Sterilization

  • Bruce Dennis Sales
  • D. Matthew Powell
  • Richard Van Duizend

Abstract

Developmentally disabled persons have in the last decade successfully overcome many legal obstacles which traditionally excluded them from exercising their full rights as citizens. State laws prohibiting equal access to decent educational programs1 were challenged in the courts and in many cases eliminated; unfair and inappropriate confinements and procedures relating to confinements were attacked and eliminated;2 and rights in community settings were developed and defined.3

Keywords

Expense Resi Dition STERILIZA TION Defend 

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References

  1. 1.
    See, e.g., Frederick L. vs. Thomas, 419 F. Supp. 960 (E.D. Pa. 1976), aff’d, 557 F.2d 373 (3rd Cir. 1977); Fialkowski vs. Shapp, 405 F. Supp. 946 (E.D. Pa. 1975); Mills vs. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972); Pennsylvania Association for Retarded Children (PARC) vs. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971). For general legal commentary and discussion of right to education litigation, see Haggerty and Sacks, Education of the Handicapped: Towards a Definition of an Appropriate Education, 50 TEMPLE L.Q. 961 (1977); Note, Enforcing the Right to an ‘Appropriate’ Education: The Education for All Handicapped Children Act of 1975, 92 HARV. L. REV. 1103 (1979).Google Scholar
  2. 2.
    See, e.g., Rouse vs. Cameron, 373 F.2d 451 (1966), “involuntary confinement without treatment is shocking,” id. at 455; civil commitment entails a “massive curtailment of liberty,” Humphrey vs. Cady, 405 U.S. 504, 509; the only permissible justifications for committing the mentally ill are: (1) danger to the individual, (2) danger to others, and (3) need for treatment, Jackson vs. Indiana, 406 U.S. 715, 737; Wyatt vs. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974); Halderman vs. Pennhurst State School and Hospital, 446 F. Supp. 1295 (E.D. Pa. 1977), which continued by stating that although this court entertains serious doubts as to whether retarded individuals should ever be subjected to ‘commitment,’ there is no doubt that under the present case law, the only possible justification for committing the retarded to an institution ... is to provide them with habilitation, i.e., education, training and care. Failure to provide adequate habilitation may well mean commitment for the life of the retarded individual. Welch vs. Likins, 373 F. Supp. 487, 497 (D. Minn. 1974), aff’d in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977); see also O’Connor vs. Donaldson, 422 U.S. 563 (1975).Google Scholar
  3. 3.
    See, e.g., Halderman vs. Pennhurst State School and Hospital, Nos. 78–1490, 78–1564, 78–1602 (3rd Cir. 1979); Parham vs. J.L.,___U.S.___(1979); Lake vs. Cameron, 364 F.2d 657, 663 (D.C Cir. 1966); Eubanks vs. Clarke, 434 F. Supp. 1022, 1027–28 (E.D. Pa. 1977); Lynch vs. Baxley, 386 F. Supp. 378, 392 (M.D. Ala. 1974); Lessard vs. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded for a more specific order, 414 U.S. 473, order on remand, 379 F. Supp. 1376 (E.D. Wis. 1974), vacated and remanded on other grounds, 421 U.S. 957 (1975), order reinstated on remand, 413 F. Supp. 1318 (E.D. Wis. 1976); Wyatt vs. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972); 344 F. Supp. 387 (M.D. Ala. 1972), enforcing 325 F. Supp. 781 (M.D. Ala. 1971), affirmed in relevant part, and decision reversed in part, Wyatt vs. Aderholt, 503 F.2d 1305 (5th Cir. 1974), cited in Halderman, slip op. at 64.Google Scholar
  4. 4.
    See 29 U.S.C §504; 45 C.F.R. Part 84.Google Scholar
  5. 5.
    20 U.S.C. §§1401 et seq.; 45 C.F.R. Part 121a.Google Scholar
  6. 6.
    42 U.S.C. §§6000 et seq.; 45 C.F.R. Parts 1385–7.Google Scholar
  7. 7.
