A miscarriage of medicine (book excerpt: Three Generations, No Imbeciles)

Buck v. Bell, the 1927 Supreme Court decision approving eugenic sterilization, had its roots in a fraud, writes Georgia lawyer and historian Paul A. Lombardo.

By Paul A. Lombardo, amednews correspondent — Posted March 30, 2009

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This first excerpt shows the flimsiness of the trial evidence that purported to prove the "feeblemindedness" of three generations of Bucks -- grandmother Emma, daughter Carrie and infant granddaughter Vivian. It is what was used to justify sterilizing Carrie under Virginia's eugenics law.

Red Cross nurse Caroline Wilhelm was new to Charlottesville, having moved to town the previous February to become county administrator of public welfare. She had little firsthand experience with Carrie apart from bringing her to Lynchburg on the train early in the summer. Her first comments clearly revealed the real reason that Carrie was sent to the Virginia Colony. Wilhelm explained that Mr. Dobbs [Carrie's foster father] had reported to the welfare office that Carrie was pregnant and that "he wanted her committed somewhere -- to have her sent to some institution."

Carrie's pregnancy was a threatening prospect for the Dobbses. John T. Dobbs did maintenance work on the city streetcar line, and his wife took in foster children. Their modest house backed up to the railroad tracks, where poor whites lived in a racially mixed neighborhood. Most people of means in Charlottesville lived on the other side of the tracks -- where the University of Virginia cast its grand shadow. News of a pregnant girl in the Dobbs house would not sit well with the welfare officials, particularly since the boy who got her pregnant was Mrs. Dobbs's nephew. It was hardly surprising that the Dobbses wanted to have Carrie sent away.

Wilhelm spoke confidently, her opinion backed by her training and experience as a social worker. She thought that girls like Carrie were "more or less at the mercy of other people." Though she had never met Emma Buck, Wilhelm repeated the rumor that she had several illegitimate children. That was basis enough for her opinion that Carrie was also "very likely to have illegitimate children." Was Carrie "obviously feebleminded?" asked [Aubrey] Strode [attorney for the Virginia Colony for Epileptics and Feebleminded, which sought to have Carrie sterilized]. Proud of her expertise, Wilhelm replied "I should say so, as a social worker." Then Strode asked about the Buck baby, who had been left with the Dobbs family. How old was she? "Not quite eight months old," Wilhelm responded.


Paul A. Lombardo, a law professor at the Georgia State University College of Law's Center for Health, Law & Society, has played a key role in urging state legislatures to denounce eugenic sterilization laws.

Strode: Have you any impression about the child?

Wilhelm: It is difficult to judge the probabilities of a child as young as that, but it seems to me not quite a normal baby.

Strode: You don't regard her child as a normal baby?

Wilhelm: In its appearance -- I should say that perhaps my knowledge of the mother may prejudice me in that regard, but I saw the child at the same time as Mrs. Dobbs's daughter's baby, which is only three days older than this one, and there is a very decided difference in the development of the babies. That was about two weeks ago.

Strode: You would not judge the child as a normal baby?

Wilhelm: There is a look about it that is not quite normal, but just what it is, I can't tell.

Caroline Wilhelm obviously had a change of heart. On October 15, she had notified Strode that there was no evidence of "defect" in the Buck child. Her reluctance to comment left Strode near desperation, his case crumbling. But in the following month, she left her office in the Charlottesville business district and crossed the tracks herself. There, two weeks before the trial, she found no new evidence but did reach a new opinion. Of two babies crawling on the floor, she found one "not quite normal." She had done no tests nor any extended observations; she merely noticed "a look about it" that she could not explain.

This excerpt explains how the popular eugenics theories used to justify the forced sterilization of Carrie Buck -- and, eventually, 60,000 other Americans -- relied on shoddy science.

The picture Strode painted of the Buck family was uniformly negative. At this remove, portions of the testimony sound like mere name-calling, but the language Strode elicited from witnesses to describe Carrie's family was clearly part of the specialized vocabulary of eugenics. This testimony linked Carrie to her supposedly promiscuous mother, who was similarly tainted by the inherited trait of "moral degeneracy." Evidence about Carrie was assembled to fit neatly within eugenical theory and the label of "feebleminded." That term, particularly as it was applied to women, suggested weak intelligence, lack of inhibition, and a predisposition to sexual misbehavior.

