Health Care Law Book Review 129 Harv. L. Rev. 956

No Immunity: Race, Class, and Civil Liberties in Times of Health Crisis


Nearly a century ago, the United States found itself in the midst of a health crisis related to individuals it found to be socially unfit. At the time, social unfitness and “imbecility” were thought to be genetically inscribed and heritable — contagious within the gene pool. However, as with many diseases, states feared that these conditions could be masked; how would they know who was unfit? Was it possible that the unfit could contaminate the broader gene pool? If so, how could states prevent this so-called genetic pollution from entering and spreading in their states?

Eugenics policies provided a compelling answer for more than thirty states that adopted such legislation. Eugenics laws were designed to limit the reproductive capacities of Americans whom legislators perceived to be socially or mentally damaged, and therefore genetically unfit. Such laws literally stripped away the right to reproduce. Concerns about genetic and social contamination were so deeply rooted in the American consciousness that eugenics laws were adopted with relative ease throughout the nation.

The U.S. Supreme Court took up the issue in an infamous 1927 test case, Buck v. Bell. That case involved the constitutionality of a Virginia law permitting compulsory sterilization of persons whom state health officials declared feebleminded. The person in question was Carrie Buck. Justice Oliver Wendell Holmes described Carrie as a “feeble minded white woman who was committed to the State Colony [for Epileptics and Feeble Minded].” Justice Holmes declared, “She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child.” Dr. Albert Priddy, the superintendent of the Virginia Colony, provided testimony in the case. He testified, “These people belong to the shiftless, ignorant, and worthless class of anti-social whites of the South.” Harry Laughlin, the chief drafter of U.S. eugenics legislation, concurred in Priddy’s testimony, emphasizing Carrie’s “moral delinquency” although he had never met her.

Over the years, scholars such as Professor Paul Lombardo copiously filled in the narrative of Carrie’s life omitted from the Court’s opinion: her pregnancy at sixteen years old resulting from a rape committed by her employer’s nephew, as well as her destitution. Importantly, Lombardo uncovered Carrie’s daughter’s academic records, finding no evidence of cognitive delay or learning disabilities, which scientists at the time claimed were genetically heritable — like a disease. Indeed, at the time of the case, health officials provided testimony that Carrie’s six-month-old daughter, Vivian, would become imbecilic because something about her did not seem right — she seemed “not quite normal.”

Buck legalized compulsory sterilization of individuals deemed socially unfit, ushering and ensconcing eugenics into the American political, legal, and medical landscape. Buck pivoted on finding Virginia’s compulsory sterilization law constitutional, thereby validating all other similar laws in states across the nation. According to the Court, Virginia’s law “recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives.” Legislators in Virginia feared that without sterilizing “unfit” girls and women and performing vasectomies on boys and men of a similar profile, “many defective persons . . . would become a menace” to society.

However, if young men and women were rendered incapable of procreating, their heredity would not infect future offspring or others by “transmission of insanity [or] imbecility.” At the time, scientists claimed that heredity played a key role in the spread of cognitive impairment, social unfitness, and insanity. Indeed, the Court relied on its 1905 ruling in Jacobson v. Massachusetts, a compulsory vaccination case, to justify Carrie’s sterilization and the legalization of American eugenics. Sadly, it was believed that if states could vaccinate against viruses like smallpox, why not allow them to immunize against social traits like intergenerational poverty?

Justice Holmes claimed that the principle sustaining compulsory vaccination in states like Massachusetts “is broad enough to cover cutting the Fallopian tubes,” because public welfare, including the public’s health, calls upon even “the best citizens for their lives.” Strange as it may seem now, vaccination was considered by many to be a sacrifice and a risk not only to one’s health but also to one’s life. Viewed in this light, the Supreme Court considered the sterilization of the girls and boys housed at Virginia’s State Colony to be a “lesser” sacrifice than potential death.

Carrie Buck’s case, however, was neither the first nor the last time that the rationale of protecting the public’s health served a discriminatory purpose or functioned against a vulnerable group. Justice Holmes concluded, “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 those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.”

Buck flagged fears about the other and how proximity to the outsider class might pollute fitter, smarter, healthier, wealthier citizens or at least burden society with economic, health, and social problems emanating from the poor. The Court’s holding and the very law that it upheld reflected not only a moral panic, but also a public health panic: the fear of socially and morally polluted bodies infecting the broader society. Buck offers a chilling glimpse into the extremes of protecting the public’s health in times of perceived crisis. As a result of the eugenics movement and the Court’s decision in Buck, it is estimated that over 60,000 American women nationwide suffered involuntary surgical sterilizations. Between 7000 and 8300 were sterilized in Virginia.

