The recent news of a whistleblower’s allegations that a for-profit ICE detention center forced sterilization procedures on immigrant women shocked many people and drew comparisons to Nazi sterilization campaigns. The ICE detention story reflects a long pattern in the United States of the coerced sterilization of marginalized populations, particularly of Black, Latinx, and Indigenous peoples. In fact, the Nazi’s borrowed ideas for their sterilization regimen from eugenic sterilization laws adopted in the U.S. in the early 20th century.

Over the course of this long history, both public and private actors in the U.S. targeted the poor, the disabled, immigrants, and racial minorities for forced sterilization. Spurred by the eugenics movement popular at the turn of the century, states enacted laws beginning in 1907 that authorized the sterilization of the “feebleminded.” More than 60,000 coercive sterilizations were performed throughout the U.S. pursuant to these eugenics laws. In Buck v. Bell, the Supreme Court legitimized early 20th century eugenic sterilization practices with Oliver Wendell Holmes’ notorious declaration: “Three generations of imbeciles are enough.”
 
It was not until Nazi Germany adopted American eugenic theory and practice that public opinion about eugenics ultimately shifted in the United States. The counter-movement against eugenic sterilization culminated in the Supreme Court’s 1942 decision in Skinner v. Oklahoma. While Skinner rejected eugenic sterilization as a valid state goal and recognized that procreation is a basic civil right, the Supreme Court has never explicitly overruled Buck v. Bell.   
 
Although support for eugenics-based sterilization laws waned, new justifications for coerced sterilization arose. Following World War II, concerns about population control, immigration, and welfare costs emerged as new rationales for targeting marginalized populations. By the 1960s, a new era of sterilization abuse was born, which once again focused on the poor, immigrants, and people of color.
 
For example, in the 1974 case of Relf v. Weinberger, a federal court found that poor people in the South were being forced to agree to sterilization when doctors threatened to withhold welfare benefits or medical care, including for childbirth. Relf involved the forced sterilization of two Black sisters, just 12 and 14 years old, who were sterilized by a federally-funded family planning clinic in Alabama. Their mother signed an “X” on a consent form she could not read, discovering too late that she had inadvertently “consented” to the permanent sterilization of her daughters Mary Alice and Minnie Relf. The federal court in Relf emphasized that coercive medical practices crossed the line between family planning and eugenics.
 
On the other side of the country and during the same era as Relf, the case of Madrigal v. Quilligan exposed coercive sterilization at the Los Angeles County/USC Medical Center in the early 1970s. After a whistleblower leaked evidence of rampant sterilization abuse at the Medical Center, a group of women filed a lawsuit alleging that medical personnel systematically coerced Mexican American women into submitting to sterilization. The Madrigal case involved women whose primary language was Spanish and who had undergone a tubal ligation after childbirth by cesarean section. Hospital staff repeatedly approached the women for consent to sterilization while they were in the midst of labor — some after being heavily medicated — and pressured the women into signing English language consent forms that they could not understand.
 
A medical student who was a firsthand witness on the maternity ward testified about what she viewed as the Medical Center’s concerted effort to reduce the birth rate of racial minorities. The medical student detailed coercive practices she witnessed:

“The doctor would hold a syringe in front of the mother who was in labor pain and ask her if she wanted a pain killer; while the woman was in the throes of a contraction the doctor would say, ‘Do you want the pain killer? Then sign the papers. Do you want the pain to stop? Do you want to have to go through this again? Sign the papers.’”

The Madrigal case revealed how discrimination along intersectional lines of gender, race, poverty, and immigration status coalesced to result in sterilization abuse.
 
The recent allegation about coerced sterilizations of immigrant women at the Irwin County Detention Center (ICDC) in Georgia eerily echoes the story of Madrigal v. Quilligan. The complaint against ICDC asserts that officials transferred detainees to a physician who sterilized the women without proper informed consent. The whistleblower, nurse Dawn Wooten, described multiple forms of medical abuse, from failures to protect patients against COVID-19, to forced hysterectomies.
 
The reports of forced hysterectomies and other unwarranted gynecological procedures at ICDC were also intertwined with a pattern of lack of informed consent to medical treatment. In connection with the hysterectomies, Ms. Wooten explained: “These immigrant women, I don’t think they really, totally, all the way understand this is what’s going to happen depending on who explains it to them.”
 
