Published in Disability & Society, 9 (4), 1994, pages 481-99.
by David Pfeiffer, Ph.D., 1994
Department of Public Management
School of Management
Boston, MA 02108-2770
Center on Disability Studies
University of Hawai`i at Manoa
1776 University Ave UA 4-6
Honolulu, HI 96815 USA
Testimony presented during the passage of the Americans with Disabilities Act (P.L. 101-336) indicated the continued existence of discrimination based upon a disability. Many persons, including academics, do not believe that such discrimination exists nor do they believe that some of the most threatening discrimination in the United States is based in state law. This paper details these state laws (past and present) in the area of domestic relations and presents the historical cause for the enactment of the discriminatory laws. The Eugenics Movement using (somewhat wrongly) Darwin's evolutionary theory was and continues to be the force behind them. Policy implications are presented in the conclusion.
Eugenics and Disability Discrimination
At the weekly luncheon of a service club in Massachusetts two men - one a local federal official who is well known for his civil rights work and who is black, the other an advocate for disabled people and who is disabled and the author of this piece - were invited to give short presentations about civil rights. The federal official made the comment that blacks were the only group whose civil rights had been limited by statute. When the disability advocate demurred, the federal official became very incensed. Like many persons the official was unaware of the many statutory ways in which the civil rights of disabled people were and still are violated through state and local government laws in the United States.
This same misconception is wide spread in the academic community. Recently an anonymous reviewer wrote, as a reason for rejecting an article similar to the present piece, that "developmentally disabled persons were always treated differently." It is not known what definition of developmental disabilities the reviewer held, but the point of the article was that all people with disabilities were either treated as developmentally disabled persons who were not legally competent or else lived with the real possibility that they would be treated in such a way. That is, there was a real possibility that a person with a disability would be institutionalized, sterilized, and be denied all parental rights. Seemingly, for the anonymous reviewer, it was all right to treat developmentally disabled persons that way, but other persons with a disability would never be so treated.
The purpose of this piece is to present evidence that both the federal official and the reviewer were wrong. People with disabilities, any disability, had their rights limited in the immediate past in the United States and still do so today by existing state statutes and the courts' incorrect interpretation of other statutes. They are constantly faced with the possibility of being deprived of fundamental rights that non-disabled persons enjoy. The great interest today in discovering which genes cause inherited impairments only accentuates the problem. As Rothstein (1992) points out, the Americans with Disabilities Act is only a first step toward fundamental changes necessary to avoid widespread discrimination based upon genetic testing.
The view of many scholars is represented in a law review article by Robert and Marcia Burgdorf entitled "The Wicked Witch Is Almost Dead." (Burgdorf & Burgdorf, 1977) It discussed the problems of U.S. Supreme Court Justice Oliver Wendell Holmes' opinion in Buck v. Bell, 274 U.S. 200 (1927), in which a woman labelled feebleminded was sterilized against her will. Calling Holmes' opinion embarrassing, the authors (on page 1033) concluded:
...the decision was incorrect on its facts, was based on now discredited scientific theories, relied upon inaccurate analogies, applied inappropriate constitutional standards, and was in conflict with many philosophical principles of the American governmental system.
The Burgdorfs called for an end to compulsory sterilization laws in this country and concluded their article with the sentence: "Fifty years of Buck v. Bell is enough." This ending was a reference to Holmes' infamous phrase in the end of his opinion: "Three generations of imbeciles are enough." Nevertheless, contrary to what many persons believe, it was never overruled and is still the law of the land in the United States.
The right to have children, to marry, and to raise one's children are taken for granted by most U.S. citizens. These rights are not automatic for disabled persons. As will be recounted below, the Eugenics Movement greatly influenced public laws regarding domestic relations in this country over the last century.
Sterilization. During the nineteenth century and into the twentieth century sterilization was a common remedy for "feeblemindedness," as most disabilities were called. Before 1900 castration by removal of ovaries or testicles was the only method available for sterilization. During the third quarter of the nineteenth century the superintendent of the Winfield Kansas State Home for the Feebleminded castrated forty four boys and fourteen girls before being forced to stop for medical (not legal) reasons. However, around 1900 Dr. Harry Sharpe of the Indiana State Reformatory developed the procedure of vasectomy which is simple and cheap. About the same time in Europe the procedure of salpingectomy for women was developed. Sterilization on a large scale was then begun even though there was no legal basis for it. Dr. Sharpe alone sterilized six to seven hundred boys in the Indiana State Reformatory. (Burgdorf, 1980: 860)
In Indiana in 1907 the first involuntary sterilization law in the country was enacted. By 1911 Washington, California, Connecticut, and New Jersey enacted involuntary sterilization laws. By 1930 a total of thirty three states had enacted such laws although in three states - New Jersey in 1913, New York in 1918, and Indiana in 1921 - the laws were struck down as unconstitutional. In Michigan a law was enacted, but struck down in 1918. Seven years later a version of the Michigan statute was accepted by the courts as constitutionally valid. The U.S. Supreme Court then upheld involuntary sterilization laws in 1927 in Buck v. Bell, 274 U.S. 200.
