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The Return of Punitive Sterilization Proposals

Current Attacks on Illegitimacy and the AFDC Program

Published online by Cambridge University Press:  01 July 2024

Julius Paul
Julius Paul*
Affiliation:
Walter Reed Army Institute of Research
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Punitive sterilization has once again returned to the lexicon of American legislative debate. While there is no denying that the America of the social Darwinians and the extreme hereditarians of the late 19th and early 20th century has vanished from our midst, the residue still remains. The early eugenics literature was often punitive in tone, aimed at “purging” the nation of its so-called criminal, degenerate, and other “cacogenic” classes, not by physical extermination but rather through the use of surgical castration or sterilization. Notwithstanding the fact that the early hereditarians were concerned with the alleged inheritance of criminality and social degeneracy, the main thrust of the eugenic sterilizations laws which were passed (beginning with Indiana in 1907) was the reduction and eventual elimination of insanity and feeblemindedness. These laws were clearly gauged to prevent America from being deluged or “inundated” by those socially undesirable classes or categories of persons that the state legislators of that period believed to be the most serious threat to the stability, even the survival, of the nation as they conceived it. The eugenic character of these early laws was often compromised by the inclusion of habitual criminals, rapists, sexual perverts, social degenerates, and other groups where the intent of the legislation was clearly punitive.

Type
Research Article
Information
Law & Society Review , Volume 3 , Issue 1 , August 1968 , pp. 77 - 106
Copyright
Copyright © 1968 by the Law and Society Association

Footnotes

Author's Note: Data for this article were taken from the authors unpublished manuscript, “... Three Generations of Imbeciles Are Enough. . .”—State Sterilization Laws in American Thought and Practice. The author gratefully acknowledges the financial support of the American Philosophical Society through Penrose Fund grants in 1958 and 1963, and the encouragement of Dr. David McK. Rioch, Director, Division of Neuropsychiatry, Walter Reed Army Institute of Research. The opinions and assertions in this article are those of the author only and are not to be construed as carrying the endorsement of the Department of the Army.

References

1. An example would be the attempts at passing punitive sterilization bills in Mississippi in 1964, which prompted the Student Nonviolent Coordinating Committee to issue a pamphlet entitled Genocide in Mississippi. The pamphlet, together with coverage in the national press and mass periodicals brought revision of the proposal, which eventually passed without any punitive sterilization provision.

2. As quoted in the Sacramento (Cal.) Bee, Sept. 14, 1961.

3. While such proposals have not reached the legislative arena in California, action in the lower state courts has been dramatic, even sensational at times, and sterilization as the “price” of probation in certain criminal cases has received national attention in recent years, especially where welfare recipients are involved. The first recent case involved Miguel Vega Andrade, who was convicted of nonsupport in the Municipal Court of Pasadena in December 1963. He “consented” to be vasectomized (along with marrying the woman with whom he was then living, and partially contributing to the support of his four minor children by his previous marriage, who were receiving public assistance), and Feb. 6, 1964, Judge Joseph A. Sprankle, Jr. granted him probation. Later Andrade, regretting his decision, requested a writ of habeas corpus from the California Supreme Court and also petitioned the U. S. Supreme Court for certiorari. Both appeals were denied and presumably any efforts by him to obtain a reversal operation would have to be private in nature. In a case more directly related to public welfare, two persons, Victoria Tapia and Marcos Palafox, who were convicted of defrauding the county welfare department, were given reduced sentences and probation in the Superior Court of Santa Barbara County after they submitted to sterilization in August 1965. But the really sensational case was that of Mrs. Nancy Hernandez in May 1966. She had been convicted of the misdemeanor of being in a place where marijuana was in use, had pleaded guilty, and would have received a suspended sentence and probation had she submitted to sterilization. But unlike Andrade, who changed his mind after the operation, Mrs. Hernandez had agreed to the judge's terms, but then changed her mind and refused to go through with the operation. Her probation was revoked and she was ordered to jail. Her lawyer, Louis Renga, called the probation order “unreasonable, capricious, illegal and unconstitutional” and filed for a writ of habeas corpus and her release, which was later granted. Municipal Judge Frank P. Kearney, the sentencing judge, had called the sterilization-probation proviso “nothing novel—legally, medically, or sociologically.” He later told newsmen that Mrs. Hernandez, the mother of two young children “ . . . should not have more children because of her propensity to live an immoral life.” And he added: “It is my sincere belief that the interests of society and of this defendant would have been best served by the proposed probationary terms. I believe this woman is in danger of continuing to live a dissolute life and to be endangering the health, safety and lives of her minor children.” (As quoted in the Washington Post, May 25, 1966, at A9. Also see the stories in the May 22 and 24 Los Angeles Times and two stories by their staff writer, H. Trimborn, Mother and Marijuana Shake Pillars of Law, May 31, 1966, P. II, at 1-2, and Court Upsets Judge's Sterilization Ruling, June 9, 1966, P. II, at 1.) Although she was the recipient of welfare assistance for her illegitimate baby and herself, there was no record of misuse of these funds. She had no previous criminal record, and the presentence probation report was a favorable one, with no mention of sterilization as a condition for probation. The decision of Superior Court Judge C. Douglas Smith of Santa Barbara County was a stinging rebuke to Judge Kearney. In his opinion in the habeas corpus case, Judge Smith struck down the sterilization order contained in the proposed probation, vacated the execution of the sentence, recalled and vacated the commitment, and released Mrs. Hernandez “to the supervision of the probation officer under the terms and conditions of probation recommended by said probation officer in the original report.” Perhaps the most significant aspect of Judge Smith's decision is his discussion of Mrs. Hernandez' alleged “immorality.” While the taxpayer might not like supporting the likes of Mrs. Hernandez and her illegitimate child, and notwithstanding Judge Kearney's view of her “unfitness” as a mother, the law is the law, and must be followed. “In short, as applied to cases such as the one before this Court, if the aid to needy children provisions of our welfare statutes are not to the liking of a particular Judge, he may not ignore them or change them, or substitute a penalty of his own which is not authorized by law. It is for the people or their legislative representatives to make any change in the law that they deem desirable.” (At 11 of the mimeographed opinion of the court. Also, see N. Y. Times, June 9, 1966, at 51.) Judge Smith could find no logical or legal connection between the use of narcotics and sterilization as a means of rehabilitation. In conclusion, Judge Smith found that the order for sterilization was in excess of the judicial power of the municipal court, and therefore that order, the revocation of the probation order, and the subsequent sentence were all void. While Judge Smith's opinion is a ringing affirmation of the rule of law and a warning against the slipshod and biased use of judicial discretion in cases of this kind, it is difficult to predict what other lower court California judges will do in similar cases in the future, notwithstanding the comment by the general counsel of the American Civil Liberties Union's Southern California affiliate, A. L. Wirin, who said that Judge Smith's action on appeal represented “an important precedent that will discourage other judges from imposing sterilization on the indigent” (in Civil Liberties (monthly publication of the ACLU), No. 238, July 1966, at 1). The ACLU filed an amicus brief with Judge Smith attacking Judge Kearney's ruling. For an earlier California case involving a sterilization-for-probation proviso, see People v. Blankenship, 16 Cal. App. 2d 68, 61 P.2d 352 (1936).

