The N word: Neutering

Hello readers. Today's post will be fairly short on research, since I was occupied most of the night tending to Human Female, who had what she calls a "migraine."  So, instead of researching, I was busy laying on her belly and purring. (Better remedy than chicken soup, especially since she does not eat meat-- not even tasty chipmunk!)

Anyway, today's topic is a discussion of a case that appeals to me both as a legal scholar and as a kitten, since it speaks to the dangers of inserting social values into the law and centers on the subject of neutering, or, when it's applied to humans, sterilization.

A little biographical background. Despite my perpetual formal dress, I come from humble roots. I, along with my litter-mates, was deposited in a mass of black and white fur at the local pound. At a mere eight weeks of age, I underwent The Procedure, much to the later distress of my Humans and veterinarian. It was another two weeks before I met and coerced my Humans into taking me home.

My story has unfolded happily. I have two Humans who dote on my every mew and I have access to a lovely collection of law books.

The story of Carrie Buck, however, did not end as well.

At the beginning of the 20^th century, ages ago in feline time, but fairly recently in terms of human social development, the eugenics  movement had taken hold in the United States. Under the assumption that intelligence, (along with other socially undesirable traits), was inherited, many states passed laws forbidding marriage between people with mental illness, epilepsy, and general “feeblemindedness” and compelling the sterilization of such people committed to institutions.

Carrie Buck was a young woman committed in the Virginia Colony for the Feebleminded. The Supreme Court: An Essential History; Hoffer, Peter Charles et al, (2007), page 232.  Having given birth to a daughter who a nurse described as having a “peculiar look,” Carrie and her daughter were given intelligence tests.  Id.  (I note here that Human Female often receives photographs on the glowing thing of her friends' infants, and I must say that all human babies have a “peculiar look” to me, being rather hairless, pink, and wrinkled). When the head of the Colony issued an order for Carrie's sterilization, on the grounds that she was “feebleminded”, she sought legal action, eventually reaching the Supreme Court in 1927.  Id.  Carrie's argument was that the Virginia law violated the Equal Protection clause of the 14th amendment to the Constitution because it treated "feebleminded" people within institutions differently from those who were not institutionalized.  Buck v. Bell, 274 U.S. 200 (1927).  

At the beginning of the 20^th century, the Courts were busy interpreting the recently enacted 14^th amendment. Congress passed the 14^th amendment along with the 13^th and 15^th just after the end of the Civil War, and are collectively referred to as the Civil Rights or Reconstruction Amendments.

14^th Amendment jurisprudence centers on two clauses: the first states that states shall not deprive anyone of “due process of the law.” The second prohibits states' denial to those within its jurisdiction of “equal protection of the laws.” Law students torture themselves over these two clauses, ruining their eyes with cases dealing with bakers' hours, milk regulations, and zoning regulations for slaughterhouses.

Forgive me, then, if I give you a rather oversimplified explanation of the Equal Protection clause. Essentially, states are forbidden from treating different classes of people within the state differently without a good reason. There are three levels of scrutiny which the Courts use to determine if the state's reason is, in fact, legitimate. If the law deals with race or nationality, the law must be necessary to serve a “compelling” state interest. This is called “strict scrutiny.” If the law deals with gender, the law must be “substantially related” to an “important” state interest. This is called “intermediate scrutiny.” For all other laws, the Courts use the “rational-basis” test which requires only that the law be “reasonably related” to a “legitimate” governmental interest.

The Supreme Court used the rational-basis test and decided that the Virginia law that permitted the state to sterilize feebleminded inmates was reasonably related to a legitimate governmental interest, namely, reducing the strain on the state's resources. The Court stated:

" 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."  Id. at 207.

If soldiers are called on for their lives, what are the fallopian tubes of an idiot in comparison?

There are three problems with the Court's reasoning. First, the Constitution is designed to protect all United States persons (citizens and legal immigrants), not just those of “value” to the state. Second, the Supreme Court glossed over the issue of what societal value even is. It's implied that it is economic, that the “feebleminded” are an economic drain on the health care system, that their children are criminals who drain on the legal system and the prison system, that allowing them to reproduce adds to a welfare nation with no personal responsibility. (This sounds familiar, does it not?) In any event, “value” is not a legal term. The Court deferred to politics in upholding the law, based not on the text of the Constitution, but on the values of a portion of society.

Third, Carrie Buck was not feebleminded.

In fact, Carrie Buck had only been committed so that she could not accuse a relative of her foster father of rape, after he did, in fact, rape her.  The Supreme Court: An Essential History at 232.

The intelligence tests? Inaccurate. Both Carrie and her daughter were of above-average intelligence.  Id.  

Carrie (oh, and her sister, by the way) were both sterilized.  Id.

As we look back on this case, what seems the most shocking is the scientific ignorance of such a prevailing theory, and the corruptness of the institution. However, although it's disturbing how Carrie's attorneys failed to address the facts of her commitment, or to contest the science, the truly horrifying element of this case is the Court's insertion of social opinion into the law.

Constitutional questions cannot be answered in isolation. The Court must address the social repercussions. State governments must address policies that impact drains on the public welfare, both economic and non-economic. What it must not do, however, is value any certain class (based on socio-economics, intelligence, or otherwise), above any other.

In today's political climate, we could all take a lesson from Carrie Buck's defeat.