Thursday, May 27, 2021
Forced sterilizations and other non-consensual gynecological procedures performed on migrant women detained at Georgia’s Irwin County Detention Center
By Hugh Fitzgibbon, Som-Mai Nguyen, and Catalina Ramirez Palau, Law Student Representatives, Transnational Legal Clinic, University of Pennsylvania Carey Law School (May 27, 2020)
** Cross posted on Human Rights at Home Prof Blog **
On May 20, 2021, Secretary of Homeland Security Alejandro Mayorkas directed ICE to sever its contract with the Irwin County Detention Center (ICDC). This announcement followed a public whistleblower complaint filed September 14, 2020 against U.S. immigration authorities and ICDC detailing human rights violations committed against immigrant women held at ICDC, including nonconsensual hysterectomies performed by a government-contracted doctor. The complaint sent shockwaves through the media. 42 U.S. senators immediately called on the DHS Inspector General to investigate, and in January 2021, the UN Special Rapporteur on Migrants, together with 8 other human rights bodies, responded with a communication to the U.S. outlining their grave concerns. As of May 2021, all women at ICDC had been deported, released, or transferred, However, the government’s systemic failure to prevent abuse in its detention centers does not end with the closing of ICDC. While a hard-won victory resulting from years of organizing and advocacy, the post hoc termination of individual facilities cannot undo the harms inflicted upon these women — nor, as we know from history, will it stop the same from happening again. Nothing short of ending immigration detention will.
Based on the detailed account of a nurse employed at the center and the testimonies of several victims, the September 2020 complaint included credible and substantiated allegations of nonconsensual sterilizations and other invasive unnecessary gynecological procedures performed on women detained at ICDC, as well as general abuse and medical neglect. At least 57 women treated by the same doctor between 2018 and 2020 underwent or were pressured to undergo unnecessary treatments without informed consent. The nurses allegedly communicated with non-English speaking patients by Googling translations, flagrantly undermining the women’s ability to give informed consent. “Everybody he sees has a hysterectomy – just about everybody,” the whistleblower claimed. A 29-year-old victim reported that she agreed to a dilation and curettage procedure to remove an ovarian cyst, but when she woke up from surgery, she discovered that one of her fallopian tubes had been removed — a procedure for which she never gave consent. Another woman reported undergoing a hysterectomy without being given the opportunity to decline or to consult with her family beforehand. One woman reported hearing from other detainees: “He just empties you all out.” These accounts are only several of many harrowing allegations from women held at ICDC.
These forced hysterectomies are not an aberration in the United States’ cruel history of sterilization abuse, both in detention settings and otherwise, and particularly as a means of racist, ableist, and socioeconomic oppression. In Buck v. Bell (1927), the Supreme Court upheld a Virginia law allowing the compulsory, eugenic sterilization of institutionalized people if the state determined it would benefit the “health of the patient and the welfare of society.” Infamy notwithstanding, Buck has not been overturned. Roe v. Wade (1973) cites it as an example of how the Court has not recognized an “unlimited right to do with one's body as one pleases.” In 2001, the Eighth Circuit cited Buck to argue that “involuntary sterilization is not always unconstitutional.” Legitimized, sterilization without consent continued and continues to be used to regulate reproductive freedom. Throughout the 1960s and 1970s, federally funded programs were used to coercively sterilize thousands of Black women by threatening termination of welfare benefits or denial of medical care; Indian Health Services sterilized at least 25% of Indigenous women between the ages of 15 and 44 without consent; and Los Angeles County U.S.C. Medical Center systematically performed tubal ligations on Spanish-speaking women without consent. The trial judge in Madrigal v. Qulligan (1978) wrote: “One can sympathize with [the women] for their inability to communicate clearly, but one can hardly blame the doctors for relying on these indicia of consent which appeared to be unequivocal on their face.”
Reproductive justice concerns not only barriers to abortion, but all aspects of economic, social, and political power relating to decisions about conceiving, delivering, and rearing children. Such justice is fundamentally incompatible with carcerality. As another example, many prison officials have used restraints on pregnant people. In Villegas v. Metropolitan Govt of Nashville (2013), Juana Villegas was arrested during a traffic stop when she was 9 months pregnant and held in custody for ICE after she was determined to be undocumented. When her water broke, she was taken in handcuffs and leg restraints to a hospital, where she delivered her baby while shackled to the birthing bed. The Sixth Circuit found “the right to be free from shackling during labor . . . not unqualified” because a woman in labor could nevertheless be a flight risk. Despite attempted changes in federal policy, as well as Georgia’s 2019 Dignity Act, which prohibits the shackling of pregnant people for six weeks after giving birth, the Southern Center for Human Rights reported in April 2021 that women at Lee Arrendale State Prison were shackled and/or placed in solitary confinement during their immediate postpartum period.
The reproductive injustice of non-consensual sterilizations and other unnecessary gynecological procedures performed on migrant women in ICE custody at ICDC is part of a much broader and deeper story of migrant dehumanization in the U.S. In immigration detention, people face medical mistreatment, poor sanitation, overcrowding, physical and psychological abuse, poor nutrition, and sexual violence – all laid bare by the COVID-19 pandemic. The system is designed to be punitive and to deter immigration, which is fundamentally antithetical to the protection of migrants’ health. Detention is part of the overly securitized response to immigration which facilitates the erosion of human rights, as are ICE’s co-optively named “Alternatives to Detention,” which expand surveillance but have not decreased the number of people in detention (unlike true, community-based alternatives to detention). This violative environment is compounded by the increased privatization of migrant detention in recent years: 81 percent of people detained in ICE custody are in private facilities. Privatization invariably compromises care due to profit-making motives, and the necessary desecuritization and deprivatization of the immigration system should be our takeaway from this case. The experiences of migrant women in ICDC further demonstrate why immigration detention must end. As a first step, the Biden administration’s plan to phase out the use of private prisons must extend to the immigration detention system.
