Friday, September 4, 2015

Brophy and Troutman on Eugenics in North Carolina

Alfred L. Brophy, University of North Carolina School of Law, and Elizabeth Lea Troutman, an alumna of North Carlina Law, have posted The Eugenics Movement in North Carolina:
“The Eugenics Movement in North Carolina” places North Carolina into the social, political, and legal context of the movement in the United States that resulted in the sterilization of more than thirty thousand people from the 1920s through the 1960s. We sketch the social and political arguments that were mobilized to support sterilization, as well as the arguments judges developed alongside these arguments from the 1910s through the 1930s. State courts slowly accepted sterilization until the United States Supreme Court’s decision in 1927 in Buck v. Bell. Then courts and legislatures around the United States more readily accepted it, even as legal scholars expressed reservations about sterilization. North Carolina was one of those states that embraced sterilization. The machinery of the state went into facilitating sterilization. The Eugenics Board of North Carolina, the state board in charge of reviewing petitions from public health officials for sterilization, produced pre-printed forms to facilitate the approval of sterilization. They presided over the petitions and routinely granted the vast majority of them. The few sterilization orders that were challenged in court were also routinely upheld.

For nearly two decades, until the United States’ entrance into World War II, sterilization was broadly accepted by courts. But the United States Supreme Court’s decision in Skinner v. Oklahoma in 1942 began to turn the tide against sterilization, as did unease with a procedure that was reminiscent of what was happening in Germany during the War. Yet, even after Skinner v. Oklahoma and after World War II ended, as the rest of the nation began to abandon sterilization, sterilizations continued in North Carolina.

We conclude with a discussion of the recent legislation in North Carolina to provide modest payments to the victims of the state’s sterilization program. In particular we discuss the design of a payment regime and how the legislature can justify payments for this concentrated episode of state infringement on personal liberty. And we suggest that the North Carolina legislation may provide a model for future legislative action aimed at payments for people sterilized involuntarily in other states.

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