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NAELA News Journal - NAELA Journal Online

A More Perfect Union: Eugenics in America

By Miriam H. Markfield, Esq.

Now that we know the laws of heredity, it is possible to a large extent to prevent unhealthy and severely handicapped beings from coming into the world. I have studied with great interest the laws of several American states concerning prevention of reproduction by people whose progeny would, in all probability, be of no value or be injurious to the racial stock. … [T]he possibility of excess and error is still no proof of the incorrectness of these laws. It only exhorts us to the greatest possible conscientiousness.

— Adolph Hitler1

I. Introduction
Most people have probably heard the term “eugenics” at some point. However, fewer people know that by the mid-20th century, two-thirds of American states had passed laws authorizing the sterilization of “unfit” citizens. Very few, I think, know that had American eugenics advocates had their way, they would have gone even further. While the definition of who was unfit varied across jurisdictions and became intertwined with the racism, sexism, and other prejudices already deeply rooted in American society, the eugenic argument always began by targeting people with disabilities. Elder and special needs law attorneys, who represent the interests of clients vulnerable to eugenic rhetoric and policy, are in a unique position to identify and combat eugenic threats to people with disabilities. Understanding the history of the American eugenics movement and the evolution of its rhetoric may help elder and special needs law attorneys better serve their clients and advocate for these marginalized groups when they are targeted now and in the future. With that context in mind, here is the story.

Not every story has a clear beginning, but this one does. It begins in a monastery in Moravia, in what is now the Czech Republic. There, in the mid-19th century, a monk and failed high school teacher contented himself with studying pea plants. His name was Gregor Mendel, and through his meticulous research, he observed that there were predictable results when cross-breeding his vegetables. Depending on whether the plants he bred were tall or short, the pods smooth or wrinkled, he could identify dominant and recessive traits that might predict the form of the resulting organism.

Mendel’s work focused on plants — manipulating them to better serve the desires of humans. There was nothing new about the idea that humans could benefit from encouraging the survival of plants and animals with desired traits and from weeding out those with undesirable traits.2 As far as anyone knows, this has been going on since humans began cultivating crops and breeding animals — though success, or lack thereof, was often attributed to divine intervention.3 But Mendel’s work and that of others in the mid-19th century posited something new: the idea that humans not only could manipulate plant and animal characteristics with predictable results but also could replicate this feat. It was a revolutionary idea, yet few grasped the implications of Mendel’s research upon its publication in 1865. Mendel was disappointed in the reception his research received. He died in 1884. The monastery destroyed his notes.

And there it all might have ended, but Mendel’s work on pea plants was rediscovered after his death and reread in the light of the works of Charles Darwin and others. Mendel’s neglected work became the basis for a new science, a science that would seek to perfect humanity itself and to eliminate poverty, disease, and immorality once and for all. This new science promised to cure every ill the species had ever faced, and Americans, ever eager for novelty, technology, and science, embraced the promise. That promise would spread farther than Mendel could have dreamed. What began in a remote Moravian garden would spread to the hollers of Appalachia, the prisons of California, and the ovens of Auschwitz.

II. Inventing the Human Race
While Mendel was studying his plants and just before the United States convulsed in civil war, Charles Darwin outlined his theory of evolution in The Origin of Species. Scientists the world over celebrated the work, but the implications of Darwin’s theories also resonated in Darwin’s own family. His younger cousin Francis Galton was especially enthralled by the theory of evolution. A keen observer of the people around him, Galton had long suspected that certain traits could be passed through generations of family members. The problem was that although humans had a long history of breeding animals and cultivating crops, it had always been assumed that humans existed on a separate plane, created in the image of God and therefore distinct from other living things. Darwin’s theory freed Galton from that constraint and led him to extrapolate that if it were possible “to obtain by careful selection a permanent breed of dogs or horses gifted with particular powers of running … so it would be quite practicable to produce a highly gifted race of men by judicious marriages during several consecutive generations.”4

If it sounds odd today to hear plant cultivation and animal breeding compared with human reproduction, it made perfect sense to Galton and his contemporaries. As Nancy Isenberg notes in her bestselling book, “Almost as a mantra, eugenicists compared good human stock to thoroughbreds, equating the wellborn with superior ability and inherited fitness.”5

Francis Galton was a Renaissance man with an affinity for mathematics. The emerging field of statistics appealed to his desire to categorize things and draw connections between seemingly unrelated ideas. Galton studied the family trees of illustrious Britons, realized the need to differentiate the effects of nature versus nurture on individuals, came up with the concept of statistical correlation, and developed “a theory of the physical mechanisms of heredity.”6 The latter would be the basis for understanding genes and chromosomes and by extension their impact on human development.7 Once taken with the idea of inheritable traits in humans, Galton devoted his life’s work to understanding how to improve the human race. In 1883, he named his area of study “eugenics,” a term that combines the Greek words for “well” and “born.”8 Galton concluded that men and women with the most desirable “mental, moral, and physical” traits should marry and produce offspring that would gradually improve the “race.”9 By encouraging “eugenic marriage,” Galton posited that society could improve the entire human species. This approach became known as “positive eugenics.”10

The timing of Galton’s work could hardly have been better because experts in crime, economics, politics, medicine, and the emerging fields of psychology and sociology were beginning to grapple with how to fix problems that plagued Victorian society. Indeed, in the eyes of well-to-do men such as Galton, there seemed to be a great many social problems accompanying the Industrial Revolution. Poverty, disease, prostitution, and crime all seemed to be increasing at a terrifying rate. In the United States, there was the added complication of racial strife in a country recovering from the devastating Civil War. Eugenics, it was believed, offered a solution.11

It was around this time that Mendel’s work was rediscovered, due in part to a strange coincidence. In 1900, 16 years after Mendel’s death, a biologist named William Bateson was grading papers at Cambridge when he saw Mendel’s then-obscure work referenced by three separate students. Darwin’s theories had informed Bateson’s study of the natural world, and as it happened, Bateson had already been conducting his own research on biological variation in plant cultivation and animal breeding. He presented his work and reintroduced Mendel’s theories to the Royal Horticultural Society and shortly thereafter expanded his studies to a new field he dubbed “genetics.”12 This rediscovery of Mendel’s research, combined with Galton’s work and that of his cousin Darwin, added a veneer of scientific legitimacy to the eugenic cause.

While Galton and his followers were developing eugenics as a discipline in Britain, the United States was embroiled in its brutal Civil War, followed by the difficult task of reconstructing the defeated South. The world into which the once-more-united United States emerged seemed full of eugenic “promise.” Moreover, new threats to “Anglo-Saxon blood purity” multiplied. In the South, there was confusion about the meaning of race, class, and blood now that previously enslaved black people had become citizens. In the Northeast, pressure came from the waves of immigration from what were considered undesirable regions — Southern and Eastern Europe and Ireland, in particular. And besides the presence of new members of American society, there was a profound absence of the hundreds of thousands of white American men whose “prized” Anglo-Saxon blood had congealed in the dirt of Civil War battlefields.

