A. Governor Samuel W. Pennypacker, Veto of Eugenics Law, March 30, 1905

Commonwealth of Pennsylvania

Executive Department

Harrisburg, March 30, 1905

To the Honorable, the Senate of the Commonwealth of Pennsylvania:

Gentlemen: I return herewith, without my approval Senate Bill No. 35, entitled, “An Act for the prevention of idiocy.” This bill has what may be called with propriety an attractive title. If idiocy could be prevented by an act of assembly, we may be quite sure that such an act would have long been passed and approved in this state, and that such laws would have been enacted in all civilized countries. The subject of the act is not the prevention of idiocy, but it is to provide that in every institution in the state, entrusted with the care of idiots and imbecile children, a neurologist, a surgeon and a physician shall be authorized to perform an operation upon the inmates “for the prevention of procreation.” What is the nature of the operation is not described but it is such an operation as they shall decide to be “safest and most effective.” It is plain that the safest and most effective method of preventing procreation would be to cut the heads off the inmates, and such authority is given by the bill to this staff of scientific experts. It is not probable that they would resort to this means for the prevention of procreation, but it is probable that they would endeavor to destroy some part of the human organism. Scientists, like all other men whose experiences have been limited to one pursuit, and whose minds have been developed in a particular direction, sometimes need to be restrained. Men of high scientific attainments are prone, in their love for technique, to lose sight of broad principles outside of their domain of thought. A surgeon may possibly be so eager to advance in skill as to be forgetful of the danger to his patient. Anatomists may be willing to gather information by the infliction of pain and suffering upon helpless creatures, although a higher standard of conduct would teach them that it is far better for humanity to bear its own ills than to escape them by knowledge only secured through cruelty to other creatures. This bill, whatever good might possibly result from it if its provisions should become a law, violates the principles of ethics. These feeble-minded and imbecile children have been entrusted to the institutions by their parents or guardians for the purpose of training and instruction. It is proposed to experiment upon them, not for their instruction, but in order to help society in the future. It is to be done without their consent, which they cannot give, and without the consent of their parents or guardians, who are responsible for their welfare. It would be in contravention of the laws which have been enacted for the establishment of these institutions. These laws have in contemplation the training and the instruction of the children. This bill assumes that they cannot be so instructed and trained. Moreover, the course it is proposed to pursue would have a tendency to prevent such training and instruction. Everyone knows, whether he be a scientist or an ordinary observer, that to destroy virility is to lessen the capacity, the energy and the spirit which lead to effort. The bill is, furthermore, illogical in its thought. Idiocy will not be prevented by the prevention of procreation among these inmates. This mental condition is due to causes many of which are entirely beyond our knowledge. It existed long before there were ever such inmates of such institutions. If this plan is to be adopted, to make it effective it should be carried into operation in the world at large, and not in institutions where the inmates are watched by nurses, kept separate, and have all the care which is likely to render procreation there very rare, if not altogether impossible. In one of these institutions, I am reliably informed, there have only been three births in ten years. A great objection is that the bill would encourage experimentation upon living animals, and would be the beginning of experimentation upon living human beings, leading logically to results which can readily be forecasted. The chief physician, in charge at Elwyn, has candidly told us, in an article recently published upon “Heredity,” that “Studies in heredity tend to emphasize the wisdom of those ancient peoples who taught that the healthful development of the individual and the elimination of the weakling was the truest patriotism – springing from an abiding sense of the fulfillment of a duty to the state.’’

To permit such an operation would be to inflict cruelty upon a helpless class in the community which the state has undertaken to protect. However skillfully performed, it would at times lead to peritonitis, blood poisoning, lockjaw and death. For these reasons the bill is not approved.

