On the 95th anniversary of the Supreme Court of the U.S. (SCOTUS) decision upholding the involuntary sterilization of a Virginia woman deemed “feeble minded,” someone leaked a draft decision to reverse Roe v. Wade.
The timing is striking.
The woman at the center of the 1927 decision, Carrie Buck (1906-1983), had become pregnant after the nephew of her foster parents allegedly raped her the summer she would turn 17.
Abortion was illegal in all 48 states in the 1920s. Today it is legal, due to the 1973 SCOTUS decision in Roe v Wade, which struck down a Texas law that criminalized abortion.
Justice Samuel A. Alito Jr., a Roman Catholic, authored the leaked draft decision which would return the legality of abortion to the states without an act of Congress.
We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
Alito’s argument represents tyranny of the minority. Only about 1-in-5 American adults are Catholic; more than half (56%) believe abortion should be legal in all or most casts (2019). Most Americans (3-in-5) believe abortion should be legal.
Buck v Bell
In Buck v. Bell the SCOTUS “[upheld] a state’s right to forcibly sterilize a person considered unfit to procreate.” By an 8-1 vote on 02 May 1927, the Court allowed the Commonwealth of Virginia to sterilize Carrie Buck without her consent.
That 1927 ruling stands. It has not been overturned nor has it ever been challenged.
The ruling occurred at the height of the eugenics movement in the United States. In a 2016 interview with NPR, journalist and author of Imbeciles Adam Cohen explained how proponents of the American eugenics movement rationalized sterilization:
“Feebleminded” was really the craze in American eugenics. There was this idea that we were being drowned in a tide of feeblemindedness — that basically unintelligent people were taking over, reproducing more quickly than the intelligent people — but it was also a very malleable term that was used to define large categories of people that again, were disliked by someone who was in the decision-making position.
Emma Buck was married when Carrie was born, although she and her husband separated. Carrie entered foster care at four years of age and lived with J. T. and Alice Dobbs. She attended school through the sixth grade, “[l]ike most poor children in rural Virginia in the first years of the twentieth century.” Her sixth-grade teacher characterized Buck’s work and behavior as “very good.”
In January 1924, Carrie Buck’s foster parents began the process of having her committed to the Virginia Colony for Epileptics and Feeble-Minded in Lynchburg. Her daughter, Vivian, was born on 28 March 1924, and Carrie was committed soon afterward.
On 20 March 1924, the Governor of Virginia had signed the Eugenical Sterilization Act, making it legal for those “afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness or epilepsy” to be involuntarily sterilized. That year, Virginia legislators also passed the Racial Integrity Act, which prohibited interracial marriage.
As with anti-abortion activists, eugenists sought a case that they could take to the SCOTUS. Dr. Albert Priddy, superintendent at the Virginia Colony, targeted Buck. Her attorney at the sterilization hearing had been “chairman of the board of the colony and was sympathetic” to Priddy’s advocacy for sterilization.
Buck’s attorney “worked with the attorney for the Virginia Colony to assure that Virginia’s sterilization law would be upheld in Court.”
The case rested on an argument that three generations of “feeble minded” women proved they were unfit to be parents and that “feeble mindedness” was genetic. A Red Cross social worker told the court the real reason that J.T. Dobbs wanted to commit Carrie Buck to the Colony; she also testified that Vivian Buck was feeble minded when she was only seven months old.
Mr. Dobbs, who had charge of [Carrie], had taken her when a small child, had reported to Miss Duke [the temporary secretary of Public Welfare for Albemarle County] that the girl was pregnant and that he wanted to have her committed somewhere—to have her sent to some institution [emphasis added].
[…]
It is difficult to judge probabilities of a child as young as that, but [Vivian, Carrie’s daughter] seems to me not quite a normal baby…There is a look about it that is not quite normal, but just what it is, I can’t tell.
Here’s Oliver Wendell Holmes, writing for the SCOTUS majority and centering the ruling on generations of “feeble minded” women:
Carrie Buck is a feeble minded white woman… She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child… An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, &c… and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, &c…
[…]
Carrie Buck is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization.
Records from Venable Elementary School in Charlottesville would later demonstrate that Carrie’s daughter Vivian was not “feeble minded.”
Her first grade report card showed that Vivian was a solid “B” student, consistently received an “A” in deportment, and had been on the honor roll.
Vivian had remained with the Dobbs family and died at age eight.
Roe v Wade
The Supreme Court under the leadership of Holmes “rejected the argument that the law violated Carrie Buck’s constitutional right to equal protection and due process under the law.”
Roe v Wade (7-2) rests on the right to privacy inherent in the Due Process Clause of the Fourteenth Amendment.
It was a Texas law that the Court overturned in Roe v Wade. It is a Mississippi law that is at the center of the upcoming SCOTUS ruling in 2022. According to the New York Times:
The release of the 98-page [draft] document is unprecedented in the court’s modern history: Early drafts of opinions have virtually never leaked before the final decision is announced, and never in such a consequential case.
The draft opinion is reportedly endorsed by all Republican-appointees to the Court except Chief Justice John Roberts, whose opinion is unknown. It would reverse almost 50 years of legal abortion in all 50 states.
In 2016, Senate Majority Leader Mitch McConnell refused to hold a hearing on President Barack Obama’s nominee to replace Justice Antonin Scalia. McConnell’s action was unprecedented.
There have been 103 prior cases in which—like the case of President Obama’s nomination of Judge Garland—an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year. By contrast, there have been only six prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all six such cases, there were, however, contemporaneous questions, not present here, about the status of the nominating President as the most recently elected President.
McConnell’s refusal to schedule hearings for President Obama’s nominee Merrick Garland meant that his nomination lingered for a record 293 days.
President Donald Trump would nominate Neil Gorsuch in January 2017 to replace Scalia. Since the Nixon administration, the nomination process had taken an average of 73 days.
There were three Trump-McConnell Supreme Court justice nominations:
- the Gorsuch nomination took 66 days
- the Brett Kavanaugh nomination took 89 days
- the Amy Coney Barrett nomination took only 30 days and “was one of the quickest…in modern times;” it was concluded only one week before Election Day
Two of those three positions should have been filled by Democratic presidents, Obama and Biden. Had they been, I would not have written this today.
Image: Kidadl
Cross-posted from WiredPen and Medium.
Known for gnawing at complex questions like a terrier with a bone. Digital evangelist, writer, teacher. Transplanted Southerner; teach newbies to ride motorcycles. @kegill (Twitter and Mastodon.social); wiredpen.com