Some nurses would try to communicate with detained immigrants by simply Googling Spanish rather than using appropriate interpretation protocols. One detained immigrant reported that the procedure she was supposed to have was never properly explained to her, stating that she “felt like they were trying to mess with my body.” When she asked what procedure was planned and why, she was given three different responses by three different individuals. As in the Madrigal case, the ICDC allegations raise the concern that medical personnel are targeting vulnerable women for coerced sterilization based on their race, poverty, and immigration status.
 
The allegation of coerced sterilization in ICE detention is far from the only form of reproductive injustice inflicted upon immigration detainees. Former Office of Refugee Resettlement Director Scott Lloyd attempted to block teen migrants from accessing abortion care, even when their pregnancies were the result of rape. The Trump Administration’s “zero tolerance” policy forcibly separated parents from their children, including children under the age of five.
 
As advocates for reproductive justice have emphasized, the fundamental civil rights to abortion, procreation, and parenting are deeply linked. All three pillars of reproductive autonomy have been simultaneously under attack during the Trump Administration, especially in the context of immigration detention. Given Justice Ginsburg’s passing and the likelihood she will be replaced by a Trump appointee, reproductive justice advocates must work even more urgently to protect the reproductive autonomy of marginalized people.

Maya Manian, Visiting Professor, American University Washington College of Law

This week, the presidential candidates will face off in their first debate of the general election. Voters will hear Donald Trump and Joe Biden talk about their views on the COVID-19 pandemic, the economy, and the Supreme Court vacancy created by the untimely passing of ACLU alumna Ruth Bader Ginsburg. The ACLU and our supporters will be listening closely for how their answers relate to key civil liberties issues, including racial justice and reproductive freedom, just as we have throughout the presidential campaign.

This cycle, the ACLU has gotten involved in the presidential campaign in a serious way for the first time. During the primaries and caucuses, our volunteers spread across the early states to get commitments (on camera) from the candidates of both parties, on issues like access to abortion and immigrants’ rights. In fact, it was our volunteer, Nina Grey, who secured the all-important commitment from Joe Biden to end the Hyde Amendment, which has blocked access to reproductive health care to low income individuals for decades. 

Now, as we enter the thick of the general election, we’re not backing down. Instead, we’re making sure every voter understands the civil liberties issues at stake, and knows how they can safely and effectively exercise their right to vote. Our message to voters: Vote like your rights depend on it.

In Michigan, we’ve launched a voter turnout campaign for the Presidential election, to build on the success of last cycle’s Proposition 3 Promote the Vote ballot initiative, which brought no-excuse absentee voting and same day voter registration to the state. We are ensuring that voters — particularly Black Michiganders, young people, and other populations positioned to benefit from the ballot measure — are educated on their rights and options, and encouraged to get to the polls. We are running a parallel voter turnout program in the other important presidential battleground of Wisconsin.

We are also continuing our commitment to down-ballot races that often have the greatest impact on policies and practices that affect civil rights. Our focus on hyper-local races, like sheriffs and district attorneys, has brought about crucial improvements on bail reform, reductions in prison and jail populations, protections in access to abortion, and the end of immigration detention agreements with the federal government. Voters have the opportunity to usher in even more change in this vein on Nov. 3.

In the 2020 ballot measure space, we’ve made racial justice one of our top priorities for this election cycle. Our largest financial and personnel commitments have focused on three ballot referenda with strong racial justice implications. In California, the ACLU and its affiliates will invest approximately $1 million to lift a ban on affirmative action. In Oklahoma, we have spent more than $3 million to enact far-reaching criminal justice reforms that will help address racial biases and systemic inequality in the criminal legal system. In Nebraska, we’ve invested over $1 million to fight the extortionist practices of predatory payday lending institutions, which takes $28 million a year from low-income people, disproportionately people of color, in the state. Taken together and coupled with another ballot measure investments, the ACLU is flexing its political power to advance an agenda of systemic equality — one that gets at the root causes and persistent effects of systemic racism.  

We are a nonpartisan organization, and we don’t endorse or oppose particular candidates for office. But we’re involved in elections because the stakes are incredibly high for civil rights and civil liberties issues in America. The ACLU aims to educate voters about the civil liberties and civil rights records of candidates — through paid and earned media and other forms of voter communication — and encourage voters to factor those records into how they vote. At the same time, we mobilize ACLU volunteers to ensure that Americans around the country understand the potential consequences of these elections, certainly the most consequential in generations in terms of civil liberties and civil rights. Our volunteers will make millions of phone calls and send millions of text messages to voters over the course of this election. And through our new platform, Let People Vote, we’re ensuring people know how and when to vote, as well as how to get involved in their state.

