Abstract

Excerpted From: Nicole Sequeira Tashovski, A Critical Race Theory Analysis: The Role of Racialization, the White Racial Frame, and Institutional Power in California Eugenics Sterilizations, 21 UC Law Journal of Race and Economic Justice 157 (February, 2024) (184 Footnotes) (Full Document)

The right to have children became a fundamental right in 1942 in Skinner v. Oklahoma. Before and after Skinner, eugenic sterilizations occurred in California in high numbers. Following Skinner, in many ways, whether one could claim this right was contingent on who they were. This is because many California sterilizations targeted Mexican-origin, working class women who were “deemed unfit to procreate or parent.” These sterilizations took place against the backdrop of eugenic anti-Mexican rhetoric that permeated state and federal White-controlled institutions, including academia and the sciences, federal immigration law, state statutory law, and federal courts. The same eugenic ideology embedded within those institutions also infiltrated popular political opinions and imposed a White racial frame. Thus, this paper seeks to explain the forced sterilization of Mexican-origin women in California through an analysis of their racialization, imposition of the White racial frame, and White institutional power in the eugenics movement. In doing so, this paper will focus on two types of California forced sterilizations, occurring at different times from the 1920s through the 1970s.

The first eugenic sterilizations were those sanctioned under California state law and carried out by the state's Department of Institutions. These laws targeted people thought to have inheritable conditions and endured from 1920 to at least 1950, occurring both pre- and post-Skinner. Broad terms within the statute such as “feebleminded [ness]” allowed the law to be disproportionately applied to Mexican-origin women, who were racialized and pathologized based on their deviation from the White racial frame.

The second type of sterilization occurred after Skinner in the 1970s. These came to light in 1978, following allegations by ten Mexican-origin women who had been sterilized at Los Angeles County, University of Southern California Medical Center (LAC-USC). These allegations formed the basis for the class action lawsuit Madrigal v. Quilligan. The Plaintiffs all had similar stories. Most were poor, had immigrated to California from rural Mexico, were mono-lingual Spanish speakers, and their consent to sterilization was coerced following hours in labor that ended in difficult deliveries.

Although these events may seem remote in time, they are not. In June 2014, a state audit and investigation into California prisons uncovered the sterilization of over 140 women from 2005-2013. These procedures were performed despite a preexisting law barring the use of federal funds for sterilization as a form of birth control. The women affected had stories similar to the Madrigal Plaintiffs and reported being targeted for sterilization during labor, delivery, and other gynecological procedures. “The majority of these women were Black and Latina.”

This most recent type of California eugenic sterilization highlights the ongoing and pervasive nature of eugenics ideology. Although this paper will only focus on two types of California eugenic sterilizations, the arguments made here can help explain the forced sterilization of women of color across the United States. This is especially pertinent following allegations that immigrant women were forcibly sterilized in a Georgia detention center in 2020. Further, this paper can be used to understand why eugenics ideology continues to permeate the United States today in insidious and less obvious ways than forced sterilization. It is the author's hope that policy makers will consider critical race theory and the arguments made in this paper when enacting reproductive health laws.

Part I of this paper will introduce Skinner and discuss how despite the existence of a fundamental right to have children, sterilization programs continued in California. This section will also provide background on the eugenics movement and its underlying pseudo-scientific theory, biological determinism. Part II will introduce and discuss dominant critical race theory themes present during the eugenics movement. This section will also argue that these themes contributed to the sterilization of Mexican-origin women through the control of prominent United States institutions such as the sciences, legal system, and medical care.

[. . .]

Although Skinner v. Oklahoma declared the right to have children a fundamental right, whether one could access this right was based, in part, on who they were. Mexican-origin women's sterilization in California was justified by eugenics ideology that aimed to improve the quality of the human race by restricting the procreation of those considered to have “bad” genes. This led to the careful selection of parents and the forced sterilization of those who were deemed unfit--parents of color.

By controlling prominent U.S. institutions, such as the sciences and the legal system, established practices were used to further the forced sterilization of Mexican-origin women. To uphold White supremacy and systemic racism, Mexican-origin women were racialized as hyper fertile, racially inferior, unfit to reproduce, and likely to need financial assistance. Imposition of the White racial frame ensured that Mexican-origin women would always fall short of established White-middle class norms. The critical race theory themes present during the eugenics movement help explain not only the forced sterilization of Mexican-origin women in California from 1920 to 1979, but also provide a framework through which to analyze more recent forced sterilizations of women of color across the United States.

The author hopes the arguments made in this paper will be considered by policy makers when passing reproductive health laws implicating the fundamental right of all people to have children.

Nicole received her Juris Doctor from the University of California College of the Law, San Francisco (formerly UC Hastings) in May 2022.