Buck v. Bell

On this week’s episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) go back to a 1927 case that gave rise to eugenics programs throughout the US.

A podcast where we dissect and analyze the Supreme Court cases that have burrowed into America's chest cavity, like that little alien in the 1979 movie Alien


00:03 Leon: Hey, everyone, this is Leon Neyfakh from Fiasco and Slow Burn. On this week's episode of 5-4, Peter, Rhiannon and Michael are going back nearly 100 years to Buck v. Bell, the case in which the Supreme Court found that forced sterilization of the mentally ill was constitutional, as long as it was done for the protection and health of the state.

00:24 [Archival]: Thirty-three states had a eugenics program in the early 1900s, most ended after World War II. However, North Carolina's program ran until 1974.

00:34 Leon: The ruling, which assumed a connection between mental illness and criminality, has never been overturned.

00:41 [Archival]: Immigrant women coming across the border were simply sterilized against their will, often without their knowledge, thousands of them.

00:51 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

01:01 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have burrowed into America's chest cavity, like that little alien in the 1979 movie, Alien.


01:16 Michael: The Xenomorph.

01:16 Peter: Sure, you fucking nerd.


01:21 Rhiannon: I hate both of you, yeah.


01:23 Peter: I am Peter, Twitter is @The_Law_Boy. I'm here with Rhiannon.

01:28 Rhiannon: Hello.

01:28 Peter: And Michael.

01:28 Michael: Hey, everybody.

01:28 Peter: And today's case is Buck v. Bell, a case from 1927. And I know we usually cover more recent cases, but sometimes it's important to look back. You need to watch Citizen Kane before you can really understand Avengers Infinity War, y'know... You have to really dig into the classics. And this is a classic written by maybe the most influential Supreme Court Justice of all time, Oliver Wendell Holmes. This is a case about whether states can constitutionally engage in eugenics by sterilizing people they deem mentally unfit. This case, I think, gets a little less attention than like, Dred Scott and Plessy v. Ferguson, but it is widely considered one of the cruelest Supreme Court decisions of all time. A showcase, not just for the callousness of the Court, but its lack of concern for the facts, the many ways in which it was and is intertwined with the most reprehensible aspects of elite American institutions, and it's also a precursor to modern cases, where the courts have endorsed the basic notion that disabled people are not inherently deserving of the rights granted to the rest of us.

02:55 Peter: So again, Oliver Wendell Holmes, maybe the single most famous lawyer in American history. He was a Supreme Court Justice from 1902 to 1932, and he was known for his sort of concise, common sense approach to the law. He was by the standards of his time fairly progressive, but don't let that fool you, because this was at a time where you could get a PhD in the shape of the Chinese skull.


03:24 Peter: So despite that reputation, the decision here, not the most progressive thing I've ever read, let's put it that way.

03:35 Rhiannon: Yeah.

03:35 Michael: So Rhiannon, talk to us about the background. Let's talk eugenics.

03:40 Rhiannon: Let's talk eugenics, folks. Yeah, so eugenics as a belief system or just this area of pseudo-scientific study, became a thing back in the 1880s, and it really gained popularity, especially in the United States, in the early 1900s. And when we say eugenics, we're talking about this idea that humanity can improve the genetic quality of a human population by excluding groups that are judged to be inferior...

04:09 Michael: Excluding from reproduction.

04:12 Rhiannon: Right, right. From, right... Excluding from the genetic pool, yeah. Yes.


04:17 Michael: Right. Yes.

04:17 Rhiannon: Yes. And so I don't think it will come as a major surprise to anybody that this idea was all the rage in the United States among white wealthy elites, and it's gotta be said that it was a popular trend in the progressive movement. So for example, at the first International Congress of Eugenics in 1912, which was held in London, 42 of 58 research papers presented were authored by American researchers, so white wealthy Americans are all about eugenics at this time. Now, in 1910...

04:53 Michael: Not anymore. [laughter]

04:55 Rhiannon: No, no, no, no, surely not. Yeah, don't worry. [chuckle] In 1910, the Carnegie Institute established the Eugenics Record Office, which served as a center for eugenics and human hereditary research and propaganda. Basically, it was this great, big, beautiful think tank that was advocating for not letting "undesirable" people procreate. And the ERO, this Eugenics Records Office, developed a model sterilization statute, promoting this idea that states should adopt sterilization laws, and since they had it reviewed by legal experts and politicians, they were saying, this law is actually... It's constitutionally sound. It won't be struck down, so all of you guys go for it, adopt these laws and be white supremacists.

