by Adam Cohen
Whatever the explanation for the votes of individual justices, the court as a whole did not acquit itself well. Not a single justice questioned the underlying record in the case, with its spurious intelligence testing and dubious scientific assumptions. None was prepared to say the Constitution guaranteed individual rights that the Virginia law infringed on. None had the inherent sense of justice to say what more enlightened minds understood, even at that time—that, in the words of Governor Samuel Pennypacker of Pennsylvania, involuntary sterilization was fundamentally wrong because it inflicted “cruelty upon a helpless class in the community, which the State has undertaken to protect.”
The sole dissent came from Butler. This was a possibility Taft had foreshadowed in the note he wrote to Holmes indicating that some of the justices were troubled by the case, “especially Butler.” Butler was not someone the court generally looked to for leadership on difficult questions. He was, however, the only Catholic on the court, as well as one of its most conservative members, and he had a different perspective on the case from the rest of the court.
Just how his perspective differed is lost to history. Butler did not write a dissenting opinion, and he never explained his vote. Legal scholars have focused on his religious faith as a likely factor. He was an observant Catholic, and he had been appointed to what was coming to be regarded as the “Catholic seat” on the court with support from members of the church hierarchy. If Butler’s Catholicism did lead him to object to Virginia’s sterilization law, he would hardly have been alone. In state legislatures across the country, Catholics were the single most outspoken group in opposition to eugenic sterilization laws, and their influence was often decisive.
Butler did not expressly invoke his Catholic faith in his work on the court, but there are suggestions it may have helped to guide his decisions. One time it might have been a factor was in the 1934 case Hansen v. Haff, in which the court had to decide whether a Danish immigrant should be deported for having an affair with a married man. The government argued that the woman could be deported under a law that called for excluding prostitutes or anyone entering the country for prostitution or “any other immoral purpose.” The court ruled that the law was aimed at people engaged in actual prostitution and did not apply. Butler was the only dissenter, arguing that the woman had acted like the “concubine of a married man” and should therefore have been deported.
Butler was no doubt aware, as a committed Catholic, of the deep reservations the church had about interference with human procreation. When Buck v. Bell was decided, that concern was still largely focused on birth control, but in 1930 Pope Pius XI would formally oppose eugenic sterilization in his encyclical Casti connubii (On Christian Marriage). The pope condemned people who were “over solicitous for the cause of eugenics” and those who “wish to legislate to deprive” others of the ability to reproduce “by medical action despite their unwillingness.”
Catholics were beginning to speak out against eugenics even before the encyclical. John Ryan, a leading American Catholic theologian, noted in a 1916 essay that one of the arguments being made for birth control was that it could be used to reduce the birth rate of people who were considered to be unfit. Ryan insisted that these arguments about the “welfare of the race” were morally troubling. The church, he said, “always looks upon the spiritual and moral side of individuals and institutions as much more important than their physical aspects or consequences.”
Catholics had another reason to oppose eugenic sterilization: many Protestant eugenicists thought Catholics were the kind of people who should not be reproducing. Francis Galton himself had argued that Catholics had diminished the “good stock” of Europe since the Middle Ages because their monasteries “drained off the cream” of society, who then did not reproduce. In the United States, the debate over the 1924 immigration law had shown that many eugenicists believed Catholics posed a threat to the national germplasm—and that more Protestant northern European stock was needed.
Butler’s dissent could also have been prompted by more secular beliefs. Butler had been born on the frontier, and was by nature skeptical of government, an instinct that found its way into his decisions. He had dissented, also on his own, in a challenge brought by a man whose alcohol had been seized because of Prohibition, even though he had obtained the alcohol before it was illegal. Eight of the court’s justices found nothing wrong with the state taking the alcohol once it became illegal, but Butler disagreed, calling the seizure “oppressive” and arguing that it violated due process. In reviewing Virginia’s eugenic sterilization law, Butler may have bridled at the government’s deciding who should be allowed to reproduce and sterilizing the rest—for him, perhaps, another example of government oppression.