Five years after Galton’s Hereditary Genius posited that positive human traits could be transferred from one generation to the next, an American named Richard Dugdale set out to prove that negative traits could be similarly transferred within families. Like Galton, Dugdale spent years sifting through countless records to piece together family trees. The difference was the subject matter. Whereas Galton documented the lineages of prominent families, Dugdale studied the “criminals, vagrants and paupers,” people to whose records he, as the head of the New York Prison Association, had easy access.13 He documented the lives of dozens of families, eventually concluding that more than 700 of these individuals shared a common ancestor he designated “Margaret, mother of criminals.” He called Margaret’s descendants the “Jukes.” In 1877, he published The Jukes: A Study in Crime, Pauperism, Disease and Heredity.14

It is difficult to overstate the impact of Dugdale’s work in American reformist circles. Though he stressed the importance of improving environmental factors and promoting education in order to reduce crime and poverty, Dugdale’s book quickly became a touchstone for anyone trying to prove that negative human tendencies were the result of nature, not nurture. To Galton and many other researchers and reformers, the study of the Jukes proved that criminality was an inherited trait. In subsequent years, multiple “studies” of other euphemistically named families appeared and pointed to similar conclusions.15

The improvement of humanity became the cause of the age. The idea that society valued some types of people more than others was not new. Alexis de Tocqueville observed, “The idea of [human] perfectability is … as old as the world.”16 “Aristocratic nations,” he said, “are naturally too apt to narrow the scope of human perfectibility; democratic nations to expand it beyond compass.”17 Essentially, although Tocqueville thought different countries might take different approaches to the idea, he believed that they were all predisposed to think that humans could create better versions of themselves over time. It stood to reason that “better breeding must assume a better breed, and the ‘survival of the fittest’ — believed to be the brutal and fundamental law of nature — must assume the presence of the ‘unfit.’”18

What was new was the idea that science, rather than piety, could enable human perfection. The cause could not be more urgent. Every indicator suggested that the population of the “right” kind of people was decreasing while the population of the “wrong” kind of people was reproducing at an alarming rate. In a letter written when he was British Home Secretary (February 1910 to October 1911), Winston Churchill expressed the concern of the day: “The unnatural and increasingly rapid growth of the feeble-minded and insane classes, coupled as it is with a steady restriction among all the thrifty, energetic and superior stocks, constitutes a national and race danger which it is impossible to exaggerate.”19 Across the pond, in 1913 Theodore Roosevelt wrote that “the prime duty, the inescapable duty, of the good citizen of the right type is to leave his or her blood behind him in the world; and that we have no business to permit the perpetuation of citizens of the wrong type.”20

In 1889, Galton articulated the concept of the “germ-plasm,” the component that could pass certain traits from one generation to the next. This was essentially what we now know as a gene. Unfortunately for Galton, though his work attracted significant interest around the world, research funds in Britain were not forthcoming.

There was no shortage of cash in the United States though, as long as one knew where to look. A handful of men — politely termed “industrialists” and less politely “robber barons” — had prospered enormously in the years before antitrust regulation and a federal income tax. One of these was Andrew Carnegie, who sold his steel empire to J.P. Morgan in 1901 for $400 million — equivalent to nearly $12 billion today.21

From then on Carnegie dedicated his life and money to charitable causes, chief among them the mission of the Carnegie Institution for Science to pursue “the improvement of mankind” through science. Almost as soon as the institution was created in 1902, Charles Davenport, a Harvard-educated biologist and admirer of Galton, applied for funds to construct a Long Island research facility for the study of biological variation and “race change.”22 In addition to Carnegie, Davenport also cultivated a relationship with Mary Harriman, the wealthy widow of a railroad tycoon.23

Around the same time, Davenport was securing his philanthropic funding, he cemented a relationship with the American Breeders Association (ABA), a new entity whose members believed “that their emerging Mendelian knowledge about corn and cattle was equally applicable to the inner quality of human beings.”24 The ABA, along with Davenport’s newly established Eugenic Records Office (ERO), in Cold Spring Harbor on Long Island, worked tirelessly to promote the eugenic cause. Davenport appointed passionate eugenicist Harry Laughlin to run the ERO, which gathered data on “defective” residents of state institutions as well as ordinary Americans who voluntarily completed and returned questionnaires asking about family histories of disability.25 Relying on this information and on generous funding from like-minded philanthropists, the ERO and ABA embarked on a campaign to educate Americans about eugenics and to lobby those in power to enact eugenic policies.

In late the 19th and early 20th century America, one of the more glaring federal policy issues was immigration. The United States had always been a nation of immigrants, but for generations, many of those immigrants came from the British Isles, Western Europe, and Scandinavia. Moreover, they came at a fairly steady pace. For a number of reasons, this changed in the late 19th century. From 1890 to 1910, 12 million immigrants streamed into the United States, most from non-Nordic countries in Southern and Eastern Europe.26

To certain people, it seemed that unchecked immigration from what they considered less desirable countries might alter the Anglo-Saxon character of the United States. At the time, American society did seem in danger of tearing at the seams. Black Americans were ostensibly free in the South, and many moved north for greater opportunity. Conflict arose between employers and nascent labor unions. New political theories — communism, socialism, and anarchy — threatened the stability of the U.S. government. Technology promised to increase the speed of change, transform industry, and remake the economy. By 1914, the entire world became embroiled in the first-ever global conflict. Things were changing everywhere, terrifying many Americans.

Members of Congress were as concerned as anyone else about the effect non-Nordic immigration might have on the fabric of American society. Still, they believed they could only go so far in stemming the tide of such immigration without understanding more about the science of racial differences. Congress turned to Harry Laughlin, Charles Davenport’s protégé, to educate them.27

In the spring of 1920, Laughlin appeared before Congress to explain the relationship between eugenic science and immigration policy. He began by narrating the story of the Jukes and similar accounts that suggested certain negative traits run in families.28 He went on to explain terms of art such as “moron” and “idiot,” which denoted different levels of intellectual functioning. According to Laughlin, the recent waves of immigration were troubling for two reasons. First, non-Nordic immigrants — Southern and Eastern Europeans and Jews — were disproportionately represented in American prisons and asylums. This, he explained, was because these immigrant groups produced “a higher rate of defective children.”29 Second, and equally troubling to Laughlin, was his belief that immigrant women seemed naturally more fertile than Anglo-Saxon women. The biggest danger of all, he believed, was not that immigrants might outbreed “real Americans.” It was that allowing Jews, Italians, Russians, and other “undesirables” into the country — not to mention the black population whose ancestors had not come willingly to the United States — would inevitably compromise the purity of Anglo-Saxon blood. The inevitability of race mixing, according to Laughlin, had everything to do with the documented promiscuity, fecundity, and strange allure of “women of a lower race.” Their alleged tendency toward stupidity and vice notwithstanding, Laughlin believed that these women were irresistible to Anglo-Saxon men and must be guarded against. He believed that permitting them to reproduce would be “race suicide.”30

Implicit in fears of race suicide and the quest for racial purity was the notion that a person’s blood belonged to that person’s racial community. As Laughlin explained to members of Congress, “The character of a nation is determined primarily by its racial qualities; that is, by the hereditary physical, mental, and moral or temperamental traits of its people.”31 To those who believed as Laughlin did, the fate of a nation was therefore directly related to and dependent on control of its bloodline. In The Passing of the Great Race, Madison Grant put this bluntly:

Mistaken regard for what are believed to be divine laws and a sentimental belief in the sanctity of human life, tend to prevent both the elimination of defective infants and the sterilization of such adults as are themselves of no value to the community. The laws of nature require the obliteration of the unfit, and human life is valuable only when it is of use to the community or race.32

Grant’s work became phenomenally popular and influential all over the world. Grant even received a fan letter from a young German who called Grant’s book “his Bible.”33 At the time, the young German was developing his own racial and eugenic theories. He eventually published them in a volume he titled Mein Kampf.