    The Legal Rights of People With Mental Disabilities In the Community: A Plea for Laissez Faire, in LEGAL RIGHTS OF THE MENTALLY HANDICAPPED (Practising Law Institute, 1973) and reprinted in The Mentally Retarded Citizen and the Law (1974).Google Scholar
  8. 8.
    Landman, The History of Human Sterilization in the United StatesTheory, Statute, Adjudication, 23 ILL. L. REV. 463 (1929); see generally, Note, Human Sterilization, 35 IOWA L. REV. 251 (1950);Google Scholar
  9. 8a.
    Challener, The Law of Sexual Sterilization in Pennsylvania, 57 DICK. L. REV. 298 (1952);Google Scholar
  10. 8b.
    O’Hara and Sanks, Eugenic Sterilization, 45 GEO. L. J. 30 (1956);Google Scholar
  11. 8c.
    Ferster, Eliminating the Unfit — Is Sterilization the Answer? 27 OHIO ST. L. REV. 591 (1966);Google Scholar
  12. 8d.
    Murdock, Sterilization of the Retarded: A Problem or a Solution?, 62 CAL L. REV. 917 (1974);Google Scholar
  13. 8e.
    Burgdorf and Burgdorf, The Wicked Witch is Almost Dead — Buck v. Bell and the Sterilization of Handicapped Persons, 50 TEMP. L. Q. 995 (1977).Google Scholar
  14. 8f.
    Sterilization is the surgical means by which both male and female are rendered incapable of reproduction. The operation is much more serious in women than in men. In females the surgeon must do an abdominal operation, removing segments of the fallopian tubes (salpingectomy) and tying the cut ends. In men the operation is relatively simple. Small scrotal skin incisions are made, segments of the vas deferens are removed (vasectomy) and the proximal ends of the vas are tied. Neither interferes with the desire for sexual intercourse or with its gratification.Google Scholar
  15. 8g.
    Deutsch, The Mentally III in America, cited in Lindman and Mclntyre, infra note 11.Google Scholar
  16. 9.
    Landman, id., at 472.Google Scholar
  17. 10.
    See, e.g., H. GODDARD, THE KALLIKAK FAMILY (1912), cited in Landman, id. at 471; holding of the New Jersey Supreme Court in Smith vs. Board of Examiners of Feebleminded, infra note 16; O’Hara and Sanks, supra note 8, at 20; see generally, Note, Eugenic Sterilization Statutes: A Constitutional Reevaluation, 14 J. FAM. L. 281 (1975)Google Scholar
  18. 10a.
    citing E. GOSNEY and P. POPNOE, STERILIZATION FOR HUMAN BETTERMENT, 70 (1931),Google Scholar
  19. 10b.
    A. DEUTCH, THE MENTALLY ILL IN AMERICA (2d ed., 1949)Google Scholar
  20. 10c.
    and L CAVILLI-STORZA and W. BODMER, THE GENETICS OF HUMAN POPULATION (1971).Google Scholar
  21. 11.
    O’Hara and Sanks, supra note 8, at 21; S. BRAKEL and R. ROCK, THE MENTALLY DISABLED AND THE LAW, 183 (1971) and cases and materials cited therein.Google Scholar
  22. 12.
    Note, supra note 10, at 283.Google Scholar
  23. 13.
    O’Hara and Sanks, supra note 8, at 22.Google Scholar
  24. 14.
    Brakel and Rock, supra note 11, at 184, citing Challener, The Law of Sexual Sterilization in Pennsylvania, 57 DICK L. REV 298 (1952).Google Scholar
  25. 15.
    ln 1907, Indiana became the first state to enact a compulsory sterilization statute. Washington State followed in 1909 and California in the same year became the third state to pass a law in this field.Google Scholar
  26. 16.
    The challenges have relied primarily on three parts of the United States Constitution: U.S. CONST, amend. VIII, which states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”; U.S. CONST, amend. XIV, §1, which states that no state shall “deny any person within its jurisdiction the equal protection of the law”; and U.S. CONST, amend. XIV, §1, which states that no state shall “deprive any person of life, liberty, or property without due process of law”.Google Scholar
  27. 16a.