The ACLU takes its nonpartisan status very seriously. We are not nonpartisan merely out of tradition or to protect our tax status; we are nonpartisan because our commitment to civil rights and civil liberties drives everything we do. We have an issue-based agenda, not a party-based one. We are nonpartisan because we have had allies from all political stripes and all political parties — and opponents, also, from all points on the political spectrum. Rather than judge politicians based on their party affiliation, we judge them on their civil liberties and civil rights records and stances. We thanked Chuck Grassley — the Republican senator from Iowa — for his leadership on the First Step Act with a full-page ad in his local newspaper. And yet, we are likely to clash horns with the same Senator Grassley for refusing to defer the confirmation process for Justice Ginsburg’s successor until after inauguration. We are an equal opportunity friend and foe, but a constant advocate for civil liberties and civil rights. When we engage in politics, we do so to highlight the issues that affect our daily work and the lives of millions of Americans.

Success for us is infusing a higher profile discussion of key civil liberties issues into elections and into voters’ calculus when casting their votes. We engage in electoral work because this is when citizens are most engaged, our issues are most salient, and voters have the greatest power to affect policy. It is also when politicians are most likely to take seriously what voters care about. Our goal is to make sure candidates know civil liberties and civil rights issues matter to voters and move the needle on key policies and practices.

We’re trying to change hearts and minds on civil liberties issues, and therefore we have short- and long-term goals. For instance, an anti-civil liberties candidate may very well win despite our best efforts to educate voters about that race, but we will have fulfilled our mission if we’re able to increase voters’ understanding and awareness of civil liberties issues.
 
We, therefore, have made and remain committed to the following assurances about our electoral work:

The ACLU will not endorse or oppose specific candidates for elected office. Our goal is to ensure that voters are educated about the potential consequences of an election, not to support specific candidates.

The ACLU will not tell people to vote for particular candidates. Educated voters can make their own decisions. The ACLU’s job is to provide voters with the information they need to know about what is at stake.

The ACLU will not coordinate with any partisan organization in electoral work. While the ACLU believes deeply in working in coalition with other nonprofits, we have no interest in partisan coordination. Our aims are different from those of a political party, and are driven by issue-based goals. (We know, for instance, gerrymandered political maps that disenfranchise voters have been drawn by both Republicans and Democrats — and we have opposed them in both instances.)

The ACLU will let civil rights and civil liberties issues drive its electoral work. The ACLU is not doing electoral work to affect the balance of political power, but to drive concrete policy outcomes that matter for people’s lives. We will choose to engage in electoral races where important civil rights and civil liberties issues are at stake. And we aim to establish a mandate for politicians to enact policies that expand rights and freedoms for all. For every election we participate in, we will be able to identify a set of concrete policies and practices that have changed because of our electoral engagement and the ultimate decision of the voters.

The ACLU will aim to educate voters about the consequences of specific elections. This could include issuing scorecards, hosting ACLU-sponsored issue-based town hall meetings, doing issue-focused radio ads or TV, mailers, billboards, or transit ads. The goal is to infuse a discussion of civil rights and civil liberties into a political race and to communicate to the public how the choice of elected officials leads to differences in policies and impacts on people’s lives.

The ACLU will urge voters to go to the polls. It does not matter how much voters understand about an election if they do not vote. In the end, the choices that people make on Election Day have great consequences. The ACLU will encourage voters to make their voices heard.

The ACLU will defend election integrity and ensure that every vote is counted, regardless of the party affiliation of the voter. In addition to our advocacy to inform and turn out voters, we engage in advocacy and litigation to ensure that every vote counts. This includes 31 lawsuits in more than 20 states, as well as pressing for laws in states like North Carolina to ensure that voters who have their mail ballots rejected have an opportunity to “cure” or fix them. With offices in each and every state, and boots on the ground in every voting jurisdiction, the ACLU is uniquely situated to ensure that every vote is counted in this critical election. 

Electoral work in this frame is a natural extension of the work we have been doing for 100 years. The ACLU has never shied away from a fight when civil liberties were at stake, whether that fight was in a courtroom, Congress or a state legislature, in the streets, or at the ballot box. We ask you to join us in this important endeavor.

Ronald Newman, National Political Director, ACLU

Paid for by American Civil Liberties Union, Inc., 125 Broad Street, New York, NY 10004, and authorized by Nebraskans for Responsible Lending.
 