Four years after Grant’s words appeared in print, his publisher — Scribner — debuted The Rising Tide of Color Against White World-Supremacy, by Lothrop Stoddard. Stoddard echoed the fear that the United States’ pure white heritage could easily fall because of association with — and necessary contamination by — other races.34

Five years after Scribner published Stoddard’s work, the publisher printed a novel that received mixed reviews. That novel was The Great Gatsby. Generations of Americans have read the work, yet it is easy to overlook a detail that F. Scott Fitzgerald included in the first chapter of the now-famous book. In it, the boorish Tom Buchanan asks:

Have you read “The Rise of the Colored Empires” by this man Goddard? … The idea is that if we don’t look out the white race will be — will be utterly submerged. It’s all scientific stuff. It’s been proved.35

It is widely acknowledged that Fitzgerald was making a thinly veiled reference to Stoddard’s book in this passage. What the publisher of all these works might have thought of this is lost to history. The reference, though, serves to illustrate how eugenic ideas about race had thoroughly permeated American society in the early 20th century.

American proponents of eugenics advanced their ideas in a systematic way — a eugenic continuum. It may be difficult to comprehend how Mendel’s pea plants and Galton’s family trees could have anything to do with forced sterilization, Jim Crow policies, and Nazi death camps, yet there is a direct line connecting all of them.

What is so dangerous about eugenic theory, particularly as it developed in the United States, is that it was and is so simple to convince people to support it. An examination of eugenic rhetoric and policy in different decades across different cultures reveals that the same ideas crop up over and over again, in more or less the same order. The steps along this eugenic continuum are differentiation, alienation, segregation, sterilization, and elimination. American eugenicists advocated every step along the way.

III. The Eugenic Continuum

A. Differentiation
The first step on the eugenic continuum — differentiation — is the simplest. It just requires convincing a person or group that he or she or the group differs from another person or group in some meaningful way. American eugenics proponents grasped that education was critical to helping the American public distinguish the fit from the unfit. For its part, the ERO offered courses to train social workers and concerned Americans on how to develop “family pedigrees” in furtherance of the ERO’s mission to collect data on American families and to justify concerns about the heredity of defective traits.36 Eugenicists created “fitter families” contests at state fairs to encourage fit families to submit eugenic pedigrees and medical information in exchange for a chance to win a trophy.37 The American Eugenics Society sponsored the “better baby” contests that had become popular in the early 20th century because of support from women’s rights campaigners.38

A 1929 poster from a fair in Kansas illustrates a typical argument for designating certain people as different. It read: “Unfit human traits such as feeblemindedness, epilepsy, criminality, insanity, alcoholism, pauperism and many others, run in families and are inherited in exactly the same way as color in guinea pigs.”39 Typically, a set of stuffed guinea pigs in a range of color variations accompanied such displays.40

B. Alienation
Once a person or group accepted that there were different types of people — whether based on differences in social class, ability, religious affiliation, race, or something else — the eugenicists moved to the second step, alienation. In their rhetoric, eugenicists argued that not only were certain groups different but also their differences were in some way incompatible with the dominant social order. Eugenicists believed that it was not simply that the group was different; it was that their differences were a problem. Sometimes, the problem was presented as a financial one; for example, “At the Sesquicentennial Exposition in Philadelphia, the American Eugenics Society exhibit included a board that … revealed with flashing lights that every fifteen seconds a hundred dollars of [Americans’] money went for the care of persons with bad heredity.”41

For eugenicists, though, the real problem was that the people they considered unfit would spread their “afflictions” through reproduction, thereby perpetuating unnecessary suffering for generations to come. “The human race, one proponent [of eugenics] declared in 1909, was poised ‘to dry up the springs that feed the torrent of defective and degenerate protoplasm.’”42 Eugenics proponents believed that for the sake of the human race, the unfit must be alienated from the fit population and exposed for the danger they posed. Proponents of eugenics quickly settled on a handful of what they considered especially dangerous types of people. Generally speaking, these categories included people with several types of obvious disabilities, people with certain diseases, and people whose behavior was deemed antisocial. In 1911, a group of dedicated American eugenicists delineated 10 categories: “First, the feebleminded; second, the pauper class; third, the inebriate class or alcoholics; fourth, criminals of all descriptions including petty criminals and those jailed for nonpayment of fines; fifth, epileptics; sixth, the insane; seventh, the constitutionally weak class; eighth, those predisposed to specific diseases; ninth, the deformed; tenth, those with defective sense organs, that is, the deaf, blind and mute.”43

C. Segregation
After the step of alienation, the eugenic continuum left the realm of theory and entered the realm of policy. If certain groups of people were considered dangerous to society, it stood to reason that society should find ways of protecting itself from them. The third step was segregation. This came in many forms and was especially attractive because mechanisms of segregation already existed in most communities. Institutions such as prisons, almshouses, asylums, and hospitals for patients with specific conditions — such as epilepsy — were an established part of society.44 For generations, these institutions had been the only means to deal with behaviors and conditions that science otherwise had been unable to address. Indeed, American proponents of eugenics frequently coordinated with these institutions to gather data on their charges in order to compile evidence that “defectives” could endanger the gene pool. In the early 20th century, the ABA approved a proposal to promote the segregation or long-term incarceration of the people it considered unfit during their fertile years.45

The Virginia State Colony for Epileptics and Feebleminded was one such institution. It “was founded for the care of … [unfit] women until their ability to have children had passed.”46 Under the leadership of Dr. Alfred Priddy in the early 20th century, the Virginia State Colony adopted sterilization as a common practice for women who seemed feebleminded or immoral. Priddy sometimes castrated boys at the colony, but he was particularly concerned with the danger posed to society by fertile women who might pass their unfit characteristics on to their children.47

There was another avenue of segregation as well, which involved preventing what was considered the wrong types of people from entering the country in the first place. Proponents of eugenics advocated limiting immigration to the United States based on race and ethnicity. Charles Davenport, ERO founder, gave voice to the concerns of many when he suggested that “we build a wall high enough around this country so as to keep out these cheaper races,” lest the country be surrendered to “the blacks, browns and yellows … .”48 On the West Coast, racism against Chinese and Japanese immigrants prompted Congress to pass the Chinese Exclusion Acts in 1882 and 1902.49 In general, though, American immigration policy traditionally had been driven more by economic concerns than racial ones. Congress took the first step toward a targeted eugenic immigration policy with the Immigration Restriction Act of 1917. That act broadened existing bans on Asian immigrants and restricted immigration based on a person’s mental health, political ideology, poverty and literacy.50

