In July 1973, the Women’s Rights Project of the American Civil Liberties Union (ACLU) held a major press conference. Its subject, surprisingly, was not one of the landmark sex discrimination cases that project director Ruth Bader Ginsburg argued before the Supreme Court. Instead, co-director Brenda Feigen Fasteau hosted the event to announce the filing of Cox v. Stanton, a ＄1,000,000 lawsuit on behalf of Nial Ruth Cox, a twenty-six-year-old Black woman who had been involuntarily sterilized eight years earlier by the North Carolina Eugenics Board, which had declared her feeble-minded. Describing the legal brief that she and Ginsburg co-authored, Fasteau challenged North Carolina’s sterilization law as impermissibly vague and unconstitutional. It deprived women of the right to bear children, the inverse of the right to abortion that had been upheld in Roe v. Wade just a few months earlier. Whereas the Roe decision rested on a right to privacy that is arguably implicit but not explicitly stated in the U.S. Constitution, Cox v. Stanton alleged discrimination and targeted the Equal Protection Clause of the Fourteenth Amendment. “In our opinion,” Fasteau said, Cox was sterilized “because she was black, a member of a welfare family and, at the time of the operation, a minor.” Cox herself asserted that state authorities wanted “to stop Black people from having children.” Her voice faltered at times as she recounted her experiences, including the extreme poverty of her childhood and her fiancé’s decision to break off their engagement after they learned her sterility was permanent. “I’m going through a living hell,” she said, as camera shutters clicked.Footnote 1
She was not alone. In Aiken, South Carolina, about 700 miles south of the Manhattan office building where the press conference was held, a small group of Black women also had a meeting in July 1973. Some of them had been forcibly sterilized, and a young Black attorney had come to tell them about their legal rights. That attorney, Edna Smith Primus, is unknown to historians, yet it was a Supreme Court case involving her, In re Primus, that would result in a “Magna Carta” for the ACLU. She won against a legal ethics charge even as Cox v. Stanton and the organization’s wider efforts against forced sterilization lost in one courtroom after another and were largely forgotten. Although Leigh Ann Wheeler, Rebecca Kluchin, and a few other scholars have examined the ACLU’s legal battle against involuntary sterilization, public awareness has been minimal. In 2020, even the current director of the Women’s Rights Project, Ria Tabacco Mar, admitted she had never heard of the Cox case until she was preparing for an interview with Ginsburg. She intended “to ask the justice about her lesser known work challenging forced sterilization,” but Ginsburg’s reflections on other topics were “so enchanting” that Mar ended up skipping the subject entirely.Footnote 2
Such is the historical memory of the legal feminism of the 1970s, of which Ginsburg and the ACLU Women’s Rights Project were the premier example.Footnote 3 There were so many exhilarating gains, so many precedent-setting Supreme Court victories and other enchanting things to talk about, that other important but less successful efforts have been easy to overlook. Even those who have been less “enchanted”—expert commentators pointing out the race and class biases of the sex equality law that developed in the 1970s—have had good reasons to focus on a canon: the major cases and decisions that established antidiscrimination doctrine.Footnote 4 Why does it matter if Ginsburg’s “lesser known work” remains lesser known?
Broadly, it matters as evidence of some middle-class white feminists’ commitment to eradicating a form of injustice that overwhelmingly affected low-income women of color. More specifically, it matters because that very formulation—“Ginsburg’s lesser known work”—is at odds with how the Women’s Rights Project (WRP) was designed to operate. Like other ACLU projects, the WRP was always meant to be a team effort that worked from the bottom up. Its small staff and large network of volunteers would pursue individuals’ complaints even as they also worked systematically to identify all the ways in which federal and state laws disadvantaged women. In the process, they would learn to define “women’s rights” capaciously, inclusive of their plaintiffs’ needs. Nial Cox and some of the sterilization victims in Aiken were among those plaintiffs. In contrast to much scholarship that focuses on Ginsburg and her precedent-setting Supreme Court victories, I argue that their forgotten lawsuits and others brought by Black female plaintiffs show 1970s legal feminism working toward its most socially transformative potential.Footnote 5
To see this requires a detailed examination from the bottom up and attention to middle-class white feminists’ learning process. I begin with Cox, the historical and biographical contexts that shaped her experience, and the courage and self-determination she showed by seeking help from the ACLU. I then introduce the two key ACLU lawyers, Fasteau (better known after 1979 as Brenda Feigen) and Edna Smith Primus, as well as the 1973 lawsuits that launched the organization’s fight against involuntary sterilization. Next, at the very heart of the essay, I take a close look at Fasteau’s education through activism, which involved a trip to the Deep South and a consultation with a grassroots Black intellectual, Mississippi civil rights leader Fannie Lou Hamer.
It is a complicated story but one that foregrounds Black women’s agency and thought as well as the precarity of sterilization victims’ lives while also contributing to an ongoing revision of the history of “Second Wave” feminism. Since the early 2000s, a new generation of scholars has moved beyond the emotional investments in the movement that have often burdened accounts of race and class differences among activists. What was once “the trouble between us” has now become challenges they, a set of historical actors, faced. Many of those challenges were structural, the result of race and class formations and longer histories of race- and class-based struggles. To younger scholars, it has made sense that different women had different goals and used different strategies, and difference itself has looked less like failure—the absence of a beloved community among women—and more like adaptation: “a source of valuable activism and fruitful theory production,” as Mary Ann Clawson writes.Footnote 6 Similarly, this essay highlights an example of middle-class white feminists advocating for low-income women of color without losing sight of how deep and significant the race and class differences between them were. Instead, I ask how those differences were bridged. Whereas much recent scholarship has focused on feminist coalitions as the major form of collaboration across difference, my focus on the ACLU shows the value of networks, particularly a network that persisted beyond the high tide of the civil rights movement in the South.Footnote 7
The WRP tapped into this southern civil rights network when co-director Fasteau traveled south in search of additional plaintiffs for involuntary sterilization lawsuits. Her friend Gloria Steinem, with whom she had cofounded Ms. magazine and a major feminist coalition group, the Women’s Action Alliance, accompanied her and introduced her to Hamer, who had herself been forcibly sterilized. A newly discovered transcript of Hamer, Steinem, and Fasteau’s conversation in January 1974 offers an unusually intimate, real-time look at the exchange of ideas among Black and white activists at a moment when feminism was surging but also splitting along race and class lines. As scholars such as Kimberly Springer and Benita Roth have argued, the idea that 1970s feminism was a single, much less unified movement led by middle-class white women is fundamentally inaccurate. Instead, women of color were often out in front as activists took “separate roads” that led to organizationally distinct Black, Chicana, and white feminisms.Footnote 8 By traveling south in response to the Cox case, Fasteau and Steinem angled across these separate roads. The transcript of their conversation with Hamer allows us to see what each of them brought to and took away from the visit. As veterans of the 1960s, Hamer and Steinem had years of experience collaborating across race and class lines in the civil rights movement and organizations such as the National Women’s Political Caucus, which they helped found in 1971. Fasteau, who was only twenty-nine years old in 1974, had primarily worked through the WRP and the predominantly white National Organization for Women (NOW). For her, the trip south and the conversation with Hamer were especially eye-opening—“eye-opening and depressing,” as she reflected in an interview half a century later.Footnote 9
As the 1974 conversation shows, Fasteau was taking lessons from southern Black women’s experiences. She was learning, deeply and directly, about the multiple, intersecting oppressions of racism, sexism, poverty, and isolation in the rural and small-town South. Her teachers included a grassroots intellectual, Hamer. A number of recent scholars have examined Black women’s intellectual history, tracing a two-centuries-long tradition of writers and activists who understood Black women to be at the center of overlapping systems of race, class, and gender injustice. Their intersectional thought laid the groundwork for theorist Kimberlé Crenshaw, who coined the term “intersectionality” in 1989.Footnote 10 Hamer was one of the most incisive. “Long before the term intersectionality entered common parlance,” argues historian Keisha Blain, Hamer “understood her life in intersectional terms and resisted anyone, including white feminists, who recognized gender oppression but failed to grapple with the intersecting dimensions of race and class.”Footnote 11 The conversation between Hamer, Steinem, and Fasteau includes moments of such resistance and evidence of their educational impact on the two white feminists.
