Given that Dr. Jack Kevorkian, Karen Anne Quinlan and Terri Schiavo are no longer making daily headlines, it's a little surprising that the subject of "eugenics" is back in the news. This time, it's coming to us via the national debate about proposed federal health care legislation, as well as the news of the Obama administration's "end of life counseling" materials for veterans. Written by an assisted suicide advocate, the booklet at issue includes, in the words of commentator Jim Towey, "guilt-inducing scenarios such as 'I can no longer contribute to my family's well being,' 'I am a severe financial burden on my family' and my situation 'causes severe emotional burden for my family.'"1 The booklet seems to suggest, in other words, that illness, disability or financial distress might make life not worth living.
Eugenics (Greek for "good birth") involves not only end of life decision-making, but decisions about who should be conceived, or even who should be allowed to live after conception is a fait accompli. Throughout U.S. history, citizens, legislators and judges have weighed arguments about eugenics in connection with proposals about involuntary sterilization, abortion, euthanasia and assisted suicide. Today, assisted reproductive technologies (ARTs) force us to consider eugenics.
Even a brief dip into the legal literature on eugenics reveals that many authors treat the subject as a matter of mostly historical interest. Articles and books ordinarily cover the "first wave" of eugenics laws (late 1800s to the First World War). They point out the allure of the "science" of genetics and evolution (Charles Darwin's The Origin of Species: The Preservation of Favored Races in the Struggle for Life, was first published in 1859)2, and the temptation for lawmakers to harness "science" to cure social problems like crime poverty and vice.3 Then, states' eugenic legislative proposals are covered. Many states tried and failed to pass eugenics laws before 1907; in that year Indiana finally passed a law to compulsorily sterilize "criminals, idiots, imbeciles, and rapists."4 Citizens' repugnance and constitutional guarantees (due process) stood in the way of most legislative attempts.5 Likely, so did the drop (during World War I) in the immigration rates of people thought to be racially inferior.
Histories also ordinarily describe a second wave of eugenics laws, between about 1920 and the end of World War II.6 Now, eugenics laws became popular. The Supreme Court put its stamp of approval on states' compulsory sterilization laws in Buck v. Bell7, remembered mostly for its famous utterance: "three generations of imbeciles is enough." Virginia was permitted to sterilize Carrie Buck who was described by the lawyer for the state as a member of a family of "shiftless, ignorant, and worthless …anti-social whites of the South."8 The leading indicator of Carrie's unfitness? It was likely her unwed motherhood.9 (Later attempts to legislate directly to involuntarily sterilize single mothers failed until the effort was abandoned in 1967.)10 Post Buck v. Bell, over 60,000 Americans were sterilized involuntarily.
The final portion of the historical account of eugenics usually recites the chain of events that brought the enthusiasm for eugenics to an end: the shameful fact of Nazi Germany's looking to U.S. intellectuals as the source of their own eugenics laws11; and Americans' subsequent sensitization to the terrible power of eugenics arguments. A more detailed look at the facts on the ground, however, shows that sterilizations of those deemed "unfit" continued through 1970s although in greatly diminished numbers. For example, South Carolina sterilized 104 (mostly black) inmates of a mental facility between 1949 and 1960, and North Carolina sterilized 23 more between 1970 and 1974, although mostly at the request of relatives.12
Of course, the history is fascinating…while also a national embarrassment. But it is far, far too soon to say that we are done flirting with eugenics. It is rather more accurate to conclude the following: that the government and private actors in the United States still occasionally impose direct limitations on births, frequently suggest that certain lives ought not to be conceived or born, or continue to live, and sometimes indicate that we ought to take what steps we can to improving "human stock."13 What distinguishes our behavior today from the eugenics of the past? Today, the proposal to improve the quality of the membership is framed as an invitation to "choose" to improve one's own life, or the life of children and other family members.