The relationship between public health, on the one hand, and race, poverty, and ethnicity discrimination, on the other, is neither new nor distinctly American. In 1933 Germany borrowed from the model U.S. eugenics law, which “provided the legal basis for sterilizing more than 350,000 people.” In fact, the intersection between minority rights and public health has a long and shameful history, dating back hundreds of years. On close inspection, the metaphor of the polluted body and its menacing effect in American society persists, no doubt due to its local origins rooted so long ago in American slavery, “Yellow Peril,” and early-twentieth-century anti-immigration policy. When analyzed from a distance, law’s vulnerability to prejudice packaged as public health concern crystallizes. For example, judges may make poor judgment calls conditioned on spurious or misinterpreted science, politicians may manipulate the public’s fear for political gain, and even scientists and doctors may conflate or exaggerate data. And consequentially, civil liberties may be compromised and constitutional rights trampled.

These concerns dramatically manifested in the wake of the 2014 Ebola outbreak in several western African nations and the arrival in the United States of one lone Liberian man, Thomas Eric Duncan, who contracted the virus prior to his arrival and subsequently died. Not only did the nation’s otherwise quiescent manner toward Liberia’s outbreak peak at the time of Mr. Duncan’s death, but so did fear, which gave way to hysteria. Mitt Romney, the former governor of Massachusetts (and two-time presidential candidate), urged the United States to close its borders to nations experiencing Ebola outbreaks, basically quarantining West Africa from travel to the United States. Even President Obama incurred blame for not stopping Ebola from entering the United States.

Robin Wright, a fellow at the Woodrow Wilson International Center and the United States Institute of Peace, warned that Ebola increased racial profiling and revived “imagery of the ‘Dark Continent,’” pointing to children of African descent being mocked as “Ebola kids” in Texas. Harsh labeling aside, a community college in Texas declared that it would not admit students from nations where Ebola was present, two students from Rwanda (over 2600 miles from the closest affected country) were virtually suspended from a New Jersey elementary school for three weeks, an elementary school teacher in Maine was forced to take a three-week leave because she attended a conference in Dallas, Texas, and a principal who traveled to Zambia, another country with no reported cases, was placed on administrative leave for a week. What accounted for this type of hysteria, which prevented children from attending school and imposed unnecessary constraints on employees who wanted to work?

That states (and their agencies) have a duty to protect the health and safety of their citizens provides a weak and unsatisfying defense of selective encroachments on civil liberties generally, especially when racial status, rather than medical condition, motivates such actions. Equally uninspiring are the moral justifications on which these civil liberty violations rest, such as protecting children from classmates, teachers, or principals who clearly do not pose medical threats. This Review takes up not only the metaphor of the polluted body and its menacing effect on society, but also what this metaphor means for law.

We turn to On Immunity, Eula Biss’s 2014 book, interrogating omnipresent suspicions, fears, and myths surrounding the polluted body and vaccination in the United States. Ms. Biss’s account of immunization policies and practices builds upon personal, sociological, historical, and medical anecdotes. She draws from experiences that mark her childhood, motherhood, and time as a journalist to paint a provocative narrative about not only vaccination policy in the United States, but also families’ practices related to inoculating children and the chilling consequences that result when they do not.

Biss deftly unpacks parents’ concerns about vaccinations and hotly debated but refuted studies linking inoculation to autism in children. She explains, “The women with whom I debated the merits of the flu vaccine possessed a technical vocabulary that was entirely unfamiliar to me at the time” (p. 10). These mothers could distinguish the vaccines that contained live viruses from those that were acellular and provide a detailed account of the “vaccine schedules of other countries” (p. 10).

Were the concerns about exposing their children to vaccines a form of paranoia or simply reflective of parenting? On the one hand, parents strive to keep children safe from all possible contaminants, including those in their mattresses and on their sheets and floors. And on the other hand, she points out an irony — those same parents believe that avoiding vaccines will achieve exactly that: healthy children. Biss exposes a paradox in social perceptions about who does and does not vaccinate.

In the antivaccine movement, the parents least likely to vaccinate their children resemble her; she describes them as white, wealthy elites, who petition and protest government to avoid their children’s inoculation (p. 27). These parents apply for exemptions from laws that require their children’s vaccination as a condition of school enrollment. Sometimes, parents claim a religious objection to vaccines and, in some states, the refusal to vaccinate can be based on “personal belief.” Some of the mothers wary about vaccination confided to Biss that they simply did not trust the government and believed “big pharmaceutical companies are corrupting medicine” (p. 9).

