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The forgotten time Ruth Bader Ginsburg fought against forced sterilization

As a founder of the ACLU Women's Rights Project, Ginsburg sued on behalf of a teenage mother to overturn a North Carolina eugenics program.

The words of the nurse, Dawn Wooten, made me recall another uterus collector, from another time, and another woman who fought back.

Apart from her legendary dissents on the Supreme Court of the United States, Ginsburg is perhaps best known for the six cases she argued before the court as director of the ACLU Women’s Rights Project, a position I’m privileged to hold now. In 1973, the year Ginsburg had her first argument before the high court, she and the Women’s Rights Project co-founder, Brenda Feigen, filed a federal lawsuit in North Carolina on behalf of Nial Ruth Cox, a Black woman who had been forcibly sterilized in 1965 as part of a gruesome state eugenics program targeted at people with mental disabilities.

Ginsburg and Feigen set out the horrific details of Cox’s story in their complaint. Cox’s family was already subject to state regulation: County officials regularly visited her mother, Devora Cox, because she received welfare benefits. When Cox became pregnant at 18, public officials told Devora that the pregnancy was proof of her teenage daughter’s immorality, and that unless she agreed to have Cox sterilized, Devora and her younger children would be cut off from public benefits. With no real choice, Devora agreed. Both she and Cox were told the procedure was reversible.

But Cox had her doubts. The day before the operation, Cox asked the doctor if she would be able to have more children afterward. “Yes, what are you worrying about? Why do you keep worrying, keep asking questions?” she said he told her. “There’s no reason to be afraid.” The same doctor filed a report describing Cox as an “18 year old mentally deficient Negro girl.” (There was no reason to believe that Cox had a mental disability or that public officials believed she did.)

By the time Cox met her ACLU lawyers in the early 1970s, she had moved from North Carolina to New York and become engaged. She’d gone to her gynecologist, eager to have more children, and was horrified to learn that the 1965 operation was not, as she’d been told, reversible. She could not carry another child. Learning this, her fiance left her. Cox then tried to adopt a 2-year-old boy, only to be turned away because she was unmarried.

The ACLU lawsuit sought $1 million in damages for Cox and asked the court to declare North Carolina’s program, officially titled “Sterilization of Persons Mentally Defective,” unconstitutional. The case made national news and was broadcast on “60 Minutes” but hit a roadblock in court several years later. North Carolina argued that Cox had been required to sue within three years of the 1965 operation — even though she hadn’t learned about its true consequences until 1970. A federal judge agreed. A three-judge panel reversed that decision in 1975, but because the sterilization program itself was no longer in effect, the court decided the ACLU’s claim that it was unconstitutional was moot.

Perhaps that’s why the Cox case has been largely forgotten, even among civil rights lawyers like me. I came across the complaint for the first time while preparing for a “fireside chat” with Justice Ginsburg at the Library of Congress before an audience of 200 gathered at the DVF Awards to honor her lifetime achievement on behalf of women. The awards were this past February, just weeks before the pandemic shut down life as we knew it. I’d planned to ask the justice about her lesser known work challenging forced sterilization, but her remarks on other topics were so enchanting that I skipped over that part of my outline to save time.

Later, at the reception, Justice Ginsburg turned to me and said, “You didn’t ask me about forced sterilization!” She had something to say about it to those assembled for the awards. I deeply regretted not giving her the opportunity to share the story with the audience then; after hearing the brave words of Dawn Wooten, I regret it even more today. As Frank O’Hara put it in a poem, “it seems they were all cheated of some / marvelous experience / which is not going to go wasted on me which is why I’m telling / you about it.”

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