On the Legacy of Buck v. Bell in Modern Mechanisms of Eugenics

Introduction

Following the Supreme Court’s decision in Skinner v. Oklahoma (1942), compulsory sterilization laws were strictly scrutinized and deemed unconstitutional unless they are narrowly tailored to compelling government interest. By striking down Oklahoma's Criminal Sterilization Act of 1935, the Supreme Court renders the right to procreate a fundamental one; however, it fails to overturn Buck v. Bell (1927), where forced sterilization of those considered genetically unfit did not violate the Constitution. The act is struck down on the grounds of a lack of scientific evidence that criminal behavior is hereditary, meaning the Supreme Court sees nothing wrong with using sterilization if a person is mentally impaired or if their condition is hereditary. Be it forced sterilization or any other modern mechanism, the government of the United States is currently able to pursue eugenics if it argues for a compelling government interest and narrow tailoring of their mechanism. While Buck is no longer used as a valid precedent, its influence promotes the use of genetic engineering and assisted reproductive technologies (ARTs) as mechanisms for practicing modern eugenics against individuals with disabilities, akin to the historical practice of forced sterilization.

Supporting my argumentative claim made above, I first identify the justifications of eugenics through forced sterilization at the time of Buck by analyzing Justice Oliver Holmes’ argumentation in Buck, as well as bringing in evidence about the social attitudes towards eugenics at the time. In the second section, I analogize the use of genetic engineering and ARTs to the use of forced sterilization as mechanisms of eugenics. Once I establish that genetic engineering and ARTs are modern mechanisms of eugenics, I extrapolate social attitudes towards eugenics through these modern mechanisms by using Gabrielle Goodrow’s contention that capitalism and neoliberalism make us attach valuelessness to disability. In that same section I draw similarities between the justifications of eugenics through forced sterilization at the time of Buck and the justifications for genetic engineering and assisted reproductive technologies in the modern world. I then allocate a section to examining how the frequent disregard of scientists’ responsibility for the outcome of Buck in modern literature could make scientists today feel less responsible for negligence in providing genetic engineering and assisted reproductive technologies to people. In the fifth section, I address the alternative world where Buck is overturned, completely eradicating any human enhancement from medical research, including vaccination as Holmes suggested in Buck. Finally, I will discuss the equity, race and disability implications of encouraging modern mechanisms of eugenics.

Justification of Eugenics through Forced Sterilization in the Period of Buck v. Bell

In his majority opinion in Buck, Justice Holmes presents two main arguments for forced sterilization of disabled persons: (1) people with disabilities must be sterilized for the better good of society, and (2) people with disabilities must be sterilized for their own good. His first argument is a utilitarian one, since it focuses on justifying forced sterilization of people with disabilities as an outcome producing economic benefits for the greatest number of people within the United States who are able-bodied but negatively affected economically by the presence of people with disabilities in their society. Holmes also understands that promoting his utilitarian argument comes at the cost of the rights of persons with disabilities, which American society has a duty to protect since people with disabilities, just like children, are by nature dependent upon the rest of the population. His second argument therefore aims to take care of the individual rights and interest of the disabled persons, which closely resembles individualism in the importance of self-reliance and individual rights.

Holmes’s utilitarian argument focuses on the threat to society’s future welfare of the procreation of people with disabilities. We start observing this utilitarian notion when Holmes claims that “the welfare of society may be promoted in certain cases by the sterilization of mental defectives.” In his view, “defective” people are a “menace” to society and “sap the strength of the State.” The only way for them to benefit society — the “lesser sacrifice” people with disabilities could commit — is if they become “incapable of procreating … in order to prevent our being swamped with incompetence” [1]. Holmes proposes the idea that it is economically burdening for the state to support people with disabilities. However, the burden is not one that materially exists, rather an intangible burden on a fully healthy workforce. When Buck was being decided, there was no governmental budget allocated to any social welfare program in the United States, let alone one that would benefit people with disabilities. In fact, the first Social Security Act was enacted in 1935 during the Franklin D. Roosevelt administration. Thus, it is evident that Holmes, writing this opinion in 1927, could not be referring to any expenditure burden that people with disabilities were actually posing — he was concerned with fulfilling the economic potential of the workforce that would not have, in his opinion, ‘incompetent’ people with disabilities unable to contribute to the workforce. In his decision, Holmes puts great weight on the economic utilitarianism of forced sterilization of people with disabilities, not only through the lens of public spending as one would expect, but also through evaluating the future economic potential of society, wrongfully implying that no person with disabilities is able to produce economically worthy work.

