By Jasmine E. Harris
In 1927, Buck v. Bell upheld Virginia’s Eugenical Sterilization Act, authorizing the state of Virginia to forcibly sterilize Carrie Buck, a young, poor white woman the state determined to be unfit to procreate.
In less than 1,000 words, Justice Oliver Wendell Holmes, writing for all but one of the Justices of the Court, breathed new life into an otherwise fading public eugenics movement.
More than 70,000 people (predominantly women of color) were forcibly sterilized in the twentieth century.
Buck is most often cited for its shock value and repeatedly, for what is, perhaps, its most famous six words: “Three generations of imbeciles are enough.” While this may be the most provocative language in the opinion, it is not the most noteworthy.
In just three sentences, Justice Holmes delivers a message that has lasted through today:
“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.”
In other words: some lives matter more than others. People who “sap the strength of the state”—those labeled “incompetent,” “criminal,” dependent, incapable of self-care—should not reproduce as they are “manifestly unfit from continuing their kind.” These categories intersect in Buck to undergird its reasoning. Importantly, consider who issues these labels and the consequences imposed on those bearing them—deportation or exclusion from the United States (“public charge”), loss of legal rights through guardianship, civil commitment, or imprisonment, school exclusion with a direct path to incarceration, economic insecurity, and subminimum wages, to name a few.
Buck’s lasting power lies not in its doctrinal deployment, but in its expressive value and how it continues to shape public norms and legal interpretations about the humanity and dignity of Black, Latinx, Indigenous, and disabled bodies and minds.
COVID-19 and emergency situations, in particular, underscore the broad devaluation of the lives of people with disabilities and people of color. Consider early legal challenges to policies and standards designed to ration medical care by categorically excluding certain bodies and minds—for example, those with intellectual and developmental disabilities—deemed less worthy of lifesaving treatment. These policies codified widely held biases that disabled lives are less happy and fulfilled than nondisabled ones. Similarly, failures to adopt emergency procedures and secure necessary PPE for employees and residents of congregate care facilities (prisons, jails, nursing homes, psychiatric hospitals, immigration detention centers, group homes) have produced the highest concentrations of COVID-19 infections and related deaths.
To many, Buck reads as a relic from another time or a distant cautionary tale about the exercise of state violence over disfavored bodies. It seems disconnected from recent whistleblower allegations of medical violence in Irwin County Detention Center, an ICE facility in Georgia; from the death of Michael Hickson, a forty-six year old Black man with quadriplegia who died of COVID-19 in a Texas hospital after the hospital denied him potentially lifesaving medical treatment; the countless accounts of filicide of people with disabilities; or from police violence that has killed countless Black, Brown, and Indigenous people, and people with disabilities, such as the recent shooting of Marcus-David Peters by police when he manifested behavior typical of his psychiatric disability.
To women, people of color, those with disabilities, and those with multiple marginalized identities, however, Buck v. Bell is perennial, its principles supporting institutional racism and ableism, among other forms of systemic discrimination.
The work of critical race reproductive justice scholars such as Dorothy Roberts’s Killing the Black Body and Michele Goodwin’s Policing the Womb, among others, have documented how the bodies of Black, Brown, Indigenous, and disabled women become politicized. States have tremendous power to control who gets to be a mother (sterilizations, general health and reproductive health disparities, access to health care), for how long (disparate mortality rates of women of color, loss of children to police violence, prisons) and the quality of that motherhood (economic instability, low-wage work, wage theft).
Buck has shaped the stories that women of color and women with disabilities tell their daughters and granddaughters as a rite of passage, much like Black, Brown, and Indigenous women tell their sons about law enforcement in this country. These are the lived experiences of friends and family violated against their will, stripped of their agency. Other times, the stories reveal a more complicated situation, where consent to sterilization rests on other systemic inequities around access to health care, employment protections, or socio-economic safety nets.
Regardless of the framing, these events are explained as a part of life. “Eso no es nada, es solo la operación que nos ayuda a volver al trabajo más rápido,” (“that’s nothing, that’s just the operation to help us get back to work faster”) is how my Puerto Rican grandmother in New York explained it to me.
The reality is that for many Black, indigenous, Latinx, and disabled women, medical violence and involuntary treatment (such as sterilization) are “as American as Apple Pie.”
How do we approach the overwhelming task of dismantling structural racism and ableism?
There’s no easy answer or single set of prescriptions, but I offer two considerations.
First, data matters—both quantitative and qualitative information make these lives visible. Without this empirical support, courts and the American public will continue to reject claims of systemic racial disparities in health or education. Rather than view these disparities as a product of deeply rooted biases designed to subordinate those who deviate from what disability scholar Rosemarie Garland Thomson calls the “normate” (white, male, heterosexual, neurotypical, able-bodied), these inequities are explained as the failure of individuals ill-suited for equitable participation.
One roadblock to data collection, at least in the disability context, is the assumption that information about disability should be private.
As I address in a forthcoming paper, privacy is complex in the context of disability. People with disabilities (like people of color and those at the intersection) are often disproportionately subject to surveillance as consumers of state services.
At the same time, when researchers attempt to better understand legal compliance and enforcement, state actors claim privacy laws prevent the release of data, exactly the information needed to understand and challenge institutional subordination. Consider the transformative effect of the Department of Education’s Office of Civil Rights Data collection on identifying racial and gender disparities in school discipline to the efforts to dismantle the school to prison pipeline for students of color and disabilities. Imagine Justice Kennedy’s opinion in Obergefell v. Hodges without the empirical research of organizations like the Williams Institute at UCLA showing how social norms have shifted with respect to gay marriage.
Second, the interdependence of race and disability in maintaining institutional subordination matters.
Conversations about disability in communities of color are fraught with a history of using disability identity and labels as tools of state subordination. Understandably, people of color are skeptical of voluntarily claiming disability, of self-identifying as disabled.
But this reluctance can further marginalize people of color with disabilities. The history of subordination experienced by people of color, those with disabilities, and those at the intersection is intimately connected, and must be explored with more candor and reflection than has happened to date. Change will never come if we see these stories as disconnected from each other, from history, or too private to share.
In this way, Buck v. Bell remains relevant, not because it gave a green light to involuntary sterilization but, rather, because it used the highest court in the nation and the power of its laws to broadcast a lasting message to those with disfavored bodies and minds that their societal value lies not in their lives, but in their deaths.
Jasmine E. Harris is a Professor of Law and Martin Luther King, Jr. Hall Research Scholar at the University of California—Davis School of Law.
