Laws regulating abortion have been around longer than modern abortion techniques, first appearing as early as 1500 BC. Since then abortion has become one of the safest medical procedures available – patients have a higher chance of suffering a serious complication during a colonoscopy, wisdom-teeth removal, or a tonsillectomy than as the result of an abortion. Abortions have become commonplace as well, with 1 in 4 American women having an abortion in their lifetime and 3 in 10 pregnancies worldwide ending in induced abortions every year. Unfortunately, in the United States, access to safe and legal abortions is becoming increasingly difficult. Pregnant immigrants in detention are routinely being denied access to abortion services despite their right to reproductive healthcare while incarcerated. The passing of Texas Senate Bill 8 (“SB8”) has made the situation even more desperate for immigrants detained within the state. Pregnant immigrants are often denied their clearly established constitutional right to an abortion due to state restrictions, federal policies, and a detention system unwilling to enforce its own protocol.
The Right to Abortion
In 1973, Roe v. Wade legalized elective abortions in the United States. To this day women have the “fundamental right … to choose whether to have children,” despite endless attempts to have Roe overturned. Even under the controversial Texas law SB8, abortion remains legal in all 50 states. Activists have been struggling against tighter and tighter restrictions for decades, but ultimately the “constitutionally protected right …. to terminate a pregnancy” remains. A person’s right to chose and make personal medical decisions remains in their own hands.
By law, immigrants – regardless of their immigration status – have many, if not all, of the same constitutional rights as American Citizens. The Fourteenth Amendment protects “all persons…without regard to any differences of race, of color, or of nationality.” Citizens and non-citizens alike are entitled to the due process protections of the Fourteenth Amendment – as well as the due process and privacy rights granted under the Fifth Amendment – shielding their private decisions from the interference of state action. Roe v. Wade utilizes the “guarantee” of “fundamental rights” granted by the Fifth and Fourteenth amendments to “make clear” that personal decisions surrounding “procreation [and] contraception” are constitutionally protected rights. Roe v. Wade combined with protections of the Fifth and Fourteenth amendments guarantees anyone within the United States has the same rights to an abortion regardless of their citizenship status.
Immigrants who are being detained by the Department of Homeland Security (“DHS”) and Immigration and Customs Enforce (“ICE”) are guaranteed the same right to abortion as American citizens, both by law and by ICE’s own procedural standards. ICE publishes its official standard for medical care on its website, stating that the “detention standard” of healthcare “ensures that female detainees in ICE custody have access to appropriate and necessary medical and mental health care.” The manual states that pregnant women “shall have access to … abortion services” within “two working days” if requested. ICE accepts the responsibility of arranging “for transport at no cost to the detainee for the medical appointment.” When ICE included an immigrant’s right to an abortion in its official medical protocol procedures they further ensured that pregnant immigrants had the choice and the ability to terminate the pregnancy if they wished. Not only is the right to an abortion a constitutional right for immigrants, but it is protected under ICE protocols.
Unaccompanied minors who are detained by ICE have explicitly been given the right to an abortion by the Supreme Court of the United States as well as by the Administration for Children and Families. In 2018, the Office of Refugee Resettlement (“ORR”) was sued by Jane Doe, a minor in ICE detention, and her guardian when “they did not allow Doe to go to an abortion clinic.” The District of Columbia Circuit Court granted two temporary restraining orders to Doe to ensure her “constitutional right to an abortion” was not blocked. The orders forced ORR to allow Doe’s representatives to schedule several appointments with the clinic and transport her to the clinic for the procedure. When the case landed in front of the Supreme Court, the court held that Doe’s attorney had zealously advocated on her behalf, and thanks to the attorney’s efforts the case was moot. The Supreme Court did assert that it had the ability to hear cases that are moot if it wished, but that it was not necessary in the case at hand. In other words the Supreme Court did not find an issue with the Circuit Court’s ruling that Doe was entitled to an abortion.
