BUCK V. BELL
In Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71
L.Ed. 1000 (1927), the U.S. Supreme Court
upheld a Virginia state law that authorized the
forced sterilization of “feeble-minded†persons
at certain state institutions. The case has been all
but expressly abrogated by later Supreme Court
opinions. Justice OLIVER WENDELL HOLMES JR.,con-
sidered by many to be a champion of civil liber-
ties, wrote the majority opinion for the court.
In 1924 the state of Virginia passed a law that
provided for the sterilization of “mental defec-
tives†and “feeble-minded†persons who were
confined to certain state institutions, when, in
the judgment of the superintendents of those
institutions, “the best interests of the patients
and of society†would be served by their being
made incapable of producing offspring. On Jan-
uary 23, 1924, a Virginia state court adjudged
18-year-old Carrie Buck to be “feeble-mindedâ€
within the meaning of the Virginia law and
committed her to the Virginia State Colony for
Epileptics and Feeble-Minded.
Nine months later, A.S. Priddy, then super-
intendent of the Virginia institution, petitioned the institution’s board of directors for an order compelling Buck to be sterilized by a surgical
operation known as salpingectomy (the cutting
of the fallopian tubes between the ovaries and
the womb, and the tying of the ends next to the
womb). After giving Buck notice and the opportunity
to be heard at a hearing in which evidence
was presented supporting the requested order,
the board of directors approved the superintendent’s
petition.
Buck, her guardian, and her attorney challenged
the Virginia sterilization law in the Circuit
Court of Amherst County, Virginia. Their
lawsuit was filed against Dr. J.H. Bell, who had
succeeded Priddy as superintendent of the institution.
The lawsuit raised two principle arguments.
First, the suit maintained that the sterilization
law violated Buck’s SUBSTANTIVE DUE
PROCESS rights guaranteed by the Fifth and
Fourteenth Amendments to the U.S. Constitution.
The suit did not challenge the procedures
by which Buck was ordered sterilized. Instead,
Buck and her representatives contended that the
DUE PROCESS CLAUSE guarantees all adults the
constitutional right to procreate and that the
Virginia law violated this right.
Second, Buck’s representatives argued that
the Virginia law violated the EQUAL PROTECTION
CLAUSE of the FOURTEENTH AMENDMENT, which
guarantees that the law treat similarly situated
people alike. The sterilization law failed to provide
equal protection, they argued, because it
singled out “feeble-minded” patients at only certain
state institutions identified in the statute,
while having no application to “feeble-minded”
persons at other state institutions or to “feebleminded”
persons who were not committed or
confined.
The county court upheld the Virginia law
and affirmed the sterilization order, and Buck
and her representatives appealed to the Virginia
Supreme Court of Appeals, which also affirmed.
Buck v. Bell, 143 Va. 310, 130 S.E. 516 (Va. 1925).
In affirming the lower court, the Virginia
Supreme Court of Appeals said that neither the
Equal Protection Clause nor the Due Process
Clause were designed to interfere with the state’s
POLICE POWER to prescribe regulations that
promote the health, peace, morals, education,
and good order of the people. The state’s police
power, said the Virginia high court, gives the
state legislature authority to make laws that spur
industrial growth, develop resources, and add to
Virginia’s wealth and prosperity.
When the case reached the U.S. Supreme
Court, Chief Justice WILLIAM HOWARD TAFT
assigned the job of writing the opinion to Associate
Justice Oliver Wendell Holmes Jr., then 86-
years old.Holmes began his opinion by detailing
the procedural safeguards that were afforded
Buck, though neither Buck nor her representative
had taken issue with them. Holmes noted
that Buck had received notice of the superintendent’s
petition for sterilization, Buck was given
the opportunity to appear at a hearing where the
propriety of her sterilization was determined
based on the evidence presented, and Buck had
the right to appeal all the way to the highest
court in the United States. “There can be no
doubt,”Holmes concluded, “that so far as procedure
is concerned, the rights of the patient
[we]re most carefully considered.”