05:43 Michael: It's like the model penal code for bigots.

05:45 Rhiannon: Yeah. Yeah, exactly. [chuckle]

05:48 Peter: Well, the model penal code is the model penal code for bigots.

05:50 Michael: The model penal code.


05:54 Michael: They're all bigots.


05:54 Michael: That's right, that's right.

05:56 Rhiannon: Correct. And so the state of Virginia or the Commonwealth of Virginia, excuse me, passes...

06:00 Peter: Please do not embarrass us, Rhiannon.


06:01 Peter: We're holding ourselves out here as experts. Do not call the Commonwealth of Virginia a state.


06:12 Rhiannon: I apologize. So Virginia passes its sterilization law based largely on this model language from the Eugenics Record Office, and the result is the Virginia Sterilization Act of 1924. Basically, the text of that law says that whenever the superintendents of these state hospitals and institutions for the mentally unfit, whenever those superintendents "shall be of opinion that it is for the best interest of the patients and of society that an inmate of the institution under their care should be sexually sterilized, such superintendent is hereby authorized to perform or cause to be performed by some capable physicians or surgeon, the operation of sterilization on any such patient confined in such institution who is afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness or epilepsy."

07:11 Peter: Or epilepsy.


07:13 Rhiannon: Right, or epilepsy, or this other medical condition. We'll just throw that in there.

07:19 Michael: Why not?

07:20 Peter: I just wanna say it's funny as hell to me, especially because this sort of stuff is done with such confidence by these people, but all of their medical diagnoses are just vaguely identifying people who they think are stupid and then giving that a label and pretending that it's a real medical condition. So you'd bring your child to the doctor and be like, "You know, doctor, he's not good at math." And the doctor would like run some tests and come back and be like, "Ma'am, I'm sorry to tell you this, but your child is a moron."


07:54 Peter: And they were like, "Oh, shit." What's wrong with Timmy? Well, yeah, he's a moron.

08:00 Rhiannon: There's no cure.

08:01 Peter: All of the medical diagnoses are now just insults because they're just completely distant from any actual issue. At issue in this case, is whether someone is an imbecile.

08:14 Rhiannon: Right, exactly.


08:16 Peter: A absolutely meaningless term, and I just fucking love the idea that people were walking around with these as actual medical diagnoses like 100 years ago.

08:23 Michael: Right, can you imagine like a DSM back then that has a different criteria for imbecile and feeble-minded, like a dedicated doctor being like, "This is a tough one to disambiguate. They might be feeble-minded but I'm leaning imbecile."

08:39 Peter: Yeah, "We thought Johnny was an imbecile, it turns out he's just an idiot."


08:46 Michael: Thank God.

08:46 Peter: Thank God.

08:50 Rhiannon: Included in the text of the Virginia Sterilization Act of 1924 is this built-in justification that forced sterilization of the "feeble-minded," that this is for the greater good of society, and they put this in the text of the law. They say, "Whereas many defective persons are basically being supported at state institutions, many defective persons who, if now discharged or paroled, would likely become by the propagation of their kind a menace to society, but who if incapable of procreating might properly and safely be discharged or paroled and become self-supporting with benefit to both themselves and to society, whereas human experience has demonstrated that heredity plays an important part in the transmission of sanity, idiocy, imbecility, epilepsy and crime."


09:48 Peter: By the way, I love that they've brought epilepsy into this.

09:51 Rhiannon: Yes.

09:52 Michael: Like epilepsy is... It's ridiculous.

09:54 Peter: There's literally five or six just completely fictitious ailments and then they're like, "And epilepsy," which apparently they were on the head, they were nailing it with that one. But also I feel like the idea that epileptics need to be like bred out of society...

10:07 Michael: Sterilized.

10:11 Peter: Seems a little bit strong.

10:11 Rhiannon: Right. Yeah, but when you take a step back and look at it, it kind of makes sense that the nation's top legal experts, researchers, scientists and doctors thought this, because at the time, they think a woman having her period every month is a debilitating medical issue for which she needs to take heroin or whatever. It's par for the course, I guess.

10:31 Peter: Yeah, well.

10:32 Michael: And it sounds pretty cool to me.

