Can a judge, without even holding a hearing, order a woman
sterilized in a state where compulsory sterilization has never been
the law?
As North Carolina prepares to pay reparations to victims
of its decades-long eugenics campaign, Massachusetts strangely
enters a sterilization debate that most had thought long over.
Norfolk County Probate and Family Court Judge Christina L. Harms
earlier this month ordered that a bipolar and schizophrenic woman
be “coaxed, bribed, or even enticed…by ruse” to abort her pregnancy
and undergo sterilization. If the mentally ill woman were sane, the
judge determined, she “would not choose to be delusional” and
therefore, she would choose abortion.
Does “our bodies, our choice” still apply when we are not
in our right minds?
The Michael Dukakis-appointed jurist abruptly retired
following the controversial decision and a state appeals court
overturned part of her ruling. “We reverse that portion of the
order requiring sterilization,” wrote Judge Andrew R. Grainger. “No
party requested this measure, none of the attendant procedural
requirements has been met, and the judge appears to have simply
produced the requirement out of thin air.” The reversal crucially
noted, “In ordering sterilization sua sponte and without
notice, the probate judge failed to provide the basic due process
that is constitutionally required.” The abortion order was also
subsequently overturned by a separate court.
Another, more influential Massachusetts jurist sided with
Judge Harms and not Judge Grainger. Supreme Court Justice Oliver
Wendell Holmes, Jr. pointed to written briefs examined by hospital
directors as evidence that “the rights of the patient
are most carefully considered,” and that, combined with subsequent
appeals to actual courts, ensured that the sterilized “had due
process of law.”
Though the representatives of the people of Massachusetts
never fell for eugenics, the state’s elites and institutions played
a leading role in popularizing, legitimizing, and codifying
it.
In the futuristic Boston of 1887’s Looking
Backward, Edward Bellamy celebrates that “the principle of
sexual selection, with its tendency to preserve and transmit the
better types of the race, and let the inferior types drop out, has
unhindered operation.” A century ago Harvard University offered
eugenics courses and educated the movement’s most fervent servant,
Charles Davenport of the Eugenics Records Office. Even Great
Barrington’s favorite son, W.E.B. Du Bois, five years after Hitler
had ascended to power, echoed the racialist language of the social
hygiene crusade. Harvard’s first African-American Ph.D. observed
that “the mass of ignorant Negroes still breed carelessly and
disastrously,” and that “among human races and groups, as among
vegetables, quality and not mere quantity really
counts.”
But the most pernicious influence regarding eugenics in
America was the Bay State’s Oliver Wendell Holmes, Jr. “One
decision that I wrote gave me pleasure,” he reflected,
“establishing the constitutionality of a law permitting the
sterilization of imbeciles.” The Boston Brahmin spoke of 1927’s
Buck v. Bell, the 8-1 decision that stamped the high
court’s imprimatur upon state-directed sterilization.
“We have seen more than once that the public welfare may
call upon the best citizens for their lives,” Holmes infamously
ruled. “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.”
Starting with Indiana in 1907, and concluding in Oregon in
1981, forced sterilization claimed upwards of 60,000 American
victims during the 20th century. From California to Connecticut,
eugenics won over most state legislatures. The period between the
world wars experienced the highest hopes that science could perfect
humanity. Then the experience of Nazi Germany shattered such
illusions.
What happens when the imbeciles are the sterilizers rather
than the sterilized? Justice Holmes never considered
that.
The citizens of Massachusetts can be proud to have never
elected a government so naïve in its faith in government that it
made law of the eugenics fad. But the state’s elites, from novelist
Edward Bellamy to jurist Christina Harms, haven’t always exhibited
such healthy skepticism of empowering the powerful.
The people of Massachusetts can’t say they we weren’t
forewarned. The judge’s name is Christina Harms, after
all.