    Note, supra note 10, at 281; See, Landman, supra note 8 at 472–80 and O’Hara and Sanks, supra note 8 generally for an extensive discussion of case law and citations concerning the early eugenic sterilization statutes. See also Smith vs. Board of Examiners of Feeble-minded, 85 N.J.L 46, 88 A. 963 (S. Ct. N.J. 1913) in which the court was particularly cognizant of the extremes to which the “social darwinism” of the eugenic sterilization movement could be carried. This court emphasized that the majority could easily characterize an unpopular minority or otherwise “different” group as an undesirable whose population must be sterilized: There are other things besides physical or mental diseases that may render persons undesirable citizens or might do so in the opinion of a majority of a prevailing legislature. Racial differences, for instance might afford a basis for such an opinion in commuities where that question is unfortunately a permanent and paramount issue. Even beyond ail such considerations it might be logically consistent to bring the philosophic theory of Malthus to bear upon the police power, to the end that that tendency of population to outgrow its means of subsistence should be counteracted by surgical interference of the sort we are now considering. 88 A. at 966.Google Scholar
  28. 17.
    Testimony of Dr. I. Ignacy Goldberg in Pennsylvania Association for Retarded Children vs. Commonwealth of Pennsylvania, 343 F. Supp. 279, 294 (E.D. Pa. 1972). He stated that in about 1900: “[T]he wonderful idea of adjusting the individuals to our society became the dumping grounds for children who could not manage in other classes and started to be called classes for the feebleminded, classes for idiots, and so on .... And then the Eugenic Association in the United States started to raise quite of lot of cry that the American Society is going to pieces, mental retardation is hereditary, mentally retardeds are criminals, are prostitutes as the [I.Q.] tests proved. Therefore, something very drastic has to be done. And in 1912, the Eugsnic Society, the Research Section of the Eugenic Society, namely, the American Breeders Association suggested that drastic measures be taken to prevent the Americans from becoming all feebleminded [such as] segregation or segregation during the reproductive period, for women, . . . organizing institutions for feebleminded women of child-bearing age in order to prevent them from having children, . . . compulsory sterilization law for women, and castration for men. . . . Another recommendation was euthanasia. This, of course, just introduced and I hope was not implemented....I really want to point out that the days we are talking about are not so far removed, that the stigma attached to mental retardation is still with us, with the general public.” (citation omitted)Google Scholar
  29. 18.
    Buck vs. Bell, 274 U.S. 200 (1927).Google Scholar
  30. 19.
    The Virginia Sterilization Act (Acts 1924, c. 394, p. 569) reads in part as follows:Google Scholar
  31. 19a.
    “Whereas, both the health of the individual patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives under careful safeguard and by competent and conscientious authority, and” Whereas, such sterilization may be effected in males by the operation of vasectomy and in females by the operation of salpingectomy, both of which said operations may be performed without serious pain or substantial danger to the life of the patient, and “Whereas, the commonwealth has in custodial care and is supporting in various state institutions many defective persons who if now discharged or paroled would likely become by the propagation of their kind a menace to society but who if incapable of procreating might properly and safely be discharged or paroled and become self-supporting with benefit both to themselves and to society, and” Whereas, human experience has demonstrated that heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy and crime, now, therefore 1. Be it enacted by the General Assembly of Virginia, that whenever the superintendent of the Western State Hospital, or of the Eastern State Hospital, or of the Southwestern State Hospital, or of the Central State Hospital, or of the State Colony for Epileptics and Feeble-Minded, shall be of opinion that it is for the best interests of the patients and of society that any inmate of the institution under his care should be sexually sterilized, such superintendent is hereby authorized to perform, or cause to be performed by some capable physician or surgeon, the operation of sterilization on any such patient confined in such institution afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeblemindedness or epilepsy; provided that such superintendent shall have first complied with the requirements of this act. “2. Such superintendent shall first present to the special board of directors of his hospital or colony a petition stating the facts of the case and the grounds of his opinion, verified by his affidavit to the best of his knowledge and belief, and praying that an order may be entered by said board requiring him to perform or to have performed by some competent physician to be designated by him in his said petition or by said board in its order, upon the inmate of his institution named in such petition, the operation of vasectomy if upon a male and of salpingectomy if upon a female.” 130 S.E. 516, 517 (S. Ct. App. Va. 1925).Google Scholar
  32. 20.