Even though Buck v. Bell has never been overruled by the U.S. Supreme Court, some scholars (Burgdorf, 1980: 857) say that the reasoning used by Holmes was rejected in Skinner v. Oklahoma, 316 U.S. 535 (1942), and is therefore no longer governing. In the case of Skinner v. Oklahoma a person who was convicted of larceny, stealing a chicken, was sentenced, as the law provided, to be sterilized because of prior convictions. The involuntary sterilization law would not have been applied if the crime had been another crime such as embezzlement. The Supreme Court struck down the Oklahoma law on the basis of equal protection. The Court said that the difference between the two crimes of theft and embezzlement could not be supported. As the Court wrote (Skinner v. Oklahoma, 316 U.S. 535 at 542):
Oklahoma makes no attempt to say that he who commits larceny by trespass [the chicken thief] or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. . . . We have not the slightest basis for inferring...that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses.
The U.S. Supreme Court in the Skinner Case found that the contention of inheritable criminal traits was sound. The law was struck down because it violated the principle of equal protection. This principle guaranteed to the chicken thief equal treatment which other criminals committing similar crimes would receive. Since an embezzler would not face the same punishment of forced sterilization, the Supreme Court struck down the law. Buck v. Bell remained the law of the land.
It is also widely argued that in Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court established a fundamental right of privacy which would prevent compulsory sterilization. The Roe Case, however, was decided by a 5-4 vote. There is considerable sentiment in the Courts, in the legal profession, and in public opinion that Roe should be overturned. If it were to be overturned, this protection against compulsory sterilization would vanish. Even if it is not overturned, the right of privacy is limited in the U.S. Supreme Court's June 1986 decision in Bowers v. Hardwick. In the Bowers Case the Supreme Court upheld the right of a state, in this case Georgia, to invade the privacy of the bedroom to observe if sodomy was being performed. The right of privacy is not a sufficient shield.
Another argument that Buck v. Bell is no longer the law of the land is the fact that in it the Court relied upon the police power of the state to uphold Virginia's compulsory sterilization law. The police power gives the state the right to act to protect the public health, safety, and welfare. While it is probably true that an argument based solely upon the police power would not be accepted by the Court, it is by no means certain. And in many cases the Supreme Court has agreed that the police power along with other powers of the state can be used to uphold a law or an action.
Nevertheless, there are more persuasive arguments today for the legality of involuntary sterilization than the ones used by Holmes. In upholding the Virginia statute Holmes used the "rational basis" test. This test provides that if a rational basis for a statute can be established and that there are no other problems, the courts should not invalidate the act. The Court found a rational basis and therefore did not strike down the law. Scholars today (Murdock, 1974) contend that more than a rational basis would be needed to uphold a compulsory sterilization law for disabled people. While their argument may be correct, it is not relevant. The defense of involuntary sterilizations today is based upon the doctrine of parens patriae which means, in a loose way, "father power." That is, fathers - both biological and legal - know what is in the best interest of the "child" and can force the "child" to comply even if the "child" is an adult who happens to have a disability.
A 1975 North Carolina statute (General Statutes 35-50) which provided for the sterilization of mentally defective persons was successfully defended under the doctrine of parens patriae. The statute gives the following definition of a mentally defective person (General Statutes 35-1.1):
A "mental defective" shall mean a person who is not mentally ill, but whose mental development is so retarded that he has not acquired enough self-control, judgment, and discretion to manage himself and his affairs, and for whose own welfare or that of others, supervision, guidance, care, or control is necessary or advisable. The term shall be construed to include "feeble-minded," "idiot," and "imbecile."
All that is necessary for sterilization of such a person is for the superintendent of an institution or a county director of social services to obtain a court order for it. In fact, it is the duty of the superintendent or county director to initiate such proceedings whenever the official feels it is in the person's best interest or the public's interest. If a superintendent or county director can convince a judge that a person with a disability can not manage day- to-day affairs, needs guidance, and would "benefit" from the sterilization, then the judge can order that it be done.
