Brenna Evans*

The modern discussion of reproductive rights—especially surrounding women’s reproductive rights—often focuses on the idea of the right not to reproduce, such as the right to abortion or the right to birth control.^[1] However, one topic that seems to be left out of discussion is that of people who have had their ability to reproduce taken away. Although forced sterilization^[2] may seem like a relic of Nazi Germany—where over 400,000 men and women were forcibly sterilized^[3]—the sterilization of incarcerated individuals happens in the United States to this day.^[4] With the recent release of an ICE detention center whistleblower report, which detailed the forced sterilization of detainees in ICE detention centers,^[5] the topic of forced sterilization has been pushed back into the limelight. Now that sterilization is back in the public eye, it’s time to address the prison system’s shortcomings and how and why the prison complex has consistently failed to protect the reproductive rights of its prisoners.

1. What Is Sterilization?

Sterilization is a “procedure by which a living organism is made incapable of reproduction.”^[6] In modern-day prisoner sterilizations, the most documented methods of sterilization are tubal ligation for women and vasectomies for men.^[7] However, it is important to note that these are not the only methods used—just the most prevalent, according to the limited information that can be found regarding prison sterilizations.^[8] In certain cases, like in the ICE detention facility, complete hysterectomies were performed.^[9]

With an increasing amount of news arising of non-consensual sterilization procedures being performed on incarcerated individuals, it is clear that sterilization and population control has found a place in the United States criminal justice system. The prevalence of sterilization in the justice system reflects the United States’ dark past which is mired in eugenics and the sterilization of marginalized or disadvantaged people.^[10]

2. Sterilization in the Modern Day American Criminal Justice System

From the time California enacted its sterilization law in 1909 to the law’s repeal in 1979, California was the leader in number of sterilized individuals, having sterilized about 20,000 people.^[11] Although the California legislature publicly apologized for the state’s role in the sterilization movement in 2003,^[12] approximately 150 female prisoners—39 of whom did not consent—were still sterilized via tubal ligation in California prisons between 2005 and 2011.^[13] This is in addition to another 100 women who were sterilized starting in the late 1990s.^[14] One woman, Kelli Dillon, reported that she thought she had undergone surgery for ovarian cysts.^[15] However, after experiencing symptoms of menopause, she eventually realized that she had actually been given a full hysterectomy.^[16] Between 1997 to 2010, California paid doctors $147,460 to perform sterilization procedures on inmates.^[17] Medical staff at the prison specifically targeted pregnant inmates and repeat offenders, and coerced them into being sterilized.^[18]

California was not the only state sterilizing prisoners. In May 2017, Tennessee judge Sam Benningfield signed an order that offered misdemeanor offenders 30-day sentence reductions if they underwent either a vasectomy or a birth control implant.^[19] When news outlets caught wind of Benningfield’s program two months later, media outlets compared it to previous prisoner sterilization programs based in eugenics,^[20] where prisoners were sterilized under the guise of purifying the genes of the United States population.^[21] Benningfield distinguished his program from other offender sterilization programs, stating that the procedures he incentivized offenders to receive were reversible and the program was in “no way a eugenic program.”^[22] Although he attempted to differentiate his program and portray it in a positive light, news outlets continued to describe him as “a man with power telling people who had none that they were unfit to reproduce.”^[23] Two years earlier, in Nashville, reports came out that revealed Assistant District Attorney Brian Holmgren had at least once included tubal ligation in plea deals.^[24] Georgia and Virginia have also used permanent sterilization in plea deals, especially with repeat offenders.^[25]

