Preventing Violations of Sexual and Reproductive Health Rights in Immigration Detention

  • Date: Oct 26 2021
  • Policy Number: 202119

Key Words: Immigrant Health, Immigrants, Immigration, Sexual and Reproductive Health, Civil Rights, Contraception

Abstract
In 2020, APHA’s Joint Policy Committee identified a need to update policies on the public health impact of U.S. immigration policies, practices, and reforms. APHA has policy statements concerning immigrant health, coercive family planning, and informed consent; however, no policy statement has requested the investigation and prevention of sexual and reproductive health (SRH) rights violations in immigration detention centers. As detention rates of undocumented immigrants and asylum seekers in the United States rise, numerous reports have alleged health and human rights violations at detention centers. A recent report from Georgia alleged medical coercion and unnecessary gynecological procedures performed on women in Immigration and Customs Enforcement (ICE) custody. Considering these recent reports and past allegations, it is imperative that the health, well-being, and safety of immigrants in federal custody be ensured, along with their rights to bodily autonomy, access to medical care, and freedom from violence. To strengthen accountability for human rights abuses in immigration detention centers, APHA calls for Congress and the Department of Homeland Security to continue current investigations of immigration facilities regarding potential SRH rights violations, allow external oversight of detention centers/facilities, and update intergovernmental service agreements. APHA also calls on the House Committee on Homeland Security to declare a moratorium on new contracts with LeSalle Corrections and other private operators while investigations are being completed, ICE to ensure that practices match updated standards of care, and the Department of Justice to incorporate quality assurance mechanisms. Strengthening accountability through these recommended actions can prevent future SRH violations and encourage a swift response from federal and local-level agencies.

Relationship to Existing APHA Policy Statements 

  • APHA Policy Statement LB19-14: APHA Opposes Separation and Confinement to Detention Centers of Immigrants 
  • APHA Policy Statement 200122: Opposition to Coercion in Family Planning Decision Making 

Problem Statement
In recent decades, the U.S. immigration detention system has expanded tremendously. In 1994, an average of 6,785 people were held in immigration detention, as compared with 38,100 in 2017, a more than fivefold increase.[1] The share of women and girls in Immigration and Customs Enforcement (ICE) custody has also increased, from 9% of the population detained by ICE in 2009 to 14.5% in 2016.[2] Current policies and practices within the detention system have undoubtedly caused overdetention, including detention of individuals who pose little or no danger to public safety. Bonds are regularly set too high for detainees to pay under the restrictive circumstances they face.[3] The growth of the immigration detention system has been accompanied by a rise in the use of private prisons for detention. As of 2016, ICE reported that approximately 73% of immigrants in detention were held in private, for-profit facilities.[4] The rapid growth of privately contracted detention facilities, which lack public oversight and accountability and are incentivized to cut costs at the expense of people’s health and safety, has led to numerous human rights concerns.[5] Detention Watch Network and many other immigrant advocacy organizations have documented repeated instances of inadequate medical care, mistreatment, and unsanitary conditions in immigration detention facilities.[5]

There have also been reports of reproductive violence against women in ICE custody in the form of nonconsensual, medically unnecessary gynecological procedures. In September 2020, immigrant advocacy groups filed a complaint based on interviews with women in detention and a staff nurse alleging that several immigrant women received nonconsensual gynecological procedures while detained at Irwin County Detention Center (ICDC) in Georgia.[6] Following this complaint, a class action lawsuit, Oldaker v. Giles, was filed on behalf of 14 female plaintiffs who reported being subjected to, or ordered to be subjected to, nonconsensual, medically nonindicated, and/or invasive gynecological procedures at the Irwin County Hospital with the knowledge or participation of ICE officials.[7] More than 40 women provided sworn testimony as part of the lawsuit, corroborating a pattern of medical abuse and mistreatment that had been occurring since 2018.[7] In their report to Congress, a team of independent medical professionals who reviewed the medical records of 19 women detained at ICDC reported an “alarming pattern” of medical abuse in which women underwent multiple unnecessary gynecological surgeries without informed consent. In another alarming development in this case, witnesses and victims have allegedly been deported, further complicating attempts to investigate the incidents.[6,7]

At-risk populations: While conditions in immigration detention pose considerable health risks for all detained people, pregnant people, women, and transgender and gender-nonconforming people of reproductive age are particularly vulnerable to human rights violations perpetrated on the basis of their gender and gender identity, combined with their immigration status, race, primary language, ethnicity, and other identities. For years, numerous organizations have filed complaints with the Office of Inspector General (OIG) detailing multiple accounts of sexual abuse, nonconsensual gynecological procedures,[6] denial of abortion care for adolescents[8], and prolonged detention and medical neglect of pregnant people in ICE custody.[9] Inadequate medical care, coupled with the trauma of detention and sexual and reproductive violence, has long-term implications for the physical and mental health of people in detention and their communities.[10] Public health professionals have an obligation to advance the health and well-being of all people and address structures that systematically harm marginalized populations.

