Reproductive violence has “traditionally been ignored” by the international community at large when discussing one’s rights to bodily autonomy. While movements against sexual violence have become more common in recent years, reproductive violence has not gotten the same attention. Reproductive violence can occur as “forced contraception, sterilization and forced abortions” as much as it does “forced pregnancies and motherhood.” Generalized acts of violence against pregnant people, including lack of adequate access to healthcare, are enveloped in reproductive violence as well. It is well documented that immigrants face horrific levels of sexual violence on their journeys to the southern border, and it is important to consider the continued reproductive violence immigrants face while being detained by U.S. Immigration and Customs Enforcement (“ICE”).
Reproductive violence against BIPOC is not a recent development in American history. In 1927 the Supreme Court of the United States affirmed the legality of a Virginia law that allowed non-consensual sterilization deemed to be “feeble minded” in their Buck v. Bell ruling, thus opening the doors for other states to pass their own sterilization laws. Unsurprisingly, marginalized communities bore the brunt of coercive and non-consensual sterilization procedures. By 1950 more than 60,000 people had been forcibly sterilized in the United States, with California accounting for approximately one-third of the sterilizations. The doctor who performed each sterilization also submitted a formal request with the reason for the sterilization – Mexican immigrants and their families were labeled as “immigrants of an undesirable type” or as from “a lower racial level,” either being a strong enough reason for the sterilization to be performed. Research has found all genders were targeted, with Latino men being twenty-three percent more likely to be sterilized than non-Latino men and Latina women being fifty-nine percent more likely to be sterilized than non-Latina women.
In 1942 the Supreme Court once again affirmed the legality of sterilization laws in Skinner v. Oklahoma. The Court found that Oklahoma had violated the Equal Protection clause of the Fourteenth Amendment by their arbitrary application of using sterilization as a criminal punishment. The Court did not raise an issue with the practice of forced sterilization, but rather only the ways in which it was used. As long as states operated within the confines of the Fourteenth Amendment, non-consensual sterilizations remained legal after the Skinner ruling.
With the green light from the United States Supreme Court, forced sterilization continued to be carried out legally well into the late twentieth century. In 1978 a resident working at the Los Angeles County USC Medical Center went public with alleged “sterilization abuse in the maternity ward.” Ten Latina women filed a lawsuit against the hospital in June of 1978 seeking to “strengthen federal and state policies on informed consent to sterilization.” Drawing from the framework of the recent Roe v. Wade victory, the women asserted their constitutional right to bodily autonomy had been violated, coining the term “sterilization abuse” in the process. While the women ultimately did not prevail in their case, the court acknowledged the use of federal money to pay for the sterilizations and the “abusive [and] coercive practices” of hospital employees against the “Mexican population” as fact.
Forty-two years later a whistle blower from the Irwin Detention Center in Georgia came forward with a similar allegation. Dawn Wooten, a nurse at the facility, “publicly reported [reproductive] abuse … to the Department of Homeland Security, ICE, and [the Irwin County Detention Center].” Thirteen women filed a suit in November of 2020 against a doctor contracted by the facility claiming that, while awaiting deportation, “they were subjected to medical and other abuse-most notably, unnecessary and nonconsensual gynecological procedures.” These women, along with others who did not wish to participate in the suit, had hysterectomies without their full knowledge or consent while in detention. As of March 2022, neither party involved in the lawsuit had finished discovery, and the case has yet to be heard in Georgia.
Half a century has not been enough time for Latinx Americans to live freely with no fears about their rights to reproductive freedom. While outright forced sterilization is perhaps the most blatant breach of immigrants’ right to reproductive freedom and bodily autonomy, it is by no means the sole form of violence taken by ICE. Negligence seems to be the norm in detention facilities with no meaningful access to abortion or any other medical care for immigrants in detention, pregnant immigrants continue to be detained despite the dangers to their health and the health of their babies, and ICE officers continue to act in ways that endanger the pregnant immigrants and their babies.
Until 2016 the Department of Homeland Security (“DHS”) generally followed the policy that pregnant women, especially pregnant women in their third trimester, should not be detained. If they were detained it was to be for a minimal timeframe, with DHS acknowledging that detention is not a safe environment for expecting immigrants. In December of 2017, the then-acting director of ICE issued a directive ending “the presumption of release for all pregnant detainees.” This led to a fifty-two percent increase in the number of pregnant immigrants in detention in 2018.
