Revisiting Roe, Privacy, And Involuntary Sterilization | VALID | #TWIBnation

Revisiting Roe, Privacy, And Involuntary Sterilization

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This  piece could be subtitled: “That Awkward Moment When You Realize Involuntary Sterilization Still Happens In America.”

A few months ago, I wrote this piece about the Israeli government’s admission that it had given Ethiopian women Depo-Provera injections without their knowledge or consent, thereby rendering them temporarily sterile. Back then, I argued that in America, state-sponsored involuntary sterilization would violate the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), which held that the constitutional right to privacy extended to decisions involving reproductive choice. As Roe explained:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

410 U.S. at 152-152.

Because its previous decisions had extended the right to privacy to include “activities relating to marriage … procreation … contraception … family relationships … and childrearing and education,” the Court concluded that:

[The] right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.

410 U.S. at 153 (emphasis supplied).

So, the right described in Roe isn’t merely the right to have a particular medical procedure; it is the right to decide whether or not to have such a procedure in the first instance. More broadly, the right to privacy described in Roe and (you’ll pardon the expression) its progeny encompasses the right to make fundamental decisions about all “activities” that fall within constitutionally protected “zones of privacy,” such as procreation, contraception and the like. Meaning, of course, that the state cannot decide for a woman – or a man – whether she (or he) should be sterilized involuntarily.

In the piece I wrote a few months back, I also pointed out that as absurd as it may seem, in the days before Roe, forced sterilizations actually happened right here in these United States. Consider, for example, Buck v. Bell, 247 U.S. 200 (1927), in which “the Circuit Court of Amherst County, [Virginia,] [ordered] … the superintendent of the State Colony for Epileptics and Feeble Minded … to perform the operation of salpingectomy upon Carrie Buck,” (whom the Supreme Court described as “a feeble-minded white woman”) “for the purpose of making her sterile.” 247 U.S. at 205. The Honorable Justice Oliver Wendell Holmes upheld that decision, because, he said, “[t]hree generations of imbeciles are enough.” Id. at 207. See also Skinner v. Oklahoma, 316 U.S. 535 (1942), which struck down Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, but did not overrule Buck v. Bell.

So, I said, thank goodness for Roe, because that case, one would think, closed the door on such abominations. I mean, after Roe, decisions relating to procreation (and the ability to procreate) are protected by the right to privacy … so the government can’t make those decisions for you, or me, or anybody else. Right?

Imagine my surprise, then, when I learned that between 2006 and 2010, doctors working for the California prison system performed tubal ligations on 148 prisoners without following proper legal procedures and often through coercion (a story which was discussed yesterday on our very own amTWiB radio program, as a matter of fact).

According to the Center for Investigative Reporting:

At least 148 women received tubal ligations in violation of prison rules during those five years – and there are perhaps 100 more dating back to the late 1990s, according to state documents and interviews.

The women were signed up for the surgery while they were pregnant and housed at either the California Institution for Women in Corona or Valley State Prison for Women in Chowchilla, which is now a men’s prison.

Former inmates and prisoner advocates maintain that prison medical staff coerced the women, targeting those deemed likely to return to prison in the future.

Crystal Nguyen, a former Valley State Prison inmate who worked in the prison’s infirmary during 2007, said she often overheard medical staff asking inmates who had served multiple prison terms to agree to be sterilized.

“I was like, ‘Oh my God, that’s not right,’ ” Nguyen, 28, said. “Do they think they’re animals, and they don’t want them to breed anymore?”

The article goes on to detail a number of situations in which female patients were pressured to agree to tubal ligations – including one woman who “was pressured by a doctor while sedated and strapped to a surgical table for a C-section” (she “resisted,” according to the story). Moreover, in all 148 cases, the tubal ligations were performed without going through procedural steps that were specifically designed to ensure that prisoners weren’t coerced or otherwise forced to undergo sterilizations without full consent.

The fallout from the California story remains to be seen. Ideally, the state will tighten its procedures to ensure that the fundamental privacy rights of its inmates are respected. The story does, however, reinforce a very important aspect of Roe, and one that’s generally overlooked in the debate over reproductive rights: It doesn’t merely enable women to get abortions; it prevents the government from forcing reproductive decisions on individuals. Under Roe, the government can no more compel a particular reproductive choice – say abortion, or sterilization – than it can prevent you from making that choice.  No matter how you feel about abortion itself, that, it seems to me, is a good thing.

David Von Ebers

An evil trial lawyer from Chicago, which makes me almost as bad as Barack Obama himself. Except, I am a Cubs fan, unlike our President, and so, as the kids say, I AM SHAME. I blog about legal issues, politics, sports, music (that long-haired rock 'n roll music all the kids are into), and, frequently, the interaction between any and all of the above. When I'm not busy undermining the Constitution or circumventing your freedoms, I run, watch too much sports on the teevee, and hang out with my long-suffering wife and three kids.

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1 Comment

  1. Kiterea July 10, 2013 at 1:15 pm

    I’ve had people in my life that were against Roe vs. Wade and say it should be struck down. Then I’ve explained this part of it and how it doesn’t allow forced abortions either.
    Their shock was gratifying.
    This is how we should frame Roe’s protections.

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