Although the ACLU would later work alongside many interested groups to try to prevent involuntary sterilization through public policy reform, Fasteau’s early consultation with Hamer shows that networks could be just as important as coalitions. For one thing, the ACLU’s reach into isolated communities in the Deep South gave women of color another avenue of protest: lawsuits and the publicity they could generate. For another, interacting with Hamer and other grassroots activists required national leaders such as Fasteau to consider their perspectives and adjust ACLU policies in response to them.
Indeed, the national organization could even find itself on the hook to defend its geographically remote personnel, as proved to be the case for Edna Smith Primus. A sharecropper’s daughter who had become the first Black female graduate of the University of South Carolina law school and then an ACLU volunteer, Primus must have seemed like an easy target to the racist and sexist legal establishment that charged her with unethical solicitation of clients after she presumed to inform other southern Black women about their legal rights. The ACLU’s top (white, male) leaders had no choice but to defend Primus against this specious charge, which threatened their whole enterprise of public interest or “cause” lawyering. They took her case, In re Primus, to the Supreme Court and supported the legal battle against involuntary sterilization despite significant organizational turmoil that erupted at almost precisely the same moment. The end of the Watergate crisis and the ACLU of Chicago’s decision to defend the First Amendment rights of neo-Nazis petitioning to march in Skokie, Illinois, had resulted in a 25 percent drop in membership and a ＄300,000 budget shortfall. Conservative backlash against abortion rights and ratification of the Equal Rights Amendment (ERA), both of which the ACLU had made top priorities, was also growing, and the courts were reflecting it, along with doubts about affirmative action. The backlash was stymying other groups and compelling NOW, which, as historian Katherine Turk has shown, had once benefitted from a similarly productive relationship between its national leaders and local branches, to become a top-down and virtually single-issue organization fighting to the death for the ERA.Footnote 12
Conservative backlash hindered the ACLU too, but, beholden to its national-to-grassroots network, the organization continued to fight all sorts of battles, remained committed to its litigants, and defended Primus as one of its own. As the final pages of this essay show, the ACLU won an important Supreme Court victory in In re Primus in 1978 not because American jurists upheld sterilization victims’ right to bodily autonomy (they did not), but because local and national activists’ commitment to defending that right in South Carolina put a major multipurpose civil rights organization that had been active for half a century under existential threat. At the spearpoint of that threat stood Primus. Like the South Carolina sterilization victims she hoped to help, like Nial Cox, and like Black female litigants of earlier eras, Primus asserted a rights claim that, because she was a Black woman, shook the nation’s racist and sexist legal edifice.Footnote 13 A difference is that, with the whole ACLU behind her and a less controversial complaint than the notion that low-income women of color ought not to be cut into and robbed of their fertility without their informed consent, she won.
A Potential Plaintiff Who Walked in Unsolicited
When Nial Cox arrived in Brenda Feigen Fasteau’s office at the Women’s Rights Project in early 1973, she managed to introduce herself but was too upset to launch right into her concerns. She pulled a scrap of paper from her handbag and asked Fasteau to read it. “On it were the words ‘bi-lateral tubal ligation.’ I asked Nial Ruth if she knew what the words meant,” Fasteau recalled. “Visibly shaken, she said she thought so.” This was Fasteau’s “first introduction” to the problem of involuntary sterilization, and she “wanted to know everything.” She asked Cox “to start at the beginning of the story” of victimization and courage that had brought her to the ACLU.Footnote 14
The true beginning of the story long predated Cox. North Carolina passed its eugenic sterilization law in 1929, seventeen years before she was born and just two years after the Supreme Court issued its landmark decision in Buck v. Bell, a Virginia case designed to test the state’s authority to sterilize inmates of state mental institutions without their consent. After Buck v. Bell, thirty states passed eugenic sterilization laws within two years, and nearly 38,000 women and more than 24,000 men would be sterilized under such laws over the next few decades. California sterilized almost a third of this number, followed by North Carolina and Virginia, with more than 8,000 and 7,000 sterilizations, respectively, by the mid-1970s. Only a fraction of those sterilized were residents of state facilities, as Carrie Buck had been. In North Carolina, that fraction was three-fifths for the period from 1933–1949 but less than three-tenths from 1950–1966.Footnote 15
The post–World War II years saw an overall decline in state-ordered sterilizations as gradual changes in scientific thought and the atrocities of the Nazi regime discredited eugenic theory. But three southern states—Georgia, North Carolina, and Virginia—actually expanded their programs, sterilizing twice as many people in 1958 as they had in 1944. Historians such as Johanna Schoen and Rebecca Kluchin have shown that changes in welfare policy drove changes in sterilization practices. Prior to World War II, southern states’ Jim Crow regimes largely excluded African Americans from Aid to Dependent Children and other social programs. As federal pressure compelled their greater inclusion after the war, a new calculus emerged and the “target demographic” of decades-old laws “changed from poor white women to poor women of color.” In North Carolina, this shift is starkly evident in numbers: African Americans had made up 23 percent of the total number of people sterilized under the authority of the Eugenics Board in the 1930s and 1940s. By 1966, the figure was 64 percent.Footnote 16
Old laws and state bureaucracies were only part of a larger story. As access to medical care expanded, unknown numbers of doctors acted on their own neo-eugenic and, often, paternalistic attitudes by performing “Mississippi appendectomies”—sterilization surgeries completed without the patient’s knowledge or consent while they were in for other treatments. Surgeons rationalized their actions by telling themselves and others that they were doing poor women a favor, especially if they already had two or three children to raise. Nevertheless, some doctors and hospital administrators clearly understood the economics of the welfare system in a two-fold way, objecting as taxpayers to the cost of social programs while collecting payments from the government for every sterilization procedure they persuaded or coerced a patient to undergo.Footnote 17
By the late 1960s, the pattern of sterilization abuse had shifted again, with more doctors in more places sterilizing patients while making sure they signed consent forms, whether or not they understood them or actually wanted the surgeries they authorized. Outside the South, Black women were not always the primary targets. In southwestern states, concerns about immigration made Mexican and Mexican American women frequent victims, especially as medical personnel exploited language barriers. In New York City, poor and supposedly “hyperfertile” Puerto Rican women were often targeted. Meanwhile, in rural areas, Native American women receiving medical care through the federal Indian Health Service suffered the highest rate of sterilization abuse per capita, amounting to a lost generation if not genocide.Footnote 18
The “visibly shaken” Nial Cox knew only her own individual part of this history when she walked into Fasteau’s office, and Fasteau knew virtually none of it. The WRP opposed involuntary sterilization on principle but had little experience with the issue.Footnote 19 For Cox and Fasteau at their first meeting, the story could only begin with Nial’s own childhood in eastern North Carolina—a childhood that “wasn’t living. It was just surviving.” Her father, a field hand and millworker, had left when Nial was small and died when she was twelve. Her mother, Devorah Cox, received welfare benefits and stayed home with her eight children in a shabby, four-room house in the town of Plymouth’s absurdly named public housing project, White City. Nial and her siblings were often hungry, had few toys, and wore hand-me-down clothes to their poorly funded, segregated schools. “Nial wasn’t the best student,” according to journalist John Railey, who interviewed Cox extensively in the early 2000s, but she was far from feeble-minded and “could be determined, even daring.” In sixth grade, she slapped a male teacher when she caught him looking up her dress. She got suspended for a week but felt it was worth it. Equally satisfying was the time when she told a white policeman to stop hassling one of her brothers, and he did.Footnote 20
