A Tired Talking Point

Joe Veix

What do aspirin, field trips, and abortion have in common?

There’s a great article up on the Constitutional Law Prof
Blog
that exposes and refutes a cliché talking point often used by the right to attack Roe v. Wade.

It goes like this: If one needs parental consent from a school nurse to get aspirin, and also needs to get parental consent to go on a field trip, why don’t parents have any authority regarding abortions? This appears in nearly every debate on the issue.

Although misleading and wrong, one has to admire the right’s ability to create persuasive (if flawed) argumentative metaphors. This one almost sounds reasonable. Aspirin is such a common, harmless drug, yet still parents must sign permission slips for it. Why then, the metaphor begs us to ask, don’t parents have control over a medical procedure?

Law Prof Blog chimes in:

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Legislators on these topics (and parents) may wish to believe that a person’s constitutional rights begin when that person reaches the age of majority.  This is simply not true.  Minors have a First Amendment right to engage in free speech.  Minors have a Fourth Amendment right to be free of unreasonable searches on school grounds.  The Supreme Court decided that since minors do possess Constitutional rights in these areas, it would be unfair and inconsistent to hold that minors do not have a right to privacy under the due process clause of the Fourteenth Amendment.  Thus, the Supreme Court is merely being consistent in holding that minors possess the same constitutional freedoms as adults.

 

But beyond the legal logic, the metaphor is wrong. First, a permission slip for a field trip has nothing to do with a medical procedure. The permission slip is designed to keep the school from being held liable if a child gets hurt on the field trip. The line about aspirin is also false, for similar reasons. The need for a permission slip to take an aspirin isn’t necessarily because the decision is too difficult for a minor to make. The school is only worried about liability. Also, many states allow minors to consent to medical procedures – in some states, this even includes surgical care.

Sometimes the talking points are too easy to refute.

Commentary Human Rights

A Sterilized Peruvian Woman Seeks Justice From the Americas’ Highest Human Rights Court

Cynthia Soohoo & Suzannah Phillips

I.V.'s case, I.V. v. Bolivia, illustrates the all-too-common scenario of medical providers making decisions on behalf of women who are deemed unfit or unable to make their own choices.

In 2000, a Peruvian political refugee referred to by her initials, “I.V.,” went to a Bolivian public hospital to deliver her third child. According to court documents, the doctors decided during the cesarean section that a future pregnancy would be dangerous for I.V. and performed a tubal ligation—for which they claimed they had I.V.’s consent. When I.V. learned that she had been sterilized two days later, she said, she was devastated.

After her complaint against the surgeon who sterilized her was dismissed by Bolivian courts, I.V. brought her case to the Inter-American Court of Human Rights (IA Court), which heard oral arguments earlier this month. In a region where there are widespread reports of forced sterilization, the case is the first time the court will consider whether nonconsensual sterilization is a human rights violation.

The IA Court should hand down its decision in the coming months. A favorable ruling in this case by the IA Court—the highest human rights court in the Americas—could require Bolivia to, among other things, pay reparations to I.V., investigate and possibly punish the doctors who sterilized her, and take steps to prevent similar situations from occurring in the future. The decision will also have ramifications across the region, establishing a binding legal precedent for the 25 countries that are party to the American Convention on Human Rights.

I.V. v. Bolivia provides an important opportunity for the IA Court to condemn forced sterilization and to adopt clear standards concerning informed consent. It would also be joining U.N. human rights bodies and the European Court of Human Rights in recognizing that forced sterilization violates fundamental human rights to personal integrity and autonomy, to be free from gender discrimination and violence, to privacy and family life, and, as CUNY Law School’s Human Rights and Gender Justice Clinic and Women Enabled International recently argued in our amicus brief to the IA Court, to be free from cruel, inhuman, or degrading treatment or torture.

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Further, the European Court and U.N. experts recognize that possible health risk from a future pregnancy cannot justify nonconsensual sterilization because there are alternative contraceptive methods to prevent pregnancy and women must be given the time and information needed to make an informed choice about sterilization. The IA Court should make similar findings.

Unlike the sterilization of Mexican immigrant women in the United States in the 1970s, recently portrayed in the documentary No Más Bebés, I.V.’s case doesn’t appear to involve a broad governmental policy of sterilizing poor or immigrant women. But it illustrates the all-too-common scenario of medical providers making decisions on behalf of women who are deemed unfit or unable to make their own choices.