4. The data were gathered by the Department of Health, Education, and Welfare, but no date was cited, although the proposal probably appeared in the late 1950s. See the pamphlet, U. S. Dep't of HEW, Social Security Administration, Bureau of Public Assistance, Illegitimacy and Its Impact on the Aid to Dependent Children Program 51-52 (April 1960) for discussion of this and similar proposals. Dr. Alan F. Guttmacher mentioned a later proposal, H.B. 571, General Assembly, Delaware, 1962, which died in committee. This bill would have restricted a mother of two or more illegitimate children from receiving welfare aid unless she could produce a medical certificate showing she was unable to have more children. (Planned Parenthood-World Population, Birth Control Services in Tax-Supported Hospitals, Health Departments and Welfare Agencies ref. 3 at 55 [May 1963].)

5. In a letter to the author from John J. Hurley, Acting Director of the Bureau of Family Services, HEW, dated May 28, 1963.

6. This was in the controversial memorandum by a then member of the Illinois Public Aid Commission, Mr. William L. Rutherford, which was sent to the other members of the PAC and the members of the Illinois General Assembly. Dated March 20, 1963, the memorandum recommended changes in the Illinois statutes regarding prostitution, namely, that all persons convicted of being prostitutes “should be sterilized.” For purposes of definition, “prostitution” included the following persons: male frequenters of prostitutes, including procurers; persons who bear more than one illegitimate child; and any male proven “to have sired more than one illegitimate child.” And to further extend its sterilization coverage, the memorandum added: “For purposes of this act, illegal abortion should be treated the same as [sic] giving an illegitimate birth.” In answer to this writer's inquiries about the motives for his memorandum, Mr. Rutherford wrote :

... I believe from the experience we had in Public Aid that we can honestly say this is not a desire to be punitive, but it is a desire to find a desperately needed protection for the public. The tremendous unkindness to unwanted and uncared for illegitimate children increasing in numbers by geometric proportions makes the problem of Aid for Dependant [sic] Children anything but academic. The public should be protected from the calloused indifference and the deliberate use of innocent children as a substitute for personal responsible behavior to obtain economic advantage . . . My deep concern is for the welfare of children first and the integrity of good government and tax structure as a close second. We simply need respect for the law and the basic morals that underlie the law if we are to continue as a free people. The increase in expenditures will mean State bankruptcy if we subsidize this sort of parent indefinitely. (Letters to author, dated Aug. 27 and Sept. 10, 1963.)

The Rutherford memorandum did not result in any sterilization legislation, but it was not without impact on the larger, and perhaps noisier, birth control controversy. Mr. Harold O. Swank, Director of the State Department of Public Aid, which replaced the old IPAC, in a letter to this writer, dated Oct. 3, 1963, said the following in answer to the author's question about the sources of Catholic and other opposition to the Commission's program of birth control information :

Mr. Rutherford's memorandum was by no means the event that triggered “strong Catholic opposition to the Commission's program.” There was opposition from the beginning from this religious group. . . . There was also opposition expressed by some other groups, including some Negro organizations. Rather than triggering opposition the Rutherford memorandum exacerbated opposition.

Two bills were proposed in the 1963 legislative session to amend the Public Assistance Code of Illinois, both of which failed to pass. One would have made the birth of a second illegitimate child prima facie evidence of an “unsuitable” home, with possible removal of the child from the mother's custody and even possible adoption. The second bill would have cut off assistance payments for children of mothers of more than one illegitimate child.

7. As reported in the Des Moines (Iowa) Register, Dec. 18, 1963, in a news story, G. Mills, Would Force Sterilizing on Illegitimacy. Also, see the story, Argue Compulsory Sterilization of Unmarried Mothers on ADC, in the Dec. 22 issue of the same paper.

8. The editorial, entitled Compulsory Sterilization, appeared in the Mar. 24, 1964 issue. The faith which this paper placed in the legislative and administrative agencies (not to use compulsory sterilization in such cases) is not borne out by the laws passed in Louisiana and Mississippi, which penalize persons for the crime of conceiving or giving birth to illegitimate children. Perhaps the Register limited its faith to Iowa officials, and in this sense they may be right, but a bit premature. This was written before the decision of the Iowa Supreme Court in the celebrated case of Painter v. Bannister in 1966 in which the court denied a fit but unconforming father the right to raise his own son. See H. Painter, Mark, I Love You! (1967); and J. Mitford, A Question of Custody, 93 McCall's 96 (May 1966).

