The Shadow of Buck v. Bell: How Ignoring the United States’ History of Forced Sterilization Has Fostered an Environment Ambivalent to Widespread Abuse
By Mercedes G. Molina*
(For a background on sterilization procedures and a brief history of sterilization practices in U.S. prisons, see The Long Scalpel of the Law: How United States Prisons Continue to Practice Eugenics Through Forced Sterilization.)
In 2020, the New York Times reported on a whistle-blower complaint which claimed that immigrants in the Irwin County Detention Center (ICDC) in Ocilla, Georgia were being subject to invasive gynecological procedures, including forced hysterectomies. The initial report was filed by Project South and reflected information provided by Ms. Dawn Wooten, a gynecology nurse at ICDC. Ms. Wooten expressed concern at the high rate of hysterectomies being performed at the ICDC by one physician, Dr. Amin, saying “Everybody he sees has a hysterectomy—just about everybody.” Wooten’s complaint continued to identify five women whom she spoke to at ICDC between October and December of 2019 who had a hysterectomy, noting the women were confused in learning what had been done to them. Wooten also described an understanding among the female inmates at ICDC that Dr. Amin provided medically unnecessary procedures without consent, causing many women to fear any medical treatment in the detention center, often even refusing to be seen completely. The allegations of Ms. Wooten, while extremely disturbing, are deeply reminiscent of the dark history of the American Eugenics Movement, so much so that one has to wonder whether the legal system’s ambivalence towards eugenic practices has fostered an environment ripe for the kind of abuse faced by immigrant women at ICDC.
As early as 1895, the State of Connecticut passed a law prohibiting marriages among the “feeble-minded,” hoping that the statute would prevent procreation amongst those deemed “inferior.” Soon after, states began creating laws that allowed for the compulsory sterilization of people institutionalized or incarcerated by the state for either cognitive disabilities, mental health illnesses, or due to the violation of a criminal statute. The first of these laws was enacted in Indiana in 1907 and became the model for other states and even later for eugenics practices performed in Nazi Germany. Unfortunately, the courts have failed to not only stop these practices, but have actually promoted them, in many instances.
In the infamous 1927 eugenics case Buck v. Bell, the Supreme Court upheld a Virginia law that allowed for the compulsory sterilization of a woman deemed “feeble-minded.” The opinion, written by Justice Oliver Wendell Holmes, reasoned that public welfare called for the limitation of certain groups of people to bear children in order “to prevent our being swamped with incompetence.” Holmes went on to say that “[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for imbecility, society can prevent those who are manifestly unfit from continuing their kind.” While the 1942 decision Skinner v. Oklahoma later limited the opinion of Buck v. Bell, finding laws which allowed for the sterilization of “habitual criminal[s]” unconstitutional under the Fourteenth Amendment, Buck v. Bell still stands today. Skinner only directly addressed sterilization laws that affected habitual criminals and many scholars believe the Court likely only found a violation of due process because the compulsory sterilization law in question exempted those incarcerated for crimes of embezzlement. Further, Skinner failed to directly address key constitutional questions surrounding forced sterilization, including whether it constitutes cruel and unusual punishment. This failure has left the door open for continued abuse.
Since Buck v. Bell was decided, approximately 70,000 people have been legally sterilized under state compulsory sterilization laws. Today, most, if not all, of the 30 states with compulsory sterilization laws on their books have repealed these laws. However, the legal framework that allows for the practice still exists due to the lack of repeal of Buck v. Bell and lack of expansion of Skinner v. Oklahoma. This has undoubtedly fostered an environment ambivalent to widespread abuse, especially for women and people of color who have faced some of the worst consequences.
Forced sterilizations have persisted into the late 20th and 21st centuries. In the 1970s, federal welfare programs like Medicaid began funding forced sterilizations as a “cost-cutting” measure, impacting over 100,000 Black, Latino, and Indigenous women. The 1974 case Relf v. Weinberger dealt with the forced sterilization of two twelve- and fourteen-year-old Black girls whose mother was misled and coerced into signing a consent form on behalf of her daughters. The case sounded the alarm that people in the South, primarily women of color, were systemically being forced to agree to sterilization through intimidation and threats by doctors to withhold welfare benefits or medical care. The case and the accompanying public outcry led to Department of Health, Education, & Welfare (HEW) protections which barred federally-funded sterilization of minors and imposed a moratorium for sterilization on people under the age of twenty-one.
In those same years, the civil suit Madrigal v. Quilligan exposed another instance of systemic forced sterilization, this time on primarily Spanish-speaking Mexican-American women in the Los Angeles County Medical Center. These Spanish-speaking women were coerced and pressured by healthcare providers into signing consent forms that were in English only, often while they were heavily medicated or during labor. Again, courts scrambled to protect abusers, finding that the healthcare professionals should not be blamed because the harm was “essentially the result of a breakdown in communication between the patients and the doctors.” The systemic practice of forcibly sterilizing women of color continued. Between 1973 and 1976, the General Accounting Office found that 3,406 Native American women had been sterilized by Indian Health Services without being informed of the permanence of the procedure or given other contraceptive options. It is estimated that U.S. Indian Health Services sterilized as many as 70,000 Native American women from the 1960s to the 1980s. Few of these women had the opportunity for legal recourse and those who did were largely unsuccessful.
