Q: What is your educational background?
A: I have a bachelor’s degree from Rockhurst College in Kansas City, Missouri; a master’s degree from Loyola University of Chicago; a Ph.D. and a law degree (J.D.) from the University of Virginia.
Q: What position do you hold today?
A: I am the Director of the Program in Law and Medicine at the Center for Biomedical Ethics at the University of Virginia.
Q: What do you do in that position?
A: I teach health law in the medical school and at the law school to students and doctors in residence and I also teach undergraduate and graduate university students who are studying biomedical ethics, primarily focusing on issues that have to do with the intersection of medicine, law, and ethics. My research is in legal and medical history, particularly the history of the eugenics movement and the ethical regulation of biomedical research.
Q: You are on a number of distinguished panels.
A: I am a member of the committee on the Digital Image Archive of the American Eugenics Movement at Cold Spring Harbor Laboratory in New York, which is a group of historians who advised on the selection of images and documents to be copied and put on the web as part of a National Institute of Health project. I recently finished working on a Institute of Medicine study on the use of testosterone on aging men. I have served on several panels with the National Institutes of Health to review proposals and look at the ethical appropriateness of human subject research. I’m also working with the Department of Energy on a project to do research with people who are working in the beryllium industry.
Q: How did you become interested in eugenics?
A: I was a graduate student looking for a topic to write a seminar paper in a course on biomedical ethics. And, I stumbled upon a newspaper article about a case that had just been filed. This was in the late 1970’s. The case had to do with a woman who was sterilized and had just discovered she could not have children. It turns out she was the sister to Carrie Buck. Carrie Buck was the more famous person who had been sterilized. But this woman was one of the plaintiffs in a law suit against the State of Virginia to recover damages for being involuntarily sterilized in a state hospital - in her case, without even being told the nature of the operation.
When I began reading about that case I decided to write a paper about it. I discovered many of the people involved in it were from Charlottesville, Virginia, which was where I was studying. And, in fact, that is where the case Buck v. Bell had occurred.
I found the records of the attorney who had written the Virginia law and had argued it all the way to the United States Supreme Court, and that collection became the basis of my doctoral dissertation. After that I went to law school. I continued to be interested in the topic and wrote about it there as well.
Q: Who coined the term eugenics and what does it mean?
A: The word eugenics was first used in the 1880’s by Francis Galton. Galton was an upper class British gentleman who was able to spend a lot of his life traveling, learning what was then called natural history, kind of like his half cousin, Charles Darwin.
Galton was interested in studying families that had been successful and he wrote a book called Hereditary Genius, which was a survey of men from famous families whose lives were described in biographical dictionaries of the successful and famous. He made the argument that these people were possessed of what today we would call the “genetic right stuff” and that their propensity to succeed was inherited.
Galton coined the word “eugenics” as the term that would describe all of the social features . . . social, legal, educational, economic, etc. . . . that one could bring to bear on changing heredity, on improving the “stock” or at least decreasing the negative features within a population. The simpler definition was that eugenics meant to be “well born”.
Q: How did it make its way to the United States?
A: Galton was quite successful internationally. He eventually endowed a laboratory at the University of London. By 1900 he had a number of protégées. He was one of the fathers of biometric science. He measured everything. People from American, like Charles Davenport, traveled to England to meet Galton. Davenport was bitten by the eugenics bug, came back to America, and along with other people . . .college presidents like David Starr Jordan from Stanford and people at various universities . . .established a variety of committees that studied eugenics and promoted understanding of that field.
By 1910 there was a formal operation in America at Cold Spring Harbor, New York, which was supposed to be a repository for genealogical records - a Eugenics Record Office - and that was really the central point of studying eugenics in America for the longest period. Davenport directed it.
Q: How did the dark side come about?
A: Eugenics is quite fascinating because of the breadth of interest people had in it. I think we focus, and I’m as guilty as anyone, on the moments which were dramatic and the dark moments are those: eugenic sterilization, immigration restriction that shut out millions of people from coming to America, and also the use of eugenic categories to exclude people from marrying people of a different race.
Those are the dark pieces to the story; but, I think it’s important to remember that this was a very popular field and not everybody thought of sterilization or restriction when you said “eugenics”. They thought of eugenics as an attempt to have healthier babies, an attempt to improve on what nature had provided.
It’s impossible to understand why America got on the eugenics bandwagon without appreciating that the eugenicists were selling a very seductive message. They certainly wanted to promote a healthy lifestyle, to promote healthy children, to promote attention to preventative medicine. Those are the positive messages as opposed to the negative ones that we most often associate with eugenics.
Q: Eugenics history would not have been so dark if there had been no sterilization statutes.
