NC Ass'n for Retarded Children v. State of NC

• Decision Date: 01 October 1976
• Docket Number: Civ. No. 3050.
• Citation: 420 F. Supp. 451
• Parties: NORTH CAROLINA ASSOCIATION FOR RETARDED CHILDREN et al., Plaintiffs, and United States of America, Plaintiff-Intervenor, v. STATE OF NORTH CAROLINA et al., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

420 F. Supp. 451

NORTH CAROLINA ASSOCIATION FOR RETARDED CHILDREN et al., Plaintiffs, and United States of America, Plaintiff-Intervenor, v. STATE OF NORTH CAROLINA et al., Defendants.

Civ. No. 3050.

United States District Court, M. D. North Carolina, Raleigh Division.

October 1, 1976.

COPYRIGHT MATERIAL OMITTED

Irvin B. Tucker, Jr., Raleigh. N. C. (Blanchard, Tucker, Twiggs & Denson, Raleigh, N. C.), for plaintiffs.

Louis M. Thrasher and Thomas R. Sheran, U. S. Dept. of Justice, Washington, D. C., for plaintiff-intervenor.

William F. O'Connell, Sp. Deputy Atty. Gen., and Isaac T. Avery, III, Associate Atty., N. C. Dept. of Justice, Raleigh, N. C., for defendants.

Before CRAVEN, Circuit Judge, LARKINS, Chief District Judge, and DUPREE, District Judge.

CRAVEN, Circuit Judge:

What is now before this three-judge court is a piece of a much more ambitious lawsuit that involves the whole panoply of constitutional rights of mentally retarded persons in North Carolina. Because the legislature of North Carolina has changed or repealed most of the statutes relating to the treatment, training, and education of retarded children, we have concluded that all such questions presented by the pleadings should be severed from the issue relating to the constitutionality of the sterilization statute as applied to mentally retarded persons. We have retained only the latter, and have remanded all other questions to a single judge of the Eastern District of North Carolina for decision.

I.

Based upon the pleadings and documents received in evidence or judicially noticed, and upon the depositions and the live testimony heard at Wilmington, North Carolina, we make the following ultimate findings of fact:

1. The statute under attack is N.C.Gen. Stat. §§ 35-36 through -50, entitled Article 7, Sterilization of Persons Mentally Ill and Mentally Retarded. Plaintiffs attack its constitutionality as applied and applicable to mentally retarded persons.

2. As defined by the American Association of Mental Deficiency, mental retardation refers to significantly subaverage general intellectual functioning existing concurrently with defects in adaptive behavior and manifested during the developmental period.¹

3. Another section of the same North Carolina Chapter defines mental defective as follows:

A "mental defective" shall mean a person who is not mentally ill but whose mental development is so retarded that he has not acquired enough self-control, judgment, and discretion to manage himself and his affairs, and for whose own welfare or that of others, supervision, guidance, care, or control is necessary or advisable. The term shall be construed to include "feeble-minded," "idiot," and "imbecile."

N.C.Gen.Stat. § 35-1.1.

4. Sterilization is a drastic procedure, almost impossible to reverse in females and difficult and uncertain to reverse in males, that is intended to be permanent and prevent procreation. It is not, medically speaking, a dangerous procedure.

5. Most competent geneticists now reject social Darwinism and doubt the premise implicit in Mr. Justice Holmes' incantation that ". . . three generations of imbeciles is enough." But however doubtful is the efficacy of sterilization to improve the quality of the human race, there is substantial medical opinion that it may be occasionally desirable and indicated. Not even Dr. Clements, who testified for the United States and expressed strongly his general disapproval of sterilization for the mentally retarded, would go so far as to say that in an extreme case he would not use an involuntary sterilization statute if available. We think it a fair statement, from the expert testimony we have heard and read, to say that the best opinion presently is that rarely would a competent doctor recommend involuntary sterilization— but that he might do so in an extreme case. As a corollary to that proposition, it is also fair to say, we think, that prevalent medical opinion views with distaste even voluntary² sterilization for the mentally retarded and is inclined to sanction it only as a last resort and in relatively extreme cases. In short, the medical and genetical experts are no longer sold on sterilization to benefit either retarded patients or the future of the Republic.