With some procedural modifications, the statute was upheld in NCARC v. North Carolina, 420 F.Supp. 451 (1976). In twenty two states a similar law exists including Arizona (Revised Statutes 36-532 ff.), California (Penal Code 2670), Connecticut (General Laws 17-19), Delaware (16 Code 5701 ff.), Indiana (Statutes 1973, 16-13-13-1 ff.), Maine (Revised Statutes 34-2461 ff.), Michigan (Statutes 14.381 ff.), Minnesota (Statutes 252A.13), New Hampshire (Revised Statutes 174:1 ff.), South Carolina (Code 44-47-10 ff.), and Virginia (Code 37.1-156-71). Involuntary sterilization is specifically authorized in fourteen states: Arkansas, Colorado, Connecticut, Delaware, Maine, Minnesota, Mississippi, North Carolina, New Jersey, Oklahoma, Oregon, South Carolina, Utah, Virginia, and West Virginia. (Brakel, Parry, and Weiner, 1985: 523-24) Epilepsy is still included as a permissible reason for compulsory sterilization in Delaware, Mississippi, and South Carolina. Most states base the action on the person's or society's "best" interest, but nine states still base it on an eugenic argument. Even in the absence of a law authorizing sterilization, courts can and do compel persons with disabilities to undergo compulsory sterilization with no regard of the disabled person's view of his or her "best" interest. It is a threat to all disabled persons in the United States. (Macklin and Gaylin, 1981; Brantlinger, 1992; Elkins and Anderson, 1992; Ferguson and Ferguson, 1992; Fredericks, 1992; Kaeser, 1992)
Marriage. The right to marry is an important one which most people take for granted. This right is subject to regulation by the states because, in part, it establishes a contract and governs inheritance and ownership of real property. State legislation which appears to limit this right receives close examination by the U.S. Supreme Court in the context of the Fourteenth Amendment as a result of Meyer v. Nebraska, 262 U.S. 390 (1923). In the Meyer case the Court declared the right to marry to be a fundamental right under the U.S. Constitution. Any limitation of this right must respect the principles of equal protection and due process. The Court struck down a state statute which prohibited interracial marriage as a violation of these principles in Loving v. Virginia, 388 U.S. 1 (1967). However, the Court never struck down a state statute which limited marriage by or to a disabled person even when equal protection was clearly violated.
For example, Connecticut had a statute which prohibited any man who was "...epileptic, imbecile, or feeble-minded" from marrying a woman under forty five years of age, the presumed limit of child-bearing. A woman under forty five years of age who was "...epileptic, imbecile, or feeble-minded" could not marry regardless of the man's age. In Gould v. Gould, 61 A. 604 (1905), this statute was upheld by the Connecticut courts. While acknowledging that under the Connecticut constitution marriage is a fundamental right, the court refused to strike down the statute. It said that the legislature also had constitutionally set a minimum age to marry and had prohibited persons related by blood from marrying. One of the persons in this case had epilepsy and the court wrote:
That epilepsy is a disease of a peculiarly serious and revolting character, tending to weaken mental force, and often descending from parent to child, or entailing upon the offspring of the sufferer some other grave form of nervous malady, is a matter of common knowledge, of which courts will take judicial notice. . . . One mode of guarding against the perpetuation of epilepsy obviously is to forbid sexual intercourse with those afflicted by it, and to preclude such opportunities for sexual intercourse as marriage furnishes. To impose such a restriction...is no invasion of the equality of all men before the law, if it applies equally to all...who belong to a certain class of persons....
The class of persons included all those with epilepsy so, the Connecticut court reasoned, there was no denial of equal protection or any other right. Members of the class of people with epilepsy, by implication, do not share the equal rights of the class of U.S. citizens. Similar laws also existed, at that time, in Michigan, Minnesota, Kansas, and Ohio. The Connecticut act was not repealed until 1969.
A 1953 statute in Pennsylvania (48 Statutes 1-1 ff.) prohibits a marriage certificate from being issued to a person who has epilepsy, is "weakminded, insane, or...of unsound mind" except under a court order. In Washington (26 Revised Code 26.04.030) marriage is prohibited if either party:
...is a common drunkard, habitual criminal, imbecile, feeble-minded person, idiot or insane person, or person who has theretofore been afflicted with hereditary insanity, ...unless it is established that procreation is not possible by the couple intending to marry.
The Massachusetts prohibition (General Laws 207, section 5) reads:
An insane person, an idiot, or a feeble-minded person under commitment to an institution for the feeble-minded, to the custody or supervision of the department of mental health, or to an institution for medical defectives, shall be incapable of contracting marriage.
Thirty eight states and the District of Columbia either ban or closely restrict the right of a mentally retarded person to marry. (Wells, 1983) This basic right is not guaranteed to disabled people.
Parenting. The right to parent, to raise your biological children, is also recognized as a fundamental right by the U.S. Supreme Court. However, it can be overridden on the grounds of the health or safety of the child. (Sackett, 1991; Bernstein, 1991) Even though it has little relationship to these grounds, the common basis for removing children from disabled parents is parental IQ. (State ex rel. Paul v. Department of Public Welfare, 170 So.2d 549 (1965), Louisiana Court of Appeals; In re McDonald, 201 N.W.2d 447 (1972), Iowa Supreme Court; Sexton v. J.E.H., 355 N.W.2d 828 (1984), North Dakota Supreme Court; and In re G.C.P., 680 S.W. 2d 429 (1984), Missouri Court of Appeals) Research shows that IQ tests are biased and limited (Sternberg and Gardner, 1984; McCall, 1984) a fact recognized by the courts in education cases. (Larry P. v. Riles, 495 F.Supp. 926 (1979), N.D. California; PASE v. Hannon, 506 F.Supp. 831 (1980), N.D. Illinois) Nevertheless, disabled parents must prove their ability to parent to a degree beyond that of non-disabled parents. A couple in California who were hearing and speech impaired, but quite capable of parenting, were prevented from adopting a child in Adoption of Richardson, 59 Cal. Rptr. 323 (1967).
