May 2, 2027 will mark the 100^th anniversary of Buck v. Bell, the Supreme Court decision that upheld Virginia’s power to sterilize mentally retarded people. Then-Justice Oliver Wendell Holmes — the early 20^th century’s Ruth Bader Ginsburg — roared in Buck that “three generations of imbeciles are enough!” Clearly, he knew what people he thought we all agreed we didn’t want too many of.

Buck (the full opinion is linked here), while politely ignored, has never formally been overturned. It goes into that file of Supreme Court rulings of distinction, some reversed, some not, like Dred Scott v. Sandford (blacks are not persons but property), Plessy v. Ferguson (“separate but equal” segregation is no problem), and Korematsu v. United States (of course we can intern Japanese Americans).

But as we approach the centennial of Buck, a few observations are in order.

First, Buck was handed down during the heyday of eugenics in America. After the ruling, almost ten more states adopted laws to sterilize the retarded. Eugenics only acquired a (temporarily) bad smell when it acquired German characteristics.

Second, eugenics has also been rehabilitated in the wake of the struggle between the sanctity of life and quality-of-life ethics. One flashpoint has been whether states could ban abortions sought for eugenic reasons, i.e., if prenatal diagnosis suggests the unborn child is handicapped. Under Roe, state bans were consistently thrown out by the federal courts. In Box v. Planned Parenthood, the Supreme Court would not address the question when posed by an Indiana ban on such abortions. Justice Clarence Thomas wrote a powerful dissent that traces the history of American eugenics, one pro-aborts did their best to discredit. Their basic argument: Eugenics when it is a matter of social policy, bad; when a matter of parental — especially maternal — choice, good! There may be no difference in the motives or outcomes; the one relevant factor for defenders of eugenics today is “who decides?”

Third, Buck, for its infamy, was relatively modest; it was willing to let the handicapped live, just not procreate. In the ensuing century, we have moved from preventing the birth of Holmes’s fourth generation of imbeciles to actively eliminating the third. One way Buck has been sidelined is that the Supreme Court recognized a “fundamental right” to procreate (which, in fact, has largely meant not to procreate, through abortion).

Fourth, when the American Law Institute proposed its abortion provisions for a Model Penal Code, it broadened the justifications for abortion to include not just threats to the physical life or “health” of the mother but to include “the child resulting from pregnancy [who] would be born with grave physical or mental defect.” Note that the formulation recognized a “child,” but simply decided the child’s life was not worth protecting if there is fetal abnormality. That temporary holding pattern would move further, towards epistemological agnosticism about whether life exists before birth.

Fifth, that shift has been justified by liberalism’s song-and-dance about the supposed unknowability of whether there is life before birth. If we deny that life exists before birth, we don’t have to tackle the eugenics question, we just “benefit” from its consequences. In much of Nordic Europe, for example, that has meant that Down’s Syndrome is rarely encountered — not because Down’s has been cured but because prenatal search-and-destroy missions kill off babies with Down’s. Lethal discrimination on the basis of handicap that would be punishable postnatally is protected to varying degrees prenatally (in several states as a matter of “constitutional right”).

Sixth, eugenic considerations inserted into the prenatal period have also blurred the bright line once constituted by birth. From the Baby Doe cases in the Reagan Administration to former Virginia Governor Ralph Northam’s defense of post-natal negligence of a handicapped newborn, from Democrats refusing to enact a Born Alive Protection Act for such children to theoretical bioethicists arguing that killing just before or just after birth is really a distinction with no difference, the elimination of mentally and/or physically handicapped individuals is no longer foreign to “neonatal care.”

Seventh, apart from his opinions that mentally retarded individuals should be eventually eliminated from society, Oliver Wendell Holmes needed a legal excuse to uphold Virginia’s barbarism. He found it in a 1905 case upholding a Massachusetts law mandating compulsory vaccinations: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11.” In the wake of some of the draconian regulations imposed during COVID — especially with regard to employment, military service, and/or mere participation in social life — Americans might want to reassess just how far the “principle” of forced medication that Buck affirmed and relied on should be regarded as solid public policy, Constitutional law, and conformity with human rights (including the right to refuse medication).