A: Clearly the darkest history has to do with the repressive measures that were enacted as part of law. But I try to emphasize the fact that you can’t understand why those things got through without appreciating that eugenics was not a dirty word for a whole generation or two of Americans. They didn’t associate it with those things. They associated it with better baby contests and clean living.
Q: How many States enacted laws?
A: It’s very hard to add up the eugenics laws because you have to decide what counts. I’ve identified something on the order of a hundred in about thirty different states. That includes basic marriage restriction laws: saying that people who are feebleminded can’t marry, for example; in some cases, saying that people who are poor can’t marry. There were some states that did that in the name of eugenics.
There were at least thirty states that passed sterilization laws allowing for coercive sterilization of people in institutions. Another twenty-five or thirty states passed so-called anti-miscegenation laws that prohibited interracial marriage.
The law that probably had the biggest impact of all was the federal 1924 Immigration Restriction Act which stayed in place for more than forty years, restricting the numbers of people who came to America from southern or eastern Europe-- primarily Jews and Italians.
Q: Would you explain Buck v. Bell?
A: The Buck case came up in a time when one would least have expected it, a time when sterilization laws were being defeated in state legislatures and, in some cases, being overturned in state supreme courts.
The literature on sterilization had turned negative. There was a lot of critique of sterilization proposals. But, at that same time in Virginia there was a doctor named Albert Priddy who had been sued in 1918 for performing operations on people in his institution under a law that didn’t specifically say that he could operate. It suggested that he could provide whatever treatment was appropriate without saying the word sterilization.
Dr. Priddy got sued by one of his patients, actually a whole family, whom he had sterilized. So he became interested in what today we would term “tort reform.” He wanted to have malpractice laws passed that would protect doctors who operated on state patients. He also had an argument for the legislature, which was an important argument, saying: “We could save a great deal of money by sterilizing people. The institutions that were founded out of philanthropic motives are growing and those institutions could ultimately bankrupt the state. If we want them to shrink in size, we have to eliminate the people that are filling them. You do that by sterilizing the patients so they cannot reproduce their hereditary defects.”
So Dr. Priddy approached the legislature with the argument that, not only did the doctors need to be protected when they operated, but the law would benefit the rest of the population. The law Priddy proposed borrowed directly from a model sterilization act first proposed in 1914. While it had encountered a great deal of criticism and some laughter, it hung on. Priddy turned it to his own use. In 1924 the law was passed almost unanimously in Virginia; and immediately a challenge was set up by the lawyer who had written the law.
Doctor Priddy wanted to apply the law immediately and his lawyer prudently said, “No, we need a test case to see whether the courts of appeal will uphold this as constitutional because, if they don’t, you’ll just get sued again and you’ll lose. Let’s put together a case.” So they went looking for a model defendant.
Unfortunately for Carrie Buck, she had just had a baby. She wasn’t married. She was a seventeen-year old school girl. Her foster parents with whom she lived didn’t want her around because she was pregnant. They turned her over to the welfare authorities who said, “Let’s send her down to Lynchburg where we send girls like that . . . to the feebleminded colony.” She arrived at Lynchburg after giving up her baby and only a few months after this law had been passed and she was identified as the daughter of somebody who already was there - Emma Buck.
When Dr. Priddy saw that he had Carrie Buck and her mother Emma Buck, he thought the pattern was clear and wanted to prove that feeblemindedness was hereditary.
He asked for an examination of Carrie’s baby and the conclusion was, “Well, she’s feebleminded too.” This seemed like a perfect case. Priddy turned it over to the lawyer who found another lawyer who would defend Carrie Buck. The case began working its way through the courts.
Carrie was ordered by a hospital panel to be sterilized. That order was appealed through the local trial court which upheld the order. The case then went to the Virginia Supreme Court, which also upheld the order. Finally, the case was appealed to the United States Supreme Court and decided on a vote of 8-1 with an opinion by then the most famous judge in the country, Oliver Wendell Holmes, Jr., who was very much in favor of eugenic ideals. He believed that the state had the right to prevent people from having children who would cost the state money. He wrote the infamous line: “Three generations of imbeciles are enough.” He agreed that Carrie could be sterilized.
The part of the case that is most distressing to people is that Carrie, as it turns out, was not feebleminded, nor was her daughter. To make it more tragic, she had not had a baby simply because she was promiscuous, but rather because she was raped.
Q: You interviewed her?
A: Yes, I interviewed her in the early 1980’s a few weeks before she died.
Q: What were your impressions of her?
