In response to the Supreme Court’s decision reversing Roe v. Wade I have heard various women ask if men can be sterilized. In context, the question is generally presented rhetorically, as a bit of snark. I write to suggest that the question deserves serious thought. It turns out there is a very real history on this issue, involving two Supreme Court cases. One involving a woman, one involving a man, and coming to very different results.
The first of these was the 1927 case of Buck v. Bell. Carrie Buck was an institutionalized young person who the Supreme Court described as “a feeble-minded white woman.” What’s more her mother had been similarly institutionalized, and Carrie Buck was herself the mother of (court’s words) “an illegitimate feeble-minded child.”
The United States Supreme Court endorsed the forced sterilization of Carrie Buck. In the now notorious words of Justice Holmes, “three generations of imbeciles are enough.” The eugenics was strong in this decision:
“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.”
But fundamentally the argument was the same as we heard from the Supreme Court yesterday. The Constitution does not address the issue. As the word “abortion” does not appear in the Constitution neither does the word “sterilization.” If the Constitution does not forbid the state to compel sterilization, then the state is free to do so if its people will it. It was not something the court regarded as a particularly close or difficult call. The decision was 8–1.
Which brings us to the next case, Skinner v. Oklahoma, decided in 1942. Jack Skinner was a three times convicted felon, once for stealing chickens and twice for armed robbery. He was sentenced under Oklahoma’s habitual criminal statute which called for him to undergo a forced vasectomy. Let’s just call it a “three strikes and you’re cut” law.
Suddenly the court declares we have a case that (ahem) “touches a sensitive and important area of human rights” raising “grave and substantial constitutional questions.” By golly it’s almost as if you can see the all male justices uncomfortably crossing their legs.
The court unanimously declares that there are certain things that are basic rights even if inconveniently not enumerated in the Constitution. “We are dealing here with legislation which involves one of the basic civil rights of man” [emphasis added] the court states in flowing terms. After all, “marriage and procreation are fundamental to the very existence and survival of the race.”
Roe v. Wade was rooted in the notion that denying abortion rights denied women “liberty” within the meaning of the due process clause of the 14th Amendment. So it was with Skinner as the court declared that if he were castrated “he is forever deprived of a basic liberty.” [emphasis added]
By contrast in the decision reversing Roe, Justice Alito was quite concerned with overstepping with this approach:
“In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy.” — Dobbs v. Jackson, p. 14 (2022)
As applied to women the Supreme Court declares yesterday that, “the term ‘liberty’ alone provides little guidance” because “‘liberty’ is a capacious term.” Suddenly, the word that was so easy when defending the reproductive rights of three times convicted felon Jack Skinner becomes impossible to decipher to benefit the reproductive choices of law abiding women.
Yesterday I wrote that the fundamental flaw in the decision reversing Roe was its denying rights today based on a history of denying rights to women. In these two cases we see that history in action. When it was denying women reproductive rights, in Buck v. Bell, the Supreme Court found the Constitution conferred no such rights. When it came to denying men reproductive rights an aghast Supreme Court unanimously declared this a deprivation of “basic liberty.”
With the reproductive rights stakes going back to women yesterday, the “basic liberty” rights afforded Jack Skinner were denied once again to all the Jane Does and Carrie Bucks in America. A government powerful enough to deny women abortions is powerful enough to compel women to have abortions. After all, nothing in our Constitution says otherwise.
