In discussing the 1927 US Supreme Court opinion in Buck v. Bell 274 U.S. 200 (1927) Larson argues that -
at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or that due process was provided for the persons subject to its reach, the law should have withstood constitutional challenge.
The tragedy of Buck v. Bell ... was that Carrie Buck never received the due process guaranteed under Virginia’s eugenic sterilization statute and that neither her lawyers nor the courts protected her from a flagrant violation of her basic constitutional and statutory rights. Under the fact that should have been brought out at trial, Carrie Buck would not have been sterilized. More fundamentally, had due process been provided in this and other instances, while eugenics would still have been a scientific and medical mistake, it would not be a legal one. ...
The 1924-1927 case against Carrie Buck being involuntarily sterilized under Virginia’s new eugenics law was not effectively argued. Her lawyers failed her, which is why I cannot defend this particular decision. It was a bad decision but, given what the Justices reasonably knew, under the facts as presented to them by counsel on both sides in the context of the science of the day, I believe that the Court made the right decision even if I cringe at some of the rhetoric in the majority opinion of Oliver Wendell Holmes.He notes that
To represent Carrie Buck, the state institution seeking her sterilization chose and paid for an attorney who was a former member of the institution’s Board of Trustees, was a friend of the institution’s superintendent, had supported eugenics sterilization, called no witnesses in his client’s defense at the trial-court hearing, and did not introduce any evidence in court against the sterilization statute even though state sterilization statutes had been declared unconstitutional in other states prior to the trial.He concludes -
we now know that in the rush to test the constitutionality of Virginia’s new eugenic sterilization law, the categorization of Carrie Buck as mentally deficient was never challenged in court and would not have met modern standards. Further, Buck’s daughter Vivian, the alleged third generation of imbecility, was not mentally retarded. Finally, by the time of Buck and increasingly thereafter, geneticists recognized that many common types of mental illness and retardation covered by the Virginia statute were not inherited as unit genetic characters susceptible to simple eugenic remedies and progressively turned their attention more toward such Mendelian conditions as Tay-Sachs disease, muscular dystrophy, and Huntington’s chorea. However, given what the Supreme Court knew about the law and the facts at issue in Buck, Holmes was right to declare that, as a matter of state public health law and in due deference to majoritarian decision-making, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” That principle remains true even if its application to the sterilization of Carrie Buck proved false.
Accordingly, the Supreme Court has never overruled Buck. Skinner v. Oklahoma, the Court’s 1942 ruling against a eugenic sterilization program for three-time felons, did not touch it. At the time, the consensus about the inheritability of certain types of mental illness and retardation did not extend to criminal behavior. Without that consensus, the sterilization of criminals was always more about punishment than public health. Indeed, before Buck, some state supreme courts had voided sterilization statutes targeting criminals and sterilization numbers for criminals were always much lower than the mentally ill and retarded. Further, the odd distinctions made by the statute at issue in Skinner, which exempted “offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses” from the “felonies involving moral turpitude” covered by the law, made it particularly vulnerable on equal protection grounds. In voiding the statute, the Court noted:
Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. . . . We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses.Notably, while the 1936 report of the American Neurological Association, which some historians credit with turning the tide of American scientific opinion against compulsory eugenics, denounced the sterilization of criminals, it endorsed the procedure for certain mental conditions covered by Virginia’s sterilization statute, such as schizophrenia, manic-depression, epilepsy, and so-called mental hereditary retardation. Such a conclusion fully supported the seemingly contradictory holdings in Buck and Skinner.
Accordingly, state mental-health officials from Virginia to California continued sterilizing patients in their facilities for over two decades after Skinner stopped the practice in prisons. For them, as for the Supreme Court in 1927, “Three generations of imbeciles [were] enough.” Their error lay in their science - not in the law - but the result was just as tragic for Carrie Buck and for the over 55,000 Americans sterilized under compulsory eugenic sterilization laws after Buck.
Indeed, Buck illustrates the potential damage done by a single mistake of fact by the Supreme Court. After the Court upheld Virginia’s sterilization law, seven states enacted similar statutes and the number of sterilizations per year increased dramatically. The individual and collective horrors of those efforts will never be fully known or redressed. The blame rests more with inept or corrupt counsel, hell-bent on upholding Virginia’s eugenic sterilization statute in a set-up case involving a patient who should not have been subject to the procedure under the science of the day, than the Court that followed their lead. Under the facts as stated in the decision, in light of then-prevailing scientific opinion, Buck was rightly decided.