A: At the time she was quite tired. She wasn’t well. She didn’t talk a lot. She was aware of her role in this case. She was embarrassed about it. She really didn’t want to go into detail about what had happened to her, but she did affirm a statement that she had made earlier that she had been assaulted and that was why she was pregnant. She felt that she was poorly treated. I think I would have agreed with her.
Q: Did she hold any anger?
A: When I talked to her, she didn’t show any anger. She was a simple woman who had worked hard and was very committed to her family. She married twice. The first was for twenty-five years and then her husband died. She married again and was with that man another twenty years until he died. She tried to help her mother until her mother died. She tried to visit her and send her things, even though her mother really was a stranger to her for most of her childhood.
Q: Her daughter died young?
A: Her daughter died just before she turned eight. She had the measles and apparently got a secondary infection and died just after finishing the second grade.
Q: When did the sterilizations stop?
A: In Virginia the peak was between 1927, when the Buck case was decided, and the middle 1930’s. That was the biggest period for most of the states. As World War Two began, starting in 1939 and through the 1940’s, doctors were drafted; and so, there weren’t enough surgeons to do the operations. The fervor for sterilization that had captured an earlier generation and the idea that you could identify hereditary features that you could prevent from occurring had all but died out. Most geneticists didn’t believe that by the 1940’s.
But, there was still a reason to sterilize people. It was the so-called social motive rather than the genetic one: the idea that if somebody couldn’t care for children shouldn’t be allowed to have them, which is a different argument from saying you shouldn’t be allowed to have children because those children will be defective.
The practical things that happened had to do with the war, the lack of physicians, and really the change of a generation of the people who ran the institutions. By the 1950’s the numbers of operations had decreased dramatically in most states. In a few states the numbers went back up because those states focused on using sterilization as a kind of welfare reform, to sterilize women, primarily African American women, who were on welfare and had more children than the state thought they should.
Q: Did those women know they were being sterilized?
A: In some cases, yes, and in other cases, no. Many people were sterilized and then told that the operation was for appendicitis or something else. We have undocumented numbers. We know something like 70,000 people were actually sterilized under the laws passed by the states. We really don’t have any idea how many people were sterilized in private institutions, or in other medical settings.
In the 1970’s a case came up called Relf v. Weinberger, which exposed hundreds of thousands of sterilizations done in pursuit of welfare reform. Casper Weinberger at the time was the head of the federal department of Health, Education and Welfare. The question in the Relf case was whether people were using federal money under the Medicaid law to sterilize people coercively -- it turned out they were. So, regulations were written, making it difficult to get paid to sterilize someone unless they went through an elaborate informed consent process.
The death knell for sterilization in this country, I would argue, came in the 1970’s with the Relf case, not because, as some people say, America had a negative reaction to Hitler and the hundreds of thousands of sterilizations that happened in Germany.
Q: Did they see the comparison to Hitler?
A: Oh, yes. There was enormous literature in the 1930’s in medical journals and, for that matter, the New York Times and the Washington Post, tracking what was going on in Germany and, in many cases, praising what Hitler was doing. The German statute was written in 1933, and Germany sterilized 400,000 people in about three and one-half years. Hitler tipped his hat to the United States, saying that the United States paved the way in eugenic thinking, although, the Germans talked about sterilization long before Hitler came around. They just had never been able to pass a law to allow it. It was the first enactment of his administration.
Q: The State of Virginia issued an apology. How did that come about?
A: I have argued that it came about because of very good journalism combined with cooperation from some of us academic types and pressure from disability rights groups. There were a series of front page articles written by Peter Hardin, the Washington correspondent of the Richmond Times Dispatch. Hardin was interested in writing about the pending controversial legislation to recognize various Indian tribes in the state.
He got involved in studying the history of those tribes and he discovered some of them sort of disappeared because the law passed in Virginia in the 1920’s that prohibited interracial marriage was used to say that anybody who claimed to be an Indian was really black and there were no Indians in Virginia. The state de-classified whole tribes that way. Mr. Hardin learned a lot about eugenics. He unearthed a good many things that some of us had written years earlier about the Buck case or about miscegenation and he made it a popular matter once again and also related it to what’s going on with the human genome project.
As Hardin’s articles ran it looked like some kind of a statement about eugenics would be issued by the Virginia Assembly. A number of disability rights groups got together and petitioned the legislature to make an apology. The legislature didn’t want to apologize, but they finally issued a statement of “profound regret” in 2001. The next year was the 75th anniversary of the Buck case. At that point I thought it would be appropriate to put up some kind of a monument. Students who have lived here their whole lives are constantly asking me about the case. They don’t know that it occurred here.
