Abstract:
In this article, I offer historical, jurisprudential, and moral analyses of racial eugenics campaigns against African American, Native American, and Hispanic American women. I argue that African American, Native American, and Hispanic American women were sterilized at a time in US history when doctors working for/with the Department of Health, Education, and Welfare, the Indian Health Service, and Medicaid engaged in forced and coerced sterilizations with impunity. As a result, Black and Brown women did not have equal protection of the laws nor unimpeded access to the courts. Therefore, they had few options for protecting themselves from harm or redressing their grievances against the state. For these reasons, I conclude that African American, Native American, and Hispanic American women who were sterilized without their knowledge or consent by doctors working for public health agencies ought to be awarded reparations by the United States Congress. Additionally, I conclude that federal prosecutors and the American Medical Association ought to bring criminal charges and professional sanctions against the doctors and healthcare workers involved. Finally, I conclude that medical professionals ought to engage in a nationwide effort to reconcile people in Black and Brown communities with the healthcare community in the United States.
Keywords:
American eugenics, medical racism, reconciliation, reparations, retribution
1. Introduction
I went to the doctor who did that to me and I asked him, Why? Why had he done that to me? He didn't have to say nothing - and he didn't. If he was going to give that sort of operation then he should have told me. I would have loved to have had children. But a lawsuit was out of the question, Hamer recalled. At that time? Me? Getting a white lawyer against a white doctor? I would have been taking my hands and screwing tacks in my own casket. [1]
At the time of her sterilization, Fannie Lou Hamer was a poor, uneducated, Black sharecropper living in segregated Ruleville, Mississippi so she knew the consequences of standing up to White people. If she had attempted to sue the doctor who sterilized her, she would have been labeled an “uppity ni_ _er,” and there was only one fate for a Black person labeled “uppity” in Mississippi in those days, death. So, Mrs. Hamer waited until she could speak out against forced and coerced sterilizations without fear of retribution. Her opportunity came on June 8, 1964 when she was selected to speak to a panel on Mississippi and Civil Rights in Washington, D.C. She testified that she was given a hysterectomy without her knowledge or consent when she went into North Sunflower County Hospital to have a benign tumor removed from her stomach. She also revealed that she was not the only Black woman in Mississippi who was sterilized without her knowledge or consent. In fact, she estimated that “about six out of ten Negro women who go to the hospital are sterilized” unwittingly. [2]
Sometimes Black women talked and cautioned family members and friends about doctors who sterilized them surreptitiously. This is how Fannie Lou Hamer learned that she was not the only Black woman who had been sterilized without her consent at North Sunflower County Hospital. Of course, Mrs. Hamer could not have known it at the time but her estimation about how many Black women were sterilized was correct. In fact, in Medical apartheid, Harriet Washington tells us that one investigation of forced and coerced sterilizations in Mississippi “revealed that at least sixty percent of the Black women in Sunflower County unwittingly suffered hysterectomies” or tubal sterilizations. [3] Subsequent investigations have revealed that 90% of the sterilizations performed on poor, disabled, and minority women were paid for by the U.S. Department of Health, Education, and Welfare (which is now the U.S. Department of Health and Human Services). [4] So, when Fannie Lou Hamer coined the phrase “Mississippi Appendectomy” she gave voice to thousands of Black women who had been victimized by doctors working for public health agencies but committed to advancing the aims of racial eugenicists.
Of course, Black women were not the only victims of the eugenics campaigns in the United States. In “The Indian Health Service and the sterilization of Native American women," Jane Lawrence argues that investigations of forced and coerced sterilizations of Native American women have revealed that healthcare workers at the Indian Health Service (a branch of the U.S. Department of Health and Human Services) singled‐out and sterilized at least 25% of Native American women between the ages of 15 and 40 without their knowledge or consent. [5] Hispanic American women were victimized too. In “Puerto Rico: A case study in population control,” Bonnie Mass argues that coerced sterilization had become so common on the island that, by 1980, a full one‐third of Puerto Rican women of childbearing age had been sterilized. [6] Ninety percent of the sterilizations were paid for by Medicaid (a branch of the U.S. Department of Health and Human Services). [7]
There was also an intersectional aspect to eugenics campaigns in the United States, partly because the writings of the late 19th century eugenicists focused on the “heritability of feeblemindedness” so there was great concern about passing disabilities on to successive generations. As a result, “by 1913, twenty‐four states and the District of Columbia had enacted laws forbidding marriage by people considered genetically defective, including epileptics, imbeciles, paupers, drunkards, criminals, and the feebleminded.” [8] Just 14 years later, the Supreme Court concluded that
it is better for 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. [Therefore,] the principle that sanctions compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [9]
Hence, the Court concluded: forced sterilization of people with mental disabilities does not violate the equal protection clause of the 14th Amendment to the US Constitution. [10] This decision gave rise to eugenics programs throughout the country. And, not surprisingly, given that racism was ubiquitous in the 20th century, it was only a matter of time before the eugenicists turned their attention to Black and Brown people.
Today, forced and coerced sterilizations are illegal. Still, they are performed behind the walls of prisons and detention centers by physicians of questionable moral character. For example, in 2013, the Center for Investigative Reporting exposed the forced and coerced sterilizations of women that occurred in California's Department of Corrections from 2006 to 2010. [11] Additionally, in December 2020, several Hispanic women in the custody of Immigration and Customs Enforcement (ICE) filed a legal complaint alleging that they were given hysterectomies without their knowledge or consent. [12] Their allegations are supported by a whistle‐blower complaint filed by Dawn Wooten, a nurse at the Irwin County Detention Center where the hysterectomies are alleged to have taken place. Of course, if the allegations are proven in court the lawyers for the plaintiffs will file tort claims and the victims will receive compensatory justice in the form of monetary payments. Additionally, state and federal prosecutors might file criminal charges against the doctors and healthcare workers involved. If the state proves its case in court the doctors and healthcare workers will lose their medical licenses and incur criminal fines and penalties.
