By Eunice Cho, ACLU Senior Staff Attorney

As cases of COVID-19 in immigration detention facilities have exploded in recent months, Immigration and Customs Enforcement (ICE) has continued to argue that it has done all that it possibly can to manage this crisis. A new report by the Department of Homeland Security’s Office of Inspector General (OIG) — the department’s oversight body — however, sheds new light on ICE’s failure to do so, and the continued danger faced by detainees and detention staff alike.
 
Notably, the OIG’s report is based purely on surveys of ICE personnel themselves, without actual inspections of facilities or any interviews with detainees, as is typically expected for such investigations. But even with this limited set of self-reported data, the OIG’s report provides startling insight into ICE’s failure to control the spread of COVID-19 in detention — and the fears of ICE’s own personnel regarding their inability to address outbreaks in individual facilities.
 
Since the start of the pandemic, ICE has claimed in court filings that the low number or lack of confirmed COVID-19 cases in specific facilities suggests that the problem is under control in detention. But contrary to the logic of the Trump administration, less testing does not mean fewer cases, and the OIG’s report reveals for the first time the scope of ICE’s failure to provide adequate testing. Even with demonstrated under-testing of people in detention, almost 2,500 people in ICE detention have tested positive for COVID-19 since the start of the pandemic.
 
According to the OIG, 70 percent of all ICE detention centers nationwide reported that they had not tested any detained people for COVID-19. As of late May 2020, ICE had just over 2,000 testing kits available on-site at detention facilities, although ICE detained over 25,000 people. The report also notes that there is no consistent national standard or clear guidance for detention staff to decide whether to test a detainee for COVID-19. Even absent a consistent national standard, ICE also admitted that at least 20 detained people who met local protocols for testing failed to receive COVID-19 tests.
     
The OIG’s report also reveals ICE personnel’s own admission of the impossibility of controlling a COVID-19 outbreak at the facility, and the dire consequences that an outbreak would have. Detention facilities admitted that they lack adequate expertise, personnel, and equipment in case of a COVID-19 outbreak. As one ICE facility reported, “We do not have any medical staff. If any detainee tests positive for COVID-19 we will have to shut down the detention facility . . . we do not have the medical capacity to house anyone with COVID-19.”
 
Other ICE facilities noted the impossibility of having enough personal protective equipment needed in case of an outbreak: “If an outbreak were to occur the stock of [protective equipment, including masks] would be depleted. We have been attempting to acquire additional equipment for weeks, however as most are aware this is difficult given the high demand.”
 
ICE facilities also admitted their inability to practice social distancing in detention, or to adequately quarantine people suspected or confirmed to have COVID-19. “The nature of detention facilities makes social distancing impractical, as detainees are housed together in dorm-like pods, some with as many as 50 to 75 detainees in each pod. Additionally, most detention centers have few means to isolate large numbers of detainees.”
 
More than one-third of detention facilities reported not having enough hand sanitizer for detained people to use. More than half of facilities stated that they do not have the space to quarantine or isolate detained people who are suspected or confirmed to have COVID-19, and almost two-thirds of facilities had none, or less than two “negative pressure rooms” — medical rooms with closed ventilation systems to isolate airborne infections.
 
The danger of an outbreak is imminent: Since the start of the pandemic, three detained people and five guards have lost their lives to COVID-19, and an unknown number have become seriously ill and have been hospitalized due to the virus. Despite this threat, the OIG found that less than 20 percent of ICE’s detention facilities had released people to mitigate the danger of COVID-19. According to ICE data, facilities released only 1,137 detainees of the approximately 25,000 people in ICE custody from March 17 to May 5, 2020, due to reasons related to COVID-19.
 
The OIG reports that this is only the first stage of its investigation of ICE’s efforts to prevent and mitigate the spread of COVID-19 in its facilities, which is a positive step. The OIG should also investigate ICE’s continued transfer of detainees between facilities, a widespread practice that flies in the face of CDC guidance.
 
Further, the OIG should investigate the number of detained people hospitalized as a result of COVID-19, and the number of people who, upon deportation, have tested positive for COVID-19, so that the public can understand the full scope of the crisis. Deporting people who have been exposed to and contracted a deadly virus in the U.S. is not only unethical, but potentially disastrous for global public health, and we have good reason to believe that has become regular protocol.
 
In the meantime, ICE must quickly act to release people from detention, including those who are medically vulnerable to COVID-19. This is the only way to prevent certain death — of detained people, ICE staff, and people in the communities they return home to.
 