SAML. W. PENNYPACKER

B. G. Stanley Hall, “Eugenics as a New Creed,” 1911

. . . Galton and his followers would have eugenics proclaimed as the new religion of the future, the religion of this rather than of another life. The slogan of eugenics, a new religion, the religion of this world, not of another, has caught the imagination and won the applause of many who are critical if not hostile to Christianity. It does indeed suggest a creed and a cult which modern culture and especially science and most of all those who serve the great biologos or spirit of life, would place as the supreme end of man. But I ask in closing why call it a new religion? Is not all of it simply a legitimate new interpretation of our Christianity? Is it not all latent in our Scriptures? Was anything more characteristic of the ancient Hebrews of Old Testament days than their purity and to keep the purity of their blood, than duties of parents to children and vice versa, and is there any trait more peculiar to the Jews in our day than that they excel all races save perhaps one in fecundity? The very covenant of Yahweh with Abraham, the great cattle-breeding sheik who founded the Jewish nation, was that if he kept God’s law his seeds should be as the stars of heaven for multitude, as if that were indeed the chief human felicity. This means according to the newest and highest psychogenetic criticism that Jehovah’s laws are at bottom those of eugenics. The supreme criterion of virtue indeed is[:] living in every item for the interests of posterity.  The world is for the chosen, the best. It belongs to those who come after us, who will be in number like the grains of sand upon the shore. That their seed fail not is the supreme blessing. The entire Old Testament from the myth of Eden to the latest prophets needs a new eugenics exegesis; while the dominant theme of the New Testament is love, the strongest thing in the soul of man, centered upon service and welfare of the race. Love and serve God and man; that is the quintessence of our religion. We only need to turn a little larger proportion of the love and service we have directed toward God, who does not need it, to man who does, and we have eugenics, for who serves mankind so much as he who transmits the sacred torch of heredity, which is the most precious of all wealths and worths, undimmed to later generations by bringing more and better men and women into the world and rearing them to the fullest possible maturity! Every human institution, family, school, state and church are in their last analysis, graded and measured by what they contribute to this all-comprehendingness.  I can merely say it in bare phrases here but think it out for yourselves, think seriously; read in this field and you will see only what has so long lay in concealed Christianity standing forth here revealed. The beatitudes are full of it. The meek inherit the earth on the simple biological law that over-individuation is at the expense of genesis and beyond a certain point inversely as it. Nothing was ever so pedagogically potent in quenching youthful passion as hell-fire when it was believed in. The better elements of the gross phallic religions that once covered the whole earth are all retained and sublimated in Christianity. Do you clergymen falter in your belief in total depravity or are you unsound on the doctrine of the unpardonable sin? If so, you only need to hear as I sometimes do youth who have lost all control of their passions and feel that the possibilities of normal parenthood are forever lost to them or that they are tainted with venereal disease and that their ancestry must end with them, in order to realize that the ancient makers of this new life in all the intimacy of the confessional had at their disposal both a diagnosis and a psychotherapy that we have well-nigh lost. Mr. Northcote, the author of Christianity and Sex Problems, is right. Those who know not sex and eugenics know not the essence of Christianity.

Christianity has never said all that it meant. It is not yet all revealed to man. Scholarship on the one hand and religious experience on the other are constantly finding deeper, larger things in it, things not read into but evolved out of it. Since Darwin showed how much of the whole process of selection by which ever higher forms of life were unfolded was sexual and that many of the best things from flowers onward and play activities up were secondary sex qualities, and again since psychotherapy has shown the hither-to undreamed-of potency of this factor in human nature to make health and disease, sex also is becoming more and more long-circuited and spiritualized or literally transfigured with new potency until now we have in it almost a new organ of apperception for moral and religious experience, confirming much that some had begun to doubt and reviving much that we were well on toward forgetting. Love rules the court, the camp, the grove, for “love is God and God is love” might be the watchword of the new eugenic aspect of Christianity. To separate religion and sex does great wrong to both, for to teach sex, at least to the young, without religion is to leave out the motivation which is most practical and effective and to conceive Christianity without sex is to lose some of its choicest and deepest insights. In fine, sex and reproduction have played a more and more important role in each of the following fields, in some of which they are already dominant; in natural history since Darwin’s sex selection; in anthropology and sociology from McLennan to Havelock Ellis; in criminology since Lombroso; in medicine since Krafft-Ebing, Tarnowski and Moll and the advocates of prophylaxis; in psychology beginning with Freud and his followers; in morals since Sutherland’s biological ethics; in religion since Ferguson, Furlong, Inman, Morse and Northcote. In all these fields sex is a common ground of larger and larger dimensions. It gives them more interest in each other and may be destined to bring them into a new and higher unity. The time for this scientific synthesis has not yet come and may be long delayed, inevitable though it seems sooner or later. Meanwhile, eugenics draws upon all these domains and has pointed out many and will, let us hope, find out many more practical ways of improving the human stock and helping the world on towards the kingdom of some kind of superman to which the men of to-day may some day prove to be only a transition, a link which with all that absorbs us now may be lost sight of and possibly become a missing link.

