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

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:

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