VI. Legal Standards

International Legal Standards

Failures in the detention medical care system’s response to women’s health concerns implicate fundamental human rights, including international legal protections for the right to health, the right to non-discrimination, and the rights of detained persons. A number of these protections are enshrined in the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Elimination of All Forms of Racial Discrimination, treaties which the US has ratified. The right to health itself is articulated in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which the US has signed but not yet ratified.

The Right to Health

By restricting coverage of basic women’s health services, failing to ensure that appropriate care is delivered in a timely way, and paying insufficient attention to the manner in which services are delivered, ICE undermines the right to health of the women in its custody. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”[261] The US, as a signatory, has an obligation not to undermine the object and purpose of the treaty.[262] The US is additionally committed to protecting the right to health as a member of the United Nations under the Universal Declaration of Human Rights. The right to health is inseparable from provisions on the right to life and the right to freedom from degrading treatment that are included in the International Covenant on Civil and Political Rights and the Convention against Torture, both of which the US has ratified.[263]

The Committee on Economic, Social and Cultural Rights, the body charged with interpreting and monitoring the implementation of the ICESCR, has identified four essential components to the right to health: availability, accessibility, acceptability and quality.[264] The health care provided in US immigration detention is deficient in each of these areas. Availability refers to the existence of health services, personnel, and materials of a “sufficient quantity.”[265] ICE fails in this respect when women in custody seek professional services, such as therapy for mental health issues or other specialist care, and experience delays or denials due to medical staff shortages. In addition, the Committee’s assessment of availability looks at essential drugs as defined by the World Health Organization Action Programme on Essential Drugs. This list includes hormonal contraception, which is not part of the DIHS formulary. Moreover, the limitation on access to contraception infringes on what the Committee has identified as a freedom encompassed in the right to health: “the right to control one's health and body, including sexual and reproductive freedom.”[266]

Accessibility as an element of the right to health breaks down into four sub-parts: non-discrimination in access, physical accessibility, economic accessibility, and information accessibility. The Committee on Economic, Social and Cultural Rights has noted that the governmental obligation to respect the right to health includes "refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services."[267] The restricted scope of care available under the Covered Services package limits access to a range of such services for individuals in ICE custody. With respect to information accessibility, which includes the right to “seek, receive and impart information and ideas concerning health issues,”[268] ICE falls short when it impedes women’s access to their health records either by failing to transfer medical information between facilities or stonewalling records requests. Also, by omitting options counseling in its handling of pregnancy, ICE denies women access to information about the range of health services that are legally available to them.

Regarding the acceptability of health services, ICE has an obligation to ensure that the services it provides are “respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned.”[269] In the interviews Human Rights Watch conducted, the issue of acceptability emerged with inconsistencies in the use of translators for non-English speakers, in the sophistication of the assessment of women’s experience with violence, and in providers’ sensitivity to the impact of the detention environment on individuals. Further, breaches of confidentiality in the course of medication distribution and the use of security precautions that intruded on the privacy of exams and treatment raised questions around the observance of medical ethics.

ICE health care is also unsatisfactory in terms of quality. Under the Committee’s analysis, quality refers to the appropriateness of care by medical and scientific standards.[270] ICE policy diverges from standards of medical practice in the United States in its approach to certain basic women’s health services, including Pap smears and mammograms. In other areas, including services for nursing mothers, failures at the level of policy implementation prevent women from accessing care consistent with prevailing medical standards. In addition, by imposing few requirements for professional accreditation on its facilities, ICE removes itself from rigorous external evaluation of its operations that would help to monitor the appropriateness of the care available.

In addition to falling short on benchmarks of availability, accessibility, acceptability and quality, ICE’s performance on safeguarding women’s health is also problematic under other international legal standards. For example, the inconsistent care provided to pregnant women in ICE custody raises issues under article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, a treaty the US has signed but not ratified. Article 12 obligates governments to “ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”[271] Similar provisions regarding prenatal and postnatal care and support for breastfeeding appear in the Convention on the Rights of the Child, which the US has also signed but not ratified.[272]

Further, the Committee on the Elimination of Discrimination against Women recommends, as one step toward assuring women equal access to health care, that governments “establish or support services for victims of family violence, rape, sex assault and other forms of gender-based violence, including refuges, specially trained health workers, rehabilitation and counselling.”[273]

The Right to Non-Discrimination

Non-discrimination represents a central principle of international human rights law.[274] As a party to the International Covenant on Civil and Political Rights (ICCPR), the US is obligated to guarantee effective protection against discrimination.[275]The Convention on the Elimination of All Forms of Discrimination against Women specifically mandates that states take action to “eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to healthcare services, including those related to family planning.”[276] While both men and women may experience deficiencies in the medical care provided by ICE, certain deficiencies are discriminatory due to the disproportionate impact they have on women. The lack of coverage for family planning methods affects both sexes, but women are particularly affected because the lack of services places them at risk of unintended pregnancy, along with its accompanying health risks and many other profound consequences. Further, women may be disproportionately affected by the limitations on preventive and routine reproductive health care, for which women generally have greater needs.[277]

The Rights of Individuals Deprived of their Liberty

Women taken into the custody of immigration authorities do not lose their fundamental rights. The International Covenant on Civil and Political Rights obligates states to ensure that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”[278] This, the UN Human Rights Committee has explained, entails a positive obligation to see that those individuals suffer no “hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment.”[279]

There is no doubt that both the humiliating treatment of women in ICE custody, and the lack of access to routine health services are far from unavoidable, and can be traced to policy choices well within the power of the government to change. Human Rights Watch’s investigation revealed that the treatment of women in ICE custody is often humiliating and at times crosses the line into cruel, inhuman, and degrading treatment. Unnecessary use of restraints and strip searches, arbitrary restrictions on sanitary supplies, and insufficient privacy during medical examinations undermine the dignity of women in detention. The right to a basic level of healthcare in detention is fundamental to maintaining human dignity and too often is not afforded to women in ICE custody.