10:33 Peter: Yeah, I don't...


10:37 Michael: I've never had menstrual cramps, but heroin sounds a lot better than Midol.


10:40 Peter: Sorry you guys were oppressed by the free drugs you got.


10:47 Rhiannon: Okay. And an important side note, the same year that this Sterilization Act is passed in Virginia, the Virginia legislator also passes the Racial Integrity Act, which banned interracial marriage and was famously later struck down in Loving v. Virginia. So sterilization, eugenics and racism. It's not like a very far connecting line.

11:11 Peter: No.

11:13 Michael: Right.

11:13 Peter: No. A lot of people are gonna be judgmental about this stuff and say that these states were going nuts, but you gotta keep in mind, this is before the Nazis showed us that this was bad. The Nazis took all of this stuff to its natural conclusion, and people were like, oh, they're like, I see where this is headed now, yeah, we gotta stop. We gotta stop.

11:37 Michael: The "are we the baddies?" meme, but it's like America is asking the Nazis that. It's like, "Yeah, you are."

11:44 Peter: By the way, it's important to note, though, Adolf Hitler looked towards a lot of this research and a lot of these laws in designing the apparatus, the eugenics system that they had in Nazi, Germany.

12:00 Rhiannon: Absolutely. Obviously, the Carnegie Institute is involved here. Henry Ford is like a famous eugenicist and racist. The Rockefellers are putting out this kind of "research" at the time. This was really popular among wealthy people who had a platform to be disseminating this stuff. Okay, so Virginia gets this sterilization law on the books and they are basically immediately ready to implement it and fight over it and fight for it. So this guy, Albert Sidney Priddy, at the time, in 1924, he is the superintendent of the Virginia State Colony for Epileptics and the Feeble-minded.


12:37 Rhiannon: It's no five-star hotel stay, I can tell you that.

12:40 Peter: I want to apologize for constantly laughing at this stuff, but it's so fucking ridiculous.

12:45 Rhiannon: It's absurd.

12:45 Michael: It is. It's absurd.

12:47 Rhiannon: Exactly. It's so cruel that it's absurd. And so Albert Sidney Priddy, the superintendent, he files a petition to the directors of this institution to compel the sterilization of a patient named Carrie Buck. Carrie is an 18-year-old patient at the institution, and it's reported that she has a mental age of 9 years old. In the petition where he's providing justification for why she should be sterilized, Priddy says that Buck is a threat to society, and he says that Carrie's mother had a mental age of 8 in addition to reportedly having a history of prostitution, immorality and parenting three illegitimate children. And so though Carrie had been adopted by another family and attended school until sixth grade, Priddy further noted in this report that she eventually just became "incorrigible" and at the age of 17, she gave birth to an illegitimate child. So at that point, her adopted family said they're incapable of caring for Carrie, and they had her committed to the State Colony, this institution.

13:53 Peter: Look, they gave it their best for three, four years, but at the end of the day, she had some pre-marital sex and you gotta give them to the State Colony for Epileptics and Idiots.


14:06 Rhiannon: And so they basically informed Carrie that she is going to undergo this sterilization procedure and she challenges it in court. Now, the named parties, obviously Carrie Buck versus Bell. Bell is the doctor, the surgeon who will perform the sterilization surgery, so that's how we get the case name Buck v. Bell.

14:27 Michael: Can I ask a question quick? I didn't see this in my background research, I don't know if any of you guys saw it, how this case came to be, was she like the impetus or was there people looking for plaintiffs on this or what, do we know?

14:40 Rhiannon: It's not clear, but the case itself is collusive. They're doing it on purpose to bring the case so that it goes through the courts so that it will be upheld.

14:50 Michael: Oh, okay. I was just thinking along the lines of somebody getting a lawyer and challenging this procedure doesn't really fit a 9-year-old's mental capabilities. But that makes sense.

15:01 Rhiannon: The whole thing is rigged. Yeah.

15:04 Peter: So let's talk about the law a little bit, and this law is challenged under the 14th Amendment's due process and equal protection provisions, which say that the states shall not "deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws." And so the question is whether forced sterilization imposes on the bodily integrity of these women in violation of their entitlement to due process of law and/or equal protection under the 14th Amendment. And the Court holds that it is not a violation of the 14th Amendment, finding that all three generations of Buck women were "feeble-minded" and "promiscuous," and that the state had a legitimate interest in their sterilization.