Indeed, forced and coerced sterilization is disproportionately perpetrated around the world against women in stigmatized groups, such as women living with HIV, poor women, ethnic or national minorities, or women with disabilities because some health-care providers believe that such women should not have children. Whether driven by animosity against certain women, stereotypes that these women are unfit to become parents, or a paternalistic notion that “doctor knows best,” the end result is the same: Women are permanently robbed of their capacity to have children without their consent.

The parties contest whether I.V. orally consented to sterilization during her c-section. But even if she did so, medical ethical standards and decisions from U.N. human rights bodies and the European Court make clear that consent obtained during labor or immediately preceding or after delivery cannot be valid because the circumstances surrounding delivery—due to pain, anesthesia, or other factors—are inherently inconsistent with voluntary patient choice.

I.V. delivered at a public hospital that predominantly treats indigent women, many of whom are indigenous or migrants. The Inter-American Commission on Human Rights—which effectively acts as a court of first instance for the IA Court—considered the case before it went to the IA Court and noted the special vulnerability of migrant women seeking health care in Bolivia, given their reliance on public services and the lack of care options. It found that I.V.’s medical team was influenced by “gender stereotypes on the inability of women to make autonomous” reproductive decisions. It further concluded that the decision to sterilize I.V. without proper consent reflected notions that the medical staff was “empowered to take better medical decisions than the woman concerned regarding control over reproduction.”

Sixteen years after her sterilization, I.V. still acutely feels the emotional and psychological toll of having been sterilized. Because of the severity of physical and mental harms that forced sterilization imposes upon women, the Inter-American Court should join the European Court of Human Rights and U.N. human rights experts in recognizing that forced sterilization constitutes cruel, inhuman, or degrading treatment and may constitute torture.

In addition to condemning forced sterilization, the IA Court should recognize the multiple human rights violations I.V. suffered. The Inter-American human rights system protects women from gender-based discrimination and violence and violations of the right to personal integrity, information, privacy, and family life, all of which are at issue in this case.

Analysis Human Rights

Family Separation, A Natural Byproduct of the U.S. Immigration System

Tina Vasquez

There are millions of children in the United States born into households where one or more of their parents are undocumented—and thousands of these parents are deported each year.

To honor migrant mothers in detention this Mother’s Day, the immigrant rights organization CultureStrike has partnered with Presente.org, NWDC Resistance, and Strong Families. Visitors to MamasDay.org can pick out a card and write a message to a detained mother, and members of CultureStrike will deliver printed cards to detention centers nationwide.

A card from a stranger on the internet is a small gesture, but one that could have been meaningful to Monica Morales’ mother when she was detained at the T. Don Hutto Residential Center late last year. Morales told Rewire her mother, usually a fighter, was depressed and that her morale was at an all-time low. She’d been picked up by Immigration and Customs Enforcement (ICE) at the border while attempting to escape her abusive ex-husband in Mexico and the gang violence that plagued her neighborhood in Chihuahua. After being deported in 2010, she was trying to reenter the United States and reunite with her family in Amarillo, Texas, but the reunion would never happen.

As an adult, Morales is somewhat able to make sense of what occurred, but she worries about what she will tell her three young children about what has happened to their family. These are hard conversations happening all over the country, as there are millions of children in the United States born into households where one or more of their parents are undocumentedand thousands of these parents are deported each year. And, advocates say, there are few, if any, programs available to help immigrant children cope with their trauma.

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“There’s Literally Nothing We Can Do”

On any given day, there are 34,000 people in immigration detention. Prior to the “border crisis” that brought thousands of Central American women to the United States seeking asylum, the Women’s Refugee Commission reported that 10 percent of those in detention were women. Since 2009, that figure has likely increased, but the exact number is unknown.

Morales’ mother was one of them.

Though they were both located in Texas at the time, Morales said getting her mom’s phone calls from Hutto was heartbreaking and that she couldn’t have felt further away or more helpless. Morales hit her breaking point when one day, her mom called sobbing, saying she and seven other women were forced to spend the day in a room covered in urine, blood, and excrement. It was shortly after that Morales’ mom decided to participate in the hunger strike Rewire reported on earlier this year.

“My mom would always tell me that dogs at the pound are treated better than they are in Hutto and other detention centers,” Morales said. “At least at the pound, they try to help the dogs and they want them to get adopted. At places like Hutto, they don’t care what happens to you, they don’t care if you’ll get killed if you get deported. If someone is sick, they don’t care. If someone is suffering, they don’t care.”