Along with the increase of the detention of pregnant immigrants came increasing reports of medical neglect. By ICE’s own account, there were forty-five instances of abuse or neglect to pregnant immigrants that necessitated the opening of an internal investigation. Immigrants are routinely denied access to clean clothing or personal hygiene items such as sanitary napkins or soap. Medical care is repeatedly denied to pregnant immigrants in distress, despite ICE being under federal obligations to ensure the health and safety of all in their custody. U.S. Customs and Border Protection’s (“CBP”) “existing policies are woefully inadequate” to ensure the safety and pregnant migrants. And even when there are policies in place, both ICE and CBP continue to violate them despite the health risks involved.
The results of the poor treatment of pregnant migrants are devastating – reports of miscarriages in detention have surged since ICE began detaining pregnant women. The ACLU and other non-profits working with immigrants along the southern border have gathered dozens of stories of pregnant immigrants who were denied medical treatment or were other mistreated while actively miscarrying. Mistreatment and neglect while in ICE detention is likely the direct cause for many miscarriages experienced by immigrants.
Immigrants being detained are not the only ones facing violation of their right to reproductive safety at the hands of CBP. The continuation of the “Migrant Protection Protocols,” a Trump-era directive that allows CBP to return immigrants to Mexico for the duration of their deportation proceedings, is another example of structural violence against pregnant immigrants. Physicians have raised concerns about the conditions faced by those who are forced to return to Mexico, citing a “greatly increased risk for largely preventable adverse maternal and newborn outcomes.” Pregnant immigrants report being unable to access medical care in Mexico even for potentially deadly pregnancy-related conditions like preeclampsia. The conditions that pregnant immigrants are forced to endure increase the risk of “adverse birth outcomes [that] can have long-lasting repercussions” on the health and safety of the baby. CBP is fully aware of the conditions along the southern border, and are contributing to the reproductive violence faced by pregnant immigrants unable to access the care they need.
The Biden Administration has had two years to intervene in the cycles of reproductive violence immigrants face. In November 2021 the Biden Administration released new guidance to CBP to increase protections available to “pregnant, postpartum, nursing individuals and infants in custody.” Immigration detention facilities were given forty-five days to implement updated operating standards that prioritize the release of pregnant and post-partum immigrants from detention, or if their release is not possible to provide a higher level of care to these individuals. New procedural standards include things like the right to receive medical assistance from local health systems if the appropriate care is unavailable in the detention facility and the requirement of detention facilities to have medical support staff on site. The directive, introduced through President Biden via executive order, is in direct response to the deplorable conditions faced by pregnant immigrants who have been detained.
While the most recent policies implemented by the federal government require a base line of human treatment of pregnant immigrants, advocates say that the guidelines are not doing enough to stop the reproductive violence occurring in detention facilities. Options laid out in the guidelines are criticized as stopping short of solving a problem when there is a clear solution. The new guidelines require that detention facilities keep things like snacks, juice, and bassinets on hand for immigrants who are in labor or give birth. Advocates argue that a cup of juice does nothing to improve the safety of a laboring immigrant when the clear solution would be to stop the detention of pregnant migrants altogether. As the United States continues to struggle with immigration policy in the long term, it is vital that the reproductive violence faced by pregnant immigrants ceases immediately.