Recent cases may indicate a new trend. A California trial court judge had removed two children from a father's custody because he was a quadriplegic. The trial court judge had concluded that the father could never be a "good" parent because he could not, for example, play catch with his son. The California Supreme Court, In re Marriage of Carney, 598 P.2d 36 (1979), sharply rebuked the trial judge and overturned his decision. A district court judge in Idaho had refused a mother custody of her two children because she had epilepsy. The Idaho Supreme Court reversed the decision in Moye v. Moye, 627 P.2d 799 (1981). In Michigan the Michigan Court of Appeals, in Department of Social Services v. McDuel, 369 N.W.2d 912 (1985), overturned a lower court decision because it had improperly interpreted "mental illness" to be the same as "physical illness." And in Johnson v. J.K.C., Sr., 841 S.W. 2d 198 (Mo. Ct. App. 1992), the Missouri Court of Appeals reinstated the parental rights of a "mildly mentally retarded" couple in regard to their nine year old son because there was a bonding between son and father and because the child's advanced age meant that the parents could provide for his care. However, it upheld the termination of parental rights in regard to a five year old daughter because of her age and the fact that she had never lived with her parents.
From the viewpoint of the child, California (Civil Code 227b) is the only state in the union which allows a parent to petition to have an adoption decree annulled on the basis of a disability in the child. The statute provides that if within five years of the final decree the child gives evidence of a developmental disability which is so severe that the child would be considered not adoptable, that the disability was the result of pre-adoption conditions, and that the parents did not know of the condition, then the adoptive parents can ask the court to annul the adoption. (The Legal Rights of Persons with Epilepsy, 1985: 107) That occurred in Christopher C. v. Kay C., 278 Cal. Rptr. 907, when the California Court of Appeals affirmed a lower court decision to grant a petition to set aside an adoption because the child had an undisclosed mental illness.
Perhaps the courts are changing their view of persons with disabilities who are parents. At the same time they seem to be making it easier for involuntary sterilization to occur. Once sterilized a person with a disability no longer has the chance to have biological children and so the problem involving parenting will not arise since it is also all but impossible for them to adopt a child.
Stereotypes and Disability
These laws and court cases are based upon common stereotypes of disability and disabled persons. They are based upon several inaccurate assumptions about disabled people. (Wright, 1985; Bogdan and Biklen, 1977; Dearing, 1981; Longmore, 1985; Bogdan & Taylor, 1987 and 1989) The first one is the assumption of general maladjustment of disabled persons.
There are numerous studies which purport to show that disabled people are maladjusted, but the studies suffer from grave methodological problems involving the instruments used. Just as bias exists in IQ tests, there are biases in instruments used to gauge adjustment. In addition, if the researcher expects maladjustment in disabled persons, that is what will be found, a self-fulfilling prophecy. Furthermore, there is a strong tendency in these studies to attribute any deviation from the norm to the existence of a disability: if a person is disabled, then the person must be maladjusted. The truth is that the assumption of general maladjustment is a gross over simplification of the facts conditioned by prejudice as careful analysis of these studies show.
The second assumption is that of tragedy. Non-disabled persons can not imagine how disabled persons can bear their lives. The existence of a disability appears to them to be an overwhelming tragedy, a life filled with suffering and frustration. It is true that disabled persons suffer and become frustrated, but so do non-disabled persons. There are many carefully done studies which show that things like divorce or death cause more pain, suffering, and tragedy in the lives of disabled persons than the existence of a disability.
The next assumption is closely related to the first two and that is the assumption of excessive frustration. It is simply not correct that disabled people experience more frustration than other people. Perhaps disabled persons are more aware of frustrating, unnecessary barriers placed before them, but non-disabled persons also experience excessive frustration. If a researcher expects to find excessive frustration, it will be found just like general maladjustment will be found. But the way to overcome frustration for both disabled and non-disabled persons is to remove the frustrating barriers, not to counsel more adjustment.
These assumptions are all based upon yet another incorrect assumption: the assumption of disability as a personal attribute. A disability is a central part of the life and identity of a disabled person, but it is not simply a personal attribute. It is rooted firmly in the environment. In certain environments particular disabilities are not noticed while in other environments they are very noticeable. A disability is often a limitation because of an environmental barrier which is unnecessary, unneeded, largely unwanted, but there because of someone's unthinking.
The final assumption is the myth of sin. That is, the cause of a disability must be someone's sin or wrong doing: the disabled person, the parents, the physician, the drunk-driver, and so on. Perhaps the disability can be traced to a specific event, but the reason for that event is certainly not sin on the part of someone who ends up with a disability. Frequently, people in society attempt to locate the blame or reason for everything perceived as "bad." When nothing else can be blamed, sin is the obvious alternative explanation.