The Administration for Children and Families, in conjunction with ORR, requires “compliance with Garza v. Azar for pregnant unaccompanied children.” While ORR providers are “required to comply with state law governing access to abortion,” they are also additional policy procedures to comply with Garza v. Azar. In conjunction with DHS, ORR must inform pregnant unaccompanied minors of their right to access abortion care during their initial health screening. If the pregnant minor “requests an abortion at any point,” ORR has 24 hours to submit a Transfer Request to DHS in order to ensure the minor has full access to appropriate healthcare services. This policy further legitimizes a minor’s right to an abortion while in ICE custody.
Federal appropriation legislation has included language barring the use of federal tax dollars to fund abortion since 1976. Colloquially known as the Hyde Amendment, there is an exception to the ban for “cases of rape, incest, and life endangerment.” The ban restricts the use of federal funding for all women in “detention centers, including those detained for immigration purposes.” While this would require many immigrants to find the funds to pay for their own abortion, ICE does state that it will cover the cost of access an abortion “if the life of the mother would be endangered by carrying the fetus to term, or in the case of rape or incest.” The Hyde Amendment has a disproportionate impact on women who rely on Medicaid for their healthcare as well as women who are incarcerated, either in the criminal justice system or the immigration detention system. Women relying on government-subsidized healthcare or who are incarnated are not able to choose their own healthcare and are thus their access to abortion is limited to the scope of situations covered by the Hyde Amendment.
In addition to federal legislation, many states have taken it upon themselves to pass their own abortion legislation. A Texas bill called SB8 recently survived its first challenge in front of the Supreme Court. SB8 threatens to nearly ban abortion access in the state for all, but is most limiting to people of color and other marginalized communities. Like all forms of oppression, the intersectional identities of marginalized communities result in barriers stacking against one another. For example, undocumented immigrants who are not in detention are not able to leave Texas to access abortion care in a nearby state. The socioeconomic challenges of such a long-distance prohibit most pregnant immigrants from accessing abortion that is hundreds of miles from their homes, but they are unable to freely cross DHS checkpoints that they may encounter if they try to leave Texas. Immigrants living in the Rio Grande Valley region of Texas are especially threatened by the commonality of ICE checkpoints that impede their route to leave the state, and thus their ability to obtain an abortion after 6 weeks of gestation.
Certiorari has been granted for two separate lawsuits seeking to strike down SB8 and the Supreme Court failed to grant injunctive or declaratory relief of any kind in the meantime. SB8 does not make abortion illegal but instead offers “$10,000 in damages to anyone who sues a person who provides an abortion [after a fetal heartbeat can be detected], ‘aids or abets’ such abortion, or intends to engage in such conduct.” A fetal heartbeat is generally detectable around six weeks after a person’s last menstrual cycle, meaning that SB8 effectively “imposes a near categorical-ban on abortions” after six weeks gestation. The sole exception to the ban is in the case of a “a medical emergency [requiring] the abortion,” or when the pregnant person’s life is in danger. Rape, incest, or viability of the fetus are not included in SB8.
It is important to note that Texas detains the highest number of unaccompanied immigrant minors of any state. Texas also detains approximately the same number of majority-aged migrants as the other southern border states – California, Arizona, and New Mexico – combined. SB8 thus impacts the majority of pregnant migrants who are detained.
Unaccompanied minors face additional challenges when seeking an abortion in ICE detention. In addition to having to either prove that the pregnancy is dangerous to the mother or a result of rape or incest, unaccompanied minors seeking an abortion in the border states of Texas, Arizona, and Louisiana must receive parental consent or go through a process known as “judicial bypass.” This process includes the minor being appointed a guardian by ICE and going with the guardian to the courthouse to speak with a judge. For the duration of his complicated legal process, the minor remains in ICE detention.
What does this look like today?
Nearly 10% of women detained by ICE test positive when given a pregnancy test as part of a mandatory health screening given to all new detainees as part of the intake process. Combined with the fact that an estimated 80% of Central American women and girls are sexually assaulted on their journey to the United States border, many of these pregnancies are likely the result of a sexual assault. Sexual assault is so common that women report taking contraception “to prevent pregnancy in the event of rape.” Minors especially, as young as 14 or 15 “appear to have become pregnant as a result of sexual assault,” with many of the girls not realizing they are “pregnant until they reach the detention facility.” Anyone pregnant as a result of a sexual assault has the right to an abortion funded by the government even under the strictest interpretations of the Hyde Amendment and ICE medical protocol.