Direct limitation on a man's procreative abilities have been imposed generally in two types of cases. The first involves a father who conceived 9 children with 4 women but failed to pay child support. The Wisconsin Supreme Court in State v. Oakley, 629 N.W.2d 200 (Wis. 2001) banned Mr. Oakley from conceiving more children as a condition of his probation. A second direct limit on procreation involves making voluntary castration a condition of parole for repeat child molestation offenders.14 A third measure can be characterized as indirect (though serious) pressure against procreation by single mothers: some states seek to curb pregnancy rates among single mothers on welfare by denying them additional funds to care for additional children.15 Additionally, some states flirted with the idea of linking mandatory use of Norplant (an implanted, long-term contraceptive) with eligibility for welfare benefits; none adopted the idea. Today, no state requires this. Yet every state's Medicaid program includes coverage for Norplant.16 Finally, it is still the case that a family might receive court permission to sterilize a mentally disabled child. With an eye on past abuses, however, courts giving such permission will very narrowly construe it.17
Legal abortion, while never overtly framed as a eugenicist search and destroy mission against the poor, minority, and disabled, has certainly acted as such in practice. And always under the rubric of "choice." The "thalidomide baby" case used to such effect in the 1960s to push for expanded legal abortion, was framed as a matter of the anguished mother's "right" to choose abortion. Even today, approval of abortions runs rather high when the named victim is a disabled child. This likely accounts for the stunning lack of outrage when then Illinois State Senator Barack Obama helped to scuttle a law which would have stopped the killing of newborn infants in Chicago's Christ Hospital: the infants generally suffered Down's Syndrome and were accidentally born alive after "botched" abortions.18 Regarding abortion and the poor, although abortion is far more disapproved by the poor and minority woman than her wealthier sisters, the former have drastically more abortions than the latter.19 Furthermore, contraception providers and abortion clinics are far more readily found in poor neighborhoods; the former are funded with tens of millions of federal dollars annually. The "invitation" not to procreate is clear.
Another area where eugenics comes overtly into play involves the overlapping matters of the new reproductive technologies and increasing knowledge about the human genome. In 1985, the American College of Obstetricians and Gynecologists' Department of Professional Liability issued an "Alert" entitled "Professional Liability Implications of AFP Tests. In the context of constant litigation, ACOG wrote that it was "imperative that every prenatal patient be advised of the availability of [the test screening for Down's Syndrome]" and that the "patient's decision with respect to the test be documented in the patient's chart."20 ACOG was responding to the fact that some state courts have become willing to award huge sums to parents who claimed that doctors did not offer them such diagnostic tests, or who misread test results, as a result of which parents gave birth to a child they would rather have aborted.21 Increasingly, today, prospective parents are faced with offers at fertility clinics to screen lab-created embryos for genetic disorders or even the sex of the baby. No law in any state stands in the way of this practice. Even Pennsylvania's law banning "sex selection abortions" is of no avail, given that the destruction of embryos in laboratories is not covered by abortion laws.
While many react with horror to these types of interventions, others welcome our brave new future. An article in the Harvard Law Review last year, while "acknowledge[ing] the horrors of Nazi-style eugenics," ultimately concluded that "eugenics, as a movement to improve the genotypes of future generations, need not entail bigotry and massive violations of human rights." It treated sympathetically the opinions of "several liberal political philosophers renowned for their commitments to human rights and antidiscrimination norms" that certain forms of voluntary eugenics are "morally permissible and possibly laudatory." It wouldn't assign eugenic power to the state, but rather urge it upon parents in the name of the "choice" to secure the health of their unborn children.22
Returning to the issue of health care reform where we also began, in addition to previously expressed concerns about some forms of "rationing," and about the types of end-of-life counseling offered to the elderly, advocates for the disabled worry that medical databases, combined with a "new rationing consciousness," will lead to discrimination against the disabled in both health care and medical research.23
In sum, eugenic thinking is very much alive and well in our law. But it makes its pitch in the language of choice - choice about one's own lifestyle, and about the health of one's children and other family members. And in a culture where youth, beauty and wealth are nearly worshipped, it's not hard to figure out what kind of choices people will make. The law alone can't make men and women moral. To the extent it recommends or even commands the wrong thing, we have to object. To the extent it claims to offer neutral choices, sometimes we have to expose the law's real purpose or effects as anything but neutral; then we have to reform the law. Always, as communities of faith, we have to teach and to model a way of life which is not about "choosing" so much as it is about "being chosen" to care for one another.