The systematic reproductive violence committed against people of color and immigrants reflects a society in which the lives of certain communities are deemed less worthy of reproduction, autonomy, family formation, and respect.[11] Underlying this public health issue is one of “reproductive justice,” a term coined by 12 Black women in 1994.[12] Reproductive justice is grounded in bodily autonomy and entails three interconnected sets of human rights: (1) the right to have a child, (2) the right not to have a child, and (3) the right to parent children in safe, healthy environments free from violence.[12] Reproductive justice is rooted in the belief that systematic inequality has always shaped people’s decision making, access, and dignity around childbearing and parenting, particularly those vulnerable to systems of oppression such as racism, sexism, poverty, and state violence.[12] This lens urges consideration of how seemingly disparate policies and systems connect to affect reproduction and autonomy.[12] In immigration detention, intersecting systems of oppression (e.g., the carceral system, misogyny, racism, and xenophobia) produce an inadequate and abusive system that fails to deliver quality reproductive health care and undermines bodily autonomy.[11]

International perspective/human rights violations: Reports have indicated sexual and reproductive rights abuses in immigration detention that violate international law and treaty obligations. The United Nations (UN) Committee Against Torture states that being female intersects with other identities such as immigration status, sexual orientation, and race, which can increase risks of torture or ill treatment, particularly around medical care, reproductive decision making, and sexual violence.[13] The UN urges countries to ensure the protection of these communities by punishing all acts of violence and enforcing mechanisms of prevention and protection.[13] The right to health is recognized in both the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social, and Cultural Rights.[14] This includes the rights to (1) be free from nonconsensual medical treatment; (2) be free from torture and other cruel treatment or punishment; (3) have timely access to basic maternal, child, and reproductive health care services without discrimination; and (4) have acceptable and good-quality services available and accessible.[15] Moreover, several UN agencies, including UN Women, the World Health Organization (WHO), the United Nations Children’s Fund, the United Nations Population Fund, and others, collaborated on an interagency statement recognizing that nonconsensual sterilization violates human rights to health, information, privacy, reproduction, and freedom from discrimination.[16] Numerous examples of sexual and reproductive rights violations in immigration detention centers are discussed below.

While in ICE custody, pregnant people have reported numerous human rights violations. Although a 2016 ICE policy (The Identification and Monitoring of Pregnant Detainees) included a presumption of release for pregnant people except in cases of mandatory detention or “extraordinary circumstances,” this policy was ended in 2017, increasing the number of pregnant people in detention.[16] According to its records, ICE detained pregnant people 2,097 times in 2018, a 52% increase relative to 2016. The length of detention also increased, with 13% of detentions of pregnant people lasting more than 30 days.[17]

Physical and mental health impact: Detention itself creates significant physical and mental health risks for pregnant people and their future children. A systematic review revealed high levels of anxiety, depression, and posttraumatic stress disorder during and after immigration detention.[18] Psychosocial stress during pregnancy has been shown to increase the risk of preterm birth and small-for-gestational-age pregnancies.[19] People experiencing high levels of stress during pregnancy have an increased risk of preterm birth even after adjustment for sociodemographic, medical, and behavioral risk factors.[20] Psychological distress during pregnancy may also have transgenerational effects, potentially disrupting emotional and cognitive development in children and increasing the risk of anxiety disorders later in life.[21,22] Recognizing the inherent risks of detention to maternal health, multiple medical associations sent a letter to ICE expressing “serious concern” about the agency’s decision to end its policy of presumptive release of pregnant women.[23]

While ICE has established standards for the care of pregnant people in its custody, including the ICE Performance-Based National Detention Standard Addressing Medical Care for Women, the ICE Family Residential Standards, and the ICE Identification and Monitoring of Pregnant Detainees directive,[16,24] complaints submitted to the Department of Homeland Security have indicated frequent policy violations and a persistent pattern of medical neglect and abuse. A complaint submitted by the American Civil Liberties Union and other advocacy organizations in 2017 detailed instances from multiple detention facilities in which pregnant women were detained for prolonged periods in inadequate conditions.[9] Pregnant women reported numerous instances of medical neglect, for example inadequate care during and after miscarriage, lack of prenatal care, and lack of attention from staff during health emergencies, including while they were experiencing severe bleeding and pain.[2,9] According to a U.S. Government Accountability Office analysis of ICE data, there were 58 miscarriages among pregnant women in ICE custody from January 2015 to July 2019.[15] U.S. senators have also expressed concern over accounts that ICE has used shackles on pregnant people in detention.[25,26]