  33. 21.
    Id, at 517–518.Google Scholar
  34. 22.
    130 S.E. 516, 520.Google Scholar
  35. 23.
    274 U.S. 200, 201–3.Google Scholar
  36. 24.
    Id., at 203–4. 25 Id., at 207.Google Scholar
  37. 26.
    See generally Landman, supra note 8. For a later attack on Holmes’ legal theory in Buck vs. Bell, see J.B. Gest, Eugenic Sterilization: Justice Holmes v. Natural Law, 23 TEMP. L Q. 306 (1950). Compare, Van Roden, Sterilization of Abnormal Persons as Punishment for and Prevention of Crimes, 23 TEMP. L. Q. 99 (1950).Google Scholar
  38. 27.
    O’Hara and Sanks, supra note 8, at 31.Google Scholar
  39. 28.
    Landman, supra-note 8, at 465.Google Scholar
  40. 29.
    See Burgdorf and Burgdorf, supra note 8, at 1006 and studies cited therein; including Gest, supra note 26, at 306; and O’Hara and Sanks, supra note 8, at 32.Google Scholar
  41. 30.
    O’Hara and Sanks, supra note 8, at 36.Google Scholar
  42. 31.
    Cf. In re M.K.R., 515 S.W.2d 467 (Mo. 1974); See generally Burgdorf, Marital and Family Rights, in LEGAL RIGHTS OF MENTALLY DISABLED PERSONS (Practising Law Institute 1979), and cases and materials cited therein; see generally, Note, Sterilization, Retardation and Parental Authority, B.Y.U. L. REV. 379 (1978);Google Scholar
  43. 31a.
    and Gaurney and Shugar, The Permissibility of Involuntary Sterilization under the Parents Patriae and Police Power Authority of the State: In Re Sterilization of Moore, 6 MD. L. FORUM 109 (1976).Google Scholar
  44. 31b.
    A distinct line of cases began to develop regarding the judiciary’s role in sterilization matters. See, e.g., Wade vs. Bethesda Hospital, 337 F. Supp. 671 (S.D. Ohio 1971) (judge could be held liable for damages when sterilization ordered was inappropriate; court has judicial immunity against liability if it had statutory authority to order the operation. The dissent argued that a general grant of authority to hear “all matters” did not give specific authority to order sterilizations. According to Stewart, J., “What Judge Stump did ... was beyond the pale of anything that could sensibly be called a judicial act.” 435 U.S. at 365.Google Scholar
  45. 32.
    316 U.S. 535 (1942).Google Scholar
  46. 33.
  47. 34.
    189 Okla. 235, 115 P.2d 123.Google Scholar
  48. 35.
    368 F. Supp. 1383 (M.D. Ala. 1973).Google Scholar
  49. 36.
