Not Just ICE: Forced Sterilization in the United States

Last year, Immigration and Customs Enforcement (“ICE”) was accused of forcibly sterilizing detainees under their care.[1] Forced sterilization can occur under many different circumstances, such as when an individual is not aware of the procedure taking place, has been given no opportunity to truly consent to the procedure, or gives consent under duress.[2] As shocking as this may seem, forced sterilization of minorities has been a part of U.S. history for decades.

History of Forced Sterilizations

In 1907, Indiana passed the first sterilization law and 31 states followed suit, passing sterilization laws of their own.[3] At first, these programs targeted white men who were “mentally deficient,” diseased, or otherwise disabled, but by the 1920s, the practice had expanded to impact as many women as men.[4] Over time, this method of population control grew in prominence and, unfortunately, is still prevalent today in the 21st century through the sterilizations of female detainees in immigration detention centers.

As early as 1927, the Supreme Court of the United States legitimized early eugenic sterilization procedures.[5] In Buck v. Bell, the Court held that a Virginia law allowing for the sterilization of patients at a mental institution was constitutional.[6] Carrie Bell was a “feeble minded woman” committed to a state mental institution, and under Virginia law, sexual sterilization of mental institution patients was permitted to promote the “health of the patient and the welfare of society.”[7] The Supreme Court of the United States ruled that public welfare may require preventing unfit individuals to reproduce.[8]

It was not until Skinner v. Oklahoma in 1942 that the Supreme Court decision in 1942 that the Court rejected eugenic sterilization as a legitimate state goal and recognized that procreation was a basic civil right.[9] In Skinner, Skinner was arrested twice for theft and finally for armed robbery, which made him a convicted felon under Oklahoma law and therefore sentenced to a term of imprisonment at a penal institution.[10] During this prison stay, proceedings were brought to forcibly sterilize him and he brought suit under the Fourteenth Amendment.[11] The Court held that laws allowing the forcible sterilization of criminals was unconstitutional as it violates the Equal Protection Clause.[12]

Data collected from 1937 to 1966 found that black women were the most targeted group to be forcibly sterilized in North Carolina.[13] Racism and the stereotype of black women being “unfit” mothers fueled the public’s desire to ensure this population cannot further reproduce.[14] The second most targeted group during this time period was lower-income white women, followed by black men, then white men.[15] White, lower-income women were more likely to be sterilized after giving birth, especially if she received Medicaid.[16] Men were usually sterilized to treat aggression or eliminate criminal behavior, but various state programs, such as North Carolina’s program, attempted to “breed out” black people by sterilizing black men.[17]

This trend coincides with the civil rights movement and the start of desegregation. Until the 1950s, schools and hospitals were segregated by race, but with integration came a large backlash from white supremacists who sought to reassert dominance by controlling black individuals’ reproductive rights to the detriment of those sterilized and their unborn children.[18] Sterilization of black women reached levels three times that of white women, and twelve times that of white men.[19] During this time period, black women were sensationalized as being unfit parents due to their lower socioeconomic status, and many felt this was best managed through reproductive constraint.[20]

During the 1960s and 1970s, tubal ligation became a more popular method of contraception by all women and federally funded family-planning programs subsidized the costs.[21] These programs targeted people of color excessively and forced sterilization procedures on women of color.[22] When women of color would go to a health professional for something minor, such as having a cyst removed or a physical examination, doctors would simply perform the sterilization or lie to the patient regarding the procedure.[23] For example, when a Latina woman went to her doctor inquiring about birth control, the doctor suggested a tubal ligation, stating this would become undone after five years and allow her to have children at that time.[24] The woman believed her doctor and was coerced into consenting to the operation under this false narrative.[25] While many women would consent to a tubal ligation, false information creates a coercive environment and abuses this medical procedure.

This federal funding combined with discriminatory sentiment and a national commitment to family planning led to widespread sterilization abuse.[26] One statistic found that in the thirty-year span from the 1940s to the 1970s, 7,600 women with mental disabilities were sterilized by the North Carolina Eugenics Board.[27] The family planning model during this time period focused on minority, working-class women and lacked proper consent protocols.[28] It was not until 1976 that the Department of Health, Education, and Welfare created programs to protect minority women and installed a standardized consent form requiring the individual be at least 21 years of age and mentally competent before sterilization, in addition to a 72-hour waiting period before sterilization.[29] Unfortunately, these regulations were not enough.

