The 1921 session of the Washington State Legislature is not considered one of its most admirable. Lawmakers that year bestowed the state’s official imprimatur on racism, xenophobia, and eugenics. Governor Louis Hart had a busy March 8, signing the Alien Land Bill and a second “Prevention of Procreation” statute. The former barred non-white immigrants from buying, owning, or leasing land in the state and mandated confiscation without compensation of any lands purchased before or after passage of the act; the latter enshrined negative eugenics (in contrast to the 1909 punitive sterilization law) in the statute books, where it would remain for 21 years.
The 1921 Prevention of Procreation Act was a nasty piece of work, and its nastiness was apparent in its opening section:
“It shall be and is hereby declared the duty of the superintendents of all state institutions having the care of individuals held in restraint to report quarterly to the institutional Board of Health, all feeble minded, insane, epileptic, habitual criminals, moral degenerates and sexual perverts, who are persons potential to producing offspring who, because of inheritance of inferior or anti-social traits, would probably become a social menace or wards of the State” (1921 Wash. Laws, ch. 53, sec. 1).
Section 2 of the act established a procedure to determine which persons should be subjected to forced sterilization:
“If in the judgment of a majority of the said Board procreation by any such person would produce children with an inherited tendency to feeble mindedness, insanity, epilepsy, criminality or degeneracy, and there is no probability that the condition of such person so examined will improve to such an extent as to render procreation by any such person advisable, or if the physical or mental condition of any such person will be substantially improved thereby, then it shall be the duty of said Board to make an order directing the superintendent of the institution in which such inmate is confined to perform or cause to be performed upon such inmate such a type of sterilization as may be deemed best by said Board” (1921 Wash. Laws, ch. 53, sec. 2).
The remainder of the statute established notice procedures and rights of appeal, and specifically stated that any sterilizations performed would be “for the betterment of the physical, mental, neural, or psychic condition of the inmate, or to protect society from the menace of procreation by said inmate, and not in any manner as a punitive measure …” (1921 Wash. Laws, ch. 53, sec. 3). The sincerity of this claim of non-punitive intent was badly undermined by the law’s Section 10:
“The criminals who shall come within the operation of this law shall be those who have been convicted three or more times of a felony and sentenced to serve in the penitentiary therefor [sic].
“Moral degenerates and sexual perverts are those who are addicted to the practice of sodomy or the crime against nature, or to other gross, bestial and perverted sexual habits and practices prohibited by statute” (1921 Wash. Laws, ch. 53, sec. 10).
Washington became the second state in the union to authorize forced sterilization, but unlike Indiana’s law, Washington’s was punitive rather than eugenic. Titled “Prevention of Procreation,” it was merely a single sentence:
“Whenever any person shall be adjudged guilty of carnal abuse of a female person under the age of ten years, or of rape, or shall be adjudged to be an habitual criminal, the court may, in addition to such other punishment or confinement as may be imposed, direct an operation to be performed upon such person, for the prevention of procreation” (1909 Wash. Laws ch. 249 sec. 35).
In 1912 the constitutionality of the statute was upheld unanimously by the Washington State Supreme Court in State v. Feilen, which rejected the claim that a forced vasectomy constituted cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution. This law remained on the books as recently as 2022, but it is unclear whether, or how often, it has been applied.
The 1909 legislature was not done, however, and another law passed in that session was clearly inspired by eugenic theory. It fell somewhere between the poles of negative and positive eugenics, and had considerable support within the Progressive Movement. The act was titled “Regulating Marriages,” but its sole purpose was to prohibit matrimony between men and women considered defective. The act’s opening section dictated that:
“No woman under the age of forty-five years, or man of any age, except he marry a woman over the age of forty-five years, either of whom is a common drunkard, habitual criminal, epileptic, imbecile, feeble minded person, idiot or insane person, or person who has theretofore been afflicted with hereditary insanity, or is afflicted with pulmonary tuberculosis in its advanced stages, or any contagious venereal disease, shall hereafter intermarry or marry any other person within this state” (1909 Wash. Laws, ch. 174, sec. 1).