While many eugenicists agreed that feeblemindedness was difficult to diagnose, they often claimed that being an illegitimate child or having illegitimate children was highly correlated with being feebleminded. Thus, the most damning evidence against Carrie came from two witnesses who had examined her child. In a logically circular argument, the illegitimate infant was used as confirmation that Carrie was feebleminded, just as Carrie's alleged illegitimacy was used to confirm other behaviors (such as sexual license) that were theoretically passed down through a family line from Carrie to Vivian. Illegitimacy begot feeblemindedness; feeblemindedness begot illegitimacy.

[Psychologist and eugenics researcher] Henry Goddard himself had declared that any person regularly described by neighbors as " 'not quite right' is certain to have been decidedly defective." So other witnesses were prompted to say that Carrie's sister, brother, and several cousins were "peculiar." This vague term appeared regularly in the eugenics literature as a description of the eccentric, mentally unstable, or socially unorthodox, and the witnesses referred to general "peculiarity" as cumulative evidence of inherited defects in the Buck family.

Shiftlessness was another term familiar to eugenical advocates. Field workers trained at the Eugenics Record Office learned to prepare a pedigree chart and analysis of the trait of "shiftlessness" as a characteristic feature of the Jukes family. Specific directions for charting this trait were listed in ERO manuals. [Leading eugenicist] Charles Davenport described one of his subjects portrayed in a pedigree chart as a "shiftless, worthless epileptic." Albert Wiggam, one of the most successful popularizers of eugenics, declared that "blood does tell," particularly if you descend from a line of people who are "lazy, shiftless and worthless." When [eugenics researcher] Harry Laughlin testified before Congress on the "Biological Aspects of Immigration," he stated that family histories would reveal "what sort of material the individual is made of" and clarify if someone came from "an industrious or a shiftless family." He described the infamous Jukes and the Kallikaks as examples of "worthless, mentally backward" families. He read his definition of the "socially inadequate" into the Congressional Record as a standard to use in purging "degenerating qualities" from the country's gene pool. As prominent a person as Teddy Roosevelt used similar language, describing the consequences flowing from "the unrestricted breeding of a feebleminded, utterly shiftless and worthless family."

Thus, when Laughlin echoed [the description by Dr. Albert S. Priddy, original defendant in Buck v. Bell,] of the Buck family as "mentally defective" and part of the "shiftless, ignorant, and worthless class of antisocial whites of the South," his language was typical of the jargon that eugenicists used to describe the problem families who were their research subjects. These terms, seemingly so hostile and contemptuous, were actually meant to be disinterested labels of hereditary analysis based on well-understood scientific categories.

Associate Justice Oliver Wendell Holmes Jr. authored the majority opinion in the 8-1 Supreme Court decision in Buck v. Bell, stating that "three generations of imbeciles are enough." The rest of the opinion was not any gentler.

The Supreme Court had never dealt with the merits of government-mandated surgery before, much less a law prescribing operations primarily for state benefit. But Holmes disposed of the issue in an opinion of shocking brevity. The text ran just under three full pages in the official Supreme Court Reports, and it contained little original thought. Holmes' first paragraph introduced the case as a challenge to the constitutionality of the Virginia law that called for "the operation of salpingectomy upon Carrie Buck ... for the purpose of making her sterile." Following [Chief Justice William Howard] Taft's suggestion, Holmes immediately described Carrie as "a feeble-minded white woman" living at Virginia's State Colony for Epileptics and Feebleminded. Eighteen years of age at the time of her trial, she was the "daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child." He also repeated language from the preamble of the law, declaring that "the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives," surgical sterilization could be effected "without serious pain or substantial danger," and that "experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc."

By a recitation of the many procedural steps included in the law, Holmes summarily dismissed [Buck attorney Irving] Whitehead's first contention -- that Carrie had not received "due process." The state had followed "the very careful provisions" of the law, which "protects the patients from possible abuse." After outlining the state procedures, Holmes continued, "There can be no doubt that so far as procedure is concerned the rights of the patient are most carefully considered." Virginia officials had maintained "scrupulous compliance" with "every step" prescribed in the statute, and Carrie Buck had been subjected to "months of observation." There was no doubt that she had received "due process at law."

Holmes knew that Buck's case was not about procedural protections but rather the substantive scope of the law. Whitehead claimed a right of "bodily integrity" for Carrie, contending that it was impossible to justify a sterilization that would extinguish that right. But the Virginia Legislature had specified certain grounds under which sterilization could take place. State officials had found that Buck was "the probable potential parent of socially inadequate offspring" and could endure an operation that would benefit her as well as society more generally. The trial court confirmed that proper grounds existed in Carrie's case -- as Holmes wrote, "if they exist, they justify the result."

