200 OCTOBER TERM, 1926.
Statement of the Case. 274 U. S.
We do not consider the constitutionality of the for-
feiture under § 23. The court below in enumerating the
questions raised and presented made no mention of the
constitutional question. The assignment of errors below
did not refer specifically to it as required by the rules of
that court, and so far as the record discloses, it was not
presented there. See United States v. Gaffney, 10 F.
(2d) 694, 696. This Court sits as a court of review.
It is only in exceptional cases coming here from the fed-
eral courts that questions not pressed or passed upon
below are reviewed. See Montana Ry. Co. v. Warren,
137 U. S. 348, 351; Old Jordan Mining Co. v. Socift6
Anonyme Des Mines, 164 U. S. 261, 264, 265; Magruder
v. Drury, 235 U. S. 106, 113; Gila Valley Ry. v. Hall, 232
U. S. 94, 98; Grant Bros v. United States, 232 U. S. 647,
660; Ana MariaSugar Co. v. Quinones, 254 U. S. 245, 251;
cf. West v. Rutledge Timber Co., 244 U. S. 90, 99, 100;
United States v. Tennessee & Coosa R. R., 176 U. S.
242, 256.
Decree affirmed.
BUCK v. BELL, SUPERINTENDENT.
ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE
OF VIRGINIA.'
No. 292. Argued April 22, 1927.--Decided May 2, 1927.
1. The Virginia statute providing for the sexual sterilization of
inmates of institutions supported by the State who shall be found
to be afflicted with an hereditary form of insanity or imbecility,
is within the power of the State under the Fourteenth Amendment.
P. 207.
2. Failure to extend the provision to persons outside the institutions
named does not render it obnoxious to the Equal Protection Clause.
P. 208.
143 Va._310, affirmed.
ERROR to a judgment of the Supreme Court of Appeals
of the State of Virginia which affirmed a judgment order-
BUCK v. BELL.
200 Argument for Plaintiff in Error.
ing the Superintendent of the State Colony of Epileptics
and Feeble Minded to perform the operation of salpingec-
tomy on Carrie Buck, the plaintiff in error.
Mr. I. P. Whitehead for plaintiff in error.
The plaintiff in error contends that the operation of
salpingectomy, as provided for in the Act of Assembly, is
illegal iMithat it violates her constitutional right of bodily
integrity and is therefore repugnant to the due process of
law clause of the Fourteenth Amendment. In Munn v.
Illinois, 94 U. S. 143, this Court, in defining the meaning of
"deprivation of life," said: "The inhibition against its
deprivation extends to all those limbs and faculties by
which life is enjoyed. The deprivation not only of life but
whatever God has given to everyone with life
is protected by the provision in question." The operation
of salpingectomy clearly comes within the definition. It
is a surgical operation consisting of the opening of the
abdominal cavity and the cutting of the Fallopian tubes
with the result that sterility is produced. It is true the
Act of Assembly does provide for a hearing before the ster-
ilization operation can be performed, and that that hearing
may be in a court of law in case of appeal, but this fact
standing alone does not meet the constitutional require-
ment of due process of law.
In determining whether the constitutional requirement
has been observed we must look to the substance rather
than the form of the law. Chicago R. Co. v. Chicago;
166 U. S. 226-'Simmons v. Craft, 182 U. S. 427; for form
of the procedure cannot convert the process used into due
process of law, if the result is to illegally deprive a citizen
of some constitutional right. Chicago R. Co. v. Chicago,
supra. Neither can the State make a proceeding due
process of law by declaring it to be such. If this were not
so, there could be no restraint on the power of the legis-
lature. Murry v. Hoboken L. & I. Co., 18 How. 272;
OCTOBER TERM, 1926.
Argument for Plaintiff in Error. 274 U. S.
Hurtado v. California, 110 U. S. 516. The test of due
process of law is that the proceedings shall be legal, pre-
serving the liberty of the citizen. The inherent right of
mankind to go through life without mutilation of organs
of generation needs no constitutional declaration.
The Act denies to the plaintiff and other inmates of the
state colony for epileptics and feeble minded the equal
protection of the laws guaranteed by the Fourteenth
Amendment. "The mere fact of classification is not
sufficient to relieve a statute of the reach of the equality
clause." Gulf, Colo. R. R. Co. v. Ellis, 165 U. S. 150;
and the classification must be based upon some reason-
able grounds in the light of the purpose sought to be at-
tained by the legislature and must not be an arbitrary
selection.