- Catalina Martinez Coral et al., Examination of Reproductive Violence against Women and Girls, 52 11 (2019), https://reproductiverights.org/wp-content/uploads/2021/09/ENG-FULL-Reproductive-Violence-Conflict-Colombia.pdf. ↑
- Id.at 12. ↑
- Id.at 13. ↑
- Id.at 13. ↑
- Anja Parish, Gender-Based Violence against Women: Both Cause for Migration and Risk along the Journey, The Online Journal of the Migration Policy Institute (2017), https://www.migrationpolicy.org/article/gender-based-violence-against-women-both-cause-migration-and-risk-along-journey; ACLU Comment on New ICE Policy that Allows Detention of Pregnant Women, American Civil Liberties Union, https://www.aclu.org/press-releases/aclu-comment-new-ice-policy-allows-detention-pregnant-women (last visited Mar 3, 2022); Maria Sacchetti, Pregnant immigration detainees spiked 52 percent under Trump administration, Washington Post, December 5, 2019, https://www.washingtonpost.com/immigration/pregnant-immigration-detainees-spiked-52-percent-under-trump-administration/2019/12/05/610ed714-16bb-11ea-8406-df3c54b3253e_story.html; Alice Speri, Detained, Then Violated: 1,224 Complaints Reveal a Staggering Pattern of Sexual Abuse in Immigration Detention. Half of Those Accused Worked for ICE., The Intercept (2018), https://theintercept.com/2018/04/11/immigration-detention-sexual-abuse-ice-dhs/; Teo Armus, Immigration detainees file for class-action lawsuit against ICE and Georgia gynecologist, alleging misconduct, Washington Post, December 22, 2020, https://www.washingtonpost.com/nation/2020/12/22/ice-gynecologist-georgia-doctor-lawsuit/. ↑
- Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927)., (1927), https://casetext.com/case/buck-v-bell. ↑
- Id.; Nicole L. Novak et al., Disproportionate Sterilization of Latinos Under California’s Eugenic Sterilization Program, 1920-1945, 108 Am J Public Health 611–613 (2018); Maya Manian, Immigration Detention and Coerced Sterilization: History Tragically Repeats Itself, American Civil Liberties Union (2020), https://www.aclu.org/news/immigrants-rights/immigration-detention-and-coerced-sterilization-history-tragically-repeats-itself/; Sanjana Manjeshwar, America’s Forgotten History of Forced Sterilization – Berkeley Political Review, Berkley Political Review (2020), https://bpr.berkeley.edu/2020/11/04/americas-forgotten-history-of-forced-sterilization/. ↑
- Novak et al., supra note 7. ↑
- Id. ↑
- Id. ↑
- Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110 (1942)., https://casetext.com/case/skinner-v-state-of-oklahoma-williamson. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927)., supra note 6; Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110 (1942)., supra note 11; Maya Manian, The Story of Madrigal v. Quilligan: Coerced Sterilization of Mexican-American Women, Reproductive Rights and Justice Stories (2018), https://ssrn.com/abstract=3134892. ↑
- Manian, supra note 15 at 3. ↑
- Id.at 4. ↑
- Roe v. Wade, 410 U.S. 113, 93, (1973), https://casetext.com/case/roe-v-wade; Manian, supra note 15 at 6, 7. ↑
- Manian, supra note 15 at 10–12. ↑
- Yanira Yesenia Oldaker et al., Suit against GA OB/GYN 160. ↑
- Id. ↑
- Id.; Project South Dawn Wooten Georgia Detention Watch, Georgia Latino Alliance for Human Rights, and South Georgia Immigrant Support Network, Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center, (2020), https://projectsouth.org/wp-content/uploads/2020/09/OIG-ICDC-Complaint-1.pdf. ↑
- Oldaker et al., supra note 20; Yanira Yesenia Oldaker, IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION, 16; W. LOUIS SANDS Judge SR , District, OLDAKER v. GILES | Case No. 7:20-CV-00224 (WLS… | 20210805b88| Leagle.com, https://www.leagle.com/decision/infdco20210805b88 (last visited Mar 20, 2022). ↑
- ACLU Comment on New ICE Policy that Allows Detention of Pregnant Women, supra note 5; Childbirth at the Chula Vista Detention Center; CBP’s Long History of Mistreatment of Detained People, American Civil Liberties Union of San Diego and Imperial Counties (2020), https://www.aclusandiego.org/en/cbps-long-history-mistreatment-detained-people; Brigitte Amiri, Reproductive Abuse is Rampant in the Immigration Detention System, American Civil Liberties Union (2020), https://www.aclu.org/news/immigrants-rights/reproductive-abuse-is-rampant-in-the-immigration-detention-system/; Colin Seeberger, Women and Girls in Immigration Detention Are Being Stripped of Their Health and Rights, Center for American Progress (2019), https://www.americanprogress.org/press/release-women-girls-immigration-detention-stripped-health-rights/; Shefali Luthra, Pregnant undocumented minors can’t get abortions in Texas, The 19th (2021), https://19thnews.org/2021/10/undocumented-minors-can-no-longer-access-abortions-in-texas/; The Center for Reproductive Rights, Reproductive Health, Rights, and Justice, 24 (2020), https://www.amnestyusa.org/wp-content/uploads/2020/12/3rd_US_UPR-repro_rights_and_justice_stakeholder_report.pdf. ↑
