Involuntary Sterilization: An Unconstitutional Menace to Minorities and the Poor


Interference with the procreative processes, with or without the consent of the subject, has been prevalent for some time in the United States. Surgical sterilization has been used (1) therapeutically, to treat illness or disease, or as a necessary incident of childbirth; (2) punitively, where sterilization of criminals and sex offenders is authorized by statute; (3) eugenically, particularly in the first sixty years of this century. to purge the population of mental defectives and other persons possessing socially undesirable qualities thought to be inheritable; and (4) socioeconomically, in recent times, primarily as a birth control technique. With respect to the last two applications. recent years have seen a shift in emphasis (fostered by individuals, states and finally the Federal Government) from the use of sterilization as a eugenic device to a family planning method. This development has resulted all too frequently in abuse of the poor and minorities, and has given rise to public concern regarding governmental invasion of the otherwise inviolable rights of privacy, bodily integrity and procreativity. Notwithstanding their effects, purportedly voluntary birth control programs employing sterilization have been rationalized as a benefit to individual indigents (by restrict-ing family size, thereby augmenting upward mobility) and to society (by limiting the number of dependent children, thereby reducing the cost of welfare programs). This Note will examine the competing individual and social interests and the constitutional objections surrounding the current use of involuntary sterilization.

Briefly, the Note develops four avenues of attack on involuntary sterilization statutes and practices. First, the Note analyzes privacy-due process arguments, which focus on the facial validity of involuntary sterilization, in terms of it-hat it involves and how it is carried out, with an emphasis on the competing interests and factual (scientific) predicates for the employment of sterilization as a birth control device. Second, the discussion takes up equal protection-invidious discrimination arguments, which focus on the validity of coercive and involuntary sterilization statutes andpractices as applied, with respect to it’ho is affected. Third, the analysis turns to the validity of sterilization with respect to the thirteenth amendment, a perspective fromwhich it appears that certain sterilization practices create a permanently stigmatized caste of unfortunates and may in effect constitute a form of contemporary genocide. Finally, the Note traces the development of regulatory safeguards in federally assisted family planning programs employing sterilization to determine their adequacy in light of the preceding framework.

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