C. New York Times, “Pastors for Eugenics,” June 6, 1913

Drs. Keigwin and Hillis Invite Richard Bennett to Speak in Churches.

The Rev. Dr. A. E. Keigwin announced a platform meeting yesterday in the West End Presbyterian Church, at Amsterdam Avenue and 105th Street, for next Sunday night on the subject of eugenics. One of the speakers will be Richard Bennett, the actor. The Rev. Dr. Newell Dwight Hillis is another pastor who plans to push a eugenics campaign. He arranged with Mr. Bennett yesterday for a meeting early in the Fall in Plymouth Church, Brooklyn, similar to the one to be held next Sunday night in West End Church.

“Much of our public difficulty and more of our public expense to-day are due, in my judgement,” said the Rev. Dr. Keigwin yesterday, “to the dense ignorance of young men and women about the weightier physical affairs of human life. I heartily approve of this present movement, and think Christian ministers may well forego vacations to push it. If we will deliver men and women from the shackles of ignorance concerning themselves, we shall effect a reform that is vital to the whole human family, and especially to our own country.”

The Liberal Ministers Association of New York, composed of Unitarian and Universalist pastors, and reform rabbis, among them the Rev. Drs. Wise, Magnes, Mendes, and Silverman, has appointed a Eugenics Committee, with the Rev. Edgar S. Weirs of Montclair as Chairman. It is charged to investigate the subject this Summer and report next Fall. The Rev. Dr. John Haynes Holmes, as a member of the association, said yesterday:

“What the recommendations of this committee may be I know not, but for myself I hope and shall urge that the association binds all of its members as a group to perform nothing, but health marriages. I believe in the health marriage. Both parties should present certificates, and ministers ought not to marry any who cannot. That is the ideal. The difficulty is to carry the ideal out. Eventually the State will make it a law. While we are waiting for the State to act, what are we to do? I feel it is the business of the Church to show the way because the Church has a moral responsibility. Such an important matter ought not to be left to the individual minister. Acting alone, he can accomplish little. Ministers should act in groups. Dean Sumner and the Chicago Cathedral have shown us the way.”

Two pastors of Fifth Avenue churches advocated the plan yesterday. Both are among the ministers who perform the largest number of fashionable marriage ceremonies. Said the Rev. Dr. Charles L. Slattery, rector of Grace Church:

“It is desirable that the personal health of each party to a marriage be certified to, but the requirement for such certificate ought to come from the State, not from the Church, because it is the function of the State to guard the health of its citizens. I am glad to see the Church take steps toward reform, and toward compelling the State to do its part.”

The Brick Presbyterian Church, through the decision of its pastor, the Rev. Dr. William P. Merrill, takes its stand with others. “I think the general movement to require proper conditions of health from all men and women contemplating marriage is right. The State ought to obtain the fulfillment of that condition, and the Church ought to co-operate in every practical way,” the pastor said yesterday.

It was said yesterday that the subject of eugenics will come into the Episcopal General Convention in this city in October through the report of a committee on which are Bishop Anderson of Chicago, whose cathedral took an early stand on health marriages; Bishop Spalding of Utah, whose book on the Mormons attracted wide attention; Bishop Williams of Michigan, whose views are known to be radical; Dean Hodges of Cambridge, Dean Sumner of Chicago, Jacob A. Riis, Gifford Pinchot, the Rev. J. Howard Melish of Brooklyn, and Clinton Rogers Woodruff, the head of a social welfare movement.

