This blog was co-authored by Mason Ramsay, Fall 2020 Intern, NHeLP, J.D. Candidate ‘21, University of Tennessee College of Law
For the past four years, the Trump administration’s U.S. Department of Homeland Security has committed a litany of human rights violations against immigrants and migrants (im/migrants)—particularly Black, Indigenous, People of Color (BIPOC) im/migrants—and their families. Many of these violations have targeted or otherwise harmed the reproductive and sexual health and rights of people detained by Immigration and Customs Enforcement (ICE). Together, they stand in the way of achieving reproductive justice, “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”
Pregnancy in Im/migration Detention is Reproductive Injustice
In December 2017 ICE issued a directive ending an Obama-era policy on the identification and monitoring of pregnant people in immigration detention. The former policy held that, absent extraordinary circumstances or a situation in which mandatory detention is required, ICE will generally not detain pregnant people. Under the Trump administration’s new policy, “Identification and Monitoring of Pregnant Detainees,” ICE officers are not supposed to give special treatment to pregnant detainees, save for providing necessary medical care and tracking pregnant people in custody.
In April 2020, the U.S. Government Accountability Office (GAO) published a report on the mistreatment of pregnant people in ICE facilities. GAO’s report shows the practical effect of this reversal. While ICE detained 1,380 pregnant immigrants in 2016, by 2018, that number had increased by more than 50 percent to 2,098. Between 2016 and 2018, more than 4,600 pregnant women were detained for nearly 50,300 aggregate days.
While pregnancy is widely dangerous in the U.S., home to a maternal mortality epidemic which grossly outpaces peer high-income nations, it is particularly dangerous for people in detention. For example, the GAO report highlights a 2018 letter written by various medical groups highlighting how the lived experience of im/migration detention can negatively affect maternal mental health as well as fetal and child development. It also highlighted how shackling during pregnancy can seriously harm the physical and mental health of pregnant people.
The COVID-19 pandemic only heightens these risks. Since February 2020, 6,922 people have tested positive for COVID-19 while in ICE custody. Even with knowledge about positive cases, ICE continues to overcrowd detention centers, making social distancing impossible, and has been transferring im/migrants between facilities despite positive tests, willfully spreading COVID-19 across state lines. Emerging studies suggest that pregnant people may be at increased risk for severe illness associated with COVID-19.
In November 2020, the Centers for Disease Control and Prevention (CDC) released findings showing that compared with nonpregnant women, pregnant women were significantly more likely to be admitted to an ICU, receive invasive ventilation and extracorporeal membrane oxygenation, and are at increased risk of death compared to nonpregnant women. While much remains unknown, and more inclusive data are needed to fully capture risks for pregnant people beyond women, these data underscore the life-and-death nature of im/migrant detention for pregnant people.
Forced and Coercive Sterilization is Reproductive Injustice
In September, reports emerged that numerous im/migrants at the Irwin County Detention Center in Georgia (Irwin) were sterilized without their consent—horrific reproductive injustices that violate fundamental human rights. In addition to allegations about forced or coercive hysterectomies, the complaint—filed by Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights, and South Georgia Immigrant Support Network on behalf of injured im/migrants—alleges inadequate protocols and sanitation measures to safeguard detainees against COVID-19 as well as inadequate translation measures leading to patterns of uninformed consent—violations of ICE’s Performance-Based National Detention Standards and CDC’s COVID-19 guidelines.
In the complaint, five women detained at Irwin between October and December 2019 who received hysterectomies expressed confusion about why they had the procedure. The reporting im/migrant described the detention center as an “experimental concentration camp” because of the number of hysterectomies being performed without informed consent. Whistleblower Dawn Wooten, a former nurse at Irwin, said in the complaint that “everybody [the gynecologist] sees has a hysterectomy––just about everybody.” Im/migrants who received hysterectomies were unable to tell the nurse why they had the surgery performed. Some im/migrants chose not to see this gynecologist at all and wait to see a doctor in their home country.
Unfortunately, the tragic circumstances described in the complaint are aligned with our nation’s cruel legacy of intentional violence, abuse, and trauma, including government-sanctioned forced sterilization, of im/migrants and, more broadly, Black, Indigenous, Mexican, Puerto Rican, and Japanese, and other People of Color. Under discriminatory eugenics laws during the 20th Century, providers conducted more than 60,000 forced sterilizations. Im/migrants, BIPOC, those with disabilities, and low-income individuals were and continue to be disproportionately targeted.
Charting a Path Forward
Our im/migration system is deeply rooted in white supremacy, xenophobia, sexism, and other overlapping systems of oppression, and is by its very nature antithetical to reproductive justice. Fortunately, with the final days of the Trump administration are upon us, President-elect Joe Biden and Vice President-elect Kamala Harris will soon have an opportunity to end violations of the reproductive health-related human rights of im/migrants, including the forced and coercive sterilization of im/migrants in detention and detention of pregnant im/migrants.
Together with our immigrant rights and reproductive justice partners, we are excited to work with the Biden-Harris administration to not only end health injustices that have emerged over the past four years, but to reimagine and build a future in which all people, including im/migrants, can access comprehensive and quality reproductive and sexual health care delivered with dignity, enjoy reproductive autonomy, and experience reproductive justice.
 The National Health Law Program recognizes that the constellation of reproductive injustices fostered by im/migrant detention policies and practices impact pregnant people beyond women. We use “woman” where necessary to align with research findings focused on women in detention while also recognizing that this exclusionary data does not fully capture the lived experiences of people with reproductive health needs in detention.
By: Madeline Morcelle, Staff Attorney, NHeLP, and Mason Ramsay, Fall 2020 Intern, NHeLP, J.D. Candidate ‘21, University of Tennessee College of Law