The stereotypes resulting from these false assumptions are influential and this influence is magnified by language. The power of language to shape policy and influence views of reality is great. (Edelman, 1985) The terms "nigger" and "chick" are evocative as is the term "cripple." While the first two terms are rarely used today in the media, the third term is commonly used as a verb (to cripple), as an adjective (crippled), and as an adverb (crippling). (Zola, 1985; Longmore, 1985) It is not surprising that the stereotypes are deeply influential upon public policy in this society. (Hahn, 1985a; Higgins, 1980; Crispell & Gomez, 1988; Handberg, 1989) These stereotypes influence friendships (Kleck & DeJong, 1983), govern success (Bordieri, Sotolongo, & Wilson, 1983; Beuf, 1990), and determine how disabled people are viewed by the professionals who seek to help them. (Nixon, 1985; Owen, 1985; Westbrook & Nordholm, 1986; Barnett, 1986; Scott, 1981) They are widely found today and throughout history.
In the United States disabled persons were stereotyped from colonial times as defective and thus not being able to participate as citizens. Not until the nineteenth century did disabled people attempt in any numbers to participate in civic matters. When they tried to do so, they were usually barred. The 1872 civil procedure code of the County of Los Angeles prevented persons who were deaf, blind, and physically handicapped from serving on juries. The reason was that such persons were considered, according to the code, to be "decrepit and lacking in all their natural faculties." When the Los Angeles County Supervisors were considering a measure to repeal this provision in 1976, it was opposed by two county judges because "...the blind would have difficulty in determining the credibility of witnesses since they could not observe witnesses' demeanor." (Los Angeles to Decide..., 1976) Such stereotypes about blind persons are common (Chevigny, 1946; Criddle, 1953; Scott, 1981) as they are about disabled persons in general.
The legal impact of these stereotypes upon the lives of people with disabilities did not happen by accident. It was the result of an identifiable social movement whose purpose was to make society better in all ways.
The Eugenics Movement
The reason for the impact of the stereotypes and the resulting discriminatory laws can be found in the values and prejudices of people in society. (Weiss, 1987; Proctor, 1988; Brown, 1988; Weindling, 1989; Caplan, 1989) One of the primary sources of these prejudicial attitudes which led to the laws is the Eugenics Movement which has its roots in nineteenth century biology, especially the work of Charles Darwin. (Mazumdar, 1992; Stepan, 1992) The evolutionary ideas of Darwin are not necessarily supportive of the goals of the Eugenics Movement, but they led to the work in genetics which gave rise to the movement.
It is not accidental that a certain pessimism can be read into Darwin because he took his central idea from Thomas Malthus' work Essay on Population, first published in 1798. (Dampier, 1952: chapter 7) Malthus wrote that the human race would always grow in numbers until it has insufficient means for survival. Then war, famine, or disease would trim back the number of people. Unnecessary individuals would die. This pessimistic view of history influenced Darwin. As he wrote (quoted in Dampier, 1952: 276):
In October 1838 I happened to read for amusement Malthus on Population, and being well prepared to appreciate the struggle for existence which everywhere goes on from long continued observation of the habits of animals and plants, it at once struck me that under these circumstances favourable variations would tend to be preserved, and unfavourable ones to be destroyed. The result of this would be the formation of new species. Here then I had a theory by which to work.
For the next twenty years Darwin collected data and conducted experiments. In November 1859 his Origin of Species was published.
Ideas of evolution were not unknown during the nineteenth and previous centuries. Toward the end of his life Charles Darwin acknowledged the influence that his grandfather, Erasmus Darwin, had on his ideas. Erasmus Darwin was one of a number of writers who had advanced the idea of evolution, but in a different form. (Colp, 1986) Unlike earlier works, Charles Darwin's Origin of Species established evolution on a firm basis because it was accompanied by extensive facts based on his observations and experiments. Thomas Huxley, the chief expositor of Darwin's theory, describes it as a flash of lightning in the dark. (Dampier, 1952: 279-80) It was not a flash appreciated by all persons because there was intense opposition to Darwin's theory over the next twenty years. Only toward the end of his life did the opposition began to subside.
Out of the controversy generated by The Origin of Species came the field known today as genetics. Unlike most fields, genetics can be said to have a birth month, although not exactly a birth day. In April 1900 three different plant breeders rediscovered and/or republished what Gregory Mendel had published in 1866. Mendel's ideas encompassed a statistical rule by which plant characteristics could be predicted from one generation to another. (Waddington, 1972) Such a statistical approach was championed in Great Britain by W.F.R. Weldon, Karl Pearson, and Francis Galton. Pearson, the statistician who developed the product moment correlation coefficient as well as other statistical tools, founded the journal Biometrika with Weldon. Galton, who had turned his attention to the genetic improvement of people, coined the term eugenics for his work. Another contributor to this movement was the statistician G. Udny Yule who developed the definition of statistical independence used today with the Chi Square statistic. Finally, there was the statistician Ronald Fisher, known for his work with statistical tests of significance, who reconciled early objections raised by Weldon and Pearson to the Mendel approach.
Fisher was very concerned that previous civilizations had collapsed because the "better" classes had failed to reproduce a sufficient number of offspring. In 1912 he addressed the second annual meeting of the Cambridge University Eugenics Society and stressed the need for careful breeding among the "better" classes. A year later in an address to the Eugenics Education Society he repeated his concern and said (as quoted in Box, 1978: 32):
We do not dub ourselves knights of a new order. But necessarily, inevitably, it might be unconsciously, we are the agents of a new phase of evolution. Eugenists will on the whole marry better than other people, [they will have] higher ability, richer health, greater beauty. They will, on the whole, have more children than other people.
