That’s the title of a piece I published earlier this week over at Bench Memos on National Review Online. Here’s how it begins:
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 seems like this logic could be applied to any and all that the elites deem to be “manifestly unfit.” I wonder what, or to whom, that might apply: those on welfare, habitual criminals (even habitual petty criminals), those who don’t graduate from high school, drug users? It seems like the words “manifestly unfit” are, as the saying goes, ” beauty is in the eyes of the beholder” with beauty being defined by the beholder.
Smells like a slippery slope to me and the folks that vote should realize this is about religious freedom, religious liberty, guaranteed by the first amendment to the Constitution and not about contraception.
I worry that the analogy you draw between the contraception mandate and your 2025 scenario doesn’t really hold, if by drawing that analogy you mean to say that affirming the first commits one to affirming the second. The contraception mandate does seek to drive costs down as does the 2025 scenario. But the contraception mandate seeks to drive costs down by decreasing the number of unwanted pregnancies, seeing as those who use contraception do not want to become pregnant, whereas your 2025 scenario seeks to drive costs down by decreasing the number of pregnancies which we have no reason to think would be unwanted, and indeed would be wanted in a great many cases. Therefore two different principles underlie the two cases. The principle underlying the contraception mandate appears to be something like the following (though who really knows what’s in the minds of bureaucrats when it comes to abstract principles): In the realm of healthcare coverage, if by aiding people in achieving their reproductive goals we can save money, let us do so. This is different from the principle underlying your 2025 scenario: In the realm of government penalties imposed, if by frustrating the achievement of people’s reproductive goals we can save money, let us do so. The main difference between the two principles is that the first conforms to an individual’s reproductive strategy while the second is opposed to it. Accepting the first principle does not entail accepting the second. In short, the President is not saying that anything that drives costs down should be done.
That being said, I would note that I do not think that the second principle is unreasonable at all times and places. Armageddon-like circumstances can make just about any right such as to be abrogated. It would, however, take a great increase in concern over the size of our population (with regard to cost or resources or whatever), as well as a different set of public values regarding reproductive freedom, for the second principle to be taken seriously in our public discourse.
It’s not an analogy I am making. What I am doing is extending the principles already in play.
The proper analogy–if there is one–is between religious employers in the present and the future pregnant women: if by frustrating the practice of people’s deeply held religious beliefs we can save money, let us do so. To choose “reproductive liberty” as more important than “religious liberty” seems capricious. In fact, the latter seems far more important than the former, since what one thinks is the ultimate meaning or end of life will likely shape one’s understanding of the proper end of one’s sexual powers.