In the Civil War, Holmes' 20th Massachusetts Regiment lost more men than any other unit in the Union Army. Holmes himself was wounded three times during the conflict, and the experience irrevocably marked his life thereafter. Harkening back to his military service, Holmes invoked the memory of his dead comrades at arms, the "best and noblest of our generation" who had fallen. "We have seen more than once that the public welfare may call upon the best citizens for their lives," he recalled. But the Carrie Bucks of the world were not to be counted in their ranks. She lived, in contrast, among those he had years earlier labeled the "thick-fingered clowns we call the people ... vulgar, selfish and base." Their dues to society were less costly. Though Holmes was later praised as the "champion of the Common Man," it is clear that if he ever had any sympathies for the lower classes, they were long gone by the time he wrote the Buck opinion.

The people called "unfit" were locked in prisons, poorhouses, and asylums, where they would not be called upon by their country to make the ultimate sacrifice. Yet "it would be strange," said Holmes, if the public "could not call upon those who already sap the strength of the State for these lesser sacrifices," such as yielding to surgery and forgoing children. Though sterilization might not seem a "lesser sacrifice" to those who faced it, it was nevertheless justified "in order to prevent our being swamped with incompetence." To a man who had taken a minié ball in the chest at Ball's Ridge and returned to the field to suffer a second wound at Antietam and a third at Chancellorsville, the inconvenience of surgery was the least that those less-than-best citizens should be asked to endure to protect society from their profligate spawn. Life was short and early death even more likely for the unfit, suggested Holmes. It would be preferable for them and the rest of society if they had never been born at all. He offered a simple solution: "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."

Excerpted from "Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell," by Paul A. Lombardo. Copyright © 2008 The Johns Hopkins University Press. Reprinted with the permission of The Johns Hopkins University Press. All rights reserved. $29.95.

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Author Q&A

Carrie Buck's attorney, Irving Whitehead, was good friends with Aubrey Strode, who represented the Virginia Colony for Epileptics and Feebleminded, which sought to have Buck sterilized. The colony paid Whitehead to take the case and he was a founding member of its board. Was this case rigged from the start?

It clearly was rigged. It is easy in retrospect to say that just because Whitehead lost, he did a bad job. But I spent a lot of time looking at the details of the case that he could have made but did not. Because of where I was located when I wrote the book, at the University of Virginia, I had the opportunity to simply retrace the reasonable kind of steps Whitehead should have taken. I went to the library, and I knew because of the records what books were there. He could have taken out the books that contained the arguments that rebutted everything the state's case contained.

The other evidence I uncovered was the fact that [Buck] was assaulted. That Whitehead never really put any kind of argument forward what would have been a defense of her condition proved to me that he didn't want to. Then, when he went before the body that was paying him and goes hand-in-hand with his supposed legal adversary, and reports how happy he was to have lost the case, it seems to me to sort of seal the deal. It was malpractice, at least. Fraud's probably a better word.

It is tempting to look back and judge harshly the physicians who sought to have Buck sterilized. What is your view?

They really thought they were doing a good thing. There was a paternalistic position that said this is really better for these people. They can't manage the burden of caring for their children, forget about society. Their motive, from a paternalistic point of view, was focused on freeing the so-called feebleminded of this burden. ... [The physicians] were not monsters. They weren't people completely out of control. They had an idea they pursued and that was wrong. It is a cheap shot to simply vilify the doctors in this case.

Current events, such as the controversy over the California "octomom," raise questions similar to those in the Buck case. Does this worry you?

There are lots of challenging questions that come up surrounding in vitro fertilization, any kind of artificial reproductive technology, that raise the issue of someone's ability to parent. But I don't hear many people clamoring for wholesale sterilization of large groups of people. That's not really on the table anymore. As I try to argue toward the end of the book, there is the prospect of the occasional case that comes up pushing people to think hard about being able to sterilize someone. But in a bigger sense, it is not a social issue in the way it was when Buck came up.

What are the lessons for physicians and the medical profession from this whole episode?

However strong our opinions are about anyone's social worth or potential value as a parent, we are treading on pretty thin ice in coercively trying to take that prerogative away from people. And this case demonstrates, if anything, the dangerous path that doctors can choose when they decide to play God with someone else's reproductive choices.

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