Reproductive Justice in the U.S. Immigration Detention System

Obstetrician–gynecologists are responsible for understanding the intersections of reproductive injustice in the U.S. immigration detention system and delivering high-quality reproductive care regardless of immigration status.

Abstract

Reproductive coercion extends from a historical context in which the obstetrics and gynecology profession has interfered with the reproductive and bodily autonomy of immigrants. We provide illustrative examples of historical and contemporary immigration policies that allow mechanisms of reproductive control to persist within the immigration detention system. We end by compelling obstetrician–gynecologists to act as agents of change by leveraging their social, economic, and political power to resist and eliminate structures and norms that enable reproductive oppression of immigrant groups in detention.

In September 2020, reports emerged of immigrant women undergoing coerced hysterectomies at an immigration detention facility in Georgia.¹ The current reproductive abuses in Immigration and Customs Enforcement detention are not an aberration but rather an oppressive use of reproductive control extending from more than a century of nativist sentiment within the legal and social fabric of the United States. We define immigration enforcement system as including actions of arrests, searches, and surveillance that can lead to detention and deportation. We focus on harms conferred within immigration detention and use this broader historical context to better understand how these harms have been facilitated by structural racism. This commentary reflects on the history of reproductive control within the immigration enforcement system and serves three aims. First, we articulate the intersection of reproductive control and immigration policy by providing historical and contemporary examples of reproductive injustice within the immigration enforcement system. Second, we demonstrate how contemporary immigration policy continues to perpetuate reproductive abuses, particularly in detention settings where immigration enforcement authorities are empowered to act with impunity. Finally, we end with a call to action for obstetrician–gynecologists (ob-gyns) who have a unique responsibility to advocate for reproductive justice alongside immigrants and to ensure that patterns of reproductive control are eliminated.

For this commentary, we adopt the definition of reproductive justice, conceptualized by SisterSong, a collective of Black feminist activists. This framework opens space for dismantling reproductive control by emphasizing how broad, structural inequities circumscribe individual autonomy.^2,3 Reproductive justice envisions the protection of procreative agency in all forms, including, “…the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”⁴ We argue that to confront the reproductive injustices immigrants currently face, especially those in detention, ob-gyns must center the experiences of immigrants within the larger context of structural racism. Contemporary manifestations of racial inequities in pregnancy outcomes⁵ are rooted in the legacies of racism that allowed “pioneers” of gynecology like J. Marion Sims to carry out atrocities against enslaved Black women.⁶ This intersectional lens helps articulate the connections between immigrant rights and reproductive justice and the multiple ways that the reproductive health of immigrants is affected by immigration policy. In examining the racialized origins of immigration enforcement, we can understand reproductive control as deeply intertwined with conceptions of ethno-citizenship.

CONFRONTING THE HISTORY OF IMMIGRATION LAW AND RACIALIZED REPRODUCTIVE CONTROL

Immigration law was first conceived within a racialized and gendered framework with the goal of excluding specific groups from the national body. These laws were racialized because immigrants, many of whom were not White, were deemed inferior and therefore unworthy of political influence.⁷ These laws were gendered because immigrant women carried an immense power in their ability to bear a future generation of U.S. citizens. From the very inception of federal immigration law, with the passage of the Page Act in 1875, Congress banned the entry of Chinese women who had a history of sex work or polygamy. Although Chinese immigrants were unable to naturalize during this period of time, the newly ratified Fourteenth Amendment established birthright citizenship regardless of parental origin.⁸ The reproductive power of Chinese women was perceived as the ultimate threat to the cultural and ethnic purity of the nation-state. By banning the entry of Chinese women, the first federal immigration laws were formed to reflect the nation's interest in controlling the entry of people with reproductive capacity in an attempt to maintain its cultural and political hegemony.

As eugenic ideas became popularized in the early 1920s, reproductive control was increasingly intertwined with conceptions of White nationhood. Fears about the dwindling White population were then codified into restrictive immigration policies with the passage of the Federal Immigration Restriction Act in 1924. This act contained quota provisions to limit the entry of non-White immigrants, whom Congress viewed as tainting American morality.⁹ This act, along with the quota system based on national origin, was in effect for 41 years until the creation of the Immigration and Nationality Act in 1965. Although explicit racialized exclusion was formally repealed when the Immigration and Nationality Act was enacted, the foundation of U.S. immigration law remains firmly cemented in the design for national identity of the quota system.