D. Supreme Court of Indiana, Judgement, November Term, 1920

Judgment: SUPREME COURT OF INDIANA. November Term, 1920. On the 11th day of May, 1921, being the 147th judicial day of said November Term, 1920. Case No. 23709. Appealed from the Clark Circuit Court. Opinion and judgment pronounced by Associate Judge Hon. Howard L. Townsend. Appellants were enjoined from performing vasectomy on appellee, who is a prisoner in the Indiana Reformatory. The Chief Physician, Board of Managers and two chosen surgeons were proposing to act pursuant to the [Indiana sterilization statute]. . . . In Davis v. Berry et al. (U. S. District Court, S. D.), 216 Fed. Rep. 413, in passing on an Iowa statute similar to the one here in question, on page 218, the court uses this language: “The hearing is by an administrative board of officers. There is no actual hearing. There is no evidence. The proceedings are private. The public does not know what is being done until it is done. Witnesses are not produced, or, if produced, they are not cross-examined. . . . The prisoner is not advised of the proceedings until ordered to submit to the operation. . . . Due process of law means that every person must have his day in court, and this is as old as Magna Charta; that some time in the proceeding he must be confronted by his accuser and given a public hearing.” In the instant case the prisoner has no opportunity to cross-examine the experts who decide that this operation should be performed upon him. He has no chance to bring experts to show that it should not be performed; nor has he a chance to controvert the scientific question that he is of a class designated in the statute. And wholly aside from the proposition of cruel and unusual punishment, and infliction of pains and penalties by the legislative body through an administrative board, it is very plain that this act is in violation of the Fourteenth Amendment of the Federal Constitution in that it denies appellee due process. The case of Davis v. Berry, supra, is interesting in its discussion of questions other than due process. It also cites the adjudicated cases in other states on similar statutes. The trial court was correct in enjoining appellant from performing, or causing to be performed, the operation of vasectomy upon appellee. Judgment of the trial court is therefore affirmed.

E. Associate Justice Oliver Wendell Holmes, Buck v. Bell, May 2, 1927

Mr. JUSTICE HOLMES delivered the opinion of the Court.

This is a writ of error to review a judgment of the Supreme Court of Appeals of the State of Virginia affirming a judgment of the Circuit Court of Amherst County by which the defendant in error, the superintendent of the State Colony for Epileptics and Feeble Minded, was ordered to perform the operation of salpingectomy upon Carrie Buck, the plaintiff in error, for the purpose of making her sterile. 143 Va. 310. The case comes here upon the contention that the statute authorizing the judgment is void under the Fourteenth Amendment as denying to the plaintiff in error due process of law and the equal protection of the laws.

Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court, in the latter part of 1924.

An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, &c.; that the sterilization may be effected in males by vasectomy and in females by salpingectomy, without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who, if now discharged, would become a menace, but, if incapable of procreating, might be discharged with safety and become self-supporting with benefit to themselves and to society, and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, &c.

The statute then enacts that, whenever the superintendent of certain institutions, including the above-named State Colony, shall be of opinion that it is for the best interests of the patients and of society that an inmate under his care should be sexually sterilized, he may have the operation performed upon any patient afflicted with hereditary forms of insanity, imbecility, &c., on complying with the very careful provisions by which the act protects the patients from possible abuse.

The superintendent first presents a petition to the special board of directors of his hospital or colony, stating the facts and the grounds for his opinion, verified by affidavit. Notice of the petition and of the time and place of the hearing in the institution is to be served upon the inmate, and also upon his guardian, and if there is no guardian, the superintendent is to apply to the Circuit Court of the County to appoint one. If the inmate is a minor, notice also is to be given to his parents, if any, with a copy of the petition. The board is to see to it that the inmate may attend the hearings if desired by him or his guardian.

The evidence is all to be reduced to writing, and, after the board has made its order for or against the operation, the superintendent, or the inmate, or his guardian, may appeal to the Circuit Court of the County. The Circuit Court may consider the record of the board and the evidence before it and such other admissible evidence as may be offered, and may affirm, revise, or reverse the order of the board and enter such order as it deems just. Finally, any party may apply to the Supreme Court of Appeals, which, if it grants the appeal, is to hear the case upon the record of the trial in the Circuit Court, and may enter such order as it thinks the Circuit Court should have entered.

There can be no doubt that, so far as procedure is concerned, the rights of the patient are most carefully considered, and, as every step in this case was taken in scrupulous compliance with the statute and after months of observation, there is no doubt that, in that respect, the plaintiff in error has had due process of law. The attack is not upon the procedure, but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds.

The judgment finds the facts that have been recited, and that Carrie Buck “is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization,” and thereupon makes the order. In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as matter of law that the grounds do not exist, and, if they exist, they justify the result.

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.

But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course, so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.

Judgment affirmed.

MR. JUSTICE BUTLER dissents.

F. “Better Baby Contest,” Indiana State Fair, 1931

See photo on page 137.