Since the issue of forced sterilization is one where individual rights of people with disabilities are posed as in competition with the interests of society in maximizing their welfare, Holmes avoids appearing callous and presents an individualist argument that would still support forced sterilization. He claims that “the health of the patient … may be promoted in certain cases by the sterilization of mental defectives” [2]. The health benefits that Holmes alludes to though are nowhere to be found in the rest of the opinion except for the fact that sterilized “defective persons … might be discharged with safety and become self-supporting with benefit to themselves” [3]. There seems to be a logical gap in how sterilization makes one incapable of fully participating in society due to their disability suddenly be able to do so once they can no longer procreate. Holmes argues that people with disabilities and their “degenerate offspring … starve for their imbecility” and both are therefore “manifestly unfit from continuing their kind” [4]. Just like in his utilitarian argument, Holmes is concerned with the potential quality of life individuals with disabilities may have if they are born. For the sake of this paper, I do not need to evaluate the soundness and persuasiveness of Holmes’s argument – it is enough to know that the thought process Holmes embarked upon to justify eugenics through forced sterilization involved an individualist approach too.

Once we identify the justification of eugenics through forced sterilization in the majority opinion of Buck, it is important to understand that Holmes does not have a unique view on this matter – the vast majority of the nation went through the exact same thought process recognized above. The 1937 Cooper Hewitt case involved the forced salpingectomy of a woman labeled a “moron.” Following this case, Fortune surveyed their readers on attitudes towards eugenics through forced sterilization to find that “66% favored compulsory sterilization of ‘mental defectives,’” whereas the Los Angeles Times Sunday Magazine reportedly documented increased volumes of “mail from women expressing concern over others’ fitness to reproduce,” thus endorsing forced sterilization [5]. According to Alex Stern, “many sterilization advocates viewed reproductive surgery as a necessary public health intervention that would protect society from deleterious genes and the social and economic costs of managing degenerate stock” [6]. The reason why both the public was so supportive of the eugenics movement and social reformers advocated for forced sterilization legislation is that at the time, prominent scientists like Harry Laughlin, who was the Eugenics Director of Carnegie Institution of Washington, asserted that “the sum total of human freedom and human happiness will be greatly promoted, in the long run, by eugenical processes which call for the elimination of degenerate and handicapped strains, from the racial stocks” [7]. When credited researchers make utilitarian claims of this kind and produce books for legislators to use when enacting pro-eugenics statutes, it is hard for others to not promote these claims, let alone make persuasive arguments against them. Thus, in the early 20th century, forced sterilization became legalized in over 30 states, which led to the sterilization of more than 60,000 mentally disabled, ill, or socioeconomically disadvantaged individuals. California alone sterilized approximately 20,000 men and women between 1909 and 1979 [8]. It is therefore clear that eugenics through forced sterilization found support of most Americans, if not on the individualist grounds the Holmes attempted to argue, then surely on the utilitarian ones.

Genetic Engineering and Assisted Reproductive Technology as Mechanisms of Eugenics

Genetic engineering and assisted reproductive technology, while no longer labeled as mechanisms of eugenics, serve no other function but the promotion of eugenic beliefs, just as forced sterilization used to. Genetic engineering involves the process of medical intrusion in order to get rid of undesirable traits in one’s own body or their offspring. The use of assisted reproductive technologies entails medical intrusion into the natural selection process of gametes, again with the purpose of ensuring offspring does not inherit undesirable traits. Both procedures, just like sterilization, necessitate medical intrusion and are executed to prevent the birth of children with certain traits. The prevention of the birth of disabled persons ‘enhances’ the human population, thus rendering genetic engineering and ARTs mechanisms of eugenics.