The final means of segregation advocated by American eugenicists was also primarily racially motivated — marriage restriction. In the early to mid-19th century, the United States expanded westward, and eugenicists believed that it was imperative that the people settling new territories be of pure Anglo-Saxon stock. In Texas, however, the Mexican government encouraged marriage between members of different races. After Texas gained its independence, it passed “its first antimiscegenation law in 1837,” largely in response to concerns that intermarriage with too many Mexicans would taint the Anglo-Saxon bloodline.51 California followed Texas in implementing laws to protect the Anglo-Saxon bloodline, particularly from Chinese immigrants. Southern states, of course, were most concerned about what they considered the dangerous possibility of intermarriage between blacks and whites. As eugenic arguments gained traction in the early 20th century, eugenicists helped advance “‘one drop’ racial integrity laws” and antimiscegenation laws.52 Though they enjoyed success in this area, proponents of marriage restriction acknowledged that “laws against intermarriage cannot solve the negro problem in any of its aspects — industrial, economic, political, social, biological or eugenical. They can, however, delay the evil day and give time for the evolvement of an effective solution … a real and final solution.”53

D. Sterilization
Although proponents of eugenics believed that segregation would keep healthy Americans safe from what they considered the poisoned genetic material of the unfit, it was not a perfect solution. One of the most significant problems was cost. Proponents of eugenics realized that mass incarceration of the unfit would require huge amounts of money from government and philanthropists, and they bristled at the idea of spending such amounts on groups of people whom they believed should not have existed in the first place. Margaret Sanger, birth control activist and sometime ally of the American eugenics movement, admonished Americans that “our eyes should be opened to the terrific cost to the community of this dead weight of human waste.”54

There was an alternative that was cheaper than incarceration and had the added benefit of guaranteeing that those who were considered unfit could not pass on their “defective” genes. Enter step four: sterilization. American proponents of eugenics were enthralled by the idea of compulsory sterilization of the unfit. It seemed to go to the very heart of their goal to protect the purity of the human bloodline.

While Davenport set up his Long Island laboratory and pondered the theoretical basis for eugenic policy, other men were quietly applying eugenic ideas to human specimens. It was doctors, not researchers or politicians, who first acted to guard against the “defective” germ-plasm. The specter of the Jukes haunted the imaginations of members of the medical community as much as anyone else. Many doctors accepted the premise that certain negative traits could run in families and that crime, disease, and immorality would continue as long as those “afflicted” with these traits continued to reproduce. Doctors working with charities, asylums, and prisons had frequent contact with persons who were considered sick, insane, or criminal, and these doctors were uniquely positioned to address the problem.

By the 1890s, certain physicians began to experiment with asexualization as a cure for masturbation, “unseemly sexuality” (particularly in women), and epilepsy.55 The original prescribed remedy was castration for men and oophorectomy (removal of the ovaries) for women. A few doctors — in Pennsylvania, Massachusetts, and Kansas — admitted to using these surgeries for “therapeutic” purposes. One physician, who headed the evocatively named Kansas Asylum for Idiots and Feeble-minded Youths, castrated more than 50 children in his charge.56 Many other doctors voiced support for the practice but refused to state whether they had performed the procedures themselves. It was generally understood, though, that asexualization operations were quietly taking place in institutions across the country.57 There was, however, a problem with castrating wards of the state — the public abhorred it. When word got out about the children in the Kansas institution, for example, most people were shocked, but a number of physicians applauded efforts to prevent undesirable people from reproducing.58 Still, among the general public, castration was viewed as too brutal even for criminals.

A turning point came in 1899 when Dr. A.J. Ochsner published a journal article explaining how males could be sterilized by vasectomy, a much less aggressive procedure than “emasculation.”59 Reducing the brutality of the procedure made it easier for eugenicists to promote sterilization. Within less than 10 years, bills began popping up in state legislatures and state governments, encouraged by doctors, to sanction sterilization of “unfit” persons.60

Michigan was the first state to introduce a bill legalizing the sterilization of criminals. In an interesting antecedent to the habitual offender or “three-strikes” laws that would sweep the country a century later, the 1897 Michigan bill recommended sterilization for male and female “three-time felons.”61 The Michigan bill narrowly failed in the state senate, as did a similar bill put forth in Kansas.62

A few years later, Pennsylvania attempted to legalize sterilization of anyone whose “offspring … will be necessarily a curse to society.”63 The bill, which focused on “mental defectives” and was supported by the state’s medical community, passed both houses of the Pennsylvania legislature.64 The Pennsylvania governor, however, was alarmed both at the sweeping discretion the bill afforded surgeons and by the “cruelty” of involuntarily sterilizing “a helpless class in the community which the state has undertaken to protect.”65 The governor vetoed the bill.

Indiana became the first state to pass a eugenic sterilization law. While the idea of “therapeutic” sterilization enjoyed broad support in the state’s medical community, Dr. Harry C. Sharp of the Indiana Reformatory was particularly instrumental in demonstrating the usefulness of sterilization. Sharp, who declined to administer anesthesia to his patients,66 claimed to have performed vasectomies on hundreds of male inmates “for the purpose of producing mental and physical improvement, as well as for the prevention of procreation.”67 In light of Sharp’s successes, the Indiana legislature took up a bill that was similar to the Pennsylvania measure. Unlike the governor of Pennsylvania, however, Indiana’s governor had no qualms about signing a law predicated on the notion that “[h]eredity plays a most important part in the transmission of crime, idiocy and imbecility.”68

Other states soon adopted similar measures, though the target population varied somewhat. New Jersey passed a bill along the lines of the Pennsylvania and Indiana models. The New Jersey measure gave broad discretion to an appointed panel of physicians to determine whether and how certain criminals, the mentally ill, and “other defectives” should be asexualized. Woodrow Wilson, then governor of New Jersey, supported the measure.69 The New Jersey law, however, did not survive the state’s Supreme Court, for reasons explored below.

In 1909, California adopted the broadest eugenic sterilization law in the country. It effectively allowed the heads of most state institutions (e.g., prisons, hospitals, homes for children) to decide which of their charges to surgically asexualize.70 Connecticut took up a similar law.71 Eventually, 32 states legalized involuntary sterilization for certain population groups.