The object of the Act is to prevent the reproduction of
mentally defective people. "The legislature cannot take
what might be termed a natural class of persons, split this
class in two and then arbitrarily designate the dissevered
factions of the original unit as two classes and thereupon
enact different rules for the government of each." State
v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400;
Alexander v. Elizabeth, 56 N. J. L. 71; Haynes v. Lapeer,
201 Mich. 138; Smith v. Command, 231 Mich. 409;
Smith v. Bd. of Examiners, 85 N. J. L. 46.
If this Act be a valid enactment, then the limits of the
power of the State (which in the end is nothing more than
the faction in control of the government) to rid itself
of those citizens deemed undesirable according to its
standards, by means of surgical sterilization, have not been
set. We will have "established in the State the science of
medicine and a corresponding system of judicature." A
reign of doctors will be inaugurated and in the name of
science new classes will be added, even races may be
brought within the scope of such regulation, and the worst
forms of tyranny practiced. In the place of the constitu-
BUCK v. BELL.
200 Argument for Defendant in Error.
tional government of the fathers we shall have set up
Plato's Republic.
Mr. Aubrey E. Strode for defendant in error.
The act does not impose cruel and unusual punishment.
A constitutional provision prohibiting the infliction of
cruel and unusual punishment is directed against punish-
ment of a barbarous character, i nvolving torture, such as
drawing and quartering the culprit, burning at the stake,
cutting off the nose, ears or limbs, and the like, and such
punishments as were regarded as cruel and unusual at the
time the Constitution was adopted. Hart v. Common-
wealth, 131 Va. 741; In re Kemmler, 136 U. S. 436; Collins
v. Johnson, 237 U. S. 509; Weems v. United States, 217
U. S. 349. In State v. Felin, 70 Wash. 65, which was a
criminal case, it was expressly held that an asexualization
operation, vasectomy in that case, was not a cruel punish-
ment. This Court held in the Weems Case, supra, that
the provision of the federal Constitution (Amendment
VIII) does not apply to state legislatures.
The Act affords due process of law. Commission v.
Hampton Co., 109 Va. 565; Mallory v. Va. Colony for
Feeble Minded, 123 Va. 205; Anthony v. Commonwealth,
142 Va. 577. The Act is a valid exercise of the
police power. The courts generally are indisposed to
suffer the police power to be impaired or defeated by
constitutional limitations. Barbierv. Connolly, 113 U. S.
27; ShenandoahLime Co. v. Governor, 115 Va. 875. Sec-
tion 159 of the Constitution of Virginia provides that" the
exercise of the police power of the State shall never be
abridged." An exercise of the police power analogous to
that of the statute here in question may be found in the
compulsory vaccination statutes; forthere, as here, a sur-
gical operation is required for the protection of the indi-
vidual and of society; and that requirement has been
upheld when imposed upon school children only, those at-
204 OCTOBER TER1M, 1926.
Argument for Defendant in Error. 274 U. S.
tending public institutions of learning, though not imposed
upon the public as a whole. Jacobsonv. Massachusetts,197
U. S. 11; Viemester v. White, 179 N. Y. 235. The State
may and does confine the feeble minded, thus depriving
them of their liberty. When so confined they are by segre-
gation prohibited from procreation-a further deprivation
of liberty that goes unquestioned. The appellant is under
the Virginia statutes already by law prohibited from
procreation. The precise question therefore is whether
the State, in its judgment of what is best for appellant
and for society, may through the medium of the opera-
tion provided for by the sterilization statute restore her
to the liberty, freedom and happiness which thereafter
she might safely be allowed to find outside of institutional
walls. No legal reason appears why a person of full age
and sound mind, and even though free from any disease
making such operation advisable or necessary, may not by
consent have the operation performed for the sole purpose
of becoming sterile, thus voluntarily giving up the capacity
to procreate. The operation therefore is not legally
malum in se. It can only be illegal when performed
against the will or contrary to the interest of the patient.
Who then is to consent or decide for this appellant whether
it be best for her to have this operation? She cannot
determine the matter for herself both because being not
of full age her judgment is not to be accepted nor would
it acquit the surgeon, and because she is further incapaci-
tated by congenital mental defect.
The statute is part of a general plan applicable to all
feeble-minded. It may be sustained as based upon a rea-
sonable classification. In Virginia, marriage with the
very class here involved, viz., feeble-minded inmates of
state institutions, is prohibited, and its consummation
visited with heavy penalties of the law. In Wisconsin,
a statute requiring male applicants for marriage to
file a physician's certificate of freedom from disease
BUCK v. BELL.
200 Opinion of the Court.
was sustained in Peterson v. Widule, 157 Wis. 641. See
also Maynard v. Hill, 125 U. S. 190. The validity of
a statute prohibiting the marriage of epileptics was sus-
tained in Gould v. Gould, 78 Conn. 242. See Kinney v.
