By: Aria Janiszewski
Published on: May 3, 2023
The United States has a dark history with forced sterilization.[1] In an objectively abhorrent opinion, the forced sterilization of a Virginia woman was upheld by the Supreme Court in the 1927 in case of Buck v. Bell.[2] Writing for the majority, Justice Holmes held, “Carrie Buck ‘is the probable potential parent of socially inadequate offspring…that she may be sexually sterilized… and that her welfare and that of society will be promoted by her sterilization.’”[3] Though the U.S. Supreme Court ruled in 1942 in Skinner v. Oklahoma that forced sterilization violated the Equal Protection Clause of the Fourteenth Amendment, the practice still continues.[4] In 2016, NPR reported approximately 70,000 people, mainly Black, Latina, and Native American women, were sterilized in over thirty states throughout the twentieth century after Skinner.[5] Today, forced sterilization often occurs in the criminal legal system disguised as “voluntary” in exchange for reduced prison sentences and favorable conditions of parole.[6] But what happens in today’s America when a person chooses to undergo a sterilization procedure, such as a hysterectomy or tubal ligation? For certain people with a uterus in some states, these procedures require the permission of … wait for it … a man.
There are myriad reasons why someone would undergo a sterilization procedure, and frankly, the reason is largely irrelevant, so long as it is truly their choice. In light of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturning the right to abortion, many people are seeking sterilization as a more permanent birth control solution.[7] But even before Dobbs was decided, those seeking out sterilization procedures were often met with resistance from their doctors, with some doctors outright refusing to perform the procedure without male consent. In 2020, social media users recounting their experiences of attempting to undergo sterilization went viral.[8] One person, a Washington mother of two, was told she needed to obtain her husband’s signature to proceed with an elective tubal ligation, commonly known as having the “tubes tied.”[9] When she asked her doctor if his consent was required by law the doctor replied that it was not, but it was “their policy.”[10] Another person visited multiple doctors in Indiana who required consent from her father because she was unmarried.[11] A third person, who was seated next to her wife during the appointment, was denied a hysterectomy for her endometriosis just in case she wanted to have children with a man in the future.[12] Paradoxically, men seeking sterilization through vasectomy are rarely denied the procedure, and it is uncommon that they are required to obtain spousal consent.[13]
Patient autonomy refers to the “right of patients to make decisions about their medical care without their health care provider trying to influence the decision.”[14] Patient autonomy is connected to bodily autonomy, the fundamental right to make decisions about your own body free from coercion.[15] If the right to bodily autonomy was effectively destroyed by Dobbs, patient autonomy protects the right to sterilization procedures, free from a doctor asserting their control and requiring the consent of a male spouse, father, or another arbitrary male figure. In response to the Dobbs decision, and the fear that the right to same-sex marriage would be under attack, President Biden signed the Respect for Marriage Act into law, providing statutory authority for same-sex and interracial marriages and guaranteeing them federal recognition.[16] The right to obtain a hysterectomy, tubal ligation, or other sterilization procedure requires the same federal protection seen in the Respect for Marriage Act. Since Dobbs, some providers have been apprehensive about performing abortions because of the legal repercussions they might face as a result, even if abortion is still legal in their jurisdiction.[17] How Dobbs will ultimately affect sterilization procedures remains unclear, but similar to how the federal government proactively protected same-sex marriage, federal law should step in to prohibit medical provider policies requiring male consent for sterilization procedures. That the practice exists at all defies logic.
[1] Sanjana Manjeshwar, America’s Forgotten History of Forced Sterilization, Berkeley Pol. Review (Nov. 4, 2020), https://bpr.berkeley.edu/2020/11/04/americas-forgotten-history-of-forced-sterilization/.
[2] See Buck v. Bell, 274 U.S. 200, 207 (1927) (holding that society can prevent “feeble-minded” individuals who are “manifestly unfit from continuing their kind.”).
[3] Id. (Carrie Buck is described by the Court as the feeble-minded daughter of a feeble-minded woman, who gave birth to an illegitimate and “feeble minded” child.)
[4] Skinner v. Oklahoma, 316 U.S. 535, (1942).
[5] The Supreme Court Ruling that Led to 70,000 Forced Sterilizations, NPR (Mar. 7, 2016, 1:22 PM), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations#:~:text=All%20told%2C%20as%20many%20as,were%20deaf%2C%20blind%20and%20diseased.
[6] Manjeshwar, supra note 1.
[7] See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022) (holding that the right to terminate a pregnancy is not fundamental); see also Aaron Bolton & Ellis Juhlin, More People are Opting to Get Sterilized – and Some are Being Turned Away, NPR (Jul. 29, 2022, 5:00 AM), https://www.npr.org/sections/health-shots/2022/07/29/1113573995/more-people-are-opting-to-get-sterilized-and-some-are-being-turned-away (recounting stories of people seeking out sterilization procedures because of uncertainly around abortion access and the desire to remain in control of their reproductive decisions).
[8] Shira Feder, A Woman was Told She Needed Her Husband’s Permission to Get Her Tubes Tied. Her Story Went Viral, But it’s Not Uncommon., Insider (Feb. 25, 2020, 2:12 PM), https://www.insider.com/a-woman-needed-husbands-consent-to-get-her-tubes-tied-2020-2.
[9] Id.
[10] Id.
[11] Georgia Dodd, WTF! OB/GYN Won’t let Woman get Tubes Tied Without “Husband’s Consent”?, BUST, https://bust.com/feminism/196982-gyno-tubes-tied-husbands-consent.html (Apr. 21, 2023).
[12] M.K. Fain, In 2020, Women Still Need Their Husband’s Permission to Get Sterilized, 4W (Feb. 25, 2020), https://4w.pub/in-2020-women-still-need-their-husbands-permission-to-get-sterilized/.
[13] Dianne Lalonde, Sexist Barriers Block Women’s Choice to be Sterilized, The Conversation (Aug. 14, 2018, 6:25 PM), https://theconversation.com/sexist-barriers-block-womens-choice-to-be-sterilized-99754.
[14] See Carolyn A. Bernstein, Take Control of your Healthcare (Exert your Patient Autonomy), Harv. Health Blog (May 7, 2018), https://www.health.harvard.edu/blog/take-control-of-your-health-care-exert-your-patient-autonomy-2018050713784 (defining patient autonomy).
[15] See John Letzing, What is Women’s ‘Bodily Autonomy’ and why does it Matter for Everyone?, World Econ. F. (Mar. 10, 2022), https://www.weforum.org/agenda/2022/03/what-is-bodily-autonomy-and-why-does-it-matter-for-women/ (defining bodily autonomy).
[16] Respect for Marriage Act, Pub. L. No. 117-228 (2022).
[17] See Abigail Abrams, ‘Am I a Felon?’ The Fall of Roe v. Wade has Permanently Changed the Doctor-Patient Relationship, Time (Oct. 17, 2022, 7:00 AM), https://time.com/6222346/abortion-care-after-roe-doctors-lawyers/ (describing the experience of an Ohio physician contacting hospital lawyers prior to admitting a septic patient for an abortion procedure needed to save the patient’s life).