Nial had a strong spirit but also felt vulnerable. After she dropped out of school and tried to find work in her teens, the precarity of her existence became clearer. The only jobs that were available made her miserable and angry. Toiling in a white woman’s home or a scorching tobacco field for ＄10 a month was not worth it. She had no money and nothing to do except spend time with her boyfriend. She knew nothing about contraception and got pregnant. Her first pregnancy ended in a miscarriage but, in the spring of 1964 when she was seventeen years old, she got pregnant again. Suddenly, the white social workers assigned to her family got busy. They knew Devorah Cox would stop receiving any welfare benefits for Nial when she turned eighteen, but they were determined to prevent Nial herself from having multiple children who, in their view, would inevitably end up on public assistance. Plus, Nial would continue to be a minor under North Carolina law until she was twenty-one, which made the compulsory sterilization process considerably easier. The local social workers could convince the Eugenics Board in Raleigh to declare her “feeble-minded” and order her to be sterilized without a hearing. All they needed was some paperwork, including a “Physicians Statement” that, in Nial’s case, was completed by a local doctor who was not a psychologist and wrote simply that she was “Mental [sic] Retarded.” A brief statement by the one psychologist who had tested Nial described her instead as “an educable girl from a poor environment,” but that was hardly an obstacle. All the social workers really needed was Devorah Cox’s signature on a consent form.Footnote 21
To obtain that signature, a young white caseworker began visiting the Coxes’ home frequently as Nial’s due date neared. She tried to make Nial feel guilty and ashamed, and she repeatedly threatened that the whole family would be eliminated from the welfare rolls unless Nial had the surgery. She also claimed the surgery was reversible, which Nial doubted but lacked the medical knowledge to assess. Nial and her mother held out for months, but the social worker kept coming even after Nial’s daughter, Deborah, was born. Nial wanted to tell this annoying woman “to just go to hell,” but she eventually grew “sick and tired of the constant pressure.” She did not want her family to suffer because of something she had done. Finally, after months of coercion, she capitulated and her mother signed the consent form.Footnote 22
The Eugenics Board did its work swiftly, and Nial’s surgery was scheduled for February 1965. The surgeon would be A. M. “Allie” Stanton, chief of staff of the Washington County hospital and a man the Coxes had known for years. Nial liked him and wanted to trust him, but, under the circumstances, all she could really do was plead with him. Did he really have to cut her? He could just pretend to do the operation, she proposed. He had to do what the welfare department told him to do, Stanton said. Besides, it was simply a matter of tying her tubes, and she could go to a doctor later and have it undone.Footnote 23
Nial was never sure she could believe this, but she only got confirmation of her fears five years later, in 1970. By this time, she was living on Long Island. She had left North Carolina for New York in the spring of 1965, entrusting her infant daughter to her mother while she cast her lot with an agency that had come through Plymouth recruiting maids. She did live-in household work for a while, studied for her certification as a nursing assistant, and landed a job at a hospital. In 1969, she returned to North Carolina briefly to reunite with her daughter. She had brought four-year-old Deborah home to her Long Island apartment and was enjoying motherhood when her gynecologist broke the bad news. After seeing her scar and persisting until the Plymouth hospital finally released her medical records, Dr. F. Peter Herzberg told her the truth. Nial sank into a depression that only deepened when her fiancé broke off their engagement. She looked into the possibility of adoption only to be told she might as well not apply unless she was married. That “simple” operation she had never wanted nor fully understood had ruined her life.Footnote 24
Over time, Nial’s gynecologist became someone she could talk to about her anger and her sorrow. He was the one who referred her to the ACLU, looking up the phone number and assuring her “they represent poor people for free.”Footnote 25 Drawing on the courage she had often shown since childhood, Cox made the call and was soon talking to Fasteau.
The ACLU Network and the 1973 Lawsuits
The epitome of a young white feminist, Fasteau was only three years older than Cox, but her life had been very different. She grew up in Chicago, the daughter of a lawyer and a homemaker, and attended private schools, where she excelled despite antisemitism. She completed her bachelor’s degree at Vassar College and went on to Harvard Law School, where the sexism she experienced turned her into a feminist. Fasteau graduated in 1969 at age twenty-five, passed the Massachusetts bar exam and, in 1970, became a lobbyist and vice president for NOW. She also grew close to Gloria Steinem. In January 1972, ACLU director Aryeh Neier asked Fasteau to become founding co-director of the WRP alongside Ruth Bader Ginsburg. In addition to the fact that Ginsburg, a professor at Columbia Law School, could only work half-time, Neier was “concerned,” he later recalled, “that though Ruth was a brilliant lawyer, she was not well connected to the emerging feminist movement.” She was also “shy and reserved,” whereas Fasteau was “outgoing.” Ten years older, with much more professional experience, “Ruth was in charge, but always treated Brenda as her equal.”Footnote 26
On their first day in the office together, Ginsburg and Fasteau co-authored a memo to explain how the WRP would do its work. Communication and collaboration with the ACLU’s extensive network of state and local affiliate offices was key. The WRP would advise affiliates about priorities, offer assistance on any sex discrimination cases they were pursuing, and “inform them about other sex discrimination cases in order to avoid unnecessary duplication of effort.” At times, the WRP directors would “themselves serve as counsel in selected cases of national significance and enlist the assistance of other lawyers … in developing these cases.” To bring as much coordination as possible to the work of legal feminism, the WRP would also “maintain and circulate an up-to-date docket of past and pending sex-discrimination litigation,” both ACLU cases and cases brought by other organizations and individuals. Ginsburg and Fasteau even planned to “develop a roster of lawyers around the country … willing to take sex-discrimination cases in their states.” They would especially encourage participation by women lawyers who had stepped away from full-time work because of family obligations.Footnote 27 Clearly, as much as they wanted to win in the Supreme Court, Ginsburg and Fasteau also wanted to mobilize a network, both within the ACLU and beyond.
Judging the Cox case to be of national significance, the WRP directors took it on themselves and enlisted the aid of North Carolina civil rights attorneys Julius Chambers and Adam Stein. They filed a lawsuit, Cox v. Stanton, against the surgeon, the hospital, the Washington County Department of Social Services, and the Eugenics Board of North Carolina. Cox’s legal team worked pro bono, as the ACLU always did, but sought ＄1,000,000 in damages for her while arguing that the state’s sterilization law was unconstitutional on First, Fourth, Fifth, Eighth, Ninth, Thirteenth, and Fourteenth Amendment grounds. Plaintiff “contends that she has been deprived of substantive and procedural due process and equal protection of the laws, that her privacy has been invaded, that the statute is impermissibly vague and that she has been the victim of cruel and unusual punishment,” the complaint read. “Plaintiff contends further that she was required to submit to an operation of sterilization especially because she is a black woman, who at the time of the operation was a minor and a member of a welfare family.” Over the years, North Carolina’s sterilization law had been “applied discriminatorily on the basis of sex, race, age, marital status, class or welfare status, and the ‘legitimacy’ of children of the person to be sterilized.”Footnote 28 As law professor Melissa Murray argues, the WRP brief stressed that Cox’s circumstances “resulted from an interlocking system of reproductive injustices” that began with her lack of knowledge of or access to contraception and extended to the discriminatory sterilization order itself and its long-term impacts, including her devaluation as a marriage partner or adoptive mother in a culture that esteemed women’s fertility within marriage and denigrated single-mother households.Footnote 29 In a word, the Cox complaint was explicitly intersectional.
While Ginsburg, as the senior partner, undoubtedly took the lead on the argumentation of the Cox v. Stanton brief, Fasteau handled publicity (Figure 1). She hosted and she, Cox, Steinem, and Eleanor Holmes Norton, who had been the ACLU’s first Black national staff member, all spoke at the July 1973 press conference. Publicity was the first step in the process by which “Fasteau transformed the WRP’s passive policy against compulsory sterilization into an active effort to end the practice.”Footnote 30
Brenda Feigen Fasteau and Nial Cox appeared in a photograph accompanying Jack Slater’s important exposé, “Sterilization: Newest Threat to the Poor,” in Ebony magazine, October 1973. Source: Photo by staff photographer, Johnson Publishing Company Archive. Courtesy J. Paul Getty Trust and Smithsonian National Museum of African American History and Culture.
