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.
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