9. Report of the Committee (Rep. Walter Chachere, Chairman), at 7. See note 40 infra, for a discussion of legislative action in 1960. The Report was entirely incorrect in asserting that the U. S. Supreme Court had upheld the use of sterilization as a punishment for certain types of offenses. In the classic case, Buck v. Bell, 274 U.S. 200 (1927), the Court upheld the Virginia eugenic sterilization statute, which covered mental illness, mental deficiency, and epilepsy. This same type of error was also repeated in a statement by lawyer A. L. Wirin, which was mentioned in the press during the celebrated Hernandez case in California in 1966: “Wirin said the case in which Holmes ruled involved a person convicted of a number of crimes” (Washington Post, May 24, 1966, at A1). Miss Buck was allegedly an imbecile.

10. Levy v. Louisiana, 391 U. S. 68, 20 L. Ed. 2d 436 (1968).

11. Report of the Commission to Study Problems of Illegitimacy, State of Maryland (Annapolis, Dec. 6, 1961), at 26.

12. Senator Sanford's motives in proposing his bill also seemed far simpler: “When you have a woman who has seven or eight illegitimate children and she keeps on having them at the expense of the taxpayers it's time to do something about it.” (As quoted in the Washington Star, Feb. 12, 1960.) Neither proposal mentions Negroes, but one might surmise from the detailed statistical tables of the Report of the Commission to Study-Problems of Illegitimacy that the racial differences were significant and certainly a major factor in the extremely punitive tone of the Sanford bill.

13. As quoted in the Washington Star, Mar. 20, 1963.

14. One example would be the action of Circuit Judge Robert B. Mathias of Prince Georges County, Maryland in sentencing a 23-year-old woman to two years in the Maryland Woman's Reformatory for violating her probation by giving birth to her fifth illegitimate child. Circuit Judge Ernest A. Loveless, Jr. had given the woman an indeterminate sentence and placed her on probation in September 1964 after she was charged with neglecting one of her four children. Judge Loveless added three special conditions to her active probation: that she find a job to support her children, that she “not live with any man not her husband,” and that she “not become pregnant out of wedlock.” Probation officials said she failed to meet any of these conditions, but they were unable to find where she was living, despite the fact that a warrant for her arrest on a charge of violation of probation had been issued Dec. 8, 1964. She was found a year later, and Judge Mathias' sentence followed. “This was a direct violation of probation, almost vicious in its nature,” he said.

It was not only against the law but against the rules of society in our Country, State and Nation. You cannot continue to bring into life these unfortunate little children without the benefit of a legal father. It's apparent you disregard everything Judge Loveless told you. You leave the court with no other prerogative but to give you the maximum sentence. The court hopes you will go to the reformatory, get help . . . and somewhere along the line find a way in which you can become a useful member of society.

Probation officials noted that the woman would be eligible for parole in six months. (As reported in a news story by R. Homan, Mother Gets 2-Yr. Jail Term for Fifth Illegitimate Child, Washington Post, Dec. 23, 1965, at A3.) Just how she will “get help” in the Maryland Woman's Reformatory is beyond this writer's imagination, although it is noteworthy that neither Judge Loveless nor Judge Mathias offered her sterilization as an alternative to imprisonment (the price of probation, as happened in the Andrade and Hernandez cases in California). Doubtless at twenty-three, and already the mother of five illegitimate children, society may expect to see much of this woman unless some truly practical measures are employed in her and society's behalf, as well as those of the five children.

15. An appeal of this decision is now before the Maryland Court of Appeals, and could have important national implications if Judge Bowen's ruling is upheld. While “suitable home” laws are not new (at least twenty-four states presently have them), making the bearing of illegitimate children an automatic determinant of child neglect and offering a “choice” between mandatory birth control and criminal penalties (or loss of one's children) could give comfort to other states that are concerned with the rise of illegitimacy and welfare costs. (For a lengthy discussion of Judge Bowen's decision and the motives behind it, see the Washington Post, Sept. 24, 1967, at B1.) Following the decision, Prince Georges County State's Attorney Arthur A. Marshall, Jr. announced that he would initiate neglect proceedings in all new welfare cases involving three or more children born out of wedlock. While avoiding criminal charges against the mother, Marshall said that his office would petition the court to find that the children of unwed mothers are legally neglected, which could then lead the court to institute action to remove the children from the mothers' custody. Three months earlier, in June 1967, the county had instituted a plan that required unwed mothers applying for welfare assistance to show proof that they had received birth control information before their welfare applications would be approved by the State's Attorney's Office. The “choice” given these mothers was to submit proof of receiving birth control advice, or face arrest for child neglect.

In a statement dated June 5, 1967, Dr. Alan F. Guttmacher, president of the Planned Parenthood Federation of America, said: “The decision by the welfare authorities of Prince Georges County compelling unwed mothers to attend a birth control clinic as a prerequisite for public assistance infringes on the inherent rights of all Americans to seek or reject family planning services free from government interference. This right of voluntarism must not be taken away from any woman because she is on welfare or an unwed mother.” Planned Parenthood, along with the American Civil Liberties Union and the NAACP's Legal Defense Fund, have filed amicus briefs with the Maryland Court of Appeals challenging the constitutionality of Judge Bowen's decision.