Although Fisher might have repudiated much of what later happened in the name of eugenics, by 1929 he was actively engaged in a campaign to legalize sterilization. (Box, 1978: 196-203) His public position was always that the sterilization must be voluntary and must be viewed as a right. He firmly believed that if viewed in this way sterilization would become widespread and would reduce the number of "defectives" being born.
Fisher's views were not shared by all members of the Eugenics Movement. During the nineteenth century and on into the twentieth century there was considerable sentiment that certain racial or ethnic groups were superior in terms of intelligence and moral character. Such reasoning is the foundation for the doctrine of Manifest Destiny in the United States which justified the genocide of Native Americans and the conquest of Puerto Rico and the Philippines. Within the American society, the argument went, the lower classes were intellectually and morally inferior. In order to preserve civilization and social order, the lower classes must be restrained. Unionization of American industry was opposed on the grounds that the common worker could not know what was best for him/herself much less for the entire nation.
Like Fisher, many persons in the United States were concerned that civilization was doomed unless "defective" persons were kept from multiplying. Lothrop Stoddard wrote in 1922 (quoted in Smith, 1985: 3) that "the stern processes of natural selection" had kept down the number of "defective" people in the past, but now "modern society and philanthropy have protected them and thus favored their rapid multiplication."
Arguments in the abortion debates often contain premises of the Eugenics Movement. (Wertz & Fletcher, 1989; Hollander, 1989; Heifetz, 1989; Wolfensberger, 1989; Merrick, 1989) Equating the availability of abortion with the encouragement of promiscuity, David Wilson (1986) states that mature, educated married couples who "conscientiously practice contraception" sometimes conceive children. The probability that unmarried teenage girls, he writes, will become pregnant is close to certainty if abortion continues to be available.
The process is negatively self-selective. The most responsible, educated, economically self-sufficient, genetically and culturally endowed are the least likely in any age cohort actually to produce offspring. What abortion is producing instead...is male irresponsibility and a dysgenic reproductive pattern in which those less prepared to cope with the multitudinous challenges of advanced technocracies are outbreeding those whose capacities may be expected to be superior.
The "better" classes will obtain abortions while the "inferior" classes will multiply. This concern is the same one voiced at the beginning of the century by Fisher, but not only will the "better" classes produce fewer children, the "inferior" classes will produce "defective," i.e., disabled children.
In the nineteenth century due (in part) to the Eugenics Movement, there was social policy implemented to deal with the "defective" and disabled members of society. The earliest institution for "defectives" and "feebleminded" persons in the United States was established in Boston by Samuel Howe in 1849. It was Howe's intent to educate the "defectives" so that they could return to society. However, he was so successful in removing unwanted persons from the streets and from public sight that families and communities refused to have them back. Although he warned against permanent segregation, no one listened. All that public leaders could see was that persons whom they associated with poverty, crime, insanity, prostitution, alcoholism, and general immorality were being removed from society. As Massachusetts Governor Benjamin Butler said in his 1883 address to the state legislature (Butler, 1883):
When the state shall have sufficiently educated every bright child...it will be time enough to undertake the education of the idiotic and feebleminded. I submit that this attempt to reverse the irrevocable decree as to the survival of the fittest is not even kindness to the poor creatures who are at this school. ...none of the pupils have become self-supporting. ...a well cared-for idiot is a happy creature. An idiot awakened to his condition is a miserable one.
Howe had been too successful.
A few years before Butler's address, R.L. Dugdale published his famous study The Jukes in 1877. In his book Dugdale described what he called the degeneracy of the Jukes family. His work stimulated the publication of a large number of family histories. (Rafter, 1988) Although Dugdale said it was caused by the social environment, an increasing number of these family histories, as a result of the influence of the Eugenics Movement, ascribed the degeneracy to hereditary factors. The most influential of all of these works appeared in 1912 and was authored by Henry Goddard. (Goddard, 1912) It was entitled The Kallikak Family: A Study in the Heredity of Feeble-Mindedness.
Like Darwin's Origin of Species, Goddard's work was immediately accepted as scientific proof of a theory. It was a theory which ascribed almost all social ills to a particular class, the feebleminded. Henry Goddard was, in all senses of the word, an academic. He was well educated with a bachelor's and master's degree from Haverford College. In between his two degrees from Haverford, he taught for a year at the University of Southern California in 1888. For eight years he worked as a secondary school principal and then entered Clark University to study psychology. He received his Ph.D. from Clark in 1899 and went to teach at the Pennsylvania State Normal School in West Chester. (Smith, 1985, p. 39) In 1906 he went to the Training School for Feeble-Minded Boys and Girls in Vineland, New Jersey, as director of research. As an empirically minded scientist he wanted to do research into the causes and hopefully the cure of one of society's major problems, as he saw it.