One loophole legislators did not foresee was that the waiting period did not apply to women wanting tubal ligation surgery immediately after giving birth.[30] During the 1970s, one hospital in Los Angeles coerced Latina women into tubal ligations.[31] At this time, Mexican and Mexican-American women who came to the Los Angeles County-USC Medical Center for an emergency caesarian would be thrown papers that notified them that if they wished to receive painkillers or proceed with their operation, then they had to sign these documents which actually authorized tubal ligation.[32] Most women signed these documents without reading them or understanding them.[33]

Eventually, Dr. Bernard Rosenfeld went to the media and convinced a group of Mexican-American lawyers to file a class action lawsuit against the hospital doctors, and the state and federal government.[34] This case, Madrigal v. Quilligan (1978), argued that a woman’s right to bear children is guaranteed under the previously decided case, Roe v. Wade.[35] In this unpublished case, ten plaintiffs spoke out about the abuses they suffered and the invasive procedures done to them when they entered the Los Angeles County – USC Medical Center for pregnancy-related reasons.[36] The hospital admitted numerous pregnant women of color into their care, only for women to leave sterilized without giving proper consent.[37] The United States District Court for the Central District of California ruled in favor of the gynecologists, absolving them of any legal and moral responsibility for their actions.[38] The Court ruled that this case was the result of a breakdown in communication between the patients and the doctors.[39] The judge wrote that the emotional distress was not caused by the sterilizations, but rather by the patients’ “cultural background” as immigrants from rural Mexico who accredited a woman’s worth with her ability to raise a large family.[40]

Forced Sterilizations within ICE Facilities

Decades later in 2020, this practice of forcibly sterilizing minority women is still taking place. However, these forced sterilizations are now being done by ICE authorities. One nurse at a facility in Ocilla, Georgia filed a whistleblower complaint alleging concern over the high number of hysterectomies performed on ICE detainees.[41] Multiple women shared their experiences with these procedures taking place inside the immigration facility. One woman stated that when she questioned what treatment she was receiving, she received three different answers by three different people: the doctor, a corrections officer, and a nurse at the detention center.[42] On September 16, 2020, the vice chair of the House immigration subcommittee, Representative Pramila Jayapal, said that at a minimum seventeen or eighteen people held at the Irwin County Detention Center had undergone these invasive procedures without giving proper consent.[43]

By December of 2020, more than forty women had come forward with written testimonies stating they received invasive and unnecessary medical procedures while under ICE’s care.[44] The attorneys handling these cases reported some of the women faced retaliation for speaking out, including deportation.[45] After speaking with their clients, attorneys discovered women had complained to ICE since 2018 regarding this misconduct, but ICE “continued a policy or custom of sending women to be mistreated and abused.”[46]

ICE maintained that people should be weary of these claims until all the facts are accounted for; however, the similarities between the experiences of women in Georgia in 2020 and those in L.A. County during the 1970s are striking.[47] All of the victims were lower-income immigrant women who had an extremely minimal grasp of the English language, which left them vulnerable to coercive authority figures.[48] The recent COVID-19 pandemic had prompted many scholars to review this tragic history, even before the whistleblower’s complaint.[49] In addition to concerns about forced sterilization, scholars are also concerned as to whether or not these detainees will be given COVID-19 vaccines.[50]

Compensation for Prior Forced Sterilizations

Currently, some states have apologized for past forced sterilizations. In 2002, Virginia was the first state to formally apologize for these forced sterilizations.[51] Virginia and North Carolina have passed laws to compensate the surviving victims of their eugenics programs; however, California has not followed suit.[52]

The former California governor, Gray Davis, issued a formal apology in 2003; however, there are reports from 2010 that prisoners are being sterilized without proper consent.[53] The Center for Investigative Reporting found that almost 150 female inmates from 2006 until 2010 were sterilized without proper state approvals.[54] Of these 150 women, at least 148 received tubal ligations in violation of prison rules, which ban using federal funds for inmate sterilizations.[55] A former inmate from the Valley State Prison stated that she often overheard medical staff asking inmates who had served multiple prison terms to agree to be sterilized.[56] Another inmate who gave birth during her stay at the Valley State Prison reported a gynecologist repeatedly pressured her to agree to a tubal ligation.[57] In 2008, the prisoner rights group Justice Now received a response from an operating office acknowledging that the California Institution for Women and the Valley State Prison offered sterilization surgery to women.[58] The organization filed a public records request and complained to various committees, and finally met with medical officers from those facilities.[59] None of the doctors at these facilities thought they needed permission to perform surgery on inmates.[60] Finally, California Governor Jerry Brown signed a bill that bans prisons from sterilizing inmates without their consent in 2014.[61]

Conclusion

Forced sterilizations are not a thing of the past; however, a lack of oversight in various institutions, such as prisons, creates an environment with minimal accountability caring for a vulnerable population. This lack of accountability combined with the trauma victims suffer make these issues very unknown.[62] In order to prevent future abuses, more oversight is needed within any federally funded facility caring for vulnerable populations, and victims need to have their stories heard.