Local abortion clinics lament the fact that they “have no idea what goes on inside” detention facilities. Gathering statistically accurate information about the access pregnant immigrants have has been nearly impossible due to a variety of different factors. For one, many immigrants do not know they have the right to an abortion in the United States, and ICE or ORR do not have the obligation to tell them. Government reports on ICE detention facilities parse data on pregnancy outcomes, making outside analysis nearly impossible.
In practice, despite being “legally entitled to the option of an abortion,” immigrants, especially those in Texas, have lost the practical ability to receive a requested abortion once detained. Advocacy groups such as the American Civil Liberties Union, Jane’s Due Process, Sueños Sin Fronteras, Planned Parenthood, and Whole Women’s Health report several known cases of detained minors, in particular, being denied an abortion despite Roe v. Wade and Garza v. Azar. Proving rape can be difficult, and many “women might not necessarily be aware of the abortion exemption for rape.” “Language and cultural barriers” only exacerbate the problem, leaving vulnerable pregnant immigrants with “no understand[ing] of what reproductive resources there are.”
New laws like SB8 are only adding to the roadblocks immigrants face. In the month after it took effect, a single practitioner was unable to provide abortions to “at least a handful of pregnant minors.” “If it weren’t for SB8, every single” unaccompanied pregnant minor that was seen at the Whole Women’s Health Clinic in Texas “could have [been] treated no problem.” Instead, several pregnant minors “have accused [ORR] of blocking them from getting abortions” while being detained. Even the lucky few who are able to be transferred from Texas to another state once they pass the 6-week threshold suffer. The transfer process can take several weeks, which for young people especially can be a “more involved, potentially more painful dilation process.”
Adult women face the same issue as minors do with even less protection. From listening to pregnant immigrants tell their stories, it is clear “women in detention centers are already being denied abortion care.” The Supreme Court has never made a ruling affirming a pregnant detainee’s right to an abortion as it has for minors. “U.S. agencies routinely deny voluntary access to abortion” both through direct action as well as coercion by the staff and third-party anti-abortion agencies. “Detention centers often stand between pregnant detainees and abortion centers,” preventing immigrants from accessing abortion even if they had the funds to pay for one.. While in detention, there simply “is no access to abortion providers.”
Pregnant immigrants in detention have no access to abortion services. They are being denied their constitutional right to make a highly personal decision. The barriers pregnant immigrants face are unique to each individual, but all pregnant immigrants face “undue burdens” if they are seeking abortion care. By allowing bills like Texas’s SB8 to pass, states are only erecting new roadblocks to unconstitutionally deny pregnant immigrants abortion access. It is imperative that these issues be addressed so all pregnant people are able to make the decision that is best for them without interfere from ICE or any other government agency.
- Malcolm Potts & Martha Campbell, History of Contraception, The Global Library of Women’s Medicine (2009), http://www.glowm.com/section-view/item/375. ↑
- Amanda Arnold, Abortion Is Safer Than Getting Your Wisdom Teeth Out, New York – The Cut, March 10, 2020, https://www.thecut.com/2020/03/abortion-is-safer-than-getting-your-wisdom-teeth-out.html. ↑
- Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, Guttmacher Institute (2017), https://www.guttmacher.org/news-release/2017/abortion-common-experience-us-women-despite-dramatic-declines-rates; Abortion, World Health Organization (2021), https://www.who.int/news-room/fact-sheets/detail/abortion; This article will refer to “women” and “girls” when talking about abortion statistics and the rights of individuals despite the fact that not all seeking abortions identify as such. The author wants to take a moment to recognize that women are not the only folks seeking abortions. Unfortunately, the vast majority of the data available on abortion statistics and all of the language taken from government documents use highly gendered terms when discussing a person’s right to reproductive healthcare, including their right to an abortion. ↑
- Lauren Holter, Detained Immigrant Women Are Facing A Grueling Abortion Struggle, National Latina Institute for Reproductive Justice (2017), https://www.latinainstitute.org/es/node/4620. ↑
- Roe v. Wade, 410 U.S. 113, 93 (1973). https://casetext.com/case/roe-v-wade. ↑
- Id.; Planned Parenthood v. Casey, 505 U.S. 833, (1992). https://casetext.com/case/planned-parenthood-of-southeastern-pennsylvania-v-casey-casey-v-planned-parenthood-of-southeastern-pennsylvania; Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019)., (2019), https://casetext.com/case/jackson-womens-health-org-v-dobbs-1. ↑
- Kaia Hubbard, A Guide to Abortion Laws by State, US News & World Report, September 1, 2021, https://www.usnews.com/news/best-states/articles/a-guide-to-abortion-laws-by-state. ↑
- Abortion in Texas, ACLU of Texas, January 20, 2016, https://www.aclutx.org/en/know-your-rights/abortion-texas. ↑
- Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987). https://casetext.com/case/lynch-v-cannatella. ↑
- Id. at 1372, 1373. ↑
- Roe v. Wade, 410 U.S. 113, 93, supra note 5 at 152. ↑
- 2011 Operations Manual ICE Performance-Based National Detention Standards, 322, https://www.ice.gov/detain/detention-management/2011. ↑
- Id. at 323. ↑
- Id. at 325. ↑
- Azar v. Garza, 138 S. Ct. 1790 (2018), , 1 (2018), https://casetext.com/case/azar-v-garza-1. ↑
- Id. at 2. ↑
- Field Guidance #21 – Compliance with Garza Requirements for Pregnant Unaccompanied Children in Texas, 4 2 (2021). ↑
- XX CITE GARZA , supra note 15. ↑
- XX CITE, Id. ↑
- Id. at 1. ↑
- Id. at 1. ↑
- Id. at 2. ↑
- Id. at 3. ↑
- All Above All, Fact Sheet: The Hyde Amendment, All Above All (2022), https://allaboveall.org/resource/hyde-amendment-fact-sheet/; Text – S.142 – 113th Congress (2013-2014): Hyde Amendment Codification Act, (2013), https://www.congress.gov/bill/113th-congress/senate-bill/142/text; Planned Parenthood, Federal and State Bans and Restrictions on Abortion, Planned Parenthood Action Fund , https://www.plannedparenthoodaction.org/issues/abortion/federal-and-state-bans-and-restrictions-abortion/hyde-amendment. ↑
- Fact Sheet: The Hyde Amendment, supra note 24; Text – S.142 – 113th Congress (2013-2014), supra note 24. ↑
- Fact Sheet: The Hyde Amendment, supra note 24. ↑
- 2011 Operations Manual ICE Performance-Based National Detention Standards, supra note 12 at 325. ↑
- Planned Parenthood, supra note 24; Fact Sheet: The Hyde Amendment, supra note 24. ↑
- Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021)., (2021), https://casetext.com/case/whole-womans-health-v-jackson-1. ↑
- Nancy Cárdenas Peña, How Texas’s Abortion Ban Affects Immigrant Communities, Refinery29 (2021), https://www-refinery29-com.cdn.ampproject.org/v/s/www.refinery29.com/amp/en-us/2021/09/10657648/immigrant-texas-abortion-law-effects?amp_js_v=a6&_gsa=1&usqp=mq331AQKKAFQArABIIACAw%3D%3D#aoh=16429787426751&_ct=1642979420686&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.refinery29.com%2Fen-us%2F2021%2F09%2F10657648%2Fimmigrant-texas-abortion-law-effects. ↑
- Elizabeth Nash et al., Impact of Texas’ Abortion Ban: A 14-Fold Increase in Driving Distance to Get an Abortion, Guttmacher Institute (2021), https://www.guttmacher.org/article/2021/08/impact-texas-abortion-ban-14-fold-increase-driving-distance-get-abortion. ↑