Whatever his motivation, Butler was the one member of the nation’s highest court who was not willing to endorse eugenic sterilization, or to say that the state should be allowed to take away Carrie’s ability to have children. Because he did not write an opinion, one scholar has called his stand a “silent protest.” The “silent” is a source of frustration for those who would like to understand his reasoning, but in the end it is the “protest” that matters most.
• • •
When the Buck v. Bell ruling came down, the New York Times reported it on page 19, alongside a story on Harvard’s decision to build a new dining hall. The front page was filled with stories the editors considered more significant, including one on a 227-year-old tree being cut down in New Haven, Connecticut, to allow for street widening and another on the opening of “what is expected to be one of London’s most brilliant social seasons of recent years.”
The Times story reported the facts much as Holmes had in his opinion. It described Carrie as a “feeble-minded white woman,” Emma as “also feeble-minded,” and Vivian as “an illegitimate feeble-minded child.” The story quoted liberally from Holmes, including his “It is better for all the world” declaration. The Times did not raise any concerns about the court’s decision or eugenic sterilization, or quote any critics.
Time magazine ran a short item on the decision. “Eugenicists cheered, sentimentalists were vexed,” it reported, “when Mr. Associate Justice Oliver Wendell Holmes said: ‘Three generations of imbeciles are enough.’” The Literary Digest, a magazine with a circulation of over one million, ran a favorable article under the headline “To Halt the Imbecile’s Perilous Line”—and accompanied it with a handsome photograph of Holmes.
Newspapers across the nation weighed in, most in support. “The decision of the Supreme Court is to be hailed by all thoughtful persons,” Alabama’s Birmingham Age-Herald insisted. “Other states can be expected to follow suit, with the result that a great menace, growing rapidly so long as reproduction was possible, will now be confined, and as time goes on reduced to a minimum, by scientific means.”
Carrie’s hometown paper, the Charlottesville Daily Progress, greeted the Supreme Court’s ruling enthusiastically. “Over the protests of many who held up their hands in holy horror at the thought of merely discussing such a thing publicly, much less actually practicing it with the sanction of the state,” the paper editorialized, Virginia was now “in the front rank of the states which are committed to a progressive program of welfare legislation.” The paper insisted Virginia was “fortunate in having had this eminently sane and beneficial law, safely run the gamut of judicial review and permanently enrolled upon its statute books.”
Medical and legal publications largely greeted the decision with approval. The American Journal of Public Health declared that “that great jurist” Holmes had written an opinion that “opens future possibilities of vast importance in the field of eugenics and public health.” Robert E. Cushman, a Cornell University law professor, praised the ruling as “trenchant” in his annual Supreme Court review and described the Virginia law as “reasonable social protection.”
There were also “vexed” responses, as Time reported. Some
of the journalistic critics understood the science better than the court had. The problem, the Hartford Times said, was that information about “the transmitting of characteristics” was “so slight and the variety of opinion so great” that letting the state “decide arbitrarily who shall be allowed to have children” seemed “dangerous.” The Jesuit magazine America protested the ruling in an editorial titled “Unjustified Sterilization.” It objected “based on the fact that every man, even a lunatic, is an image of God, not a mere animal.”
Some of the critics reached out directly to the participants. In Lynchburg, a postcard from New York arrived for Dr. Bell. “May God protect Miss Carrie Buck,” it said, with the words “from feebleminded justice” crossed out and replaced by “from injustice.” Holmes also heard from the public, including one letter writer who called him a monster and told him to expect the judgment of an outraged God. Holmes was unmoved by these attacks from the rabble. He wrote to his friend Harold Laski about the unnamed critic: “Cranks as usual do not fail.”
