The Judge Says: Don't Get Pregnant.
A Lapsed Law Now Sees New Life
By DAN SLATER
Some old laws never quite fade away.
In a dark corner of U.S. history, a number of states ran forced-sterilization projects, in which women deemed unfit for motherhood were surgically prevented from having a child. The country's most esteemed legal minds blessed the programs. In 1927, the U.S. Supreme Court upheld a Virginia law that authorized sterilization for a woman who, along with her mother and child, was "feeble-minded." In upholding the statute, Justice Oliver Wendell Holmes concluded: "Three generations of imbeciles are enough." By 1935, nearly 20,000 forced eugenic sterilizations had been performed in the U.S.
Then, in 1942, the Supreme Court struck down Oklahoma's Habitual Criminal Sterilization Act, declaring that "marriage and procreation are fundamental to the very existence and survival of the race." Following the horrors of eugenics in Nazi Germany, the sterilization movement dwindled.
Yet in scattered cases, state regulation of reproductive rights remains a part of the legal culture -- now amid very different circumstances. Just this month, for example, a judge in Texas ordered a woman, as a condition of her probation, to stop having children after her daughter was badly abused. The order, by Judge Charlie Baird, is difficult to enforce and possibly unconstitutional. It reflects the willingness of some judges to push the limits of punishment in ways that hark back to a time before a series of landmark Supreme Court decisions elevated individual rights.
In other areas, too, the impulse behind a law can linger, in society and in the courtroom, long after the law itself has fallen into disfavor or disuse. For a long time, the state asserted control over who could marry whom. It was only in 1967 that the Supreme Court struck down Virginia's anti-miscegenation law, giving constitutional protection to interracial marriage -- and creating a broader social assumption that marriage in general was a private matter. Three decades later, many states still resist same-sex marriage.
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