16:02 Peter: And the Court starts out by stating the reasons for the law, saying that the sterilization of mental defectives is for the benefit of the patient and society generally, and that the sterilization allows mental asylums and similar institutions to discharge those patients without concern that they might reproduce.

16:25 Michael: Awful. It's so awful.

16:28 Peter: And the court notes, "Experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etcetera." I love the etcetera there. You know, you know, these guys...

16:44 Rhiannon: But note, that's a direct lifting from the Virginia statute that's at issue, right? They just... They adopt it.

16:51 Peter: It's a very weird thing to say, "experience has shown" when we're talking about a scientific question.

16:56 Michael: There's another etcetera that I really liked when he's describing the law and he says, "Look, the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives under careful safeguard, etcetera." Like whatever.


17:17 Michael: Whatever that entails.

17:21 Peter: A couple things. One is that this opinion is like three pages long, and the dissent is silent. It's just someone saying they dissent. And then also you have this like etcetera thing. Being a Supreme Court Justice back then was the shit. You didn't have to do anything. He's like, "Yeah, you know, insanity, imbecility, etcetera. I'm gonna throw in an etcetera in here."

17:41 Michael: I don't know what copies you read, but the PDF I found included both briefs, which brought it to a grand total of eight pages.

17:53 Rhiannon: Oh, my God.

17:53 Peter: That's right. I found that one too.

17:56 Michael: The briefs were about two pages each, worth the read. Very interesting.

18:01 Peter: One key theme here is like the sheer confidence the Court has in what is now clearly completely outmoded science. And that combines with this sort of underlying moral assumption that the life of a disabled person is both a burden on society and less important than that of a non-disabled person. And the Court explains that the superintendents of the institutions like the State Colony for Epileptics and Feeble-minded must before sterilizing anyone petition their board, there would be evidence presented and the person could appeal the decision to sterilize them to the County Circuit Court. And so Holmes is trying to say like, "Look, obviously procedurally, this is airtight."

18:52 Peter: We're all good. Don't even worry about it. And he says that the benefit to society justifies the sterilization here, and it's worth noting that Holmes doesn't really provide any actual reasoning. Part of this is like a relic of court decisions from the time which were... They're shorter, they're more conclusory. But in any event, he genuinely gives zero thought in the opinion to what the burden imposed on these women actually is, and 'cause there's no discussion about the importance of the ability to procreate if you want to or to try. Nothing is articulated about what they're actually being subjected to. Instead, he frames it in terms of sacrifice, saying that the general welfare often calls upon citizens to sacrifice their lives and well-being, which I guess is true in the general sense, but I mean, first of all, could be used to justify literally anything.

19:49 Peter: And this is 1927, we're about a decade out from World War I, and it seems clear that he's gesturing towards that sort of sentiment accompanied by war and the massive human toll that faces. But he's not talking about the domination of Europe by Austrians or whatever. He's telling some lady, "You can't have your dumb kids, your kids are gonna be too stupid, lady. Let me tell you about sacrifice." [laughter] And Holmes ends this opinion with what might be the most offensive few sentences in Supreme Court history.

20:30 Michael: It's awful.

20:32 Rhiannon: This is rough.

20:34 Peter: This is a quote. "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, 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 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 is enough." End of the opinion.

21:21 Rhiannon: Ouch.

21:23 Peter: Three generations of imbeciles is enough.

21:25 Rhiannon: I don't feel good. Do you guys feel good?

21:27 Michael: No.

21:27 Peter: No. Obviously, that is transparently horrific. It is ridiculous, and I don't think there's much more to say about it. There is a fact, though, that we should discuss, and that is that underlying all of this reasoning, the Court is accepting without question that these people are in fact mentally deficient somehow. And on that front, I have bad news. Most likely, they were not. And in fact, the story, as we understand it, appears to be fairly horrific.

22:06 Rhiannon: Yeah, that's right. It's like multiple layers of being horrific. So first, let's just start with the law and the court case itself. By all accounts, the case, bringing the legal challenge was actually a purposeful act of collusion. The state of Virginia wanted a sterilization law and they wanted it to pass legal challenge, so as superintendent of one of these state institutions, that guy, Priddy, was looking for a patient to do forced sterilization on and have it be challenged in court. John Bell was the surgeon who performed the surgery on Carrie Buck, and he wrote in his surgical report in October 1927, "This is the first case operated on under the sterilization law, and the case was carried through the courts of the state and the United States Supreme Court to test the constitutionality of the Virginia act." So this was brought on purpose, and Carrie Buck was the random unconsenting party that this legal challenge was brought on.