Unfortunately, however, the vast majority of the victims of the eugenics campaigns in the United States have not received retributive justice or compensatory justice (reparations) for the harms inflicted on them, nor has there been any attempt to reconcile Black and Brown communities with the medical community at large. In light of this - and the many other unrequited offenses committed against Black and Brown people by the medical community in the United States - it's no wonder why Black and Brown people find it difficult to trust medical professionals. Consequently, on average, Black and Brown people seek preventative and general medical care less often than White people. As a result, there are striking disparities in the healthcare outcomes between Black and Brown people and White people. For example, a study conducted by the Center for Disease Control (CDC) revealed that “American Indian, Alaska Native, and Black women are two to three times more likely to die of pregnancy-related causes than white women.” [13] Similarly, in “Infant mortality in the United States, 1915‐2017: Large social inequalities have persisted for over a century,” Gopal Singh and Stella Yu argue that Black infants have 2.3 times higher mortality, Native American infants have 1.7 times higher mortality, and Puerto Rican infants have 1.3 times higher morality than White infants. [14]
I believe that reparations will help to achieve compensatory justice; criminal prosecutions and professional sanctions against the doctors and healthcare workers involved will help to achieve retributive justice; and a nationwide effort by medical professionals to reconcile Black and Black communities with the larger medical community will reduce the healthcare disparities between Black and Brown people and White people. In what follows, I offer historical, jurisprudential, and moral analyses of racial eugenics campaigns in the United States. I argue that African American, Native American, and Hispanic American women were sterilized at a time in US history when doctors working for the Department of Health, Education, and Welfare; the Indian Health Service; and Medicaid engaged in forced and coerced sterilizations with impunity. As a result, Black and Brown women did not have equal protection of the laws nor unimpeded access to the courts. Therefore, they had little to no options for protecting themselves from harm or redressing their grievances against the state. For these reasons, I conclude that African American, Native American, and Hispanic American women who were sterilized without their knowledge or consent by doctors and healthcare workers at public health agencies ought to be awarded reparations by the United States Congress. Additionally, I conclude that federal prosecutors and the American Medical Association ought to bring criminal charges and professional sanctions against the doctors and healthcare workers who engaged in forced or coerced sterilizations of Black and Brown women. Finally, I conclude that healthcare professionals ought to engage in a nationwide effort to reconcile people in Black and Brown communities with the medical community in the United States. I do so because I believe that reparations, retribution, and reconciliation will reduce the disparities in healthcare outcomes between Black and Brown people and White people.
2. Uterus Collectors: The Unkindest Cut
2.1. “Mississippi Appendectomy”
In 1845, Dr. James Marion Sims secured 11 African American female slaves who suffered from vesicovaginal fistula, a condition that results from difficult childbirths and creates tears between the bladder, rectum, and vagina, allowing urine to flow into the vagina. The flow of urine into the vagina results in inflammation, pain, and vaginal odors. [15] In the 19th century, there was no cure for vesicovaginal fistulas so when Dr. Sims set out to find a cure slave‐owners were eager to deliver their female slaves to him. After all, if Dr. Sims's experiments were successful then enslaved women could be cured, returned to work, and bear children in the future. This, in turn, would increase profits for slave‐owners because the number of slaves working on their plantations would increase and the number of children who could be sold on slave markets would increase. This was underscored in a dramatic way by Thomas Jefferson who proclaimed that an “enslaved woman who brings a child every two years is more profitable than the best man on the farm... What she produces is an addition to [her labor], while his labor disappears in mere consumption.” [16]
By 1865, however, the profit motive underlying the slaveowners’ concern for the reproductive health of enslaved Black women had vanished. For, the 13th Amendment to the US Constitution ended slavery in the United States and its territories, which undermined profiteering from enslaved Africans and African Americans. Additionally, African Americans outnumbered European Americans in states like Mississippi and South Carolina, and made up nearly 50% of the populations of states like Alabama, Georgia, and Louisiana. [17] This, coupled with the political power Black people gained from the 15th Amendment to the US Constitution, gave rise to fears among White people that the tide of race relations was turning against them. [18] In response, European Americans established literacy tests, poll taxes, property restrictions, and terrorist organizations like the Ku Klux Klan to prevent African Americans from voting. Even worse, eugenicists began strategizing about how to use state and federal healthcare agencies to diminish or eliminate Black reproduction. For example, in Killing the Black body, Dorothy Roberts tells us that “twentieth century eugenicists were not content to rely on evolutionary forces to eliminate biological inferiors; they proposed instead government programs that would reduce the Black birthrate.” [19]
In turn, state and federal healthcare agencies initiated eugenics campaigns against African American women. Indeed, in Medical Apartheid, Harriet Washington argues that “across the nation, Black women who trusted their obstetricians to deliver their children were being surreptitiously sterilized.” [20] She continues: to make these operations look legitimate, doctors “lied to their patients, forged consent forms, and falsified medical records to reflect appendectomies or gallbladder removals,” when, in fact, they were performing hysterectomies and tubal sterilizations. [21] In addition to lying and falsifying medical records, members of state eugenics boards manipulated and coerced individuals and families. For example, in “Lifting the curtain on a shameful era: Thousands were sentenced to sterilization during rubber‐stamp hearings in Raleigh,” Kevin Begos criticizes the Eugenics Board of North Carolina for “trampling on the rights” of individuals and “browbeating” families into allowing their loved ones to be sterilized. [22] His story features the Blackmon family who were browbeaten by state welfare workers into allowing their 13‐year old African‐American daughter with diminished mental capacities to be sterilized. To this day, the family suffers with the trauma of their coerced decision.
