Modern American Eugenics: Sterilization in the Justice System
By: Aris X. Hart
Tags: Race, Justice, Immigrant Rights, Criminal Justice Reform, Prison Reform

A new lawsuit alleges that ICE inmates in a Georgia prison were needlessly sterilized. The complaint describes doctors performing hysterectomies on several immigrant women. There is evidence that the procedure was not required and that the women did not even understand why they had to undergo the procedure.

A hysterectomy is a surgery to remove the uterus. A doctor may recommend the procedure for things like ovarian cancer or persistent vaginal bleeding. Women who undergo the procedure can no longer get pregnant — they are sterilized. Because of this, doctors are hesitant to perform the procedure unless absolutely necessary. Instead, doctors may fight every step of the way to avoid the procedure. This makes the ICE’s frequent use of the procedure raise serious red flags. Why are so many immigrant women sterilized by the government if not for the fact that they are immigrants?

The ICE hysterectomies are not an isolated incident. The justice system is eager to pressure people to give up their fundamental right to reproduce. Sterilization against people in the justice system has no place in America.

The U.S. has an extensive history of sterilizing minorities.

The U.S. has a long history of sterilizing Black and brown women. For example, in the 1974 case Relf v. Weinberger, the Southern Poverty Law Center revealed in a lawsuit that the federal government funded 100,000 to 150,000 sterilizations per year. This was population control.

One of the most notorious state sterilization programs was the North Carolina Board of Eugenics, which sterilized thousands of poor Black and brown women because they were on welfare, wanted an abortion, were in prison, or the doctors simply thought that it would be better if those women couldn’t reproduce. North Carolina wanted to reduce the number of Black people. This is clear because the number of sterilizations increased when the Black population increased but was unaffected by increases in the White population.

Widespread government sterilizations of minorities stopped by the 1980s. However, sterilization programs are still proposed by lawmakers and the justice system. Modern lawmakers sometimes openly suggest sterilization programs as a form of population control. In 2009, one Louisiana lawmaker suggested paying poor women $1,000 to have their tubes tied. Why? To reduce the number of people on welfare…by eliminating the ability of those women to reproduce permanently. This perverse idea is at the core of sterilization programs. People with authority decide that it “would be better for society” if “undesirables” couldn’t have any more children.

The core point is that the ICE hysterectomies are not an isolated incident. Even since 2000, there have been several documented cases of coerced sterilization in the U.S.

Today, judges and prosecutors push for sterilization and promise shorter sentences, while prisons lie to induce sterilization.

In the South Carolina case Heaton v. Stirling, Dr. Patricia Carney told prisoner Kimmie Heaton in 2004 that she needed a hysterectomy because she had endometriosis. However, when Heaton received her medical records in 2018, she discovered that she never had endometriosis. Heaton sued because she was wrongfully and involuntarily sterilized. Heaton’s litigation is ongoing.

In California, between 2006 and 2010, hundreds of inmates were illegally sterilized by prison doctors. Hundreds more were pressured to have their tubes tied. The California prisons justified the procedures by claiming that:

“Over a 10-year period, that isn’t a huge amount of money compared to what you save in welfare paying for these unwanted children — as they procreated more.”

Justifying sterilization because future children will be on welfare is eugenics.

In 2014, a Prosecutor offered a Virginia man a plea deal to reduce a 5-year sentence for reckless driving if he got a vasectomy. Telling someone that if they do not get a vasectomy then they will spend five years in prison is coercive. Despite this, the court thought that this was a valid and voluntary agreement.

In 2015, a Tennessee district attorney was fired after repeatedly recommending sterilizations in plea deals for women. For one suspect, this DA would not consider a plea deal without sterilization. The only reason he was fired was because of the intense negative press over the deals after the defense counsel reported them. It is unclear how many more “deals” the DA coerced from women. Tennessee only banned sterilizations in plea deals in December 2016. Similarly, in 2009, West Virginia prosecutors recommended that a mother of three get her tubes tied to reduce her sentence for marijuana possession. She agreed.

In 2017, a Tennessee judge submitted an open order that any men who would get vasectomies could get 30 days off of their sentences. The order also gave a 30-day credit to women who got birth control implants. 38 men and 32 women agreed to the procedures. The judge justified the order by saying:

“I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves.”