While traveling in Europe he met Alfred Binet and returned with his intelligence test which was to become the cornerstone of Goddard's research. The Binet test was to be used by Goddard and future generations to detect mental defectives. As late as 1981, 92% of the state vocational rehabilitation agencies in the United States were using some form of an IQ test to diagnose mental retardation and in 80% of the states no formal adaptive behavior assessment was used to validate the conclusions based on the test results. (Sheldon, 1982) For example, Rhode Island (Gen. Laws, 40.1-22-3 (5)) defines a mentally retarded person as one "with significant subaverage general intellectual functioning two (2) standard deviations below the normal...." Even though IQ tests give questionable results, "experts" place great reliance upon them even today. (Snyderman & Rothman, 1989)
After establishing (to his satisfaction) that feeblemindedness was inherited, Goddard turned to the policy question of how to combat the many social ills which the feebleminded brought to society. He focused on the slums where, he said, most of the crime, poverty, and immorality existed. As he wrote (quoted by Smith, 1985: 18):
If all of the slum districts of our cities were removed tomorrow and model tenements built in their places, we would still have slums in a week's time because we have these mentally defective people who can never be taught to live otherwise than as they have been living. Not until we take care of this class and see to it that their lives are guided by intelligent people, shall we remove these sores from our social life.
Of course, Goddard and others would be the "intelligent people" who guided the "mentally defective people." How would he undertake to remove the "sores"? Sterilization was advanced as a temporary measure, but segregation into institutions was the final solution. Again, as Goddard wrote (quoted by Smith, 1985, p. 19):
Such colonies [institutions] would save an annual loss in property and life, due to the action of these irresponsible people, sufficient to nearly, or quite, offset the expense of the new plant. . . . Segregation through colonization seems in the present state of our knowledge to be the ideal and perfectly satisfactory method.
People with disabilities were to be segregated and sterilized for the betterment of society.
Although Goddard's work was soundly criticized by some for its abysmal methodology and its faulty genetics, it was widely praised by others. Each criticism received a reply from either Goddard or from a defender of Eugenics. (Meile, Shanks-Meile, & Spurgin, 1989) Persons made their academic career by writing about this country's moral degradation and proposals for ridding the country of this scrouge of feeble mindedness.
But Goddard was not the only person who advocated sterilization and segregation and who was heard. Havelock Ellis, a leader in the struggle for human rights and especially women's rights, begins his work The Task of Social Hygiene with attention to the problem of feeblemindedness (to use his words). Citing the work of Goddard and others, Ellis (1927: 35) writes:
The feeble-minded have no forethought and no self-restraint. They are not adequately capable of resisting their own impulses or the solicitations of others, and they are unable to understand adequately the motives which guide the conduct of ordinary people.
Not only are they presently a menace, wrote Ellis, but they are "...the reservoir from which the predatory classes are recruited." (Ellis, 1927: 38) They are "an evil that is unmitigated," a "poison to the race," and their "very existence is itself an impediment" to civilization. (Ellis, 1927: 43) But Ellis stopped short of Goddard's methods of sterilization and segregation. Instead, Ellis wanted the ideals of Eugenics to become part of the civic religion so that civilization would work to rid itself of the "defectives" using various public policies including statutory law.
Other persons in the Eugenics Movement were not as reticent as Ellis to recommend Goddard's methods. Walter Fernald, a successor to Howe, was quite blunt (Fernald, 1912: 92):
The feebleminded are a parasitic, predatory class, never capable of self-support or of managing their own affairs. The great majority ultimately become public charges in some form. . . . It has been truly said that feeblemindedness is the mother of crime, pauperism and degeneracy. . . . The most important point is that feeblemindedness is highly hereditary. . . . No feebleminded person should be allowed to marry or become a parent. . . . Certain families should become extinct. Parenthood is not for all.
The only question remaining was how to implement this policy. Extermination was hinted, but not openly used. (Lusthaus, 1985) Instead, segregation into institutions and sterilization was the answer.
Goddard's influence spread. He was invited to Ellis Island to help identify and thus exclude feebleminded immigrants. Using the Binet test, Goddard found that 79% of all Italian immigrants, 80% of all Hungarian immigrants, 83% of all Jewish immigrants (the only group not listed by nationality), and 87% of all Russian immigrants were feebleminded. (Smith, 1985: 119-20) Goddard concluded that if the American people wanted feebleminded immigrants barred, then they had better let Congress know. In 1924 Congress passed the Immigration Restriction Act limiting the number of immigrants from Southern and Eastern Europe.
During World War I army recruits were given the Binet test. Goddard's interpretation of the results were that half the country had the intelligence of a thirteen year old or less. His conclusions (Smith, 1985: 128-30) were that it argued against democracy. No society, he said, could exist with decisions being made by the average, much less the lowest, in intelligence. About half of the country should be disenfranchised so that the more intelligent citizens could guide public policy makers.