The news about the Cox case may have helped motivate the women who met in Aiken, South Carolina, later that month, or they may have seen the news about another case that had been filed two weeks earlier. Mary Alice and Minnie Lee Relf were impoverished Black girls, ages twelve and fourteen, who had been sterilized in Montgomery, Alabama, in June 1973 after hospital staff and social workers in a federally funded family planning clinic coerced their mother into signing consent forms she was unable to read. After she discovered her daughters had undergone surgery rather than receiving the Depo-Provera shots she had thought she was authorizing, Minnie Relf and her husband Lonnie sought help from the Southern Poverty Law Center, which filed a ＄1,000,000 lawsuit on their behalf. News coverage of the Relf case sparked national outrage and an immediate response, including a Senate subcommittee hearing and an early July directive from Caspar Weinberger, Secretary of Health, Education, and Welfare under President Richard Nixon, that no federal funds could be used for the sterilization of minors or adults deemed legally incompetent until detailed guidelines could be developed.Footnote 31
The publicity around the Cox case added to this national firestorm, but to what extent either case prompted the meeting in Aiken is unclear. A local story seems to have had more impact. Carol Brown, a thirty-year-old white woman, complained to South Carolina authorities and the media about the sterilization policy of her obstetrician, Clovis Pierce, after he tried to apply it to her. Brown’s husband was in jail for larceny. Pregnant with their fifth child, she was incensed to find out that, because she was now on Medicaid, Pierce would no longer treat her unless she accepted his terms and conditions: sterilization upon delivery for any woman on Medicaid who already had two or more children.Footnote 32
After learning about Brown’s complaint and an investigation that resulted from it, Gary Allen, a Black businessman and community activist in Aiken, decided to organize a meeting. He was the president of United Christian Workers, a group dedicated to helping people in need get public assistance and protecting them from discrimination and abuse. Forced sterilization had been an issue of concern for Allen and his community for years. He knew multiple women whom Pierce had coerced into sterilization procedures. He “did not, however, believe that they could get help” locally. Allen turned to the South Carolina Council for Human Rights, a nonprofit organization based in Columbia, the state capital, to ask them to send someone to provide legal advice and assistance. The Council sent a young lawyer it had on retainer, Edna Smith Primus.Footnote 33
Primus was deeply familiar with the poverty, isolation, and racism experienced every day by the women she was being asked to advise. Born Edna Smith in 1944, the same year as Fasteau, she was one of seven children in a family of sharecroppers. Her father died young, leaving her mother, Hattie Walker Smith, to support the family through domestic and custodial work in the small town of Yemassee in the South Carolina Lowcountry. With the help of scholarships, Edna was able to attend high school and junior college in Beaufort, twenty-five miles away, at the Mather School, an institution founded in 1868 to educate the daughters of former slaves. She transferred to the University of South Carolina in Columbia, graduating with a bachelor’s degree in political science in 1966. She then enrolled at and, in 1972, became the first Black woman to graduate from the University of South Carolina law school. She was already active in voter education and other community service. After passing the new Multistate Bar Examination, Primus joined two friends, Herbert Buhl and Carlton Bagby, both white men, in establishing a private practice (Figure 2). Buhl was a part-time staff attorney for the small, four-year-old ACLU of South Carolina, and Primus became both a cooperating attorney and a member of its board of directors. Although it was at the behest of a client that she first went to Aiken, it was as a representative of the ACLU that Primus would become involved, and ultimately embroiled, in the fight against involuntary sterilization.Footnote 34
Edna Smith Primus was featured in The State, Columbia, South Carolina’s major newspaper, in March 1973 after she became the first Black woman admitted to the state bar association. Source: Photo by Bill Scroggins, courtesy Walker Local & Family History Center, Richland Library, Columbia. From The State. © 1973 McClatchy. All rights reserved. Used under license.
At the meeting in Gary Allen’s office, Primus offered general information about sterilization procedures and individuals’ legal rights. Later, Allen contacted her again because some of the women who had attended the meeting wanted to sue Clovis Pierce. Primus said they should request help from the ACLU of South Carolina. Two women named Virgil Walker and Shirley Brown did and eventually became plaintiffs in a lawsuit called Walker v. Pierce. Walker had seen Pierce for prenatal care in early 1973 when she was pregnant with her fourth child. She resisted his pressure to sign a sterilization consent form until her efforts to find another doctor proved unsuccessful and her due date was approaching. Then she gave up and signed the form. When a different doctor delivered her child, he got her to sign an additional consent form before Pierce ultimately sterilized her.Footnote 35
Shirley Brown (no relation to Carol Brown) had a more complicated story. She had seen Pierce when she was pregnant with her third child, but she was not on Medicaid and he did not require her to consent to be sterilized. Before delivery, however, Brown and her husband separated, and she went on maternity leave from her job at Seminole Mills, a textile factory. These temporary circumstances compelled her to go on public assistance, which brought her within Pierce’s terms and conditions for sterilization. Even though a different doctor delivered her baby, Pierce sent a nurse to her hospital room with a consent form. When Brown refused to sign it, he ordered that she be discharged immediately, less than twenty-four hours after giving birth. Although Brown’s mother offered to pay the hospital bill herself so her daughter could stay, Brown was “afraid something might happen to her” and decided to leave. When she complained to the hospital administrator about her treatment, he said there was nothing he could do and referred her to the hospital’s board of directors. Both he and the board would be named as defendants in Brown and Walker’s lawsuit.Footnote 36
Edna Smith Primus was never part of the plaintiffs’ legal team in Walker v. Pierce, although one of her law partners, Carlton Bagby, was, along with lawyers from the ACLU’s Southern Regional Office in Atlanta, the organization’s national legal director Melvin Wulf, and Joseph J. Levin of the Southern Poverty Law Center. Early on, Fasteau was also interested in the South Carolina women’s case. “I was thinking about class-action suits in several states and wanted to urge women to become plaintiffs,” she remembered in her autobiography. “Usually, it is improper for lawyers to seek out clients,” she noted, but the rule against solicitation was “not supposed to apply” for pro bono work.Footnote 37
Generating cases had been one goal of the press conference and a subsequent interview that Cox and Fasteau did with Mike Wallace on the popular television news show 60 Minutes. Meanwhile, Gloria Steinem was advocating that forced sterilization “be fought and fought as a coalition issue.” She wanted to write an article on the subject and so she and Fasteau decided to travel through the South together in January 1974 to do research and look for plaintiffs. A partial itinerary with background notes has survived among Steinem’s papers. It suggests they flew to Atlanta and then went to Aiken, where they met Primus, Allen, Shirley Brown, and possibly Carol Brown. Their next stop was tiny Kingstree, South Carolina, where they visited a state legislator and a woman whose nineteen-year-old daughter had gotten pregnant, requested public assistance, and been refused unless she consented to be sterilized. After talking with them, Fasteau and Steinem flew to Memphis. Then they drove more than a hundred miles south into the Mississippi Delta. Their destination was the tiny town of Ruleville.Footnote 38
When Ms. Met Mrs. Hamer
Because Steinem taped it, the conversation between her, Hamer, and Fasteau in January 1974 provides a rare glimpse of Black and white activists working out ideas and learning from each other in real time. No audio recording survives, and the typed twenty-four-page, double-spaced transcript that Steinem or, more likely, an assistant prepared is hard to follow in places.Footnote 39 Nevertheless, the three activists’ interaction reveals points of agreement, disagreement, and intellectual growth. In addition to sharing stories that shed light on the nature and extent of the problem of involuntary sterilization, they touched on a number of related issues. Most significantly, Steinem acknowledged Hamer’s early leadership in framing sterilization abuse as a political and not merely personal concern. Perhaps because she knew that Hamer objected to abortion on racial as well as religious grounds, Steinem also justified her own pro-choice stance.Footnote 40 She articulated a position on “free will” that attempted to unite opposition to forced sterilization with support for abortion rights and the voluntary sterilizations that middle-class white women were often denied if they had fewer children than medical professionals thought they should. Her expansive view was the same one the ACLU would increasingly promote and even include in the very name of its new Reproductive Freedom Project, which spun off from the WRP in 1974.Footnote 41 While it would be overly simplistic to see this one conversation as some kind of epiphany for the two white feminists, it was part of a trajectory of intellectual and policy development. Meanwhile, the conversation and the trip south did open Fasteau’s eyes, or opened them wider, to the realities of southern Black women’s intersecting oppressions. Even without audio, her outrage comes across as she grapples with the precarity and lack of recourse that her potential plaintiffs experienced every day.
