Learning from a state's tragedy

Tragic reports from the State of Virginia ought to alert Americans to the need for protecting citizens in every state from involuntary sterilization. Virginia is taking steps to repeal the law under which more than 8,000 men, women, and children diagnosed as mentally incompetent or socially inadequate were sterilized "for the good of society." Other states have rid themselves of similar laws going back to pre-World War II decades when American enthusiasm for "eugenics" led to race-purifying practices believed by some to have influenced Nazi Germany.

But some 25 states retain "eugenic" involuntary sterilization laws. And, as voluntary sterilization becomes accepted as a leading form of birth control, there are signs of a returning climate for using involuntary sterilization to serve such presumed interests of society as weeding out misfits.

The guises of such intentions may be different now. The sterilizations may be legally voluntary though, in effect, coerced. But, as one specialist in health law puts it, there is a kind of "technological imperative" at work. In other words, since it is technically possible to prevent the birth of potentially defective children, there is a temptation to do so. The motives for sterilizations of the mentally incompetent include easing the task of parents or other caretakers and making financial savings through facilitating institutional control. As for poor people, just this week a Texas mayor and human resources official suggested mandatory sterilizations or abortions for welfare recipients who cannot support children.

The risks to individual rights are so great that some states, such as Oregon, Montana, and West Virginia, now require court action on requests forinvoluntary sterilization. Massachusetts has made it illegal to sterilize the retarded or the under-age, for example, by prohibiting any sterilization without "knowledgeable consent."

For anyone to make a rational decision, no state ought to have a lesser safeguard than a court adversary proceeding. Here a guardian would present the case against sterilization so the full situation would be autorized for social purposes but only for the good of the individual involved. Sterilization should never be an easy substitute for such measures as counseling, physical protection , and moral instruction. A proper concern for the possibility of abuse, especially in the case of the poor and minorities, may be indicated by requirements for federal funding of sterilization that went into effect a year ago:

* Voluntary informed consent recorded on a standard form prepared in the "preferred language" of the patient.

* Full oral and written information in the patient's language on the risks and irreversibility of the operation as well as on the availability of other means of birth control.

* No open or implied threat that refusal to consent will cause loss of government benefits.

* A 30-day waiting period between consent and the sterilization operation (increased from 72 hours).

Particularly significant is the prohibition on federal funding for sterilization of persons younger than 21, held in institutions such as prisons or mental hospitals, or declared legally incompetent. If Virginia had imposed such strictures on sterilization over the half century beginning in the 1920s, it would not be confronted now with what the current head of a state mental institution calls "the tragedy" of the bygone sterilization program. Many of the victims reportedly did not know what was happening to them. To the state's credit, a proposal has been made for compensating those who were sterilized under the law now being challenged.

Chillingly, the US Supreme Court long ago upheld the state supreme court which ruled in favor of the Virginia law as intending to "protect the class of socially inadequate citizens from themselves and to promote the welfare of society by mitigating race degeneracy and raising the average intelligence of the people of the state." Americans must not return to such an abhorrent assumption of governmentally picking and choosing among the unborn.