In the upcoming weeks, the legislators of my home state of North Carolina will be faced with a dilemma: how does a government compensate victims of a historical atrocity that was deemed legal at the time?  At the national level, this question is often asked in the context of slavery – although Congress issued an apology for slavery in 2008, was this adequate?  Should the government issue reparations as well, and if so, how should those reparations be calculated?

A similar debate is brewing in North Carolina, which instituted forced sterilization programs from the 1930s to the 1970s as part of a eugenics program aimed to reduce poverty and shrink government welfare programs.  Over thirty states had forced sterilization programs, driven by a belief that they would “improve the gene pool.”  Those who were sterilized often did not know the purpose of the surgeries until after the fact. Victims were chosen using IQ tests and social worker recommendations based on factors such as “promiscuity” and “feeble-mindedness,” and reports on mental and physical health.   The state’s Eugenics Board made the final decision on the operation.  Families were often threatened with losing their government benefits if they did not sign the sterilization consent forms.  The program disproportionately affected poor black families – 40% of those sterilized were non-white minorities, and 85% were women and young girls.

Last Friday, the NC Justice for Sterilization Victims Foundation, an organization that North Carolina Governor Bev Purdue created in 2010, issued its Final Report to the governor.  It included a recommendation to provide outreach to victims, mental health support, public education, and $50,000 in compensation to the 1,500 living victims of forced sterilization.  To many, this figure is humiliating and inadequately considers the value of the victim’s life, the loss of potential children, lifelong humiliation and regret, and the cost of medical care as a result of the procedures.  But the report states: “compensation is not meant to value life loss or the choices taken away from nearly 7,600 men and women but to serve as a strong and collective acknowledgement of an abusive government program that should never be duplicated by this state or any other government ever again.”

The Supreme Court upheld the legality of forced sterilization in the famous case of Buck v. Bell, 274 U.S. 200 (1927).  The Supreme Court held that a Virginia sterilization statute did not violate the Fourteenth Amendment and did not deny Buck (who had her fallopian tubes removed) due process and equal protection.  Justice Oliver Wendell Holmes wrote: “Carrie Buck is a feeble-minded white woman … [and] if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc.”  Due process had not been violated because the Eugenics Board provided sufficient procedures in making its decision by offering a hearing, proper notice of the hearing, and the evaluation of appropriate evidence to make a final sterilization recommendation.  Regarding the attack on the substantive law, Justice Holmes wrote that the Court could not say that there were no grounds to justify this law:

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.

In 1942, the Supreme Court’s ruling in Skinner v. Oklahoma, 316 U.S. 535 held that an Oklahoma sterilization statute violated the equal protection clause of the Fourteenth Amendment, but on grounds that still left open the possible legality of other sterilization statutes.  Oklahoma’s statute ordered sterilizations for “habitual criminals” convicted of “felonies involving moral turpitude.”  However, since larceny counted as a felony of “moral turpitude” while embezzlement did not, the Court held that “when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”   The line between larceny and embezzlement resulted in different sterilization consequences, and the Court found this line to be arbitrary.

North Carolina is in a unique position as the first state to offer compensation to victims of sterilization programs.  Professor Lombardo, a law professor at Georgia State University, argues that states should pay for these wrongs even when they were legally inflicted, likening these payments to ones paid to prisoners exonerated by DNA evidence.  North Carolina’s legislators should act with urgency to pass a resolution agreeing on financial compensation to victims.  Professor Waterstone, a law professor at Loyola (Los Angeles) notes three reasons why the state’s actions are critical: 1) the state has a moral obligation to recognize its history of wrongdoing, make amends, and create public awareness; 2) North Carolina can bring to light the modern-day ramifications of genetic discrimination, as this is especially pertinent in the healthcare industry today (such as denying insurance coverage to those with predispositions to certain diseases); and 3) Buck v. Bell has been narrowed but not explicitly overturned, and North Carolina’s actions should lead to a re-evaluation of the law.  Courts still uphold classifications based on disability using rational basis review, concluding that these laws are “rationally related” to a “legitimate government interest.”  Very recently, a Massachusetts court suggested that a pregnant woman known as Mary Moe, who suffers from schizophrenia and bipolar disorder, should be sterilized.  (The Massachusetts appellate court did reverse the lower court’s holding.)

Additionally, forced sterilization laws are not exclusive to the United States – transgendered people in Sweden who wish to legally change their gender on official papers must first get divorced and sterilized, as required by a 1972 law.  Sweden’s history of forced sterilization mirrors North Carolina’s – over 60,000 people classified as “mixed race individuals,’ single mothers with many children, deviants, Gypsies, and other vagabonds” were forcibly sterilized between the 1930s and 1970s.  Perhaps North Carolina’s actions can serve as a wake-up call to our courts and the international community that these incongruities still exist today.  The issue the state deals with today is not just about correcting a historical wrong, but equally about confronting modern-day legal challenges.