by Adam Cohen
If Carrie had taken the witness stand, she could also have challenged another critical part of the colony’s case: that sterilization was in her own best interest, something the Virginia sterilization law required the colony to prove. Carrie could have put on the record something she would speak about later in life: how much she wanted to have children. Without her testifying, it was impossible to know whether Carrie even understood that she was in danger of being sterilized. Years later, she would say she had never been told.
There were also many respected academics and medical practitioners Whitehead could have called as expert witnesses. J. E. Wallace Wallin—the St. Louis psychologist who had described the Binet-Simon test’s unreliability when he administered it to a group of Iowa farmers—was writing about how intelligence testing was being misused to label people as mentally deficient. He told of a superintendent of a state institution who labeled a boy feebleminded based on the Binet-Simon. The boy was released and became a top student in his preparatory school class, then went on to college. Wallin wondered how many “non-feeble-minded children” were wasting away in institutions to which they had been erroneously consigned.
In addition to authorities like Wallin who could have challenged the reliability of intelligence testing in general, Whitehead could have had an expert examine the tests given to Carrie and her family. He could have evaluated whether her answers to questions like what to do when “Playmate hits you” were so deficient as to label her a “Middle grade Moron.” An expert could also have reviewed the basis for Estabrook’s and Wilhelm’s opinion that young Vivian was mentally deficient. He could also have administered his own intelligence tests.
Expert witnesses could also have challenged the spurious hereditary science that the colony’s case relied on. Dr. DeJarnette and Laughlin insisted that conditions like feeblemindedness were distinct traits that were inherited according to Mendelian principles—and that anyone who had them was the “probable parent” of a child who was similarly afflicted. There were scientists at the time who knew this claim to be false, including Laughlin’s own boss.
Charles Davenport considered feeblemindedness to be a “lumber room” of different mental defects, all inherited separately. He understood that it was not a single trait, or “unit character,” that was inherited according to Mendelian principles. Davenport had testified to this as an expert witness in a case challenging New York’s eugenic sterilization law, in which he argued that feeblemindedness was “a social term,” not a medical one. Whitehead could have introduced evidence on this point—perhaps even testimony from Davenport—to undermine the colony’s claim that feeblemindedness was inherited directly from parents.
There was another problem with the colony’s science: it relied on the eugenicists’ claim that if every feebleminded person were sterilized feeblemindedness could be wiped out. This was an argument Laughlin had long been making. In his 1914 American Breeders’ Association report, he had said it was possible “to sterilize wholesale those individuals thought to carry defective hereditary traits, and thus at one fell stroke cut off practically all of the cacogenic varieties of the race.” Laughlin repeated the claim in his interrogatory answers. One of the pieces of expert writing he included, “Sterilization of Mental Defectives” by Dr. R. A. Gibbons, insisted that through sterilization of people who gave evidence of being defective “we can get rid of this class, the mentally deficient.”
The science was questionable, however. By the time of the trial, geneticists had already discovered that inherited traits cannot be removed from the population so easily. Even if feeblemindedness were a unit character, sterilizing every feebleminded person would not eliminate feeblemindedness. Most of the genes for “mental defects,” geneticists understood, “would be hidden in apparently normal carriers.” The reality was “even if the ‘mentally deficient’ did not reproduce, the frequency of mental deficiency in the population would decrease only slightly, if at all.” Whitehead could have found experts to testify that even if Laughlin and Dr. Priddy had been able to turn state hospitals into “clearing houses,” sterilizing the feebleminded and then releasing them, the effect would have been limited.
There were more eugenic assumptions Whitehead could have challenged, including the often-repeated claim that the feebleminded were a menace to society, a crucial justification for eugenic sterilization. Carl Murchison, a psychologist at Clark University, was doing extensive research on criminals and finding that they had high intelligence levels, casting doubt on the claim that feeblemindedness and criminality were inextricably linked. Even Henry Goddard, the champion of Binet-Simon testing, who had done so much to demonize the feebleminded, had revised his thinking. Goddard now believed that it was a mistake to view all feebleminded people as a threat to the national gene pool. “I am willing to say,” he declared, “that if we educate properly” the mentally defective “we may very safely neglect this question of eugenics and marriage for a large proportion of them.”