It was through this crackdown on unwed mothers seeking welfare assistance that child neglect cases reached Judge Bowen's court. One of the key constitutional questions that emerged from this rather complex set of criminal and noncriminal sanctions aimed at unwed mothers seeking welfare assistance was the element of self-incrimination. Maryland welfare forms require the signature of the State's Attorney under federal welfare regulations that require applicants to show that they are making an effort to locate the fathers of their illegitimate offspring so that they (the fathers) can be charged with nonsupport. Maryland forms also require the unwed mother to list her other illegitimate children, which gives the State's Attorney the necessary information on which to base child neglect charges under state law. Judge Bowen contended that no woman is “forced” to seek welfare assistance or to fill out the required welfare forms. Economic necessity does not transform what is essentially a voluntary act into self-incrimination, he asserted. But what he failed to note is that the illegitimacy provisions of the Maryland child neglect law apply to all women and not merely welfare recipients or those who apply for welfare assistance. The equal protection issue was completely ignored (as it often is) in what was essentially a selective county crusade, abetted by court action, to “stamp out” illegitimacy and reduce welfare costs. Judge Bowen's “crusade” differed from that of Judge Holland M. Gary of the Muskingum County (Ohio) Probate Court, who in 1962 received national attention with his discretionary use of probate power to issue sterilization orders as a means of reducing the county's mounting tax bills for public assistance (in a state without any sterilization law). See W. R. Warnock, Note, 61 Mich. L. Rev. 1359 (1963); J. Paul, Population “Quality” and “Fitness for Parenthood” in the Light of State Eugenic Sterilization Experience, 1907-1966, 21 Population Studies 295, 299 n. 8 (1967); Frederick S. Jaffe, Family Planning and Public Policy: Is the “Culture of Poverty” the New Cop-Out? (paper presented before the American Sociological Association, San Francisco, Aug. 29, 1967, at 14-16); O. Harkavy, F. S. Jaffe, & S. M. Wishik, Implementing DHEW Policy on Family Planning and Population, A Consultants' Report (Sept. 1967); and J. W. Leasure, Some Economic Benefits of Birth Prevention, 45 Milbank Memorial Fund Qr. 417 (1967). On March 25, 1968, the Maryland General Assembly replaced its 1868 abortion law with a completely revamped law which contained a novel provision prohibiting making abortion a condition for public welfare or benefits.

16. In a letter to the author from Rep. Glass dated April 17, 1963, he explained this language by saying that he had “been told by surgeons that this can be done on a temporary and on a permanent basis.” Presumably, he was referring to tubal ligation and possible reversal operations, and to the permanent operations such as hysterectomy or oöphorectomy (ovariectomy), or their combinations.

17. Letter dated Oct. 11, 1958. The editor and publisher of the Delta (Miss.) Democrat-Times, Hodding Carter, gave the following explanation:

The nature of the bill gives a pretty clear indication of its origin. Although it was not officially endorsed by the Citizens Councils, it is part of the general pattern of legislation sponsored by that group, with the theme of racial misbehavior paramount. As you know, the measure was tabled but there is widespread sentiment for some sort of means for coping with the fantastically high number of illegitimate Negro births. They do add an onerous burden and provide a readily employed argument as to asserted Negro inferiority. (Letter to author, dated Sept. 26, 1958.)

Although Rep. Glass retired from politics after serving twenty-eight years in the Mississippi Legislature, efforts to legislate illegitimacy out of existence continued. In the 1962 regular session of the legislature, State Senators Montgomery and Williams proposed an act (Senate Bill No. 1984) establishing planned parenthood clinics under the State Board of Health. The bill required mothers delivered at state expense to attend the clinic and included provisions for penalizing certain mothers of illegitimate children and for authorizing voluntary sterilization operations for designated persons under the law. Any woman who is the mother of at least one illegitimate child “shall attend the planned parenthood clinic a reasonable number of times” and failure to comply with this provision would be a misdemeanor punishable by a fine of not more than $500 or imprisonment for not more than six months, or both. This bill passed the Senate but died in House Committee and did not become law. It was reintroduced in the 1964 session by Senator Williams (Senate Bill No. 1648), but again failed, partly because attention was focused on another bill, House Bill No. 180, which made it a felony to become the parent of an illegitimate child. It was this latter bill that created a national furor.

18. Rep. McCullough explained his desire to allow a quid pro quo (sterilization in lieu of a prison sentence) by saying he did this with “the hope of curing the disastrous results of the crime” rather than punishing the crime. Letter to author, dated May 16, 1964.

19. At 21. They also reported the opposition of the state welfare department, which figured out “that it would cost more than three times as much to put a child in a home, if the mother chose jail over sterility, than it would if the mother received a dole to care for the child. And that didn't even include the cost of jailing the mother.” The Planned Parenthood Federation of America also strongly opposed the Mississippi proposals in a statement by Dr. Alan F. Guttmacher, its president: “This approach is not only unworthy of a society which considers itself humane, but it is futile: Birth control cannot be imposed on anyone by edict or by official pressure; it is a self-administered medical procedure which requires the continuing cooperation of the individuals concerned. The kind of approach embodied in this Mississippi proposal betrays an appalling insensitivity to the human dignity of even the least of us.” In Birth Control Services to Tax-Supported Hospitals, Health Departments and Welfare Agencies (PPF, May 1963), at 4. In their amicus curiae brief in the case of Griswold & Buxton v. Connecticut, 381 U.S. 479 (1965), PPF argued that laws such as that of Mississippi would “threaten basic liberties and be equally unconstitutional.” (At 20 n. 5.)

20. SNCC quoted from local and out-of-state newspapers, and included a statement by Rep. Stone Barefield during floor debate on the bill: “When the cutting starts, they'll [Negroes] head for Chicago.” (At 4.)

21. Another sentence in the bill passed by the House was also deleted. This was an ambiguous sentence which read: “Provided that the emotional and psychological make-up of the offender shall be taken into consideration by the court of jurisdiction. ...” Rep. McCullough, the author of the sterilization rider, explained the sentence in this fashion : “I think the phrase at the end of section 1 makes provision for those who need mental care. In some cases correction could be made in a mental institution and the person restored to a normal life.” Letter to author, dated May 16, 1964. It is not clear if this meant that in lieu of a jail sentence or both, the offender would be committed to a mental hospital. Certainly the various combinations in this bill were ominous indeed, and a psychiatrist like Dr. Thomas Szasz would not have to look far for the kind of legislative demons that make a mockery of due process of law and individual freedoms. See T. Szasz, Law, Liberty and Psychiatry (1963).

