Eugenics and Equality: Does the Constitution Allow Policies Designed To Discourage Reproduction Among Disfavored Groups?

Abstract

The word "eugenics" invokes disturbing images of Nazi euthanasia and Chinese forced sterilization programs. Although many Americans probably assume that eugenic practices would not be allowed within the United States, eugenics has a long history in American policy, and variants of eugenic polices are a significant, ongoing feature of our political landscape. Current equal protection jurisprudence neither acknowledges nor accounts for this phenomenon, and explicitly eugenic laws are arguably constitutional under the Supreme Court's current jurisprudence. Eugenic policies are inherently subordinating, as they place lower values on the lives of those targeted. Nevertheless, the constitutional principle addressing equality, the Equal Protection Clause, offers very limited protection against eugenic policies, because current jurisprudence focuses on non-differentiation by race, sex, and other protected classifications.