Sterilization in US Immigration and Customs Enforcement’s (ICE’s) Detention: Ethical Failures and Systemic Injustice

On September 14, 2020, Project South, in conjunction with four other human rights organizations, filed a whistleblower complaint on behalf of detained immigrants at the Irwin County Detention Center (ICDC) in Georgia and Dawn Wooten, a licensed ICDC nurse. The complaint alleged numerous grievances and, alarmingly, raised concerns regarding “the rate at which hysterectomies are performed on immigrant women under ICE [US Immigration and Customs Enforcement] custody at ICDC.”¹ Although each concern raised in the complaint—including improper COVID-19 safety procedures, fabrication of medical records, and delays in receiving necessary medication—adds to an already disturbing list of medical mistreatment of migrants detained in US detention facilities, the issues surrounding reproductive treatments most poignantly underscore the damage done in the area of medical ethics. The ethically unacceptable treatments and practices that have been alleged contribute to a broader pattern of reproductive injustice as a tool of oppression that contributes to an already present, and growing, mistrust of our medical system.²

We examine these allegations as a case study highlighting how the US immigration detention system violates core tenets of medical ethics. We argue that, in the context of long-standing systemic racial biases in our medical system and a baseline mistrust of that medical system on the part of historically oppressed populations, these harms are dangerously amplified. These abuses contribute to a chilling effect that prevents vulnerable patients from seeking care; this compromises the health of everyone, particularly in the era of COVID. This case study has implications for the new presidential administration that has become accountable for ICE and will set the tone of US immigration policy at large.

THE COMPLAINT

ICDC is operated by the for-profit company LaSalle Corrections and has been used as an ICE facility since 2010. Project South has been collecting allegations and data from ICDC for many years through direct interviews; in 2017, it reported a long list of human rights violations, including lack of medical and mental health care, due process violations, and unsanitary living conditions.³ The recently filed complaint discusses the high rates of hysterectomies performed on detained patients and describes reports by numerous women who did not understand why they had received a hysterectomy. It raises alarming concerns regarding informed consent, detailing how medical providers would attempt to explain procedures by “Googling Spanish” or asking other detainees to interpret rather than using the available translation telephone services. The complaint also gives troubling accounts of miscommunications that left patients unable to bear children because of hysterectomies they may not have needed.

Outside the context of a detention facility, allegations that life-altering surgeries were being performed without fully informed consent would raise alarm bells with hospital ethics committees and attorneys alike. As the complaint states, however, these repeated grievances about human rights abuses went unaddressed for months. Finally, deeper ethics concerns have surfaced more recently with reports that ICE has deported six women who contributed allegations to this complaint and notified at least seven others that the holds on their deportations had been lifted, making their deportation imminent.⁴

Ethical Concerns

Ethical shortcomings in this context are not new, and medical ethics and reproductive justice concerns in immigration detention facilities have been documented for many years, including recently in this Journal by Messing et al.² and Fleming and LeBrón.⁵ Building on these prior illustrations, we argue that this complaint is part of a pattern of documented medical injustice perpetuated by the Trump administration against vulnerable migrants that includes family separation, the prohibition of abortion for minors seeking asylum, and medical neglect of pregnant migrants, to name just a few.²

Informed Consent

First, with respect to autonomy, the allegations described here fall drastically short of meaningful informed consent. The ICE National Detention Standards, a document intended to set forth consistent conditions of confinement and program expectations for nondedicated facilities like ICDC, cites the obvious requirement that detainees provide informed consent to medical procedures. Notably, the standards state that “facilities shall provide appropriate interpretation and language services … related to medical and mental health care,” that “detainees shall not be used for interpretation services during any medical or mental health service” except in an emergency medical situation, and that medical staff are to explain the risks of treatment and ensure that any questions are answered.⁶ Indeed, one attorney who, in 2018, represented women seen by the doctor repeatedly referenced in the complaint reported that, for the two years she worked with detainees at ICDC, there was only one facility employee fluent in Spanish, indicating that perhaps meaningful language services were not accessible.

Justice

Second, with respect to justice, it is difficult to read a complaint alleging a disproportionately high rate of hysterectomies for detained immigrants without applying a lens tinted with the deeply troubling history of eugenic sterilization of non-White people in the United States. Fleming and LeBrón detail the history of nonconsensual sterilization of Latinas in California in the 20th century, noting that “laws that allowed nonconsensual sterilization in California were in place between 1909 and 1979 and resulted in the sterilization of more than 20,000 individuals.”⁵ These practices were part of a dehumanizing policy to “limit childbearing by immigrants and people of color.”⁵ The Trump administration’s repeated overt messaging that migrants are not welcome brings the picture into alarming focus. Put bluntly, these new allegations echo a revival of the same xenophobic desire to decrease the population of undocumented immigrants and their children living in the United States, resulting in tolerance for, or even promotion of, practices that result in the sterilization of migrants.

A CHILLING EFFECT

Apart from the harms directly affecting detainees, these violations of patient autonomy could have a devastating impact on the broader population of black and brown patients in the United States. A wealth of literature has demonstrated that a history of racist experimentation and medical mistreatment has led Black, Brown, and immigrant populations in the United States to harbor a higher rate of mistrust of the health care system than do other populations.⁷ Mistrust can negatively affect the care-seeking behaviors, quality of care, and overall health of these populations,⁷ and is particularly concerning for vulnerable immigrants.⁸ It is therefore paramount that detention health workers ensure not only that procedures are properly executed, but that communication and shared decision-making are prioritized to mitigate the perception of deceit or abuse by the medical profession.

It may be that procedures were followed appropriately in the cases detailed in the complaint, and there may be reasons why procedures evolved from, for example, cyst drainage to total hysterectomy. But even if this is the case and consent was technically given, the failure to communicate about medical procedures and obtain fully informed consent from these vulnerable women, whose autonomy is already dramatically decreased by their detention at the hands of the federal government, indicates a systemic failure that cannot be overlooked.

For the government’s part, the ICE director has called these allegations “very serious” and has committed to holding individuals accountable if verified. But it is precisely this type of post hoc, reactionary response that allows systems of oppression to perpetuate, continuing unimpeded until legal action is initiated and then only eliciting a superficial response. By failing to address the myriad ethical shortcomings sewn into the fabric of the provision of health care for detainees, we not only harm the patients within that system but risk exacerbating a chilling effect on marginalized migrants who may fear seeking medical care in this country.

CALL TO ACTION

The new administration is faced with the challenge of implementing an ethical immigration policy and addressing long-standing policies that have filled America’s for-profit ICE detention facilities. This and future administrations must ensure that the highest standards of medical ethics are upheld. In pursuit of this, we make the following recommendations to the government, to clinicians, and to public health practitioners. First, the Biden administration must ensure that ICE is in compliance with its own policies by requiring, and enforcing, the placement of bilingual medical staff at all facilities, per the agency’s own standards and guidelines. Second, whereas clinicians may provide services to detainee patients, they cannot be complicit in the system of oppression and harm. They have a duty not to participate in care when the standards of informed consent are not met to maintain trust in their profession, both within the immigrant detention system and beyond. Clinicians in detention facilities must exert extra diligence in carrying out their obligations of beneficence, nonmaleficence, autonomy, and justice, and stand ready to act as whistleblowers, as nurse Dawn Wooten did in this case.⁹ Finally, we in public health must recognize that allegations of forced sterilization are a clear public health issue. We must continue to do the daily, deliberate work of calling out and challenging systems of oppression present in the health care system. Without this work, cases like this one will continue to erode trust in the health care system and chill the care-seeking behaviors—and overall health—of already vulnerable migrant populations.