Creators: The Right to Bodily Autonomy

Matthew T. Mangino
Creators Syndicate
August 13, 2024

The art of movie making can be provocative, a glimpse of the past as a harbinger of the future. There is a scene in the classic film "Judgment at Nuremberg" where defense attorney Hans Rolfe, played by Maximilian Schell, is cross-examining a German judge about the Nazi sterilization of undesirable women. Schell cites a case where the high court of another country authorized the sterilization of a "feeble-minded" woman who was the daughter of a "feeble-minded" mother. The court opinion concluded, "Three generations of imbeciles are enough."

Schell dramatically concluded his cross-examination by revealing that the author of the opinion was the vaunted American jurist Oliver Wendell Holmes. "Judgment at Nuremberg" was a fictional account of the war crime trials of German judges. However, Justice Holmes' opinion in Buck v. Bell — which upheld the sterilization of women in the state of Virginia — was indeed cited in Nuremberg.

Carrie Buck became pregnant at age 16. Her foster parents had her institutionalized as a "feeble-minded moral delinquent," despite her claims that she had been assaulted by their nephew.

After she gave birth, Buck was sent to the Virginia State Colony for Epileptics and Feeble Minded in Lynchburg. Buck's mother was already a resident there.

Virginia had a law authorizing sterilization of, among others, the feeble-minded and the socially inadequate. With three generations available for examination, the colony set out to prove that the Buck women were defective. They sought to have Carrie Buck sterilized under the new law.

The Supreme Court supported Buck's sterilization by a vote of 8 to 1. Holmes' 1927 opinion is remembered as containing some of the most infamous language ever delivered by the high court.

Here we are 97 years later and America is embroiled in the same debate. Do women deserve the right to make decisions over their own bodies and decide when and if they want to have children?

In Dobbs v. Jackson Women's Health Organization, the 2022 abortion decision, the U.S. Supreme Court held "that Roe [v. Wade] must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."

"The Dobbs case and the Buck case can both be boiled down to an issue about bodily autonomy," wrote Livia LaMarca, a student at the University of Pittsburgh, in 2022.

In Buck, the court acquiesced to the involuntary sterilization of women, and in Dobbs the court rescinded a woman's right to make her own reproductive choices. The decisions are about control. In both cases, according to LaMarca, the Supreme Court decided "that the right to one's own body isn't important enough to protect and that it isn't protected by the constitution."

According to USA Today, Buck was the first victim of Virginia's sterilization law. As a result, about 8,300 Virginians were involuntarily sterilized. The law was repealed in 1974, but Buck v. Bell has never been overturned.

The government — at different levels — continues to take away the right of women to make reproductive decisions. In 2015, a 36-year-old Tennessee woman had been charged with neglect after the death of her 5-day-old baby. The prosecutor would not move forward with a plea bargain to keep her out of prison unless she agreed to undergo a sterilization procedure. According to The Tennessean, the case ignited outrage over the proposed use of sterilizations as a bargaining chip in a criminal prosecution.

Seven years later, that very state enacted a total ban on abortion. The Tennessee law, with few exceptions, went into effect on Aug. 25, 2022. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in their dissent in Dobbs, "The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom."

The Buck court, in much the same way, thought forced sterilization did not implicate a woman's right to due process and equal protection — a decision ignominiously invoked by the Nazis in defense of crimes against humanity.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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