Reproductive Injustice at the US Border

Abstract

The detention of immigrants inside US borders is not a new phenomenon. However, a dramatic shift has occurred in both the number and treatment of immigrants in detention.

We examine recent changes in immigration policies that have systematized the mistreatment of children and pregnant immigrants, including a ban on abortion for unaccompanied minors in immigration detention, the neglect and mistreatment of pregnant immigrants in detention, and the separation and prolonged detention of parents and children in unsafe facilities.

We employ the reproductive justice framework to demonstrate how these policies violate all 3 primary values of reproductive justice: the right to have children, the right not to have children, and the right to parent children in safe and secure environments. We argue that, when analyzed through the lens of reproductive justice, these policies can be seen as manifestations of a single targeted strategy to control the reproductive autonomy of migrants as a tool of immigration enforcement. We conclude with a call to action to the public health community.

The past 2 years have been an especially harrowing time for migrants seeking to enter the United States and those held in immigration detention facilities. The detention and mistreatment of undocumented immigrants inside US borders is not a new phenomenon.¹ Under the current administration, however, a dramatic shift has occurred in the number of immigrants in detention as well as in how the government treats vulnerable immigrants, particularly children and those who are pregnant. The reproductive justice framework, with its holistic focus on the autonomy and reproductive agency of marginalized communities, provides a compelling lens through which to examine the treatment of pregnant and parenting migrants.²

In this article, we focus this reproductive justice lens on 3 recent policies that target pregnant people and immigrant families: the ban on abortion for unaccompanied minors in immigration detention, the neglect and mistreatment of pregnant immigrants in detention who seek to continue their pregnancies, and the separation and prolonged detention of parents and children in unsafe facilities. Upon first impression, these policies may appear unrelated or contradictory. The ban on abortion that promotes pregnancy and childbirth for unaccompanied minors may seem at odds with the failure to provide appropriate prenatal care to pregnant immigrants who wish to continue their pregnancies. The family separation policy may appear to be a separate but unrelated travesty. We employ the reproductive justice framework to examine these policies as manifestations of a single oppressive strategy of reproductive control. When so viewed, the common purpose animating these policies and practices becomes clear: the current administration is wielding control over reproductive agency as a cudgel to punish migrants and deter future immigration.

Legal scholars,^3,4 sociologists,⁵ and activists⁶ have applied the reproductive justice framework in their research and advocacy around migrant health. This substantial body of literature has engaged with the intersection of immigration status and reproductive justice for decades. While the field of public health has begun to recognize the relevance and value of reproductive justice,⁷ it has not yet fully embraced the framework in the context of the current crisis at the border. We build on the important work of reproductive justice scholars and activists as we seek to broaden the application of this framework to immigrant rights within the field of public health.

In the first section, we introduce the policy context of US immigration enforcement and the theoretical framework of reproductive justice. In the second section, we examine how the Trump administration has treated pregnant minors seeking abortions while in immigration detention. In the third section, we analyze the administration’s treatment of pregnant immigrants in detention who seek to continue their pregnancies. In the fourth section, we discuss the family separation policy and other Trump administration policies that affect immigrant families. In the fifth section, we reflect on the role of the public health community in promoting reproductive justice and issue a call to action for public health scholars, researchers, and professionals.

POLICY CONTEXT: US IMMIGRATION ENFORCEMENT

Immigration enforcement in the United States is distributed across several different agencies. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are housed within the Department of Homeland Security. Adults and children who are detained by immigration enforcement are held in CBP facilities. Adults are then transferred to ICE facilities, while responsibility for “unaccompanied alien children” (i.e., minors apprehended at the border without an adult family member) is vested in the Office of Refugee Resettlement (ORR), an agency within the Department of Health and Human Services.

On April 6, 2018, then–Attorney General Jeff Sessions issued a warning to immigrants hoping to enter the United States: “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice.”⁸ This announcement—a statement of the administration’s “zero-tolerance” policy—signaled a major change in US immigration policy. Under the zero-tolerance policy, US attorneys in the Southwest were directed to prosecute all undocumented immigrants apprehended inside US borders. This included some groups who were previously excluded from mandatory detention, such as pregnant people and family units.

