COUNSEL FOR JOHN H. BELL, SUPERINTENDENT OF VIRGINIA'S
STATE COLONY OF EPILEPTICS AND FEEBLE MINDED:
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 punishment of a barbarous character, involving 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. In State v. Felin, which was a criminal case, it was expressly held that an asexualization operation, vasectomy in that case, was not a cruel punishment. This Court held in the Weems Case, that the provision of the federal Constitution (Amendment VIII) does not apply to state legislatures.
The Act affords due process of law. 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. Section 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; for there, as here, a surgical operation is required for the protection of the individual and of society; and that requirement has been upheld when imposed upon school children only, those attending public institutions of learning, though not imposed upon the public as a whole. The State may and does confine the feeble minded, thus depriving them of their liberty. When so confined they are by segregation 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 operation 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 incapacitated 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 reasonable 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 was sustained in Peterson v. Widule. The validity of a statute prohibiting the marriage of epileptics was sustained in Gould v. Gould.