Yet poor Black mothers, she reminds readers, vaccinate their children, but often under-inoculate, particularly for those viruses that require boosters or second “shots” (p. 27). Their under-inoculation hinges not on choice, she explains, but rather a condition of their poverty. For example, homelessness and high rates of mobility (moving from one location to another) make it difficult to maintain connection with a consistent medical provider and preserve medical records. Lack of resources, such as a car, and even expenses for public transportation (where it is available), create additional burdens. Even the luxury to leave low-wage jobs to attend to medical concerns for themselves or their children may be beyond reach for many families living in poverty. They are caught in a terrible double bind. The distinction between under-inoculation and no inoculation is significant, particularly in light of the risks posed to the public’s health when a child has not received any vaccinations.

The most powerful theme in Biss’s important account of inoculation is the story of fear and the dread of polluted others. It is a striking aspect of the book: misinformation based on race and class status that frequently influences health. She reminds readers that antebellum and Jim Crow racism blinded white Americans to the possibility that they could contract smallpox. Instead, the virus was repugnantly referred to as “Nigger itch” (p. 25), and perceived as a Black person’s disease. It was often underreported or unreported among whites because of “the shame they felt being caught with this ‘loathsome negro disease.’” Perhaps this attitude accounted for the preventable smallpox outbreak of the late 1800s, when many refused vaccination, thinking that being white could inoculate them from the disease.

Biss’s book addresses fears about government and the medical establishment in times of health crises. In this Review, we examine law’s role in instantiating and perpetuating these fears and the broader anxieties and suspicions to which Biss alludes. For example, she flags concerns about the roles of race, immigration, and class in negatively influencing social perceptions, medical decisionmaking, and even the delivery of care. However, her discussion of these issues is limited to personal accounts describing interactions with medical providers and potent, but few, historical observations. The book’s omissions could be explained by the fact that Biss writes as a journalist, and in this book she blends personal and scientific narratives to weave a personal story about her medical journey as a new mother.

However, missing from such a personal account are the broader impacts on law and society, such as the social and legal harms resulting from stereotyping, stigmatization, or blatantly disparate medical or legal treatment of some groups versus others. This Review takes up a more explicit discussion of the law in the time of health panic. Our questions do not relate to whether to inoculate children nor do we take up the antivaccine movement. We leave those important questions for a separate work. Rather, Biss’s provocative book inspires our focus on a narrow set of overlooked questions related to law’s intervention at times of purported health crises.

We expand the focus of inoculation and the metaphor of the “polluted” other to include a taxonomy of biases and offer an important historical account, referencing early case law and situating vaccination in the framework of immigration quotas, race, and class. In Buck v. Bell, the Supreme Court sanctioned the notion that “unfit[ness]” and “imbecility” could be vaccinated away by sterilization. The Court did not find Virginia’s actions to be cruel and unusual. Today, the case reads as a chilling account of misdirected law. Retelling vaccination and health crises as stories about social fitness, race, and class sheds light on what motivates public policy, and who benefits and who might be harmed by law and the government.

Our thesis is that claims to protect the public’s health frequently have served as proxies for bias, discrimination, and nativism. Many people of color and vulnerable minority groups have been caused great harm in the name of advancing and protecting the public’s health. Unfortunately, during such periods in American history, courts too have failed to protect basic civil liberties, and people have suffered as a result. Carrie Buck’s nonconsensual sterilization provides a powerful example of government abuse of power in this regard, but sadly it is one among many forgotten or lesser-known cases even among lawyers. Indeed, children, men, and women have been interned, sterilized, banned from entering the United States, detained, subjected to horrific human research, and otherwise injured by government abuse of power under the cover of protecting or promoting health.

This Review proceeds in three parts. In Part I, we argue that, historically, fears of contagion and infection were as much rooted in racial and class fear and animus as genuine threats to health. We highlight instances where protecting the public’s health served as the legal basis for explicit government abuses of power and the infliction of injuries on minority populations through immigration policy. In Part II, we address implicit bias and public health. We argue that race and class bias continues to influence attitudes about the spread of disease, shape norms in the delivery of medicine, and influence legal policy. Finally, Part III turns to civil liberties in times of contemporary health crisis. Our conclusion is that the government must demonstrate that there is no other means by which to protect public health before it infringes on individuals’ constitutional rights.

* Chancellor’s Professor of Law, and Director, Center for Biotechnology & Global Health Policy, University of California, Irvine School of Law. We would like to thank Hayley Penan for providing excellent research assistance.

** Dean, Distinguished Professor, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.