Ten
Carrie Buck
The long journey to eugenic sterilization in Virginia was now over. The eugenicists had their statute, and it had finally been upheld—as Aubrey Strode had hoped—by the highest court in the land. The colony now had an unquestionable legal right to sterilize Carrie Buck, and it chose a date for her salpingectomy: October 19, 1927.
The first legal sterilization in Virginia began promptly on that Wednesday morning. Carrie, who was now twenty-one years old, was taken to the infirmary in the colony’s Halsey-Jennings Building at 9:30 a.m. The surgeon who would be performing the operation was no stranger to the patient: it was Dr. John Bell, who had conducted Carrie’s physical examination on her arrival at the colony, and had given his name to the Supreme Court case.
Carrie was anesthetized, and the operation began. Dr. Bell, working with another surgeon, removed an inch from each of Carrie’s fallopian tubes. Her tubes were then ligated, or brought together, and the ends cauterized using carbolic acid followed by alcohol. The surgeons then sutured her abdominal wound. An hour after it began, the procedure was over.
When the anesthesia wore off, Carrie remained under the infirmary’s care. The medical staff dressed her incision every few days, and she was fed a typical hospital diet: toast, eggs, oatmeal, hash, and similar items. After two weeks, Carrie was permitted to be up and about. Shortly after that, she was well enough to leave the colony on parole.
The colony’s parole system allowed selected inmates to be released into larger society, generally to work as domestic helpers for families. Dr. Priddy had always said that one of the advantages of being sterilized for Carrie was that the colony would then be able to release her into the larger world. The freedom inmates were given under the parole system was far greater than they had at the colony, but it was provisional. Parolees remained under the institution’s supervision. They had to return annually for a physical examination, and they could be recalled to the colony if they got into trouble of any kind.
On November 12, 1927, Dr. Bell sent Carrie to live with the Coleman family, who owned a lumber company in Belspring, a small town southwest of Lynchburg. At first, the placement seemed to be working out. The family wrote to Dr. Bell to say Carrie was “getting on all right” and was “feeling fine.” The Colemans offered to pay Carrie’s way back to the colony so she could see her mother at Christmas. After the holiday, however, things went downhill. The family wrote to the colony to report that they had caught Carrie using a dishpan as a chamber pot. They asked that Carrie be taken back, and on January 11 she returned to the colony.
Dr. Bell turned next to the Dobbses—who should have been his first choice. At the trial in the Amherst County Circuit Court, Dr. Priddy had said that if Carrie was sterilized, one of the benefits to her was that she would be able to leave the colony—and, specifically, move back in with the Dobbses. “I understand,” he said in his sworn testimony, “that they want her back.” Strode repeated this assertion in his brief to the Supreme Court. It was a poignant promise, because if Carrie moved in with the Dobbses it would reunite her with the only child she would ever have.
On January 12, 1928, Dr. Bell wrote to Alice Dobbs to ask if Carrie could return to work in her home. He explained that Carrie had been sterilized under the state law, and he included a personal endorsement. “She is quite well behaved and a good worker, as you know, if a reasonable amount of control is exercised over her,” Dr. Bell wrote. “Thinking that you might like to have her back with you,” he said, “I am writing to advise that I will be glad to place her on parole.”
Dobbs did not want Carrie back. In a letter of February 13, 1928, she declined Dr. Bell’s offer. Dobbs said she thought “a great deal of Carrie,” but things were too busy in the house to take her in. She put the blame on her husband, who was “now in his seventieth year.” He had said “he can’t take care of” Carrie, Dobbs reported.
It is unlikely Dobbs was really concerned about the burden Carrie would impose on her household. Having her do housework and help with Vivian would lighten the load. Nor was there reason to worry Carrie would misbehave—if she did, Dr. Bell could revoke her parole at any time. There were, however, other possible concerns. One was that if Carrie were reunited with her only child she might try to reassert her parental rights, and Dobbs did not want to give Vivian up. Another possible worry was that if Carrie returned to Charlottesville, she might tell people how she became pregnant, putting the Dobbses’ nephew, and the family’s reputation, at risk.