Although one may argue that genetic engineering and ARTs are distinct from forced sterilization due to the coercive matter of the latter, the potential advantage children born with the help of genetic engineering or ARTs might have over naturally born children will essentially force parents to engage in eugenics. Roberta M. Berry, in her discussion on the public understanding of the wrongfulness of Buck, introduces a hypothetical situation where capabilities enhancement becomes available to the general public and inquires whether “parents who failed to obtain such enhancements for their children would be considered guilty of neglect, as with parents who fail to ensure that their children obtain an adequate education” [9]. A very likely outcome, Berry takes into account how preoccupied parents tend to be with giving their children the best opportunities possible. Parents will therefore be compelled, if not coerced, into using genetic engineering and ARTs, which makes these mechanisms of eugenics in no way distinct from forced sterilization.

Justification of Eugenics through Genetic Engineering and Assisted Reproductive Technology

To advance my argument, it is necessary to define capitalism and neoliberalism, as well as explain how both relate to people with disabilities. The current economic system of the United States is capitalism, which is characterized by private ownership of factors of production and engagement in economic activity with a profit motive. People with disabilities have less opportunities than healthy people to survive in a capitalist society that requires constant competition for factors of production and profits. Neoliberalism embodies the political ideas present in the capitalist framework, including limited government intervention in the economy and ​​free-market advocacy. The neoliberalist movement within the United States resulted in underinvestment in the almost non-existent public healthcare, which poses severe burdens on people with disabilities, their families and the working population overall. Gabrielle Goodrow contends that the capitalist and neoliberal nature of the modern world nurtures within us the belief that people with disabilities are of less value, to extrapolate upon the justifications of the use of genetic engineering and assisted reproductive technology as a mechanism of modern eugenics on utilitarian and individualistic grounds.

Goodrow takes Shoshana Magnet’s claim that neoliberalism produces anxiety for one’s health to argue that this anxiety forces us to associate disability with valuelessness. For Magnet, “the erasure of the New Deal and the US state’s increasing divestment of the care of its citizens (including cutting programs upon which people with disabilities depend for their very survival) has produced a cultural climate of anxiety that is central to the affective realm of neoliberal governance” [10]. Goodrow subsequently argues that “this constant fear that one’s inattention to one’s own health can precipitate an inexorable slide into disability and valuelessness is productive and entrenching for neoliberal society” [11]. Living in a capitalist society makes us realize how much the quality of our life is dependent upon our socioeconomic status. People with disabilities, be it physical or mental, find it difficult to integrate into our society – many require infrastructural accommodations, are met with avoidance and exclusion in social contexts, cannot find employment, are burdened financially to support their disabilities, which inherently allocates them into a lower socioeconomic status, striping them of many opportunities to participate fully in our world and enjoy a high quality of life. The neoliberal and capitalistic nature of the United States greatly devalues people with disabilities as compared to healthy people.

The devaluation of people with disabilities in a neoliberal and capitalist society serves as both a utilitarian and individualistic ground for justifying the use of genetic engineering and ARTs. People with disabilities in a neoliberal society with decreasing government spending on medical care, infrastructure and social benefits, and in a capitalist society where much of their value depends upon their capabilities to engage in economic activities, are burdened both financially and psychologically. It is therefore not surprising that most people if they were to have a child would not see anything wrong with using genetic engineering and ARTs to avoid them having a disability. It seems that we would be acting in the interests of the individual if we were to prevent their disability in the first place, which parallels Holmes' potential quality of life argument. Neoliberalism being entrenched into our society also makes us believe that (1) if there are less people with disabilities, the US government would not have to allocate as much funding as it does now to people with disabilities within their social security programs and (2) the dependency ratio within America would fall as the proportion of people with disabilities would decrease, decreasing taxation burdens on the healthy population and promoting economic growth. Here, the neoliberal argument contends that this will “ultimately benefit not only the child, but society as a whole” [12], which I believe is analogous to Holmes’ utilitarian future economic potential of society argument. Consequently, the justification of eugenics through genetic engineering and assisted reproductive technology still follows the same utilitarian and individualistic beliefs it did through forced sterilization at the time of Buck. The standing of Buck therefore gives way for the social attitudes towards genetic engineering and ARTs as a modern mechanism for eugenics against people with disabilities.