A major topic of the conversation between Fasteau, Steinem, and Hamer was what it meant to have one’s “tubes tied.” Whether doctors were tying or cutting women’s fallopian tubes was a matter of uncertainty for Hamer, leading her visitors to explain that “tying” always involved cutting and that there was “one chance in ten at the most” that a subsequent surgery could restore a woman’s fertility. “They really lie about it,” Steinem observed, presumably referring to doctors and nurses. Even though she knew about these deceptions, however, Steinem was struck by the pervasiveness of the misunderstanding. “I didn’t realize before we started doing this thing how much people think that tied means they can be untied,” she commented. “Well, they really think that,” Hamer confirmed. She described several women from her community who had been led to believe the procedures were easy to reverse or even that their tubes would “untie” on their own. Earlier in their trip, Steinem and Fasteau had heard the same thing. “We were talking to a young woman in Atlanta who had been sterilized when she was fifteen, fourteen, and she’s now sixteen,” Steinem said. “She just got married and the doctor told her that the tubes would automatically become untied in five years. That’s ridiculous. It’s totally untrue. And women just have to know what to ask.”Footnote 42
Hamer’s own experience belied the hope that knowing what to ask could prevent sterilization abuse, and she called attention to this fact just minutes into the interview. She had needed surgery in 1961 to remove a small tumor from her uterus. The doctor had performed a hysterectomy instead, without her consent and without even telling her. “They never asked me nothing and I [found] out what happened to me … through the grapevine,” she stressed. Hamer went on to point out that she had told her story “in the early sixties when I first become a part of the movement … and nothing was done and I said I’m going to stop telling anybody about that. What good is it doing[?] And I just quit saying anything about it,” she said, perhaps deliberately putting the ball in the two white feminists’ court (Figure 3).Footnote 43
Fannie Lou Hamer at the Democratic National Convention in August 1964. Hamer had become the first activist to raise the issue of sterilization abuse in public earlier that year. Source: Photo by Warren K. Leffler, U.S. News & World Report Magazine, Public domain, via Wikimedia Commons.
Steinem was ready for it. She seized on Hamer’s dispirited remarks to offer a nascent interpretation of the differences she hoped the development of an organized women’s movement would make. “I remember even in the SNCC [Student Non-Violent Coordinating Committee] days in Atlanta,” Steinem said, “there weren’t enough women in the movement that saw this as a kind of political issue. It was kind of a woman’s thing. It wasn’t taken very seriously, at the time. But now that [there] has been a little more publicity …,” Steinem trailed off as someone entered the room, interrupting the conversation.Footnote 44
Steinem’s optimism may have kindled some sense of renewed possibility in Hamer. She appreciated the legal and medical knowledge her visitors were offering and thought “there might be a time when you all have to come back down here” to talk to people, especially those with daughters. She believed “this kind of stuff needs to be brought to an audience: how these folks have fouled women. Cause it’s been women fouled; they been told I’m going to tie them up now and they come loose year after next. And year after next they having fits with headaches and cramps and all that kind of stuff.” As someone who had suffered from the abrupt onset of menopause after her involuntary hysterectomy, Hamer stressed the physical and mental effects of such abusive procedures. “People become nervous,” she interjected at a later point in the conversation. Fasteau, who seems to have understood the word “nervous” in terms of depression and anxiety, agreed. “Every woman who becomes sterilized has said the same things so I believe it,” she replied.Footnote 45
Steinem probably believed it, too, but she took Hamer’s comments about how women had been “fouled” in a different direction: the need for free will. The headaches and cramps were “because they had a bad operation or something,” she said. “You can have a good sterilization operation and you might want one, but the point is you ought to make the decision and nobody else should make the decision.” Freedom of choice was what mattered, and it mattered across race and class lines. As Steinem had mentioned earlier in the conversation, for white women, childbearing was almost an obligation. “There are lots of women who want to get sterilized and can’t because you’re supposed to have three kids and, especially if you’re white, you’re supposed to be over a certain age and have three kids,” she said. “You can’t make a decision for yourself either, because you are white and they want you to reproduce.” This was the flipside or second barrel of eugenic ideology, but Steinem was not arguing for a false equivalency between Black and white women’s experiences. She was saying that a voluntary sterilization surgery was “not dangerous if it’s done right” and, above all, that it was the woman who should decide.Footnote 46
Passionate about the unifying theme of choice, Steinem speculated about why reproductive rights had not often been articulated in this inclusive way (Figure 4). “Ever since I got into the Women’s Liberation Movement,” she said, “everybody’s been talking about the freedom to decide. But because of what got publicized—the big issue, abortion, [which] was important because so many women were dying of bad, illegal abortions and everything—I think people have the idea that it’s [the movement is] somehow against having children, but it’s not.” The bottom line was that “the individual should decide. So it’s just as much sterilization as anything which isn’t free will,” Steinem asserted. “And that’s only beginning now to get publicized because women are having the nerve to stand up and say what’s happening to them. It’s really important. It’s really making a difference.” Steinem thought Hamer had been “really before your time.”Footnote 47
Gloria Steinem speaking at a conference in 1975. Source: Photo by Jay Godwin, Public domain, via Wikimedia Commons.
At least per the transcript, Hamer never got a chance to respond to Steinem’s statements about free will because their conversation was interrupted once again. Perhaps she would have emphasized the obstacles to autonomy that impoverished Black women in the rural South faced and how much those obstacles differed from the societal pressure to reproduce that hampered white women. If so, she would have continued to be ahead of her time in articulating elements of the reproductive justice ideology that Black feminists would so name only two decades later and advance through new organizations such as SisterSong, founded in 1997. By defining reproductive justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities” [emphasis added], SisterSong identifies some of the material prerequisites for genuine autonomy.Footnote 48 Sitting in Hamer’s busy home, Steinem was outlining a philosophy on reproductive freedom that was new and progressive in 1974, but Hamer’s grounding in the lived experience of her community may well have kept questions of power and justice at the front of her mind. That certainly seems to have been the case at the inaugural meeting of the National Women’s Political Caucus in 1971, when Hamer said that, while listening to the mostly white and middle-class speakers, “I’ve thought about if they’ve had problems, then they should be black in Mississippi for a spell.”Footnote 49
While Steinem made the feminist and reproductive rights connections during the conversation with Hamer, Fasteau sought a better understanding of the race and class issues. She and Steinem had eaten lunch with civil rights activist and Georgia state legislator Julian Bond a day or two earlier. Fasteau noted that “he, I think, he believes the sterilizations that took place” from the 1940s through the early 1960s “were really racially motivated.” She continued, “I guess that we all agree now that that’s got to be partially true.” But did Hamer think the motivations had changed over time? Fasteau said her “personal feeling is that it has got a lot to do with welfare, and that it happens to almost all women, and the major social force on the doctors—[the] Eugenics Board, they call them in North Carolina—is to keep society from having to pay for these welfare women.” To keep from having to pay for them regardless of their race, the logic of her phrasing and her reference to “almost all women” seemed to imply.Footnote 50
Though somewhat difficult to follow, this part of the conversation was a key moment when Hamer resisted a white feminist’s formulation of ideas in favor of intersectionality. Fasteau’s nascent interpretation was semi-accurate: The expansion of the federal welfare system, especially Medicaid, plus the growth of the medical care industry in general was bringing more women in more places and from more racial and ethnic groups into contact with doctors who might want to sterilize them, either to reduce the welfare rolls or to collect fees from the government or both. Nevertheless, Fasteau’s attempt to distinguish between racist and economic motivations seems to have made little sense to Hamer, who answered with halting uncertainty but ultimately came down on the side of continuity as well as “animosity and hate and all this kind of stuff.”Footnote 51 Perhaps Hamer’s response helped Fasteau see that the race, class, and gender aspects of poor Black women’s experiences were so thoroughly intertwined as to make the question of whether it was racism or economics that led to their victimization nonsensical. She and Ginsburg had gotten it right when they said in their brief that Cox had been targeted “especially because she is a black woman, who at the time of the operation was a minor and a member of a welfare family.”Footnote 52 All four aspects of race, gender, age, and class had been significant, as was Cox’s location in a southern state with a long history of eugenic practices.