22. Apparently the 1964 regular session of the Mississippi Legislature may go down in history as the “sterilizing” session because a third, though unheralded proposal, was presented by Rep. Fred Jones of Sunflower County, formerly Superintendent of the Mississippi State Penitentiary. Rep. Jones' House Bill No. 788, “An Act to Provide for the Sexual Sterilization of Habitual Criminals,” died in House Committee, but he may reintroduce the bill at a future session. It is important to note that not all of the pressure for new sterilization laws in Mississippi is racial in origin or purpose. There may be genuine medical (obstetrical and gynecological) support for voluntary sterilization programs without the genocidal stamp that the SNCC pamphlet applied to the original House Bill No. 180. During the heated debate after that bill passed the House, an article by Dr. John E. Lindley of Meridian appeared which indicated the strong support of the state medical association for a voluntary sterilization law such as that proposed in 1962 and 1964. As in Virginia, medical interest centered on the question of medical liability, but not entirely so. In speaking of the 1962 proposal (Senate Bill No. 1984), Dr. Lindley wrote :

. . . This would protect the physician from legal liability when performing sterilization procedures requested by the patient for nontherapeutic reasons and thereby allow more liberal use of this procedure especially in the indigent patient. ... It is admittedly difficult for any person or group of persons to say at what point voluntary nontherapeutic sterilization should begin and end. However, we as obstetricians and gynecologists are in a position to be more familiar with this aspect of life than others, and we have the responsibility of trying to help provide a satisfactory solution to the massive population explosion. ... It is ironical that the population group which most needs this service and in general desires it, the indigent patient, is in the least favorable position for obtaining it. Therefore, it falls to the responsibility of the agency which handles the large health problem of these indigent patients to provide a means whereby voluntary sterilization can be obtained at State expense. . . . Sterilization and the Law in Mississippi, 5 J. Miss. St. Med. Ass'n 54 (Feb. 1964) at 55-56.

A large portion of this issue was devoted to discussion of birth control, contraception, and sterilization, and it was probably mere coincidence that the issue appeared at the time the punitive sterilization act was being discussed in the Senate. Apparently, the state medical association took no public stand on the sterilization provisions of the Meek bill. Welfare and adoption agencies in the state did oppose the bill, but this is no reason for assuming that the doctors in Mississippi were in favor of punitive sterilization measures. Doctors are generally unwilling to take public stands on issues that do not directly relate to medical and public health matters. A bill aimed at illegitimacy might be viewed as a nonmedical question, though it is hard to avoid the medical implications of a sterilization provision. This is not to say that doctors, qua doctors, are without their own private feelings about laws and public policies that relate to moral questions (such as illegitimacy) or even to racial questions.

23. As reported in a news story by Washington Post writer Ellen Key Blunt, Jan. 27, 1965, at Cl. Presumably, the women were in the hospital as clinic patients to deliver their babies and were given postpartum sterilizations without either their consent or knowledge. Several persons have attempted to get affidavits from those who have knowledge of these operations, including the women themselves, but fear of possible physical and/or economic reprisal seems to have prevented these people from giving these data in public. Mrs. Hamer sent a communication to the Washington Post saying that she was willing to give the facts and complete proof of the events that took place, beginning with herself. Thus far, no further public statements have appeared.

24. S. B. 113 and H. B. 248, Sess. 1959, at 3. Apparently there were several variations of this proposal, one of which allowed the entire procedure before the Eugenics Board to be terminated upon marriage of the woman concerned. In still another proposal, the illegitimate children supported by welfare payments could be taken from the custody of the mother and placed in orphanages or in foster homes. (Data obtained from a communication from the Bureau of Family Services, Department of HEW, dated May 28, 1963.) Statistical data for Mr. Jolly's cause were inadvertently supplied in an official publication, Facts on Aid to Dependent Children in North Carolina, by Robert H. Mugge, director of the division of research and statistics, published by the State Board of Public Welfare, Mar. 31, 1959, with a section on “Children Born Out of Wedlock” (pp. 21-24). Perhaps the soundest evidence for not enacting punitive legislation was found in a publication of the North Carolina Conference for Social Service entitled The Problem of Births Out of Wedlock (Raleigh, April 1959) : “Enforcement of laws dealing with human behavior is difficult. Up to this time in our society we have deemed it necessary to provide for considerable flexibility in the interpretation and enforcement of such laws. The necessity for flexibility weakens rather than strengthens the law, but the need for flexibility arises from the sound basis of human differences among those who break the law. ... In view of what has been said, it would appear that in the search for answers to the problem of births out of wedlock, there must be the realization that we are dealing primarily with a social problem and not a legal one.” (At 24-25.) Happily, the North Carolina legislature followed their advice, rather than the suggestion made in the Report of the Commission to Study Public Welfare Programs (Dec. 1962), where its Recommendation No. 21 made the birth of a third child out of wedlock a rebuttable legal presumption “that the mother of such child is an unfit person for the rearing of her children. ...” and further made this “unfitness” the basis for removal of one or all of the children from her custody. This recommendation applied to all mothers with three children born out of wedlock, regardless of whether they received public assistance. Recommendation No. 22 called for the passage of a voluntary sterilization law, which the legislature did in 1963. See the Report, which was submitted to Governor Terry Sanford, at 47-52.

25. The Legality of Human Sterilization in North Carolina, 11 N. C. Med. J. 250 (1950). Said Bradway: “... A properly drawn statute prescribing the conditions and safeguards under which voluntary sterilization may be performed would be helpful to both physician and patient.” (At 252.)

26. Publication issued by the Human Betterment League of North Carolina, n.d. Dr. Burwell reported that a 1959 study of tubal ligations in North Carolina indicated that in the years 1955 through 1957 there was 1 ligation for each 30 deliveries and 75% of these were voluntary sterilizations done either for the convenience of the patient or for socioeconomic indications. (See F. E. Flowers et al., 20 N. C. Med. J. 489 [1959].) Also, Moya Woodside: “From this study it is quite obvious that tubal ligation as a voluntary procedure is being done on a fairly widespread basis in North Carolina. We have every reason to believe further that it is done on very strong patient insistence. We believe further that it is now time for the legislature to take cognizance of the situation and take steps aimed at alleviation of any possible patient or physician liability. Family security, family stability, and family happiness will be assured when the law is clarified.” From Sterilization and Social Welfare: A Survey of Current Developments in North Carolina, 40 Eugenics Rev. 205, 210 (1949); she also called for regularizing through statute what was already the common practice (voluntary sterilization, but mainly for the well-to-do patient).