Whitehead’s failure to put on a case would have an impact that went beyond the circuit court’s ruling. If Buck v. Priddy was appealed, the judges who considered it would have to rely on the legal record that Strode and Whitehead created at trial. If the eugenicists won in a higher court, perhaps even in the United States Supreme Court, the foundation for their victory would have been laid by the very one-sided proceeding that had just concluded in Amherst County.
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Now all that remained was to wait for Judge Gordon’s decision. Dr. Priddy and Strode were both optimistic, and they believed the judge had already foreshadowed how he would rule. In a letter reimbursing Wilhelm for trial expenses, Dr. Priddy said he was “well satisfied with the way in which we presented our case.” He added that there was a good chance Judge Gordon would rule in the colony’s favor “if his views expressed at the close of the case that evening, are not changed.” Strode’s assessment was similar. On December 11, he wrote to Estabrook that the judge had said in open court that week that he had not yet had a chance to prepare his opinion, but “intimated that he would probably decide it in our favor.”
With the trial behind him, Strode returned to his legal practice. Over the summer, the Virginia Law Review had invited him to write an article, and Strode had proposed two possible subjects: “Indemnity to Bail” or “Enforced Sterilization of Defectives,” in that order. It could be interpreted as another sign of Strode’s lack of enthusiasm for eugenic sterilization that, in the midst of a historic case, his first suggestion for a legal subject he wanted to write about was “indemnity to bail.” Strode ended up writing about sterilization—a topic that was, the editor in chief told him, “such a popular one that, I am certain, it will please our readers.” In late November, Strode submitted his draft of an article titled “Sterilization of Defectives.” He told the law review it should use it “as you think proper.”
Dr. Priddy was in poor health before the trial began. In a November 2 letter, he had indicated he was not well enough to travel from the colony to Lynchburg to meet Strode to discuss the case. He was only going to town, he said, for X-rays and hospital visits. In the months after the trial, Dr. Priddy’s health declined further. When he wrote to Whitehead in mid-December to send him a $250 check for his work representing Carrie, Dr. Priddy told his old friend, “I still continue very unwell.” He had had a “little spell of coughing” a few days earlier, he said, and “as a result of it, one of my vocal chords has since then refused to work.” Dr. Priddy said he would be traveling to Philadelphia in a few days for medical treatment.
The decline in Dr. Priddy’s health continued. On January 13, 1925, he succumbed to Hodgkin’s disease. After all of his work in getting a eugenic sterilization law enacted, constructing a test case, and arguing for the law in court, Dr. Priddy died without knowing if his law would be upheld.
Strode was traveling and returned too late to attend the funeral. In a memorial tribute for the colony’s boar
d, Strode noted that Dr. Priddy had continued serving as superintendent—and, he might have added, kept working on the eugenic sterilization test case—“undeterred,” even as his health was fading. In particular, Strode lauded his old friend and collaborator for his years of kindness toward the mentally ill. Dr. Priddy “took a profound personal and humanitarian interest” in “amelioration of the condition of these most afflicted of God’s creatures,” Strode wrote.
Dr. Priddy would be remembered in the annals of Virginia medicine as both an institution builder and a champion of Virginia’s feebleminded. Even after his friends and colleagues had faded from the scene, his reputation endured. Dr. Priddy did “exceedingly well in creating the foundation for a sound program of care and treatment for his patients,” a history of the colony written in 1960 noted. His era was, the history said, one devoted to “humane custodial care.”
