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Temp. L. Q.


Judgment at Nuremberg 1 concerned the criminal trial of a former German judge who, under Hitler's Third Reich, had ordered involuntary sexual sterilization operations to be performed upon Jewish men and women. In a famous scene from that screenplay and movie, the defense counsel, Rolfe, cross-examines a German law professor, Dr. Wieck, in regard to the legality of such practices: Rolfe (continuing) Dr. Wieck, you referred to "novel National Socialist measures introduced, among them sexual sterilization." Dr. Wieck, are you aware that this was not invented by National Socialism, but had been advanced for years before as a weapon in dealing with the mentally incompetent and the criminal. Dr. Wieck Yes. I am aware of that. Rolfe Are you aware that it has advocates among leading citizens in many other countries? Dr. Wieck I am not an expert on such laws. Rolfe (crisply) Then permit me to read one to you. Rolfe signals the Clerk in the dock to bring him a book. The Clerk comes forward and hands it to him. Rolfe (continuing) This is a High Court opinion upholding such laws in existence in another country. "We have seen more

than once that the public welfare may call upon the best citizens for their lives. It would be strange, indeed, if it could not call upon those who already sapped the strength of the State, for these lesser sacrifices, in order to prevent our being swamped by 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 their propagation by medical means in the first place. Three generations of imbeciles are enough." Do you recognize it now, Dr. Wieck? Dr. Wieck (with emphatic distaste) No, Sir, I don't. Rolfe (smiles a little) Actually, there is no particular reason why you should, since the opinion upholds the sterilization law in the State of Virginia, in the United States, and was written and delivered by that great American jurist, Supreme Court Justice Oliver Wendell Holmes.

The quoted case is Buck v. Bell,' a 1927 Supreme Court decision permitting the forced sterilization of a woman named Carrie Buck. Aside from its affinity to the philosophical premises underlying Nazi atrocities,4 Buck v. Bell has proven to be an embarrassing example of bad law in a number of other ways. Both the factual 5 and constitutional ' bases of the decision have proven to be inaccurate in light of modem scientific and jurisprudential knowledge. The decision has spawned several lower court opinions which, in seeking to apply its principles, have resulted in holdings that are manifestly unreasonable and unjust." The decision has also invited numerous and often contrived attempts to distinguish or otherwise sidestep its holding 8 and has engendered a situation in which the respective rights and liabilities of the state and of doctors, judges, health and welfare personnel, and mentally and physically disabled individuals themselves, with regard to voluntary and involuntary sterilization procedures, have become generally obscured.