Readers who are new to this publication may be shocked to learn that between 1933 when the General Assembly created the state Eugenics Board, and 1977 when the Board was finally disbanded, the State of North Carolina involuntarily sterilized almost 8,000 people, most of them women. At the urging of the John Locke Foundation and others, in 2013, the N.C. General Assembly enacted the Eugenics Asexualization and Sterilization Compensation Program to pay compensation to the “living victims” of the state eugenics program.  Some of those victims have already received partial payments. However, because of the way the compensation program was structured, final payments have not been possible.

The problem is that, instead of specifying a dollar amount per victim, the General Assembly appropriated $10 million to be divided equally among all “qualified recipients.” The criteria used to determine who qualifies have been challenged in court, and, as a result, final payments have been on hold for several years pending resolution of those legal challenges. (For more details, see my previous discussions of this litigation here and here.) Last week, however, the N.C. Court of Appeals handed down a decision that could clear the way for those payments to be made at last.

As noted above, the purpose of the Eugenics Compensation Program was to compensate the living the victims of the state eugenics program, and only victims who were alive on June 30, 2013, were authorized to file a claim for compensation under the program. As a result, while the heirs of victims who died after that date were able to collect on behalf of their deceased relatives, the heirs of victims who died before that date were not. The decision that the Court of Appeals handed down last week applies to a consolidated group of cases—In re Hughes, In re Redmond, and In re Smith—brought by the estates of victims who died before the cut-off date. They claimed that denying them the opportunity to collect on behalf of their deceased relatives violates their right to equal protection.

In a characteristically thorough and well-reasoned opinion for a unanimous three-judge panel, Chief Judge Linda McGee determined that the Eugenics Compensation Program does not violate the Equal Protection Clause, and it remanded all three cases to the commission that administers the program with instruction to deny the claims of the estates.

In her opinion, Chief Judge McGee provides a detailed history of the compensation program that shows, beyond any possible doubt, that the legislature intended to compensate only victims who were still alive at the time the program was enacted and not the heirs of victims who died before that date. She then considers every possible argument in favor of an equal protection claim by such heirs and disposes of each in turn. She makes many excellent points, but the one that really goes to the heart of the matter is this:

The Estates focus on the heirs of victims, instead of the victims themselves…. However, the “differential treatment” … is not between heirs of living victims and heirs of deceased victims – it is between heirs of victims and the victims themselves. Without discounting in any manner the injuries suffered by the families of the victims due to the eugenics program, the estates of the victims are not similarly situated to the actual victims themselves, who were forced to undergo involuntary sterilization. …

The Estates are not similarly situated to the intended beneficiaries of the Compensation Program. The Estates’ Equal Protection challenge fails for this reason.

This is surely correct. This isn’t about the heirs of the victims of the state’s eugenics program; it’s about the victims themselves, which is an especially salient consideration in this case because of the way the compensation program is structured. As noted above, the total amount of compensation is limited to $10,000,000, which means that the money paid to the estates of deceased victims would come directly out of the pockets of victims who are still alive. That’s not what the General Assembly intended, and it’s certainly not what equal protection requires. If the heirs of deceased victims want to make a case for compensation, they should take it up with the General Assembly.

Given the quality of the Court of Appeals’ opinion, and given the fact that it was unanimous, it seems unlikely that the plaintiffs in these cases will appeal, and I, for one, hope they won’t. The living victims of North Carolina’s eugenics program have waited long enough for compensation. It’s time to bring this shameful chapter in our state’s history to a close.