Abstract

Excerpted From: Kathryn Rubin, The Case for Reparations in Puerto Rico: A Comparative Case Study of State-Sanctioned Sterilizations in Puerto Rico, North Carolina, and California, 24 Connecticut Public Interest Law Journal 76 (2024-2025) (208 Footnotes) (Full Document Requested)

This paper analyzes the state-sponsored eugenic sterilization policies that were enacted across the United States throughout the 20 century, specifically focusing on Puerto Rico, California, and North Carolina. It then explores what, if any, reparations have been provided as a form of redress. Sterilization policies such as these were by no means limited to these three locales; thirty-three other states enacted sterilization policies grounded in eugenic principles. This paper focuses on these locations in particular for three main reasons: first, both North Carolina and California have since engaged in various reparative efforts; second, the widespread nature of Puerto Rico's sterilization program demands exploration; and third, despite having had the highest rate of female sterilization in the world, there is no documentation of the survivors of the program in Puerto Rico having received reparations, as has occurred in North Carolina and California.

The eugenics movement swept the nation during the 20 century, emerging in response to several factors noted by Scholar Alfred Brophy: first, concern that government care was being directed towards disabled individuals; second, prioritization of public funds over personal autonomy; and finally, fear of threats towards white supremacy. Although many of these sterilization laws were repealed in the latter half of the 20 century, the issue is far from obsolete. Rather, it is of continued importance not only because of the lack of reparative efforts, but because those driving factors of the eugenics movement persist today and because forced sterilization is situated within the broader context of reproductive control. In part, this article argues that these harms have persisted throughout history because of the erasure of the violence from our collective memory as a society. Rendering such harms as invisible then fosters the environment in which such violence grows, unaccounted for, culminating in modern-day assaults on personal autonomy. To understand the current climate of reproductive control, it is critical to be grounded in this country's history of forced sterilization. Why? Because it reminds us of a question at the heart of such efforts to control reproduction: who is entitled to have children? The buried history of forced sterilization calls out from its shallow grave, reminding us of a past that is still playing out today: that the decision-making power to have or to not have children is an entitlement not yet held by the people but by the lawmakers.

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There ought to be a sense of urgency for reparations for the state-sanctioned sterilizations that took place in Puerto Rico for several reasons, not the least of which is the importance of addressing the harm before more surviving victims die. Reparations schemes used in both North Carolina and California, although flawed, can serve as models for other states and territories aiming to redress such harm. Reparative measures may include a myriad of approaches. Collective memory is one such approach, and one that is critical not only for reparative purposes but as a guarantee of non-repetition. Rendering certain experiences as invisible allows the violence to not only persist throughout time and space, unaccounted for, but to be reimagined. Villarosa writes:

Accounts of medical violence dating back to slavery and outlandish, supposedly scientific theories by physicians ... are greeted with shock and presented as a throwback to the past or as an aberration, the work of a few bad actors. Still, the concept of biological and psychological differences based on race and some of the deeply questionable medical theories and practices from slave times have clung stubbornly to the present, normalized in today's medical theory and practice.

The failure to develop a collective memory around the horrors of this violence heavily contributes to the perpetuation of it, but developing a collective memory is one tool to disrupt these cycles of misremembering. To prevent such harms from continuing, public memory must be reshaped by developing a collective memory that acknowledges events of state-sanctioned violence. As scholar Alfred L. Brophy states, “[t]his dark chapter of [] history is critical to the legal community's collective conscious, lest we again allow an administrative apparatus of the state to overshadow and obliterate our most dearly held freedoms.”

Of equal importance are dual considerations: what should be done to both repair the harms of the past, that have been erased from public narrative and left unaddressed, and what can be done to equip ourselves for a future that is committed to ensuring that such violence is never repeated. The marker of any just society is its willingness to bear responsibility and respond in accordance when confronted with the harm it has perpetrated. Evolution demands reflection, and reflection is the natural predecessor of accountability. We will not truly evolve as a society until we have reckoned with and made repairs for our violent history.

J.D., Northeastern University School of Law (2024). Kathryn is a Trial Attorney at the Committee for Public Counsel Services in the Mental Health Litigation Division.