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We Are All Imbeciles Now: The HHS Regulations and the Specter of Buck v. Bell



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In the 1927 case Buck v. Bell, the U.S. Supreme Court upheld a Virginia statute that allowed the “superintendent of certain institutions” to order the sterilizations of “feeble-minded” persons who were under the care of these state institutions, if the superintendent“shall be of opinion that it is for the best interests of the patients and of society that an inmate under his care should be sexually sterilized.”

In his majority opinion, Justice Oliver Wendell Holmes offered this description of the plaintiff: “Carrie Buck is a feeble minded white woman who was committed to the State Colony. . . . She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child.”

Holmes rejected as “the usual last resort of constitutional argument” Buck’s claim that the law violated her equal protection because, as her attorney argued, the forced sterilization policy “is confined to the small number who are in the institutions named and is not applied to the multitudes outside.” For Holmes what animated his opinion was the government’s legitimate interest in imparting to Ms. Buck and her ilk the preventative health care that she and her feeble-minded peers were resisting. In what has to be one of the most chilling passages in American judicial history, Holmes writes:

It would be strange if [the state] could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . . Three generations of imbeciles are enough.

It is true that the Supreme Court in Skinner v. Oklahoma (1947) declared as unconstitutional on equal protection grounds Nebraska’s criminal statute that allowed the state to punish certain habitual criminals by forcing them to undergo the “operation of vasectomy.” But that was a case of criminal law and not health policy. For this reason, the precedent and logic of Buck have never been overturned by the Supreme Court. In fact, in Roe v. Wade (1973) the Court cites both Buck and Jacobson v. Massachusetts (1905) (a case in which mandatory vaccinations were upheld) as precedents that support the Court’s claim in Roe that the right of privacy does not mean that one has “an unlimited right to do with one’s body as one pleases.”

Although some in the media called it a “compromise,” President Obama nevertheless reiterated his administration’s policy that employers, including religious organizations such as hospitals, colleges, and charitable agencies, who provide insurance policies for their employees, are prohibited under regulations issued by the Department of Health and Human Services to negotiate an agreement with an insurance company or self-insure so that the insurance policy the employer offers to its employees does not include contraception, abortion, sterilization, etc. In this “compromise” the employer, though paying for the policy, is not required by HHS to list these objectionable services when the employer presents the policy to its employee. Nevertheless, the insurance company, with whom the employer is contracted, is required to tell the employee that these services are provided under the employer’s policy “free of charge” by the insurance company. But as the signatories of a letter criticizing the “compromise” have noted, “it does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer. What matters is what services the policy covers.” Theinsurance company’s cost will no doubt be absorbed by the employer, since there is, as they say, no free lunch. But it’snot clear how the administration believes this accounting trick will be accomplished if the employer self-insures, which is what many religious employers in fact do.

Part of the justification for this coercion, according to the president, is that “we know that the overall cost of health care is lower when women have access to contraceptive services.” I suspect that the president misspoke here. He probably meant to say, “when women use contraceptive services,” for I know for a fact that my non-contracepting Catholic friends and I indeed have access to contraceptive services, just as we have access to Presbyterian Churches and strip joints, which for us go as unpatronized as the local Planned Parenthood clinic.  

So, because the president believes that the use of certain “preventative” services — that would also include non-contraceptive forms of birth control such as sterilization and abortifacient drugs –lowers “the overall cost of health care,” therefore, forcing businesses to pay for, and provide access to, these services is justified, even if those businesses are owned by religious parties that are forbidden by conscience to materially cooperate with the procuring of those services. 

Imagine, however, it is the year 2025 and, despite free and unlimited access to these services for all citizens, costs are not shrinking at the rate that the Department of Health and Human Services had predicted. It turns out that some citizens — serious Catholic, Orthodox Jewish, and Mormon ones in particular — are not availing themselves of these cost-reducing services. The behavior of these “breeders” is driving up the cost of health care, and as a consequence making it more difficult for insurance companies to continue providing free preventative services to those women who intend to use them.

Although America’s president in 2025 fully recognizes reproductive autonomy, he also knows that the right of privacy, as the Court said in Roe, does not mean that one has “an unlimited right to do with one’s body as one pleases.” Thus, the president orders the secretary of Health and Human Services to fine any and all women $4,000 for each pregnancy she carries to term after the third one. (For equal-protection reasons, the man who sires the child will have to pay half). And, of course, “free abortions” will be provided by the government for those who do not want to pay the fine.

The future president notes in his public comments that these citizens are free to believe or practice anything they want religiously, and to have as many children as they choose to have. However, to possess such liberties under the law does not relieve one of having to pay one’s fair share in a pluralistic society in which we all must participate in the burden of justice. Or as Justice Holmes would have put it: “It would be strange if the government could not call upon those who already sap the preventative health care of others to make some small sacrifices. Three delivered infants is enough.”   

— Francis J. Beckwith is Professor of Philosophy & Church-State Studies at Baylor University. He is the author of Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007)and one of four main contributors to the forthcoming book Journeys of Faith: Evangelicalism, Eastern Orthodoxy, Catholicism, and Eastern Orthodoxy (Zondervan, 2012). He blogs for Patheos at returntorome.com



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