Tuesday, May 25, 2021
By Kelly Folkers (May 25, 2021)
Last week, the Supreme Court agreed to hear a case that poses a direct challenge to the right to seek an abortion in the United States. It’s a test case that has been expected by reproductive rights advocates since the Supreme Court’s rightward lurch during Donald Trump’s four years in office: Trump appointed three conservative justices, all of whom have signaled willingness to roll back reproductive rights. If the Court significantly alters abortion jurisprudence or overturns Roe v. Wade (1973) entirely, reproductive rights will evaporate in many states, leaving millions of women and people who can get pregnant without a fundamental right to their bodily autonomy.
In Dobbs v. Jackson Women’s Health Organization, the Court has agreed to consider whether all bans on pre-viability abortions are unconstitutional. Although pre-viability bans on abortions are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey, the rightward swing of the federal judiciary has emboldened state legislatures to pass pre-viability bans to test the courts. Just this past month, Texas Governor Greg Abbott (R) signed into law a bill banning abortion as early as six weeks—before many people know they are pregnant. South Carolina enacted a similar law in February. Texas and South Carolina join more than a dozen other states with similar laws, many of which have been held unconstitutional and enjoined by court order.
Dobbs involves a Mississippi law called the Gestational Age Act, which prohibits abortions if the “probable gestational age” of the fetus is more than 15 weeks. While there is dispute within the medical community regarding the exact age at which a fetus becomes viable and states vary in their definition of fetal viability (i.e., the fetus’s ability to survive outside the uterus), most experts agree that it is clinically improbable for a fetus to be viable under 22 to 24 weeks. Notably, the Act does not contain exceptions for rape or incest, allowing exceptions only for medical emergencies or severe fetal abnormalities. Mississippi’s sole abortion provider filed suit within hours of the law being enacted, and for now, the Fifth Circuit Court of Appeals has affirmed the U.S. District Court for the Southern District of Mississippi’s ruling to permanently enjoin the law.
Though the Supreme Court is more conservative than it has been in decades, abortion jurisprudence has long been settled in the United States: The state cannot place an undue burden on a pregnant person’s right to have an abortion pre-viability. In 1992, the Supreme Court reaffirmed Roe’s “central holding” that pregnant people have a protected right to seek an abortion in Planned Parenthood v. Casey. Casey adopted the “undue burden” test, which provides that state action violates the right to an abortion if it has the purpose or effect of imposing a substantial obstacle to a person seeking to abort a non-viable fetus. Although Casey permits regulation of abortion before viability, it does not question that bans on abortions before fetal viability are a violation of the Due Process Clause of the Fourteenth Amendment to the U.S Constitution.
Since Casey, Supreme Court decisions have focused on how to apply the undue burden test to laws that regulate the provision of abortion. In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down a Texas law requiring that abortion providers have admitting privileges at nearby hospitals and that facilities where abortions are performed meet the requirements for ambulatory surgical centers. The Court found that the requirements placed a substantial obstacle in the path of people seeking abortions and there was no evidence showing that either requirement made abortions safer. Balancing the law’s benefits and burdens, the Court held that the law imposed an undue burden. Even more recently, in 2020, the Supreme Court struck down an almost identical Louisiana admitting privileges law in June Medical Services v. Russo. The outcome of the cases was similar, but a notable difference was the justices who voted with the majority and their reasoning. In 2016, Chief Justice John Roberts was a dissenting justice, but in 2020 he added the crucial fifth vote to strike down the law in a separate concurring opinion. Justice Roberts stated that his respect for precedent motivated his decision to vote with the Court’s liberal bloc in June Medical, but he stood firm in rejecting the balancing test the Court applied in Whole Woman’s Health.
After June Medical, it remains uncertain what test the Court will apply to determine if restrictions on the provision of abortion impose an undue burden. But Dobbs presents the court with a different issue that goes to the heart of Roe’s central holding: whether a law banning abortion before viability can ever be constitutional.
Some constitutional law experts predict that if the Court holds that bans on pre-viability abortions are permissible, it will effectively allow states to outlaw abortion. Indeed if Roe v. Wade is reversed, more than 20 states have laws banning abortion at various points in fetal viability that are designed to be triggered automatically, enacted swiftly, or dormant only because of Roe, according to Nancy Northup, the president of the Center for Reproductive Rights. These laws would make abortions difficult or impossible to obtain in many states.
A decision in Dobbs is not expected until the spring or summer of 2022, but some state legislatures are already taking action to codify protections for pre-viability abortions if Roe v. Wade is overturned. Some states are going even further: In Oregon, Governor Kate Brown (D) recently signed the Reproductive Health Equity Act, which requires private insurers to cover abortions with no out-of-pocket costs. Similar bills are pending in New Jersey and Virginia. These bills go beyond what the federal Constitution guarantees because they obligate public and private insurers within their states to pay for abortion; the Supreme Court has previously held in Maher v. Roe and Harris v. McRae that state and federal payers, respectively, are not constitutionally obligated to cover abortions.
Until the Supreme Court hands down what may be a landmark decision for reproductive rights, people seeking abortions retain their right to do so, but just barely.