23:11 Rhiannon: Secondly, there is a lot of doubt that Carrie Buck was at all intellectually disabled to begin with. Not only do reports from researchers and people who knew her indicate that she was by all accounts of average intelligence. One of the main arguments used to establish her disability was her supposed promiscuity and that she got pregnant at the age of 17. Well, it turns out, actually, that Carrie Buck was raped by a member of the family that adopted her, and that rape resulted in her pregnancy. And it's been reported that the family who adopted her, they actually had her committed to the state institution on purpose to save their reputation.

23:54 Peter: And this is what we in the law call a big oopsie-daisy.


24:03 Peter: You commit someone to a horrific institution to cover up a rape, some fucking Shutter Island-style asylum, and then it turns out they're not disabled at all, but you sterilize them. Big apologies from the legal community, really dropped the ball on this one.

24:22 Rhiannon: Awful. Right, and regarding this "three generations of imbeciles" that Justice Holmes referred to, actually not a lot is known about Carrie's mother, Emma Buck, except that she was poor, she was abandoned by her husband early in marriage after being accused of immorality, prostitution and having syphilis. She was also committed to the same institution, this Virginia State Colony for the Feeble-minded, and then there's Carrie's daughter, who was named Vivian. And like her mom, Vivian was also of reportedly average intelligence. She attended school for a few years where she received average or even above average grades. She died at the age of 8 due to complications from measles. But again, the cruelty of this "the three generations of imbeciles," there aren't even facts that support that realistically.

25:13 Peter: Also, a society that is condemning people it deems stupid to institutions and sterilization, but can't cure the fucking measles.

25:25 Michael: I also have my doubts about promiscuity being one of the criteria here. Whether or not she was raped, I think that goes to just...

25:36 Peter: Yeah. If I had to guess, they're just... It's literally a series of checkboxes when they're compelling someone live in one of these institutions and they're just looking for things like, "Oh, she's promiscuous," right?

25:50 Rhiannon: Right, right. And then finally, just to highlight how rampant this eugenics stuff was, as soon as the states got the green light from the Supreme Court on sterilization statutes like this, the State of Virginia was so giddy for this family to not be able to reproduce that Carrie Buck's sister, Doris Buck, was also forcibly sterilized. She actually wasn't told that that procedure was being done to her, it happened completely without her consent during what she was told was a surgery for appendicitis. She never knew why she couldn't conceive until she learned the real reason why in 1980, lived her whole life not knowing that this had happened to her.

26:31 Michael: Fuck. Jesus.

26:35 Peter: So I wanna talk a bit about eugenics and these elite academic institutions that were pushing it. In the early 1900s, the idea of forced sterilization to eliminate heritable disorders was popular in mainstream academia. Oliver Wendell Holmes authored this opinion. He has close ties to Harvard, he went there. His father was dean of the medical school and Harvard was pushing these theories very aggressively. A huge percentage of the scholarship about eugenics and promoting eugenics came out of Harvard. And all of this is to say that powerful institutions in this country work in close concert. Elite universities and instruments of government power, like the Court, are often composed of the same people from the same socioeconomic classes, and so you often see them serving the same interests, and the overlap of dubious academic work with the courts isn't like some ancient thing. Just to give a slightly more recent example, in the '80s, the field of law and economics gained steam in academia, in legal academia, designed to more aggressively map economic theory onto the practice of law, very, very popular at that time, still maintains some popularity today. The one thing you need to know about law and economics is that if someone is an expert in neither law nor economics, that does not rule you out from being a professor of law and economics.


28:12 Rhiannon: Right, right. That's all you need to know.

28:13 Peter: It's a bullshit little field that just combines the most fraudulent aspects of economic theory with the law.

28:21 Rhiannon: Most notably at the University of Chicago, right? Law school?

28:24 Michael: Yeah.

28:25 Peter: That's right.

28:25 Rhiannon: Yeah, that's their big...

28:27 Michael: The center of the intellectual movement there.