If Dobbs had been concerned only about strain on her household, she could have helped find Carrie another placement in Charlottesville that would have allowed her to see Vivian regularly. Instead, she made a spirited argument that Carrie should not be released at all. “Can’t you still keep her at the colony?” Dobbs implored Dr. Bell. “If you would I sure would appreciate it so she would have a place to call home and not be from one place to another.”
Dobbs went even further. She argued to Dr. Bell that Carrie should be kept at the colony permanently. “I thought when the Red Cross sent her their [sic],” she wrote, “it would be a home for her so long as she lived.” When Dr. Priddy testified under oath that the Dobbses would take Carrie back, and when Strode repeated the claim to the Supreme Court, they were either mistaken or lying. The truth was, the Dobbses would never let Carrie return—and they wanted her locked up for life.
• • •
Carrie was not the only Buck woman sterilized at the colony. Her half sister, Doris, was admitted as an inmate on June 18, 1926, while Carrie’s case was heading to the Supreme Court. Doris, who had been living in a private home in Charlottesville, had come to the attention of the welfare authorities after Arthur Estabrook examined her as part of his fieldwork on the Buck family. After the authorities began to get reports that Doris was acting wildly and “meeting men,” they had her declared feebleminded and committed to the colony.
When Doris was examined, she was recorded as being 5 feet 1½ inches tall and 96 pounds. She was also designated a “High-grade imbecile.” That ranking was lower than Carrie’s or Emma’s, who were both designated “morons,” and it made her eligible for eugenic sterilization under the law. At least one person who knew Doris before she was sent away said she was not feebleminded though she apparently had a temper, perhaps due in part to her difficult family situation.
A few weeks after Carrie was sterilized, the colony board voted to establish a larger eugenic sterilization program. When it did, Doris was in the first group chosen for it. On January 23, 1928, Doris, who was just sixteen, was brought to the Halsey-Jennings Building, the same place where her half sister had been operated on months earlier. Doris was told the procedure she was undergoing was being done for medical reasons. She was not informed it would prevent her from having children.
After the refusal from the Dobbses, Dr. Bell continued trying to find a placement for Carrie. He received
a letter, sent on February 18, from Mr. A. T. Newberry of Bland, Virginia. Newberry was writing to say that he needed help with keeping up a busy household that included his wife, his mother, and his two sons. He was, he said, “really anxious to get a good girl from your institution.”
Dr. Bell responded that if Newberry provided transportation money, he would send “a girl by the name of Carrie Buck, who has been in the institution for years.” Dr. Bell again provided a personal recommendation, calling Carrie “strong and healthy and capable of doing good work.” He vouched that, in spite of her problems with the Colemans, Carrie was “good tempered and easy to handle.” Dr. Bell told Newberry he should pay Carrie a salary of about $5 a month, and that he should have someone meet her when she arrived at the train station.
On February 25 Carrie set off by train for Bland, a small town near the West Virginia border, about 150 miles from Lynchburg. Newberry had agreed to meet her at the station in nearby Wytheville, but he had trouble with his car and arrived late. When he finally got there, Carrie was waiting for him patiently.
Carrie made a good first impression on the Newberry family. After spending an afternoon with Carrie, Mrs. Newberry wrote to Dr. Bell to ask why she had been sent to the colony. “We would like to know what to look for and guard against,” she said. In particular, Mrs. Newberry wanted to know if Carrie was epileptic and likely to have seizures. She apologized if her questions seemed “too insensitive,” but said she did “want to know about her.” Dr. Bell wrote back to say Carrie was not epileptic and had been “committed here on account of being feebleminded.” It was, perhaps, revealing about Carrie’s actual mental abilities that Mrs. Newberry, after spending some time with her, could not tell on her own that Carrie was a “moron.”