North Carolina has sought to remedy this situation by offering 20,000 dollars to the victims of their sterilization campaigns. North Carolina is one of two states that have offered reparations to the victims of forced and coerced sterilizations - the other state to do so is Virginia. I will discuss North Carolina's attempt at achieving compensatory justice below. For now, let us turn to a discussion of how forced and coerced sterilizations affected women in Native America communities.
2.2. Another Trail of Tears
Black women were not the only victims of eugenics campaigns in the United States. In “The Indian Health Service and the sterilization of Native American women,” Jane Lawrence argues that Native American women were targeted for sterilizations by doctors working for the Indian Health Service because of fears about their birthrates. [23] For example, “the 1970 census shows that the average Indian woman bore 3.29 children, whereas the median for all other groups in the United States was 1.79 children.” [24] However, by 1980, the average Indian woman bore 1.3 children, a decline of 1.99 children. [25] By comparison, the average birthrate for “white women was 2.42 children in 1970 and... 2.14 in 1980,” a decline of only 0.28 children. [26] Lawrence's contention that Native Americans were targeted by doctors working for the Indian Health Service is supported by research conducted at the Center for Bioethics and Human Dignity. For example, in “Forced sterilization of Native Americans: Late twentieth century physician cooperation with national eugenic policies,” Dr. Gregory Rutecki argues that many of the doctors and healthcare personnel at the Indian Health Services coerced Native Americans women into getting hysterectomies or tubal sterilizations by threatening to take away their children and/or healthcare services. [27]
Given the state of the Native American population, the actions of the doctors and healthcare workers were particularly inhumane. For example, the Native American population had been decimated by the manifest destiny wars of the 19th century. Those who survived were forced to live on reservations, often in abject poverty. For example, in the 1970s when the sterilizations took place, 58.6% of Native Americans on the Gila River Reservation lived below the poverty line; 62.1% of Native Americans on the Navajo Nation Reservation lived below the poverty line; 78.1% of Native Americans on the Papago Reservation lived below the poverty line; [28] and, in short, by 1970, “57 percent of the families on these reservations lived below the poverty threshold.” [29] This was made worse by the fact that Native American women and infants are nearly twice as likely to die of pregnancy‐related complications than European American women and infants. Thus, sterilizing Native American women under such conditions could have had only one justification: Malthusianism genocide. In other words, Malthusians believe that poverty is the result of base character, bad decisions, and general unfitness to live in advanced society. For Malthusians, the way to address the problem of poverty is to get rid of the poor, that is, genocide. [30] This is a convenient theory for those looking to ignore the consequences of the manifest destiny wars and force relocations of Native Americans. After all, it allows them to absolve themselves of responsibility and heap it upon their victims.
Nevertheless, an investigation of forced and coerced sterilizations of Native American women in Albuquerque, New Mexico; Phoenix, Arizona; Oklahoma City, Oklahoma; and Aberdeen, South Dakota by the Government Accountability Office (GAO) confirmed many of Jane Lawrence's claims about forced and coerced sterilizations. In fact, the GAO's investigation showed that, between 1973 and 1976, doctors coerced 3,406 Native American women into being sterilized. [31] To put this in context, Senator Abourezk of South Dakota argues that, given the size of the Native American population, sterilizing 3,400 Native American women is equivalent to sterilizing 452,000 non‐Native American women. [32] Even worse, the sterilizations investigated by the GAO were not the only sterilizations of Native American women that occurred during in the 1970s. For example, Dr. Pinkerton‐Uri conducted an investigation that revealed that 100 Native American women were sterilized for nontherapeutic reasons at Claremore Hospital in Oklahoma. [33] And, when Chief Tribal Judge Marie Sanchez heard about the sterilizations she conducted an investigation of the women in her Tribe. To her dismay, she discovered that 30 of her tribes‐women had been sterilized. [34] Worse yet,
two girls under the age of fifteen were told that they were having their appendix taken out only to discover later that they had been sterilized. Another woman who complained to a physician about migraines was told that her condition was a female problem and was advised that a hysterectomy would alleviate the problem. Her headaches continued... until she was diagnosed with a brain tumor. [35]
In light of this evidence, we know that many of the doctors and healthcare professionals working for the Indian Health Service were engaged in fraudulent healthcare practices similar to those conducted by doctors working at the Department of Health, Education, and Welfare.
Nevertheless, after its investigation, the Government Office of Accountability sought to achieve justice by establishing additional procedural safeguards for protecting women from forced and coerced sterilizations. I will discuss its attempt at achieving procedural justice below. For now, let's consider how forced and coerced sterilizations affected Hispanic American women on the island of Puerto Rico.
