberty, the Court emphasizes applying the strict scrutiny standard to future cases.

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Although the law was unanimously overturned, it was overturned because of the exclusion made for white-collared crimes (prohibitory laws, revenue acts, embezzlement, or political offenses), which violated the Equal Protection Clause of the 14th Amendment, thus never overturning Buck v. Bell or other laws requiring compulsory sterilization.

Two subsequent Supreme Court cases would reaffirm the right to procreate under the larger umbrella of the rights to privacy and autonomy. While the focal point of Griswold v.

Connecticut (1965) was the intrusion of marital privacy in criminalizing contraceptives, it made room for the former, as the holding made the case couples have the right to choose whether or not they’d like to conceive a child. The right was further expressed in Roe v. Wade (1973) whose topic of concern was the right to have an abortion. In acknowledging women’s reproductive rights, there was a recognized interest in protecting the potentiality of human life. In giving individuals the right to choose, the Court acknowledged that just as there is a right to procreate, there is a right to not procreate as well.

What changed from 1927 to 1942 to 1973 were the justices and views of the time. During

1927, the eugenics movement was still in its prime years, thus forced sterilization legislation was looked at more favorably. During 1942, the United States has just recently entered WWII. Nazi

Germany, a main axis country, had shown members of our population what deeming others inferior can lead to. It starts out with angry people deeming members of society “unfit” and a

“burden.” The minorities “inferiority” allows them to be a target of that anger. That leads individuals to consider the idea that the world may be a whole lot better without the “inferior.” In the end, millions are dead based on an idea rooted in intolerance, ignorance, and hate. In 1973, a modern attitude was reflected in court decisions. Eugenic sterilization legislation was being repealed and concepts like equality and autonomy were looked at more favorably by the

21 population. While the Constitution is rarely amended, the interpretation of the text is, and this is often done based on national sentiment.

Compelling Interests

Substantive due process deals with rights related to life, liberty, and property. While there are three standards of review for taking on these cases, the most rigorous is applied to cases of compulsory sterilization: the strict scrutiny standard, as established in the majority opinion of

Skinner v. Oklahoma (1942). Applicable in cases where a fundamental right is being infringed upon, the law must pass two tests:

One: state action must be justified by a compelling government interest.

Two: the law must be narrowly tailored (use the least restrictive means) to advance that

interest.

If the state were to establish new legislation favoring compulsory sterilization, various scenarios may survive this standard, while others would not.

With the United States population well over 300 million and continuing to rise, population control legislation may be proposed in the future. Decades ago, Puerto Rico, home to one of the most densely populated areas in the United States, addressed problems related to overpopulation via family planning initiatives. China, home to approximately one fifth of the world’s population, enacted a one and two-child policy. If there were a genuine concern, like limited resources, could forced sterilization be a legitimate option brought back to the drawing board, on the grounds the government would have a compelling purpose and that the means of

22 imposing sterilization are narrowly tailored to achieve that aim, with no other alternatives available?

When Oklahoma's Habitual Criminal Sterilization Act of 1935 was abolished under

Skinner v. Oklahoma (1942), it was based on two crimes not being treated alike. If a law controlling the population were to be enacted, it could not be like China’s policy in that exclusions were permitted for select groups, based on ethnicity or location; if there really is a compelling reason to address overpopulation, that reason would apply to everyone equally and would not justify sterilizing one group but not others. Additionally, there should be no exclusion to the policy if one paid a high enough fee, as the upper-class may be able to afford such a fee but not the poor, and that would be unfair. Unlike Puerto Rico’s family planning initiative where women were not well-informed and targeted based on socio-economic status, the right to procreate must be looked at as equally fundamental to each person.

In considering what would pass the strict scrutiny standard, the first step is to ask if the state has a compelling government interest. A prime example of a compelling interest in limiting the population is Venezuela, where a deep recession combined with a currency that has dramatically plummeted, and limited resources force people to extreme measures: ransacking, frankly, wherever they can find food. To avoid widespread rioting and increasing violence, the military is forced to traffic in food.

Since limited resources can lead to a situation similar to Venezuela’s, where people are fighting to survive, the obvious compelling interest is to avoid widespread starvation. The second is national security, as the police, and likely the military, will have to consistently be involved to respond to widespread protesting, grocery stores being ransacked, and violent acts stemming from desperation.

