As a direct result of the immense courage of our clients and three years of litigation, the Trump administration has officially abandoned its policy of preventing young immigrants in its custody from accessing abortion care. Yesterday, the administration adopted a new policy that prohibits Office of Refugee Resettlement (ORR) staff and staff employed by any ORR-funded shelter from blocking or interfering with unaccompanied pregnant minors’ access to abortion. ORR’s adoption of this new policy was a condition of our agreement to dismiss our case, which we have done today.

It was three years ago that our heroic client Jane Doe — who at the time was 17 and was seeking refuge in the United States on her own — took on the Trump administration. In September 2017, we learned that ORR was trying to stop Ms. Doe from having an abortion through her fierce guardian ad litem, Rochelle Garza, and Texas-based Jane’s Due Process. 

Pursuant to the orders of then-ORR Director Scott Lloyd, Ms. Doe was effectively held hostage in the shelter where she was residing for over a month. The federal government prevented her from leaving the shelter to attend any abortion-related appointments; forced her to undergo a medically unnecessary ultrasound and to receive religious “counseling” from an anti-abortion crisis pregnancy center, where they also prayed over her; and she was kept under intensive surveillance. Lloyd also instructed staffers to inform Jane Doe’s parents of her pregnancy and abortion request against Ms. Doe’s express wishes, and despite the fact that she had already obtained a court order permitting her to proceed with her abortion without involving her parents.

We rushed into court on behalf of Ms. Doe, and after weeks of court battles, obtained a court order allowing her to access abortion. Since then, we have fought alongside Ms. Doe and on behalf of our other plaintiffs, Jane Poe, Jane Roe and Jane Moe, who were also subjected to ORR’s coercive, anti-abortion tactics, to stop the federal government from commandeering the reproductive decisions of all young immigrants in its custody. Today, we are able to proudly declare that justice has finally been served.

Our success is especially meaningful for Ms. Doe, who fearlessly represented hundreds of others to ensure that what happened to her would never happen to anyone else. In response to our victory, she said, “I am happy to know that my fight means that other young women like me will be able to make the decision about whether to become a parent for themselves.”

We are certainly taking a moment to celebrate, but the fight for Ms. Doe’s vision of “reproductive freedom for all” is far from over — including for others currently in immigration detention. Indeed, the recent allegations from the Irwin County Detention Center that a government-contracted doctor performed unwarranted gynecological procedures on women in ICE detention are very disturbing, especially in light of our country’s long history of forcibly sterilizing Black and Brown people. These reports follow
years of reproductive abuse by this administration of those in immigration detention.
       
In states across the country, the right to reproductive freedom is also in peril. Anti-abortion politicians have not slowed down, even during a global pandemic. Many states tried to weaponize the COVID-19 crisis to prohibit abortion under the guise of protecting public health, a terrifying preview of what would happen if Roe v. Wade were overturned. And with the devastating passing of Justice Ruth Bader Ginsburg, the balance of the Supreme Court could soon be shifted against the constitutional right to abortion. In light of President Trump’s vow to only appoint justices that would overturn Roe v. Wade, it is no exaggeration to say that the future of legal abortion is at stake.

So, we celebrate with one eye on the Supreme Court, and the other on the road ahead. We’ll continue to fight for access to reproductive health care for people in federal custody and beyond to ensure that the Jane Doe’s victory does not become hollow and her vision for the future is realized: that all people are able to access reproductive health care, including abortion, without obstacles, shame, or stigma.

Brigitte Amiri, Deputy Director, ACLU Reproductive Freedom Project,
& Meagan Burrows, Staff Attorney, ACLU Reproductive Freedom Project

George Washington University law student Dorea K. Batté saw the texts, missed calls, and voicemails pour into her phone by the hundreds. When she blocked the number they were coming from, her stalker found a way to use different numbers to contact her. She kept blocking the numbers; he kept reaching her using new ones. Feeling helpless and overwhelmed and after warning her stalker twice to stop contacting her — to no avail — Batté finally went to her law school’s Title IX office to get help. As a reminder, Title IX is the federal law that prohibits sex discrimination — including sexual harassment — in education.

Batté wasn’t trying to get anyone in trouble; she just wanted the harassment to stop. So when her school offered a non‑disciplinary solution to her Title IX complaint — a mutual no-contact order, where neither student could interact with the other — she gladly accepted.