2.3. La Operación
Hispanic American women living in the continental United States and on the island of Puerto Rico were coerced into sterilizations also. In fact, in “Population control by sterilization: The cases of Puerto Rican and Mexican‐origin women in the United States,” Gutiérrez and Fuente argue that “Latinas living in New York, California, and many other states [and territories] were also subject to the permanent termination of their childbearing by coercive, permanent sterilizations.” [36] In fact, coercive sterilizations were so pervasive on the island of Puerto Rico that, by 1965, over 34% Puerto Rican mothers between the ages of 20-49 had been sterilized. [37] This is nearly five times as high as the percentage of women sterilized in 1946, the year before the United States showed economic interest in Puerto Rico. [38]
In short, in 1947, Puerto Rico passed legislation favorable to economic development on the island. In turn, the United States launched “Operation Boot‐Strap,” an economic development campaign that was intended to change Puerto Rico's economy from agrarian to industrial. Toward that end, the US government promised large corporations cheap labor and tax exemptions if they moved their operations to Puerto Rico. However, as Gutiérrez and Fuente explain, the rapid growth in industrial jobs “resulted in high rates of unemployment and exacerbated poverty among” the farming communities. [39] As a result, people living in farming communities were forced to migrate to large cities in the United States, like New York. To hide the devastating economic consequences of Operation Bootstrap from the public the United States government promoted the narrative that the “joblessness and poverty was... a symptom of overpopulation.” [40] The United States's solution was to introduce “modern maternal health and family planning services onto the island” - a euphemism for coercive sterilizations. [41]
Coercive sterilizations of Hispanic American women were first exposed when Dr. Bernard Rosenfeld approached the Southern Poverty Law Center (SPLC) about suing the state of California over the abusive practices he witnessed at USC Medical Center. Undoubtedly, he approached the SPLC because it had been successful at using lawsuits to force healthcare facilities to establish “protocols for informed consent.” [42] For example, in 1974, SPLC brought a suit against the Department of Health, Education, and Welfare on behalf of two African American teenagers with diminished mental capacities, Minnie Lee Relf and Mary Alice Relf, who were sterilized when they were just 12 and 14 years old. [43] This became a class action claim when other plaintiffs, many of whom were poor and disabled, joined the lawsuit. However, the SPLC's lawsuit only required the Department of Health, Education, and Welfare to implement new procedures for securing informed consent. It did not require criminal prosecutions, professional sanctions, or reparations for the victims.
Unfortunately, the SPLC declined to investigate Dr. Rosenfeld's accusations and 4 years went by before a lawsuit was brought against Los Angeles County‐USC Medical Center. In 1978, 10 Hispanic American women alleged that they had been coerced or forced into hysterectomies and tubal sterilizations at the Los Angeles County‐USC Medical Center. The plaintiffs’ accusations were consistent with the evidence collected by Dr. Rosenfeld. That is, (a) the plaintiffs were asked to consent to sterilizations while they were in labor or under duress, (b) they spoke Spanish and the consent forms were written in English, and (c) they were provided a translator on rare occasions. [44] Nevertheless, the 9th circuit Judge ruled against the plaintiffs. He concluded that their case was “essentially a breakdown in communication between the patients and doctors” because the plaintiffs are “Spanish speaking women whose abilities to understand and speak English are limited.” [45] He continued that, while “one can sympathize with them for their inability to communicate, one can hardly blame the doctors for relying on these indicia of consent which are in constant use in the Medical Center.” [46]
Despite Judge Curtis's ruling, it must be noted that the forced and coerced sterilizations of African American, Native American, and Hispanic American women were blatant violations of the equal protections clause of the 14th Amendment, Civil Rights Act of 1964, and every legal principle of individual freedom that undergirds the US Constitution. More than this, it is not enough for us to recognize that forced and coerced sterilizations were illegal. They were also immoral, egregiously so. To be sure, in every instance, they extinguished the possibility of Black and Brown women choosing to become mothers, or mothers of large families. As a result, they made it impossible for those who wanted to be mothers to self‐actualize and thereby live the kind of lives that they would have chosen for themselves, and they did so by exploiting the vulnerability of women in labor, women suffering from diseases, and women concerned for the health and well‐being of their teenage daughters. For, as Kant put it in the Groundwork for the metaphysics of morals, they treated rational human beings as means to an end. [47] For these reasons, I conclude that the forced and coerced sterilizations of Black and Brown women discussed above violated the 14th Amendment to the US Constitution, Civil Rights Act of 1964, principles that undergird the US Constitution, and the deontological moral imperative to treat humans as ends in‐themselves and not means to an end. Such violations must not go unrequited.
3. North Carolina's and the Gao's Solutions Considered
The state of North Carolina attempted to remedy the harms it caused by offering payments of 20,000 dollars to those who were forced and coerced into sterilizations in its state facilities. For example, North Carolina established the Office of Justice for Sterilization Victims to compensate victims of forced and coerced sterilizations. However, as of 2018, only 220 of the 7,000 people who were sterilized in the state of North Carolina have received compensation - Virginia is the only other state to have passed a reparations bill, but, so far, only 11 people have been identified and compensated.
Nevertheless, I have major problems with North Carolina's attempt at a remedy. First, the Office of Justice for Sterilization Victims only has jurisdiction over the cases of people who were sterilized in state health facilities. Consequently, it cannot adjudicate the cases of those who were sterilized in local health facilities. Therefore, it ignores the claims of victims sterilized in local health facilities, even though their claims are valid. Second, North Carolina only offered 20,000 dollars to each victim. This is inadequate. After all, doctors working for North Carolina's state healthcare agencies mutilated, disfigured, and caused irreparable physical and psychological harm to 7,000 people. Therefore, the state must reimburse or give each of them enough money to pay for any physical and psychological care resulting from their sterilizations. Otherwise, the state would leave the victims with the burden of shouldering the medical costs of its wrongdoing. Finally, punitive damages in egregious cases like this must be high enough to deter the perpetrators or others from engaging similar behavior in the future. Twenty thousand dollars does not meet the threshold for deterrence. After all, the total amount of money that North Carolina set aside to compensate victims was 10 million dollars. By comparison, the state's budget for 2020 was 25 billion dollars. For these three reasons, I find North Carolina's attempt at achieving compensatory justice objectionable on practical grounds.