  1. Victoria Bekiempis, More immigrant women say they were abused by ICE gynecologist, The Guardian, Dec. 22, 2020. https://www.theguardian.com/us-news/2020/dec/22/ice-gynecologist-hysterectomies-georgia.
  2. Elizabeth Raterman, Tracing the History of Forced Sterilization within the United States, Health Law & Policy Brief – Washington College of Law, Mar. 29, 2019, http://www.healthlawpolicy.org/tracing-the-history-of-forced-sterilization-within-the-united-states/.
  3. Alexandra Minna Stern, Forced sterilization policies in the US targeted minorities and those with disabilities – and lasted into the 21st century, The Conversation, Aug. 26, 2020, https://theconversation.com/forced-sterilization-policies-in-the-us-targeted-minorities-and-those-with-disabilities-and-lasted-into-the-21st-century-143144.
  4. Id.
  5. Maya Manian, Immigration Detention and Coerced Sterilization: History Tragically Repeats Itself, American Civil Liberties Union, Sept. 29, 2020, https://www.aclu.org/news/immigrants-rights/immigration-detention-and-coerced-sterilization-history-tragically-repeats-itself/.
  6. Buck v. Bell, 274 U.S. 2000 (1927).
  7. Id.
  8. Id.
  9. Skinner v. Oklahoma, 316 U.S. 535 (1942).
  10. Id.
  11. Id.
  12. Id.
  13. Stern, supra note 3.
  14. Alonso, Paola, Autonomy Revoked: The Forced Sterilization of Women of Color in 20th Century America, Texas Women’s University, https://twu.edu/media/documents/history-government/Autonomy-Revoked–The-Forced-Sterilization-of-Women-of-Color-in-20th-Century-America.pdf.
  15. Stern, supra note 3.
  16. Kari White and Joseph E. Potter, Reconsidering racial/ethnic differences in sterilization in the United States, Contraception, Vol. 89, Issue 6, Jun. 2014, 550-556. Doi: 10.1016/j.contraception.2013.11.019.
  17. Hayley Fowler, ‘Act of Genocide.’ Eugenics program tried to ‘breed out’ Black people in NC, report says, The News & Observer, Jul. 22, 2020, https://www.newsobserver.com/news/state/north-carolina/article244411987.html.
  18. Stern, supra note 3.
  19. Id.
  20. Id.
  21. Sonya Borrero, Nikki Zite, Joseph E. Potter, and James Trussell, Medicaid Policy on Sterilization – Anachronistic or Still Relevant?, The New England Journal of Medicine, Issue 370, page 102-104, Jan. 9, 2014, doi: 10.1056/NEJMp1313325.
  22. Raterman, supra note 1.
  23. Alonso, supra note 14.
  24. Id.
  25. Id.
  26. Id.
  27. Julie Rose, North Carolina Eugenics Victims Not Giving Up, National Public Radio, Aug. 17, 2012, https://www.npr.org/2012/08/17/158984357/north-carolina-eugenics-victims-plan-next-steps.
  28. Raterman, supra note 1.
  29. Borrero, supra note 10.
  30. Id.
  31. Stern, supra note 2.
  32. Raul A. Reyes, ‘No Más Bebés’ Looks Back at L.A. Mexican Moms’ Involuntary Sterilizations, MSNBC, Feb. 1, 2016, https://www.nbcnews.com/news/latino/no-m-s-beb-s-looks-back-l-mexican-moms-n505256.
  33. Id.
  34. Id.
  35. Id.
  36. Matt, The Clash of Population and Prejudice in Madrigal v. Quilligan, Planned Parenthood, May 29, 2018, http://advocatesaz.org/2018/05/29/the-clash-of-population-and-prejudice-in-madrigal-v-quilligan/.
  37. Id.
  38. Id.
  39. Marcela Valdes, When Doctors Took ‘Family Planning’ Into Their Own Hands, The New York Times, Feb.1, 2016, https://www.nytimes.com/2016/02/01/magazine/when-doctors-took-family-planning-into-their-own-hands.html.
  40. Id.
  41. Nicole Narea, The outcry over ICE and hysterectomies, explained, Vox, Sept. 18, 2020, https://www.vox.com/policy-and-politics/2020/9/15/21437805/whistleblower-hysterectomies-nurse-irwin-ice.
  42. Id.
  43. Id.
  44. Bekiempis, supra note 1.
  45. Id.
  46. Id.
  47. Catherine Shoichet, In a horrifying history of forced sterilizations, some fear the US is beginning a new chapter, CNN, Sept. 16, 2020, https://www.cnn.com/2020/09/16/us/ice-hysterectomy-forced-sterilization-history/index.html.
  48. Id.
  49. Id.
  50. Id.
  51. Natalie Delgadillo, California Sterilized More People Than Any U.S. State But Has Yet To Compensate Victims, Governing: The Future of States and Localities, Aug 3, 2017, https://www.governing.com/archive/gov-sterilization-california-reparations-tennessee-eugenics.html.
  52. Id.
  53. Corey G. Johnson, Female inmates sterilized in California prisons without approval, Reveal News, Jul. 7, 2013, https://revealnews.org/article/female-inmates-sterilized-in-california-prisons-without-approval/.
  54. Id.
  55. Id.
  56. Id.
  57. Id.
  58. Id.
  59. Id.
  60. Id.
  61. California Bans Sterilization of Female Inmates Without Consent, MSNBC News, Sept. 26, 2014, https://www.nbcnews.com/health/womens-health/california-bans-sterilization-female-inmates-without-consent-n212256.
  62. Id.

 

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