Addressing a concern specific to women in detention, the Human Rights Committee has advised states that “Pregnant women who are deprived of their liberty should receive humane treatment and respect for their inherent dignity at all times, and in particular during the birth and while caring for their newborn children; States parties should report on facilities to ensure this and on medical and health care for such mothers and their babies.”[280] In this respect, ICE’s policy permitting shackling of pregnant women is at odds with a growing international consensus against the use physical restraints on women during pregnancy, delivery, and the immediate postnatal period. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has described pregnant women being shackled or otherwise restrained as “completely unacceptable, and could certainly be qualified as inhuman and degrading treatment.”[281] The Human Rights Committee commented on the continuation of this practice in the United States in its concluding observations to the country’s second and third periodic reports in June of 2006 and recommended that the government “prohibit the shackling of detained women during childbirth.”[282]

Finally, ineffective grievance procedures and the Department of Homeland Security’s failure to convert the ICE detention standards into enforceable regulations impede detainees in enforcing their rights. The ICCPR, article 2.1, requires that states parties undertake to “ensure” the Covenant’s rights to all persons within their territory. Without an effective remedy for the violation of the right to dignity, the enjoyment of the right cannot be guaranteed. The Human Rights Committee, which interprets the ICCPR and evaluates state compliance, has urged states to specify in their reports whether individuals in detention “have access to such information and have effective legal means enabling them to ensure that those rules are respected, to complain if the rules are ignored and to obtain adequate compensation in the event of a violation.”[283]

Defining a standard of care

The basic international healthcare standard for individuals in state custody is that such persons are entitled to at least comparable services and care as those who are at liberty. The principle of equivalence, articulated in the Basic Principles for the Treatment of Prisoners, adopted by the UN General Assembly in 1990, holds that:

Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants... Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.[284]

According to the UN principles on the ethical responsibilities of healthcare providers, health professionals should provide individuals imprisoned or detained with the same quality and standard of care as those who are not imprisoned or detained.[285] This suggests that the appropriate standard for DIHS should be a level of physical and mental health care equivalent to that available in the community, a bar much higher than the standard embodied in the Covered Services Package or even the new ICE medical standard.[286]

Domestic Legal Standards

The US Constitution establishes a right to medical care for individuals in government custody. The eighth amendment prohibition on cruel and unusual punishments entitles individuals convicted of crimes to medical care. However, since immigration detention is not punitive, the right to medical care for individuals held by ICE derives from the fifth amendment, which states that no person shall “be deprived of life, liberty, or property, without due process of law.”[287] Despite the difference in constitutional origin, the rationale behind both protections lies in the custodial responsibility assumed by the state when it deprives the individual of liberty:

[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.[288]

The government does not escape this duty when it engages a contractor to provide detention services. The US Supreme Court has held that “Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights.”[289]

In addition, the scope of the protection for individuals held by ICE in civil custody may exceed that afforded to convicted individuals. The Ninth Circuit Court of Appeals has held that an individual confined awaiting adjudication under civil process cannot be punished and that punishment occurs where “the individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held.”[290] Thus, as another court held, “persons in non-punitive detention have a right to ‘reasonable medical care,’ a standard demonstrably higher than the Eighth Amendment standard.”[291] However, in the absence of case law specific to immigration, applications of the eighth amendment protection provide guidance on at least the very minimum that the constitution requires ICE to provide.

In Estelle v. Gamble, the landmark case defining custodial responsibility for medical care, the US Supreme Court held that the eighth amendment prohibits “deliberate indifference” on the part of detention authorities to a “serious medical need” of a prisoner in their custody.[292] Federal courts have had several occasions to apply the Estelle standard to specific women’s rights concerns and, in some cases, reached differing results. The entire US Court of Appeals for the Eighth Circuit has granted a rehearing to determine the constitutionality of shackling a woman during labor, after a three-judge panel of that court held that the practice did not constitute deliberate indifference to her serious medical need.[293] The US District Court for the District of Columbia has already banned the practice, holding that shackling during labor and shortly thereafter is “inhumane” and constitutionally impermissible.[294] In the area of abortion rights, the US Court of Appeals for the Third Circuit has recognized access to elective, non-therapeutic abortions as a serious medical need.[295] While disagreeing with the finding of a serious medical need, the Eighth Circuit nonetheless invalidated a ban on transporting incarcerated women for abortion on the basis of its unreasonable restriction on a woman’s right to abortion under the fourteenth amendment.[296] The obligation to ensure that incarceration does not force a woman to forfeit her constitutional right to abortion has also been interpreted to include ensuring access to funding for the procedure.[297]

In a notable 1994 case, the US District Court in the District of Columbia found that inadequate obstetrical and gynecological care at a correctional treatment facility violated the division of the DC Code governing the treatment of prisoners, which the court described as a codification of the common law rule that prison officials have a duty of reasonable care in the protection and safekeeping of individuals who are imprisoned. Stating that “in the area of medical care, physicians owe the same standard of care to prisoners as physicians owe to private patients generally,” the court found that inadequate gynecological examination and testing, STD testing, follow up care, health education, and prenatal care violated the law.[298]