Similarly, I find the Government Accountability Office suggestions for achieving procedural justice superfluous. First, informed consent has been a requirement for medical procedures since 1905. To be sure, in Pratt v. Davis the court affirmed that
the free citizen's first and greatest right, which underlies all others - the right to the inviolability of his person, in other words, his right to himself - is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skilful or eminent, who has been asked to examine, diagnose, advise and prescribe (which are at least necessary first steps in treatment and care), to violate without permission the bodily integrity of his patient. [48]
Moreover, informed consent has been reaffirmed in many subsequent cases. For example, in the case of Schloendorff v. Society of New York Hospital, the court affirms that
every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages. [49]
Hence, informed consent was well established in US law before the 1970s and 1980s when the sterilizations took place.
Second, doctors in the western world have been taking the Hippocratic Oath since the 18th century. [50] Thus, in the 1970s and 1980s, doctors would have been well aware of the requirement to secure informed consent before operating on patients. In which case, the GAO's recommendation to educate doctors about the requirement of securing informed consent was superfluous. Finally, given that healthcare personnel were coercing and forcing people into sterilizations, it is apparent that better oversight was needed. However, oversight does not translate into prevention unless there are independent compliance officers with whistle‐blower protections engaged in the oversight. Given that the GAO did not recommend compliance officers or whistle‐blower protections, I see no reason to believe that its oversight recommendations would have translated into prevention. For these two practical reasons, I find the GAO's recommendations superfluous.
4. The Case for Reproductive Justice for African American, Native American, and Hispanic American Female Victims of America's Eugenics Programs
4.1. Reparations
Recently, 14 women from Central and South America who are being held in the custody of US Immigration and Custom Enforcement at the Irwin County Detention Center in Georgia have filed a legal complaint alleging that they were given hysterectomies and tubal sterilizations without their knowledge or consent. [51] Their allegations are supported by a whistle‐blower complaint that was filed by Dawn Wooten, a nurse at the Irwin County Detention Center, [52] and by a Resolution passed by the US House of Representatives that cites evidence of five unwanted sterilizations of Hispanic women in ICE's custody. [53] Of course, if these allegations are proven in court the lawyers for the plaintiffs will file tort claims and the victims will receive compensatory justice in the form of monetary payments. The same cannot be said of the majority of Black and Brown women who were forced or coerced into hysterectomies or tubal sterilizations by doctors working for the Department of Health, Education, and Welfare; the Indian Health Service; and Medicaid. For, as Fannie Lou Hamer reminds us, there was so much racial bigotry, discrimination, and disenfranchisement prior to the Civil Rights Movement that few White lawyers were willing to sue White doctors on behalf of Black clients, especially in the South. Even if the victims could have found a lawyer to sue on their behalf, they would have been subject to racial intimidation, violence, and death at the hands of terrorist groups like the Ku Klux Klan who were allowed to operate with impunity throughout the South.
After the Civil Rights Movement, a few courts heard cases. For example, in the case of Madrigal v. Quilligan, 10 Hispanic American women brought a lawsuit against Los Angeles County‐USC Medical Center for sterilizing them without their knowledge or consent. Judge Curtis ruled that the sterilizations of the women were a result of an “unfortunate misunderstanding.” For me, Judge Curtis's reasoning is baffling, especially since he acknowledged that (a) the women had limited abilities to read, speak, or understand English - in fact, only two of the women understood a small amount of English; (b) the women were given translators rarely; and (c) the consent forms were written in English. These facts ought to have been enough to cast doubt on the validity of the consent forms. Yet, the judge ruled on the basis of the signed consent forms, despite the mountainous evidence of multiple abuses at Los Angeles County‐USC Medical Center presented by Dr. Bernard Rosenfeld.
Even when courts ruled in favor of the plaintiffs they didn't award economic compensation. For example, in the case of Relf v. Weinberger, the South Poverty Law Center sued the Department of Health, Education, and Welfare for its funding of forced and coerced sterilizations. While the judge ruled in favor of the plaintiffs, requiring HEW to refrain from (a) threatening women on welfare with the loss of their benefits if they refused to be sterilized, (b) sterilizing people with diminished mental capacities, and (c) using federal dollars to pay for involuntary sterilizations, he did not award monetary damages. As a result, the victims were left with the burden of paying for the physical and psychological care they needed following their sterilizations. Those who couldn't afford the costs of follow‐up care would have had to struggle through life without getting the care they needed. Either way, the state left the victims to bear the physical and psychological costs of its wrongdoing. For these reasons, I conclude that African American, Native American, and Hispanic American women who were sterilized without their knowledge or consent by doctors working for or with public health agencies like the Department of Health, Education, and Welfare; the Indian Health Services; and Medicaid ought to be awarded reparations by the United States Congress.
The advantages of using Congressional legislation to seek redress for these cases are that a Congressional reparations bill would be more efficient and have a greater impact. For example, if the plaintiffs were to seek redress through the courts, they would have to overcome the problem that the statutes of limitations have elapsed. In other words, since the campaigns of racial eugenics happened between 1910 and 1986, the statutes of limitations for bringing lawsuits in the states in which the sterilizations occurred have elapsed. Therefore, the plaintiffs would have to meet the legal criterion for “tolling” or “stepping in” in order to overcome this problem. Of course, the plaintiffs can meet this burden. For example, in Reparations pro and con, Alfred Brophy explains that the doctrine of “tolling” allows courts to suspend the statute of limitations in special circumstances, [54] and the doctrine of “stepping in” allows legislatures to “step in” and pass bills giving plaintiffs the right to sue for past wrongs. [55] Given that African Americans, Native Americans, and Hispanic Americans were forced and coerced into sterilizations at a time when doctors and healthcare personnel were allowed to act with impunity their cases meet the criterion of special circumstances for “tolling” and “stepping in.” The problem, however, is that many of the plaintiffs are elderly and the process for “tolling” or “stepping in” would take a long time, particularly if we had to begin the process anew for each lawsuit. For this reason, using Congressional legislation to seek redress is preferable.
