COUNSEL FOR CARRIE BUCK:
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 in that 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, 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 sterilization 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 requirement 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. 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. 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 legislature. The test of due process of law is that the proceedings shall be legal, preserving 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"; and the classification must be based upon some reasonable grounds in the light of the purpose sought to be attained 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."
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 constitutional government of the fathers we shall have set up Plato's Republic.