Responsibility of Scientists when Advocating for Eugenics Mechanisms

Buck’s standing and modern disregard for the partial blame that scientists carry in the outcome of the case discourages researchers in genetic engineering and ARTs from feeling socially responsible and thus being reluctant to implement findings of their research into medicine and public policy. Many inquiries into the legacy of Buck focus on the role that legislators, policy makers, Supreme Court justices, and lawyers on both sides played in advancing eugenics in the US. However, as Roberta M. Berry suggests “perhaps we should refine our understanding of the wrong done in Buck v. Bell, focusing more of our attention upon the failure of practitioners of science to live up to their professional and public obligations” [13]. Prominent scientists of the time believed that (1) feeble-mindedness was a mental health condition and (2) all mental health conditions were hereditary. Even though there seemed to be a wide consensus on the validity of both of those claims, there was also a lack of actual scientific proof. “A wide and deep consensus is no guarantee of correctness, just as scientific change is no guarantee of progress toward the truth of the matter.” Scientists should therefore feel socially responsible for their findings in case they are ever used as a basis for public policy. However, “governmental decision-makers, after all, are held accountable in the domain of public policy, not science” [14]. The fact that Buck has not been overturned demonstrates to modern scientists that scientists of the time were never held accountable for promoting eugenics through forced sterilization and that likewise they are unlikely to ever bear responsibility in case eugenics through genetic engineering and ARTs goes wrong. As a result, the standing of Buck allows scientists to not feel socially responsible for negligence when it comes to modern mechanisms of eugenics, which promotes the use of genetic engineering and ARTs as these mechanisms against individuals with disabilities to this day.

Alternative World If Buck v. Bell Is Overturned and Subsequent Implications

If Buck were to be overturned, would that not rid the human race of all forms of eugenics, including vaccination and disease-treatment? I argue that the alternative world where Buck is overturned would not pose a threat to these mechanisms of eugenics, because there is a significant distinction between genetic engineering and ARTs, and vaccination and disease-treatment.

It is true that according to a definition of eugenics I established earlier in this essay, any medical intrusion that eradicates an undesirable trait in one’s own body or their offspring is a mechanism of eugenics. This does therefore mean that compulsory vaccination or any other treatment of diseases is in one way or another a mechanism of eugenics. In fact, Holmes equates vaccination to forced sterilization as a mechanism of eugenics in the majority opinion of Buck, by alleging that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Holmes’s view is largely influenced by Harry Laughlin’s work whereby he also asserts that vaccination is in no way different from sterilization — “compulsory vaccination is analogous to compulsory eugenical sterilization to the extent that ... both involve the seizure of the individual and subjecting him or her to surgical treatment,” where “both vaccination and sterilization are done supposedly for the public good” [15]. Even in our times, anti vaxxers advance this argument. The documentary "Shots: Eugenics to Pandemics" attempts to draw connections between the history of eugenics and modern vaccination efforts, implying that vaccines are a form of population control similar to past eugenic practices [16]. Consequently, it would be fair for someone to assume that in overturning Buck we would forgo the benefits of vaccination and medical treatment.

Nevertheless, overturning Buck would not affect vaccination or any other treatment of diseases, because these mechanisms, unlike genetic engineering and ARTs, have no connection to altering the genetic constituents of who we are. While personhood is dependent on numerous social factors, being a human being is dependent solely on one’s genetic identification as human. Every single one of us is distinct in our genetic essence and that is what makes us different human beings. Genetic engineering and ARTs deal with one’s genes directly, whether before their birth or during their lifetime, which means that these mechanisms of eugenics alter the essence of which human being one is. Gene modification might not affect one as a person, but it surely does as a human being. Vaccination and disease-treatment are under the definition of this essay mechanisms of eugenics, but they do not have any effect on one’s genes and therefore do not change one as a human being. Genetic engineering and ARTs, and vaccination and disease-treatment are distinct in their impact on human-being-ness. Thus, overturning Buck and ridding this society of genetic engineering and ARTs would not eradicate vaccination and disease-treatment.