The trauma from abusive treatment coupled with neglecting to provide adequate medical care exacerbates the health risks of detention, placing pregnant people at risk of life-threatening conditions, miscarriages, and long-lasting mental health harm.[18–24] The shackling of pregnant people in immigration detention both strips individuals of their dignity and poses immediate health risks. The American College of Obstetricians and Gynecologists (ACOG) notes that the use of restraints in transport, labor, and delivery can increase the risk of falls and venous thrombosis, delay diagnosis of pregnancy complications, and obstruct medical care.[27]

The immigration system also perpetuates reproductive injustice by denying abortion to minors in custody. The Office of Refugee Resettlement (ORR) oversees the care of minors without known family who entered the United States without authorization. ORR previously required any minor requesting abortion care to seek approval from the director.[28] From March 2017 to November 2018, the director of ORR personally reviewed and denied at least four abortion requests.[29] In violation of privacy, he made personal visits to some minors seeking abortion and received regular spreadsheets that tracked pregnant minors’ last menstrual period, gestational age, whether the pregnancy was the result of consensual sex, and whether they had requested abortion care.[29] ORR also directed these minors to crisis pregnancy centers,[29] which are false clinics that use coercive tactics, such as creating a list of Department of Health and Human Services providers consisting primarily of crisis pregnancy centers and pressuring minors to reveal their pregnancy and their intent to terminate to their parents, in an effort to persuade clients to keep their pregnancies.[30] As of September 2020, ORR was prohibited from banning detainees from seeking abortion care,[31] although systematic interference continues. State laws restricting abortion access (e.g., mandatory waiting periods and gestational age limitations) prevent or delay immigrants from receiving care. Delays in accessing abortion care can have harmful consequences, including increased costs and health risks.[32] People who are denied abortion care are more likely than those who receive a wanted abortion to live below the federal poverty level, experience serious pregnancy complications, stay connected with abusive partners, and suffer short-term anxiety and loss of self-esteem.[33]

Other at-risk populations: Nonpregnant women, minors, and LGBTQ (lesbian, gay, bisexual, transgender, and queer) immigrants have also reported repeated sexual and reproductive health and rights violations and difficulties accessing care. In 2020, a Texas advocacy group filed a complaint demanding a criminal investigation of an El Paso immigration detention center for a “pattern and practice” of sexual abuse committed by guards.[34] According to the complaint, guards systematically assaulted detainees in areas not visible to cameras and coerced them into silence by saying that no one would believe their allegations.[31] This is one instance within a larger pattern of sexual misconduct by staff in immigration detention centers. From 2010 to 2016, 14,693 complaints were filed alleging sexual and/or physical abuse in ICE detention facilities, but only 172 (1.1%) were formally investigated by OIG.[34]

Although LGBTQ people represented only approximately 0.14% of people detained by ICE in 2017, they accounted for 12% of sexual abuse and assault victims in detention.[35] Human Rights Watch has documented abuses that transgender women suffer in immigration detention and the government’s inadequate efforts to address them.[36] Transgender women have reported being housed in men’s facilities and experiencing high rates of sexual assault and trauma, being regularly subjected to humiliating and abusive strip searches by male guards, not receiving necessary medical services such as gender-affirming hormone therapies, and being sexually assaulted and raped by male guards while housed in solitary confinement.[36] Transgender people interviewed by Human Rights Watch have described mental health problems resulting from their sexual abuse in detention, including depression, anxiety, sleep problems, and suicidal ideation.[36]

These reports are particularly concerning given their resonance with a long history of reproductive injustices in the United States, particularly sterilization abuse targeting Black, indigenous, and Latinx populations. Throughout much of the 20th century, state eugenic sterilization laws facilitated disproportionately high rates of sterilization of Latinx and Black people, particularly women.[37,38] For example, population control programs led to coercive and unconsented sterilizations of Mexican immigrant women,[39] indigenous women served by the Indian Health Service,[40] and Black women and girls,[41] as well as widespread sterilization of women in Puerto Rico.[39,40] Thousands of women received tubal ligations or hysterectomies without their consent and, in some cases, without their knowledge.[37–43] Sterilization abuse continues to emerge in the 21st century, especially among marginalized women and in settings of state or institutional control such as prisons,[44] court systems,[45] and, most recently, immigration detention centers.