27. J. L. Morrison, Illegitimacy, Sterilization, and Racism—A North Carolina Case History, 39 Social Service Rev. 10 (1965).

28. However, figures for the eugenic sterilization law in the 1964-66 biennium indicated some significant changes, particularly a sharp drop in total operations (from 507 in the 1962-64 biennium to 356 in the 1964-66 biennium), and of this total the number of noninstitutional operations through voluntary petitions to the Eugenics Board of North Carolina went from 449 in the 1962-64 biennium to 316 in the 1964-66 biennium. This 30% drop in total operations and in noninstitutional sterilizations was commented on by the Board: “There continues to be a decline in the number of sterilizations requested by State institutions, and the general improvement in as well as wider availability of medical means of birth control have made sterilization of non-institutional persons less pressing.” Biennial Report of the Eugenics Board of North Carolina, July 1, 1964 to June 30, 1966 (Raleigh, 1966) at 9.

29. See the story, Senate OKs State Custody of Illegitimate Children, Philadelphia Bulletin, July 10, 1963. For the floor debate, see the Pennsylvania Legislative Journal—Senate, July 9, 1963, at 757-62. Senator James Berger, who cosponsored the 1963 proposal, was the author of an unsuccessful 1961 Senate bill (No. 322) providing for the emasculation of sex offenders. The ambiguous phrase “in conformance with the accepted standards of the community” in subsection 10 reminds one of the Supreme Court's standard for judging obscenity in the 1957 Roth case.

30. A 24-year-old woman, Francine Rutledge, was found guilty of second degree murder for having thrown her 4-day-old baby to its death down an apartment building incinerator chute the previous September. This child was her fourth illegitimate baby, the other three illegitimate children having since been placed in foster homes. According to newspaper accounts, she has an IQ of 62 and a mental age of 12, and was under great strain following the birth of her fourth child. Before sentencing her to an indefinite term in the State Correctional Institution for Women at Muncy, Judge Raymond Pace Alexander of the Court of Common Pleas (No. 7) of Philadelphia advised her to undergo a sterilization operation. He pointed out that he could not order her to be sterilized, and told her, “This is a recommendation, not a compulsion. . . . you ought to do it.” (Philadelphia Inquirer, June 1, 1966, at 11.) He emphasized the fact that he was not ordering sterilization, but that he was merely suggesting it “as the best solution in a situation of this sort.” Following the imposition of sentence, he told her that if she underwent sterilization, he would consider releasing her in 3½ years. (N. Y. Times, June 2, 1966, at 37.) While the factors in the Rutledge sentence may be unusual (four illegitimate pregnancies, low IQ, mental strain prior to the murder of her fourth child), and a “voluntary” choice was presumably made under these circumstances, the use of sterilization “offers” in criminal cases of this kind still raises some serious questions. Is sterilization, which is usually irreversible in female cases, the only “solution” to a situation of this sort? Does a defendant, under these circumstances (and mentally retarded in this case) fully understand not only the nature of the offer, but the consequences (and especially the long-term ones) of such surgical action? Doubtless, Judge Alexander was trying to be empathetic in considering the uniqueness of Miss Rutledge's case, yet even Solomonic jurisprudence will not produce pat answers in cases of this kind. Further edification on these and similar questions was requested of the Judge in a letter from this writer, but no reply was received.

31. The Department of Welfare and Institutions of the Commonwealth of Virginia published several studies: Report on Illegitimacy in the Aid to Dependent Children and Foster Care Programs (Sept. 1958) and a similar study in September 1961; State Summary of Illegitimate Children Receiving Aid to Dependent Children, Sept. 1958; the Department of Public Assistance, Social Service Bureau of the City of Richmond published two studies: A.D.C. Is Everybody's Business (Sept. 1959) and Illegitimacy in Richmond, Virginia, 1910-1955 (April 1957). These and similar studies in other states dispute the belief that most children receiving AFDC assistance are illegitimate.

32. The issue of race and illegitimacy was clearly shown in the statement by the minority of the Commission in their dissenting statement (at 23) :

The data in the report show clearly the race in which the problem is greatest, and that the number of illegitimate births has been increasing both quantitatively and relatively among the Negro race. The proposals of the majority will do little to stem this tide which can be expected to increase and become even more aggravated until illegitimacy becomes uneconomical or the Negro race develops a sufficient sense of pride or moral values which will no longer condone illegitimacy. . . .

In the 1960 legislative session, two compulsory and one voluntary sterilization proposals were defeated. For a comparison with the North Carolina situation, see Morrison, supra note 27. Along with Windle's work on the passage of the Virginia voluntary sterilization law, this article is the most definitive analysis of the role of race in the recent urge to enact new and largely punitive sterilization laws.

33. The punitive sterilization diehards fought to the last, however. In the same 1962 session, Senate Bill No. 37, a replica of the James proposal of 1956 to sterilize mothers of more than one illegitimate child, was killed in Senate committee.

34. For a discussion of the socioeconomic, religious, and racial factors present in the political struggle over the passage of the 1962 voluntary sterilization bill, see Charles Windle's paper, Euthenics and Eugenics: A Case Study of Legislation (presented at the American Psychological Association meeting, St. Louis, Sept. 3, 1962), and published in revised form under the title, Factors in the Passage of Sterilization Legislation: The Case of Virginia, 29 Pub. Op. Qr. 306 (1965). In this APA paper, Windle concluded:

So we see that the achievement of population control will involve many values. Some of these are as widespread as our cultural bias against stupidity, but others are parochial. Some, as in the case of the voluntary sterilization bill in Virginia, may conflict with the liberal's usual biases and he may have to choose which conflicting principles to uphold. Put differently, overcoming the obstacles to population control may require working with groups with greatly different aims. And this brings us back to the initial question of which is better, euthenics (improving the environment so man is more efficient) or eugenics. To achieve population control one may cooperate too much with segments of society which want to use power. It may often be wiser to work toward a better environment, one in which population control can be practiced without potential abuse, than to work directly for population control without regard for whose hands will grasp the reigns.