Conn, 30 Grat. 858; Smith v. Board, 85 N. J. L. 46,
distinguished and criticized.
Mr. JUSTICE. HOLMEs delivered the opinion of the
Court.
This is a writ of error to review a judgment of the
Supreme Court of Appeals of the State of Virginia, affirm-
ing a judgment of the Circuit Court of Amherst County,
by which the defendant in error, the superintendent of
the State Colony for Epileptics and Feeble Minded, was
ordered to perform the operation of salpingectomy upon
Carrie Buck, the plaintiff in error, for the purpose of
making her sterile. 143 Va. 310. The case comes here
upon the contention that the statute authorizing the
judgment is void under the Fourteenth Amendment as
denying to the plaintiff in error due process of law and
the equal protection of the laws.
Carrie Buck is a feeble minded white woman who was
committed to the State Colony above mentioned in due
form. She is the daughter of a feeble minded mother
in the same institution, and the motherof an illegitimate
feeble minded child. She was eighteen years old at the
time of the trial of her case in the Circuit Court, in the
latter part of 1924. An Act of Virginia, approved March
20, 1924, recites that the health of the patient and the
welfare of society may be promoted in certain cases by
the sterilization of mental defectives, under careful safe-
guard, &c.; that the sterilization may be effected in males
by vasectomy and in females, by salpingectomy, without
serious pain or substantial danger to life; that the Com-
monwealth is supporting in various institutions many
defective *persons who if now discharged would become
206 OCTOBER TERM, 1926.
Opinion of the Court. 274 U. S.
a menace but if incapable of procreating might be dis-
charged with safety and become self-supporting with
benefit to themselves and to society; and that experience
has shown that heredity plays an important part in the
transmission of insanity, imbecility, &c. The statute
then enacts that whenever the superintendent of certain
institutions including the above named State Colony shall
be of opinion that it is for the best interests of the pa-
tients and of society that an inmate under his care should
be sexually sterilized, he may have the operation per-
formed upon any patient afflicted with hereditary forms
of insanity, imbecility, &c., on complying with the very
careful provisions by which the act protects the patients
from possible abuse.
The superintendent first presents a petition to the
special board of directors of his hospital or colony, stating
the facts and the grounds for his opinion, verified by
affidavit. Notice of the petition and of the time and
place of the hearing in the institution is to be served
upon the inmate, and also upon his guardian, and if there
is no guardian the superintendent is to apply to the Cir-
cuit Court of the County to appoint one. If the inmate
is a minor notice also is to be given to his parents if any
with a copy of the petition. The board is to see to it
that the inmate may attend the hearings if desired by
him or his guardian. The evidence is all to be reduced
to writing, and after the board has made its order for
or against the -operation, the superintendent, or the
inmate, or his guardian, may appeal to the Circuit Court
of the County. The Circuit Court may consider the
record of the board and the evidence before it and such
other admissible evidence as may be offered, and may
affirm, revise, or reverse the order of the board and enter
such order as it deems just. Finally any party may apply
to the Supreme Court of Appeals, which, if it grants the
appeal, is to hear the case upon the record of. the trial
BUCK v. BELL.
200 Opinion of the Court.
in the Circuit Court and may enter such order as it thinks
the Circuit Court should have entered. There can be no
doubt that so far as procedure is concerned the rights of
the patient are most carefully considered, and as every
step in this case was taken in scrupulous compliance with
the statute and after months of observation, there is no
doubt that in that respect the plaintiff in error has had
due process of law.
The attack is not upon the procedure but upon the sub-
stantive law. It seems to be contended that in no cir-
cumstances could such an order be justified. It certainly
is contended that the order cannot be justified upon the
existing grounds. -Thejudgment finds the facts that have
been recited and that Carrie Buck "is the probable poten-
tial parent of socially inadequate offspring, likewise af-
flicted, that she may be sexually sterilized without detri-
ment to her general health and that her welfare and that
of society will be promoted by her sterilization," and
thereupon makes the order. In view of the general dec-
larations of the legislature and the specific findings of
the Court, obviously we cannot say as matter of law that
the grounds do not exist, and if they exist they jus-
tify the result. We have seen more than once that
the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call
upon those who already sap the strength of the State
for these lesser sacrifices, often not felt to be such by those
concerned, in order to prevent our being swamped with
incompetence. 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.
The principle that sustains compulsory vaccination is
broad enough to cover cutting the Fallopian tubes.
Jacobson v. Massachusetts, 197 U. S. 11. Three genera-
tions of imbeciles are enough.