Despite the enthusiasm for state eugenics laws, there remained an impediment to a eugenic America. There was no judicial precedent to justify sterilization of the so-called unfit. In fact, eugenic sterilization laws faced significant opposition in some cases. As in Pennsylvania, a few governors vetoed sterilization bills. The general public never really warmed to the idea of government determining who should and should not reproduce. Moreover, while many physicians advocated eugenic sterilization, there was still no consensus in the medical community that sterilization of the so-called unfit was effective or appropriate. In South Dakota, a group of doctors simply refused to perform the operations after that state passed its sterilization law.72

A few challenges to the constitutionality of the state laws arose, though in general, the people targeted by the laws lacked the resources to bring cases to court. This was certainly true in Virginia, which may be why the Mallory case came as such a surprise. Like many other states, Virginia had considered various eugenic measures, typically with vocal support from the state’s medical community, but several early attempts to pass a eugenic sterilization measure failed.73 Eugenics advocates kept pushing and in 1916, Virginia approved a law granting doctors broad discretion to perform sterilization surgeries on people held in prisons or asylums as long as the goal was to benefit the individuals physically, mentally, or morally.74

The 1916 law did not explicitly refer to sterilization, but it could be interpreted as permitting sterilizations of individuals in state institutions. Dr. Albert Priddy, eugenics enthusiast, certainly took that view, and in his capacity leading the Virginia State Colony for Epileptics and Feebleminded had a captive population of women he considered unfit. Even though some of the women might have had legitimate mental health or substance abuse problems, Priddy focused his eugenic interest on something altogether different: female sexuality. It seems that one of the main functions of the colony was to isolate prostitutes, unwed mothers, women who were suspected of wanting to engage in sexual activity, and other “immoral” types.75 The idea was that if they could be kept out of the community, they could not spread their “degeneracy” by reproducing. However, it was clear to eugenics proponents that many of the women, if they could be prevented from breeding, could function outside the colony. To eugenics proponents, sterilization seemed like the perfect solution.

Authorizing sterilizations of women and girls was fairly straightforward. It was easy to label them as “feebleminded,” sometimes as a result of an IQ test,76 or as “immoral,” a term that could encompass all manner of behaviors. One 16-year old girl was sterilized for showing an interest in boys and passing them notes.77 Though less common, Priddy did approve boys for sterilization, often due to their “feeblemindedness” and sometimes to cure them of masturbation. Priddy had one boy circumcised in order to treat his alleged epilepsy.78 Because of his position of authority and because most of the people he dealt with were poor and uneducated, Priddy was able to convince family members to consent to have their loved ones sterilized. So it is not surprising that Priddy expected no resistance when he began his involvement with the Mallory family.

The Mallorys were poor, and they were numerous. Willie Mallory, the mother, birthed 12 children, nine of whom survived. George Mallory, the father, often worked out of town, leaving Willie at home with the children for long stretches of time. Because the family sometimes was forced to rely on charity to get by, Sarah Roller, who worked for the Richmond Juvenile and Domestic Relations Court, knew the Mallorys. Roller frequently notified Priddy about “problem girls who might become future Colony inmates.”79 Priddy and Roller corresponded about the Mallory family and targeted them for sterilization after the passage of the 1916 Virginia law.

One night while George Mallory was out of town, police took his family away on trumped-up charges. The young children were placed in the custody of a foster agency. Sarah Roller had Willie Mallory and her two teenage daughters declared “feebleminded” and committed them to the Virginia State Colony, bypassing the proper legal channels.80 While the women were in the custody of the colony, George frantically tried to get his wife and daughters released. Priddy refused repeated requests to release them, even though he had no commitment papers to justify their detention. He eventually let Willie and her older daughter leave the colony, but only after he had them sterilized. Priddy kept the other daughter at the colony for months longer, clearly intending to subject her to the same procedure.81

What Priddy did not anticipate was George Mallory’s persistence. Though he was poor and barely literate, George wrote many letters demanding his daughter’s freedom and warning Priddy “not to opreated [sic] on my child.”82 Unfazed by Priddy’s threats to have him arrested for objecting to his family’s mistreatment, Mallory sued.83 Eventually, all of the Mallory children were returned home. Priddy narrowly avoided having to pay damages for sterilizing Willie Mallory because the jury accepted the argument that the surgery was medically necessary. The trial judge, however, admonished Priddy not to try the same thing again. The Mallory case had a chilling effect on sterilization programs, at least for the time being.84

Virginia eugenicists did not give up, however. The Mallory case simply showed them that they would have to proceed carefully if they wanted eugenic sterilization to be the law of the land. For years, Priddy and his fellow eugenicists promoted their cause. One such proponent was Aubrey Strode, an attorney for the Virginia State Colony and a man with significant political contacts. After reviewing various legal challenges to the constitutionality of other state sterilization laws, Strode drafted his own bill to avoid the common pitfalls. Strode’s bill became law in 1924. The next month, Priddy submitted a list of women he wanted to sterilize.

Despite the careful preparation of the 1924 law, its supporters knew it would face a challenge. The best strategy was to get ahead of it. The Virginia State Colony hired Strode himself to defend against the anticipated lawsuit.85 The woman selected for the test case was named Carrie Buck. As a young girl, Carrie had been taken in by a Charlottesville family named Dobbs. She was more or less their foster child, though she did work around the house to earn her keep. When she was 16 and unmarried, Carrie became pregnant.86 This was scandalous for the Dobbs family not only because of Carrie’s condition but because she said the family’s nephew was the father. Moreover, she claimed that the nephew had raped her.87 The Dobbses sent Carrie away to give birth, after which they committed her to the colony, claiming that she was feebleminded and prone to epileptic seizures.88 Priddy himself examined Carrie after her arrival at the colony and found that she was literate and exhibited “no evidence of psychosis.”89

Nevertheless, two things made Carrie Buck supposedly dangerous. First, her claim of rape notwithstanding, her out-of-wedlock pregnancy suggested sexual immorality, which Priddy detested. Second, Carrie’s mother Emma had been committed to the colony years earlier, accused of prostitution, drug use, out-of-wedlock pregnancies, and general untidiness, among other things. It is difficult to know how accurate any of those claims were. For one thing, there was evidence that she had been married and that her children were legitimate.90 Nevertheless, Carrie’s treatment and that of other young women reveal that authorities were willing to distort facts in order to commit women they did not like. At any rate, Emma Buck received the diagnosis of “moron.”91

This is what made Carrie Buck’s case such a perfect test of the new sterilization law. Priddy carefully followed all the proper procedures to have Virginia State Colony officials agree to sterilize Carrie. Priddy wanted no repeat of the Mallory case. Carrie’s interests were represented by a guardian appointed by the colony’s board. Once the board agreed to the operation, the guardian simply had to hire an attorney to challenge the determination. Having Carrie represented by an attorney was part of Strode’s plan to show that Carrie had received due process.

Carrie’s guardian hired Irving Whitehead, a respected Virginia attorney who also happened to be a “confidant of Priddy, boyhood friend to Aubrey Strode, former Colony director, and sterilization advocate.”92 Considering his personal views and connections, Whitehead was perhaps not the best person to advocate for Carrie Buck. On the other hand, Whitehead was an experienced attorney and was doubtless aware of his duty of loyalty to his client. Yet by almost any standard, his representation of Carrie left much to be desired. For example, he allowed an expert to assert that Carrie had syphilis, though Whitehead knew she did not. In questioning the same expert, Whitehead essentially conceded that Carrie was feebleminded and sexually immoral, as her mother had been.93 Worst of all, the eugenic argument went, the same defective germ-plasm ran through the veins of Carrie’s baby girl. That Carrie had produced a “deficient” child was supported by a social worker’s assertion that the 8-month-old looked “not quite normal.”94 Carrie’s attorney did not question the assessment of the child.