Until the implementation of zero tolerance, families were generally released from immigration custody to remain in compliance with the Flores Settlement Agreement (Flores). Flores, a 1997 immigration settlement, set out the procedures for the care, custody, and release of immigrant children held in federal custody, including a requirement that children not be held in Department of Homeland Security facilities for more than 20 days.⁹ Under previous administrations, children were occasionally separated from their parents, but this was not the norm. By contrast, zero tolerance required that all adults apprehended at the border, including those who entered the country with their children, be detained and prosecuted. Adults were detained in facilities in which the children, under Flores, could not be housed. Because their parents were incarcerated, children were reclassified as “unaccompanied” and became wards of ORR.¹⁰ In August 2019, the government promulgated a new regulation to revoke the Flores Settlement Agreement, reverse Flores’s protections for children, and allow the federal government to hold children with their parents for an indefinite period of time. As of the time of writing, the government is barred by court order from implementing the new regulation and terminating the Flores Settlement.¹¹ In January 2019, DHS implemented the Migrant Protection Protocols (MPP)—also known as the “Remain in Mexico” policy—which requires asylum-seeking migrants to await their asylum hearings in Mexican border towns. More than 340 cases of kidnapping, rape, and torture of asylum seekers in MPP have been reported.¹²

REPRODUCTIVE JUSTICE FRAMEWORK

The reproductive justice movement and its accompanying theoretical framework were created in the 1990s by Black women advocates in response to the largely White and middle-class leadership of the prochoice movement, which “could not defend the needs of women of color and other marginalized women and trans people.”¹³ The framework of abortion as a personal choice centers the experiences of people who have the resources to choose among options that are unavailable to more marginalized people. Moreover, isolating abortion from other issues of social justice fails to recognize the environments in which people make reproductive decisions. The founders of the reproductive justice framework created SisterSong, a national, multiethnic movement, “to uplift the needs of the most marginalized women, families, and communities.”¹³ This framework is therefore particularly appropriate to scrutinize the treatment of migrants detained at the nation’s southern border.

Reproductive justice shifts the focus from civil rights to human rights and the goal from choice to justice; it is “the application of the concept of intersectionality to reproductive politics in order to achieve human rights.”^2(p79) Reproductive justice centers those who are most marginalized and recognizes that, while everyone has the same human rights, not everyone is oppressed in the same way. It employs an intersectional approach to shed light on the ways in which social identities, such as race, gender identity, sexual orientation, and immigration status, interact to create distinct and often marginalized experiences.^2,14

Three core values ground reproductive justice: (1) the right not to have a child, (2) the right to have a child, and (3) the right to parent children in safe and healthy environments. These values are “based on the human right to make personal decisions about one’s life, and the obligation of government and society to ensure that the conditions are suitable for implementing one’s decisions.”¹³ Reproductive justice is rooted in a conception of reproductive agency, equality, and dignity and, therefore, in addition to access to abortion, it encompasses access to comprehensive sex education, contraceptives, prenatal and postnatal care, and interventions to address infant and maternal morbidity and mortality.^2,13,14

The reproductive justice framework guides our analysis of the treatment of women, children, and families entering the United States.

UNDOCUMENTED MINORS SEEKING ABORTION

The first core value of the reproductive justice framework is the right not to have children. In the United States, minors, like adults, have a constitutionally protected right to terminate a pregnancy before fetal viability.¹⁵ This right has been applied to undocumented minors as well as to minors who are citizens.¹⁶ In the majority of states, minors are required to secure parental consent or notification before obtaining an abortion or are required to invoke state judicial bypass procedures to obtain court approval in lieu of parental consent.¹⁷ Judicial bypass procedures are a constitutional requirement; they ensure that a minor’s right to abortion is not dependent on the consent or notification of a parent or guardian.¹⁵ For unaccompanied immigrant minors, judicial bypass procedures provide a legal avenue to make abortion decisions in the absence of a parent or guardian’s agreement. Despite these constitutional protections, the US government has repeatedly taken steps to prevent undocumented minors from accessing abortion care, and has violated this tenet of reproductive justice.

ORR is responsible for providing “family planning services, including pregnancy tests and comprehensive information about and access to medical reproductive health services and emergency contraception,” to all undocumented minors in its custody.¹⁸ Under previous administrations, undocumented minors in ORR custody experienced difficulties in accessing reproductive services.¹⁹ However, access barriers intensified significantly under the current administration when E. Scott Lloyd, as ORR director, implemented extraordinary measures to prevent undocumented minors from receiving abortion care.