HISTORICAL EXAMPLES OF REPRODUCTIVE INJUSTICE AMONG IMMIGRANTS AND COLONIZED GROUPS

The most egregious instances of reproductive abuse have occurred in settings where racial and economic inequities are prominent and where nativist impulses are empowered. People of color have historically been coerced into sterilization through targeted campaigns and a lack of informed consent.¹⁰ In an era in which White women in the United States had trouble convincing doctors to sterilize them, the government was directly and indirectly funding forced sterilizations of Latina, Black, and Indigenous women.² Ties between imperial power and reproductive control are particularly evident in the coerced sterilization of Puerto Rican women. Despite being U.S. citizens, Puerto Ricans do not always experience full citizenship because of Puerto Rico's history as a colony rather than a state. After the U.S. colonization of the island in 1898, the government labeled Puerto Rican poverty as an issue of overpopulation. Over the next century, the government effectively replaced prior community birth control practices with a state-run agenda, resulting in a loss of agency over reproductive decisions. For many women, sterilization was the only option to engage in an economy designed to benefit U.S. corporations; many factories would not hire women unless they received reassurance that a pregnancy would not affect production.¹⁰

The pattern of reproductive oppression as intertwined with nativist motivations is also manifest in the case of Madrigal v Quilligan (1978), in which ob-gyns coercively sterilized Mexican American women in response to an increase in Mexican immigration. Most of the plaintiffs were monolingual Spanish speakers and testified that they had not understood that the tubal ligation surgery would permanently affect their ability to have children. Others were threatened with deportation if they did not consent to the sterilization.¹¹ A medical student who had observed the coercive behavior described the widespread belief within the hospital that women from Mexico were a threat to society because of their high rates of fertility.¹¹ The physicians held the stigmatizing belief that the women did not qualify as American, and thus did not require the same consent process, because they came to the United States specifically to give birth and obtain birthright citizenship for their children, which created a burden on society.¹⁰ These physicians had, consciously or unconsciously, taken on the eugenicist language that permeates the legal, cultural, and political fabric of the United States.

These examples illustrate how perpetrators of forced sterilization in the United States historically targeted people whom they perceived as noncitizens because of their racial or ethnic identity, incarceration, or institutionalization.⁸ Within this history, we can begin to confront a system built around the exclusion of people of color and identify the ways in which these narratives persist within the medical field.

CONTEMPORARY REPRODUCTIVE INJUSTICE IN THE IMMIGRATION ENFORCEMENT SYSTEM

The underlying nativism at the heart of immigration policy continues to play out in both covert and explicit attempts to maintain control of the racial demographics of the country. After the September 11, 2001, attacks, the immigration landscape shifted drastically, with a transfer of oversight to three different agencies within the Department of Homeland Security.¹² Thinly veiled by an ideology of national security, today's immigration enforcement is largely responsive to reinvigorated xenophobic anxieties that framed immigrants themselves as a threat to the nation-state.¹² In addition, the legal conception of national sovereignty in this context has resulted in judicial exemption from due process and equal protection standards that would have applied within any other domestic context. This legislative and judicial shift that took place after September 11 created clandestine spaces within detention centers where immigration enforcement authorities could act with impunity and continue practices that infringe on the bodily autonomy of immigrants.

Violations of reproductive justice continue to occur throughout the immigration detention system as the current legal landscape allows our history of racialized reproductive control to persist. In addition to the recent reports of forced hysterectomies in Immigration and Customs Enforcement detention,^13,14 there are reports of abortion bans for unaccompanied minors in detention, forced separations of families at the border, mistreatment of pregnant immigrants in detention,^15,16 and medical neglect during pregnancy and childbirth.¹⁷ Other reports demonstrate that undocumented pregnant women have been increasingly targeted by punitive immigration policies,¹⁸ and the frequency of deportations among pregnant individuals has led to speculation that pregnancy itself has become a “red flag for removal by [Immigration and Customs Enforcement] officials.”¹⁸ In addition, toxic stress from Immigration and Customs Enforcement raids has been associated with increased rates of preterm births among Latines¹⁹ and limited reproductive autonomy.²⁰

The legally recognized purpose of detention is to ensure compliance with immigration processes,²¹ yet rates of compliance are similar among immigrants in community settings and immigration detention.¹² Immigrants in community settings avoid the negative health harms experienced by those detained, especially for those who are pregnant.¹⁵ Although detention may seem far removed from many immigrant communities, the number of detained immigrants in recent years is higher than ever before. In 2021 alone, 1.6 million migrants were detained at the U.S.–Mexico border.²² Detained individuals are often held longer and in worse conditions in immigration detention facilities operated by for-profit private prison companies as a result of cost-saving and profit-maximizing measures.¹⁶ Ending contracts with private prison firms must be a priority on the path to decarceration and reproductive justice.