A common thread throughout these historical and contemporary incidents of reproductive coercion is failure to create the conditions for free and informed consent. Informed consent is an essential component of medical ethics and requires that providers assess patients’ ability to make an independent, voluntary decision; present relevant information on the risks and benefits of all  treatment options in a form that is appropriate for patients to understand based on their health literacy; and record the informed consent conversation in the patient’s record.[46] ACOG’s committee opinion on ethical issues regarding sterilization of women underscores the challenges of ensuring true informed consent in carceral settings, environments designed to restrict liberty.[47] In the documented cases of nonconsensual sterilization, women were not provided medical interpreters, although the Performance-Based National Detention Standards require that such services be provided in person or via a telephone service that can be used at no cost to the provider; also, they were not given a choice about whether or not to undergo the procedure or were coerced into the procedure through other means.[7,37–43]

Lack of effective oversight: ICE detention facilities are required to abide by National Detention Standards, ICE Performance-Based National Detention Standards, or Family Residential Standards. These standards include requirements to provide evidence-based sexual and reproductive health services such as routine, age-appropriate gynecological and obstetrical health care consistent with recognized standards for quality care; prenatal care; access to pregnancy services and testing; postpartum follow-up; lactation services; and abortion services. Policies also specify that pregnant women should not be restrained “absent truly extraordinary circumstances” and that facilities must provide communication and interpretation assistance for those with limited English proficiency. [48] In addition, transgender detainees already receiving gender-affirming hormone therapy must have continued access, and anyone who has experienced prior sexual victimization will have appropriate follow-up and mental health care. Furthermore, medical guidelines state that “informed consent standards shall be observed and adequately documented. Staff shall make reasonable efforts to ensure that detainees understand their medical condition and care.”[48]

Yet, ICE has failed to consistently enforce these standards across facilities and neglected to penalize facilities that violate standards. Moreover, ICE regularly issues waivers that allow facilities to violate standards without consequence.[49] Numerous government inspections of ICE facilities have documented “egregious violations” of ICE’s own performance standards, including inadequate medical care, moldy food and bathrooms, and lack of hygiene items.[50] Many of the largest ICE detention facilities are run by private contractors, and OIG reports have shown that ICE does not sufficiently enforce performance standards with these contractors.[49]

Opposing Arguments/Evidence
Allegations of widespread sexual and reproductive rights violations in immigration detention centers are commonly met with two responses. The first is that the complaints are unsubstantiated and, even if verified, reflect the actions of a few individuals in the immigration detention system.[56,58] This argument fails to recognize systemic problems within the immigration system that create unequal power dynamics, fundamentally dehumanize individuals in detention, and create conditions for widespread abuse and medical neglect. While lack of transparency in immigration detention limits the evidence available, complaints of abusive treatment and sexual and reproductive rights violations by numerous individuals in ICE custody across multiple facilities and years strongly suggest that these incidents are not isolated but, rather, indicative of a widespread problem that has persisted for years.[9,25,26,29,34] The most recent allegations of nonconsensual gynecological procedures in ICE detention, for instance, were substantiated by a nurse from the detention facility as well as a review of medical records by gynecologists.[6,7] These allegations followed reports of inadequate prenatal care for pregnant women released three years earlier, including a report of a detained pregnant woman who received no prenatal medical visits while in custody for months,[25] indicating a repeated pattern of mistreatment. OIG has also documented numerous instances of inadequate medical care and lack of oversight and accountability throughout ICE facilities, providing an opportunity for human rights abuses to continue unchecked.[49]

Another argument made in opposition to alternative-to-detention strategies for vulnerable populations (such as children, pregnant women, and gender and sexual minorities) is that the vast majority of individuals who have been apprehended must be detained because they pose a flight risk or a danger to the community.[60–63] The Center for Immigration Studies, among other agencies, contends that immigration detention remains necessary as a deterrent to preserve our national security and that alternatives encourage more people to attempt to enter the country illegally or overstay their visas.[63–65] These proponents argue that reducing ICE detention in favor of alternatives is not a viable option.

