Thursday, January 12, 2012

Making Things Right, Many Years Later

By Associate Dean Michael Waterstone

A state task force in North Carolina recently recommended that victims of forced sterilization receive compensation. Today, the idea of the state medically taking away someone's right to procreate against their will seems impossible, even barbaric. But from the 1930s to the late 1970s, North Carolina, like 32 other states, used the now-discredited science of eugenics to justify mandatory sterilization of people with mental disabilities, criminals and other undesirables. The idea was to prevent those who were "unfit" from continuing "their own kind." All in all, more than 60,000 people in the United States were sterilized without their consent.

Why does this matter today? Happily, states do not do this anymore (although North Carolina's forced-sterilization statute remained on the books until 2003). Nevertheless, North Carolina's proposed action here is important for three reasons. First, it sheds light on a practice that is too often neglected in the history books. Reparations of this sort are politically difficult - no doubt, some citizens of North Carolina are wondering why their tax money should go to righting some wrong they were not a part of, instead of toward schools, roads, prisons and other needed areas. But when a state actively participates in an atrocity toward it citizens, it has a moral obligation to make amends and to ensure it never happens again. An action like this - sure to be controversial - puts this issue back in the public eye, and increases the likelihood that it will be a part of how people think about abuses of state authority, even when it is uncomfortable to do so. North Carolina should be lauded for taking steps to do the right thing here.

Second, the issue of people being discriminated against on the basis of their genetic conditions has not gone away even though eugenics has been thoroughly discredited. More than 90 percent of Americans report being fearful of taking genetic tests out of concern that their employer or insurance company will discriminate against them if they show a genetic predisposition to develop certain diseases. In response to this, Congress passed the Genetic Information Non Discrimination Act, making it unlawful for employers or insurance companies to discriminate against individuals on the basis of their genetic information. Although it passed Congress with broad consensus, this law was criticized for not responding to any real need and being a "remedy in search of a problem." North Carolina's forthright attempts to deal with its history of this type of discrimination shows these worries are not merely hypothetical.

Finally, discrimination against people with disabilities - particularly individuals with mental disabilities - still happens. Yet courts have taken a limited view of this problem. In fact, the Supreme Court expressly sanctioned state mandatory sterilization laws like North Carolina's, noting that "three generations of imbeciles are enough." This case has never been explicitly overruled, and the Supreme Court has continued to maintain that there is no history of prejudice and laws intended to harm people with mental disabilities. Courts continue to review state actions drawing classifications on the basis of mental disability with their most lenient interpretative methods, employing rational basis review, whereby any state action that is rational will be upheld. Eugenics laws like those that existed in North Carolina remind us that the court has made a mistake here, and that it should more carefully scrutinize existing laws and policies - including laws relating to voting, capacity and institutionalization - that continue to operate against the rights of individuals with mental disabilities.

At this point, the North Carolina legislature still needs to approve the payment of compensation to victims of forced sterilization. But North Carolina deserves praise for taking the steps it has already taken, which should encourage the other 32 states to follow suit. And it should finish the job by approving payments to individuals who were harmed in this grievous manner by official and deliberate state actions.

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