Authorized and paid for by American Civil Liberties Union, Inc., 125 Broad Street, New York, NY 10004, 212-549-2500, on behalf of Yes on 805, Inc.
 
Paid for by American Civil Liberties Union, Inc. (major donor committee ID # 1259514) and authorized by Yes on 16, Opportunity for All Coalition, Sponsored by Civil Rights Organizations.

Wireless internet has become essential to modern life, enabling us to use our smartphones, tablets, and laptops as we move about in the world. Easy internet connectivity that comes from having Wi-Fi access points spread through office buildings, transit systems, parks, businesses, college campuses, and city streets is a public good. But Wi-Fi networks also collect information about when and where our devices connect to them, information that can precisely reveal our locations and movements. This is revealing data that shouldn’t carelessly end up in the hands of police.
 
That is why today, the ACLU, along with the ACLU of Pennsylvania and the Electronic Frontier Foundation, filed a friend-of-the-court brief in the Pennsylvania Supreme Court explaining why warrantless police access to people’s Wi-Fi-derived location information violates the Fourth Amendment.
 
The case, Commonwealth v. Dunkins, involves a police investigation into a 2017 robbery of marijuana and cash from a student’s dorm room on a Pennsylvania college campus. After receiving a report of the robbery, police went to the college IT department and got a list of all smartphones and other devices that were connected to the 80-90 different Wi-Fi access points spread across the residence hall around the time of the robbery. Because those access points each have a small broadcast radius, knowing which Wi-Fi access point a phone was connected to provides precise information about where that phone was.
 
Using that information, the police identified several dozen students who were in the building at the time, and then narrowed down the list to three students who lived in other dormitories. Two of those students were women, and were excluded because the suspected robbers were described as male. Police focused on the remaining student, Dunkins, and requested information about all his Wi-Fi connections on campus during a five-hour period on the night of the robbery, a detailed account of his movements over time.
 
The Wi-Fi location information was essential evidence at trial, tying Dunkins to the scene of the robbery. But it’s not hard to see how invasive the searches were for other students as well. By learning that two women were in someone else’s dorm rooms in the wee hours of the morning, police could infer private information about where they were sleeping and with whom. That’s none of the government’s business.
 
That’s why the ACLU is arguing that this sensitive location data is protected by the Fourth Amendment. And we have powerful Supreme Court precedent behind us.
 
In 2018, in an ACLU case called Carpenter v. United States, the U.S. Supreme Court ruled that police need a warrant to request a person’s historical cell phone location information from their cellular service provider. We have argued in other cases, including in a brief we filed in another Pennsylvania case last week, that the rule in Carpenter should apply to real-time cell phone tracking, automated license plate reader databases, long-term surveillance of homes with pole cameras, pervasive aerial surveillance, and requests for sensitive digital medical information. Today, we are arguing that this protection should apply to Wi-Fi-derived location information as well. Like the location information at issue in Carpenter, the data created whenever a phone connects to a Wi-Fi access point paints a detailed picture of a person’s “privacies of life,” and therefore deserves Fourth Amendment protection.
 
The prosecution argues that because Carpenter involved location information spanning days and months about one particular suspect, the shorter-term data about many people in the Dunkins case should be unprotected. But even short-term location data can reveal deeply private information about where a person goes and what they do there. And requesting information about all people who were in a particular building at a particular time will almost certainly sweep in bystanders who had nothing to do with any crime, making the search dangerously overbroad. Here, for example, two non-resident female students and their hosts were caught in the net, illustrating the privacy interests at stake.
 
The implications of the Dunkins case extend far beyond privacy on college campuses. Cities across the country, from Boston to New York to El Paso, have built free municipal Wi-Fi networks spanning significant geographic areas. Comcast has deployed “millions of hotspots” as part of its Xfinity service. On many of these networks, after a person connects their device the first time, they will automatically connect and reconnect to any Wi-Fi access point that is within range, generating a great deal of location information going back weeks, or even years.
 
Like the cell phone location data in Carpenter, Wi-Fi location information is “detailed, encyclopedic, and effortlessly compiled.” As we explain to the Pennsylvania court, it is dangerous to allow police access to this information without probable cause, narrow tailoring, and judicial supervision — in other words, police should have to get a warrant. And the Fourth Amendment might never allow a request that sweeps in precise location information about many bystanders. This case provides an important opportunity to ensure strong protections for privacy in the digital age.

Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy, and Technology Project,
& Jennifer Stisa Granick, Surveillance and Cybersecurity Counsel, ACLU Speech, Privacy, and Technology Project