Fasteau was interrogating the relationships between race, class, and gender discrimination because the Cox case and the trip south had opened her eyes to unfamiliar experiences in unfamiliar places that she was trying to understand from the perspectives of the people living through them. This was evident in what she told Hamer about the women she had met in South Carolina and the emotions her conversations with them had evoked. “One of them had to leave the hospital the day after the baby was born because the doctor threatened to sterilize her,” she reported, almost certainly referring to Shirley Brown. Another woman had “a very good lawsuit. In fact I know she would win.” Unfortunately, the potential plaintiff’s teenage daughter had been embarrassed by the media attention and so she had decided “she just doesn’t want the publicity, and she’s afraid. She … just feels she should let it go.” Fasteau had clearly been weighing this woman’s fear in her own mind as she tried to understand the precarity of poor southern Black women’s lives. “They fear something,” she told Hamer. “They’re afraid to stand up. I don’t think it’s just embarrassment. I think it’s something else.”Footnote 53
With another moment’s thought, Fasteau was able to say more about these potential plaintiffs’ concerns. She told Hamer that “in some cases, I think they may be worried about not being able to get any medical care.” It was a more important realization than her tentative phrasing suggests. Fear of losing access to medical care was a major factor in Black women’s forced silence. In Aiken, for example, there were only three obstetricians. All three favored sterilization to limit the number of children born to women on welfare, and only one, Pierce, would treat patients on Medicaid.Footnote 54 White, middle-class, and someone who had lived in big cities all her life, Fasteau had to think through the reality that impoverished Black women in the South had very few doctors and hospitals to choose from, not to mention other possible reasons to be fearful. Though only twenty-nine years old, she had known the anxiety of a health scare herself after discovering a lump in her breast. It turned out to be benign, but she was thankful to have had the resources “to schedule appointments with every breast cancer surgeon in New York” and to have found one who was willing to discuss options other than an immediate radical mastectomy if a biopsy proved malignant. In short, Fasteau’s race and class status did not make her immune from all hardship, but it did give her choices and a degree of personal protection that women on Medicaid in places like Aiken could hardly imagine.Footnote 55
If sterilization victims’ stifling fear was an emotion Fasteau had to think through, their anger was one she could easily grasp. She had been furious to discover that prejudiced doctors were making good money from the government while mistreating their patients. Interviewing some of those patients had intensified her anger as well as her determination to challenge such practices—to “go into court and do something. Get the doctors or get the Medicaid people,” as she told Hamer. Fasteau reintroduced the situation in South Carolina as their conversation was wrapping up. One woman had said that a “Mr. Chester or Chestnut in the OEO [Office of Economic Opportunity] welfare office … had told [her and her daughter] that they had to agree to sterilization after two so-called illegitimate children or they wouldn’t get paid.” The daughter had only a week until her due date, “no other doctor to go to, no other hospital. So this is happening with federal officers and agents saying this to people,” Fasteau fumed. “Not to mention doctors who are getting paid by Medicaid.” From the moment the Aiken news first broke, Fasteau had been surprised to hear Clovis Pierce discuss his sterilization policies openly with journalists. “He stopped being quoted when his lawyer told him to be quiet,” she told Hamer. “But his nurse has continued to talk, proudly I might say, about sterilizing people on welfare.” Even after all the publicity, Pierce’s nurse was “saying ‘the policy of Dr. Pierce’s office is, was and always will be that any woman with two or more children and on welfare will have to submit to voluntary sterilization, if she wants to be taken care of here.’ That’s a direct quote from the nurse in the office of Dr. C. H. Pierce, obstetrician, gynecologist, Aiken, South Carolina,” Fasteau seethed. “That doctor, 66,000 dollars a year from Medicaid!”Footnote 56
Fasteau’s anger shows how emotionally intense and intellectually broadening her trip to the deep South was. She came away with a better understanding of southern Black women’s experiences, recognizing, for example, that a potential plaintiff’s decision not to file a lawsuit was rooted in fear and lack of options for medical care, not passivity. Fasteau’s mission was “to figure out how I can help … as a lawyer.” She told Hamer that she “would like to be sure that we follow up because I think people don’t know that they can get a lawyer without having to pay for a lawyer, I mean with the ACLU. We take cases for nothing.” In this instance, she had even gone south looking for cases. “I have never made a trip around the country trying to find people to let me help them,” she remarked. “I have enough trouble sitting in my office right now. I have five hundred people calling every day for help.”Footnote 57
Five hundred calls a day was an exaggeration, but it drives home the fact that the WRP took up the fight against involuntary sterilization even though it had plenty of other work on its agenda. Fasteau publicized the Cox case and traveled south to find more plaintiffs. She sought out clients in a way that, as she noted in her autobiography, was usually considered improper for a lawyer to do. Her comment about this potential impropriety was not offhand; rather, it related to another part of the history of the ACLU’s legal feminism that only becomes visible, and meaningful, when we examine it from the bottom up.
A South Carolina Scapegoat and a “Magna Carta” for the ACLU
After Edna Smith Primus spoke to the group of women gathered in Gary Allen’s office in July 1973, Virgil Walker and Shirley Brown were not the only ones who wanted to sue Clovis Pierce. Twenty-year-old Marietta Williams was also interested in filing a lawsuit. She had already told her story to Nancy Hicks, one of the first Black female reporters for the New York Times, who had come to Aiken after Carol Brown’s story broke. Williams had given birth to her third child just weeks earlier, and Pierce had sterilized her. She said he had “threatened to take her to court if she did not sign the surgical consent form before delivery, so she did.” She was angry about it but had other worries. “Her new baby has been sick since birth and is still hospitalized,” Hicks wrote sympathetically. Williams was “wondering about his future and her own.”Footnote 58
Sometime after she talked to Hicks, Williams told Allen she wanted to sue, and Allen asked Primus to write and tell her whether the ACLU would take her case. Primus’s letter to Williams on August 30, 1973, read, in part:
You will probably remember me from talking with you at Mr. Allen’s office in July about the sterilization performed on you. The American Civil Liberties Union would like to file a lawsuit on your behalf for money against the doctor who performed the operation. We will be coming to Aiken in the near future and would like to explain what is involved so you can understand what is going on.
Primus’s simple prose suggests her awareness that Williams was not well educated. What she could not know was that Williams would show her letter to Pierce within days of receiving it. As with the surgical consent form, she probably felt she had no choice. She had gone to Pierce’s office for an update on her baby’s condition as well as a postpartum checkup. Presumably before she got undressed, Williams was confronted by Pierce and his lawyer, who demanded to know whether she intended to sue. They persuaded her to sign a release of liability and pointed her to a telephone, which she used to tell Primus to drop the case.Footnote 59
Although Williams called Primus again that afternoon to ask if she could still change her mind, she may not have mentioned that Pierce had both read and made a copy of her letter. That fact seems to have come to light only a year later, when Pierce’s expanding legal team sent the letter to the Board of Commissioners on Grievances and Discipline of the state bar association. Initially, Pierce’s lawyers had hoped to use it to get Walker v. Pierce dismissed on the grounds that Primus had engaged in unethical solicitation of clients for financial gain. But, at an early stage in the proceedings, a federal district judge had found “no fault with the situation out of which [Walker v. Pierce] arose with the attorneys connected with the ACL[U], in contacting … the plaintiffs.” Instead, Pierce’s lawyers decided to use the letter to punish Primus, even though she had never been part of the plaintiffs’ legal team, which was working pro bono anyway. They filed an ethics complaint against her in the fall of 1974 that, after a hearing in 1975, resulted in a private reprimand. When Primus appealed to the South Carolina Supreme Court to have this reprimand reviewed and expunged, the court not only ruled against her but also increased her punishment from private to public censure. The ruling said the evidence was “inconclusive” as to whether Primus “solicited Mrs. Williams on her own behalf,” but she did solicit her on behalf of the ACLU, which “would benefit financially” if she filed a lawsuit and won monetary damages.Footnote 60