Holmes next addressed Buck’s substantive
due process claim that she had a constitutional
liberty to procreate. “Carrie Buck is a feebleminded
white woman. . . . She is the daughter of
a feeble-minded mother … and the mother of an
illegitimate feeble-minded child,”Holmes wrote.
Then Holmes, a Civil War veteran, compared
Buck’s sacrifice of procreative freedom to the
sacrifice other U.S. citizens make when called
into military duty for their county: “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.”
Noting that once sterilized, Buck could be
released from the institution to become a productive
member of society, Holmes reflected on
what he thought to be the wider benefits of the
Virginia sterilization law: “It is better for the
entire 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.”
As to the equal protection argument,
Holmes said that “so far as the [institution’s]
operations enable those who otherwise must be
kept confined to be returned to the world, and
thus open the ASYLUM to others, the equality
aimed at will be more nearly reached.”
Seven justices joined Holmes’s majority
opinion upholding the Virginia sterilization law.
Only Associate Justice PIERCE BUTLER dissented,
but he did so without filing an opinion. The dissenting
voices of history have been much louder.
Historians and legal scholars have criticized
Holmes’s opinion for being unenlightened and
unduly harsh, pointing to portions of the opinion
where Holmes assumed that DISABLED PERSONS
were not among the “best citizens,” that
the “degenerate offspring” of “feeble-minded”
persons would either become criminals or
starve, and that unless such persons were sterilized
society would become swamped by incompetence.
The Supreme Court itself has since
rendered several opinions that have all but
expressly abrogated Holmes’s opinion in Buck,
including one opinion that overturned a forced
sterilization law on grounds that “[m]arriage
and procreation are fundamental to the very
existence and survival of the race.” Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 62
S.Ct. 1110, 86 L.Ed. 1655 (1942).
In Holmes’s defense, other historians and
scholars have pointed out that the Virginia sterilization
law was written by a democratically
elected state legislature and upheld by three separate
courts. They also note that compulsory
sterilization was part of the Eugenics Movement,
a popular but paternalistic reform movement
that was based on the premise that the
“lower classes” were too ignorant to practice
BIRTH CONTROL or otherwise take care of themselves
and that eradicating “feeble-minded” persons
from the population was humane.
Scholars on both sides of the historical
debate acknowledge that Holmes personally was
an enthusiast for population control devices but
question why Holmes’s opinion in Buck v. Bell
could not have been as prescient as his opinions
on other subjects like the FIRST AMENDMENT,
where his articulation and application of the
“clear-and-present-danger” test revolutionized
free speech JURISPRUDENCE. In the final analysis,
Buck v. Bell serves as a striking counter
example to Holmes’s supporters who like to
remember the former associate justice as an
unyielding liberal champion of individual
rights.
FURTHER READINGS
Berry, Roberta M. 1998. “From Involuntary Sterilization to
Genetic Enhancement: The Unsettled Legacy of Buck v.
Bell.” Notre Dame Journal of Law, Ethics & Public Policy
12 (summer): 401–48.
Cynkar, Robert J. 1981. “Buck v. Bell: ‘Felt Necessities’ v. Fundamental
Values?” Columbia Law Review 81 (Nov.):
1418–1461.
Estacio, Richard A. 1988. “Sterilization of the Mentally Disabled
in Pennsylvania: Three Generations Without Legislative
Guidance Are Enough.” Dickinson Law Review
92 (winter): 409–36.
Leslie-Miller, Jana. 1997. “From Bell to Bell: Responsible
Reproduction in the Twentieth Century.” Maryland
Journal of Contemporary Legal Issues 8 (spring-summer):
123–50.
Lombardo, Paul A. 1985. “Three Generations, No Imbeciles:
New Light on Buck v. Bell.” New York Law Review 60
(April): 30–62.
Mahowald, Mary B. 2003. “Aren’t We All Eugenicists? Commentary
on Paul Lombardo’s ‘Taking Eugenics Seriously’.”
Florida State University Law Review 30 (winter):
219–35.
CROSS-REFERENCES
Civil Rights; Due Process of Law; Equal Protection; Fourteenth
Amendment; Police Power; Sterilization.