I contacted the Department of Historical Resources, wrote them a check and the marker was erected on May the 2nd, 2002, the anniversary of the Buck opinion. I asked Governor Mark Warner to issue the apology that day which he had promised earlier in a campaign pledge. He did. Local delegate Mitch Van Yahres drafted a general assembly proclamation honoring the memory of Carrie Buck. The marker went up with a fair amount of international media coverage.
Following that event, several other states started looking at their histories and several other journalists began digging up records. It started a small domino affect.
Q: What does the marker say?
A: The marker explains that this was the home of Carrie Buck who died and was buried nearby; that her case went to the US Supreme Court; that she was the first of some 8000 Virginians who were sterilized, many of whom were later found not to have been affected by any “hereditary defects” at all.
Oregon followed the next winter with an apology for its sterilization history. Then South Carolina. Then North Carolina, which has gone further than anyone in looking at reparations for people who have been sterilized and has begun to identify who they are. Finally, last March I was invited to California to speak to the California Senate Committee on Genetic Technologies and Public Policy in a lecture series on genetics. They asked me to talk about California eugenics. Within an hour of my presentation, which was covered on local cable television, the governor and the attorney general issued statements of apology. So there are five states on the apology list now.
Q: Were you surprised that the California reaction was so immediate?
A: I was enormously surprised. As a university professor, I’m happy if a few people stay awake when I am speaking; expecting a governor’s proclamations would be quite a stretch. But by then there was political value to the gesture. Some politicians were racing to see who could say “I’m sorry” first.
Q: Eugenics is very much alive today with research in cloning, genetic testing, and embryo selection. What steps should we take so as not to make the same mistakes that have occurred in the past?
A: I think it’s important that we draw some very bright lines around individual reproductive decisions. Though its possible, and tempting, to make an argument in individual cases that people are behaving in ways that are so irresponsible maybe we should prohibit them from having children. I can imagine, hypothetically, how one could feel that way. But I think our history shows us that we best not go down that road because we never apply such laws evenly or fairly. And I don’t believe the state should be in the business of deciding who has babies or how.
Just circumscribing reproductive decision making as an area beyond government interference seems to me the most prudent thing to do, both in respect of the rights of individuals, but also because history has shown us how we have used that kind of law to abuse people in the past.
Q: Do you have any thoughts on cloning?
A: Yes. I think that cloning is something that will happen, if it hasn’t happened already. I think that it will probably be rare and unusual. Unlike a lot of people who get very excited about cloning and say it’s something we need to ban, I think we should look at why we are afraid of cloning. Many people say they are afraid of cloning because there won’t be any individuality to the cloned person. I think that gives too much credit to the power of genetics. We know genetics plays an important role. We also know the enormous impact of all the other things that happen in a person’s life, and even while they are developing in their mother’s womb. So, I think pushing too hard on the fear of cloning makes us lean toward the biological determinist side too much. I don’t think cloning is a good idea. I think it’s not the sort of thing we should be spending our money on. I also think its going to happen. I suspect it will be very rare.
The problem about cloning, along with talking about in-vitro fertilization and stem cell research, anything that has to do with attention to the genetic level of reproduction, is that you can’t talk about those things without immediately invoking the specter of abortion. And, so the eugenics argument gets used by whatever side is wanting to argue for or against abortion.
You can argue that we should be allowed to make a choice and eliminate children by prenatal diagnosis and some people will call that “eugenics.” Others would say that by giving the government control over reproduction in any way is to do just what the eugenicists did.
I think throwing the “e” word around can be problematic. I don’t think we will see government focused restrictions on childbearing any time in the near future. But I do think we need to pay more attention to the kind of attitudes we have about the disabled, and about other conditions that we would label as genetic problems.
I like to turn the argument from Buck on its head and get rid of the rhetoric that Holmes used and ask: three generations of what are enough? What is it we would all agree we should do away with? I’ve yet to get a consensus on any specific condition.
Q: Are you in the process of writing a book?
A: I’m well into a book which will tell the story of the Carrie Buck case. I hope to finish it this year.
Q: Any other thoughts?
A: There’s always a question whether we have learned anything from the past. I think we are more sensitized. We’re raising our children differently than we did generations ago in terms of being aware of issues of disability and race. I’m not convinced that they won’t make mistakes that are just as horrific as the ones that were made in the past; but, it’s a starting point anyway.
I think one of the things I didn’t mention, that I remind lawyers of . . . it was our profession that really generated the Buck case. The lawyer who was supposed to represent Carrie Buck really betrayed her and didn’t defend her. Buck is the story of a lawsuit which our profession must answer for.
Q: That’s sad.
A: It is sad. I have talked to bar groups about it: the need not to take your personal motives or ideas and give them precedence over your clients’ interests. It is a fundamental rule, but one we need to be reminded of regularly.