1 Jim Towey, The Death Book for Veterans, The Wall Street Journal, Aug. 18, 2009, at http://online.wsj.com/article/SB10001424052970204683204574358590107981718.html. [Back]
2 Michigan Supreme Court Historical Society, Haynes v. La peer Circuit Judge Eugenics in Michigan (201 Mich. 138 (1918), 88 JAN Mich. B. J. S9 (2009). [Back]
4 See ___ Hunter, Civic Biology: Presented in Problems (New York: American, 1914), p. 263. Michigan, 1914, sterilize "mentally defective persons maintained wholly or in part by public expense." [Back]
5 See Haynes v. Lapeer Circuit Judge, 201 Mich 138, 142 (1918); See __ Siegel, Justice Holmes, Buck v. Bell, and the history of equal protection, __ Minn L. R. 90, 111 (2005). [Back]
6 Michigan Supreme Court Historical Society, Haynes v. La peer Circuit Judge Eugenics in Michigan (201 Mich. 138 (1918), 88 JAN Mich. B. J. S9 (2009). [Back]
8 Michigan Supreme Court Historical Society, Haynes v. La peer Circuit Judge Eugenics in Michigan (201 Mich. 138 (1918), S 12. [Back]
9 See, e.g. Paul A. Lombardo, Three Generations, No Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. Rev. 30, 50-62 (1985). [Back]
10 Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After WWII, 14 Cardozo L. J. of Law and Gen. 319, 323 (2008). [Back]
11 See Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After WWII, 14 Cardozo L. J. of Law and Gen. 319, 322 (2008). [Back]
12 Lori B. Andrews, Maxwell J. Melhlam, Mark A. Rothstein, Genetics: Ethics, Law and Policy (American Casebook Series) (2002), 57, n. 12. [Back]
13 President's Council on Bioethics: Beyond Therapy: Biotechnology and the Pursuit of Happiness (2003). [Back]
14 See Avital Stadler, Comment, California Injects new Life Into an Old Idea: Taking a Shot at Recidivism, Chemical Castration, and the Constitution, 46 Emory L. J. 1285 (1997). [Back]
15 Christina E. Norland Audigier, Starving Five to Prevent the Birth of One? An International Human Rights Analysis of Child Exclusion Provisions and the Failure of Federal and State Constitutional Challenges, 77 Temp. L. Rev. 781 (2004). [Back]
16 Lori B. Andrews, Maxwell J. Mehlman, Mark A. Rothstein, Genetics: Ethics, Law and Policy (American Casebook Series) (2002), 67, n. 4. [Back]
17 See e.g. In re Wirsing, 456 Mich. 467 (1998). [Back]
18 Doug Johnson, Susan Muskett, Barack Obama's Actions and Shifting Claims on the Protection of Born-Alive Aborted Infants - and What They Tell Us About His Thinking on Abortion, at http://www.nrlc.org/ObamaBAIPA/ObamaBornAliveAssertionsFacts.pdf. [Back]
19 See generally, Barbara Hinkson Craig, David M. O'Brien, Abortion and American Politics (1993). [Back]
20 American College of Obstetricians and Gynecologists ("ACOG"), Prenatal Detection of Neural Tube Defects, Technical Bulletin No. 67 (Wash., D.C., 1982). [Back]
21 Amy Harmon, Prenatal Testing Puts Down Syndrome in Hard Focus, N.Y. Times, May 9, 2007, (unpaginated), available at http:// www.nytimes.com/2007/05/09/us/09down.html?ex=1336363200&en=ccf8eef18ff478e4&ei=5088. Timothy J. Dawe, Note, Wrongful Life: Time of a "Day in Court," 51 Ohio St. L.J. 473 (1990). [Back]
22 Note , Regulating Eugenics, 121 Harv. L. Rev. 1578, 1599 (2008). [Back]
23 Jacqueline Laing, M.D., 3 J. of Legal Tech. Risk Management 9 (2008). [Back]