Despite the minimal safeguards put in place by HEW—prohibition of sterilization of people under twenty-one, prohibition of sterilization of people who are mentally incompetent or institutionalized, creation of a 30-day waiting period for sterilization following written consent—and the establishment of implied consent principles in the medical field, forced sterilizations have persisted at alarming rates among low-income women and women of color. From 2006 to 2010, nearly 150 women in California prisons were sterilized without the state’s approval. In 2017, a Tennessee judge signed a standing order that would allow for 30 days of jail credit given to incarcerated people in exchange for their undergoing a “procedure providing long-term birth control.” And of course, the 2020 whistleblower report of forced hysterectomies being performed on immigrant women in Georgia. In all these cases, the legal system, either formally or informally, played an active role in the abuse of vulnerable people.
The depth of the legal shadow of the American Eugenics Movement looms over today’s struggle for reproductive justice and bodily autonomy. Georgia reminds us of the reality that the United States legal system and institutions like the Department of Homeland Security, have either sanctioned or acquiesced to the sterilization of low-income women and women of color on a widespread basis. The paternalistic culture of the medical field, the disregard for language barriers, the lack of attention to implied consent, the lack of real repercussions for abusive physicians, and the rampant abuses of incarcerated people have all perpetuated the legacy of the American Eugenics Movement. Even where consent has been obtained in a non-coercive manner, studies have revealed that the language of Medicaid consent forms is overly complicated. Still, little has been done to acknowledge this dark history or address the systemic principles that have allowed for such abuse. It’s time that the legal system reckons with its perpetuation of the legacy of eugenics and how this has empowered continued abuse. It’s time to take a hard stance against eugenics and overturn Buck v. Bell.
*Mercedes G. Molina, Class of 2023, Minnesota Journal of Law & Inequality Vol. 40 Staff Member
 Caitlin Dickerson, Seth Freed Wessler, & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www-nytimes-com.cdn.ampproject.org/v/s/www.nytimes.com/2020/09/29/us/ice-hysterectomies-surgeries-georgia.amp.html?amp_js_v=a6&_gsa=1&usqp=mq331AQKKAFQArABIIACAw%3D%3D#aoh=16334035934260&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.nytimes.com%2F2020%2F09%2F29%2Fus%2Fice-hysterectomies-surgeries-georgia.html.
 Id. See also Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights, & South Georgia Immigrant Support Network, Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center, Project South (Sept. 14, 2020), https://projectsouth.org/wp-content/uploads/2020/09/OIG-ICDC-Complaint-1.pdf.
 Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights, & South Georgia Immigrant Support Network, Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center, Project South, 19 (Sept. 14, 2020), https://projectsouth.org/wp-content/uploads/2020/09/OIG-ICDC-Complaint-1.pdf.
 Id. at 18–19.
 Id. at 20.
 Fresh Air: The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 7, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations.
 Id. See also Indiana Historical Bureau, 1907 Indiana Eugenics Law, State of Indiana (last visited Oct. 31, 2021, 10:35 AM), https://www.in.gov/history/state-historical-markers/find-a-marker/1907-indiana-eugenics-law/.
 Buck v. Bell, 274 U.S.200, 205 (1927).
 Id. at 208.
 Id. at 208.
 Leita Powers, Could Forced Sterilization Still be Legal in the US?, Syracuse U.L. Rev. (2020), https://lawreview.syr.edu/could-forced-sterilization-still-be-legal-in-the-us/.
 Rachel Gur-Arie, Skinner v. Oklahoma (1942), The Embryo Project Encyclopedia (Aug. 27, 2016), https://embryo.asu.edu/pages/skinner-v-oklahoma-1942.
 Powers, supra note 12.
 Thomas M. Shapiro, Population Control Politics: Women, Sterilization, and Reproductive Choice 90 (Sheryl Ruzek & Irving Kenneth Zola, eds., 1985).
 Id. at 90–91.
 Id. at 91.
 See Madrigal v. Quilligan, 639 F.2d 789 (1981). See also Shapiro, supra note 18, at 91.
 Shapiro, supra note 18, at 91.
 Clementine de Pressigny, This Film Is Exposing the Forced Sterilization of Native Americans, Vice i-D (Dec. 6, 2018), https://i-d.vice.com/en_uk/article/kzvpqv/this-film-is-exposing-the-forced-sterilization-of-native-americans.
 Sonya Borrero, Nikki Zite, Joseph E. Potter, James Trussell, Medicaid Policy on Sterilization—Anachronistic or Still Relevant?, 370 N. Engl. J. Med. 102 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4418554/.
 See Lisa Napoli, The Doctrine of Informed Consent and Women: The Achievement of Equal Value and Equal Exercise of Autonomy, 4 Am. U.J. Gender & L. 335; Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 Mich. J. Gender & L. 375.
 Corey G. Johnson, Female Inmates Sterilized in California Prisons Without Approval, Reveal News (July 7, 2013), https://revealnews.org/article/female-inmates-sterilized-in-california-prisons-without-approval/.
 Kalhal Rosenblat, Tennessee Judge Who Offered Sentence Reductions for Vasectomies Changes Course, NBC News (Jul. 28, 2017), https://www.nbcnews.com/news/us-news/tennessee-judge-who-offered-sentence-reductions-vasectomies-changes-course-n787401.
 Dickerson, supra note 1.
 One study showed that 34% of respondents asked to review Medicaid sterilization consent forms incorrectly understood the permanence of the procedure. Borrero, supra note 26.