Reproductive Rights are Human Rights Protected by Our Constitution & International Treaties
Updated: Dec 1, 2020
Photo by the Center for Reproductive Rights
Article by Francesco Arreaga,
The United States has a horrifying history of forced sterilizations, and sadly, these human rights abuses continue to this day. In 2014, several international organizations issued an interagency statement calling for the elimination of forced sterilizations. The statement noted that women are disproportionately impacted by these human rights abuses and “certain population groups, including people living with HIV, persons with disabilities, indigenous peoples and ethnic minorities, and transgender and intersex persons, continue to be sterilized without their full, free and informed consent.” This blog will describe the history of forced sterilizations in the United States and the recent accusations of forced sterilizations against undocumented immigrant women detained by ICE. I explain how reproductive rights are protected by our Constitution and several International treaties. Finally, I conclude by advocating for greater accountability in cases of forced sterilizations and the creation of a commission empowered to investigate the human rights abuses committed during the 45th President’s administration.
On September 14, 2020, a whistleblower complaint alleged that immigrant women detained by ICE were undergoing non-consensual and unnecessary sterilizing gynecological procedures. Since the complaint, “many women who are alleging mistreatment, the vast majority of whom are Black or Latino, from the Caribbean, Africa and Latin America, are coming forward for the first time to report their allegations.” According to an LA Times report, women detained at the Irwin County Detention Center “were administered birth control and underwent procedures without their consent, including to remove their reproductive organs, such as the uterus, ovaries and fallopian tubes.” On November 19, 2020, more than one hundred members of the U.S. Congress sent a letter to the DOJ, DHS, and FBI discussing how several women accusing the government of forced sterilizations had been deported and requesting that no other women who may provide crucial evidence to the ongoing investigation be deported.
The recent allegations of forced sterilizations at the hands of the federal government come against the backdrop of a long history of the U.S. government forcefully sterilizing persons. Lisa Ko describes how federally-funded sterilization programs driven by prejudice throughout the 20th century were “used as a means of controlling ‘undesirable’ populations – immigrants, people of color, poor people, unmarried mothers, the disabled, [and] the mentally ill.” Between 1970 and 1976 alone, it is estimated that “between 25 and 50 percent of Native American women were sterilized” by the federal government. Journalist and medical ethicist, Harriet A. Washington, documents in her book Medical Apartheid the abusive medical experimentation inflicted on Black Americans and how the forced sterilization of Black women “got its start during slavery, but has persisted in less overt forms in recent years.”
It is also estimated that “about one-third of all Puerto Rican mothers aged 20 to 49 in 1965 were sterilized.” Medical experimentation on Puerto Rican women also took place in the 1950s. Experimentation for the birth control pill occurred in Puerto Rico, where “poor women were given a strong formulation of the drug without being told they were taking part in a trial or about any of the risks they’d face.”
Professor Paul Lombardo has described how, in 1909, California enacted a sterilization statute that “made it legal to castrate a man or remove the ovaries from a woman, permanently preventing reproduction.” California's sterilization practices were so egregious that they were “held up as models for the Nazi regime” in Germany. Dr. Alexandra Stern explains that California’s sterilization law “sanctioned over 20,000 nonconsensual sterilizations on patients in state-run homes and hospitals, or one third of the more than 60,000 such procedures in the United States in the 20th century.” Dr. Stern also explains how women of color were disproportionately targeted by these policies and describes the class action lawsuit brought by Hispanic women who were subjected to “nonconsensual sterilizations in 1975” at the USC/Los Angeles County General Hospital. In 2013, NPR reported that approximately 150 women had been “sterilized in California's prisons” from 2006 to 2013. One person described how “she resisted the pressure to get a tubal ligation done — pressure that she says came while she was under sedation and strapped to an operating table.”
Professor Lombardo has also shown how eugenics laws have historically been tied to America’s immigration policies. In 1920, the U.S. House of Representatives appointed an “expert eugenics agent” who espoused xenophobic and prejudiced views. Congress and the President went on to support the passage of the Immigration Restriction Act of 1924, which “was designed consciously to halt the immigration of supposedly ‘dysgenic’ individuals.”
In the early 20th century, the Supreme Court legitimized the legally mandated sterilizations of persons in the United States. In 1927, the Court upheld a state statute permitting compulsory sterilization in Buck v. Bell. The Court rejected the argument that such a law was unconstitutional under the Fourteenth Amendment’s Due Process and Equal Protection Clause. The shameful Supreme Court decision was later cited by Nazis during the Nuremberg Trials.
Recently, Supreme Court Justice Amy Coney Barrett noted that government forced sterilizations are unconstitutional. In an answer to a question for the record submitted by Senator Patrick Leahy pertaining to the recent allegations of forced sterilizations at ICE facilities, Justice Amy Coney Barrett noted that in Skinner v. Oklahoma, the Supreme Court “held that a state statute permitting the forced sterilization of certain criminal convicts violated the Equal Protection Clause of the Fourteenth Amendment.” The Supreme Court also recognized that the substantive due process rights of the Fourteenth Amendment protects the right to choose in Roe v. Wade and Planned Parenthood v. Casey. Thus, the U.S. Constitution prohibits forced sterilizations and protects the right to choose.
Several international treaties also protect reproductive rights. The Rome Statute of the International Criminal Court explicitly recognizes forced sterilizations as a crime against humanity and a war crime. Article II of the Convention on the Prevention and Punishment of the Crime of Genocide categorizes “imposing measures intended to prevent births” as a form of genocide. The Guide to the application of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belém do Pará Convention) recommends that States “adopt provisions to penalize forced sterilization as a crime and an act tantamount to genocide, war crimes, and crimes against humanity.” Article 39 of the Istanbul Convention also states that parties shall criminalize forced sterilizations. Moreover, UN human rights experts have noted that failing to protect the right to choose constitutes “discrimination on the basis of sex,” in contravention of the International Covenant on Civil and Political Rights Article 2.
Our nation must come to terms with the horrifying history of legally mandated sterilizations and the current accusations of forced sterilizations. Our government must also heed the interagency advice published by the World Health Organization “to prevent coerced sterilization, to explicitly prohibit such practices, to respond to the consequences of these practices, to hold the perpetrators responsible, and to provide redress and compensation in cases of abuse.” Additionally, Congress and the next President, Joe Biden, should empower a commission to investigate all of the human rights abuses committed by the 45th President’s administration, including the allegations of forced sterilizations and the forced separation of at least 5,400 children from their parents at the southern border. Several members of Congress, including Representatives Rashida Tlaib, Alexandria Ocasio-Cortez, Ilhan Omar, and Ayanna Pressley, have already called for the United Nations to investigate DHS human rights abuses.
To uphold principles enshrined in our constitution and shared in several international treaties, our nation must protect the rights of all persons to be free from forced sterilizations and to have the right to choose because reproductive rights are human rights.
Francesco Arreaga (J.D. Candidate, Class of 2021) is a Contributor to Travaux. He has been a member of the Berkeley Journal of International Law since his first year of law school and has enjoyed writing for Travaux. Francesco holds a B.A. in Political Science and Chinese, as well as a minor in Global Studies from UCLA. He is currently the Co-President of the American Constitution Society at Berkeley Law and last year served as the Co-President of the Berkeley Immigration Group. Francesco is passionate about ensuring that the voices of immigrants, working people, and communities of color are represented in government. Currently, Francesco is interning as a law clerk in the U.S. Senate.