In Utah, it is legal to forcibly sterilize a person with a disability. And that fact may surprise some people, a University of Utah professor said.
“I think most people just assumed, ‘Hey, this is something that sort of disappeared in the ‘30s and ‘40s when people stopped proudly declaring that they were eugenicists,” said James Tabery, who has studied this topic in the Beehive State. “But it turns out that that’s not the case.”
The law on Utah’s books today looks vastly different, but it “is sort of the descendant” of earlier versions from the state’s eugenics history, Tabery said.
And while the U.S. Supreme Court recently struck down the 1973 landmark abortion case Roe v. Wade, the justices have never overturned Buck v. Bell, an earlier case that allows these sterilization laws to still be in place in Utah and 30 other states, plus Washington D.C., according to a report from the National Women’s Law Center released earlier this year.
“We, as a country right now, are trying to figure out what bodies we can control from a government perspective, and how far that control goes,” said Eliza Stauffer, who previously worked with Salt Lake City’s Disability Law Center and was crowned Miss Wheelchair America in 2017. (Stauffer said she was speaking personally and not on behalf of any organization.)
“I am of the strong opinion,” she said, “that I am the owner of my body and I get to make the decisions.” But “I know that depending on where I live,” Stauffer said, “I legally have less rights to my body” than “my able-bodied male spouse.”
Since the start of 2017, there have been about 11 cases, involving 10 people, where sterilization requests have been made under Utah’s law, according to Tania Mashburn, spokesperson for the state courts.
Most of the information from those cases is private, she said, because “they deal with disabled and protected persons, and are usually filed under a guardianship case.” But Mashburn said that of those 11 cases, nine requests were granted. One was denied and was later refiled and granted. And another “was dismissed for lack of action,” she said, meaning “they never reached a final resolution or order.”
Nate Crippes, of the Disability Law Center, said he wasn’t aware of these numbers. But, he added, “if it’s something that is happening with any regularity, it’s certainly concerning.”
Stauffer said she thinks that Utah should get rid of its sterilization law.
“It is so important to pay attention to the treatment of populations that are considered vulnerable or in the minority or just less heard of, because those can be a real indicator of intent for later,” she said. “A lot of these things are on the books because people haven’t paid attention or haven’t fixed it. But injustice there makes it far more likely that injustice can spread.”
How the law works
Greg Misener, a Bountiful attorney, said he’s had families ask him about Utah’s sterilization law “on a semi-regular basis” in his roughly 15 years of practice.
“I know a lot of parents have concerns about their special needs child primarily being taken advantage of, sexually abused and becoming pregnant that way,” he said.
Misener said he tells his clients, though, that even if there is a guardianship in place, there has to be “a special order from the court to get a sterilization,” and “you have to have a medical reason to do it” beyond just, “We think it’s a bad idea if she gets pregnant.”
For instance, “I’ve had kids in my office that function at the level of an 18-month-old,” Misener said. “… And when that 18-month-old physically matures, they don’t know what a period is. They don’t understand why they’re cramping and uncomfortable, and that just can freak them out and cause an immense amount of physical and psychological trauma.”
Utah’s law says that a “parent, spouse, guardian, custodian or other interested party” can file a petition with the courts asking that a disabled person be sterilized.
If that person is not able to give informed consent, a court has to consider a list of factors before making a decision, according to the law, including that person’s “mental impairment”; whether they understand reproduction and contraception; their “capability for procreation”; “the potentially injurious physical and psychological effects from sterilization, pregnancy, childbirth, and parenthood”; alternative methods of birth control; the likelihood they “will engage in sexual activity or could be sexually abused or exploited”; and how likely it is that they “could adequately care and provide for a child”; among others.
A hearing is held, where a judge may hear medical or psychological evaluations. The person who would be sterilized is questioned. An attorney is also appointed to act as a guardian ad litem, “to defend the rights and interests” of that person.
If someone says she doesn’t want to be sterilized, the court will deny the petition, the law states, “unless the petitioner proves beyond a reasonable doubt that the person will suffer serious physical or psychological injury if the petition is denied.”
Typically, a judge makes the decision, but the law says cases can also be heard by a jury. Either way, the rulings can be appealed.
“The decision regarding sterilization shall be in the best interest of the person to be sterilized,” according to Utah law.
While he couldn’t discuss specifics, Misener said he’s been involved in two of these types of cases: once where he helped the person filing the petition, and once where he served as a guardian ad litem. In both situations, Misener said he thought the request “definitely seemed to be appropriate.”
These cases are rare, according to Isaac Macfarlane, an Ogden attorney. In his dozen years of practicing family law, Macfarlane said he’s filed one sterilization petition.
It’s a “touchy subject,” he said, given the history of sterilizations and “horror stories” from its widespread use by Nazis before and during the Holocaust. But in the case he was involved with, Macfarlane said, he thought the process focused on protecting the disabled person’s rights, while providing oversight.
Focus on women and girls
When families have asked him about sterilization, Misener, said it has “always been about female contraception and concerns.”
“I haven’t had a parent of … a disabled boy come to me and say, ‘You know, ‘I’d like to get my son sterilized,’” he said, “which is kind of interesting.”
According to the National Women’s Law Center’s report, “forced sterilization happens mostly to people who can get pregnant and have periods.”
Going back to the eugenics era, Tabery said, one of the justifications often offered was that, “Well, these women have these intellectual disabilities. They’re at risk of being raped or sexually assaulted, and then becoming pregnant.” Sterilization was offered as a way to protect them from that, Tabery said.
“I thought that was an awful justification back then,” Tabery said, “and I think, actually, that remains a really bad justification to this day.”
