The gap between the spirit of a law and how it actually works can catch even its authors by surprise.
Two court rulings last week involving a law to help some of North Carolina’s most shockingly victimized residents made for a particularly troubling example.
Under a 40-year state program that ended in 1974, more than 7,500 men, women and children were sterilized or castrated. Some 500 of the cases handled by the state Eugenics Board came out of Mecklenburg – by far the most from any single county. Many targets were poor, under-educated and disproportionately black.
Four decades later, the General Assembly set aside $10 million to compensate the victims and their families. Yet the language used to write the country’s first eugenics compensation law continues to exclude some of the very people it should help.
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Two opinions from the N.C. Court of Appeals hammered home the point. In one, a divided three-judge panel upheld an earlier decision to deny benefits to survivors of three eugenics victims who died before June 30, 2013 – the eligibility deadline set by the legislature.
The second case occurred not far from Charlotte. In 1974, right around Thanksgiving, a pregnant 22-year-old Cleveland County woman received an ultimatum from her caseworker with the Department of Social Services: Be sterilized and agree to an abortion or I’ll take away your two children.
Unlike many of the other targets, the woman was married and white. But she was poor and, according to court documents, felt powerless to resist.
The DSS worker drove the woman to a Shelby hospital. When the doctor asked her if she wanted to have the operations, the woman wavered, then shared the caseworker’s threat. The doctor said he wouldn’t operate.
The DSS worker, documents say, took the woman into the hallway, slammed her repeatedly against the wall and again threatened to break up her family.
“I cried all night ... and because (DSS) had custody of me, I had to have the surgery,” the woman recalled in records.
This week, more than 40 years after her ordeal, the appeals court backed an earlier ruling that denied the woman reparations. The judges’ reasoning: The money was set aside only for victims sterilized through the eugenics board.
Advocates say the ruling – and the law – ignores the plight of hundreds of other cases like the Cleveland County woman where the government illegally bypassed the official eugenics board to speed sterilizations along.
“There is no question the General Assembly was doing the right thing,” says the woman’s attorney, Bob Bollinger of Charlotte, who is part of a team that took on these cases for free and also represents a Mecklenburg client. “But the way the law was written, they’re denying the rights of some of the victims. They didn’t realize there would be these people that individual counties sterilized against their wills.”
Elizabeth Haddix, staff attorney for the UNC Center for Civil Rights, says about 20 sterilization appeals are now lining up at the appeals court. There won’t be more – the window for requesting compensation closed in 2014 – so reparations for the remaining victims can easily be covered by the original money.
Both the law and the courts “are requiring the victim to produce a piece of paper,” she says. “Our clients should not have the burden to produce this. This is restitution for a constitutional violation the state inflicted on these families, not the other way around.”
State Sen. Jeff Jackson, a Mecklenburg Democrat, agrees. He says support – including that of U.S. Sen. Thom Tillis – is quietly mobilizing behind a bipartisan effort to fix the state law when the legislature convenes in April.
Tillis, who helped pass the N.C. law, has introduced a federal bill to exclude eugenics awards from federal taxes and fees. A Tillis spokesman said the senator also is working behind the scenes to improve the state program so that “we keep our promises to victims.”
Jackson says the General Assembly’s reluctance to deal with the loopholes stems from “the painful political debate” the issue elicits.
“This is an ugly can of worms that some folks would rather not open,” he says. “But I haven’t heard anyone who is not highly sympathetic to the people who have been left out. The spirit of the law applies to them. We need to make sure the letter of the law catches up as well.”