The conduct of Carrie’s attorney was egregious, and the expert testimony speculative at best. The majority of witnesses to Carrie’s “feeblemindedness” had by their own admission never even met her.95 Nevertheless, Carrie’s sterilization under the 1924 Virginia law was affirmed time and again, all the way up to the U.S. Supreme Court. In 1927, Justice Oliver Wendell Holmes Jr. wrote the majority opinion in Buck v. Bell. Because Justice Holmes took such pride in the opinion,96 it seems fitting to reproduce his words here:

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, 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.97

Carrie Buck worked hard for the rest of her life, though she never escaped poverty. She died in a nursing home in 1983. Her daughter, Vivian, did not live to adulthood. She succumbed to measles at the age of 8 — after making the honor roll at school.98

Within 4 years of the decision in Buck v. Bell, 28 states passed sterilization bills such as Virginia’s.99 Perhaps the best evidence of the case’s effect on eugenic sterilization in the United States is the marked increase in sterilization surgeries after Buck v. Bell. While a number of states had sterilization laws on the books before 1927, there was enough uncertainty that many states had not put them into practice. By 1940, more than 35,000 American adults had been sterilized through state programs. Nearly 30,000 of these operations took place after Buck v. Bell.100

E. Elimination
In some cases, American proponents of eugenics believed that even sterilization was not enough; therefore, these proponents reserved a final step on the eugenic continuum: elimination. Similar to other aspects of the continuum, even this extreme option had precedent that society had long approved. There was one group of people that human societies had always authorized killing — criminals. To American eugenicists, criminality was just as hereditary as blindness or any other condition and criminality was just as dangerous to the racial stock. The problem was finding a way to humanely kill large numbers of people. Once again, 19th-century Victorian technological advancements offered a solution. It was called a “lethal chamber.” Originally developed “as a means of humanely killing stray dogs and cats” with cyanide gas, the lethal chamber immediately appealed to eugenicists.101 Discussion of using lethal chambers to kill the so-called unfit prompted some backlash in Britain, but many British and American eugenics proponents still touted the merit of the idea.102

As with sterilization, when it came to killing people who were considered unfit, individual doctors with eugenic sympathies sometimes took matters into their own hands. It was widely understood among the Chicago medical community that “[q]uiet euthanasia of [defective] newborns was not uncommon.”103 In 1915, Dr. Harry Haiselden caused a sensation when he deliberately withheld lifesaving treatment for a newborn he claimed was “deformed” (a witness who pleaded for him to save the baby’s life disagreed that there was anything wrong with the child).104 In a hearing before Chicago’s health commission, the panel of physicians also disagreed that there was any reason to believe “that the child would have become mentally or morally defective.”105 Nevertheless, they determined that as a physician, Haiselden was entitled to make the final decision about whether to save the child’s life.106 Significantly, their reasoning suggests that they might have even approved euthanasia if there had been more evidence that the child was unfit. After his vindication, the doctor admitted in several interviews that in addition to refusing lifesaving treatment, he had also allowed babies he deemed unfit to bleed to death and even killed some of them himself with injections of opiates. Some Americans were stunned, but eugenicists such as Davenport praised the use of “one of Nature’s greatest racial blessings — death.”107

Adolph Hitler, long an admirer of American eugenic theory, became chancellor of Germany in 1933. Within the year, Hitler and his Nazi party had taken over the German government. This total control allowed Hitler to institute his Law for the Prevention of Progeny With Hereditary Diseases,108 which he modeled on American eugenic theory and legislation. American proponents of eugenics were thrilled with Hitler’s progress, and some of them carried on friendly correspondence with Nazi leaders, including Hitler himself. At the same time, the Americans were frustrated that their efforts could not keep up with the Nazi program. In 1934, Dr. Joseph DeJarnette lamented to a Virginia newspaper, “The Germans are beating us at our own game.”109 DeJarnette’s words carried some weight at the time, as he was the longstanding superintendent of Virginia’s Western State Hospital. Indeed, he had held the same position 10 years earlier, when he appeared as an expert witness in Carrie Buck’s first trial.110

The original German eugenic sterilization program targeted the so-called feebleminded and epileptics, of course, in addition to people diagnosed with schizophrenia, manic depression, alcoholism, Huntington’s disease, physical abnormalities, deafness, and blindness. The last three categories applied specifically to people with congenital physical disabilities, deafness, or blindness.111 Injured people were not targets of the program. After all, many German veterans of World War I had limbs amputated or experienced another disability as a result of their service. The thinking was that their defects were not hereditary and therefore not dangerous. During his military service in World War I, the Führer himself was treated for blindness, which he claimed was caused by mustard gas. Doctors attributed it to some sort of mental collapse.112 Either way, Hitler did not seem to perceive that he had anything in common with the population of “defectives” he planned to eliminate.

We all know what happened. The Nazis proceeded through the eugenic continuum that American eugenicists had only dreamed about. First, what were considered defective populations were segregated from healthy Germans. As in the United States, many people with disabilities and mental illnesses were already housed in hospitals and asylums. For certain other “undesirables” and political opponents of the Nazis, the first concentration camp, Dachau, opened in 1933. Later the same year, the Nazis passed a eugenic sterilization law. Compulsory sterilizations began in 1934.113 Also in 1934, IBM began working with the Nazi government to develop a punch card system that could record health and racial characteristics of all Germans. The system was similar to the categorization system the ERO had developed to track negative eugenic traits in Americans. The technology was just more advanced by the 1930s. IBM’s machine could sort 25,000 cards per hour with the ultimate goal of “eradicating the unhealthy, inferior segments of German society.114 With the tracking system in place, in 1935, the Nazis implemented the Nuremberg Laws, which stripped Jews of their German citizenship and prevented them from marrying non-Jews.115 The Nuremberg Laws and the coordinated violence of Kristallnacht in 1938 were designed not only to terrify the Jewish population but also to make living in Nazi territory so unpleasant that Jews would emigrate.116 In 1939, the first ghettos were created to segregate Jews from Germans of pure blood and eventually to funnel Jewish populations into the concentration camp network.117

Segregation and sterilization alone, the Nazis believed, were not enough. By the late 1930s, Nazi policy shifted toward eliminating so-called unfit populations altogether. In 1940, the Nazi state directed physicians in state institutions to select candidates for euthanasia. As many as 100,000 people who were considered burdens on the state — the elderly, disabled, and mentally ill — were gassed to death in the backs of sealed trucks.118 The Nazis “improved” their technique over the years, culminating in the systematic killing of millions of Jews and other minorities in “showers” pumped full of Zyklon B. That part of the story is more familiar to most of us, but it all began with groups of disabled people selected by their own doctors to be suffocated with carbon monoxide.