In 2017, ORR instituted an “across-the-board ban” on abortion access for minors in its custody. It applied this policy even where minors had secured funding and transportation for the procedure and had met all applicable state requirements for obtaining an abortion, including judicial bypass.¹⁶ Staff at detention facilities were told that they “should not be supporting abortion pre or post-release; only pregnancy services and life-affirming options counseling,”^20(p13) and not to take “any action that facilitates” abortion without the express approval of the agency’s director.^16(p13) In accordance with this policy, ORR has undertaken several actions to restrict the ability of the minors in its custody to obtain abortion care.

In a series of widely publicized cases, ORR refused to allow minors in its care to obtain abortions. These adolescents, identified by the pseudonyms Jane Doe, Jane Poe, Jane Roe, and Jane Moe, were only able to undergo abortions after securing court orders through emergency litigation. In one of these cases, the government attempted to compel a minor who had become pregnant as a result of rape to carry her pregnancy to term. In a memorandum documenting his denial of this abortion request, then–director Lloyd stated that ORR “provides refuge ‘to all the minors in our care including their unborn children,’” and permitting this abortion would be asking ORR “to participate in killing a human being in our care . . . we ought to choose [to] protect life rather than destroy it.”^16(p15) Detention facilities were also directed to take pregnant adolescents who were seeking abortions to religiously affiliated crisis pregnancy centers for antiabortion counseling, where staff prayed for them and performed medically unnecessary sonograms.²⁰ Crisis pregnancy centers have been roundly criticized by medical and public health professionals for their harmful and deceptive practices.²¹

The ban on abortions for minors in ORR custody is the subject of an ongoing class-action lawsuit on behalf of “all pregnant, unaccompanied immigrant minor children . . . who are or will be in the legal custody of the federal government,”^16(p16) and is not currently in effect.

The government has employed and defended the abortion ban as a tool of immigration enforcement, using it both to punish migrants and to deter future immigration. Specifically, the government has argued that the ban is necessary to discourage “abortion tourism” and that minors under ORR care can avoid the ban by “voluntarily departing” the United States and returning to their home countries.¹⁶ The extraordinary and invasive actions taken by the government in an effort to block pregnant unaccompanied minors’ access to abortion have repeatedly intruded on the rights of this vulnerable group. To be forced to carry an unwanted pregnancy to term, however, is not only a contravention of a constitutionally protected right but also a profound transgression of these adolescents’ humanity and a violation of a fundamental tenet of reproductive justice.

TREATMENT OF PREGNANT MIGRANTS

The second core value of reproductive justice is the right to have children, which is accorded the same importance as the right not to have children. The extreme measures taken by the Trump administration to preclude pregnant minors from obtaining abortions evince a strong bias in favor of pregnancy continuation and childbirth. However, people in immigration detention who seek to continue their pregnancies have been subject to myriad dangerous practices that have placed their pregnancies at risk and interfered with their intention to carry their pregnancies to term. Inhumane conditions, inadequate access to medical care, and unsafe practices in detention have resulted in stillbirths, miscarriages, and significant maternal health complications for pregnant migrants apprehended at the border.²²

Immigration detention is not a healthy environment for anyone, but for a pregnant person it can present unique and significant risks to maternal and fetal health. Until recently, it was ICE policy to release pregnant undocumented immigrants who were apprehended unless they were subject to mandatory detention or if “extraordinary circumstances” warranted their continued detention. This changed in December 2017, when ICE instituted a policy of detention for all “removable aliens” with release determined on a “case-by-case” basis, to comply with a new presidential executive order.²³ At least 2701 pregnant people were held in ICE custody between December 2017 and March 2019; more recent data on the number of pregnant people in detention are not publicly available, which is itself a troubling indicator of how little is known about what happens within ICE facilities.²² A bill introduced by Senator Patty Murray (D-Washington) would require ICE and CBP to issue quarterly reports on the detention of pregnant migrants. Currently there are no such public reporting requirements on these agencies.²⁴