    ORDER On December 20, 1973, the three-judge court in Wyatt v. Aderholt, D.C., 368 F. Supp. 1382, declared that Tit. 45, § 243, Code of Alabama, is unconstitutional. As a consequence of that action, the three-judge feature of this case is now complete and that court has been dissolved. However, since it appears that sterilization continues to be performed in certain instances by the state health authorities, it is necessary that this Court promulgate adequate standards and procedural safeguards to insure that all future sterilizations be performed only where the full panoply of constitutional protections has been accorded to the individuals involved. Accordingly, it is ordered that the following standards be and they are hereby adopted and ordered implemented from this date for the sterilization of mentally retarded residents of the state retardation facilities: 1.(a) “Sterilization,” as used in these standards, means any medical or surgical operation or procedure which results in a patient’s permanent inability to reproduce. (b) A determination that a proposed sterilization is in the best interest of a resident, as referred to in these standards, must include a determination that no temporary measure for birth control or contraception will adequately meet the needs of such resident, and shall not be made on the basis of institutional convenience or purely administrative considerations. 2. No resident who has not attained the chronological age of 21 years shall be sterilized except in cases of medical necessity as determined in accordance with the procedures set forth below. No other resident shall be sterilized except in accordance with procedures set forth below. 3. No resident shall be sterilized unless such resident has consented in writing to such sterilization. Except as set forth below, such consent must be informed, in that it is (a) based upon an understanding of the nature and consequences of sterilization, (b) given by a person competent to make such a decision, and (c) wholly voluntary and free from any coercion, express or implied. It shall be the responsibility of the Director of the Partlow State School (with the assistance of employees or officials designated by him) to provide the resident with complete information concerning the nature and consequences of sterilization, to assist the resident in comprehending such information, and to identify any barriers to such comprehension. 4. The Director shall prepare a report evaluating the resident’s understanding of the proposed sterilization and describing the steps taken to inform the resident of the nature and consequences of sterilization. If the resident has been determined by a court of competent jurisdiction to be legally incompetent, or if the Director cannot certify without reservation that the resident understands the nature and consequences of sterilization, the sterilization shall not be performed unless (a) the Director sets forth reasonable grounds for believing that such sterilization is in the best interest of the resident; (b) the Review Committee described below approves such sterilization; and (c) it is determined by a court of competent jurisdiction that such sterilization is in the best interest of the resident. 5. No sterilization shall be performed without the prior approval of a Review Committee formed in accordance with this paragraph. The Review Committee shall consist of five members, and shall be selected by the Partlow Human Rights Committee and approved by the Court. The members shall be so selected that the Committee will be competent to deal with the medical, legal, social, and ethical issues involved in sterilization; to this end, at least one member shall be a licensed physician, at least one shall be a licensed attorney, at least two shall be women, at least two shall be minority group members, and at least one shall be a resident of the Partlow State School (the foregoing categories are not mutually exclusive). No member shall be an officer, employee, or agent of the Partlow State School, nor may any member be otherwise involved in the proposed sterilization. Any fees or costs incurred by reason of services performed by the Review Committee, including reasonable fees for the physician and the attorney, shall be paid by the Alabama Department of Mental Health upon a certification of reasonableness by the Partlow Human Rights Committee. 6. Prior to approving the proposed sterilization of any resident, the Review Committee shall: (a) Review appropriate medical, social, and psychological information concerning the resident, including the report of the Director prepared pursuant to paragraph 4; (b) Interview the resident to be sterilized;Google Scholar
  50. 36a.