6. The statute under attack became effective January 1, 1975. Since that time, only one resident of a North Carolina mental retardation center has undergone sterilization pursuant to the statutory procedure.

7. Between June 1970 and April 1974, 23 sterilizations were performed upon residents of North Carolina's mental retardation centers pursuant to the provisions of the preceding statute. Viewed over a longer time span, there has been a diminishing frequency in use of the sterilization procedure, reflecting, we think, diminishing confidence of medical doctors in its efficacy for any purpose except to prevent conception. That it will do.

8. Mental retardation is a difficult, complex phenomenon. The nature of retardation, its causes and effects are not susceptible to facile generalizations. The problem in this litigation is compounded in that the plaintiff class is very broadly defined, and includes all mentally retarded persons in North Carolina, regardless of their ages, the causes of their retardation, the degree of their intellectual, mental and social capabilities, their prospects for future growth and development.

9. Some general propositions nevertheless must be regarded as established by the evidence in this case. We emphasize that the following statements do not apply to all or even a majority of the plaintiff class. All, however, are true with respect to at least some members of the class:

(a) Mental retardation in some cases has as its cause an identifiable genetic defect. Under some circumstances it is within the capability of modern medical and genetical science to establish that the genetic defect is inheritable and that there is a significant probability or substantial likelihood that the offspring of a mentally defective parent would also be retarded.

(b) Mental retardation in some cases can be traced to an environment which blocks or shrinks the mental and intellectual development of a child. Under some circumstances it is within the capability of modern medical and sociological science to determine that a mentally retarded parent or parents would be incapable of providing offspring with an environment in which a child could reasonably be expected to develop in a normal manner. As a corollary to this proposition, it is in some cases possible to predict with substantial accuracy that a mentally retarded person would be incapable of discharging the responsibilities of parenthood.

(c) While mentally retarded persons may be entitled to express themselves sexually, it can in some cases be determined that a mentally defective person does not understand or cannot appreciate the natural consequences of sexual activity. It can, likewise, be determined in some cases that the conception of a child is neither the intention nor the expectation of the sexually active mental retardate.

(d) Some mentally retarded persons who are sexually active may not want children. While many sexually active retarded persons are capable of employing various methods of birth control effectively, some are incapable of effective voluntary contraception.

(e) In rare and unusual cases, it can be medically determined that involuntary sterilization is in the best interests of either the mentally retarded person or the State or both.

II.

The statute is applicable to persons "mentally ill" or "mentally retarded," but we are here concerned only with those provisions which relate to mentally retarded persons.

The statute authorizes both voluntary and involuntary sterilizations. It applies to mentally defective persons housed in state institutions and those who are not patients in state institutions. In the case of a patient who is confined in a state institution, the person in charge of the sterilization procedure is the director of the institution. For retarded persons not in state institutions, the key official is the county director of Social Services. The appropriate state or county official is authorized by the statute to petition the state district court for the sterilization of the mentally retarded person when it "may be considered in the best interest of the mental, moral, or physical improvement" of the retarded person, "or for the public good." The sterilization operation, whether voluntary or involuntary, is paid for by the State or the county in which the retarded person lives.

The statute expressly provides that sterilization operations shall only be performed by qualified, licensed North Carolina physicians and then only pursuant to an order issued by an appropriate state court. If the person to be sterilized wishes to select his own physician, he may do so but must then pay for the costs and expenses of the operation. Otherwise the physician is selected by the "petitioner," i. e., the director of the institution or the county director of Social Services.

Section 35-39 makes it the duty of the petitioner to institute sterilization proceedings under the following circumstances:

(1) when he feels that sterilization is in the best interests of the mental, moral or physical improvement of the retarded person,

(2) when he feels that sterilization is in the best interests of the public at large,

(3) when, in his opinion, the retarded person "would be likely, unless sterilized, to procreate a child or children who would have a tendency to serious physical, mental, or nervous disease or deficiency; or, because of a physical, mental, or nervous disease or deficiency which is not likely to materially improve, the person would be unable to care for a child or children."

(4) when the next of kin or legal guardian of the retarded person requests that he file the petition.

We conclude that subparagraph 4 of Section 39 is...