By Rebecca Ryan, WLP Law Intern
Earlier this week, the Center for Investigative Reporting (CIR) released a report finding that California prisons had coercively sterilized at least 148 women between 2006 and 2010.
According to the report, doctors contracted by the state coerced women incarcerated at the California Institute for Women in Corona and Valley State Prison for Women in Chowchilla to undergo tubal ligation under conditions deemed inappropriate to give informed consent, such as during labor or childbirth. Medical staff targeted pregnant women whom they considered likely to reenter the system or who already had more than one child.
Both federal and state laws ban the sterilization of inmates, if federal funds are used, because prisons are an inherently coercive atmosphere. Additionally, the rules and regulations for the California Department of Corrections and Rehabilitation expressly prohibit medically unnecessary tubal ligations, unless it is prescribed by the inmate’s physician and approved by the medical authorization review committee and the health care review committee. The CIR report states that despite these regulations, the committees did not receive a single request for approval. In fact, according to the report, it seems the majority of doctors were completely unaware of their obligation to obtain permission from the committees prior to performing the surgeries.
Psychologist Daun Martin told CIR that she looked for ways around the regulations. She believed the rules were “unfair to women” and that tubal ligation was empowering for these women by giving them the same options that are available to women who are not in prison. However, her argument relies upon the presumption that these women had an actual, bona fide choice in the matter; the coercive, repetitive, and deceptive ways that medical professionals approached and reapproached inmates about sterilization are not experienced by non-incarcerated women.
CIR reported that the state paid doctors $147,460 to perform the procedures. Dr. James Heinrich considered the costs to be minimal, explaining to CIR, “[o]ver 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 [these women] procreated more.”
His thinking echoes the sordid history of eugenics in California, which resulted in a 2003 apology by then-Governor Gray Davis. Forced sterilizations were a part of the eugenics movement in the early twentieth century, legitimized by laws imposing sterilization upon individuals considered to be “feeble-minded” and “defective.” It was thought that such traits were hereditary and could be eradicated from society, thereby protecting the public health and purse-strings.
One such Virginia eugenics law led to the despicable, but relatively unknown, U.S. Supreme Court decision in Buck v. Bell. In this 1927 case, an 18 year old “feeble-minded” woman was ordered by the state to undergo sterilization because she came from a “feeble-minded” mother and was herself the single mother of a “feeble-minded” child. Justice Holmes, refusing to strike down the law, wrote:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.
Like the reasoning behind the sterilizations occurring in this century, the basis underlying this decision is that the “strength of the state” trumps women’s autonomy.
Less than twenty years after Bell, the U.S. Supreme Court would revisit nonconsensual sterilization and first recognize the constitutional right to reproductive freedom. In Skinner v. Oklahoma (1942), the Court contemplated the constitutionality of Oklahoma’s “Habitual Criminal Sterilization Act,” which mandated that “habitual criminals” be sterilized, if doing so would cause no detriment to his or her general health. Habitual Criminals were persons who had been convicted of three or more felonies involving “moral turpitude,” inside or outside Oklahoma, and who were sentenced to imprisonment in Oklahoma.
Striking down the law, the Court explained that a sterilized individual has been “forever deprived of a basic liberty.” The Court reasoned, “[w]e are dealing here with legislation which involves one of the basic civil rights of man . . . . The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear.” The Court’s fears would soon come true.
In the 1960s and 1970s, California coerced many Latina women into sterilizations for the same reasons articulated by Justice Holmes. Anxiety about overpopulation, welfare, and state dependency which fueled Bell and Skinner era legislation and practices, coupled with racism and xenophobia, influenced medical professionals to intimidate women into sterility. Just as the so-called “feebleminded” were often presumed to be “loose” women who would be dependent upon the state, Mexican-origin women in California were seen as hyperbreeders and “welfare mothers in waiting.”
As a result, Latina women were questioned about sterilization during labor or childbirth, not spoken to in their preferred language or with the aid of an interpreter, and repeatedly presented with consent forms. The colloquial “getting your tubes tied,” sounds reversible and many women erroneously believed, or were told, that they could later be “untied” and fully functional. The medical necessity of the procedure was either fabricated or not discussed. Some hospitals went so far as to condition the delivery of the woman’s child at the hospital on her agreeing to be sterilized, or threatening the discontinuance of welfare benefits.
A group of women who had been sterilized in California hospitals mobilized and sued their sterilizers in Madrigal v. Quilligan (1978). The judge ultimately found for the defendants, stating that the doctors had acted in good faith and would not have executed the procedure unless they actually believed the patient understood and requested it. Although the women did not win their case, it did result in significant changes to federal and state regulations, including, at minimum, a 72-hour consent and waiting period, bilingual consent forms, and clear explanations that welfare benefits are not conditioned on sterilization.
These new laws should have been the end of the deceptive and discriminatory practice of coerced sterilization; but, as the CIR report exposed, history continues to repeat itself with another class of vulnerable women—the imprisoned.