    (c) Interview concerned individuals, relatives, and others who in its judgment will contribute pertinent information; (d) Determine whether the resident has given his or her informed consent to the sterilization, or, if the resident is legally incompetent or the Director cannot certify without reservation that the resident understands the nature and consequences of sterilization, whether the resident has formed, without coercion, a genuine desire to be sterilized. In making such determination, the Review Committee shall take into consideration, inter alia, the report prepared by the Director pursuant to paragraph 4 and the interview required by paragraph 6(b). (e) Determine whether the proposed sterilization is in the best interest of the resident. If the Review Committee does not reach an affirmative determination as to the matters set forth in paragraphs 6(d) and (e), it shall not approve the proposed sterilization. Any doubts as to such matters shall be resolved against proceeding with sterilization. 7. Residents shall be represented throughout all the procedures described above by legal counsel appointed by the Review Committee from a list of such counsel drawn up by the Partlow Human Rights Committee and approved by the Court. Such counsel shall, inter alia, ensure that all considerations militating against the proposed sterilization have been adequately explored and resolved. No such counsel shall be an officer, employee, or agent of the Partlow State School, or agent of the Partlow State School, nor may such counsel be otherwise involved in the proposed sterilization. 8. The Review Committee shall maintain written records of its determinations and the reasons therefor, with supporting documentation. Such records shall be available for examination by the Partlow Human Rights Committee, the Court, and counsel of record in this cause. The Review Committee shall report in writing at least monthly to the Human Rights Committee, the Court, and counsel of record in this cause as to the number and nature of sterilizations approved and disapproved the procedures employed in approving or disapproving such sterilizations, the reasons for determining that such sterilizations were in the best interest of the residents involved, the number and nature of proposed sterilizations referred to courts of competent jurisdiction, and all other relevant information. The identity of residents sterilized or to be sterilized shall not be disclosed in such reports. 9. There shall be no coercion in any form with regard to sterilization of any resident. Consent to sterilization shall not be made a condition for receiving any form of public assistance, nor may it be a prerequisite for any other health or social service, or for admission to or release from the Partlow State School. Any individual having knowledge of coercion of any resident with regard to sterilization shall immediately bring such matter to the attention of the Partlow Human Rights Committee, the Court, or counsel of record in this cause. It is further ordered that the defendants, their agents, employees and those acting in concert with them be and each is hereby enjoined from failing to implement the standards hereinabove set out for the sterilization of mentally retarded residents of the Alabama retardation facilities.Google Scholar
  51. 37.
    368 F. Supp. 1382 (M.D. Ala. 1973).Google Scholar
  52. 38.
    Supra note 35, at 1384.Google Scholar
  53. 39.
    The courts have begun to accept the concept that bodily intrusions upon mentally handicapped persons must not occur without the person’s consent. See, e.g., Kaimowitz vs. Michigan Department of Mental Health, No. 73–19434-AW (Cir. Ct. Wayne County, Mich., July 10, 1973) (psychotherapy not permissible if mentally ill adult lacked ability to understand the nature and consequences of the therapy), cited in Burgdorf, supra note 31, at 1019, comparing In re Cavitt, 182 Neb. 712, 157 N.W.2d 171, “. . . in the years between 1940 and 1970, Cavitt is the only decision relying on Buck v. Bell to uphold the constitutionality of an involuntary sterilization statute.” Id. at 1016.Google Scholar
  54. 40.
    North Carolina Association for Retarded Children vs. North Carolina, 420 F. Supp. 45, (M.D. N.C. 1976); for a lengthy discussion of the case, see, Burgdorf, supra note 31, at 1025–33.Google Scholar
  55. 41.
    372 F. Supp. 1197 (D.D.C. 1974), aff’d 565 F.2d 722 (D.C. Cir. 1977).Google Scholar
  56. 42.
    Programs funded by the Public Health Service, Title V of the Social Security Act, §505(aX8) of the Act, 42 U.S.C. 705(aX8); The Medicaid Program (medical assistance) under Title XIX of the Social Security Act, 42 U.S.C. §§1396, et seq.; §§1902(aX13) and 1905(aX4Xc) of the Act, 42 U.S.C. §§1396a(aX13) and 1396d(4Xc); Title XX (Social Services Program) of the Social Security Act, 42 U.S.C. §1397(aX1) and Title IV-A of the Act (Aid to Families with Dependent Children).Google Scholar
  57. 43.
    42 C.F.R. §§50.202, 50.203(b), 50.206; 441.253(b), 441.254.Google Scholar
  58. 44.
    42 C.F.R. §§50.202, 50.206, 441.254.Google Scholar
  59. 45.
    42 C.F.R. §§50.203a, 441.253.Google Scholar
  60. 46.
    42 C.F.R. §§60.203(c), 441.253(c).Google Scholar
  61. 47.
    See Eisenstadt vs. Baird, 405 U.S. 438, 453 (1972); cf. Roe vs. Wade, 410 U.S. 113(1973). 1 Legal histories of eugenic sterilization in the United States include J. Landman, The History of Human Sterilization in the United States — Theory, Statute, Adjudication, 23 ILL L. REV. 463 (1929) (cases and statutes until 1929);Google Scholar
  62. 47a.
    O’Hara & Sanks, Eugenic Sterilization, 45 GEO. L J. 30 (1956);Google Scholar
  63. 47b.