By Michele Goodwin, ACLU Chancellor's Professor of Law

In 1851, Sojourner Truth delivered a speech best known as“Ain’t I A Woman?” to a crowded audience at the Women’s Convention in Akron, Ohio. At the time, slavery remained in full force, a vibrant enterprise that fueled the American economy. Various laws protected that system, including the Fugitive Slave Act, which resulted in the abduction of “free” Black children, women, and men as well as those who had miraculously escaped to northern cities like Boston or Philadelphia. Bounty hunters then sold their prey to Southern plantation owners. The law denied basic protections for Black people caught in the greed-filled grasps of slavery.
 
Ms. Truth condemned this disgraceful enterprise, which thrived off not only uncompensated labor, but also physical and psychological terror. Most will remember Ms. Truth’s oration for its vivid descriptions regarding physical labor; Black women were forced to plough, plant, herd, and build — just as men. Yet far too little attention centers on her condemnation of that system, which made sexual chattel of Black women, and then cruelly sold off Black children. This was human trafficking in the American form, and it lasted for centuries. Ms. Truth pleaded:
 
“I have borne 13 children, and seen most all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?”
 
Following the Supreme Court’s decision in June Medical Services v. Russo this week, it is worth reflecting on the racist origins of the anti-abortion movement in the United States, which date back to the ideologies of slavery. Just like slavery, anti-abortion efforts are rooted in white supremacy, the exploitation of Black women, and placing women’s bodies in service to men. Just like slavery, maximizing wealth and consolidating power motivated the anti-abortion enterprise. Then, just as now, anti-abortion efforts have nothing to do with saving women’s lives or protecting the interests of children. Today, a person is 14 times more likely to die by carrying a pregnancy to term than by having an abortion, and medical evidence has shown for decades that an abortion is as safe as a penicillin shot—and yet abortion remains heavily restricted in states across the country.
 
Prior to the Civil War, abortion and contraceptives were legal in the U.S., used by Indigenous women as well as those who sailed to these lands from Europe. For the most part, the persons who performed all manner of reproductive health care were women — female midwives. Midwifery was interracial; half of the women who provided reproductive health care were Black women. Other midwives were Indigenous and white.
 
However, in the wake of slavery’s end, skilled Black midwives represented both real competition for white men who sought to enter the practice of child delivery, and a threat to how obstetricians viewed themselves. Male gynecologists claimed midwifery was a degrading means of obstetrical care. They viewed themselves as elite members of a trained profession with tools such as forceps and other technologies, and the modern convenience of hospitals, which excluded Black and Indigenous women from practice within their institutions.

History would later reveal that it was literally on the backs of Black women’s bodies that such tools were developed. Dr. Marion Sims famously wrote about his insomniac-induced “epiphanies” that stirred him to experiment on enslaved Black women, lacerating, suturing, and cutting, providing no anesthesia or pain relief. Only recently have the terrors that Black women endured through nonconsensual experimentation by gynecologists of the 19^th and 20^th centuries been acknowledged.
 
Successful racist and misogynistic smear campaigns, cleverly designed for political persuasion and to achieve legal reform, described Black midwives as unhygienic, barbarous, ineffective, non-scientific, dangerous, and unprofessional. Dr. Joseph DeLee, a preeminent 20^th century obstetrician and fervent opponent to midwifery, stated in a much-quoted 1915 speech, “Progress Toward Ideal Obstetrics”:

The midwife is a relic of barbarism. In civilized countries the midwife is wrong, has always been wrong … The midwife has been a drag on the progress of the science and art of obstetrics. Her existence stunts the one and degrades the other. For many centuries she perverted obstetrics from obtaining any standing at all among the science of medicine … Even after midwifery was practiced by some of the most brilliant men in the profession, such practice was held opprobrious and degraded.

At the root of these stereotypes were explicit efforts to destroy midwifery and promote white supremacy. As the surge of lynchings, “separate but equal” laws, police violence, and the decimation of successful Black communities during Jim Crow revealed, Black Americans post slavery suffered greatly due to white supremacy, as did Chinese and Japanese workers and their families. Indeed, the racist campaigns launched by doctors against Black midwives extended to anti-immigration legislative platforms targeted at Chinese and Japanese workers. The Page Act, which restricted Chinese women from entering the United States, is a part of this shameful legacy. This broader 20^th century anti-Chinese campaign became known as “yellow peril.” DeLee and Horatio Storer urged white women to “spread their loins” across the nation,  a dog whistle about the threat of too many Blacks and Asians in the U.S. 
 
Gynecologists explicitly revealed their motivations in undermining midwifery: They desired financial gains, recognition, and a monopoly. As Dr. DeLee wrote in a 1916 article published in the American Journal of Obstetrics & Disease of Women & Children, “There is high art in obstetrics and that it must pay as well for it as for surgery. I will not admit that this is a sordid impulse. It is only common justice to labor, self-sacrifice, and skill.” They believed that men should be paid, but not women — particularly not Black women.
 