Numerous other studies appeared after Goddard's which found "defectives" to be the source of most social evils. (Smith, 1985: chapter 9) Similar policy recommendations were put forth by these writers. One of the more zealous followers of Eugenics was Harry Laughlin who drew up a model sterilization law in 1922. His model law would require the sterilization of the following "defective" classes (Laughlin, 1922:446-47):
...(1) feebleminded; (2) insane (including the psychopathic); (3) criminalistic (including the delinquent and wayward); (4) epileptic; (5) inebriate (including drug habitues); (6) diseased (including the tuberculous, the syphilitic, the leprous, and others with chronic, infectious, and legally segregable diseases); (7) blind (including those with seriously impaired vision); (8) deaf (including those with seriously impaired hearing); (9) deformed (including the crippled); and (10) dependent (including orphans, ne'er-do-wells, the homeless, tramps, and paupers).
It is interesting to note (Smith, 1985: 138) that Laughlin himself was a person with epilepsy. Although married, he had no children.
By 1938 thirty three states had a sterilization law and nation wide over 27,000 compulsory operations were performed. (Smith, 1985: 139) The California law required the sterilization not only of the "feebleminded" and anyone with "inherited mental diseases or diseases of a syphilitic nature," but also anyone in a state hospital who showed evidence of "perversion or marked departures from normal mentality." (Berns, 1953: 770) By 1951 over 19,000 persons had been sterilized under the California law. In Virginia, in the institution where Carrie Buck had lived, over 4,000 had been sterilized. (Smith, 1985: 150) Even though the law under which she was sterilized was repealed in 1968 (Burgdorf & Burgdorf, 1977), the practice in Virginia was not stopped until 1972. According to Ferster (1966), over 63,000 persons were involuntarily sterilized in the United States for genetically related reasons from 1921 to 1964.
The laws discussed earlier were based on the hard science of the day as well as the attitudes of the public toward disabled persons. There was no small clique which secretly promulgated the sterilization and segregation laws which were applied to disabled persons and which still operate today. (Berns, 1953; Haller, 1963; Wolfensberger, 1975, 1981; Bell, 1962; Forman & Hetznecker, 1982; Hahn, 1982, 1983; Pfeiffer, 1985, 1987) It was (and is) public opinion as articulated by public leaders and scientific opinion as articulated by professionals which gave these laws impetus for their passage and for their implementation. It is this public and scientific opinion which still supports them today. (Gochros and Gochros, 1977; Starr, 1982; Bock, 1983; Melnick, 1985; Gould, 1985; Lusthaus, 1985; Barnett, 1986; Mehan, Hertweck, & Meihls, 1986; Bell, 1986; Holtzman, 1989; Sanderson, 1990; Miringoff, 1991; Bosk, 1992) Although in 1985 the Governor of Texas signed legislation which removed from Texas laws such terms as idiot, feeble-minded, crippled, and deformed, the terms remain in the statutes of most states. The prejudicial attitudes still exist in public law.
Physicians and hospital administrators routinely allow newly born disabled infants to die. They disconnect the life sustaining apparatus of elderly persons because their quality of life is too meager. Parents who discover that the mother is carrying a "defective" fetus are counselled to obtain an abortion. (Miringoff, 1989, 1991) Wolfensberger (cited in Herr, 1984: 8) estimates that some 200,000 abortions a year are for this reason.
Disabled children who are allowed to live receive second-rate or worse education in public schools. Some disabled children, especially if the child has AIDS, receive no education at all. Disabled people today are fired or not hired in the first place because of their disability. Health care is denied to persons with disabilities. Although many municipalities supply, at taxpayers' expense, services such as parks and airports, personal assistants who would allow disabled persons to work and be taxpayers are curtailed for budget reasons. Many public transit systems, paid for and subsidized by the tax moneys of disabled persons, can not be used by persons with mobility and sensory disabilities.
In a number of states former residents in state schools and hospitals are reinstitutionalized because there is not sufficient funds appropriated for community centers. Public housing is constructed to be not accessible and tenants who behave in a peculiar way are evicted. Citizens with hearing and vision impairments are denied access to public documents. Other disabled persons who are judged not able to manage daily tasks are sterilized for their own "benefit." They are also prohibited from marrying or from parenting their own children.
Disabled persons are also the outcasts of academia. It was public attitudes which allowed the oppressive laws to be promulgated and implemented, but it was academia which gave justification for those laws. (Hahn, 1985b; Allen, 1986; Weiss, 1987; Gelb, 1989; Meile, Shanks-Meile, & Spurgin, 1989; Nelkin & Tancredi, 1989; Weingart, 1989; Mazumdar, 1992; Blackford, 1993) To counter this threat to the civil rights of people with disabilities, public and private agencies (including academia) must mount an effective drive to educate the public in regard to the facts about disabilities and the legal rights of disabled persons.
The passage of the Americans with Disabilities Act (P.L. 101- 336) is a step toward dealing with the discriminatory state laws and practices. It is time that even more be done. State laws which discriminate against a person with a disability must be struck down. Prior decisions which allow such discrimination must be overruled. State and federal regulations implementing laws must be revised.
Persons with disabilities are capable of managing their affairs, of being responsible, tax paying citizens, and of being lovers and parents. If people with disabilities have the right to exist in this society, then they have the right to ways to make that existence meaningful and effective. Through education and political action this end can be achieved.
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