    Burgdorf and Burgdorf, The Wicked Witch is Almost DeadBuck vs., Bell and The Sterilization of Handicapped Persons, 50 TEMP. L. Q. 995 (1977); Note, Sterilization, Retardation, and Parental Authority, 2 B.Y.U. L. REV. 38 (1978). Recent abortion law histories include Dellapenna, History of Abortion: Technology, Morality and Law, 40 U. PITT. L. REV. 359 (1979)Google Scholar
  64. 47c.
    and F. Susman, Recent Developments in Women’s Rights: A Symposium, 22 ST. LOUIS U. L. J. 566 (1979).Google Scholar
  65. 47d.
    2 274 U.S. 200 (1927). For discussions on the implications of Buck vs. Bell, see articles in note 1, id., as well as F. Lindman and D. Mclntyre, The Mentally Disabled and the Law (1961);Google Scholar
  66. 47e.
    Paul, State Eugenic Sterilization History: A Brief Overview in EUGENIC STERILIZATION (Robitscher ed. 1973)Google Scholar
  67. 47f.
    and Gest, Eugenic Sterilization, Justice Holmes vs. Natural Law, 23 TEM. L. Q. 306 (1950). 3 316 U.S. 535 (1942); O’Hara and Sanks, supra note 1, at 36. 4 381 U.S. 479 (1965). 5 410 U.S. 113(1973). 6 See Review of State Statutes, supra. 7 See. e.g., Pennsylvania Association for Retarded Children vs. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971); Mills vs. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972); Frederick L. vs. Thomas, 419 F. Supp. 960 (E.D. Pa. 1976), aff’d, 557 F.2d 373 (3rd Cir. 1977); and Armstrong vs. Kline, 476 F. Supp. 583 (E.D. Pa. 1979), and cases and materials cited at n. 1, Introduction, supra. 8 Halderman vs. Pennhurst State School and Hospital, 446 F. Supp. 1295 (E.D. Pa. 1977), aff’d in part Nos. 78–1490, 78–1564, 78–1602 (3rd Cir. 19/9); and cases and materials cited at Notes 2 and 3, Introduction, supra. 9 Wyatt vs. Aderholt, 368 F. Supp. 1383 (M.D. ALa. 1973). 10 42 C.F.R. §§50.201, et seq. See generally, 43 Fed. Reg. 52146(1978). 11 29 U.S.C. §794; 45 C.F.R. §84.3(j) (1979) 12 42 U.S.C. §§6000, et seq. 13 42 U.S.C. §60001. 14 See generally materials cited in note 2, supra. Google Scholar
  68. 47g.
    344 F. Supp. 373 (M.D. Ala. 1972); 344 F. Supp. 387 (M.D. Ala. 1972), enforcing 325 S. Supp. 781 (M.D. Ala. 1971), affirmed in relevant part, and decision reversed in part, Wyatt vs. Aderholt, 503 F.2d 1305 (5th Cir. 1974); see also cases and materials cited in Notes 2 and 3, Introduction, supra. For a general discussion of early institutionalization cases and problems with enforcement, see generally, President’s Committee on Mental Retardation, THE MENTALLY RETARDED CITIZEN AND THE LAW (Kindred ed., 1978) andGoogle Scholar
  69. 47h.
    Lottman, Enforcement of Judicial Decrees: Now Comes the Hard Part, 1 M.D. L.R. 69 (1976).Google Scholar
  70. 16.
    See, e.g., Ruby vs. Massey, 452 F. Supp. 361 (D. Conn. 1978); North Carolina Association for Retarded Citizens vs. North Carolina, 420 F. Supp. 451 (M.D. N.C. 1976); In re Moore, 289 N.C. 95 (1976); and, Wyatt, supra, at note 15.Google Scholar
  71. 17.
    See generally, AMERICAN ASSOCIATION ON MENTAL DEFICIENCY (AAMD) CONSENT HANDBOOK, Special Publication No. 3 (1977); Wyatt, supra note 7 at 1384; Canterbury vs. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972), cert. den. 409 U.S. 1064 (1972).Google Scholar
  72. 18.