By the time they issued this decision in March 1977, the South Carolina justices must have known that a monetary award had, in fact, been granted in Walker v. Pierce in July 1975—in the profoundly insulting amount of ＄5. A jury of three Black women, two white women, and one white man, who served as foreman, decided the case after deliberating for four hours at the end of a ten-day trial. Because of the initial complaint by Carol Brown, the plaintiffs’ legal team was able to draw on the results of an investigation completed by South Carolina’s Department of Social Services. It revealed that Pierce had sterilized eighteen women on welfare between January 1, 1972, and June 30, 1973. Sixteen of those women were Black, and Medicaid paid him ＄60,000 for his services—the sum that so infuriated Fasteau. The state social services commissioner had responded to these findings by asking Pierce to sign an affidavit promising not to discriminate against Medicaid patients in the future. He refused and, by September 1973, the state agency had issued sanctions against him to prevent him from receiving further Medicaid payments.Footnote 61
Even so, the jury found that the only wrongdoing in the whole case was Shirley Brown’s punitive discharge from the hospital, which had not really hurt her, hence the ＄5. She had not been sterilized, and her co-plaintiff, Virgil Walker, had signed the consent forms. In addition to interpreting Walker’s signatures as genuine consent, the jury accepted Pierce’s argument that his policy was not racially motivated, despite his own racially coded language about “welfare queens” and the investigation that showed that 89 percent of the women he had sterilized in an eighteen-month period were African Americans. Above all, the jury—and, subsequently, two of the three judges on the Fourth Circuit Court of Appeals—accepted Pierce’s claim that he had a right, as a medical practitioner, to practice according to his politics. All patients were informed of his policies up front, he insisted, and none were required to use his services. They could always seek medical treatment somewhere else. Although the third judge disagreed vehemently, the majority on the appellate court went so far as to strip Brown of the lower court’s ＄5 award, ruling entirely in favor of Pierce, the hospital, and county and state welfare officials.Footnote 62
The defeat in Walker v. Pierce came in July 1977. By this point, Nial Cox’s case had also met defeat. A three-year statute of limitations had been stacked against it from the start. Although Fasteau and Ginsburg had collaborated on the initial complaint, it was three male attorneys affiliated with the ACLU—Adam Stein, Kenneth Flaxman, and George Daly—who pursued the case in federal district court. They were unable to convince the judge to start the clock on the lawsuit’s “timeliness” in 1970, when Cox came to understand that she had been permanently sterilized, rather than 1965, when the surgery had taken place. The case was dismissed in August 1974, but Cox appealed. In October 1975, the U.S. Court of Appeals for the Fourth Circuit reversed the lower court’s ruling in part, allowing the damage suit to continue. However, the appeals court also declared that, because the North Carolina eugenic sterilization law “asserted to be unconstitutional” was no longer in effect, the constitutional questions in the case were moot. Fasteau and Ginsburg would get no answer on their equal protection argument and the other civil rights claims they had delineated in their brief. Cox’s other lawyers fought on, continuing to seek damages, but ultimately the surgeon, Stanton, decided to settle, paying Cox ＄7,000 in 1981. A second, similar case argued by the same ACLU legal team ended in defeat a few years later, without even such a minimal settlement. In 1967, Elaine Riddick had been raped by a neighbor and become pregnant at age thirteen. Already on the radar of Perquimans County social workers, she was declared feeble-minded by the North Carolina Eugenics Board and sterilized in 1968, soon after her son was born. Five years later, when she learned the ACLU had filed Cox v. Stanton and was looking for additional plaintiffs, she came forward. Her lawsuit began in January 1974 and ended ten years later, in October 1984, when the U.S. Supreme Court refused to hear a final appeal.Footnote 63 Such outcomes were typical. Kluchin found a total of thirty-three coercive sterilization lawsuits, including twenty-one brought by the ACLU from 1974 to 1987. Only one resulted in a verdict favorable to the plaintiff.Footnote 64
Clearly, feminist lawyers did not always get the decisions they wanted. The long list of losses in court shows how difficult it was to persuade judges and juries of the need for an expansive definition of reproductive rights—freedom of choice, much less reproductive justice—for women who were routinely denigrated in American society as “welfare queens” and the like. The ACLU’s scorecard on sterilization abuse was very different from the one most often remembered for Ruth Bader Ginsburg: her five wins in the six Supreme Court cases in which she presented oral arguments between 1972 and 1978.Footnote 65 Even so, courts’ decisions were not all that mattered. Public exposure mattered too. Indeed, the appeals court ruling that declared the constitutional issues in Cox v. Stanton moot by 1975 reflects the fact that, despite all the individual losses in court, the spate of lawsuits and the publicity around them did help bring the problem of rampant sterilization abuse to an end.
The most important case in this regard was Relf v. Weinberger. It was brought by the Southern Poverty Law Center (SPLC) and named for Katie Relf, who had eluded social workers on the day her younger sisters, Minnie Lee and Mary Alice, were taken to the hospital to be sterilized. Although their story had shocked the nation in 1973 and compelled the Department of Health, Education, and Welfare (HEW) to issue new guidelines in early 1974, the SPLC and the National Welfare Rights Organization fought to prevent those guidelines from going into effect until stronger protections for patients, especially minors and the mentally incompetent, were provided. Ironically, Minnie Lee and Mary Alice Relf were denied standing as plaintiffs because they had already been “subject to federally funded sterilization,” but seventeen-year-old Katie was deemed representative of the class of people still under threat.Footnote 66
Relf v. Weinberger took years to resolve but ultimately succeeded to the extent that it prevented HEW from settling for half measures. After a first attempt to revise its 1974 guidelines failed to satisfy a federal judge, HEW started over and, in 1978, its rule-making process became an arena for heated debate about precisely how the policies governing federally funded sterilization procedures should be written. Advocacy groups ranging from the ACLU, NOW, and Planned Parenthood to the Committee to End Sterilization Abuse (CESA), the Committee for Abortion Rights and Against Sterilization Abuse (CARASA), and the historically Black National Medical Association all participated. In February 1979, the final product went into effect. HEW’s new guidelines prohibited the sterilization of minors under age twenty-one and provided extensive protections for people in institutions and those deemed incompetent to consent. There were also new mechanisms for monitoring doctors and hospitals as well as threats to deny reimbursements to practitioners who failed to comply with waiting periods and other restrictions. Although enforcement was a challenge and the development of a culture of truly informed consent took time, the intervention of courts, activists, and ultimately HEW did make sterilization abuse much less common by the end of the decade.Footnote 67
Meanwhile, North Carolina dissolved its Eugenics Board in 1974. Two decades later, University of North Carolina Ph.D. student Johanna Schoen uncovered its history and shared it with a trusted reporter from the Winston-Salem Journal as she was completing her own scholarly study. The newspaper launched a thorough investigation, culminating in a series of articles titled “Against Their Will” in December 2002. Nial Cox Ramirez was prominent among the sterilization victims profiled. She had married, divorced, and moved to Atlanta. She remained close to her daughter, Deborah Chesson, and both became important advocates for reparations for those who had been forcibly sterilized, as did Elaine Riddick and her son, Thomas Anthony Riddick. North Carolina governor Mike Easley apologized for the work of the Eugenics Board within days of the Journal’s exposé, but it took another decade for the state legislature to agree to reparations. In 2013, North Carolina became the first state to allocate funds for this purpose, and Cox and Riddick were among approximately 1,500 people who received about ＄45,000 each over the course of three years, from 2015 to 2018.Footnote 68
Journalists and a few scholars have told Cox’s and Riddick’s stories, but almost no one has recounted that of Edna Smith Primus, a story that did not end in 1977, when the South Carolina Supreme Court ruled against her on the solicitation charge. She appealed, and the same U.S. Supreme Court that refused to hear an appeal in Walker v. Pierce accepted In re Primus. For the ACLU, the stakes could not have been higher. “Supreme Court to decide: Do ACLU lawyers chase ambulances or defend rights?” was the headline of an article that Laughlin McDonald, director of the Southern Regional Office and one of the attorneys representing Primus, wrote for the organization’s magazine, Civil Liberties. “If the Court decides that an offer of help is the same thing as unprofessional solicitation, the activities of the ACLU, and public interest organizations like it, will be drastically curtailed, and many of the victims of unlawful conduct will be left without effective remedy,” he warned. In addition to reviewing the facts of the case, McDonald discussed the most important precedent, NAACP v. Button, in which the Supreme Court had ruled that the National Association for the Advancement of Colored People (NAACP) could sponsor litigation “to vindicate constitutional rights” and that this was “different from the malicious or avaricious use of legal process for purely private gain.”Footnote 69