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Another reason population control legislation may be enacted is due to our deteriorating environment. If having too many people in one area threatens our quality of life, this could serve as another compelling state interest. The earth has limited resources, thus, when we reach a point when we cannot sustain the population, degradation is inevitable. As Professor John Guillebaud points out, "unless we reduce the human population humanely through family planning, nature will do it for us through violence, epidemics or starvation” (Connor).

For either compelling state interest to warrant state action, a well-devised plan would have to be proposed, as it must be narrowly tailored to advance the interest. While the right to procreate can be limited, it’s difficult to say it should be obliterated. A one-child policy would be most efficient, giving people the option to have children, but also serving the compelling interests by putting less of a strain on available resources and releasing less emissions. All women of childbearing age might have to have modified IUDs implanted after giving birth to their first child--modified in that they could not be removed manually. While not penalized for a second child, they would be forcibly sterilized.

While other options may help, like going green and providing incentives to farmers to make more food, we may be past the point of effectively reducing emissions and due to a crippling economy, unable to provide concessions. By enforcing a one-child policy, the government recognizes the role overpopulation plays in quality of life, national security, and widespread starvation. While the system will burden the population’s constitutional rights, it will allow us a better quality of life for a longer period of time and a gap that will allow for the economy to stabilize.

Another case when forced sterilization may be justified is for those who are severely disabled. In the previous case, state action was contemplated and so a review of the law’s

24 constitutionality was required, but in this scenario, it isn’t. State action is any action taken by the government or its agents that intrudes on one’s civil rights. In the case of Ashley, discussed in

Chapter two, since a hysterectomy imposed by her parents is an ethical concern and not a constitutional one, the strict scrutiny standard would not be applicable; the doctors and parents might be subject to civil or criminal liability under applicable statutes if any but in any case, to ethical judgment.

If individuals like Ashley could benefit from a similar treatment plan, they should be able to. While the treatment is very controversial, it should be done on a case by case scenario, brought before an ethics committee, as her case was. For all intents and purpose, it should be confirmed by multiple physicians that the condition will never improve, but by establishing a course of action similar to the Ashley Treatment, their quality of life will.

While there are less suitable hereditary factors, it is not in the interest of the state to forcibly sterilize members of the population in cases where that quality being passed along is not definitive, as it burdens an individual’s fundamental right on a speculation. In the case a characteristic is hereditary, it’s vital to understand that human value is multidimensional, and restricting reproduction on that sole basis hurts our society. While one person may not perform as well in class, they may be talented in another regard.

Is a life still worth living even if one has a lower IQ? The answer is yes. In the majority opinion of Buck v. Bell the case was made that by sterilizing “imbeciles,” the protection and health of the state was the compelling interest. While these are legitimate interests, barring members of society from bearing children does not achieve that interest. The mentally challenged do not threaten our protection or health, but by sterilizing them, state actors violate their safety and well-being.

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While there are other scenarios that may have held weight during the eugenics movement, they don’t now. Environmental factors play a role in habitual criminality and socio- economic status. Instead, state actors should rehabilitate criminals back into society and work on bringing a more efficient middle class to the table. For the disabled and mentally insane, their presence does not hinder our livelihood. More needs to be done to understand these minorities than jumping to extreme measures based on the notion there will be more like them. The right to procreate is fundamental, and while it can be limited in cases of overpopulation and severe disability, it should be applied with caution.

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Chapter 4: Incentivizing Sterilization

I’d think we’d all agree that an individual can choose if they’d like to procreate or not, so understandably, the right to procreate can be waived. Considering this notion, sterilization can be justified, but sometimes it can be wrong. How do we draw the line? We draw the line when incentives become coercive. Consent entails voluntary agreement by a person of age and with requisite mental capacity. Bypassing consent, coercion makes someone do something against his or her will, using force or threats, and as I will argue using various scenarios, incentives. By the state taking an interest in the role incentives play in voluntary consent, a more distinct line can be drawn between persuasion and coercion, thus determining liability.

If duress is defined as unlawful pressure used to shape the individual’s will, denying medication could count as an instance of duress. As mentioned in Chapter One, Mexican-

American women were targeted at the Los Angeles County-USC Medical Center during the

1960s-70s. Depicted in No Más Bebés, women who complained of labor pain at the height of their contractions, like Maria Hurtado, were coerced into signing. As Dr. Benker, a former medical resident recalled, the doctors would tell the patients, “this will take away the pain. Sign.”

With a consent for tubal ligation form in one hand and a syringe allowing pain relief in another, they did.

