The Need for Strong Legal Protections for Patients’ Rights

An important lesson that emerges from the history of forced sterilization of women in Puerto Rico is the necessity of strong legal protections for patients’ rights to insure that patients, and not doctors, determine what medical procedures patients do and don’t have. As with the eugenic program in Nazi Germany, the policy of forced sterilization in Puerto Rico could not have been carried out without the complicity of the medical profession. Unfortunately, history has repeatedly demonstrated that the medical profession cannot be relied upon to protect patients against government policies that intrude upon bodily integrity and self-determination. Whether by actively persuading women to agree to sterilization in exchange for longer stays in the hospital after childbirth, making it appear that sterilization was medically necessary, telling women that sterilization was their only choice for birth control, or failing to tell women that sterilization involved a surgical procedure that it was irreversible, too many doctors were more than willing to be the instruments of and mouthpieces for the policy of forced sterilization in their everyday interactions with patients and take advantage of the power imbalance that is inherent in the doctor-patient relationship. The deeply troubling history of the involuntary sterilization of women in Puerto Rico reminds us once again of the crucial role that patients’ right to bodily integrity and the law of informed consent play in preventing the medical profession from becoming an instrument of intrusive and repressive governmental policies.

Law Students for Reproductive's Reaction to CLORE's Showing of "La Operacion"

On page 12 of the September/October, 2010 issue of Mother Jones, an inset feature called “Conspiracy Watch” details the efforts of various pro-life groups to propagate a commonsense understanding that abortion is a racist genocidal plot. This is, sadly, not a belief confined to the lunatic fringe of a shadowy misogynist far-right coalition. Unfortunately, there is a very real and unsettling history of reproductive injustices that range from Planned Parenthood’s early ties to eugenics movements to the Supreme Court’s notorious holding in Buck v. Bell (upholding the forced sterilization of a woman said to be mentally retarded, an opinion in which Justice Holmes famously wrote “Three generations of imbeciles is enough”). If these tactics were embraced by pro-choice movements today, it would legitimately be seen as a dangerous movement, circumscribing the rights of populations of women who are (predictably) poor people of color. But it is much worse than misleading to imply that the pro-choice movement continues to hew to such ideals.
The brutal reality is that many people, governments, and social movements have used (and continue to use) technology and medical treatments in ways antithetical to human dignity, and such treatment is certainly not limited to women. The Tuskegee Experiments, during which black sharecroppers were unknowingly infected with syphilis, is one of the most well-known examples of clinical misuse of human subjects. Recently, a similar situation was uncovered in Guatemala. But it is emphatically not the project of the reproductive justice movement to limit women's choices about their own lives and bodies. Women have been systematically deprived of the right to make decisions about their own bodies and those deprivations have come from many sources. Whether that means they have been denied their ability to have children, or their right to choose not to have children, the larger struggle of the reproductive justice movement is a struggle for complete self-determination. Forced reproductive “choices” of any kind must be resisted. We can only accomplish this by coming together in solidarity to protect each woman’s individual preferences and choices about her intimate activities and the life-shaping decisions she makes. The notion that the pro-choice movement is genocidal, or similar in any way to forced sterilization, is of course false. This argument is a mechanism for dividing women in order to diminish their potential collective political power. To combat these strategies, women of all ages and backgrounds need to listen to each others' stories – the good stories and the tragic. The CUNY chapter of Law Students for Reproductive Justice is proud to co-sponsor CLORE in their presentation of La Operacion, a documentary film detailing the appalling government sanctioned forced sterilization of Puerto Rican women in the 1970s.

Sterilization of Women in Puerto Rico

I am grateful to CLORE for inviting me to submit brief comments in anticipation of its showing of the film La Operacion on Monday, November 8.

In 1937, contraception was legalized in Puerto Rico. Nick Thimmesch, Birth Control in Puerto Rico, 30 Family Planning and Fertility Control 252, (1968). Before and after passage of this legislation, the Catholic Church waged strong opposition to the availability of birth control. Id. at 258. At the other extreme, in the wake of the 1937 law, hospitals strongly pushed sterilization of women as the primary means of controlling fertility. Id. at 256; Charles W. Warren, et al., Contraceptive Sterilization in Puerto Rico, 23 Demography 351, 352 (1986). In fact, the statute authorized the Commissioner of Health to “issue a license to teach and practice eugenic principles [to qualified doctors and nurses] in public institutions and centers.” Thimmesch, supra, at 255.

Puerto Rican women were thus yanked in opposite directions: by the Catholic Church to bear large families, and by a new campaign not only to limit childbearing but to relinquish altogether their ability to procreate. The same law that legalized contraception also imposed heavy punishments for abortion. Id. Given the harshness of these penalties, one wonders whether some women felt compelled to undergo sterilization as the surest means to avoid unintended pregnancy. Cultural norms favoring male virility, id. at 256, may also have made it unlikely that male partners would participate in, or tolerate their partners’ use of, non-permanent methods of contraception. Industrialization and the increased movement of women into the workforce also played a role in the prevalence of sterilization. Harriet B. Presser & Sunita Kishor, Economic Development and Occupational Sex Segregation in Puerto Rico: 1950-80, 17 Population and Development Review 53, 61 (1991).