The order was eventually pulled by the judge and the judge was fired. In 2019, there was still active litigation related to the unconstitutional and coercive order.

Finally, in 2018, an Oklahoma judge “recommended” that a woman be sterilized to reduce the sentence for her counterfeit check charge. The woman took up the judge’s recommendation.

A common theme between all of these instances is the narrative of personal responsibility. They say that to stop future children from having an “unfit” parent, people should give up their fundamental right to reproduce. This is coercive. This is unconstitutional. This is wrong. When a judge or prosecutor decides that it is better for you to not have children because of your “undesirable” traits, that is eugenics.

Unfortunately, there is no way to know how many “off the record” sterilization deals happen every year. We only hear about them if defense counsel goes to the press, or a judge puts out a public sterilization order.

“Recommendations” for sterilization from the government are inherently coercive.

Historically, governments, judges, and prisons justified sterilization programs by calling them “voluntary.” They argued, as ICE will likely argue, that there was no coercion because the women willingly signed a form permitting the sterilization. This argument ignores the fact that procedures pushed by the government, especially in prison, are inherently coercive.

Normally, people are likely to listen to what their doctors say, since doctors are the experts. It is generally hard to second guess your doctor. It is even harder when that doctor is an agent of the prison holding you. Your ability to consent is doubtful if your doctor speaks a different language than you. It is doubtful that you can consent to be sterilized if the prison, which controls you, employs the doctor that recommends sterilization. It is questionable whether your “consent” is voluntary at all. As one article pointed out:

“Medical professionals in prisons “face extraordinary ethical challenges: prisoners, who cannot choose their care provider and who are fully dependent on the health care provided to them, are a vulnerable population, as demonstrated by the many exploitations, abuses, and violations of their human rights in the past.”

A prison doctor can appear like an extension of the prison because of the power the prison has over prisoners. Prisons control all of your decisions and actions while incarcerated. As such, it exerts pressure on decision-making that may make medical consent seem like a sham. This potential for coercion and abuse is not academic or hypothetical. The U.S. has a history of “voluntary” sterilization that continues well into 2020.

Meaningful consent is also dubious when the intentions of such plans are so blatant. Especially so with the women sterilized in Georgia. Why is this permanent procedure being used at such a high rate, especially when it is not necessary? How can women who do not speak fluent English fight an American doctor strongly “recommending” a permanent procedure? The coercive effect is obvious.

It is one thing if a woman wants or needs a hysterectomy, or if a man wants a vasectomy. It is something else entirely if a judge, prosecutor, or prison doctor determines that you should have the procedure.

What can we do to prevent coercive sterilizations?

The main problem with fighting the justice system’s use of sterilization is that it is a hidden problem. If prosecutors suggest it off the record and judges keep quiet, then it is difficult to see how pervasive the problem is. The only thing we know for sure is that this coercive practice happens too often. However, there are four demands that we can make to our state governments to prevent this from happening in the future:

1. Provide multiple doctors for prisoners to choose between. Prisons cannot provide only one predetermined doctor for prisoners. Doctors who directly work for prisons and do coercive work have an inherent conflict of interests. We must avoid rubber stamps for sterilization. There must be a separation between the government and the doctor providing care. Prisoners cannot give meaningful consent when a single doctor, who may push sterilization, is the only option.

2. Provide translators for people who do not speak English. If an English-speaking doctor tells a Spanish-speaking woman that she needs a permanent procedure, that woman likely cannot give informed consent. If there is no informed consent for procedures, then they are involuntary. Translators should be available for people going to a doctor while in custody.

3. Demand that all states ban the use of sterilization in the judicial process. Sterilization has no place in the criminal justice system. It is perverse for a prosecutor or judge to threaten years in prison unless you “agree” to be sterilized. The reason that judges and prosecutors continue to use these tactics is that they are not explicitly banned.

4. Disbar prosecutors and judges who suggest sterilization in exchange for a lighter sentence. Prosecutors and judges must be punished for implementing sterilization schemes. It is a betrayal of public trust and human decency to pressure someone to sterilize because of their “undesirable” traits. That is eugenics, and it has no place in America.

We cannot undo the harm that has been done to any victims of government-coerced sterilization. However, we can stop this from happening to any more vulnerable people. We must ensure that modern American eugenics is a thing of the past.