The order was informal, requiring nothing more than agreement by both parties. It involved no disciplinary proceedings and no disciplinary findings. Batté was assured that the “administrative order” did not go into her academic record or appear otherwise in anything that would show up in a background check. The no-contact order worked: Batté had no further problems with the other student.

Unfortunately, the same can’t be said for Batté’s interactions with GW. After applying for admission to practice as an attorney in 2020, Batté learned the university reported to the D.C. Bar that Batté had a disciplinary record: the no-contact order that she had sought to continue her legal education harassment‑free. Suddenly, Batté’s bar admission was in jeopardy, given the “character and fitness” portion of the process. The university also put a hold on releasing Batté’s transcript.

University administrators declined to fix the problem they created — and one they had promised Batté wouldn’t happen from the start. Instead a GW administrator admitted that she “understood how the complaint started.” Yet she remarkably stood by her bar report, only telling Batté that she was free to “provide whatever explanation you believe to be appropriate to the D.C. Bar.” Batté was shocked that her law school had effectively recast her as a wrongdoer for doing nothing more than trying to continue her education free from harassment.

Only when the ACLU of the District of Columbia got involved did GW finally write to the bar to clarify that a no-contact order is not a “disciplinary” action — not for students accused of wrongdoing, who have yet to go through a fair investigative process, and most certainly not for complainants, who have been accused of no wrongdoing at all.

Despite this seemingly happy ending, Batté’s experience continues to present a cautionary tale. When the ACLU-D.C. asked GW to reform its reporting process to prevent future students from suffering adverse consequences for invoking Title IX, the school would not commit. In a recent story about Batté’s experience, a GW spokesperson told a reporter, “Mutual no-contact orders are not disciplinary actions, they are not reported to third parties as disciplinary actions, and they are not listed as a sanction on university conduct records.” This was news to us.

It is unclear whether this isolated statement, given in response to a media request and unaccompanied by any formal policy document, represents a concrete change in GW policy or an empty talking point in response to negative publicity. Accordingly, future Title IX complainants or respondents could suffer the same consequences for agreeing to what they were led to believe was a non-disciplinary course of action. There is no telling how many students at GW — and at an untold number of other schools — are still saddled with undeserved disciplinary records for trying to have a harassment-free education.

The new Title IX regulations released by the U.S. Department of Education in May of this year — which went into effect last month — place a heavy emphasis on the availability of supportive measures for complainants and respondents alike. The rule touts mutual no-contact orders as one possible supportive measure that, depending on the circumstances, may be used as an accommodation that does not punish the respondent. But if schools use mutual no-contact orders to punish the complaining student, it will not only fail as an accommodation; it will also chill complainants from reporting harassment at all.

While the ACLU and ACLU-D.C. take issue with several key parts of the new rule — and in fact the ACLU has brought a challenge to those provisions in court — we agree with the DOE that access to supportive measures is of utmost importance for many survivors. However, these supportive measures can’t be used to penalize complainants for invoking their civil rights under Title IX — which is exactly what GW’s policy does.  
Policies and practices like GW’s serve a retaliatory function that flies in the face of the purpose of Title IX — a law meant to ensure students’ equal access to education, regardless of their sex. Protocols like GW’s chill students from reporting sexual harassment. In turn, survivors who are unable to access needed accommodations and formal investigatory mechanisms suffer psychologically and academically.

The fact that schools punish survivors for experiencing and reporting sexual harassment and assault is tragically
not new. The problem is particularly common and devastating for Black women and girls, who are more likely than their white peers to be punished when seeking school support. Because of insidious racial and sex stereotypes, school administrators more often minimize Black survivors’ harms and assign them blame for the misconduct reported. These reactions exacerbate the already severe underreporting of gender-based harassment and violence.

Parts of the new Title IX regulations already serve as major deterrents from seeking help for students who have experienced sexual harassment and assault. Schools should take care not to impose additional roadblocks to students’ access to education by recasting seeking assistance as misconduct.
GW and all schools should publicly commit and memorialize in writing that they will not report voluntary mutual no-contact orders as “disciplinary action,” or otherwise penalize their students for using their Title IX resources to receive an education free from sex discrimination.

Scott Michelman, Senior Staff Attorney, ACLU of the District of Columbia,
& Rebecca Ojserkis, Fellow, Women’s Rights Project, ACLU

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