IV. Manifest Destiny
It is easy to invoke Nazi atrocities as the inevitable result of extreme ideology. Rhetorically lazy or not, “the widespread phenomenon of glibly comparing someone else to Hitler or Nazis to win an online argument” became so common in the internet age that it was given a name: Godwin’s Law.119 The law states, “As an online discussion continues, the probability of a reference or comparison to Hitler or Nazis approaches 1.”120

It would be easy to believe that the Holocaust was an aberration born of Hitler’s own madness and the evil lure of fascism. It would be comforting to think that if American eugenicists had known the horror that would be perpetrated in the name of eugenics, they would have reconsidered their theories. In truth, the evidence suggests that what happened in Nazi-occupied Europe was the logical outcome of American eugenic theory. First, each step in the Nazi “final solution” had been proposed first in American eugenic circles. Second, eugenicists and others in the United States knew a good deal about what Hitler was doing before and during World War II. Third, American eugenics programs continued even after the disclosure of the Nazi crimes. For example, in North Carolina, the sterilization program “expanded after World War II, even as most other states pulled back in light of the horrors of Hitler’s Germany.”121

Even today, a misconception persists that Americans and the world were largely ignorant of Nazi atrocities until the end of the war. The truth is that these atrocities “were chronicled daily on the pages of America’s newspapers, by wire services, radio broadcasts, weekly newsreels, and national magazines.”122 Nevertheless, the trials at Nuremberg laid bare the full extent of Nazi crimes for the first time. Prosecutors devoted considerable time and particular attention to the eugenic policies and practices of the Nazi regime, but they needed a new term to describe a type and scale of crime unlike anything the world had ever seen. They chose the word “genocide” to describe the crimes that arose from the Nazi eugenic policy.123 Prior to the Nuremberg proceedings, the United Nations approved the Convention on the Prevention and Punishment of the Crime of Genocide, which provides as follows:

[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.124

Prosecutors had ample evidence to prove the Nazi defendants — many of whom were physicians — guilty of genocide.125 There was, however, something discomforting about the defenses employed by the Nazis. Their attorneys insisted on pointing out that the policies underlying the Holocaust had a great deal in common with American eugenics.126

V. An American Dream
The countless human lives damaged or simply wiped off the face of the earth because of eugenic belief did not result from “excess and error,” as Hitler put it. This erasure of human lives was contemplated from the very beginning of the eugenics movement. It was the price of perfection — blood for blood. In his seminal The Souls of Black Folk, W.E.B. DuBois wrote, “It is a hard thing to live haunted by the ghost of an untrue dream.”127 What the eugenicists failed to realize was the seductive but wrong assumption underlying their dream. DuBois articulated the assumption in the same seminal work: that to be different is to be “a problem.” Eugenicists decided that certain people — those with disabilities, nonwhites, the poor, the mentally ill, and so many others — were problems. You see this in the language they employed. The existence of certain people was a problem. Eugenics proponents offered a “final solution.”

The story is not over, and eugenic ideas have not disappeared. Today, eugenic ideas appear in the news regularly. There is an ongoing debate among people with disabilities and their allies about the ethics of prenatal screening for disabilities and selective abortion if disabilities are detected.128 Setting aside the politics of abortion, this discussion is particularly fraught in the United States, where a child’s medical needs might bankrupt his or her family.

Eugenic ideas appear in the courts and prisons, where the state exercises considerable control over the accused and convicted. California, home to the country’s largest eugenics program in the early to mid-20th century, allegedly sterilized 150 women in its prisons from 2006 to 2010.129 In February 2018, an Oklahoma judge gave a woman a reduced sentence on fraud and drug charges after she agreed to the judge’s suggestion that she be sterilized.130

Marginalized populations, especially people with disabilities, remain vulnerable to eugenic threats and abuse. Every eugenics movement, from Britain to the United States to Nazi Germany, began by targeting people with disabilities and differences. It was easy to designate them as problems, whether because of the costs of their care, society’s unwillingness to accommodate their needs, or fundamentally, the fact that their lives were not seen as valuable. As we learn more about addressing disabilities, these arguments will not go away. They will simply evolve. Language may change or soften, but the underlying assumption will remain: Some people are problems in want of a solution. Therefore, it is imperative that elder advocates, elder and special needs law attorneys in particular, understand eugenic rhetoric and the very real danger it poses.

Citations
1 Edwin Black, War Against the Weak: Eugenics and America’s Campaign to Create a Master Race 275–276 (Four Walls Eight Windows 2003).

2 In an early written example, a treatise by Xenophon — a Greek philosopher and historian, among other things, who lived during the 4th and 5th centuries B.C. — discusses the breeding of dogs for hunting. See Xenophon, The Works of Xenophon (H.G. Dakyns trans., U. of Adelaide Lib. 2014) (first published 1897).

3 Black, supra n. 1, at 13.

4 Harry Bruinius, Better for All the World: The Secret History of Forced Sterilization and America’s Quest for Racial Purity 91 (Alfred A. Knopf 2006).

5 Nancy Isenberg, White Trash: The 400-Year Untold History of Class in America 175 (Viking 2016).

6 Bruinius, supra n. 4, at 106.

7 Id.

8 Black, supra n. 1, at 15.

9 Bruinius, supra n. 4, at 94.

10 Black, supra n. 1, at 18. Of course, implicit in Galton’s notion of positive eugenics was the idea that reproduction would occur in the context of marriage. The fact that reality, especially for poorer people, was sometimes different would become a driving force behind the negative eugenics movement.

11 Bruinius, supra n. 4, at 139–140.

12 Black, supra n. 1, at 26.

13 Id. at 24.

14 Id.

15 Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 10 (Johns Hopkins U. Press 2008).

16 Alexis de Tocqueville, Democracy in America ch. VIII (Henry Reeve trans., Bantam Books 2000) (first published 1835).

17 Id.

18 Bruinius, supra n. 4, at 12.

19 Id. at 6.

20 Black, supra n. 1, at 99.

21 CPI Inflation Calculator, $400,000,000 in 1901 $11,816,295,185.88 in 2018, Off. Data Found./Alioth LLC, https://www.officialdata.org/1901-dollars-in-2018?amount=400000000 (accessed Dec. 30, 2018).

22 Black, supra n. 1, at 35–36.

23 Lombardo, supra n. 15, at 31.

24 Black, supra n. 1, at 39.

25 Id. at 44; Lombardo, supra n. 15, at 34–35.

26 Bruinius, supra n. 4, at 256.

27 Id. at 15.

28 Id. at 257.

29 Id. at 258.

30 Id. at 259.

31 Id. at 255.

32 Id. at 265 (quoting Madison Grant, The Passing of the Great Race ch. I (Charles Scribner’s Sons 1916)). As Bruinius notes, the book is currently accessible in its entirety on various websites that generally advocate Grant’s position. The author elects not to direct the reader to any such sites.

33 Black, supra n. 1, at 259.

34 Hua Hsu, The End of White America? The Atlantic (Jan./Feb. 2009), https://www.theatlantic.com/magazine/archive/2009/01/the-end-of-white-america/307208 (accessed Dec. 30, 2018).

35 F. Scott Fitzgerald, The Great Gatsby 17 (Simon & Schuster 1st Scribner Paperback Fiction ed. 1995) (first published 1925).