28:29 Peter: And just a quick note before we move on, Rhiannon referenced this earlier. We often deal with reactionary politics on this podcast and, obviously, I think we all believe that eugenics is fundamentally reactionary, but it needs to be noted that it was closely tied to the progressive movement at the turn of the 20th century. I bring this up mostly because if you're progressive or otherwise on the left, I think it's important to acknowledge that the movement got caught up in this dangerous thinking at one point. And being intellectually honest about that sort of shit is part of what separates us from the right, because Planned Parenthood has admitted to their founder, Margaret Sanger, believed in eugenics and they've denounced those beliefs. But the American conservative movement, rather than admitting to their past failures, maintains an entire cottage industry dedicated to rewriting history to make believe that they aren't the villains the entire fucking time. So you have these fucking weirdo freaks, like Dinesh D'Souza, who do nothing but churn out books saying that "Oh, the KKK were liberals actually." And like Nazis, national socialism, socialism's in the name.

29:44 Rhiannon: Right, right.

29:45 Michael: They're right there.

29:47 Peter: Shit like that. Then that passes for actual scholarship and intellectual honesty on the right and it's important to just look back and reflect on your movement's errors and not be one of these fucking morons. They go through all these links to say, "Back in the 1870s, the KKK were all Democrats." But the simple question would be, "What party do you think the modern KKK identifies with?"

30:14 Rhiannon: Right. Right.

30:15 Michael: Right.

30:15 Peter: Another thing I wanna point out is Buck v. Bell hasn't been overturned.

30:21 Rhiannon: Still on the books.


30:22 Michael: Nope. It's law.

30:23 Peter: And that's not to say that it's consistently relied upon by the Court or anything, it's not the point we wanna make entirely. A huge component of our legal system is its reliance on the body of common law, meaning the law that comes from judicial decisions. And that reliance is predicated on the idea that that body of law is the manifestation of reasonable and reliable legal principles that have been passed down over time. But the reality is that the common law is littered with outdated relics of reasoning and science and history, like this case, and that is what our law is built on. The law is predicated on the assumption that our predecessors were eminently wise but, of course, they had all the same flaws of judges today. They were uninformed, biased, hubristic, and it's crucial for the legal profession to operate as if those flaws are present and not as if the passage of time has bestowed a sort of untouchability on the past.

31:26 Michael: Right.

31:26 Peter: The way that precedent works is that courts are made to rely on existing rules rather than question their wisdom or utility. Obviously, the primary purpose of this is to promote consistency in the law. But not only does it lead to the entrenchment of some horrible ideas, it's inherently conservative.

31:45 Rhiannon: Exactly.

31:45 Michael: Right.

31:46 Peter: This plainly outrageous case law can't be easily disregarded, because judges are told to respect precedent and instead, it needs to be rooted out steadily over the course of many years, to the point where it's still on the books today.

32:03 Rhiannon: Right.

32:04 Michael: Right. All that being said, it is actually true, though, that as recently as 2001, a federal appeals court and the Eighth Circuit cited Buck v. Bell approvingly in holding that involuntary sterilization of the mentally handicapped could be constitutional with the right procedural protections, which is pretty indistinguishable from Buck v. Bell itself.

32:30 Rhiannon: Things are not good. Things are not good.


32:34 Rhiannon: I'm just putting up the alarm.

32:38 Peter: Look, that was... You said 2001, was it pre-9/11?


32:45 Michael: Yeah, exactly. Things really changed. Yeah, we have to reckon with the idea that eugenics have never really left us. Like this era was plainly horrible, and I don't wanna say everything is the same or whatever, but states, I think in that era sterilized 65,000 "disabled people" and you might think, well, when I say the eugenics era, this case is a century old, so that means forever ago, but like North Carolina was operating its program until 1974.

33:18 Rhiannon: Wow.

33:18 Michael: And of course, Rhiannon gestured to this earlier, but in the South, everywhere really, there is racial and class components to this. In the South, for example, it's tended to fall most heavily on the Black community, which interestingly enough, in its short two pages, the plaintiff's brief sort of anticipated that. So it's not like people didn't know that that might be the case. In Buck v Bell, they're saying, "Look, this could be turned to sterilize Black and poor people." And there you go.