“If you’ve got a scenario where women are at risk of being raped or sexually assaulted,” he said, “the solution to that scenario is creating the safeguards and [putting the] criminal justice implementation in place so that they’re not sexually assaulted or raped — not so that they don’t get pregnant if it happens.”
Over 80% of women with disabilities have been sexually assaulted, and 50% of those women have been assaulted more than 10 times, according to a YWCA report. In 2019, there were national headlines about a Arizona woman who was in a persistent incapacitated state at a health care facility when she unexpectedly gave birth. A nurse was charged with sexual assault in the case.
“To remove choice around your body is just one more act of violence towards women with disabilities,” Stauffer said. “Any time that somebody is doing something to your body that you have not consented to, that is violence.”
Over the years, there’s been a realization that these sterilization cases “should be very, very rare, at best,” Tabery said. “And if it’s going to happen, you need to have very good reasons and feel like there’s no other solution.”
“… So if putting a patient on birth control gets around a problem, then you do that because that’s not sterilization,” he said. “If you … protect these people so that they’re not at risk of getting sexually assaulted, that’s better than sterilizing them.”
Hundreds sterilized in Utah
To fully understand how Utah got the law it has today, you have to look at history, Tabery said.
In the early 20th century, during the peak of sterilizations under eugenics laws in the United States, “there was this sense that people deemed unfit were outbreeding people deemed fit,” Tabery said. “In hindsight, we can see that these concepts of who was fit and who was unfit were very much classist, racist, nativist. People who were poor, who had intellectual disabilities, who came from other countries were the group that got sort of classified as unfit.”
Meanwhile, “middle class, white folk were the people that got classified as fit,” he said.
Indiana was the first state that implemented a sterilization law. Utah followed in 1925, with “an act to prevent the procreation of habitual sexual criminals, idiots, epileptics, imbeciles and insane,” legislative records show.
Two years later, in Buck v. Bell, the U.S. Supreme Court ruled “that eugenic sterilizations were perfectly constitutional,” Tabery said.
The case involved a woman in Virginia named Carrie Buck, who was in an institution that wanted to test the constitutionality of these sterilization laws. So, they manufactured a case to go to the highest court, according to Matthew Wappett, director of the Institute for Disability Research Policy and Practice at Utah State University.
In an 8-1 decision, Chief Justice Oliver Wendell Holmes wrote, “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.”
After the ruling, Tabery said, “sterilizations just kind of explode across the country.”
In 1927, a Utah corrections board ruled that Esau Walton, a Black man who was “an accused ‘homosexual,’” should be sterilized, according to an article from the state archives published last year. Walton — who “had only completed a fourth grade education” — appealed. The court ruled that while forced sterilization was constitutional, “in Esau Walton’s case, sterilization would not affect any supposed condition,” according to the article.
There were 772 people who were forcibly sterilized in Utah by 1963, the article states. But unlike Walton, “very few sterilization victims ever had their cases reviewed or disputed.”
‘It’s at least worth talking about’
While the ideas that fueled eugenics were discredited, “a handful of states” still had sterilization laws in place into the 1960s and ‘70s, Tabery said — including Utah. The justifications for these laws changed, though, he said.
“Now, rather than saying we’re going to sterilize you because we don’t want you to pass this on to your children, they said we’re going to sterilize you because we don’t think you’re going to be fit parents,” according to Tabery.
Public support for these sterilization laws continued to decline over time. Still, Tabery said, there was a sense “that there might be some sort of rare cases where we think sterilization might still be appropriate.”
In 1988, “meaningful and remarkable changes” came, when “informed consent” was added to the process, according to a 2013 article in the Utah Historical Review.
But Utah’s law has largely been left untouched since then. In 2011, the Legislature passed a bill that replaced “outdated terms relating to persons with a disability” in the definitions portion of the law, but there haven’t been any major changes since.
If state lawmakers haven’t looked into this topic in over 30 years, “I think it’s at least worth talking about, discussing what we can do to make sure that people with disabilities lead independent and self-directed lives,” said Crippes, of the Disability Law Center.
“I think there’s a certain view of people with disabilities by a lot of folks that they need protection,” according to Crippes. This comes into play with this sterilization law, he said, and with guardianship laws.
“Obviously, the law is not perfect,” Crippes said. “… We just wouldn’t want to see anyone forced into such a situation.”
So, will this law ever be changed or removed in Utah? It’s complicated, according to Wappett.
“For many of us who are more on the advocacy side,” he said, “we feel like, yes, an individual should have the ability to make informed choices on their own. … Everybody should have a right to have a relationship and to have a family and to enjoy what it means to be a human.”
At the same time, there are a lot of parents and other advocates “who feel like they want to protect their children … and they want to make sure they’re not abused or taken advantage of.”
Wappett points to the Ashley X case from the early 2000s, when the parents of a severely disabled child in Washington asked doctors to do a hysterectomy and other medical procedures that would stop her growth.
“It ended up being a huge bioethical issue,” he said, “and it continues to be a very hot topic of debate in the disability community.”
For Tabery, there are two questions people should consider with Utah’s sterilization law.
“One is, do we want to be the kind of society that has a law like that on the books?” he said. And second, how is the law being used? For instance, what type of cases are deemed appropriate?
“Most people don’t think about disability until it makes a splashy headline,” Stauffer said, “or until it impacts them or a family member directly.”
But everyone could become disabled at some point, she said, whether they are born into it, get injured, have long COVID-19 or they age, and this law affects them, too.
“I know that I have, at least visibly, not much representation in any of our government, locally. I don’t see people with disabilities as legislators,” she said. “And so I am unsurprised that they continue to make laws that impact me personally without talking to the community or having a representative at those decision-making tables.”
“…So, of course, there are going to be ableist laws on the books,” Stauffer said.
This content was originally published here.