It’s important to note that when a patient is in pain, it does not necessarily equate to duress, but when the pain is considered unbearable and severe, it does. Echoing this notion, in a similar case presented in an interagency statement by the United Nations, the women had “been presented with consent forms for the first time during labour or delivery, when they were under great pain and duress” (WHO 5). Unlike other questions that may be asked during labor, this one 27 was to be answered before the patient’s need was met. Since this can only be obtained by the person providing the care, they consent. Pain medication, the incentive, was the short-term goal the women considered, not fully understanding the life-altering procedure they were consenting to, so although written consent was obtained, it was not voluntary, as duress shaped the patient’s will.

As depicted in the previous example, the authority figure (physician), circumstance

(giving birth), and weight of the incentive (medicine while in extreme) made the scenario coercive. In the former case the circumstance was being admitted; in another case, it is being institutionalized. In 1975, approximately 3,600 prisoners were subject to testing the safety of new drugs. The National Commission for the Protection of Human Subjects of Biomedical and

Behavioral Research would go on to address ethical concerns regarding prisoners serving as voluntary subjects for research. Allowing them to participate is problematic in that “many aspects of institutional life may influence a decision to participate; the extent of that influence might amount to coercion, whether it is intended or not.”4 Incentives that were offered to prisoners if they agreed to partake in testing included money, good food, comfortable bedding, and medical attention. These measures “might cause prisoners to offer to participate in research which would expose them to risks of pain or incapacity which, under normal circumstances, they would refuse.”5

While offering someone something of value if they agree to do something is not necessarily coercive, for an individual who is dependent on a system for meeting their daily

4 Expressed in a 1973 Department of Health, Education, and Welfare archive that addresses the policies and procedures to protect human subjects. Found on page 31743 of https://archive.hhs.gov/ohrp/documents/19731116.pdf

5 Protection of Human Subjects: Policies and Procedures 1973. Pg. 31743 28 needs, it is. In this case, the prisoner is dependent on the prison for food, bedding, and medical attention. Despite the possible harm that could result from partaking in a demeaning or harmful procedure or study, one may choose to do so, since it allows them adequate treatment. Although this scenario dealt with testing the safety of new drugs, it’s applicable to forced sterilization. If an inmate is given substantial incentives to undergo an infertility procedure, they may opt in, as there is still someone in power that they rely on the system to meet their needs.

Long-term Contraception

A more modern method of sterilization is long-term contraception that requires implantation by a trained medical professional. While it’s not permanent, some methods, like

Norplant, last several years. If a woman agrees to the terms of an arrangement, with this as a condition, she may lose out on the opportunity to reproduce.

By mandating contraception, a judge assumes that the best way to address a larger issue is by limiting the individual’s right to procreate. In the 1990 California case, People v. Johnson6,

Darlene Johnson, a mother of four, pregnant with her fifth, was granted a suspended sentence for , allowing her to be placed on probation for three years. Among the conditions of her probation were that she serve a jail term of one year, not discipline her children by striking them, that she attend parental counseling, and that she be implanted with the contraceptive device

Norplant during her probation. Norplant, a form of long-term birth control implanted in the upper arm, lasts up to five years. The capsules must be implanted and removed by a trained medical professional. With Mrs. Johnson’s probation being contingent on her accepting these conditions,

6 See Superior Court of Tulare Country No. 29390 29 precedence was set—convicted child abusers can receive lighter sentencing if they volunteer to postpone their right to procreate, which may fall during a woman’s prime childbearing years.

Unquestionably, Ms. Johnson should pay for the crime she committed, but nonetheless, it’s essential to analyze a problematic condition of her probation: Norplant. Although protecting victims of child abuse from further violence is a legitimate concern, the means to achieve that purpose unreasonably burdens the individual’s right to procreate, personal autonomy, and privacy. While a baseline proposal is an offer, and “offers do not coerce” (Wertheimer 136), the practice can be excessive when it affects the defendant’s constitutional rights. If the government’s purpose can be achieved by exploring a different procedure that does not produce the former scenario, it should be explored as an alternative. For her four children and one unborn, Norplant would not prevent them from remaining victim to their abusive mother.

Alternatively, if the other proposed conditions are effective measures for curbing child abuse, they should remain applicable conditions.

While it’s worth noting Ms. Johnson could have denied the proposal, forcing her to serve a seven-year sentence, it would not change the underlying issue: the terms of her agreement were unethical, thus null and void. By lighter sentencing being looked at as the more favorable choice, the draw to probation surpassed the weight of mandated long-term contraception. A typical condition of probation does not entail unreasonably burdening the defendant’s constitutional rights, but in this case, it did. Norplant as a condition to obtain the favored choice serves as a means to temporarily sterilize members of the population, but this is problematic in what it can lead to. In the future, will it be okay to propose long-term contraception in all cases regarding child abuse or will it be taken a step further—any case dealing with poor ?