Second, Congressional legislation is preferable because it would encompass the cases of all of the victims simultaneously, no matter where they live. Therefore, it would have a greater impact than state legislation or individual and class action lawsuits. For example, state legislation is limited to the citizens of the state in question. Similarly, individual and class action lawsuits are limited to the plaintiffs who bring the claim. Above, I criticize North Carolina's Office of Justice for Sterilization Victims on the grounds that it does not have jurisdiction over the cases of those who were sterilized in local health facilities, and therefore, it ignores the claims of many of the victims. Individual and class action lawsuits are limited in a similar way and therefore they are subject to the same criticism. Nevertheless, for the reasons articulated above, I conclude that using Congressional legislation provides a better avenue for seeking redress for the cases of those who were sterilized without their knowledge or consent because it is more efficient and would have a greater impact.
4.2. Retribution
In Section 3, I offered practical reasons for rejecting North Carolina's and the GAO's attempts at achieving compensatory and procedural justice. In addition to the practical reasons articulated above, I find North Carolina's and the GAO's solutions problematic for a jurisprudential reason, namely, they do not require federal prosecutors or the American Medical Association to bring criminal charges and professional sanctions against the doctors and healthcare workers who forced and coerced African American, Native American, and Hispanic American women into sterilizations. As such, they fail to guarantee equal protection of the laws for the victims of forced and coerced sterilizations. In which case, they run afoul of the 14th Amendment to the US Constitution.
Moreover, whenever a democracy refuses to prosecute perpetrators for violating its laws it fails to uphold its contractual obligation to ensure retribution. For example, in the Second treatise of civil government, John Locke argues that when people enter into a social contract they give the state power to establish a legislature that sets the “standards of right and wrong” through its laws; courts that have the “authority to determine all disagreements” based on those laws; and an executive who has the “power to back the sentences” of the courts. [56] Hence, as Locke would have it, in part, the purpose of the social contract is to transfer the natural power to seek justice for wrongdoing from individuals to the state. [57] Given that the United States is a democracy, grounded on a social contract, the government has a contractual obligation to prosecute wrongdoers, especially since they worked for the Department of Health, Education, and Welfare; the Indian Health Services; and Medicaid. [58] Hence, the US government owes the perpetrators of forced and coerced sterilizations retribution. For similar reasons, I believe that the American Medical Association owes the perpetrators of forced and coerced sterilizations professional sanctions.
4.3. Reconciliation
Even if Congress passes a reparations bill, and federal prosecutors and the American Medical Association levied charges and sanctions against the doctors and healthcare workers who were involved in the sterilizations, the disparities in healthcare outcomes between Black and Brown women and children and White women and children will not be diminished. Thus, unless we embark on a nationwide campaign to reconcile Black and Brown communities with the medical community at large this problem will persist. After all, reparations and retribution alone cannot rebuild trust. In order to rebuild trust, the Department of Health and Human Services must establish a truth and reconciliation commission with the purposes of (a) investigating all of the eugenics campaigns against African American, Native American, and Hispanic American women; (b) issuing full disclosures and apologies; (c) storing its findings in the National Archives; (d) erecting monuments and museums in remembrance; (e) teaching successive generations to avoid similar mistakes in the future; and (f) implementing proactive healthcare measures to diminish the disparities in healthcare outcomes, like the mortality rates between Black and Brown women and children and White women and children.
First, the commission's investigations must be transparent and conducted by a team of diverse experts, some of whom must be African American, Native American, and Hispanic American. This is necessary in order for the commission to be accepted and trusted by people in the communities most affected by the sterilizations. Second, the team must consist of professionals from a wide array of disciplines, including history, anthropology, forensics, ethics, law, and medicine. This is necessary in order to ensure that the team's findings are reviewed, scrutinized, and accepted by experts from a wide array of disciplines. Third, the perpetrators of forced and coerced sterilizations must engage in open and public dialogues with their victims and the families of the victims. To be effective, the dialogues must allow the perpetrators to confess to wrongdoing and listen to the victims and the families of the victims explain how the sterilizations have affected them and their communities, issue apologies, and allow the victims and the families of their victims to accept the apologies.
Fourth, the government must store the team's findings in the National Archives and erect memorials and monuments so that we remember this national tragedy and teach successive generations to avoid making similar mistakes in the future. Finally, the Department of Health and Human Services must act proactively to address the healthcare disparities, particularly the mortality rates between Black and Brown women and children and White women and children. This can be achieved by establishing free public health clinics in Black and Brown communities; recruiting and training people from Black and Brown communities to work as nurses, doctors, and administrators of the community clinics; acting proactively to educate the members of the community about their health; and providing the preventative and general medical care that is necessary to diminish the healthcare disparities I highlighted above.
