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2 6 7 How would Carrie Buck fare under the law if she actually were a person with diminished mental capacity related to an inherited disease, living in Virginia today? Virginia adopted a new law on involuntary sterilization in the early 1980s. Among the several states having such laws, Virginia is one of the most protective. It incorporates extensive due process steps before a court may order surgery for someone unable to give informed consent. The person who will be sterilized must have a need for contraception—that is, they must be sexually active now or likely to be in the near future. The court must determine that no reasonable alternative method of contraception is available. The proposed sterilization must not pose an unreasonable risk to the life or health of the patient, and the patient must be permanently incapable of raising a child. Specific provisions are included to determine, as completely as possible, the wishes of the patient.¹ Laws in other states have similar provisions that focus the court inquiry on “the best interests” of the person subject to surgery rather than the “convenience” of a guardian , family member, or the public more generally.² If we apply all of these standards, which are part of Virginia law today, to the facts of the Buck case, Carrie Buck would probably not be sterilized. On the other end of the spectrum, the least protective involuntary sterilization statute is that of Arkansas, which permits sterilization by court order of “incompetents” who are unable to care for themselves “by reason of mental retardation, mental illness, imbecility, idiocy or other mental incapacity .” Males may be sterilized by x-ray or vasectomy. In cases of “obvious hardship,” three physicians can certify, pursuant to the wishes of a guardian , that “a sterilizing procedure is justified” without going to court at all. No standards are provided to determine the factors that might justify the operation.³ Buck’s prospects in Arkansas would be less promising. Courts in several other states allow “voluntary” sterilization at the requestofparentsorguardiansofpeoplewithmentalretardation ,withwidely e p i l o g u e Reconsidering Buck 2 6 8 | Three Generations, No Imbeciles varying standards for determining when surgery would be appropriate. If a family member wishes to have someone sterilized in those states, surgery can occur, as long as genuine evidence of mental retardation is available. Sterilization operations involving people with mental retardation happen regularly in some states; but there are also operations done in private at the request of families or guardians to consider. The extent to which this practice may reflect the same attitudes played out in the Buck case—that the disabled are worthy of contempt and that the social costs such people generate justify court orders for unwanted surgery—is troubling. Private, family-directed, sexual surgery raises many separate ethical and policy issues that go beyond state-controlled surgery. Some would argue that elective sterilizing surgery for those who cannot consent for themselves should never occur, while others believe that depriving people with disabilities of the most effective means of birth control is a type of discrimination. Although there is ample evidence that abuse occurs routinely under the mantle of familial care, it is also true that some families request sterilization of a disabled relative with the most noble of intentions. The complex and serious question of whether surgery is ever the most appropriate means to bring about involuntary sterility as well as the related and equally momentous question of how to measure the burdens on families who act as caretakers for the mentally infirm are significant ones and should not be dismissed lightly. As important as those questions are, they do not proceed based on legal mandates exercised by state agencies or institutions . The Buck case raised a different, more fundamental question about the relationship of individual citizens and the government. When and for what purposes should we ever use the most intrusive medical interventions as tools of state policy? Today, the answer to that question depends on a legal evaluation of Buck and the place it holds not as an historical artifact but as U.S. Supreme Court precedent. Buck and the other eugenics cases heard by the Supreme Court fill an important niche that helps define the contours of the constitutionally protected right to reproduce. Buck allowed sterilization of the “socially inadequate ,” seeming to recognize no limit to the government’s power over reproduction . Skinner provided some restriction on that power...

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