    AAMD, id., at 6–10.Google Scholar
  73. 19.
    Id., at 10–11, 75–80.Google Scholar
  74. 20.
    See Skinner, supra note 2.Google Scholar
  75. 21.
    See generally, Introduction to the model act and cases and materials cited therein.Google Scholar
  76. 22.
    See, e.g. Relf vs. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974), 403 F. Supp. 1235 (D.D.C. 1975), vacated as moot 565 F.2d 722 (D.D.C. 1977).Google Scholar
  77. 23.
    See, e.g., Wald, The Legal Rights of People with Mental Disabilities in the Community: A Plea for Laissez Faire, in LEGAL RIGHTS OF THE MENTALLY HANDICAPPED, 1035 (Practicing Law Institute, 1973)Google Scholar
  78. 23a.
    and cases cited therein; and M. Burgdorf, Marital and Family Rights, in LEGAL RIGHTS OF MENTALLY DISABLED PERSON (Practicing Law Institute 1979) and cases and materials cited therein.Google Scholar
  79. 24.
    Wyatt, supra note 9, at 1384, et seq. 25 42 C.F.R. 50.203(a)(i) cf. 42 C.F.R. 441.253(a). 26 42 C.F.R. 50.203(i) cf. 42 C.F.R. 441.256(b), (c). 27 Wyatt, supra note 9.Google Scholar
  80. 28.
    See cases cited in footnote 16, supra. 29 Supra note 9, at 1384–6.Google Scholar
  81. 30.
    42 C.F.R. §50.206; for regulatory history, see 43 Fed. Reg. 52156(1978).Google Scholar
  82. 31.
    Supra note 9.Google Scholar
  83. 32.
    F. Supp. 752 (E.D. N.Y. 1973); NYSARC and Parisi vs. Carey, No. 72-C-356/357 (E.D. N.Y. April 30, 1975), approved 393 F. Supp. 715 (E.D. N.Y. 1975).Google Scholar
  84. 33.
    Supra note 8.Google Scholar
  85. 34.
    Wyatt, supra note 9.Google Scholar
  86. 35.
    Requirements for court proceedings in this area are described in Position Paper of the American Association on Mental Deficiency, Washington, D.C. (1975); Comer, Sterilization of Mental Defectives: Compulsion and Consent, 27 BAYLOR L. REV. 174 (1973) as well as in Wyatt, supra note 9, and NCARC, supra note 16.Google Scholar
  87. 36.
    42 C.F.R. §§50.204–205; cf., 42 C.F.R. §§441.257–258.Google Scholar
  88. 37.
    43 Fed. Reg. 52146 (1978), n. 1.Google Scholar
  89. 38.
    Id., p. 52147, n. 2.Google Scholar
  90. 39.
    Notes 17 and 18, supra. Google Scholar
  91. 40.
    See, supra note 36.Google Scholar
  92. 41.
    Id., see also, 43 Fed. Reg. 52158–9.Google Scholar
  93. 42.
    42 C.F.R. §§50.204(b); 50.205(c).Google Scholar
  94. 43.
    See, e.g., LaVeck and de la Cruz, Contraception for the Mentally Retarded: Current Methods and Future Prospects, HUMAN SEXUALITY AND THE MENTALLY RETARDED (1973).Google Scholar
  95. 44.
    42 C.F.R. §50.204(e).Google Scholar
  96. 45.
    20 U.S.C. 1232g; 45 C.F.R. Part 99. 46 45 C.F.R. §§121a.560, et seq. 47 5 U.S.C. §552.Google Scholar

Copyright information

© Springer Science+Business Media New York 1982

Authors and Affiliations

  • Bruce Dennis Sales
    • 1
  • D. Matthew Powell
    • 1
  • Richard Van Duizend
    • 1
  1. 1.Developmental Disabilities State Legislative Project of the American Bar Association’sCommission on the Mentally DisabledUSA

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