Evidence strongly suggests that pregnant people or women of reproductive age rarely pose a flight risk or are a danger to the community. The Government Accountability Office reported in December 2019 that 91% to 97% of detentions of pregnant women each year involved women with no criminal record.[17] Another study showed that 92% of people seeking asylum at the U.S.-Mexico border had family or friends they could live with in the United States while pursuing their claims, indicating low flight risk.[66] Moreover, studies have shown that individuals released from immigration detention have incredibly high rates of compliance with court hearings. In a 15-year study conducted from 2001–2016, the American Immigration Council found that 92% of asylum-seeking families who were released from detention complied with all immigration court hearing obligations.[67] A few evidence-based reviews of alternatives to detention programs have also revealed that programs that treat asylum seekers and immigrants with dignity, humanity, and respect; provide information about rights and duties; and provide case management services as well as access to accommodation and other support are highly effective, with compliance rates above 90%.[60] Such human rights–based alternatives can ensure that marginalized individuals are not exposed to ICE detention facilities, where they face multiple risks to their health and well-being, while still ensuring compliance with the terms of their release.

While proponents of immigration detention claim that detention is necessary to deter additional illegal immigration, there is no empirical evidence that harsh or highly detrimental policies and unethical or abusive practices act as a deterrent. An analysis of U.S. Border Patrol apprehensions of families at the southwest border from October 2011 to June 2018 revealed that, even after seasonal trends in migration had been taken into account, the use of family detention and family separation was not significantly related to decreases in the monthly number of apprehensions of families.[68] Utilizing immigration detention as a form of punishment and deterrence also falls beyond the scope of legal reasons to detain migrants, which under judicial precedent is intended to ensure compliance with immigration proceedings when individuals pose a flight risk or are a danger to society. Rather than an overreliance on immigration detention, which has not successfully deterred immigration in the past, the government should operate on a presumption of liberty for civil immigration proceedings, which is consistent with international refugee and human rights law and standards.[69]

Alternative Strategies
To the best of our knowledge, there are few or no counterstrategies that have been implemented to provide ethical sexual and reproductive health care and oversight of the treatment and medical care received by asylum seekers and unauthorized immigrants while in ICE custody.

Action Steps 
APHA: 

  1. Calls on the Department of Homeland Security’s Office of Inspector General to investigate all alleged violations of sexual and reproductive health and rights in immigration detention centers, possibly using known epidemiological surveillance methods to identify/flag medical abuse (e.g., monitoring for excessive medical charges for sterilizations, cyst removals, and hysterectomies beyond what would be expected in the general population). If allegations such as those reported at the Irwin County Detention Center are verified and found to be in violation of existing standards, Congress, ICE, companies managing the relevant facility, and state and county agencies should respond immediately. 
  2. Calls on Congress to direct ICE to allow external oversight (third-party access and monitoring of immigration detention centers/facilities) and to request a robust investigation by the Department of Homeland Security’s Office of Inspector General of sexual and reproductive health care provided to all detainees in the United States. 
  3. Calls on Congress to allocate funding to appropriate federal agencies (e.g., Health Resources and Services Administration, Centers for Disease Control and Prevention, National Institutes of Health, Department of Justice) and allow access for relevant public health research to be conducted on the sexual and reproductive care provided to detainees in the United States. 
  4. Urges the House Committee on Homeland Security’s Subcommittee on Border Security, Facilitation, & Operations to declare a moratorium on new contracts with LaSalle Corrections and/or any other private operators until a full investigation is completed regarding the alleged violations detailed in this policy statement. 
  5. Calls on ICE to immediately update all intergovernmental service agreements with county or local jails to include a requirement that immigrant detention centers comply with the most updated detention standards without the option to waive any health-related standards and terminate contracts with facilities that are unable or unwilling to meet these standards.
  6. Calls on the Department of Justice to immediately incorporate a quality assurance surveillance plan into each intergovernmental service agreement detailing remedial actions required when a contractor fails to comply with detention standards, including financial penalties for the corporate contractor and the ability to hold individual practitioners hired by the contractor responsible, both criminally and financially, for violations. 
  7. Urges Congress to adopt policies that outline protections for vulnerable immigrant detainees (such as children, pregnant women, and gender and sexual minorities) as well as policies ensuring that detainees are provided the full spectrum of basic sexual and reproductive health care. 
  8. Calls on Congress to pass legislation banning or minimizing detention of pregnant and postpartum people. This legislation should include a presumption of liberty, and only in cases involving a demonstrable risk of absconding should community-based alternatives to detention (e.g., parole with community-based case management) be considered. Electronic monitoring, including the use of ankle monitors, is not aligned with a rights-based approach and should not be used as an alternative to detention. 
  9. Calls on ICE to ensure that, in accordance with its standards, medical interpreters are provided for all health care encounters while an individual is in ICE custody and that all consent forms are translated and a medical interpreter is made available prior to a request for a signature. 
  10. Urges Congress to adopt more stringent policies regarding reporting and notification requirements for all ICE detention centers/facilities.

References
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