5. An Objection to the Case for Reparations
Lastly, it is often objected that, while reparations are justified on moral grounds, it is simply too expensive and cannot be carried out in practice. In response, it is worth noting that the United States government has awarded reparations several times in the past. For example, in 1946, Congress passed the Indian Claims Commission Act (ICCA). The purpose of the ICCA was to compensate Native Americans for land taken from them unjustly during the manifest destiny wars. [59] In the end, the total amount of money the Commission awarded to Native American Tribes was $1,300,000,000. Similarly, in 1988, Congress passed the Civil Liberties Act of 1988 to “acknowledge the fundamental injustice of the evacuation, relocation, and internment” of Japanese Americans, “apologize on behalf of the people of the United States,” and to “make restitution to those individuals of Japanese ancestry who were interned.” [60] In the end, the total amount of money that Congress appropriated for this reparations bill was $1,250,000,000 [61] - similarly, as I discussed above, North Carolina and Virginia have passed reparations bills to compensate people who were sterilized without their knowledge or consent.
A second possible objection is that individual autonomy is not a good moral standard by which to evaluate forced and coerced sterilizations because it fails to protect children and people with severely diminished mental capacities. I disagree. While some children and people with severely diminished mental capacities are not autonomous enough to give informed consent, their parents and legal guardians are autonomous, and therefore, informed consent is required of their parents. In the cases discussed above, the problem occurred because doctors and healthcare workers coerced Black and Brown families into allowing their children to be sterilized. In the absence of force and coercion, children and people with severely diminished mental capacities are protected under the autonomy of their parents and guardians.
Either way, for the reasons articulated above, I believe that the case for reparations for African American, Native American, and Hispanic American female victims of eugenics programs in the United States cannot be undermined by the objections that it is too expensive or impractical, or that individual autonomy is not a good moral standard by which to evaluate forced and coerced sterilizations because it does not cover children or people with severely diminished mental capacities. After all, there is plenty of evidence illustrating that the United States has implemented well administered reparations programs in the past. Additionally, children and people with diminished mental capacities are protected by the autonomy of their parents and guardians.
6. Conclusion
In this article, I have argued for compensatory, retributive, and reconciliatory justice for African American, Native American, and Hispanic American female victims of eugenics programs in the United States. I have demonstrated that African American, Native American, and Hispanic American women were sterilized at a time in US history when doctors working for the Department of Health, Education, and Welfare; the Indian Health Service; and Medicaid engaged in forced and coerced sterilizations with impunity. For this reason, I have argued that Black and Brown women did not have equal protection of the laws nor unimpeded access to the courts. Therefore, I have concluded that African American, Native American, and Hispanic American women who were sterilized without their knowledge or consent by doctors working for public health agencies ought to be awarded reparations by the United States Congress.
Additionally, I have concluded that federal prosecutors and the American Medical Association ought to bring criminal charges and professional sanctions against the doctors and healthcare workers involved in forcing and coercing patients into sterilizations. I have argued for retribution because I believe that some of the distrust of medical professionals by people in Black and Brown communities will be diminished if the doctors and healthcare workers involved were held accountable. Of course, I recognize that reparations and retribution alone are not sufficient for rebuilding trust. For this reason, I have concluded that the medical community ought to engage in a nationwide reconciliation campaign with the goal of implementing proactive healthcare measures to diminish the disparities in healthcare outcomes, particularly the mortality rates between Black and Brown women and children and White women and children.
Notes
Washington, H. (2008). Medical apartheid: The dark history of medical experimentation on Black Americans from colonial times to the present. Anchor Books, p. 190.
Lee, K. C. (2001). Anger, memory, and personal power: Fannie Lou Hamer and civil rights leadership. In B. Collier‐Thomas, & V. P. Franklin (Eds.), Sisters in the struggle: African American Women in the Civil Rights‐Black Power Movement (pp. 139–170, p. 139). New York Univ. Press.
Washington, op. cit. note 1, p. 205.
Torpy, S. (2000). Native American women and coerced sterilization: On the trail of tears in the 1970s. American Indian Culture and Research Journal, 24(2), 1–22, p. 4.
Lawrence, J. (2000). The Indian Health Services and the sterilization of Native American women. Indian American Quarterly, 24(3), 400–419, p. 410.
Mass, B. (1977). Puerto Rico: A case study in population control. Latin American Perspectives, 4(4), 66–81, p. 76.
Gutiérrez, E., & Fuente, L. (2010). Population control by sterilization: The cases of Puerto Rican and Mexican‐origin women in the United States. Latino(a) Research Review, 7(3), 85–100, p. 90.
Roberts, D. (1997). Killing the Black body: Race, reproduction, and the meaning of liberty. Vintage Books, p. 65.
Buck v. Bell 274 US 200. (May 2, 1927). https://supreme.justia.com/cases/federal/us/274/200/#tab-opinion-1931809
Ibid.
Johnson, K. (2013). Female inmates sterilized in California prisons without approval. Reveal. July 7, 2013. https://revealnews.org/article-legacy/female-inmates-sterilized-in-californiaprisons-without-approval/. Also see Belly of the beast documentary. Directed by Erika Cohn (2020). Co‐produced by Belly of the Beast LLC, Idle Wild Films Inc., Black Public Media, Independent Television Service with funding provided by the Corporation for Public Broadcasting. https://www.pbs.org/independentlens/documentaries/belly-of-the-beast/?utm_source=youtube%26utm_medium=pbsofficial%26utm_campaign=independentlens_202
Legal Complaint by Oldaker et al. v. Giles et al. https://www.nipnlg.org/PDFs/practitioners/our_lit/impact_litigation/2020_21Dec_oldaker-v-giles-complaint.pdf. Also, see Ms. Dawn Wooten Whistle‐blower Complaint by Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights & South Georgia Immigrant Support Network to Joseph V. Cuffari, Cameron Quinn, Thomas P. Giles, & David Paulk, Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID‐19 for Detained Immigrants and Employees Alike at the ICDC County Detention Center. (2020, September 14). https://projectsouth.org/wp-content/uploads/2020/09/OIG-ICDCComplaint-1.pdf
Barfield. W. (Director). (2021). Pregnancy‐related deaths in the United States. Center for Disease Control, Division of Reproducted Health. https://www.cdc.gov/hearher/pregnancyrelated-deaths/index.html
Singh, G., & Yu, S. (2019). Infant mortality in the United States, 1915‐2017: Large social inequalities have persisted for over a century. International Journal of Maternal and Child Health and AIDS, 8(1), 19–31, p. 23.
