The border crisis reflects the systemic patriarchy driving the White House's policies, foreign and domestic. From the anti-abortion restrictions in international aid, to rollbacks to federal family-planning programs, to the erosion of abortion rights in the courts, the administration has demonstrated that it fundamentally believes women’s rights are not human rights.
But amid these assaults on women’s rights, an appeals court recently heeded the plea of various Jane Does — young migrants who dared to demand their rights in a hostile legal system — by reaffirming a universal right to bodily autonomy. The cases put young migrant women on the front lines of our entire nation's struggle over reproductive justice, and demonstrates that migrant women’s struggle for reproductive freedom speaks to the resistance of women everywhere to patriarchy that knows no borders.
The suit, which eventually became a class action, was first filed in 2017 on behalf of Jane Doe and then on other anonymous migrant youth in federal custody and charged that the Trump administration had violated the rights of migrant teens held by the Office of Refugee Resettlement through the “deprivation of their right to pregnancy-related care, including abortion, without interference.”
In the case of “Jane Poe" in the suit, she was a 17-year-old who sought an abortion in late 2017 for a pregnancy caused by rape in her home country. But the refugee resettlement office’s then-director, Scott Lloyd, a Trump appointee with fierce anti-abortion views, rejected her request. He explained his agency, which provides shelter for “unaccompanied alien children” who arrive at the border without their caregivers, had a duty to protect “all the minors in our care, including their unborn children,” and that “we ought to choose [to] protect life rather than to destroy it.”
Meanwhile, family members had threatened to beat her if she terminated the pregnancy.
Poe did eventually go through with the procedure after a court granted her motion for a temporary restraining order against the administration’s anti-abortion policy. But by then, her pregnancy was well over 20 weeks, running up against the legal time frame for abortion under state law and making the procedure more risky for the girl. That a single official could dictate the reproductive future of a young rape survivor shows how profoundly disenfranchised these women are, trapped between vicious immigration barriers and draconian anti-abortion laws.
The American Civil Liberties Union, representing Doe and the other plaintiffs, argued that the administration had not only unilaterally barred pregnant teens from receiving medical counseling about reproductive health, but also forced them to consult with a religiously-themed Crisis Pregnancy Center, an anti-abortion propaganda outlet designed to deter women from abortion, typically by using misleading medical “advice.” The suit describes a pattern of disturbing mistreatment: A teenager was subjected to a medically unnecessary sonogram by nonmedical personnel — a layer of invasive clinical bureaucracy that is often imposed in anti-abortion state laws. In another case, Lloyd "personally visited a young woman" to pressure her to change her mind about getting an abortion.
On top of deterring individual abortions, the resettlement office allegedly maintained a perverse system of surveillance over pregnant migrants in its custody. The New York Times reported last year that the office had meticulously tracked the pregnancies of teens, evidently seeking to monitor how far along they were in their pregnancies, in order to preempt them from seeking abortions.
Such measures reflect the administration’s determination to stop young migrant women from exercising — or even understanding — their reproductive rights, a harsh reflection of the laws that conservatives seek to broadly impose on American women. The strictures apply even for migrants whose pregnancy is the result of rape, despite the shockingly high rates of sexual assault that migrants experience on the harrowing journey to the U.S. border, as well as the prevalence of sexual violence in their home countries.
Reproductive rights violations pervade the immigration regime. In detention facilities run by Immigration and Customs Enforcement (ICE), the main immigration enforcement agency, female detainees have suffered extreme medical negligence, according to human rights advocates, including lack of reproductive health care. The administration has also made a concerted effort to imprison pregnant migrant women, despite the medical risk, detaining more than 1,650 pregnant women in fiscal year 2018. Many are reported to have faced abusive treatment, and several have suffered miscarriages. These violations have unfolded amid a broader assault on the human rights of women and children — the massive social trauma of the separation of families at the border.
The D.C. circuit court ruled in June that the office, which provides shelter for “unaccompanied alien children” who arrive at the border without families, had violated “their protected right to choose to terminate their pregnancies,” in addition to imposing other harmful policies restricting their access to basic health services. The ruling upholds a preliminary ban on the policy that was imposed last March, while the class action proceeds.
But the attacks on these women's reproductive rights start long before they reach the border, in their home countries. Women in El Salvador, Guatemala and Honduras face epidemic rates of murder and gender-based violence. The region’s hard-line anti-abortion laws — 97 percent of women in Latin America and the Caribbean live under abortion bans with minimal or no exemptions — mean that an unwanted pregnancy renders women even more vulnerable to poverty and abuse. Abortion restrictions themselves may not drive women to migrate, but fold into the structural oppression that often makes women's lives unbearable. Violence against women and denial of reproductive rights preclude every other kind of freedom, including the ability to leave an abusive partner, or to resettle in a safer community.
Those who seek refuge in the U.S., however, may find little relief. The Justice Department has sought to narrow the scope of asylum protections by excluding claims based on domestic violence and gang violence, which could severely limit humanitarian protections available to Central American women. Rights groups have challenged the measure, but gender inequity remains embedded throughout the immigration regime.
Migrant women inside and outside U.S. detention are extremely vulnerable to gender-based violence, as many are reluctant to come forward to authorities, and lack the legal and economic resources to escape abusive partners. They also face major barriers to reproductive care, including poverty, lack of insurance, and exclusion from federal health care programs (though, even if they qualify, the Hyde Amendment, bans federal funding for elective abortion).
Women across Central America are fleeing oppression, poverty, sexual assault and mass violence, but right now, many find even more oppression when they cross the U.S. border — deprived of due process of law and the basic right to health care and humane treatment. But a federal appeals court has now granted a unique reprieve to migrant teens by affirming their reproductive rights. That the courts heard their relentless demand for reproductive justice gives some hope to migrant women, and all women in the U.S., that their collective defiance might overcome a system of laws designed to silence them.