36 Lombardo, supra n. 15, at 34–35.

37 Daniel Kevles, Annals of Eugenics: A Secular Faith II, The New Yorker 52, 54 (Oct. 15, 1984).

38 Bruinius, supra n. 4, at 235.

39 Isenberg, supra n. 5, at 196.

40 Kevles, supra n. 37, at 57.

41 Id.

42 Andrea DenHoed, The Forgotten Lessons of the American Eugenics Movement, The New Yorker (Apr. 27, 2016) https://www.newyorker.com/books/page-turner/the-forgotten-lessons-of-the-american-eugenics-movement (accessed Dec. 30, 2018).

43 Black, supra n. 1, at 58.

44 Id. at 54.

45 Id. at 60.

46 Lombardo, supra n. 15, at 62–63.

47 Id. at 60–61.

48 Black, supra n. 1, at 37.

49 Bruinius, supra n. 4, at 256.

50 Id.

51 Isenberg, supra n. 5, at 141.

52 Black, supra n. 1, at 174–175.

53 Id. at 175.

54 Id. at 130. It should be noted that Sanger frequently clashed with leading American eugenicists, particularly because she advocated access to birth control for wealthy “fit” women, whom eugenicists believed should be required to produce as many children as was practicable. Id. at 139.

55 Lombardo, supra n. 15, at 20–21. It should be noted that at the time, “epilepsy” was often used as an umbrella term to describe many mental illness symptoms, antisocial behavior, and seizure disorders.

56 Bruinius, supra n. 4, at 148.

57 Lombardo, supra n. 15, at 21–22.

58 Bruinius, supra n. 4, at 148.

59 Id. at 149.

60 Id. at 150–151.

61 Lombardo, supra n. 15, at 21.

62 Id.

63 Bruinius, supra n. 4, at 150.

64 Lombardo, supra n. 15, at 22.

65 Bruinius, supra n. 4, at 151.

66 Lombardo, supra n. 15, at 22.

67 Ltr. From Dr. Harry C. Sharp to Gov. Thomas H. Marshall, Opposition to the Possible Unconstitutional Ruling of the Sterilization Law (May 13, 1909), http://ulib.iupuidigital.org/cdm/ref/collection/Eugenics/id/1610 (accessed Dec. 30, 2018).

68 Lombardo, supra n. 15, at 25; Bruinius, supra n. 4, at 151.

69 Lombardo, supra n. 15, at 26.

70 Id.

71 Id.

72 Id. at 91.

73 Id. at 59.

74 Id. at 60.

75 Id. at 61.

76 Intelligence tests were also developed and promoted by eugenicists in order to prove the transmissibility of intelligence or feeblemindedness. Black, supra n. 1, at 76.

77 Id. at 61.

78 Id. at 63.

79 Id. at 64.

80 Id. at 66.

81 Id. at 67–68.

82 Id. at 70.

83 Id. at 68.

84 Id. at 76.

85 Id. at 101.

86 Id. at 103.

87 Id. at 140.

88 Id. at 104.

89 Id. at 105.

90 Id. at 106.

91 Id.

92 Id. at 107.

93 Id. at 127.

94 Bruinius, supra n. 4, at 67.

95 Lombardo, supra n. 15, at 117.

96 Bruinius, supra n. 4, at 72.

97 Buck v. Bell, 274 U.S. 200, 207 (1927).

98 Bruinius, supra n. 4, at 76–77.

99 Id. at 72.

100 Black, supra n. 1, at 122–123.

101 Id. at 247.

102 Id. at 248–249.

103 Id. at 253.

104 Id. at 252.

105 Id. at 253.

106 Id.

107 Id. at 254.

108 Id. at 299.

109 Id. at 277.

110 Lombardo, supra n. 15, at 127.

111 Black, supra n. 1, at 299.

112 Peter Caddick-Adams, The Secret Madness of Adolph Hitler, Salon (Jan. 3, 2015), https://www.salon.com/2015/01/03/the_secret_madness_of_adolf_hitler (accessed Dec. 30, 2018).

113 Black, supra ,n. 1, at 299.

114 Id. ,at 309.

115 Id. at 311.

116 Id. at 316.

117 U.S. Holocaust Meml. Museum, Ghettos, Holocaust Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005059 (accessed Dec. 30, 2018).

118 Black, supra n. 1, at 317.

119 Abby Ohlheiser, The Creator of Godwin’s Law Explains Why Some Nazi Comparisons Don’t Break His Famous Internet Rule, Wash. Post (Aug. 14, 2017), https://www.washingtonpost.com/news/the-intersect/wp/2017/08/14/the-creator-of-godwins-law-explains-why-some-nazi-comparisons-dont-break-his-famous-internet-rule/?utm_term=.1986e94fb443 (accessed Dec.
30, 2018).

120 Id.

121 Kevin Begos, Lifting the Curtain on a Shameful Era, Winston-Salem J. (Dec. 9, 2002). This piece was part of an award-winning series about the history of North Carolina’s eugenics program. The series, titled Against Their Will, ran in 2002.

122 Black, supra n. 1, at 299.

123 The term was actually coined before the end of World War II by Raphaël Lemkin, a Jewish attorney of Polish descent who escaped the Nazis and became a professor at Duke University. Black, supra n. 1, at 402. Lemkin’s research on the Nazi eugenics campaign influenced the Allies and the Nuremberg prosecutors as they built a case against the Nazis. Id. at 404.

124 Id. at 404–405 (quoting U.N. Off. of the High Commr. for Human Rights, Convention on the Prevention and Punishment of the Crime of Genocide (1948), https://www.ohchr.org/en/
professionalinterest/pages/crimeofgenocide.aspx
(accessed Dec. 30, 2018).

125 Bruinius, supra n. 4, at 316.

126 Id. at 315.

127 W.E.B. Du Bois, The Souls of Black Folk pt. V (1903) (2008 ebook published by Project Gutenberg at https://www.gutenberg.org/files/408/408-h/408-h.htm) (accessed Dec. 30, 2018).

128 Marsha Saxton, Disability Rights and Selective Abortion, in Abortion Wars: A Half Century of Struggle, 1950–2000 374 (Rickie Solinger ed., U. of California Press 1998).

129 Lisa Ko, Unwanted Sterilization and Eugenics Programs in the United States, PBS - Independent Lens (Jan. 29, 2016), http://www.pbs.org/independentlens/blog/unwanted-sterilization-and-eugenics-programs-in-the-united-states/ (accessed Feb. 18, 2019).

130 Tom Jackman, Judge Suggests Drug-Addicted Woman Get Sterilized Before Sentencing, and She Does, Wash. Post (Feb. 8, 2018), https://www.washingtonpost.com/news/true-crime/wp/2018/02/08/judge-suggests-drug-addicted-woman-get-sterilized-before-sentencing-and-she-does/?utm_term=.317dfcf2b8ef (accessed Dec. 30, 2018).

About the Author

Miriam H. Markfield, Esq., has broad experience in the areas of estate planning and elder law and is passionate about advocating for and helping other people. Ms. Markfield is particularly grateful to Rupe S. Gill, Esq., who deserves significant credit for the existence and publication of this piece.