Washington, op. cit. note 1, pp. 63–64.
Volscho, T. (2010). Sterilization racism and pan‐ethnic disparities of the past decade: The continued encroachment on reproductive rights. Wicazo Sa Review, 25(1), 17–31, p. 20.
Smaw, E. (2017). Sins of the founding fathers. Archiv Für Rechts—Und Sozialphilosophie, 103(3), 389–409, p. 397.
Thomas Carlyle expresses this sentiment in 1849 in “The Negro question” and again in 1867 in Shooting Niagara. See Carlyle, T. (1849). The Negro question. In E. R. August (Ed.), The ni_ _ er question and the Negro question (pp. 1–37). Kessinger Press; and Carlyle, T. (1867). Shooting Niagara. Chapman and Hill.
Roberts, op. cit. note 8, p. 71.
Washington, op. cit. note 1, p. 204.
Ibid.
Begos, K. (2013, March 18). Lifting the curtain on a shameful era: Thousands were sentenced to sterilization during rubber‐stamp hearings in Raleigh. Winston‐Salem Journal. https://journalnow.com/news/local/lifting-the-curtain-on-a-shameful-era/article_fa19404e-8fdf-11e2-8fba-0019bb30f31a.html.
Lawrence, op. cit. note 5, p. 402.
Ibid.
Ibid: 402–203.
Ibid: 402.
Rutecki, G. (2011). Forced sterilization of Native Americans: Late twentieth century physician cooperation with national eugenic policies. Ethics and Medicine, 27(1), 33–42, p. 33.
Trosper, R. (1996). American Indian poverty on reservations, 1969‐1989. In G. D. Sandefur, R. R. Rindfuss, & B. Cohen (Eds.), Changing numbers changing needs: American Indian demography and public health (pp. 172–195, p. 176). National Academies Press.
Ibid: 172.
Kalpana, W. (2017). In the name of reproductive rights: Race, neoliberalism and the embodied violence of population policies. New Formations: A Journal of Culture, Theory, and Politics, 91, 50–78, p. 52.
Torpy, op. cit. note 4, p. 7
Ibid.
Ibid: 8.
Ibid: 9.
Ibid.
Gutiérrez & Fuente, op. cit. note 7, p. 90.
Ibid: 86–87.
Ibid: 87.
Ibid.
Ibid: 86.
Ibid: 86–87.
Ibid: 91.
Relf v. Weinberger, 372F. Supp. 1196 (D.D.C. March 15, 1974). https://law.justia.com/cases/federal/district-courts/FSupp/372/1196/1421341/
Valdes, M. (2016). When doctors took family planning into their own hands. New York Times Magazine. February 1, 2016. https://www.nytimes.com/2016/02/01/magazine/when-doctors-took-family-planning-into-their-own-hands.html.
Madrigal v. Quilligan, 639F.2d 789 (9th Cir. January 5, 1981). https://law.justia.com/cases/federal/appellate-courts/F2/639/789/363917/.
Ibid.
Kant, I. (1785). Groundwork for the metaphysics of morals. Hackett Publ. Co., p. 36. Even in cases where the victims suffer from diminished mental capacities, Buck v. Bell and Relf v. Weinberg for example, it falls to their parents and guardians, who are autonomous, to make decisions for them. The problem in these cases is that the doctors, healthcare professionals, welfare workers, and eugenics board members involved violated the autonomy of the parents and guardians by coercing, manipulating, and browbeating them into allowing their children to be sterilized.
Pratt v. Davis, 118 Ill. App. 161, 168 (Ill. App. Ct. 1905), affirmed Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (Ill. Sup. Ct. December 22, 1906). https://www.ravellaw.com/opinions/967d63e3e4aceb0c7ccc62e78af2d543.
Schoendorff v. Society of New York Hospital, 105N.E. 92, 93 (N.Y. April 14, 1914). https://biotech.law.lsu.edu/cases/consent/schoendorff.htm.
Hajar, R. (2017). The physician's oath: Historical perspectives. Heart Views, 18(4), 154–159, p. 156.
Legal Complaint by Oldaker et al. v. Giles et al., op. cit. note 12.
Ms. Dawn Wooten Whistle‐blower Complaint by Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights & South Georgia Immigrant Support Network to Joseph V. Cuffari, Cameron Quinn, Thomas P. Giles, & David Paulk, Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID‐19 for Detained Immigrants and Employees Alike at the ICDC County Detention Center, op. cit. note 12.
US House Resolution 1153—Condemning unwanted, unnecessary medical procedures on individuals without their full, informed consent. https://www.congress.gov/bill/116thcongress/house-resolution/1153/text.
Brophy, A. (2006). Reparations pro and con. Oxford U. Press, p. 125.
Ibid: 127.
Locke, J. Second treatise of civil government. Hackett Pub., Co., paragraphs 124–126.
Ibid: see paragraphs 8 and 130.
Schoendorff v. Society of New York Hospital, op. cit. note 48.
Indian Claims Commission Act, Department of Justice. https://www.justice.gov/enrd/leadindian-claims-commission-act-1946.
de Grelff, P. (Ed.). (2008). The handbook of reparations. Oxford U. Press, p. 835.
Ibid: 838.
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