CALL TO ACTION

Reproductive justice concepts are being integrated into medical education,²³ and at least one published curriculum has included immigration barriers in the context of reproductive rights.²⁴ Yet, gaps remain in applying the reproductive justice framework to noncitizens and understanding the history of immigration law as a structural determinant of reproductive health for immigrants. Some of the most egregious examples of reproductive control arise within the U.S. immigration detention system, which restricts reproductive autonomy of immigrants on multiple fronts. Detained immigrants have been deprived the opportunity to have children in cases of coerced sterilization and forced to have children through significant barriers to abortion and contraception access.²⁵ Detaining immigrant children strips parents of the right to nurture their family in a safe and healthy environment. When it comes to the reproductive health of noncitizens at the U.S.–Mexico border, the immigration context is ripe for abuse, considering the almost complete absence of judicial oversight in this area.

Obstetrician–gynecologists are critical agents of change in promoting reproductive justice for immigrants both individually and collectively. On an individual level, learning about the historical examples of reproductive injustice²³ that shape contemporary realities⁵ can lead to reflection, interruption of harmful biases, and improvement in physician–patient interactions. Obstetrician–gynecologists must create professional norms and systems for accountability regarding those who perpetuate abuses of reproductive rights and denounce both individuals and the systems that permit those practices to occur. Building relationships with legal professionals and community organizations to provide the best comprehensive care for immigrants is critical to advance reproductive justice at the individual level. Obstetrician–gynecologists should familiarize themselves with state policies regarding eligibility for insurance coverage and other social programs for immigrants based on legal status because undocumented immigrants, even if released from detention, are excluded from many public services, including insurance coverage under the Affordable Care Act.^26,27

On a collective level, ob-gyns and their professional organizations should advocate for federal and state policies that dismantle the structural harms of racism and xenophobia and advance reproductive justice and immigrant justice. For example, the American College of Obstetricians and Gynecologists successfully advocated to abolish shackling of pregnant people during childbirth in the carceral system.²⁸ Future policy changes relating to immigration detention should ultimately focus on pathways to decarceration and the long-term goal to eliminate detention entirely. Although immigration detention continues to exist, policy changes should prioritize alternatives to detention programs (release on bond), particularly for pregnant people, such that immigrants are integrated into the community rather than imprisoned. In the interim, harm reduction strategies for pregnant individuals in detention include the following: 1) providing comprehensive preventive care, including high-quality prenatal care in accordance with standards supported by medical associations, in a system currently designed to manage acute care²⁹; 2) improving surveillance and transparency of quality measures, particularly around reproductive health and pregnancy; 3) ensuring accountability when quality measures are not upheld, such as terminating contracts with facilities that violate standards; and 4) improving existing mechanisms to report grievances regarding care received in detention that do not lead to retaliation.³⁰ All immigrants, whether they live in communities or in detention, should have universal access to health care. Expanding Medicaid coverage during the first year after childbirth to ensure that all people, including those in detention, have access to comprehensive care is a policy priority. However, undocumented immigrants are eligible for state Medicaid coverage only in certain states, limiting the effects of Medicaid expansion for those residing in states where they are eligible for coverage.²⁶ Ultimately, a multilevel approach that addresses the roles of individuals and systems that perpetuate inequities will be critical to ensuring that immigrants are treated with dignity and respect when seeking reproductive health care.

CONCLUSION

Reproductive justice is immigrant justice, and the long histories of both immigration and reproductive rights policies are intertwined, producing specific intersectional vulnerabilities for immigrant communities. Obstetrician–gynecologists hold a unique position in advocating for policies that ameliorate the harms conferred in immigration detention and partnering in solidarity with community organizers to promote reproductive justice.