Conclusion

In this essay, I have shown how genetic engineering and ARTs are mechanisms of eugenics that arose as a result of Buck v. Bell being upheld. This is demonstrated through the consistency in justifications of eugenics through genetic engineering and assisted reproductive technology with the justification of eugenics through forced sterilization in the period of Buck, as well as the impact that the standing of Buck has on the social responsibility of scientists who promote the use of genetic engineering and ARTs as mechanisms of eugenics. Overturning Buck would not affect mechanisms of eugenics that do not alter us as human beings, i.e. vaccination and disease-treatment, which on my side only leaves the exploration of implications on equity, race and disability in a world where Buck is still in standing and encouraging the use of genetic engineering and ARTs as mechanisms for practicing modern eugenics against individuals with disabilities.

The use of genetic engineering and ARTs as eugenics mechanisms will pose equity concerns to people of different socioeconomic status. In her article, Berry argues that if every child will be entitled to basic capabilities enhancement through genetic engineering or ARTs, just as every child right now is entitled to an education, the government would have to fund equal access to these mechanisms of eugenics. This implies that unless we reach the point where genetic engineering and ARTs are government-funded, there will be considerable equity issues as those of higher socioeconomic status will be able to engage in modern eugenics, leaving people unable to fund these mechanisms deprived of these opportunities. Thus, the existing gap between socioeconomic classes will widen since those privileged with a higher quality of life will have offspring that will be able to enjoy an even better quality of life through their enhanced capabilities, leaving those of a lower socioeconomic class at the same quality of life if not worse.

This essay has talked a lot about the implications of eugenics on disabled persons, but never defined the concept of “disability,” which is exactly what one should consider when promoting access to genetic engineering and ARTs for avoiding undesirable and defective traits. In his book on the ethics of genetic engineering, Michael J. Sandel references an incident where a deaf couple “in hopes of conceiving a deaf child, ... sought out a sperm donor with five generations of deafness in his family,” because they “considered deafness a cultural identity, not a disability to be cured” [17]. Who is to decide the definition of disability because a person who has hearing capabilities would be reluctant to strip their child of an opportunity to hear. However, in the context where both parents are deaf it does not seem all that immoral? Giving anyone, even each person individually, the authority to define “disability” could produce an outcome where genes connected to skin color, and therefore those impacting one’s race, could be construed as defective, leading to further stigmatization of racial minorities, struggling in our current society. The use of genetic engineering and assisted reproductive technologies as mechanisms for practicing modern eugenics against individuals with disabilities, raises numerous equity, race and disability concerns, which highlights how much is at stake when cases like Buck continue promoting these mechanisms.

Bibliography

[1] Buck v. Bell, 274 U.S. 200 (1927)

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Lombardo, as cited in Suuberg, 2020, p. 126.

[6] Stern, 2016, as cited in Suuberg, 2020, p. 119

[7] Laughlin, Harry Hamilton, and Illinois. Municipal Court . Psychopathic Laboratory. 1922. Eugenical Sterilization in the United States. Chicago]: Psychopathic Laboratory of the Municipal Court of Chicago.

[8] Ko, 2016, as cited in Suuberg, 2020, p. 118

[9] Berry, R M. 1999. “From Involuntary Sterilization to Genetic Enhancement: The Unsettled Legacy of Buck V. Bell.” Notre Dame Journal of Law, Ethics & Public Policy 12 (2): 401–48.

[10] Magnet, 2013, as cited in Goodrow, 2019, 140.

[11] Goodrow, Gabrielle. 2019. “Biopower, Disability and Capitalism: Neoliberal Eugenics and the Future of ART Regulation.” Duke Journal of Gender Law & Policy 26 (2): 137–55.

[12] Ibid.

[13] Berry, R M, “From Involuntary Sterilization to Genetic,” 401–48.

[14] Ibid

[15] Laughlin, Hamilton, and Illinois. Municipal Court . Psychopathic Laboratory, Eugenical Sterilization in the United States

[16] IMDb. "Shots: Eugenics to Pandemics." Accessed June 28, 2024. https://www.imdb.com/title/tt16968086/.

[17] Sandel, Michael J., and JSTOR. 2007. The Case Against Perfection : Ethics in the Age of Genetic Engineering. Cambridge, Massachusetts: The Belknap Press of Harvard University Press.