The social and political forces underlying Puerto Rico’s remarkably high sterilization rate among women from the late 1930s to the mid-1960s and beyond are undoubtedly complex and multi-faceted. The bare fact remains, however, that during this period mass numbers of Puerto Rican women were sterilized. In fact, data from a 1965 survey showed that “31.9 percent of all ever-married women 20-49 years of age were sterilized.” Warren, et al., supra, at 352. As late as 1986, one article pointed out that “for at least the past 20 years, Puerto Rico has had the highest prevalence rate of contraceptive sterilization in the world.” Id at 351. The sheer numbers raise questions as to how well-informed women were about the procedure and its alternatives, and the extent to which they felt coerced to undergo “la operacion.”

The complex history of the regulation of female fertility in Puerto Rico echoes a pervasive tendency of government and other third parties to try to control women’s reproductive choices. This tendency is especially acute when it comes to women of color. Sterilization, in particular, is a procedure that has been the subject of horrific eugenic programs intended to limit childbearing among “undesirable” populations, including women of color.

Two Supreme Court decisions have addressed examples of eugenic programs. In Buck v. Bell, the Court upheld the forced sterilization of Carrie Buck, a woman alleged to be “feeble minded.” In a now-famous, chilling passage, Justice Holmes proclaimed, “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. . . . Three generations of imbeciles are enough.” 274 U.S. 200, 207 (1927). In Skinner v. Oklahoma, the Court invalidated an Oklahoma law that provided for the sterilization of “habitual criminals,” which it defined as persons sentenced to imprisonment after having been convicted at least twice for “felonies involving moral turpitude.” 316 U.S. 535, 356 (1942). The Court noted, “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.” Id. at 541.

In her book, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997), Dorothy Roberts documents the history of the eugenics movement in the United States and in particular its focus on limiting childbearing among women of color. Id. at 56-103. Even today, the United State is not free of governmental impulses to prevent women of color from bearing children. Roberts’ book discusses the numerous ways in which recent and current welfare and criminal law policies have targeted women of color by penalizing or attempting to prevent their childbearing.

Sterilization is an important means of controlling fertility, and is an option that should be available to all women. As with all reproductive choices, however, it must be one that women are able to choose without coercion from their partners, the government, religious authorities, or other outside forces. La Operacion thus serves as an important reminder of the critical and continuing importance of reproductive freedom in all of its dimensions.

--Caitlin Borgmann

The Supreme Court Strips Miranda Rights to Bare Bones

Most people know or have heard of the Fourth Amendment right to remain silent that was espoused in Miranda v. Arizona. The right to remain silent is a vital component of liberty. It is one of the few rights individuals have to protect themselves from unwanted intrusions by law enforcement. It also gives us some power and leverage against the considerable power of the police.

The Supreme Court’s narrow holding in Berghius v. Thomkins eradicates years of precedent in one fell swoop by requiring that a person who wishes to remain silent “unambiguously and equivocally” invoke that right. No definition is given to what unambiguous means or who decides whether an invocation is equivocal. Instead it gives great deference to the police in deciding whether an individual has succinctly invoked his/her rights. This is a troubling holding because it places a large amount of trust in the police. What will prevent police from neglecting to clarify an ambiguous statement?

Justice Sotomayor has these same questions and further criticizes the foundations upon which the court makes it decision:

“Police may well prefer not to seek clarification of an ambiguous statement out of fear that a suspect will invoke his rights. But “our system of justice is not founded on a fear that a suspect will exercise his rights. ‘If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.” Berghius v. Thompkins, 130 S.Ct. 2250, 2277 (2010).

Justice Sotomayor’s statement raises another question for me. What if a person attempts to invoke her right to remain silent in another language or broken English? What then? Is this an ambiguous invocation or are the police required to bring a translator? I know police are required to provide the accused with their rights in their native language in, but what happens after? Or what about a young offender, or a person with mental illness what standard should we place upon them to invoke their rights? Is there only one standard? These questions are left unanswered. All that we are left with is this:

“A requirement of an unambiguous invocation of Miranda . . .“avoid[s] difficulties of proof and ... provide[s] guidance to officers” on how to proceed in the face of ambiguity. . . Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ (citation omitted). Id. at 2260.

In this case the defendant had been silent for 2 hours and 45minutes while the police continued to question him. His choice to remain silent was not enough for the justices to find he had invoked his right.

The questions left open by this decision are ripe for discussion and we will be tackling some these issue on Thursday, we ask that you also share your ideas an analysis here as part of an ongoing discussion.