Corrections Corporation of America, the nation’s oldest and largest for-profit private prison corporation, runs Hutto. The company has come under fire many times for human rights violations, including at Hutto, which was once used to detain immigrant families, including children. The Obama administration removed families from the facility in 2009 after numerous allegations of human rights abuses, including, according to the Texas Observer, “accounts of children suffering psychological trauma.” In 2010, there were also multiple allegations of sexual assault at the detention center.

Morales’ mother was not aware of Hutto’s history of abuse cases, but Morales told Rewire that after the hunger strike, her mother and other women who participated believed they were being retaliated against by Hutto officers because they had brought more bad publicity to the facility. Morales’ mom was deemed by detention officers a “dangerous detainee” and had to wear a different color uniform to identify her as such, Morales said. She was also placed in solitary confinement for over a month before she was transferred to another detention facility.

Six weeks ago, Morales’ mother was deported back to Chihuahua where she must remain for 20 years, because those who have been deported once before and then attempt to reenter the United States within a period of “inadmissibility” automatically trigger a longer ban.

Advocates have told Rewire that transfers to other facilities and solitary confinement are common tactics used by both detention and ICE officers to retaliate against those who go on strike.

During the time of the hunger strike, ICE denied allegations that it was retaliating against detainees in the form of transfers and solitary confinement. A spokesperson said in a statement to Rewire that it “routinely transfers detainees to other facilities for various reasons, including bed-space availability or to provide greater access to specialized services needed by particular detainees.” The spokesperson added that Hutto “does not have solitary confinement areas.”

As Mother’s Day approaches, Morales told Rewire that her head is heavy with thoughts of her mother. The chance they will be able to see each other anytime soon is slim. If her mom attempts to reenter the United States a third time and is caught, she will be permanently barred. Morales is a DACA recipient, which means she qualified for an immigration policy put into place by President Obama that allows undocumented immigrants who entered the country before their 16th birthday and before June 2007 to receive a work permit and exemption from deportation renewable every two years (but for only as long as the DACA program is in place). It also means Morales is unable to travel outside of the United States unless there is an emergency, and for obvious reasons, those are not the conditions under which she wants to see her mother.

“We can’t see my mom for 20 years and there’s literally nothing we can do,” Morales told Rewire. “I can’t go to Mexico. The only way I can go is if something were to happen to my mom, and I pray I don’t have to go in that situation. And honestly, I would worry if the [Border Patrol] would let me return to the U.S. even though I’d have my paperwork in order. I’ve heard that happens. If you’re in my situation, everything is so risky and I can’t take those risks. I have three children. My youngest child has health issues and he needs medication. My second child suffers from tumors and he needs yearly check-ups. I can’t risk my status in the U.S. to go back.”

Like her mother, Morales is a domestic abuse survivor and she is upset by how immigration laws have impacted her family and offer little recourse to women who are attempting to escape violence. If nothing else, she said, this anger has moved her to be more politically active. Not only has she started a campaign to get Hutto shut down, but she is doing interviews and other activities to shine a light on how the U.S. immigration system further traumatizes survivors of domestic violence, the mental health issues that arise when being forced to navigate such a “horrible” system, and the family separation that has become a natural byproduct of it all.

“I don’t think Americans know what this does to our families or our communities,” Morales said. “I wonder a lot that if people knew what happened to our families, if they would even care. Moms [are] in detention for years just for trying to give their kids a better life. Parents [are] being deported and killed and their children have to be raised by other people. Do people even care?”

The Morales Family

Morales and her sister are working together to pay for bi-weekly psychiatrist sessions in Mexico for their mom, who is struggling with being separated from her only support system and who Morales strongly believes was severely traumatized by her experiences at Hutto.

“She can’t work; she can’t reintegrate herself into society. She can’t leave the house by herself; she can’t be in the house by herself. After being detained, my mom was treated so bad that that I think she started to believe she deserved it. My grandma says my mom can’t sleep at night, she paces. My grandpa asks her what’s wrong and she just says she feels like she’s suffocating. She can’t calm down. She has a lot of anxiety, a lot of depression. She’s different than she used to be,” Morales said.

