by Craig Klugman, Ph.D.
In 1927, Supreme Court Justice Oliver Wendell Holmes ruled that Carrie Buck and her baby could be sterilized because of a perception that they were “mental defectives.” In the 20th century, 32 states had federally funded programs that sterilized “undesirable” populations. Approximately 60,000 people in the U.S. were sterilized without their consent or even knowledge of the procedure. This history made an unexpected reappearance last week when a Tennessee judge offered to reduce the jail sentences of prisoners if they underwent sterilization.
The inmates were offered vasectomies (males) or contraceptive implants (females) in exchange for him shaving 30 days off of their prison sentences. The offer was popular as 70 inmates signed up (32 women and 38 men). The inmates were convicted of drug offenses and Judge Sam Benningfield said he was offering them “an opportunity to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children…This gives them a chance to get on their feet and make something of themselves.”
“The primary purpose in this was to try to reduce the number of children born drug dependent or suffering the consequence of in vitro drug exposure…the number of children who would eventually wind up in foster care,” the Judge said in a statement. He claims that the offer was “strictly voluntary…no one is forced to participate…it is no way a eugenic program.” Of course, the Judge presumes that inmates have true freedom of choice in this matter. Freedom to choose also means freedom to say no and not being coerced. An offer for reduced jail time, no matter how little, is coercive. The principle of autonomy says that a person who is competent and capacitated has the right to make his or her own medical choices free of coercion. Release from jail is a very strong incentive that would influence anyone’s decision-making. This is voluntary in the way that one “chooses” to pay taxes: You could refuse, but then you would end up under an audit and in prison. There is also the issue of procreative liberty—the late John Robertson’s notion that people have the freedom to make their own reproductive choices without outside influence. Clearly the judge’s “offer” goes against such freedom.
Judge Benningfield’s offer is part of a history that demonstrates a difficult relation between using the law to influence, reproductive rights, and imprisonment. A Tennessee law imprisons pregnant women who use drugs. Like most drug sentences, this law comes down most harshly on those who are minorities and of lower socioeconomic status. Since more poor and minority people are imprisoned for drugs, this means that his offer would unjustly fall on vulnerable populations.
Reaction to this announcement was swift. The state and county departments of health issued statements that they were not involved in the plan and that they did not “support any policy that could compel incarcerated individuals to seek any particular health services from us or from other providers.” The Tennessee ACLU stated that “Offering a so-called ‘choice’ between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it.”
Unfortunately, Judge Benningfield’s offer is not an isolated incident. California prisons oversaw the forced sterilization of 148 women between 2006 and 2010. The women were chosen because they were pregnant when selected and viewed as being “at risk” for repeated imprisonment. As recently as 2015, a woman with mental illness was offered a plea bargain when charged with aggravated child neglect in the death of her 4-day old daughter. She was given the option of 15 years in prison or sterilization.
Reproductive rights are a hot-button political issue today not only because of the U.S.’s history on this issue but because reproductive rights are increasingly under threat. After hearing the public outcry over his offer, Judge Benningfield ended his program after 32 women received a long-term contraceptive implant. It is unclear how many vasectomies had been performed, if any. Prisoners are a vulnerable population lacking many freedoms of others. A reduced sentence in return for a surgical procedure violates autonomy, social justice, the right to determine what happens to one’s body, and procreative liberty.