ICE guidelines stipulate that pregnant detainees “shall have access to prenatal and specialized care, and comprehensive counseling inclusive of, but not limited to: nutrition, exercise, complications of pregnancy, prenatal vitamins, labor and delivery, postpartum care, lactation, family planning, abortion services and parental skills education.”^25(p324) In response to media inquiries about the treatment of pregnant detainees, former Department of Homeland Security Secretary Kirstjen Nielsen stated that they “are not only given adequate care in facilities, but it is much better care than when they are living in the shadows.”²⁶ Recent reports contradict Nielsen’s claims and have documented a disturbing pattern of neglect and mistreatment of pregnant undocumented immigrants at immigration detention centers. At least 28 people miscarried in ICE custody between 2017 and 2018; the number of miscarriages in CBP custody is unknown, as is the number of live births in the custody of these agencies.²²

Many of the miscarriages in immigration detention may be attributable to mistreatment while in custody, and the stories of these migrants’ experiences are often unequivocally inhumane. Pregnant migrants have been exposed to unnecessary x-rays, denied medical treatment—including during severe uterine bleeding—and had their ankles and bellies shackled.²⁷ Routine shackling, a practice that has historically been used on pregnant women in prisons and jails, is no longer considered acceptable in many states and in federal correctional facilities. Shackling can cause serious medical harms and is opposed by the American Public Health Association (APHA)²⁸ and the American College of Obstetricians and Gynecologists²⁹; it is also officially proscribed by ICE and CBP guidelines. Despite these prohibitions, shackling has continued in federal immigration detention, purportedly to protect public safety.³⁰ One report released in 2018 detailed the experiences of 3 pregnant asylum seekers who were detained, forced to wait weeks for medical care, and shackled around their hands, legs, and bellies. All 3 experienced miscarriages. Reporting suggests they did not receive adequate medical care or counseling afterward.²⁷

Other nationally reported stories of mistreatment include the experiences of an adolescent who had an emergency cesarean section in Mexico before crossing into the United States, and who was detained in an overcrowded US Border Patrol facility with her extremely premature baby. Neither the mother nor the baby received any medical attention.³¹ In another case, a woman went into preterm labor and delivered a stillborn baby while being processed for release from ICE custody. According to the agency, “a stillbirth is not considered an in-custody death” for investigative and reporting purposes.³² What would have happened to her baby had it been born alive is also murky; there appears to be no publicly available guidance in ICE or CBP detention standards that indicate where or how a baby born in custody should be held, but reports indicate that ORR is adding shelters to house newborn infants.³³

By shackling pregnant immigrants, failing to provide postnatal care for an adolescent mother in detention, and refusing to formally recognize an immigrant mother’s loss of a desired child as a death, the administration demonstrates its disregard for the value of vulnerable, non-White lives. The mistreatment of pregnant immigrants, like the denial of abortions to pregnant minors, highlights the ways in which the Trump administration seeks to subjugate the bodies of marginalized populations and control their reproductive lives.

TREATMENT OF CHILDREN AND FAMILIES

The third core value of reproductive justice is the right to parent one’s children in safe and secure communities. The zero-tolerance family separation policy, substandard medical care for children in detention, and indefinite detention of parents and children are clear violations of this right. These targeted antifamily policies constitute an assault on the family unit and the right to raise safe and healthy children.

One of the clearest examples of the Trump administration’s antifamily policies came to light in summer 2018 when news reports revealed that Department of Homeland Security officials had begun separating children apprehended at the US–Mexico border from their families. The separations were a direct result of the administration’s zero-tolerance policy and continued until June 26, 2018, when a federal judge officially ordered that the separations be stopped and the separated children be identified. ORR identified approximately 2800 separated children in its custody, and nearly all have been reunified with their parents or resituated according to their parents’ wishes. However, the number of children separated before this date, and what happened to them, is still not known. In addition, thousands of children may have been separated from their parents between July 2017 and May 2018, before the policy was officially announced,¹⁰ and 700 children were separated from their parents after the announced end of the zero-tolerance policy in June 2018.³⁴ The government has indicated that it will take up to 24 months to identify these children and that there may be thousands of separations that have not been tracked.¹⁰