The most recent news regarding forced sterilization came in September of 2020,^[26] when the news outlet Vice published a report on forced sterilization at a U.S. Immigration and Customs Enforcement (ICE) detention center.^[27] Dawn Wooten, the ICE whistleblower, was a licensed nurse formerly employed at the Irwin County Detention Center in Ocilla, Georgia.^[28] Wooten reported “jarring medical neglect” with multiple women reporting that they had been pressured or forced to undergo unnecessary medical procedures.^[29] Wooten documented one case where one woman who underwent a hysterectomy was not anesthetized.^[30] During surgery, the woman heard the doctor say he had taken out the wrong ovary.^[31] The woman then had to return and have the other ovary removed.^[32] Wooten also said that many women who underwent hysterectomies did not even know why they were getting the procedure, but were just told it was necessary.^[33] In the related Senate briefing, this “uniform absence of truly informed consent” was emphasized repeatedly.^[34] As the case develops, more and more detainees are speaking out about the procedures that they underwent in the ICE facility, specifically under the hands of Dr. Mahendra Amin.^[35] As of November, 19, 2020, 57 detainees have come out saying that they were pressured to undergo or actually underwent medically unnecessary gynecological surgeries;^[36] however, it is believed that the number is likely higher due to the lack of a paper trail and the deportation of witnesses and survivors.^[37]

            The ICE hysterectomy atrocity perfectly reflects how the United States’ dark past with eugenics and forced sterilization is still alive and well in the modern day.^[38] Instances like those seen in California, Tennessee, and Georgia show that incarcerated people, who are more often than not individuals from historically marginalized communities,^[39] are in danger of having their right to reproduce unwillingly stripped away from them. Although bills have been proposed to address this problem,^[40] forced sterilizations are still happening at an alarming rate.^[41] As these sterilizations carry on, the issue of forced sterilization in prisons and detention centers needs to be brought to light and more laws enacted to protect the rights of the incarcerated against the gross invasion of their personal autonomy. Without legal protections, the incarcerated may continue to be violated and sterilized just as they have been for the last century.

*Brenna Evans, University of Minnesota Law School Class of 2022, JLI Vol. 39 Staff Member

[1] Mary Elizabeth Dial, Two Steps Forward, One Step Back: The Story of Eugenics in America, Past and Present, 11 Ala. C.R. & C.L. L. Rev. 177, 188 (2019).

[2] Linda M. Woolf, Forced Sterilization, Webster Univ. Faculty, http://faculty.webster.edu/woolflm/forcedsterilization.html (defining forced sterilization as the “process of permanently ending someone’s ability to reproduce without his or her consent”).

[3] German Law Authorizes Sterilization for Prevention of Hereditary Diseases, History Unfolded, https://newspapers.ushmm.org/events/german-law-authorizes-sterilization-for-prevention-of-hereditary-diseases.

[4] Dial, supra note 1.

[5] Carter Sherman, Staggering Number of Hysterectomies Happening at ICE Facility, Whistleblower Says, Vice, (Sept. 14, 2020), https://www.vice.com/en/article/93578d/staggering-number-of-hysterectomies-happening-at-ice-facility-whistleblower-say.

[6] Sterilization, Merriam-Webster, https://www.merriam-webster.com/dictionary/sterilization.

[7] See Cassie Da Costa, Not Just ICE: A California Prison Sterilized Her and Other Black Women, Daily Beast , (Sept. 17, 2020), California Bans Sterilization of Female Inmates Without Consent, NBC News (Sept. 26, 2014), https://www.thedailybeast.com/not-just-ice-a-california-prison-sterilized-her-and-other-black-women; https://www.nbcnews.com/health/womens-health/california-bans-sterilization-female-inmates-without-consent-n212256; White County Inmates Given Reduced Jail Time If They Get Vasectomy, Channel 5 News (July 19, 2017), https://www.newschannel5.com/news/inmates-given-reduced-jail-time-if-they-get-a-vasectomy; Sterilization of Women in Prison, The Marshall Project (May 21, 2019), https://www.themarshallproject.org/records/955-sterilization-of-women-in-prison.

[8] Id.

[9] Sherman, supra note 5 (detailing the whistleblower report on sterilizations at the Irwin County Detention Center).

[10] See generally Karen Norrgard, Human Testing, the Eugenics Movement, and IRBs, Nature Educ., (2008), https://www.nature.com/scitable/topicpage/human-testing-the-eugenics-movement-and-irbs-724/; Teryn Bouche & Laura Rivard, America’s Hidden History: The Eugenics Movement, Nature Educ., (Sept. 18, 2014), https://www.nature.com/scitable/forums/genetics-generation/america-s-hidden-history-the-eugenics-movement-123919444/.

