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Excerpted From: Inka Skodowska Boehm, Punishment and Prejudice: Reproductive Coercion in Immigration and Customs Enforcement Detention Centers, 29 American University Journal of Gender, Social Policy and the Law 529 (2021) (243 Footnotes) (Full Document)

InkaSkłodowskaBoehmPauline Binam arrived in the United States from Cameroon as a toddler, with no notion of the dangers her new home had in store. At twenty-eight years old, Pauline found herself separated from her daughter and awaiting deportation in the Irwin County Detention Center in Ocilla, Georgia. Pauline consented to what she believed was a minor procedure after suffering from irregular menstrual bleeding, an ailment likely triggered by her two-year confinement. Unbeknownst to Pauline, the doctor removed one of her fallopian tubes, barring her ability to give birth to more children. A year later, Pauline came forward following a whistleblower report by former Irwin facility nurse, Dawn Wooten. Wooten alleged serious medical misconduct by the medical staff and guards at the Immigration and Customs Enforcement (“ICE”) facility, including an alarming rate of coerced hysterectomies conducted on people detained there.

Black, Brown, and Indigenous peoples' bodies continue to be regulated, policed, and violated by the U.S. government. The U.S. Department of Justice requires both prisons and immigration detention facilities to provide detainees with adequate healthcare. These services must also include reproductive care. By neglecting to do so, these institutions demonstrate deliberate indifference towards the needs of people under their care.

Reproductive coercion involves behaviors that manipulate, impede, and interfere with an individual's control over their reproductive health-related decisions. In detention and incarceration contexts, where bodily autonomy is already limited, reproductive coercion is cruel and unusual punishment. Pauline's sterilization procedure stripped her of autonomous decision-making regarding having biological children. Meanwhile, the Supreme Court has not declared that forced sterilizations are unconstitutional, nor has the Court found these procedures to be punitive in nature.

This Comment argues that the punitive nature of reproductive coercion requires consideration under the Eighth Amendment's framework. Part II describes the racist history of reproductive coercion in confinement in the United States. Part II details current practices and standards of healthcare in detention, the constitutional framework for reproductive freedoms, and the landmark case, Skinner v. Oklahoma. Part III argues that coercive sterilization constitutes punishment and, because of this, lawmakers must analyze it under the Eighth Amendment of the U.S. Constitution. Part III further asserts that reproductive coercion in an immigration detention context amounts to eugenics. Part IV recommends an elevated standard of consent and suggests eliminating constraints to reproductive care in detention. Part IV additionally describes proposed legislation as a vehicle for such change. Part V reiterates that coercive sterilization procedures are inherently punitive and that individuals in immigration detention must be protected under the Eighth Amendment.

[. . .]

The Court decided Skinner as Europe witnessed the horrors of eugenicist and genocidal policies firsthand, but it failed to overturn Bell unequivocally. That mistake led to implicit policies targeting non-white and lower-income communities through reproductive coercive tactics, including a culture of coercion in immigration detention centers.

The right to Due Process protects those individuals in civil detention from anything remotely resembling an environment designed for punishment. Yet, courts routinely look away as the inherently coercive environment of immigration detention centers creates an opportunity for abuse. Sterilizations without informed consent are just one form of punishment immigrants in these centers suffer. By enforcing and increasing the standards of informed consent in confinement contexts, legislators can fight back against these systemic abuses while ensuring detainees still can exercise reproductive autonomy.

Bell has not been overturned, and while federal law prohibits forced sterilizations in institutions, that protection is not enough. Acknowledging the Eighth Amendment applies in immigration detention will allow for more legal remedies and, eventually, a clear precedent of a higher standard of protection in civil immigration detention. Legal precedent needs to unequivocally catch up to our collective understanding that forced sterilizations are cruel and unusual punishment. Our evolving standards of humanity call for both immigrants and incarcerated individuals to be free from such punishment.

Inka Skodowska Boehm is a J.D. Candidate at American University's Washington College of Law. She received her B.A. Political Science in 2018 from Trinity University.

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