To better understand racial injustice in the anti-abortion movement, remember that American hospitals barred the admission of African Americans both in terms of practice and as patients. And, the American Medical Association (AMA) barred women and Black people from membership. The AMA, founded in 1847, refused to admit Black doctors, informing them, “You come from groups and schools that admit women and that admit irregular practitioners.” For this reason, Black doctors formed the National Medical Association in 1895.
 
In 2008, the organization issued a public apology for its active campaigns to close Black medical schools, deny Blacks membership, and other efforts to marginalize Black patients and practitioners. 
 
Gynecologists pushed women out of the field of reproductive health by lobbying state legislatures to ban midwifery and prohibit abortions. Doing so not only undercut women’s reproductive health, but also drove qualified Black women out of medical services. For these groups, there was no meaningful path to the formalized skill set DeLee claimed necessary.
 
Abortion was an expedient way to frame their campaign to create monopolies on women’s bodies for male doctors. The American Medical Association explicitly contributed to this cause through its exclusion of women and Black people.
 
Today, as people debate whether anti-abortion platforms benefit Black women, the clear answer is no. The U.S. leads the developed world in maternal and infant mortality. The U.S. ranks around 50^th in the world for maternal safety. Nationally, for Black women, the maternal death rate is nearly four times that of white women, and 10 to 17 times worse in some states.
 
In the wake of both Whole Woman’s Health and June Medical Services v. Russo, keep in mind that both Texas and Louisiana, where these cases originated, are considered the deadliest in the developed world for a woman to give birth.
 
Sadly, pregnancy has become a death sentence for many in the very places that make reproductive health care access the most fraught and hard to reach. Many of these states (though not all) are former slave states, such as Texas, Louisiana, Mississippi, Alabama, and Arkansas. As Black people in these states continue to fight for equal access the reproductive care they need, Sojourner Truth’s 1851 speech continues to resonate. And as the Supreme Court demonstrated this week, the fight for justice in reproductive health care and equality in abortion access is far from over. The decision does not advance the equality of poor Black women — it maintains all other burdensome restrictions already in place. We have much more work to do such that not only DeLee’s words, but also his racist and exploitative viewpoints, are relegated to history.

By Heather L. Weaver, ACLU Senior Staff Attorney

Today, in an unprecedented decision, the Supreme Court ruled that the state of Montana must provide funding for religious education as part of its school voucher tax credit program — despite the fact that the Montana Constitution forbids government aid for religious education and activities. The court’s opinion in Espinoza v. Montana Department of Revenue marks an alarming sea change in the law and calls into question the continued validity of similar provisions in dozens of other state constitutions, which aim to prohibit government funding for religious institutions.
 
The Supreme Court has held that school vouchers for religious education are permissible under the First Amendment because, according to the court, the aid is indirect, meaning it is not provided directly to schools but instead funneled to individual students and families who then decide which schools to attend. However, the court has also recognized that state constitutions can, and often do, provide stronger protections than the federal Constitution against government funding of religion.
 
Today’s decision disregards that longstanding precedent and will be detrimental to both religious freedom and public education: The court’s ruling could effectively mean that, when states offer school vouchers or similar funding involving indirect aid — such as Montana’s tax credit scholarship program — they now must extend the aid to religious schools, too. This is despite the fact that millions more in government funds will be diverted from public schools as a result, and taxpayer dollars will be used to support religious indoctrination and training for future religious leaders and adherents. This also means that the government will fund discrimination against minority-faith and LGBTQ students and job applicants, as well as students and prospective employees with disabilities, whom many religious schools refuse to admit or hire. Indeed, earlier this year, the court heard arguments in two cases that could expand the ability of religious schools — the very same ones that often receive voucher funding — to discriminate in hiring and firing based on any ground the schools want, including race and ethnicity.
 
With today’s ruling and its 2017 decision in Trinity Lutheran v. Comer allowing — for the first time ever — direct funding of a church as part of a playground resurfacing program, the Supreme Court appears to be marching toward a legal paradigm that would virtually destroy a fundamental principle on which the Establishment Clause of the First Amendment was built. As James Madison, the architect of the First Amendment, explained, even “three pence” in compelled aid to religion was too much of a threat to religious liberty. Madison believed that forcing individuals to financially support religion was a direct assault on the fundamental human right of freedom of conscience. He and the other framers also worried that taxpayer funding of religion would weaken religious institutions by making them dependent on the government aid and engender religious divisiveness.
 
Dozens of states, including Montana, took Madison’s concerns seriously. They enacted constitutional provisions like Montana’s to protect their taxpayers’ consciences when it comes to matter of faith, preserve the vitality of their public school systems, respect religious institutions’ autonomy, and facilitate peaceful religious pluralism in their communities. But increasingly, the Supreme Court appears not to care about these values. Instead, religious freedom these days goes only one way — in favor of religious institutions and against the separation of church and state.