Abstract

Excerpted From: Steffi Colao, “Loathsome and Dangerous”: Time to Remove Syphilis and Gonorrhea as Grounds for Inadmissibility, 71 UCLA Law Review 420 (April, 2024) (248 Footnotes) (Full Document)

During the COVID-19 pandemic, the Trump administration seized the chance to enact bold, sweeping border closures. President Donald Trump declared a public health emergency and used those emergency powers to block the entry of (some) migrants. The government quickly instated COVID-19 travel bans for certain countries, beginning with China and Iran. Under the cover of the pandemic, the Trump administration even suspended the entry of immigrants who it claimed might jeopardize U.S. economic recovery. The longest closure was the invocation of Section 265 of Title 42, a little-used provision in the Public Health Service Act that authorizes the director of the U.S. Centers for Disease Control and Prevention (CDC) to block the entry of individuals when there is a “serious communicable disease threat.” Trump enacted Title 42 at the Mexico and Canadian borders, but nearly all expulsions were at the southern border. The invocation of Title 42 was clearly a transparent ploy to curb migration, under the guise of a health emergency.

When President Joseph Biden took office less than a year later, his administration enacted a similar travel restriction. Biden also initially kept Title 42 in place, over protests that the policy was plainly racist. A federal judge blocked enforcement of Title 42 as an “arbitrary and capricious” invocation of the Public Health Service Act, because of the tenuous connection between migration and the pandemic, and the policy's devastating impact on migrants. A few months later, Biden tried to end Title 42--over a year after its implementation--but then a different federal judge blocked the order because of the “irreparable harm” it would cause states to provide healthcare for migrants. The Title 42 restriction finally expired in May 2023, over three years later, with the end of the declared public health emergency. By its end, the policy authorized 2.7 million expulsions at the Mexico border alone, while other points of entry remained relatively open.

This invocation of Title 42 was a clear example of the U.S. government using bad-faith public health arguments to enact discriminatory border restrictions. The advocacy and outcry brought popular attention to the intersection of health policy and immigration, particularly the way the government can use the two to achieve racist exclusions.

The weaponization of health authority to selectively exclude migrants is not new. The United States has long managed its borders and population through health-based exclusions that serve as proxies for race. The use of security logic to shape health policy is called “health security.” In the United States, national security and health security often work in tandem, as the U.S. government frequently invokes concerns over public health during national security crises. That is, public health initiatives often work within national security frameworks and adopt or mirror many of the same rhetorical tactics, such as the concept of preempting health (much like security) threats. For example, health security mimics national security in the reasoning that individuals must relinquish certain rights due to policies to remove security risks. Thus, health security describes the U.S. government's investments in defensive measures against internal and external health threats.

The specific health security projects in this Comment occur on the border, where the U.S. government justifies exclusions as protections against external health threats. This spatial strategy relies on the assumption that diseases can be restricted through policy at political borders. Though recent outbreaks, including SARS, swine flu, Ebola, and Zika, highlighted the futility of trying to confine communicable diseases into state boundaries, national and international efforts still focus on containing disease by managing the movement of people across borders. Polly Price recognized how “[t]he fear of the global spread of pandemic diseases ... compels governments to emphasize national security at their borders.” Written before the COVID-19 pandemic, Price's words have only become truer as many countries, including the United States, initiated travel bans, ceased visa admissions, and implemented widespread vaccination requirements to manage the early stages of the pandemic.

In this Comment, I clarify that health cannot be achieved by individual--or population--based border policing. To do so I develop a critique of what I term border health security: the efforts, policies, and rhetoric focused on ensuring national health through the management of bodies at the border. Border health security refers to the way health policy is instrumentalized to implement a series of narrow and nativist protective measures, such as the exclusion, examination, or incarceration of individuals at the border. While health security encompasses the variety of the ways a state engages in health defense, border health security specifically concerns government efforts taken in pursuit of the fiction that health risks can be stopped at state lines. The policing of health risks at the border reinforces U.S. government efforts to make the border a real barrier between the United States and the outside world. The policing of these health risks is incomplete and inconsistent, where the border is permeable for individuals considered less risky (like citizens or European tourists). In that sense, the border becomes a greater boundary for certain groups of people perceived as posing certain risks (like refugees). When the U.S. government selects people for increased scrutiny or requirements because they belong to a risk group or come from a particular place, the government fortifies the boundaries of who gets to be part of the United States.

My approach to the concept of border health security is informed by geography. Disease geography scholars have long pointed to the discriminatory and dangerous implications of popular rhetoric that locates disease in certain places or in people from those places. The United States portrays its border as a barrier to unhealthy or risky places, and it uses border health security interventions like medical examinations as a way to prevent unhealthy or risky bodies from infecting the state. The United States classifies certain groups as more dangerous to its health security, much like it does in national security projects. Border health security relies on seemingly medically objective calculations of risk as a basis to manage, screen, exclude, and incarcerate certain groups at the border, which creates (by design or effect) discriminatory racial impacts. From early immigration health screening to current COVID-19 restrictions, the United States has a long history of implementing racist, xenophobic health policies at the border. However, despite occasional outcries over discriminatory measures like Title 42, one of the most widespread programs--the mandatory medical examinations of migrants--has received little challenge.

