KGOU

Before Roe There Was Skinner: How An Oklahoma Case Helped Legalize Abortion

Jan 22, 2019

Oklahoma has some of the strictest abortion regulations in the country. Women must wait 72 hours after deciding to have an abortion, they cannot use insurance— public or private— to pay for the procedure in most cases, and each woman seeking an abortion in Oklahoma is required to have an ultrasound. And yet, an Oklahoma court case set the stage for legalizing abortion in the United States.

That case was Skinner v. Oklahoma.

 


“Skinner was the first case to link personal liberty with the idea of procreation,” said Rick Tepker, a professor of constitutional law at the University of Oklahoma. “It is the first case to begin the process of creating a personal right to make decisions for yourself about whether or not to have a child.”

“Skinner” was Jack Skinner, an Oklahoma man convicted of robbery for a third time in 1934 and sentenced to be sterilized under a three-strikes law called the Habitual Criminal Sterilization Act. The law was rooted in eugenics, a widespread social movement based on a false science claiming certain traits, like the propensity to commit a crime, were hereditary.

“They were going to improve the human race, or at least the American population, by getting rid of people and their ability to procreate,” Tepker explained.

Skinner challenged his fate while serving time in the Oklahoma State Penitentiary.

“I hope when I have served the judgement of the court to be released and become an honest citizen and marry and settle down and raise possibly a child or maybe two,” Skinner told the jury during his first trial.

Skinner’s case wound its way through the courts. He lost repeatedly, until the United States Supreme Court took his case in 1942. The court ruled Oklahoma’s sterilization law violated the equal protection clause of the Fourteenth Amendment, because it did not apply to all crimes. In other words, it discriminated.

But the right to make decisions about procreation does not come from the core legal argument against Oklahoma’s sterilization law.   

According to Georgetown law professor Victoria Nourse, the ruling cannot be fully understood apart from its historical context. She wrote a book about Skinner called “In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics.”

“Lawyers read cases and they often don't pay attention to their context because we read them as providing doctrines,” Nourse said.

Oklahoma and many other states passed sterilization laws around the same time Adolf Hitler rose to power in Germany. By the time the court ruled on Skinner America had entered World War II, and the American public realized how the dictator used eugenics to justify the near extermination of Jews and other groups. In fact, prior to World War II, the American press drew positive comparisons between sterilization laws in the states and Germany.

Like the American public, Supreme Court Justice William Douglas was disturbed by the realities of Nazi Germany. Douglas wrote the majority opinion for Skinner, beginning with these two sentences:  

“This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race-the right to have offspring.”

Nearly thirty years later, when the Supreme Court ruled on Roe v. Wade, it listed Skinner as one of several cases where the court had previously affirmed the existence of an individual right not explicitly listed in the Constitution but guaranteed by the principle of personal liberty. Skinner became known as the case that said decision making power regarding procreation belonged in the hands of the individual, rather than the state. It laid the first brick in the foundation of what abortion advocates call "the right to choose."

 

“It did not take on the meaning, or I don't even imagine that Douglas understood it would have that kind of meaning at the time he wrote it,” Nourse said.