33:52 Rhiannon: Yeah, yeah, and we also still to this day have this idea that somehow genetically inferior people are the ones who are more likely to commit crime. And there's a way that White supremacy connects genetic inferiority to criminal behavior to justify, still to this day, this kind of eugenics-adjacent stuff in the criminal punishment system. So for example, in 2009, a woman in West Virginia was required to get her tubes tied at the age of 21 years old, as part of the requirements of her probation deal. The offense for which she was going on probation? Marijuana possession.

34:30 Michael: Jesus!

34:32 Peter: Do you know who the judge was in that case and what their address was?


34:37 Rhiannon: I do not, I do not, actually.

34:40 Peter: Just asking, just wondering. Thinking out loud.

34:43 Rhiannon: Okay, sure, yeah. [chuckle] In 2017, really recently, a Tennessee judge issued a standing order that offered inmates a 30-day reduction in their sentence if they underwent some sort of long-term or permanent birth control procedure. So that's if men got vasectomies or if women got a four-year birth control implant. And this idea, they make it legal by keeping it voluntary. It's not forced on anybody, but of course, this is super coercive if you're sitting in jail and you can't get out. And we don't have to think long about who this disparately impacts. A policy like this is never going to touch a rich person, because a rich person is never going to be in the position where they can't get out of jail at the time that they wanna get out, where their lack of resources is the thing that's keeping them locked up and repeating into the system. And obviously, this is gonna impact people of color more who are pulled into the criminal punishment system at higher rates than everybody else.

35:44 Michael: Also pretty fucked up. You only get a 30-day reduction? What the fuck?


35:52 Michael: Come on, man.

35:54 Peter: You can't give them three months?

35:54 Michael: I would expect something substantial. Fucking 30 days? And what the fuck!

36:01 Rhiannon: Yeah, that's a really fucked up point because it shows how little they think about a person's right to reproduce.

36:10 Peter: Right. And do you... You said it was a Tennessee judge. Do you know that judge's address?


36:17 Rhiannon: No, I failed to write that down in my outline today.

36:23 Peter: Okay. Well, our promise to our listeners is if we figure it out, we will let you know.


36:27 Rhiannon: Another horrible example, just in 2013, the Center for Investigative Reporting found that at least 148 female inmates in California had received tubal ligations without their consent between 2006 and 2010. And just one year later, the Associated Press reported on at least four instances of prosecutors in Tennessee including birth control requirements in plea deals. So we're not that far away from this eugenics stuff still being part of the criminal justice system for sure.

37:06 Michael: Right, and the birth control, it's interesting. There's a real intersection of reproductive rights and disability rights where the eugenics stuff still comes up a lot. And so there's the Eighth Circuit case I mentioned earlier, which was... That was about a woman with developmental disabilities and she had to agree to sterilization in order to regain custody of her child who had already been born, obviously, and who'd been taken from her.

37:36 Peter: Okay, you can have them, but you only get one.


37:39 Michael: Right, exactly.

37:40 Rhiannon: It's wild.

37:42 Michael: It's so fucked.

37:43 Rhiannon: That's just awful.

37:45 Michael: When pod favorite Brett Kavanaugh was still a judge on the DC Circuit, he wrote an opinion upholding a law that denied people with developmental disabilities the right to make their own medical decisions, which sounds like not great, but not really eugenics necessarily, until you realize that two of the plaintiffs in that case had been forced to have abortions under the law.

38:11 Peter: That's how we get conservatives to support abortion. Forcing poor people to have them, and all of a sudden, they're like, "Actually, I get it."


38:22 Michael: The National Council of Disability published something in 2012 that found that 11 states still had laws on the books authorizing involuntary sterilization for people with hereditary forms of "idiocy, imbecility" or other similar sorts of offensively and outmodedly-named conditions.

38:45 Peter: Libertarians.


38:49 Rhiannon: I wish.

38:52 Michael: And even when people with disabilities are allowed to have kids, they have their kids taken from them by protective services and shit like that, and there's a whole culture now of sort of parents agreeing to sterilizing their kids while they're still young if they have disabilities. So eugenics is still with us, unfortunately, and in precisely the way that Bell conceives of it. And you can see it with COVID too, right?

39:25 Rhiannon: Yeah.

39:26 Michael: It's sort of like resonating. It's hard not to think of COVID when hospitals are talking about people with disabilities not necessarily being able to get ventilators, if they have to ration. And you might think, "Well, look, if they have asthma, that's understandable." But fucking Alabama had a law up until April 2020, their Crisis Standards of Care, that allowed...

