Edna Smith Primus, Lawyer in Pivotal Rights Case, Dies at 75

13 Dec 2019 9:05 AM | Kim Fantaci (Administrator)


Edna Smith Primus in 2009. Barely a year after graduating from law school, she was professionally reprimanded for offering to represent a woman who had been involuntarily sterilized by a doctor.She successfully challenged a professional reprimand and in the process helped redefine free speech rights for lawyers and advocacy groups.

Edna Smith Primus in 2009. Barely a year after graduating from law school, she was professionally reprimanded for offering to represent a woman who had been involuntarily sterilized by a doctor.

Credit...via South Carolina Access to Justice

Edna Smith Primus had graduated from the University of South Carolina School of Law — the first black woman to do so, in 1972 — when barely one year later she was assigned a case that could have jeopardized her career.

She had been working at the time for the South Carolina Council on Human Rights as a volunteer lawyer when it dispatched her to Aiken, S.C., where an obstetrician had refused to deliver babies to women on welfare with two or more children unless they agreed to be sterilized.

The doctor’s refusal came amid a national public outcry over reports in The New York Times and elsewhere in the early 1970s that poor women, most of them black, were being involuntarily sterilized in the South.

Ms. Primus, who died on Nov. 29 at 75, was sent to Aiken to talk to mothers involved in the controversy there, some of whom had consented to sterilization. She told one woman who had undergone the procedure that the American Civil Liberties Union, for which Ms. Primus also volunteered at its South Carolina office, would represent the woman free of charge if she filed a lawsuit against the doctor.

Instead, Ms. Primus became a target of legal action herself.

The doctor not only dissuaded the woman from suing but also complained to the state bar association that Ms. Primus had violated professional ethics by directly soliciting potential clients for personal financial gain, although she was not being compensated for her work. She was cited by both the bar association and the South Carolina Supreme Court for what amounted to ambulance-chasing — soliciting law clients for private gain.

The A.C.L.U., in turn, challenged those public reprimands, taking Ms. Primus’s case, under her name, all the way to the United States Supreme Court. It won. In a decision handed down in 1978, the court overturned the legal foundation for the reprimand, affirming the First Amendment right of advocacy groups to advance their political agendas through litigation.

The sterilization dispute erupted in the early 1970s after a 20-year-old white woman on welfare publicly complained that Dr. Clovis H. Pierce had refused to deliver her fifth child unless she agreed either to have her fallopian tubes cut and tied or to pay a $100 down payment on his $250 fee.

Dr. Pierce — the only obstetrician in Aiken County who would accept patients on welfare — made sterilization a condition of her continuing to receive welfare benefits through Medicaid. The woman had started receiving public assistance after her husband was sentenced to prison for grand larceny.

Ms. Primus’s soliciting the woman was brought to the attention of the state Supreme Court’s Board of Grievances and Discipline (now the Office of Disciplinary Counsel), which accused her of violating an ethics provision intended to protect unsophisticated plaintiffs from high-pressure sales pitches by lawyers who would benefit if their clients eventually sued and won money damages.

The board’s censure was upgraded to a public reprimand by the state Supreme Court. It rejected Ms. Primus’s argument that her motivation for soliciting a lawsuit — to advance a civil liberties political agenda — was protected by the First Amendment guarantee of free speech and free association.

But the United States Supreme Court disagreed with that lower court decision. It ruled, 7 to 1, that the civil liberties union was a “bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.”

The ruling, written by Justice Lewis F. Powell Jr., concluded that efforts to reach out to the potential client “were undertaken to express personal political beliefs and to advance the civil liberties objectives of the A.C.L.U. rather than to derive financial gain.”

The case has since been taught in law school professional responsibility courses, said Robert Wilcox, the dean of the University of South Carolina School of Law in Columbia. Speaking of Ms. Primus, he said in an email:

“I think her legacy was her steady commitment to helping people who had no other voice to advocate for them. As a very young lawyer, she had made clear that she had the courage to fight for clients and for change, even when it might come at a cost to her career.”

Ms. Primus’s successful challenge of her reprimand affirmed the First Amendment right of advocacy groups to advance their political agendas through litigation.

Ms. Primus’s successful challenge of her reprimand affirmed the First Amendment right of advocacy groups to advance their political agendas through litigation.Credit...via Primus family

Edna Smith was born on June 27, 1944, in Yemassee, S.C., a tiny town in the state’s Lowcountry, the daughter of sharecroppers. She earned a bachelor’s degree from the University of South Carolina in 1966 before enrolling in its law school.

She retired in 2006 from Palmetto Legal Services in Columbia, S.C., where she had been managing attorney.

Her marriage to Marcellous Alphonzo Primus ended in divorce.

Ms. Primus died at her home in Columbia, her daughter, LaCelle Primus, said. In addition to her, she is survived by three grandchildren. Her niece Tina Herbert is a lawyer, and a grandniece is graduating from the University of South Carolina School of Law on Dec. 14.

Ms. Primus once recalled that as a young, newly minted lawyer she had not been prepared to be thrust into a public controversy.

“We were scarce then, black women lawyers,” Ms. Primus told the Columbia newspaper The State in 1989. “A public reprimand splashed all over the papers, that was totally demoralizing.”

But she expressed no regrets about getting involved on behalf of women who were being involuntarily sterilized. “I really felt they were being victimized,” she told the newspaper. “I thought it was important for people with little resources to be informed of their rights.”

Marietta Williams, the woman whom Ms. Primus approached as a potential client, was informed of her right to sue only after the sterilization. Dr. Pierce had persuaded her to sign a release freeing him of liability.

“I wouldn’t marry again,” Ms. Williams told The Times in 1973. “Who would want me, knowing I cannot have any children?”

The Times reported that 18 of the 34 Medicaid-funded deliveries in Aiken County Hospital in 1972 included sterilization. Of those, 16 were performed on black women, all by Dr. Pierce, a former Army doctor.

“People with three children — three already or two with one on the way who are on Medicaid — are required to voluntarily submit to sterilization,” Dr. Pierce told The Aiken Standard in 1973. “In a sense, it isn’t really voluntary, because no other obstetrician will see a Medicaid patient.”

He added: “I feel that if I’m paying for them as a taxpayer, I want to put an end to their reproduction. If I control my own family size so that I can provide for them, then I don’t want to have to pay for others.”

Dr. Pierce was charged with malpractice but acquitted. He was later sued in federal court by two women, one who had undergone sterilization at his insistence; the other said he had prematurely discharged her from a hospital, a day after she gave birth to her third child, because she had refused to undergo a tubal ligation, or sterilization. A jury awarded the first woman $5 in damages, finding that Dr. Pierce had violated her rights, but it awarded nothing to the second. The verdict against Dr. Pierce was later reversed by a federal appeals court.

Information about Dr. Pierce’s practice remains on health care websites in South Carolina, but calls to his listed office phone numbers went unanswered.

Article by: Sam Roberts, an obituaries reporter, was previously The Times’s urban affairs correspondent and is the host of “The New York Times Close Up,” a weekly news and interview program on CUNY-TV.


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