By Asees Bhasin
While reproductive injustice against immigrants is not new, they are now even more vulnerable to reproductive oppression in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning the constitutional right to abortion.
Immigrant reproduction has long been vilified and opposed, with immigrant parents facing accusations of being hyper-fertile and giving birth to “anchor babies.” Additionally, pregnant immigrants have faced additional structural barriers to accessing necessary abortion care. This article explains how these injustices are likely to be exacerbated by the Dobbs ruling.
Already, abortion bans that are on the books in some states punish the abortion provider, making it a felony to provide an abortion. Soon, we will see abortion seekers criminalized in the same way. For instance, in May 2022, the Louisiana Legislature introduced a bill that would redefine personhood to begin at the moment of fertilization, and would allow prosecutors to charge anyone who undergoes or provides an abortion with murder.
History also offers several examples of women who found themselves entangled with the criminal justice system for receiving abortions. In 2015, Indiana resident and Indian immigrant Purvi Patel was sentenced to 20 years in prison for child neglect and feticide for self-managing an abortion (her sentence was later reduced). In 2017, a similar fate befell Latice Fisher, a Black mother of three, who was charged with second-degree murder for stillbirth of her fetus. In Fisher’s case, while there was no evidence of her self-inducing an abortion, her Google search history, notably the search term “how to buy Misopristol Abortion Pill Online” was weaponized against her in trial.
While criminalization of people suspected of having abortions is terrifying in and of itself, there are additional burdens that undocumented pregnant people may face in this context. Immigration law dictates that one of many grounds for deportation from the U.S. is if the undocumented person is convicted of a crime that is either an aggravated felony or one of “moral turpitude.” Immigrants convicted for aggravated felonies or crimes of moral turpitude may be deported without a hearing in front of an immigration judge, may be disqualified for relief such as asylum, may become permanently inadmissible to the United States, and may face up to 20 years in prison if they reenter and are apprehended.
The Immigration and Nationality Act has a long list of conduct that could be possibly considered as an aggravated felony, many of which could apply to convictions for receiving abortions, including, but not limited to, murder and “a crime of violence for which the term of imprisonment is at least one year.” Not only could abortion be considered an aggravated felony, it could also be construed as a crime involving moral turpitude [“CIMT”], a term that has been criticized for being vague and nebulous.
While there isn’t much case law interpreting whether receiving an abortion is indeed a CIMT, a 1946 decision by the Board of Immigration Appeals in The Matter of M plainly stated that the crime of abortion was one of moral turpitude. While anti-immigrants and pro-forced birthers may use this case to argue for abortion to be construed as a CIMT, a closer read of the statute in that case shows that it defines the crime of abortion as one that required the “procurement of abortion” (the Defendant was charged for performing an abortion). While this case does not leave us with much optimism, it is hard to find historical evidence where receiving an abortion was construed as a CIMT. Regardless, due to the significant overlap in anti-abortion and anti-immigration ideology, it would not be surprising to see states that restrict abortion pass explicit guidance on how to regulate or prosecute immigrants seeking abortions. Similarly, conservative judges may interpret abortions to fall within the purview of CIMTs thereby making those who are undocumented immediately deportable.
Pregnant people in immigration detention have always faced significant hardships in accessing abortion, even though many of these pregnancies were caused due to rape and sexual violence faced while crossing the border. Immigration and Customs Enforcement (ICE) only pays for abortions in cases of rape, incest, or danger to the mother’s life, and survivors of sexual violence are often unaware of these exemptions, or are unable to articulate that they fall within these categories. Further, as seen in the case J.D. v. Azar, immigrants are prevented from receiving timely care by being forced to jump through hoops such as requirements of counseling at religiously-affiliated “crisis pregnancy centers” and the provision of medically unnecessary procedures. The reality on the ground is harsher after Dobbs with several asylum seekers finding themselves in immigration detention facilities situated in states where abortion is illegal. The Biden Administration plans to instruct detention centers to ensure that immigrant women in custody continue receiving abortions. This will include transporting pregnant women to other states to receive an abortion if they are being detained in a state where the health procedure is now illegal. While this is a good first step, there still will be delays in receiving care, detainees may defer care due to distrust towards the government and medical establishment, and they may fear that receiving abortion care will be used against them at a later stage.