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Before Norplant was taken off the United States market in 2002, various state legislatures and politicians suggested that low-income women would voluntarily accept the implant if there were a financial incentive involved. They proposed that individuals who accept should be offered higher welfare benefits, or in ’s case, a $500 bonus (Goodman). Though Norplant is no longer available, other long-term birth control methods are. If this were followed through with, using an alternative method, there may be women who say “yes.”

While financial incentives alone are not necessarily coercive for the general population, for the very poor, they are. By using circumstantial pressures to benefit some individuals, but not the general public, state actors are targeting people based on socio-economic status. Against their better judgement, the external force, poverty, would mean that poor people would have a strong incentive to better their circumstances. Because they have no other reasonable alternative but to consent, their decision should be prohibited; when an individual under duress enters a contact, it’s understood the contract is voidable. While procreating is not necessary to survive, eating is.

For that, one needs sufficient funds.

An organization actively using financial incentives to promote sterilization and long-term birth control methods is the non-profit Project Prevention (formerly Children Requiring a Caring

Kommunity or CRACK). The organization works with addicts and alcoholics to promote awareness regarding the dangers of exposing unborn children to drugs. To obtain their objective, the organization promises $300 to drug-addicts upon verification they have been sterilized or use long-term birth control methods and devices, such as Norplant, Depo-Provera, or an IUD.

Incentivizing a life-altering procedure for those under the influence of drugs amounts to coercion. To obtain consent, a person cannot be under the influence of drugs or alcohol, but this is the organization’s targeted group. In exchange for their right to procreate, the nominal

31 incentive can be used to meet their daily needs. However, since the organization does not provide essentials, education, or rehabilitation services, the money may be used for an alternative purpose, perpetuating the cycle of drug abuse.

Overall, using enticements to mold a participant’s will can be dangerous. While the clear- cut definition for coercion is hard to establish, by using various scenarios depicting when persuasion is surpassed, I hope to have indicated the need for incentives to be included in this definition, as they also have the ability shape someone’s will. In the case of extreme circumstance, an incentive the regular person would not consider nearly persuasive enough, may be just enough to obtain a “yes” from a person in a bind. A line must be drawn when authority figures use ordinary entitlements against people in difficult circumstances , when a condition requiring they forfeit a fundamental right does not meet the end goal, and when a person is not in a state of mind to enter a contract voluntarily. While consent can be obtained, it is not voluntary.

Incentivizing sterilization can be problematic, so in the case enticements are used to obtain consent, other factors should be analyzed, most importantly their circumstances.

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Chapter 5: Conclusion

In the past, eugenics, a practice that held no scientific merit, was pushed on the minorities of society. Intolerant legislation and corrupt government funded family planning initiatives led to immoralities committed against the fellow man—failing to recognize the value in our differences. However, gaps in legislation have allowed the practice to continue in a less straightforward manner.

When advocates called for an end to the unwarranted version of the practice, various organizations responded. On an international level, “forced, coerced, or otherwise involuntary sterilization” is viewed as a “crime against humanity.” While today, cases of forced sterilization in the United States are limited, “consent” from care taker or the individual is necessary.

Coercion and parental consent play a large role in recent occurrences, despite often being dismissed as insignificant or illegitimate.

By universally and nationally recognizing the right to procreate as fundamental, it’s understood that forced sterilization is a practice that should be approached with care, as suggested by the strict scrutiny standard. While an inherent right, it can be limited for the sake of a compelling state interest. Where overpopulation is a dire concern, or for the severely disabled, and the mentally challenged, the practice can be justified but in other cases, it is illegitimate.

These days, procedures resulting in infertility require consent, though it’s sometimes involuntarily given. Withholding pain medication, providing adequate treatment, and offering lighter sentences or financial enticements to obtain consent is problematic, and can cross the line

33 between legitimate persuasion and coercion. While incentives for the regular person aren’t necessarily coercive, for those in extreme circumstances, they can be.

Keeping in mind the delicacy of this topic, it’s important to note that making an argument for the illegitimate forms of sterilizations was not the intent of this thesis, but in analyzing a centuries old practice, there is a degree of merit that should be considered for tackling larger issues. If used to benefit the larger population, state action may be warranted. While these situations are far and few to come by, forced sterilization can be justified.

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