- Sacchetti, supra note 5. ↑
- Id.; CBP’s Long History of Mistreatment of Detained People, supra note 24. ↑
- Sacchetti, supra note 5. ↑
- Id. ↑
- Re: U.S. Customs and Border Protection and Border Patrol’s Abuse and Mistreatment of Detained Pregnant People, 5. ↑
- UPDATE to re: U.S. Customs and Border Protection. ↑
- Re: U.S. Customs and Border Protection and Border Patrol’s Abuse and Mistreatment of Detained Pregnant People, supra note 29 at 5–8. ↑
- Pregnant Women Said They Miscarried In Immigration Detention And Didn’t Get The Care They Needed, BuzzFeed News, https://www.buzzfeednews.com/article/emaoconnor/pregnant-migrant-women-miscarriage-cpb-ice-detention-trump (last visited Mar 13, 2022). ↑
- Re: U.S. Customs and Border Protection and Border Patrol’s Abuse and Mistreatment of Detained Pregnant People, supra note 29 at 5. ↑
- Childbirth at the Chula Vista Detention Center, supra note 24; Nora Ellmann, Immigration Detention Is Dangerous for Women’s Health and Rights, Center for American Progress, October, 2019, https://americanprogress.org/wp-content/uploads/2019/10/WommenImmigrationHealth-report.pdf (last visited Mar 3, 2022); Seeberger, supra note 24. ↑
- Pregnant Women Said They Miscarried In Immigration Detention And Didn’t Get The Care They Needed, supra note 32; Re: U.S. Customs and Border Protection and Border Patrol’s Abuse and Mistreatment of Detained Pregnant People, supra note 29 at 5. ↑
- UPDATE to re: U.S. Customs and Border Protection, supra note 30; Katie Shepard, Osbur Katharina & Victoria Lopez, U.S. Immigration and Customs Enforcement’s Detention and Treatment of Pregnant Women, (2017), https://www.aclu.org/sites/default/files/field_document/revisedcomplaintcrcl_oigpregnantwomenicecustody11.13.17.pdf; Re: U.S. Customs and Border Protection and Border Patrol’s Abuse and Mistreatment of Detained Pregnant People, supra note 29; Pregnant Women Said They Miscarried In Immigration Detention And Didn’t Get The Care They Needed, supra note 32. ↑
- ADD TO 35 – XX CITE MPP LETTER ↑
- Pregnant Women Said They Miscarried In Immigration Detention And Didn’t Get The Care They Needed, supra note 32. ↑
- Adriana Piñon, Rochelle Garza & Shaw Drake, Pregnant women returned to Mexico under the “Migration Protection Protocols” (MPP), 4 (2019), https://www.aclutx.org/sites/default/files/aclu_oig_complaint_preg_mpp.pdf. ↑
- Pregnant Women Said They Miscarried In Immigration Detention And Didn’t Get The Care They Needed, supra note 32 at 4, 6. ↑
- Piñon, Garza, and Drake, supra note 39 at 4. ↑
- U.S. Customs and Border Protection Policy Statement pregnant postpartum infants; Mitra Ebadolahi & Monika Langarica, New Guidance Fails to Stop Mistreatment of Pregnant People and Their Children in Detention, American Civil Liberties Union (2021), https://www.aclu.org/news/immigrants-rights/new-guidance-fails-to-stop-mistreatment-of-pregnant-people-and-their-children-in-detention/. ↑
- U.S. Customs and Border Protection Policy Statement pregnant postpartum infants, supra note 42 at 3. ↑
- Id.at 3. ↑
- Joseph Biden, Revision of Civil Immigration Enforcement Policies and Priorities, (2021), https://www.federalregister.gov/documents/2021/01/25/2021-01768/revision-of-civil-immigration-enforcement-policies-and-priorities (last visited Mar 12, 2022); Joseph Biden, Exec. Order No. 14,010, 3 C.F.R. § 8267-8271 (2021), (2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-creating-a-comprehensive-regional-framework-to-address-the-causes-of-migration-to-manage-migration-throughout-north-and-central-america-and-to-provide-safe-and-orderly-processing/ (last visited Sep 13, 2021). ↑
- Ebadolahi and Langarica, supra note 42. ↑
- Id.; U.S. Customs and Border Protection Policy Statement pregnant postpartum infants, supra note 42. ↑
- Ebadolahi and Langarica, supra note 42. ↑