[11] Natalie Delgadillo, California Sterilized More People Than Any U.S. State But Has Yet to Compensate Victims, Governing, (Aug. 7, 2017), https://www.governing.com/topics/public-justice-safety/gov-sterilization-california-reparations-tennessee-eugenics.html.

[12] Alexandra Minna Stern, Eugenics, Sterilization, and Historical Memory in the United States, 23 Historia 195, 206 (2016).

[13] Id.; California Bans Sterilization of Female Inmates Without Consent, NBC News (Sept. 26, 2014), https://www.nbcnews.com/health/womens-health/california-bans-sterilization-female-inmates-without-consent-n212256.

[14] Corey Johnson, Female Inmates Sterilized in California Prisons Without Approval, Ctr. Investigative Reporting, (July 7, 2013), http://cironline.org/reports/female-inmates-sterilized-california-prisons-without-approval-4917 [archived at: https://web.archive.org/web/20141222171552/http://cironline.org/reports/female-inmates-sterilized-california-prisons-without-approval-4917].

[15] Da Costa, supra note 7.

[16] Id.

[17] Johnson, supra note 14.

[18] Id.

[19] Sam Benningfield, J., Standing Order (May 15, 2017); Zoe Beery, America’s Long, Shameful History Of Sterilizing Prisoners, The Outline (July 25, 2017), https://theoutline.com/post/1963/americas-long-shameful-history-of-sterilizing-prisoners?zd=3&zi=ag52aemp.

[20] See, e.g., id.

[21] Eugenics, Oxford Dictionary, https://en.oxforddictionaries.com/definition/eugenics (defining eugenics as “[t]he study of how to arrange reproduction within a human population to increase the occurrence of heritable characteristics regarded as desirable”).

[22] Beery, supra note 19.

[23] Id.

[24] Id.

[25] Id.; Justin Jouvenal, In Unusual Plea Deal, Virginia Man Agrees To Vasectomy, Wash. Post (June 28, 2014), http://https//www.washingtonpost.com/local/crime/in-unusual-plea-deal-virginia-man-agrees-to-a-vasectomy/2014/06/29/7835371c-fe3e-11e3-932c-0a55b81f48ce_story.html; Carisa Ashe, Judge Orders Woman to Undergo Sterilization, Fox News (Feb. 9, 2005), https://www.foxnews.com/story/2005/02/09/judge-orders-woman-to-undergo-sterilizatio-2103800324.html.

[26] Due to its recency, this paper does not focus on the implications of the sterilization of detainees in ICE detention centers, but rather mentions the ICE fiasco as proof that sterilization is still a serious problem that needs to be addressed. As of June 2021, this story is still ongoing.

[27] Sherman, supra note 5 (detailing the whistleblower report on sterilizations at the Irwin County Detention Center).

[28] Dakota Hall, ICE Sterilizations in Georgia Evoke Tragic Chapters in South’s History, Facing South (Nov. 19, 2020), https://www.facingsouth.org/2020/11/ice-sterilizations-georgia-evoke-tragic-chapters-souths-history.

[29] Sherman, supra note 5.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] John Washington & José Olivares, Number of Women Alleging Misconduct by ICE Gynecologist Nearly Triples, The Intercept (Oct. 27, 2020), https://theintercept.com/2020/10/27/ice-irwin-women-hysterectomies-senate/.

[35] Id.; Hall, supra note 28.

[36] Hall, supra note 28.

[37] Washington & Olivares, supra note 34.

[38] See Sherman, supra note 5; Hall, supra note 28; Washington & Olivares, supra note 34.

[39] See Leah Sakala, Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity (May 28, 2014), https://www.prisonpolicy.org/reports/rates.html (showing that minorities are disproportionately incarcerated).

[40] See, e.g., A.B. 3052, Reg. Sess. (Ca. 2020), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB3052.

[41] Da Costa, supra note 7.