Primus’s defense had relied on the Button ruling from the start. Notably, it too was a case from the South. It began in 1956 when the state of Virginia amended existing laws to expand the definition of solicitation and other violations of legal ethics in hopes of destroying the NAACP’s legal campaign for school desegregation. In 1963, the Court ruled, 6–3, in the NAACP’s favor, declaring that the organization’s litigation strategy did not involve unethical solicitation but was instead a form of political expression protected by the First and Fourteenth Amendments. The implications of the Button precedent for In re Primus should have been crystal clear. However, the South Carolina legal establishment refused to admit that the ACLU was a political or public interest organization. The state courts’ rulings suggest “either legal ineptitude or bad faith, animated by racial and political bias,” writes one commentator. Or, as Primus herself told a journalist, “the issue of sterilization was really volatile then. The ACLU was not a popular group in the state. Someone had to be a scapegoat.” Becoming that scapegoat was a traumatic experience that compelled Primus to avoid media attention for the rest of her long career. She had no regrets about helping the women in Aiken, but she did not like to talk about her own legal battle.Footnote 70
When the Supreme Court’s 7–1 decision was announced in May 1978, ACLU Legal Director Bruce Ennis exulted that it was “only a slight exaggeration” to say In re Primus was “a Magna Carta for the ACLU.” Justice Lewis F. Powell Jr.’s majority opinion validated the organization’s use of litigation “as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.” As Ennis observed, the decision made it possible “for the ACLU to reach out into the community to provide information and assistance to people who do not know their rights or cannot afford a lawyer to enforce them.” The fight against involuntary sterilization had motivated Fasteau to travel south in search of plaintiffs. Primus had also “thought it was important for people with little resources to be informed of their rights.” The In re Primus decision legitimated such sentiments and compelled those who thought otherwise to accept them.Footnote 71
The very founding of the ACLU Women’s Rights Project assumed the legitimacy of lawyering in the public interest. But this was a view that powerful people in conservative states such as South Carolina did not share more than a decade after the Button ruling and the “rights revolution” of the 1960s. By the late 1970s, backlash was growing. The truly landmark decision of the Supreme Court’s 1977–78 term was Regents of the University of California v. Bakke, which outlawed the use of quotas for affirmative action. “Reverse discrimination” was becoming a potent discourse, making the work of civil rights organizations significantly harder. Decided one month before Bakke, In re Primus was a resounding victory on the existential question of whether the ACLU and other groups could undertake such work, which often required plaintiffs who did not walk in unsolicited, as the “determined, even daring” Nial Cox had. “Solicitation” in the sense of reaching out to marginalized people with information and offers of help could make public interest organizations’ agendas more inclusive; it could ensure that advocates learned to see issues from the perspectives of potential clients, as Fasteau had learned from the women of Aiken, Kingstree, and Ruleville.
Conclusion: “Lost Intersections” and the Network That Taught Intersectionality
In re Primus was an important victory but far from the one that Fasteau and Ginsburg set out to win as they drafted the Cox v. Stanton brief. They used explicitly intersectional arguments to challenge the constitutionality of a state law and seek an equal protection ruling on reproductive rights, specifically the right to bear children without interference or coercion by the state. A favorable Supreme Court decision on equal protection grounds might have shored up Roe v. Wade, a case that had “distressed” Ginsburg from the start because it was argued and decided on the basis of a right to privacy that is implied but not spelled out in the Constitution. Ginsburg believed that a decision situating individuals’ reproductive freedom in the Equal Protection Clause of the Fourteenth Amendment would be more secure. She had already prepared an equal protection argument for an earlier case involving a white plaintiff that she never got to take to the Supreme Court. She and Fasteau laid out similar arguments in their Cox v. Stanton brief while emphasizing ways in which Cox’s race, class, age, and marital status also made her a target of North Carolina’s discriminatory practices. Yet federal judges initially dismissed the case and then declared it moot after the state disbanded its Eugenics Board.Footnote 72
The outcome in Cox v. Stanton mirrors a pattern of “lost intersections” that law professor Serena Mayeri has found in other 1970s sex discrimination cases involving Black women as plaintiffs. In Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, Mayeri recovers a number of forgotten cases in which Black women “brought groundbreaking constitutional sex equality claims, often in cases with prominent racial dimensions.” They were usually represented by white women lawyers, “alter[ing] our understanding of feminist legal advocacy” in this period. And they virtually always lost, often because state authorities changed or stopped enforcing laws, allowing judges to declare their cases moot. Mayeri does not examine Cox v. Stanton, and her reminder that each of the cases she does treat “had its own logic and contingent outcomes” is important. Nevertheless, Nial Cox’s lawsuit was indisputably a “lost intersection” as far as historical memory is concerned. Like other cases that failed to set precedents or even win a judicial opinion, it remained outside a whitewashed feminist canon, “little known even among legal scholars.”Footnote 73 Ultimately, it was federal judges who determined that the Cox case would be easy to forget.
Recovering such cases is part of a wide-ranging reevaluation of 1970s feminism that has taken many forms. This essay works from the bottom up to explain how the intersectional activism evident in the ACLU’s advocacy for Cox and other victims of sterilization abuse became possible in the first place. We see Black women’s agency, including that of Cox and others who courageously filed lawsuits as well as the agency of Edna Smith Primus in her “victim–victor” role.Footnote 74 We see intellectual contributions from Hamer and also Steinem and Fasteau as they listened to and learned from each other and from the precarity of impoverished southern Black women’s lives. We also see a national-to-grassroots network mobilizing to achieve goals in multiple ways. After the defeat in Cox v. Stanton, ACLU feminists did not simply move on to other issues. Instead, they simultaneously moved on and found ways to keep up the fight on involuntary sterilization. They brought other lawsuits and participated in the coalition effort to shape HEW’s regulatory framework. The same staff person who prepared Fasteau and Steinem’s itinerary, Elissa Krauss, also produced a “Hospital Survey on Sterilization Policies” that proved influential in the HEW process—the kind of information-gathering and communication work that often remains below the radar in historical scholarship.Footnote 75
A sociologist might point to Krauss as a node within a network. This essay highlights the importance of activist networks, including rather casual connections (i.e., lunch with Julian Bond) that can be hard to see historically. Many scholars have recounted Hamer’s contribution to the involuntary sterilization fight by drawing attention to her public statements in the 1960s.Footnote 76 By recovering a private conversation and putting it into a network context, this essay shows Hamer’s continuing contribution in a direct but previously invisible form. Tracking coalitions is hard enough, but how to make networks of influence visible is a different research challenge. Katherine Turk’s Women of NOW does a brilliant job of capturing both national and grassroots developments and showing cross-fertilization between them. Turk’s method is richly contextualized collective biography.Footnote 77 This essay deploys biography too, and its origin point was Fasteau’s autobiography, where I first read about the Cox case and the conversation with Hamer.Footnote 78 Further research not only unearthed the transcript but also revealed that Steinem has been honoring Hamer and pointing to her specific influence on reproductive rights ideology for years.Footnote 79 In 2020, shortly before Ginsburg’s death, Steinem even mentioned the 1974 trip. Asked if, in her long career as a journalist and magazine editor, there was one interview she wished she could redo, she thought of this one. The interview “helped Ruth and Brenda protect the reproductive rights of Black women and girls … but I’ve always regretted not asking Fannie Lou if I could also publish her words in Ms. magazine,” she said. “A lot more people would have learned that patriarchy controls women’s wombs … and racism doubles the motive for controlling all women’s bodies. Wherever there is racism, women of color are in the most danger, but white women are endangered, too.”Footnote 80 Half a century later, Steinem and Fasteau’s consultation with Hamer still offered lessons in intersectionality and reproductive justice.
By drilling down to the level of individuals and seeing them interacting in networks, this essay elucidates a moment and a process that allowed Hamer’s intersectional thought and other lessons from southern Black women’s experiences to gain influence. They did so by passing through a network of feminists and civil rights activists that stretched from the grassroots to ACLU headquarters and included not only Black and white women but also Black and white men, such as Bond, Allen, and the lawyers who represented Cox and Primus. Ruth Bader Ginsburg and the other founders of the WRP designed it to operate in precisely this way, and it has continued to operate through the backlash of the late 1970s and the neoliberal order it ushered in, up to the present day. More than the Cox case itself, harnessing the ACLU’s network so that “women’s rights”—and decades later trans rights and “gender justice”—could be defined capaciously and fought for from the bottom up was some “little known work” of Ginsburg and her collaborators that had lasting significance.Footnote 81
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