Portside

Late July, Tennessee Judge Sam Benningfield rescinded a program that would reduce jail sentences for inmates who agreed to undergo free birth control processes, either a Nexplanon implant or vasectomy, through the state health department. Following the announcement of the program in May, 32 women and 38 men had signed up for the program. Nobody underwent surgery prior to the cancellation of the program, and those who signed up will still be granted the 30-day credit.

The program was pulled after being described as “controversial” by media outlets—a stark mischaracterization. In fact, it was coercive, incentivizing individuals to trade in their reproductive freedom for reduced jail time. It is unequivocally a form of eugenics: an attempt to control who can bear and raise children.

Eugenic sterilization refers to the practice of using sterilization as a means of promoting certain “desirable” characteristics over others. Desirability, of course, is racially and economically coded. People of color, poor and rural people, disabled people, and immigrants have been the targets of eugenics research and policies used to justify violence against them, as well as used deceptively or without informed consent in order to develop birth control methods. The first oral contraceptive pill developed for use in the United States, for example, was tested on poor women and women of color, who were also often sterilized against their knowledge.

In his book, Not Quite White: White Trash and the Boundaries of Whiteness, Matt Wray details how poor and rural communities were often targeted by early eugenics practices in the United States. The poverty rate in White County, where Judge Benningfield serves, is more than 18 percent, higher than the national average. “Birth control” programs like Judge Benningfield’s in our current criminal justice systems will inevitably lead to the disproportionate sterilization of poor people in White County. And while the population of White County is 96 percent white, we do know that Black, Latino, and Native communities are overcriminalized in the state of Tennessee.

In a press statement released by the American Civil Liberties Union of Tennessee, Executive Director Hedy Weinberg said, “Offering a so-called ‘choice’ between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it.”

The United States has a shameful history of coerced and forced sterilization. In the 1900s, thousands of forced sterilization cases were documented in the United States, and programs were institutionalized in about 30 states.  While many women have opted for sterilization as a means of permanent contraception, many of these programs sterilized people in the name of “social welfare,” frequently without telling them the surgery was irreversible. In many cases, it was used as a form of social control, meant to punish women who were considered “sexually deviant,” as well as poor women and drug users.  

Activists rallied against sterilization across the country, developing coalitions to force politicians to address the issue. Organizations like the National Welfare Rights Organization (NWRO), Coalition for the Medical Rights of Women, Chicana Welfare Rights Organization, Bay Area Committee Against Forced Sterilization, the Committee for Abortion Rights and Against Sterilization Abuse, and the Committee to End Sterilization Abuse were integral in pushing back against the onslaught of sterilization policies across the country. Some states, such as North Carolina and Virginia, eventually paid reparations to victims of such policies.

The 1974 U.S. Supreme Court court case Relf v. Weinberger ruled against the coerced sterilization of welfare recipients and called upon what is now the U.S. Department of Health and Human Services to put in place restrictions to prevent the practice.

Still, thousands of people had been forced or coerced into sterilization with no justice.

We have continued to legislate who can bear children and why. This is most evident in U.S. social welfare policies. In the 1960s, welfare reform was adapted to include provisions for family caps, or limits to welfare funding that deny additional assistance for new children born into families already receiving benefits. In addition, women were threatened with the loss of their welfare benefits if they refused to be sterilized. The sole aim of such policies were to discourage women on welfare from having additional children, and the coercive practice of family caps still exists in states across the country today.

These social welfare policies fit into a broader pattern of legislation aimed at social control. For example, the birth control pill was originally only accessible to married women. It wasn’t until 1972 that birth control was ruled legal for unmarried people, as well. Additionally, the Aid to Families of Dependent Children (AFDC) provides benefits to impoverished children. Archaic “man-in-the-house” clauses attempted to strip children of those benefits if women were living with or even dating a man that could be considered a “substitute father.” These regulations intended to shame women who lived and had sex outside a conventional marriage—an attempt to control sexual behavior and sexuality. Attempts to provide AFDC subsidies for women who used long-acting reversible contraceptives (LARCs) were previously introduced across multiple states, with Washington even recommending mandatory proof of birth control use for AFDC eligibility in 1995.

For that matter, it wasn’t long ago that California had to explicitly pass a law banning forced sterilization in its prisons. A bill was passed in 2014 after reports that nearly 150 women were coercively sterilized through the California Department of Corrections and Rehabilitation between 2006 and 2010. The incident was a painful reminder of the state’s eugenics history; it had one of the most active sterilization programs in the country in the early 1900s.

So while the judge’s program was shockingly reminiscent of explicit eugenics and punitive sterilization laws in the past, it was also part of a dangerous trend of controlling the reproduction of marginalized and vulnerable communities that never actually ended.

In an official statement released by Judge Benningfield, he admitted that he intended the program to be mostly used by women to dissuade them from having children.

“The primary purpose in this was to try to reduce the number of children born drug dependant [sic] or suffering the consequences of in[-utero] drug exposure,” he stated. “I thought it would also reduce the number of children who would eventually wind up in foster care.”

The discussion of reproductive rights has often focused on the right to abortion and birth control. This recent program is a reminder that, for vulnerable communities, the right to have children and raise them to adulthood continues to be undermined. This reality is addressed by the reproductive justice framework—a major tenet of which is the right to have children and raise children, a concept previously neglected by so-called traditional reproductive rights organizations.

Judge Benningfield told reporters that the majority of crimes in White County are drug-related, as the county has been hit fairly hard by the opioid epidemic. His program was clearly motivated by his desire to dissuade drug users from having or raising children. The judge also offered a “two-day credit” for people who attended a program on neonatal abstinence syndrome, a treatable condition experienced by some newborns exposed to drugs in utero.

Painting the program as “controversial” obscures the reality: It is a form of eugenics where one judge determined that some people were more suited to have children than others. It is scary to think how far Judge Benningfield’s program was allowed to proceed, and what might have happened if it had not gained the attention of the media.

In a statement by SisterReach, a reproductive justice organization in Memphis, Tennessee, CEO and Founder Cherisse Scott supported the cancellation of the program, but warned about similar programs that currently exist across the state: “These [programs’] attempts are not centered in patient investment like expanding health care options, sexual health education or comprehensive contraceptive access. Instead, their programming preferences methods they deem most effective or suitable for people they classify as ineffective.”

It is also worth noting that Tennessee also has multiple abortion restrictions—from mandated counseling, wait periods, parental consent laws, and restrictions to public funding. Over 95 percent of its counties do not have clinics that provide abortion care. Tennessee was also where a woman was shackled while she went into labor and where Anna Yocca was jailed for trying to perform a self-induced abortion.

Taken in that context, Judge Benningfield’s program fit into a pattern of Tennessee legislation and policy that undermines pregnancy-related choices. While anti-abortion laws prevent them from choosing not to have children, forced sterilization attempted to restrict their ability to have children. The hypocrisy of this contrast reveals the reality: that overall, Tennessee leadership does not trust women, particularly women of color and poor women, to make decisions about their bodies and families.

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Aliya Khan is a political activist and freelance writer based in Minneapolis, Minnesota. She writes on issues of gender and race, particularly at the intersection of reproductive rights and justice. She holds an MS in Counseling, Family, & Human Services from the University of Oregon. You can reach her at @wrong_akhan or aliyajkhan2@gmail.com