35. In the political campaign conducted in the fall of 1965, the Virginia Conservative Party presented a platform containing eight planks, and the second of these read as follows: “Offer employment to all able-bodied men applying for relief, and sterilize all unmarried mothers who apply for relief after the birth of a second child.” As quoted in A. R. Preston, The Virginia Conservatives, Washington Star, Oct. 17, 1965, at B5. Needless to say, the Virginia Conservatives did not sustain a victory in this election, but they are not the only political group to make such proposals. At a meeting of the National Renaissance Party, a neo-Nazi group, in New York City, Robert Burros, the Party's candidate for the State Assembly from Orange County, said that “... Negroes who are on relief should be sterilized.” As reported in the N. Y. Times, Mar. 19, 1966, at 60.

36. The Appleton, Wisconsin Post-Crescent in an editorial entitled “Discriminatory Legislation” concluded: “But education in moral attitudes and birth control information is a better answer in trying to deal with the various situations than a prison term. There is no one single way of rehabilitation nor one method of preventing the moral laxity that creates the problem. The proposed law discriminates against Negroes, the ignorant, the extremely poor and even against women.” (Mar. 9, 1963.)

37. For an updating of the Newburgh furor, see E. Edstrom, Relief Cutback Is Another Echo of Newburgh, Washington Post, Feb. 4, 1968, at B4. Also, B. Mandell, The Crime of Poverty, 11 Social Work 11 (Jan. 1966).

38. As reported in the Washington Post, Jan. 27, 1965, at 2A. Also, see E. & A. Selby, Why the Dole Doesn't Work, READER'S DIGEST, Mar. 1965, at 79-83. If the results of the Gallup Poll are at all accurate, they indicate that the studies of illegitimacy by HEW and some state agencies, supra notes 4 and 31, and especially the lengthy Greenleigh Associates study of ADC in Cook County, Illinois have ,failed to dispel the oft-repeated assertion of the connection between AFDC programs and the rise of illegitimacy in the nation. The most definitive data on illegitimacy are found in TRENDS IN ILLEGITIMACY, UNITED STATES, 1940-1965 (National Center for Health Statistics, Public Health Service, HEW, Feb. 1968), but unfortunately there is no mention of AFDC statistics. The complete two-volume report, FACTS, FALLACIES, AND FuTURE-A STUDY OF THE AID TO DEPENDENT CHILDREN PROGRAM OF CooK COUNTY, ILLINOIS (Greenleigh Associates, 1960), which was done at the instigation of the Board of County Commissioners, is probably the most extensive study of a local welfare program in the country. In the summary of the Cook County report, published in 1962, the first section entitled "The ADC Mother Is 97 Per Cent Better Than the Public Thinks" is a must for anyone interested in the problems discussed in this article. NBC's White Paper No. 9, entitled "The Battle of Newburgh," which was telecast nationally on Jan. 28, 1962, was an extremely able attempt to present the life of welfare recipients in realistic, though certainly not sentimentalized, terms. Two classic studies, from different periods of our history, are J. A. Ras, How THE OTHER HALF LIVES (1957 ed.), and M. HARRINGTON, THE OTHER AMERICA; POVERTY IN THE UNITED STATES (1962).

39. Supra note 27 and the discussion of sterilization proposals in Mississippi. And when the attack is aimed at Negro illegitimacy, or the percentage of Negroes on the welfare rolls, especially in our larger cities, or FBI crime statistics based on race, the biological determinism of old returns in new forms, notwithstanding the end of the Nazi era and UNESCO statements to the contrary.

40. Civil Code and Related Subject Matter; Criminal Legislation on Marriage and Procreation, 21 La. L. Rev. 54-55 (1960). A letter from the Department of Justice for the state of Louisiana, dated April 11, 1963 noted that there were no reported prosecutions under the law up to the 1962-63 period. The famous obstetrician-gynecologist, Dr. Alan F. Guttmacher, in commenting on the then pending Mississippi proposal to make it a felony to give birth to a second or subsequent illegitimate child (with sterilization in lieu of punishment), said that laws of this kind would probably lead to more illegal abortions (self-induced or by quacks) or to infanticide. (Speaking at the International Conference on Voluntary Sterilization, New York City, April 16, 1964.) Louisiana also passed a stringent “suitable home” law in 1960 which created a national storm that spread all the way to Washington and back.

41. For a superb analysis of some of these problems by a sensitive anthropologist, see E. Liebow, Tally's Corner (1967).

42. Following the Newark and Detroit riots of the summer of 1967, Congress took a sterner look at the war on poverty and its affiliated programs. It also enacted a series of welfare changes into the Social Security Amendments of 1967. The most controversial of these changes was the “freeze” on the number of deserted children who can be helped with federal AFDC funds (based on the number on the state rolls during the first quarter of 1968). The freeze was called “vindictive” by the National Welfare Rights Organization (NWRO), a national organization which includes more than 100 affiliated groups of welfare mothers. Secretary Wilbur J. Cohen of HEW asked Congress to postpone the effective date of the freeze for one year. The Committee on Health and Welfare of the Governors' Conference also asked for postponement, and twenty-seven of the nation's governors opposed the freeze in letters to HEW and to Congress. Ironically enough, Mary E. Switzer, head of the Social and Rehabilitation Service of HEW, defended the 1967 legislation in a speech before the American Public Welfare Association in Dec. 1967, saying among other things that a major reason for public disenchantment with the welfare program “is the frustration that comes from a seemingly uncontrollable rise in aid costs without an accompanying effort to reduce the relief load by alternate ways of dealing with the problem of need.” Georgia may have precipitated a legal showdown on the freeze with its proposed waiting list for AFDC recipients, which HEW opposed as inequitable. Federal litigation in other areas also loomed large. See note 45 infra.

