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W.Va. considers future of sterilization law

CHARLESTON, W.Va. -- West Virginia officials are deciding if they should update or repeal a part of state law that covers involuntary sterilizations for "mentally incompetent" people.

At least one advocate thinks they should completely strike the law -- and should offer compensation to people who might have been involuntarily sterilized in the past, as other states recently have done. His group is considering some kind of legal challenge against the state.

West Virginia's circuit courts still can approve sterilizations for "mental defectives," according to Article 27-16-1 in the West Virginia State Code.

"Whenever any parent, guardian, committee or authority responsible for a person who has been declared mentally incompetent shall be of the opinion that it is in said person's best interest and the best interest of society that the said person be sterilized, such parent, guardian, committee or authority shall apply to the circuit court of the county of which such incompetent person is a resident or where he may be found," the law says.

The court may then enter a legal order designating "a duly licensed physician" to perform the "sterilization procedures."

Marsha Dadisman, spokeswoman for the state Department of Health and Human Resources, said her agency's "Chapter 27 Rewrite Group is currently looking at this chapter of the code to update language that may be outdated."

The group includes DHHR staff members, client advocates, West Virginia Supreme Court representatives and representatives of behavioral health-care providers, Dadisman said.

Mark Bold of the Christian Law Institute in Lynchburg, Va., wants West Virginia to repeal the law completely. West Virginia is the only state that still has such a law on its books, Bold told the Gazette-Mail earlier this month.

"We call on West Virginia to repeal their unconstitutional law and to recognize that the right to have children is a fundamental right for all West Virginians," Bold said.

He also hopes "to get victims to come forward" and perhaps collect payments to compensate them for being sterilized.

Bold said North Carolina is giving $50,000 in compensation to each person who comes forward who underwent state-approved sterilization -- although legislators passed a budget this year that doesn't include any money to pay them.

Bold does not know how many people in West Virginia were sterilized against their will, much less how many of them would still be alive.

Dadisman said the DHHR wouldn't necessarily know about all of the cases, either.

"The law does not require cases be reported to the DHHR. The only involvement that [the] DHHR may have is if we bring a petition to the court involving a client in our care," she said. "[The] DHHR has not done so in many years."

Supreme Court spokeswoman Jennifer Bundy said West Virginia's forced-sterilization law hasn't been invoked since the middle of the 20th century.

"The last time this law was ever used [in West Virginia] was in the 1950s," Bundy said. "It was the last time this ever happened."

Local judges who have been on the bench for decades said no one has ever tried to use the law in their courtrooms.

"I have not had any experience whatsoever with any statute like that as a circuit court judge," said Tod Kaufman, who has been a Kanawha County circuit judge since 1988.

Kanawha County Family Law Court Judge Michael Kelly said no sterilization requests have ever come before him under the law still on the books.

"The last known forced-sterilization case in the U.S. occurred in 1981. There are no current examples. I do not know of any case where that has happened.

"Some things were out of control more than 50 years ago. They were doing lobotomies at Weston [State Hospital] on a mass scale up through the 1950s. But that also stopped."

Kelly said he could envision a situation where a forced-sterilization law might still be necessary.

"Theoretically, if you have a fertile female living in an institution where she might engage in sex, I can see where concerned adult family members may want to seek approval for her sterilization in the courts," he said, "but I do not know of any case where that has happened."

The Christian Law Institute, along with a group called the Justice for Sterilization Victims Project, "is investigating whether to launch a legal challenge against West Virginia's eugenics-based forced sterilization program and requesting that the State of West Virginia repeal its unconstitutional law immediately," according to a July 11 article posted on the JSVP website, www.forcedsterilization.org.

The JSVP is "a free legal aid clinic" run by law students at the Liberty University School of Law, part of a school founded in 1971 as Lynchburg Baptist College by the Rev. Jerry Falwell.

Steve Canterbury, administrator for the West Virginia Supreme Court, said the state made use of its forced-sterilization law in the early part of the 20th century.

"Back in the 1920s and 1930s," he said, "they could sterilize anybody in West Virginia who had the slightest degree of mental handicaps, retardation, whatever."

Dadisman, the DHHR spokeswoman, said the group reviewing the law will recommend a course of action to DHHR officials, the Governor's Office and the Legislature.

"I don't know anyone who is happy this law is still on the books," Canterbury said. "The Legislature will have to change this. It is part of the code, so it will require legislative action."

Forced sterilization for so-called "undesirables" was legitimized by the U.S. Supreme Court's 1927 Buck v. Bell decision that upheld the constitutionality of sterilization laws in Virginia.

In 1942, the Supreme Court's ruling in Skinner v. Oklahoma overturned the 1927 decision.

In his opinion in the latter case, Justice William O. Douglas stated, "This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race, the right to have offspring.  . . .

"In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear."

Reach Paul J. Nyden at pjnyden@wvgazette.com or 304-348-5164.


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