The statute, which was passed by the state House of Representatives on February 17, 1921, and by the state Senate 16 days later, creates categories of “inmates of institutions maintained by the state” who may under the law be forcibly sterilized. The categories are broad, and include those suffering from physical conditions (e.g. “epileptics”), mental deficits (“the feeble-minded”), “habitual criminals,” “sexual perverts,” and “moral degenerates.” The one ability the targeted individuals have in common is “the potential to producing [sic] offspring” (1921 Wash. Laws ch. 53, sec. 1). This is not Washington’s first compulsory sterilization law, but it is the first to have an explicitly eugenic intent. Before the statute is ruled unconstitutional by the Washington State Supreme Court in 1941, the forced sterilization of 685 men and women will be documented. It is believed by scholars that the actual numbers are considerably higher.1
The Law in Practice
Nothing much changed for nearly a decade after enactment of Washington’s 1921 eugenics law. Only one person was forcibly sterilized in the year it passed, and by 1928 the victims numbered seven. In 1927 the U.S. Supreme Court, in what is today regarded as a lamentable decision, ruled that forced sterilization did not violate the equal protection under law guaranteed by the Constitution. The author of the opinion was the highly respected Oliver Wendell Holmes Jr. (1841-1931), widely viewed as a stalwart supporter of civil liberties. Nonetheless, he upheld the actions of the state of Virginia in seeking to subject a young white woman named Carrie Buck to a non-consensual tubal ligation, and he did so in terms that heartened proponents of negative eugenics everywhere:
“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [citation omitted] Three generations of imbeciles are enough” (Buck v. Bell, p. 4).
There was only one dissent, from a rather obscure justice, Pierce Butler (1866-1939), but he wrote no opinion to explain his reasoning.
Even with this endorsement from the highest court in the land, Washington state proceeded with caution. By the end of 1933 a total of 30 persons held in the state’s institutions had been forcibly sterilized. But thereafter, for a period of a little more than 10 years, the use of the procedure escalated dramatically. By 1938 an additional 263 men and women were subjected to the procedures, and between 1939 and 1941 an additonal 374 were so treated.
The record indicates that there were 18 more involuntary sterilization recorded before, in 1942, the statute was declared unconstitutional by the Washington State Supreme Court in In re Hendrickson. Citing the U.S. Supreme Court opinion in Buck v. Bell, the Washington court noted “it has been considered well settled that, so far as its substantive features are concerned, a sterilization statute such as we have here is within the police power of a state; hence its undoubted interference with personal liberty is not subject to constitutional proscription” (In re Hendrickson). But it went on to find that the procedures for providing notice to the individuals who were to be subjected to sterilization violated the Due Process Clause of the U.S. Constitution, and on those grounds voided the statute.
Although many who have studied the subject believe that the record is incomplete, the officially acknowledged total of forced sterilizations in Washington is 685. Of that number, 501, or approximately 75 percent, were women. Tubal ligation was the primary method used to sterilize women, vasectomies were used for men. The majority of sterilizations were performed on people deemed mentally ill (256 women and 147 men) or mentally deficient (243 women and 33 men). It appears, but is not clear from the record, that a small number of rapists and/or habitual criminals were also sterilized.
With the state supreme court’s 1942 ruling that the 1921 Prevention of Procreation Act was unconstitutional, and the 1979 repeal of the Marriage Regulation Act, the anti-eugenic battle appears to have been won in Washington. But statutes can change any time a legislature sits in session, and new laws often reflect the mores and prejudices of their time and place. History has demonstrated again and again that these are not fixed standards.
The Law as it Stands
The issue of forced sterilization has not gone away in Washington, as the 1980 case In re Hayes demonstrates. Edith Melissa Maria Hayes was born severely mentally retarded in December 1963. Her mother, Sharon Hayes, petitioned the Superior Court for Grant County for an order appointing her Edith’s guardian and specifically authorizing a sterilization procedure on her daughter, who had reached sexual maturity. The court refused, ruling that it had no jurisdiction, and dismissed the petition. The mother appealed only the court’s conclusion that it lacked the jurisdiction to authorize the sterilization of a mentally incompetent person.
The state supreme court, in a 5-4 decision, reversed, finding that Article 4, Section 6 of the state constitution, which reads in relevant part “The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court …” was sufficient to empower superior courts to “entertain and act upon a petition from the parent or guardian of a mentally incompetent person for a medical procedure such as sterilization” (In re Hayes, 232).
After a thorough review of the sad legal history of forced sterilization inflicted on the allegedly disabled, and of the discredited tenets of negative eugenics, the court ruled that “Despite all that has been said thus far, in the rare case sterilization may indeed be in the best interests of the retarded person” (In re Hayes, 237). But, it cautioned, “the court must exercise care to protect the individual’s right of privacy, and thereby not unnecessarily invade that right. Substantial medical evidence must be adduced, and the burden on the proponent of sterilization will be to show by clear, cogent and convincing evidence that such a procedure is in the best interest of the retarded person” (In re Hayes, 237).
The opinion then prescribed stringent and detailed procedural requirements and the factual findings necessary to support a court’s decision to allow sterilization, which as of 2022 remained the case. In its conclusion, applying those standards to the case of Edith Hayes, the court ruled that the burden had not been met, and the matter was sent back to the Grant County Superior Court “for further proceedings consistent with this opinion” (In re Hayes, 239). The eventual fate of Edith Melissa Maria Hayes does not appear in the record.