In this Comment, I focus on mandatory medical examinations, specifically the screening for syphilis and gonorrhea, two sexually transmitted infections (STIs). The premise of border health security relies on racial, gendered, and geographic othering, which becomes clear by analyzing mandatory STI screening, one of the United States's most enduring border health security measures. Despite being common and treatable infections, syphilis and gonorrhea are the only STIs that render certain noncitizens inadmissible for entry into the United States. This might be surprising: there are many other STIs, so it is perhaps unclear why these two are the only inadmissible ones or why noncitizens can be excluded for having an STI that is prevalent in the United States. Granted, this policy rarely results in exclusions. Nevertheless, it merits study for three reasons. First, as exemplified by Title 42, legal authorities that lay dormant for extended periods remain available to the federal government as sources of power in unpredictable moments. Second, the government's uneven approach to syphilis and gonorrhea on the border has no scientific justification. Third, this selective STI screening requirement is the product of longstanding eugenic and racist discourses around sexual health, sexual immorality, desirability, and population control. I interrogate STI screening to reveal the medical examination as a nonsensical and discriminatory immigration policy.

In Part I, I look at the current STI screening requirement to show how the current system has burdensome effects on migrants and how the policy is not grounded in legitimate public health understandings. I describe the status of Class A and B conditions in immigration regulation as of 2023. Next, I look at the impact of a Class A or B notification, as well as the impact of the examinations in general, on applicants. Finally, I assess the prevalence of syphilis and gonorrhea Class A and B notifications, the consequences of such diagnoses, and the ways STI screening affects all applicants.

In Part II, I discuss the origins of U.S. government management of health within immigration policy, particularly sexual health, to explain how this screening requirement originated. I show how health-based exclusions developed alongside race-based exclusions in immigration policy, as well as how the eugenic movement influenced both immigration law and sexual health management in ways that can still be seen in STI screening. I highlight the history of the authority for medical examinations for inadmissibility grounds, looking at how this public health mandate has been used to implement violent and discriminatory sexual health interventions at and across the border. I argue that the history demonstrates that mandatory STI screening is a legacy of xenophobic immigration policies and racist eugenic policies, in which STI-based exclusions serve joint functions of population selection.

In Part III, I recommend removing STI screening from the immigration process. I provide a brief theoretical framework to clarify how present screening practices are inextricable from their roots in eugenics. I conclude that contemporary STI screening works only as a tool of racist border health security policies, perpetuating xenophobic logics entrenched in the U.S. immigration system.

[. . .]

In this Comment, I have shown that the requirement of STI screenings at the border is unjustifiable and impossible to disentangle from its origins in eugenic governance and xenophobia.

As health emergencies become more common, it is important to examine the assumptions underlying invocations of public health within U.S. border policy. While some border health security projects have become hotly contested and politically salient, the examinations and exclusions for syphilis and gonorrhea have received little public attention. They remain a longstanding element of U.S. border legislation. Categorizing STIs as disqualifying medical conditions represents racist anxieties about the perceived (hyper)sexuality of migrants. Moreover, the retention of some STIs as Class A conditions authorizes the U.S. government to use sexual health as a form of exclusion, and STI screening in the examination authorizes the U.S. government to legally interrogate the sexual health of noncitizens. Given the ways the United States has engaged in violent sexual health management at and across the border in the past, it is concerning that the U.S. government holds authority over the sexual health of noncitizens-- authority that it may adapt or expand in the future. This troubling history, as well as present dignitary harms, indicates that sexual health should have no place in U.S. border policy.

In general, medical examinations on the border do not keep the country healthier or safer from disease. Instead, CDC and DHS disproportionately condemn noncitizens for conditions often already prevalent in the United States, using Class A and B diagnoses as grounds for surveillance and exclusion. This study of syphilis and gonorrhea demands that the medical examination process, as a whole, should be removed from admissions.

Border health security projects, like medical examinations, target outsider groups for increased scrutiny and higher standards of health. Yet there are many other ways the U.S. government could improve national health. This includes offering voluntary, comprehensive, and free medical examinations upon admission to the United States, or providing funded quarantine options to any traveler to the United States--citizens included--who self-report a communicable disease before entry. Instead, the current method of framing the exclusion or forced management of noncitizens as public health measures does little to meaningfully improve health for anyone within the United States, while inflicting grave systemic harm on noncitizens.

Steffi Colao is a Promise Institute Fellow at Project ANAR (Afghan Network for Advocacy and Resources), where she works in asylum law and advocacy. She holds a J.D. in Critical Race Studies and International & Comparative Law from UCLA School of Law, 2023, and a B.A. in Geography from Dartmouth College, 2019.