43. See the Commission's Report; J. A. Robinson, The Politics of Welfare, in Politics in the American States (H. Jacob & K. N. Vines eds. 1965); G. Y. Steiner, Social Insecurity: the Politics of Welfare (1967); McKeany, The Absent Father and Public Policy in the Program of Aid to Dependent Children (1960); DHEW, Welfare Administration, Bureau of Family Services, Dependent Children and Their Families (1963); National Conference of Lawyers and Social Workers, Rights of Public Assistance Recipients (Pub. No. 13, Jan. 1967). Perhaps the most widely reported and least understood of the complex welfare-public policy controversies was over the Moynihan Report (U. S. Dep't of Labor, Office of Policy Planning and Research, The Negro Family; The Case for National Action [March 1965]). See D. P. Moynihan, The President & the Negro: The Moment Lost, Commentary, Feb. 1967, at 31-45, and his address before the national board of the Americans for Democratic Action, The Politics of Stability (Washington, D.C., Sept. 23, 1967); and L. Rainwater & W. L. Yancey, The Moynihan Report and the Politics of Controversy (1967). In this controversy, you can't tell a “liberal” from a “conservative,” even with a score card. Political stereotyping simply does not fit the civil libertarians on all sides of this controversy.

44. This is not meant to be a statement of environmental determinism, or an assumption that all of our present troubles in America can be blamed on “society” or those in the “Establishment.” Moral imperatives may have their place in the discussion, but a realistic as well as pragmatic look at the plight of the children on AFDC and their physical and mental survival takes priority over all other considerations. If a public welfare system has any vestiges of humanity, it must begin with men as they are and not as they ought to be.

45. When Alabama threw upward of 20,000 children off its AFDC rolls under the state's “substitute father” rule (“man in the house”) regulation, this action was declared unconstitutional by a three-judge federal court on Nov. 8, 1967. On June 17, 1968, the U. S. Supreme Court unanimously ruled that Alabama's regulation was inconsistent with the language of the Social Security Act of 1935, and by implication struck down similar regulations in eighteen other states and the District of Columbia that penalize welfare mothers who engage in extramarital sexual intercourse. The Court also ordered reargument next term for three cases that challenge the one-year residence requirement for welfare recipients. On March 11, 1968, a U. S. District Court in Shreveport ordered Louisiana welfare officials to reinstate more than 10,000 AFDC cases to the welfare rolls after they were dropped under that state's “man in the house” (nonlegal union) policy. Unwed mothers have also met eviction in public housing projects. In the same month, the Virginia Supreme Court turned down an appeal from six unwed mothers who were evicted from two Richmond Housing Authority projects because they violated the Authority's “illegitimacy policy.” But cf. King v. Smith, 392 U. S. 309 (1963).

46. For an example of judicial and not legislative cruelty practiced on the impoverished of a bygone era, see the editorial, Judicial Birth Control, 25 Law Notes 184 (1922), which criticizes a Colorado judge for giving a mother the “choice” of submitting to sterilization or having her impoverished children placed in a state institution (in a state which has never had a sterilization statute). For a voluntary or noncoercive alternative to the solution of some of these problems, see H. Curtis Wood, Jr., A Prescription for the Alleviation of Welfare Abuses and Illegitimacy, 61 J. Ky. St. Med. Ass'n 319 (1963), and 12 Henry Ford Hosp. Med. Bull. 75 (Mar. 1964); also see a penetrating article by F. S. Jaffe, Family Planning, Public Policy and Intervention Strategy, 23 J. Social Issues 145 (1967); E. Z. Ferster, Eliminating the Unfit—Is Sterilization the Answer?, 27 Ohio St. L.J. 591 (1966), especially her discussion of recent sterilization cases in Ohio and California at 605-11; and E. J. Lieberman, Preventive Psychiatry and Family Planning, 26 J. Marriage & The Family 475 (1964).

47. The “suitable home,” “substitute father,” and “man in the house” rules are only symptomatic of the wide variety of eligibility rules that take their toll in human misery and not merely among deserted mothers and dependent children. A survey taken by the Southern Regional Council of the 100 poorest counties in the nation showed that the nation's poorest people get barely enough welfare aid to meet even their most minimal needs. The SRC contended that eligibility requirements set up by the states “work to restrict the number of recipients rather than to reach those in need” and concluded that the welfare system is set up “... to expend exactly enough to soothe the consciences of those with comfortable standards of living and no more.” Public Assistance: To What End? Special Report by the Southern Regional Council, Atlanta (Nov. 1967), at 3, 40. In November 1967, a special three-judge U. S. District Court for the District of Columbia ruled that the District's one year residence requirement for welfare assistance was invalid. Currently under attack in the District are two other welfare rules, one that allows for mandatory inspection of recipients' homes to find if there is a “man in the house,” with refusal leading to a cutting off of funds, and the other, a welfare policy that allows for a reduction of $2 a month from a family's welfare check for a fourth child and $4 for each additional child. This policy was instituted in 1961 as an “economy” move. According to columnist William Raspberry, “A key tenet of governmental spending, it appears, is that you cut programs whose beneficiaries are, because of ignorance or lack of power, least in a position to do anything about it. And so the District Government is saving a quarter of a million dollars a year by taking it from the very people who can afford it least.” Washington Post, Mar. 25, 1968, at B1. Galbraith's principle of countervailing force is at work here, but in an unusual sense, in the use of the Neighborhood Legal Services organization (an OEO financed private agency) to fight the District government in the federal courts. The organizations of welfare mothers, sprouting all over the nation, are the more conventional example of the creation of new pressure groups to counter the existing power forces in the political and economic arenas. The current fight over the U. S. Department of Agriculture's federal food stamp program is a case in point.