Chief Reporter (2020 – 2021)
Voluntary sterilization is the second most common form of birth control in the United States.1 Today, long-held cultural beliefs rooted in paternalism and eugenics have infiltrated both the Court and the medical field and have caused vast disparities in access to voluntary sterilization. Over the last century, the Supreme Court has made notable progress in women's rights in general, but the fight for true equality is far from over.
There are vast racial disparities in access to voluntary sterilization.2 The two overarching issues in access to voluntary sterilization, both of which are a direct result of historic and cultural patterns and practices, are: (1) young, unmarried, childless white women often struggle to find physicians who will perform the procedure; (2) physicians are significantly more likely to recommend sterilization to women of color. No matter what the laws in a given state are, physicians have complete decision-making authority to prescribe or refuse sterilization for a patient.3 It is, therefore, necessary to combat the inaccessibility of voluntary sterilization and the racial disparities in access to voluntary sterilization through legislation.
I. There is no affirmative right to voluntary sterilization.
Almost a century ago, the Supreme Court held that the right to reproduce was not constitutionally protected and found a law allowing the State to involuntary sterilize people in mental institutions for the benefit of the individual and society.4 The Supreme Court later struck down a similar law and found the right to procreate to be “fundamental to the very existence and survival of the race.”5
But, in the eighty years since that decision, there has been no case that grants an affirmative right to sterilization.6 Some lower courts have included the right to be sterilized in the privacy rights protected by the Constitution. However, many state laws still require women to obtain spousal consent, be of a certain age, or have a certain number of children before gaining access to sterilization as a birth control method.7
II. The legacy of eugenic and paternalistic cultural patterns in the United States negatively impacts access to sterilization.
Around the time that public concern with women’s reproductive rights came to the political forefront, Theodore Roosevelt was preoccupied with “race suicide,” which was the idea Roosevelt used to “incite fear of declining fertility rates and Americans’ tendency toward smaller families.”8 A woman’s—specifically a white woman’s—decision not to procreate was seen as a “rebellion…against [her] primary social duty—motherhood.”9 This eugenic and paternalistic cultural pattern is clearly seen in Supreme Court decisions around the same time period. Those beliefs trickled into the medical field and contributed to the inaccessibility of voluntary sterilization.
A. The Supreme Court is affected by the legacy of eugenic and cultural patterns.
The Supreme Court stated in Skinner, “Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far[-]reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear.”10 Although the Court held that the right to procreate was “fundamental to the very existence and survival of the race[,]” the Court’s rationale indicates that the use of the word “race” was not intended to refer to the human race.11 Rather, the Court was specifically concerned that “[t]he power to sterilize” would have “devastating effects” on the “dominant group”—meaning the white race.12 The Court’s opinion in Skinner stems from the eugenic and paternalistic fear-mongering by Roosevelt, and the same cultural beliefs have trickled down into the medical field.
B. These historical, cultural beliefs have trickled down into the medical field.
Roosevelt instilled nationwide fear that “if wealthy, educated White people continued to have the lowest birth rate in the nation, the United States would become overrun with immigrants, non-Caucasians, feeble-minded people, and poor people; these groups had much higher birth rates at the time.”13 It is not surprising that bias exists in the medical field. With respect to birth control, women of color are three times more likely to have undergone sterilization than white women because physicians recommend sterilization to women of color at a notably higher rate than white women.14
Although there is no affirmative right to voluntary sterilization, in states where there are no restrictions on women obtaining voluntary sterilization, many women—often young, white, unmarried, and/or childless women—still struggle to find a physician who will perform the procedure.15 Physicians are effectively carrying out Roosevelt’s eugenic ideology, whether explicitly or implicitly, by pushing women of color to be sterilized and refusing to perform the same procedure on white women.
III. To combat this issue, the legislature should impose a statutory duty of care on physicians.
To combat the two overarching issues related to voluntary sterilization, the legislature should impose a statutory duty of care on physicians requiring every physician—except those who conscientiously object to performing the procedure—to disclose all available options for birth control, along with all risks and hazards associated with each method.
Through a statutorily imposed duty of care, a physician would potentially face civil penalties through a medical malpractice lawsuit if it is found that the physician failed to adequately inform a patient of all available options and the risks and benefits associated with each. While imposing such duty will not cure all discrimination in access to voluntary sterilization, it can mitigate the effects of the implicit bias in the health care industry.
2 Feder, S. A woman was told she needed her husband's permission to get her tubes tied. Her story is viral, but it's not uncommon. (last visited Feb. 7, 2021); Downing RA, LaVeist TA, Bullock HE, Intersections of Ethnicity and Social Class in Provider Advice Regarding Reproductive Health. Am J. Public Health, 2007; 97:1803-1807, doi: 10.2105/AJPH.2006.092585; Borrero, S, Schwarz EB, Creinin M, Ibrahim S. The Impact of Race and Ethnicity on Receipt of Family Planning Services in the United States, J Women’s Health, 2009; 18(1): 91-96, doi: 10.1089/jwh.2008.0976; Shreffler KM, et al, Surgical Sterilization, Regret, and Race: Contemporary Patterns, Soc. Sci. Res. 2015;50-31-45, doi: 10.1016/j.ssresearch.2014.10.010.
3 Feder, A woman was told she needed her husband's permission to get her tubes tied, https://www.insider.com; Downing RA, Am J. Public Health, 2007; doi: 10.2105/AJPH.2006.092585; Borrero, J Women’s Health, 2009; doi: 10.1089/jwh.2008.0976; Shreffler KM, Soc. Sci. Res. 2015; doi: 10.1016/j.ssresearch.2014.10.010.
4 Buck v. Bell, 274 U.S. 200, 207–08 (1927).
5 Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535, 541 (1942).
6 Ariel, 32 Law & Ineq. at 135; Matter of Grady, 85 N.J. 235, 248, 426 A.2d 467, 474 (1981).
8 Ariel, 32 Law & Ineq. at 144.
10 Skinner, 316 U.S. at 541.
13 Ariel, 32 Law & Ineq. at 144-45.
14 Downing, Am J. Public Health, doi: 10.2105/AJPH.2006.092585; Borrero, doi: 10.1089/jwh.2008.0976; Shreffler KM, doi: 10.1016/j.ssresearch.2014.10.010.
15 Feder, S. A woman was told she needed her husband's permission to get her tubes tied. Her story is viral, but it's not uncommon. https://www.insider.com (last visited Feb. 7, 2021); Ariel, 32 Law & Ineq. at 144-45.