In early February 1925, just weeks after Dr. Priddy’s death, the Amherst County Circuit Court issued a decision upholding the eugenic sterilization statute and affirming the colony board’s order that Carrie be sterilized. The law was a valid and constitutional enactment, Judge Gordon ruled. And Carrie was an appropriate subject of the law, he said, as someone who was both feebleminded and the probable potential parent of socially inadequate offspring. The court stayed its ruling to allow Robert Shelton, Carrie’s appointed guardian, to appeal on Carrie’s behalf.
With Dr. Priddy’s death, a new defendant had to be added to the case. Strode wrote to Dr. John Bell, who was to succeed Dr. Priddy as superintendent, asking if he would take his predecessor’s place. Dr. Bell signed on immediately. “It is agreeable with me,” he wrote Strode, adding that he was “in entire sympathy with the effort being made to reach a final conclusion as to the legality of this sterilization procedure.” New court papers were drawn up and, when the Amherst County Circuit Court formally approved the request on April 13, the case took on the name Buck v. Bell.
Dr. Bell’s background was in many ways similar to Dr. Priddy’s. A native Virginian, Dr. Bell had practiced medicine in private practice before joining the state hospital system. He spent a year as an assistant physician to Dr. DeJarnette at the Western Lunatic Asylum, and then transferred to the colony, where he effectively acted as Dr. Priddy’s deputy.
After Dr. Bell took over Dr. Priddy’s position at the colony and his status as defendant in the case, he also assumed his role as one of Virginia’s most outspoken sterilization advocates. Dr. Bell brought a fresh enthusiasm to the cause, and his apocalyptic vision went beyond anything Dr. Priddy had expressed. In “The Protoplasmic Blight,” an address to the Medical Society of Virginia, Dr. Bell warned of “a world peopled by a race of degenerates and defectives, a world gone topsy-turvy, and sunk into the slough of despond, the great edifices of our present civilization . . . falling in decay.” As Dr. Bell saw it, eugenic sterilization was necessary to save humanity from the abyss.
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On June 1, 1925, Whitehead filed a Petition for Appeal to the Virginia Supreme Court of Appeals, as the Virginia Supreme Court was then known. There would be no further evidentiary hearings or witnesses—the appeal would be evaluated entirely on the legal papers submitted by the two sides. The Petition for Appeal served as an opening legal brief, and in it Whitehead summarized the case so far and made his main legal arguments to Virginia’s highest court.
Whitehead insisted that the Amherst County Circuit Court had “erred in its judgment and order,” and he raised three constitutional objections: that the sterilization order against his client violated the due process clause of the Fourteenth Amendment; that it violated the equal protection clause of the Fourteenth Amendment; and that it imposed cruel and unusual punishment in violation of the Eighth Amendment. Whitehead’s comprehensiveness in asserting Carrie’s constitutional rights may have had an ulterior motive. For the test case to fulfill its purpose of affirming the constitutionality of Virginia’s eugenic sterilization law, the main constitutional challenges would have to be raised and then rejected by the Virginia Supreme Court of Appeals.
Whitehead wrote that “for the purposes of this petition it is not deemed necessary to go into all of these matters at length,” and he was true to his word. His petition was just eight pages long, and the arguments he offered up for his constitutional challenges were superficial. In the case of the equal protection claim, Whiteside accurately explained the weakness of the law. It applied only to inmates of state hospitals, which created two classes of “defective” people in Virginia: inmates like Carrie, who were eligible for sterilization, and people who had not been committed to hospitals, who could not be sterilized. Whitehead held back, however, in providing legal support for this claim. He cited one major case in which a state court struck down a eugenic sterilization law for violating equal protection—a 1913 ruling by the New Jersey Supreme Court. Whitehead failed, however, to cite cases in two other states, New York and Michigan, in which the courts had struck down sterilization laws on equal protection grounds.
