Opinion: Daily Journal

Eugenics Compensation Debate Continues

Between 1933 and 1977 the State of North Carolina authorized the involuntary sterilization of more than 8,000 people, most of whom were women. An unknown number of others were involuntarily sterilized by local authorities without formal authorization by the State.

At the urging of many individuals and organizations (including the John Locke Foundation), in 2013 the General Assembly finally enacted a compensation program for the victims, and some of them have already been partially compensated under that program. Unfortunately, the program is currently on hold, and — because of some decisions handed down by the N.C. Court of Appeals last month — it will probably remain on hold for quite some time.

As enacted in 2013, the Eugenics Asexualization and Sterilization Compensation Program authorizes the State to pay a total of $10 million to victims of the State’s eugenics program. Each “qualified recipient” is to receive an equal share, and because the criteria used to determine who qualifies have been challenged in court, final payouts will not be possible until those legal challenges have been resolved.

The act specifies that:

An individual must be alive on June 30, 2013, in order to be a claimant.

And it defines a qualified recipient as:

An individual who was asexualized involuntarily or sterilized involuntarily under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937.

The first of these requirements was challenged by the estates of three victims of involuntary sterilization who died before June 30, 2013. In complaints filed with the Court of Appeals, they argued that excluding the heirs of victims who died before that arbitrarily chosen date:

Violates the guarantees to equal protection and due process under … the Constitution of the State of North Carolina and the … Constitution of the United States.

Rather than consider this argument, the court found that it lacked jurisdiction. It noted that under a law enacted in 2014:

Any facial challenge to the validity of an act of the General Assembly shall be transferred … to the Superior Court of Wake County and shall be heard and determined by a three-judge panel of the Superior Court of Wake County.

Accordingly, the court ordered transfer of the cases to the Superior Court of Wake County. It will now be up to a three-judge panel of that court to evaluate the plaintiffs’ constitutional challenge. And, of course, depending on how the panel decides, further appeals are possible. It’s worth noting that the John Locke Foundation has been consistent in arguing for limiting compensation to living eugenics victims, not their heirs.

The second challenge to the act was made by a “white married female” who was sterilized in Shelby on Nov. 27, 1974. In support of her application for compensation she testified that:

A social worker with the [Cleveland County] Department of Social Services coerced her into having the abortion and sterilization procedures. …

The social worker threatened that she couldn’t keep her two living daughters if she did not have the procedures. …

The social worker beat her against a wall while threatening her with the loss of her two daughters.

Because it was supported by other evidence, the commission that reviewed her claim accepted her testimony as true, but it nevertheless denied her claim because she was unable to meet the second set of requirements listed above.

After a careful review, the Court of Appeals regretfully agreed:

Although it is possible that members of the General Assembly were unaware … that many involuntary sterilizations had been conducted outside the parameters of the Eugenics Act — and thus had been conducted without legal authority — we are constrained to apply the plain meaning of [the act]. …

Before a claimant may be considered a qualified recipient: (1) the claimant must have been involuntarily sterilized “under the authority of the Eugenics Board of North Carolina,” and (2) the claimant must have been involuntarily sterilized in accordance with the procedures as set forth in “Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937.” … Claimant cannot show that either of these requirements has been met.

There is no record evidence that the Eugenics Board was ever informed of Claimant’s involuntary sterilization, nor that it was consulted in the matter in any way. … Further, all the evidence in this matter clearly demonstrates that Claimant’s involuntary sterilization was performed without adherence to the requirements set forth in “Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937.”… Therefore, we must affirm.

It was a unanimous decision, but an appeal is still possible.

There’s nothing wrong with the Court’s reasoning in either case. Nevertheless, it’s a very distressing outcome. The victims of involuntary sterilization in North Carolina waited for decades for justice to be done; so long, in fact, that most of them died without receiving so much as an apology, let alone anything in the way of compensation.

For some survivors, these recent decisions by the Court of Appeals probably mean they will never be compensated at all. As for the rest, they will just have to go on waiting, and more will probably die while they wait. What a lousy way to bring to a close this shameful chapter in North Carolina history.

Jon Guze is director of legal studies for the John Locke Foundation.