“Three generations of imbeciles are enough.” With these words, United States Supreme Court Justice Oliver Wendell Holmes cleared the way in 1927 for the forcible sterilization of a 21-year-old girl, Carrie Buck and, subsequently, some sixty thousand or more other Americans as part of a eugenics project that would last in some states well into the 1980s.
There was perhaps an unsettling echo of Wendell Holmes’s pithy formulation of contempt in the reports last month of an Oxford woman of much the same age as Carrie Buck being ordered by the Court of Protection to be fitted with a contraceptive device against her will.
The case of Oxford University Hospitals NHS Foundation Trust v. Z concerned a woman described as having “a mild learning disability”. She also suffered from diabetes, anaemia and a Vitamin D deficiency. At the time of the judgment the woman, who remains anonymous for legal reasons, was in the late stages of pregnancy and booked-in for an imminent caesarean section.
Whereas Justice Wendell Holmes had been chiefly concerned with the supposed benefits to the wider society of curtailing procreation among the feckless, both the clinical and the legal focus in Z’s case were on her safety and wellbeing and those of any child she might carry. Her doctors and the court decided not only that for Z to have any more children after this one would be unwise, but that measures should be taken to ensure that could not happen.
You might think that the threshold for the state to intervene in something so essentially private as future fertility would be higher than is described in Mrs Justice Knowles’s judgment. Gestational diabetes is quite common among some ethnic groups and hospitals are used to managing it. And iron and vitamin deficiencies – even quite serious ones – are hardly unknown in pregnancy. Although Z’s mild cognitive impairment would probably have placed her in the special educational needs group at school, it would be shocking if being in the bottom set were enough to cast doubt on someone’s fitness to make decisions about having children.
It is tempting to wonder what role class and cultural factors play in determining whom NHS hospital trusts consider fit to make decisions about having children. In the Carrie Buck case too, it was the doctors who were pressing for sterilization after assessing Buck as a “low grade moron”, though in later life she would prove that label absolutely wrong. What had really tipped the scales against her was that Carrie had conceived a child out of wedlock (though as a result of rape, as it happens).
In Z’s case, her previous children had been taken into care, which, from the tone of some of the media coverage, seems to have been enough to demonize her even in these comparatively less morally censorious times.
For the judge though, the key considerations were the risks associated with any future pregnancy and Z’s capacity to make decisions about contraception. A third caesarean would be risky for any woman, but there is no established consensus about how many can be had. In this case, the doctors argued, the risk of a rupture would be very great indeed. Z appeared, at least in principle, to acknowledge this. Consequently, the case really turned on the court’s assessment of her capacity to understand and make decisions about various forms of contraception. One of her doctors had drawn diagrams of an IUD and where it would go, but Z had not fully understood them. The question was: did she possess the mental capacity to make a decision of the sort required?
One can only speculate as to how the court would have reacted if Z had ventured a principled objection to contraception, one based on Humanae Vitae, say. The most recent precedent is not encouraging. Last autumn, a different judge in the Court of Protection tried to force a young Catholic woman to have an abortion, but was overturned on appeal.
Despite her lower-than-normal cognitive ability, Ms Z does appear to have been sufficiently tech-savvy to follow the Skype hearing from lockdown on her mobile phone. However, the court found that she was insufficiently able to articulate the reasons why she did not want to have an IUD fitted. A little prompting from Google could have given her access to the evidence cited in hundreds of lawsuits and class-actions brought against the manufacturers of contraceptive devices, ranging from the risks of migration of IUDs out of the womb to alleged associations with hormonally generated symptoms similar to those of brain tumours. Z’s failure to demonstrate sufficient understanding of the relative risks and benefits of different contraceptives meant that the court took the decision away from her and made its own.
Ms Z asked the judge whether she could have contraceptive injections instead of an IUD. This plea was declined on the grounds that she would prove unreliable in turning up for her appointments. “It’s my body”, she reportedly objected, “…I should have the choice on what I want.” This assertion of the primacy of personal autonomy is the central claim of most of those who campaign for “reproductive rights”, particularly for unfettered abortion on demand. It is notable that in this case that argument seems to have had no persuasive purchase at all.