39:52 Peter: Hold on, hold on, I'm checking my calendar here. Okay.


39:54 Michael: Yeah, April 2020, that was the last month. That allowed for the denial or cessation of ventilator services for people with mental disabilities. It's not even like a number of years, like life expectancy. It's just literally like, "Well, fucking dumb people, they don't really deserve as good or as long a life as smart people." Right?

40:21 Peter: Right, right.

40:22 Michael: And they only changed that because the federal government stepped in. And then the last thing is like with COVID is like the sacrifice we talked about. When the opinion in Buck v. Bell talks about sacrifice, that doesn't sound too dissimilar from a lot of right-wingers right now talking about COVID, whether it's like, "Well, look, we gotta re-open the economy, and if some people die, well, like, I gotta get my fucking Triple Dipper at Chili's."

40:48 Peter: Right.

40:49 Rhiannon: Those Southwestern egg rolls hit different.

40:52 Michael: Yeah, that's right. That's in my order. [laughter] You better believe it. The other thing that sounds like remarkably familiar, is when Holmes talks about not having to deal with their children being criminals, which is literally an argument in Freakonomics, that a bunch of pseudo-intellectual types thought was like so persuasive, that the legalization of abortion led to a down tick in crime 20 years later, because all of a sudden all these undesirables were not having kids, which is... It's just straight eugenics is what that is. And bullshit pseudo-science, or not even that.

41:32 Peter: Right. All of this to say that Buck v. Bell is not exactly a relic of the past. This case is unique only in how concisely and obviously it brutalizes these women, but there is a tradition in American legislation of laws that take for granted that there are genetically superior and genetically inferior classes of people, and courts have failed to address them as the obvious violations of constitutional rights and human dignity that they are.

42:04 Rhiannon: Yeah, yeah. What comes to mind when I think about this case and how eugenics kind of have made their way, especially into our criminal system, I think a lot about right-wing narratives about supposed personal responsibility and morality, and how those ideas really purposely ignore the relationship between what is personal and individual and the system, what is systemic. And that's because people on the right don't want to account for a system that would meet everyone's needs, right? They want there to be a separation between what the system provides for all of us and the horrible things that happen to people in their lives, and so it's this making it about a very individual, individualized reading of how a person's life plays out rather than being about poor people or minorities needing access to resources to live good lives.

42:58 Peter: The idea that you can stomp out crime by sterilizing criminals is fundamentally at odds with every expert on crime's understanding of how it originates and manifests. That sort of thinking is endemic to the conservative movement and to conservative ideology. There is a specific intent on their part to take systemic problems and atomize them down to a personal level, so that the systemic issues do not need to be addressed, and instead individual people can be blamed. And you can see that in things like unemployment. If you don't have a job, conservatives would say, it's your fault. Right? How do they explain unemployment going up by tens of millions of people when COVID happens? They don't have a coherent solution for problems like that, because their entire ideology is predicated around taking systemic issues and blaming people who are functionally victims of those issues for them.

44:10 Rhiannon: Exactly. Right.

44:12 Michael: Right. Their solution is open it back up.

44:15 Peter: Right. The solution is...

44:17 Michael: And when people don't...

44:17 Peter: The solution is, "Fuck you."

44:19 Michael: But people don't go out... Yeah, it's "Fuck you." As a small business owner, I only own the three used car dealerships, I wanna make my fucking employees come in and if they get sick, whatever, fuck it. They don't deserve unemployment benefits. And if nobody shows up, well, we should get the National Guard to march them. I'll tell you, the National Guard does not need to march me down to Chili's. [laughter] I miss it.

44:50 Peter: And look, this type of thinking is why we can't end this episode saying, "Thank God, society has moved on and the reasoning in Buck v. Bell is something you would never hear of now." Because we're all sitting in our apartments waiting for a fucking disease to burn through the population, so that we can all go start commuting to work again.


45:13 Peter: Next week is Burwell v. Hobby Lobby.

45:21 Michael: Hobby Lobby is a case about whether international smugglers of stolen antiquities can decide who does and does not get birth control.


45:33 Rhiannon: That's right.

45:35 Peter: Follow us on Twitter @fivefourpod. Fave our tweets. Smash that retweet button. Reply. Tell us, "Wow, great episode."

45:44 Michael: If you're cute, slide in those DMs.


45:52 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

46:12 Leon: From the Westwood One Podcast Network.