Seeking out-of-state care is not only unfeasible for immigrant detainees, but also for those immigrants who are outside facilities. For instance, a growing number of immigrants are forced to wear electronic monitoring devices or ankle monitors as they await outcomes in immigration proceedings. For people under this type of surveillance, leaving the state to receive an abortion may be impermissible, or impossible to do without raising the awareness of immigration enforcement officials. Regardless of whether or not they are facing court proceedings, being undocumented may be accompanied by fears attached to cross-state travel for various reasons including what scholars have termed the Traffic-Stop-to-Deportation Pipeline.
This is to say nothing of the people already being denied treatment for a host of other medical conditions such as miscarriages, ectopic pregnancies, and other complications arising from pregnancy, simply due to their adjacency to abortion care. We must remember that the criminalization of abortion in several states will be accompanied by an expansion of the surveillance state which, as stated before, may have life-altering consequences for immigrants, and their families and communities. The Dobbs regime does not only deny life-saving health care to pregnant people, but also creates conditions where pregnancy loss is opened up to investigation and criminalization, due to its resemblance to self-managed abortion. For undocumented women, the discovery of any pregnancy complication may lead to investigation and prosecution, and to being discovered as undocumented, thereby creating a risk of deportation. This may also have the effect of further deterring undocumented immigrants from receiving care, which is a travesty given that immigrants already have lower rates of accessing prenatal care and higher rates of pregnancy complications.
The growing push for the constitutional recognition of fetal personhood — the idea that a fertilized egg is a constitutionally-protected being independent from the pregnant person — presents further concerns for immigrants in the U.S. The prospect of fetal personhood raises questions about when U.S. citizenship would attach to the fetus — at conception, or birth? If a fetus conceived on U.S. soil or projected to be birthed on U.S. soil is indeed a citizen, it casts further doubt on whether a pregnant person carrying a U.S. citizen can be deported. A similar argument has been and could also be used to secure public benefits such as prenatal care for undocumented pregnant people, although advocates for Reproductive Justice have been and should be cautious of legitimizing fetal personhood. If fetal personhood is legitimized and the political climate remains as anti-immigrant as it is, one might expect drastic changes in immigration rules and behaviors governing the admission of immigrants of child-bearing age at the border and upon entry. After all, it was only two years ago when we learned about several immigrant women receiving forced hysterectomies at an immigration detention facility in Irwin County.
As noted by several scholars, the Dobbs decision will have impacts on laws governing areas other than reproductive rights. In Dobbs, one of the majority’s principal objections to Roe v. Wade was that the Constitution made no reference to the right to abortion, and that the right was not protected by any constitutional provision including the Fourteenth Amendment. Justice Thomas’ concurring opinion in this case implored the Court to reconsider other precedents that implicated the substantive due process clause and were “demonstrably erroneous.” In addition to jeopardizing outcomes in cases such as Loving, Griswold, Lawrence, and Obergefell, following such guidance in Dobbs would also endanger Plyler v. Doe, a case that held that the Fourteenth Amendment ensured that all children, regardless of their immigration status, had a constitutional right to a free public education from kindergarten to 12th grade. Perhaps picking up on the Constitution’s absence of any mention of undocumented children’s right to education, after a draft opinion in Dobbs was leaked, Texas Governor Greg Abbott said that he would resurrect a challenge to Plyler due to the educational expenses of educating migrants.
Each day we learn about new ripple effects caused by the decision in Dobbs. As these implications reveal themselves, we should keep at the fore the reproductive violence against immigrants prior to Dobbs, as well as the devastating situation in its aftermath.
Asees Bhasin is Senior Research Fellow at the Solomon Center for Health Law & Policy at Yale Law School.