- Id. See also: Nancy Cárdenas Peña, How Texas’s Abortion Ban Affects Immigrant Communities, Refinery29 (2021), https://www.refinery29.com/en-us/2021/09/10657648/immigrant-texas-abortion-law-effects. ↑
- Id. ↑
- Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021)., , 55, 56 (2021), https://casetext.com/case/whole-womans-health-v-jackson-1; United States v. Texas, 142 S. Ct. 14 (2021)., , 14 (2021), https://www.supremecourt.gov/opinions/21pdf/21-463_3ebh.pdf. ↑
- United States v. Texas, 142 S. Ct. 14 (2021), supra note 34 at 15; Tex. Health & Safety Code § 171.204 (LexisNexis, Lexis Advance through the 2021 Regular Session of the 87th legislature, 2021 1st, 2nd and 3rd Called Sessions, and is current with the 2021 ballot proposition contingencies)., 7, https://statutes.capitol.texas.gov/Docs/HS/htm/HS.171.htm#171.204; Hughes, et al., 2021 Tex. SB 8, 2021 Tex. Gen. Laws 62, 2021 Tex. Ch 62, 2021 Tex. ALS 62, https://capitol.texas.gov/tlodocs/87R/billtext/html/SB00008I.htm. ↑
- United States v. Texas, 142 S. Ct. 14 (2021), supra note 34 at 14. ↑
- Hughes, et al., supra note 35 at Sec 171.205. ↑
- Unaccompanied Children Released to Sponsors by State, , https://www.acf.hhs.gov/orr/grant-funding/unaccompanied-children-released-sponsors-state; Shefali Luthra, Pregnant undocumented minors can’t get abortions in Texas, The 19th (2021), https://19thnews.org/2021/10/undocumented-minors-can-no-longer-access-abortions-in-texas/. ↑
- Katharina Buchholz, Infographic: These States Detain the Most Undocumented Immigrants in ICE Facilities, Statista (2019), https://www.statista.com/chart/16980/undocumented-immigrants-detained-by-ice-per-state/. ↑
- Parental Consent & Notification Laws | Teen Abortion Laws, , https://www.plannedparenthood.org/learn/teens/stds-birth-control-pregnancy/parental-consent-and-notification-laws. ↑
- ACLU in Court to Fight Federal Officials for Blocking Young Woman’s Abortion in Texas, American Civil Liberties Union, October 10, 2017, https://www.aclu.org/press-releases/aclu-court-fight-federal-officials-blocking-young-womans-abortion-texas; Luthra, supra note 38. ↑
- Fact Sheet: The Hyde Amendment, supra note 24; Holter, supra note 4; 2011 Operations Manual ICE, supra note 12. ↑
- Kevin Sieff, Access Denied, The Texas Observer, February 20, 2009, https://www.texasobserver.org/2963-access-denied/. ↑
- Anja Parish, Gender-Based Violence against Women: Both Cause for Migration and Risk along the Journey, The Online Journal of the Migration Policy Institute (2017), https://www.migrationpolicy.org/article/gender-based-violence-against-women-both-cause-migration-and-risk-along-journey. ↑
- Id.; Sieff, supra note 43. ↑
- Luthra, supra note 38. ↑
- Sieff, supra note 43. ↑
- Holter, supra note 4. ↑
- Gretta Goodwin, Immigration Detention: Care of Pregnant Women in DHS Facilities 109 50 (2020), https://www.gao.gov/products/gao-20-330. ↑
- Luthra, supra note 38. ↑
- Texas abortion law complicates San Antonio group’s mission to help undocumented immigrants — even those raped en route to the U.S., , The Texas Tribune , https://www.texastribune.org/2021/11/12/texas-abortion-law-undocumented-immigrants/; Luthra, supra note 38; ACLU in Court to Fight Federal Officials for Blocking Young Woman’s Abortion in Texas, supra note 41. ↑
- Holter, supra note 4. ↑
- Sieff, supra note 43. ↑
- Luthra, supra note 38. ↑
- Id. ↑
- Carter Sherman, Trump officials discussed “reversing” abortion for undocumented teen, VICE News, 2018, https://news.vice.com/en/article/yw5a5g/exclusive-trump-officials-discussed-reversing-abortion-for-undocumented-teen. ↑
- Luthra, supra note 38. ↑
- Molly Bangs & Ashley Underwood, Cruelty and Control: Reproductive Rights and Health Care in the U.S. Immigration System, Equity Forward (2021), https://equityfwd.org/research/cruelty-and-control-devastating-state-reproductive-rights-and-health-care-us. ↑
- Sieff, supra note 43. ↑
- Id. ↑
- Roe v. Wade, supra note 5, at 93. ↑