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Is Forced Sterilization Constitutional?

By THOMAS P. FARNER | Nov 06, 2019

Surf City — In the early 1900s, the people of the New Jersey Pine Barrens were labeled as outcast deviants and criminals. As such they came under attack from the science of eugenics and its supporters in the political movement known as the progressives. The cornerstone of the progressive philosophy was that government could and should regulate society and improve it.

In 1911, progressives focused on two remedies to the situation: segregation of the unfit and their sterilization to prevent their reproduction. As the year ended, the state’s governor, Woodrow Wilson, was preparing a run for the White House. The Trenton Times of Nov. 12 updated its readers.

“Before Governor Wilson left on his vacation yesterday, he’d appointed the commission for the sterilization of human defectives. … This long was recognized as a radical step in the New Jersey legislation and there was considerable opposition to its passage. It finally got through however and was approved by the Governor on April 21th and it was entitled, ‘An act to authorize and provide for the sterilization of feeble-minded (including idiots and imbeciles), epileptics, rapists, certain criminals and other defectives.’ The statute provides that one Commissioner shall be a surgeon and the other a neurologist, each of recognized ability. The commissioners are not to receive a regular salary but are to be paid $10 a day for actual service.”

The law supported the science of eugenics, saying, “Heredity plays a most important part in the transmission of feeble-mindedness, epilepsy, criminal tendencies and other defects.”

The Trenton paper printed on Dec. 17 an article by noted health author Elliot Flint, giving the progressive viewpoint.

“The announcement by Governor Wilson, of the members of the commission provided for in the sterilization bill which was passed the last session of the New Jersey legislature has raised a storm of the indignant protest from well-disposed but perhaps not so well-informed persons throughout the country. Most of the insane, the epileptic, the imbecile, the sexual perverts, many of the confirmed inebriates, fallen women tramps, and criminals as well as the habitual paupers found in our country, poor asylums and many of the children in our orphan homes belong to the class known as degenerates.

“If society has the right to arrest, to punish and in cases of murder even to kill defectives, it surely has the equal right to prevent their regeneration. By all means let us have liberty but only of the kind which the rights of others permit, for one man’s abuse of liberty may enslave the proper liberty of thousands.

“The new vasectomy, however, and mere ligation of the fallopian tube, though effective in preventing procreation, are not mutilations, but when applied only to the hopelessly degenerate are really the most beneficial and practical protection to the human race ever discovered.”

With the committee appointed the state of New Jersey began to move forward. The Trenton Times of March 4 announced,  “The cases of 17 inmates of the state village for epileptics, at Skillman, have been considered by the state sterilization board. The investigation into these cases was conducted upon the lines suggested in the sterilization bill. … All the facts in connection with the history of the cases were presented to the board. … It now seems to be the opinion that the sterilization law is constitutional.”

But in the same paper, “Attorney General Wilson, in an opinion to the commission today, suggests that before subjecting anyone to the treatment prescribed by the act, a test case be arranged and the courts be asked to pass upon it.

“The Attorney General thinks some of the provisions of the act are too broad to be regarded as a judicious exercise of police power and he says there are some provisions which may be unconstitutional. “The test case is suggested in view of the grave consequences which would follow and enforcement of the statute.

“(Wilson said,) ‘It seems to me that before subjecting any of those who are sought to be brought within its terms to the treatment prescribed in the act, a test case should be arranged, which would bring before some court of competent jurisdiction all of the questions of constitutionality which might be appropriately raised.’”

The court did respond to the attorney general’s request. On April 23 it was announced, “Writs of certiorari had been issued by Judge Charles T. Cowenhoven, in the Supreme Court, to have that tribunal review the proceedings of the state board of sterilization to carry out the provisions of the law under which they are operating. … Dr. Alexander Marcy called at the Rahway institution February 7th last and decided that 11 inmates should be subjected to the provisions of the law of 1911. The next step in the proceedings will be to file the reasons why the actions of the board should be set aside and then final argument before the Supreme Court.”

The court would have its test case.

“It is, therefore, on this the thirty-first day of May, nineteen hundred and twelve, ordered, that the operation of salpingectomy, as the most effective operation for the prevention of procreation, be performed upon the said Alice Smith, in accordance with the motion at said hearing unanimously adopted.”

The case was argued during the summer of 1912 as Wilson was nominated to run for president. The case did not become a campaign issue, and he was elected by the slimmest of margins in November.

A few days later, on the 19th, the Asbury Park Press reported, “New Jersey’s sterilization law is declared invalid and the first order made under it by the state Board of Examiners for sterilization is set aside in an opinion just handed down by the Supreme Court. The opinion is by Justice Garrison who is a physician as well as a jurist. The case is that of Ms. Alice Smith, of Newark, and epileptics against the state board of examiners.”

His ruling was based on the specific case, saying, “The artificial regulation of the welfare of society by means of surgical operations for the prevention of procreation, being based upon the suppression of the personal liberty of individuals, must be accomplished, if at all, by a statute that does not deny to the persons thus injuriously affected the equal protection of the laws, guaranteed by the 14th amendment to the Constitution of the United States.”

But his opinion gives us a frightening insight into what might have been.

“While the case in hand raises the very important and novel question whether it is one of the attributes of government to essay the theoretical improvement of society by destroying the function of procreation in certain of its members who are malefactors against the laws, it is evident that the decision of the question carries with it certain logical consequences, having far reaching results. For the feebleminded and epileptics are not the only persons in the community whose elimination as undesirable citizens, would or might, in the judgment of the legislature be a distinct benefit to society. If the enforced sterility of this class be a legitimate exercise of government power, a wide field of legislative activity and duty is thrown open, to which it would be difficult to assign a legal limit.”

The court had taken away sterilization from the progressives. That left only segregation.

Next Week: Building a colony.


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