The Petition for Appeal did not offer legal arguments in support of the two other constitutional challenges it raised, due process and cruel and unusual punishment. There was a case to be made for why the Virginia law, and the hearing Carrie was given, violated due process, but Whitehead did not make it. To support the cruel and unusual punishment claim, Whitehead could have cited federal district court rulings from Iowa and Nevada that struck down sterilization laws. These precedents would have been of limited value—the Iowa and Nevada laws that were struck down were criminal laws, not civil eugenics statutes like Virginia’s. But they would have offered at least some support for the cruel and unusual punishment argument.
Whitehead also submitted a legal brief to the Virginia Supreme Court of Appeals, but it was a paltry document. A mere five pages long, it focused entirely on whether the Virginia law and the sterilization order violated the due process clause of the Fourteenth Amendment. Whitehead argued that before the state could do something as significant as sterilize someone it had to provide a hearing with strong procedural protections, something he said Carrie’s did not have. In the scant space he devoted to the argument, he was not able to flesh out the argument. He also made some odd claims. One of his main due process objections was that at the trial Carrie had not had sufficient opportunity to confront the evidence against her or to challenge the conclusions of the state’s expert witnesses. There was no little irony in Whitehead’s objecting to these failings when he himself had made so little effort to cross-examine the witnesses against her, and no effort at all to put on evidence of his own.
Strode’s legal brief was a far more impressive document. In forty-four pages, Strode offered a comprehensive case for why the statute and the sterilization order against Carrie should be upheld. He recited the most damaging factual findings against Carrie—including that she was feebleminded and the mother of an illegitimate child, that Emma had a mental age of seven, and that Vivian was mentally defective. Strode summarized the expert witness testimony from trial, including Laughlin’s conclusion that Carrie’s family and personal history presented “a typical picture of a low grade moron.” The brief quoted Dr. Priddy, “an eminent p[sy]chiatrist and surgeon,” explaining why sterilization would be in the interest of both Carrie and of society.
Strode’s central legal argument was that the state’s “police power”—its authority to protect the health, safety, and welfare of its residents—gave it the right to adopt a program of eugenic sterilization. Strode compared compulsory sterilization to state laws requiring people to be vaccinated, and he cited a Supreme Court case from 1905, Jacobson v. Massachusetts, upholding one such law. He may have come across this analogy—and the Jacobson case—in Laughlin’s treatise Eugenical Sterilization in the United States, which Dr. Priddy had given him when he drafted the sterilization law. Laughlin argued in his book that eugenic sterilization was a “parallel case” to compulsory vaccination: “Vaccination pr
otects the individual and his associates from a serious and loathsome disease in the more immediate future” while “eugenical sterilization protects society from racial degeneracy in the more remote future.”
Strode went on to address each of the constitutional challenges Whitehead raised in the Petition for Appeal. He dispensed with the claim that the law violated the bar on cruel and unusual punishment by arguing that the sterilization order against Carrie was not a punishment. It was done, he said, for eugenic reasons, not because of any crime Carrie had committed. And since it was not punitive, the Eighth Amendment did not apply.
In response to Whitehead’s due process claim, Strode enumerated the various procedural protections in the Virginia law—protections he had put there himself when he drafted it. Given such provisions as the right to notice of a sterilization hearing and the right to be present, the right to an appointed guardian, and the right to appeal the hospital board’s decision to the circuit court, Strode insisted that “all the requirements of due process of law have been fully complied with.”
Strode also responded to Whitehead’s equal protection argument. Strode should have felt a personal responsibility for leaving the Virginia law vulnerable on this score. He had written the statute to apply only to state hospital inmates, which created two classes of “defectives” who were treated differently, despite the warning in Laughlin’s treatise that it would be a mistake to do so.
In his defense of the law, Strode argued that he had not in fact created two unequal classes. Invoking the “clearing house” model that Dr. Priddy and Laughlin spoke of so often, Strode insisted that “defective” people who were not inmates of a state hospital could be committed to one later and thereby become subject to sterilization. Because anyone in Virginia could at some time be a state hospital inmate, Strode insisted that the eugenic sterilization law was “part of a general plan applicable to all feeble-minded.”