Many of the “unaccompanied” minors in ORR’s care, as well as those who are currently being detained in adult CBP facilities, were apprehended with nonparent relatives such as aunts, uncles, or grandparents. Immigration enforcement agencies could sharply reduce the number of children in immigration detention by releasing children with their nonparent family members, but it is the Trump administration’s policy to separate these nonnuclear family units in the interest of reducing the risk of human trafficking.³⁵ Despite this stated reason for separating families, the administration has not released data to support its claim that this is a legitimate concern. Much has been written elsewhere about the inhumane treatment of unaccompanied minors and minors who have been separated from their families^36,37 and of the families sent to wait in Mexican border towns under MPP,¹² as well as of the trauma experienced by separated children,³⁸ so we refrain from repeating that important work here. Rather, we emphasize that reproductive justice entails a right to parent children in safe and secure environments.This right is not upheld by separating children from their parents, nor by indefinitely detaining them together in accordance with the regulation attempting to revoke Flores, nor by the dangerous living conditions for those awaiting hearings in Mexico under MPP.

The administration has blamed immigrant parents for the harms that befall their children while in federal custody. Addressing the family separation policy, Sessions stated in May 2018 that, “[i]f you don’t want your child to be separated, then don’t bring them across the border illegally. It’s not our fault that somebody does that.”³⁹ This position shifts the blame for the harmful effects of the administration’s policies onto the families themselves, it suggests that parents have acted negligently or capriciously in traveling with their children to this country, and it fails to consider the reasons these families may have left their home countries and come to the United States with their children. Moreover, such statements and the zero-tolerance policy reflect a lack of respect for the parental bonds of migrants and those seeking asylum for their families and attempting to provide a better future for their children.

CONCLUSION

Reproductive justice calls on each of us to interrogate the power structures that subordinate women and dehumanize families of color. In this article, we have examined the ways in which US immigration enforcement systematically oppresses marginalized populations seeking entry into the United States. It should be noted that these policies are situated within a broader American social and historical context in which the bodies and reproductive agency of Black and Brown people have been controlled, ranging from the horrors of the slave trade to the violence of the 20th century eugenics movement, and continuing through the modern-day ban on the use of federal funds to provide abortion to low-income pregnant people² and the recent restrictions on Title X funding. The policies and practices we examine here serve a similar purpose to these other systemic injustices. They constitute a transparent effort to control the reproductive lives of vulnerable migrants to further an antiimmigrant agenda.

The reproductive justice framework is not simply a tool for identifying oppressive systems and structures, however. It also calls for praxis, in which oppressed groups and their allies “change their economic, social, and political realities through social justice actions based on theoretical reflections,” including activism and advocacy.^13(p287) This praxis is inherently intersectional, accounting for the structural violence that threatens individuals and groups on the basis of multiple dimensions of identity. Recognition of this violence is the first step, but praxis requires taking action to reform systems that perpetuate harm, especially when they further disadvantage vulnerable people.

The specialized knowledge and skills of the public health community make it a natural ally for the realization of reproductive justice at the border through praxis; in 2015, the APHA released a policy that called advancing reproductive justice an important public health strategy.⁷ Theorists of public health ethics have also long argued that public health is social justice. Ruth Faden and Madison Powers write that “the foundational moral justification for the social institution of public health is social justice.”^40(p80) They contend that “the twin moral impulses that animate public health [are] to improve human well-being by improving health and to do so in particular by focusing on the needs of those who are the most disadvantaged.”^40(p82) This idea is fundamentally aligned with the human rights grounding of reproductive justice. It acknowledges the moral work of public health and its commitment to protecting the most vulnerable people, regardless of their race, gender, or immigration status.

The US government’s actions at the southern border threaten the physical and mental health of multiple generations of migrants seeking better lives for themselves and for their families.³⁶ Failure to act in the face of these injustices signals an acceptance of the structures that are, at this very moment, destroying lives and tearing families apart. It is incumbent upon all of us who work in public health to reject these unjust policies and practices in the strongest terms and commit to the ideals, vision, and practice of reproductive justice. We urge our public health colleagues to redouble their research into the effects of these policies and practices on children and families, to submit written comments during the notice-and-comment periods for new government rules, to contribute their expertise to the legal briefs that challenge these policies, and to support Senator Murray’s bill limiting the detention and shackling of pregnant immigrants.

In a powerful piece on reproductive justice as intersectional feminist activism, Loretta Ross quotes scholar Ellen Messer-Davidow, saying that “In times such as these, there are no innocent bystanders. If you’re a bystander, you’re not innocent.”^14(p306) In the face of the reproductive injustice at the border, public health must not, cannot, be a bystander.