The Impact of Immigration Policies on Families

Wendy Cervantes is vice president of immigration and child rights at First Focus, one of the few children’s advocacy organizations in the country to focus on immigrant families. Cervantes told Rewire that if adults, much like Morales’ mom, struggle mightily with family separation and symptoms of post-traumatic stress disorder (PTSD) resulting from trauma experienced in their countries of origin and exacerbated by navigating the U.S. immigration system, what must it be like for children?

While it’s certainly true that all immigrant families fear family separation, the challenges faced by mixed-status families like Morales’ are unique. “Mixed status” is in reference to a family comprised of people with different citizenship statuses. A parent, for example, may be undocumented, but their children are American citizens or are “DACA-mented.”

A report from Human Impact Partners, Family Unity, Family Health, found that “nationwide, an estimated 4.5 million children who are U.S. citizens by birth live in families where one or more of their parents are undocumented.” And when deportations occur on the scale that they have under the Obama administration, not only do they separate families, but they have overwhelming an effect on the health and well-being of children. Besides being more apt to suffer poverty, diminished access to food and health care, and limited educational opportunities, children suffer from fear and anxiety about the possible detainment or deportation of their family members. This leads to poor health, behavioral, and educational outcomes, and sometimes results in shorter lifespans, according to Family Unity, Family Health.

In 2012, Colorlines reported that about 90,000 undocumented parents of American citizen children were deported each year. The number has declined since then. In 2013, government data showed it was 72,410, but the Department of Homeland Security (DHS) only documents the number of parents with children who are citizens, not cases in which parents with undocumented children are deported.

“If a kid has to go back to a violent country they’ve never been with their deported parent or if they have to stay behind without a parent or go into the child welfare system, none of it is ideal,” Cervantes told Rewire. “The constant fear your parent will be detained or deported has very large consequences on children, who are showing signs of PTSD at younger and younger ages. The immigration system can really take a kid’s childhood away from them.”

Who Will Address Their Trauma?

The American citizen or DACA-mented children of undocumented parents suffer from things like anxiety and depression because of fears their parents will be detained or deported, Cervantes told Rewire. Furthermore, there are well over one million undocumented children in the United States and to her knowledge, there are no services provided for these children to cope with their trauma.

According to the American Psychological Association, “research indicates that unaccompanied refugee minors experience greater risk of mental illness than general populations.” Based on work she’s done with unaccompanied minors from Central America, Cervantes said the levels of PTSD in these children is “on another level,” which is part of the reason why she said she’s so appalled by the administration’s aggressive approach to the Central American asylum-seeking population, which she said is greatly lacking in empathy.

“I’ve met unaccompanied kids who have told me horrendous stories. They witness horrible things on their journey here, but they were also escaping horrible things in their country of origin. An 8-year-old witnessing a girl he knew from his neighborhood getting gang-raped as part of a gang initiation and seeing his best friend getting beheaded by a gang on his way to school,” Cervantes told Rewire. “How many years of serious counseling and professional help would it take for an adult to be OK after seeing such violence? Now consider we’re talking about a child. It’s so disturbing, and then these same kids get placed in facilities that are like jails. How are they expected to function?”

While counseling is offered in detention, those services have been highly criticized by pediatricians, therapists, and advocates as inadequate at best, especially considering that the counselors in the facilities often only speak English. It’s also important to note, Cervantes said, that these services are only offered while the child or parent is detained. Once they’re released, there isn’t a clear federal program that offer assistance to directly address their trauma.

Rather than sitting around and hoping a program will eventually be created, advocates are currently working on gathering a team of psychiatrists to visit detention centers and assess the mental health services offered. Next week, First Focus will also be launching a TV and radio campaign about family separation spanning eight states, using donated airtime valued at $1 million.

Over the years as she’s worked in immigration, Cervantes is routinely surprised by how little most Americans seem to know about how the immigration system actually works and the very real ways things like detainment and deportation rip families apart, traumatizing people of all ages. She told Rewire that she hopes the upcoming campaign humanizes the issue and helps people understand that family separation isn’t a rarity and that it happens in every community in every state.

“I’m actually very disturbed by so much of the immigration process, especially how we treat families who are seeking asylum and who have risked their lives. I have to believe that if Americans came to understand this, they’d be disturbed too,” Cervantes said. “I just wish I knew why we can’t be compassionate to people who really need our compassion.”

UPDATE: This piece has been updated to include new details about the First Focus program, including that the campaign will span eight states, up from three.