Dobbs Restricts Access to Abortion Services for Asylum Seekers, Represses Reproductive Rights
By Ryan Huynh, Intern, Refugee Representation
Late last month, the Supreme Court’s decision in Dobbs that overturned Roe v. Wade and stripped hundreds of millions of people of their fundamental human right to abortion care went into effect. Reproductive surveillance and restricted access to reproductive healthcare disproportionately affect women of color, low-income women, LGBTQ+ women, and gender non-conforming pregnant people, among many others. For pregnant asylum seekers—some of whom are also survivors of and have fled gender-based and other sexual violence and repression—this decision threatens to further erode their reproductive rights and autonomy.
Hundreds of thousands of asylum seekers live in states where access to abortion has or is expected to be heavily limited. At least 250,000 asylum seekers have pending immigration court cases in states where the right to abortion has now been almost entirely stripped (save for extremely limited and ill-defined exceptions for the life of the pregnant person, and in some states, for rape and/or incest) or is expected to be shortly. As of early August 2022:
- In Texas, Tennessee, Louisiana, Georgia, Ohio, and Missouri, which have nearly 120,000 pending asylum filings in immigration court, there is either a near total ban on abortion, one expected shortly, or a ban for abortions after 6 weeks of pregnancy.
- In Florida, where nearly 70,000 asylum filings wait adjudication in immigration court, the legislature has generally banned abortions after 15 weeks and is considering even more restrictive legislation.
- In North Carolina (8,548 cases in immigration court), Nebraska (10,277), and Virginia (37,185), abortion is legal up until about 20 weeks or to the point of viability but is in serious jeopardy of further restriction depending on political shifts within the state legislatures.
- In Arizona (6,777) and Utah (2,310), sweeping abortion bans were recently blocked. However, access to abortion services remains at significant risk as it no longer is protected under the U.S. Constitution.
Additionally, the Asylum Office is considering the cases of thousands of asylum seekers and their family members who live in states with current or expected bans on abortion, including those with pending applications before the Miami (130,820 applications), Arlington (55,471), Houston (42,472), Tampa (16,691), and New Orleans (7,950) asylum offices.
While travel to states with less restrictive abortion laws may be an option for some, a variety of barriers could hinder this path for asylum seekers and other people without permanent immigration status. For one, undocumented immigrants, including some asylum seekers who have not yet filed their application for asylum, would be at risk of detention and deportation if stopped at one of the over 110 U.S. Border Patrol interior immigration checkpoints located near the southern and northern borders. And for the roughly 240,000 people awaiting their court hearings who are enrolled in Immigration and Customs Enforcement (ICE)’s Intensive Supervision Appearance Program, a smartphone app or a GPS ankle shackle tracks their movements and can be used to restrict out-of-state travel. In fact, the threat of immigration detention has already prevented some undocumented immigrant women from leaving the Rio Grande Valley in Texas in order to reach states with less restrictive abortion laws.
Detained asylum seekers face additional restrictions and dangers when it comes to reproductive healthcare. In 2018 alone, ICE detained pregnant people over 2,000 times. ICE also regularly denies pregnant asylum seekers and other immigrants in detention access to abortion services. Overturning Roe v. Wade puts this population at even greater risk as many ICE detention centers are in states with, or at risk of implementing, severe restrictions on abortion. During the 2022 Fiscal Year, for example, 30 percent of all detained immigrants, many of whom are refugees seeking asylum protection, were held in detention centers in Texas. ICE holds thousands of more asylum seekers in detention facilities in other states where access to abortion is also strongly restricted or at-risk including Arizona, Florida, Georgia, Louisiana, Mississippi, and Virginia. Although the Biden administration released policy guidance in July 2021 generally deterring ICE from detaining individuals who are pregnant, postpartum, or nursing, this guidance is far from all-encompassing, and as seen during the Trump administration, can be reversed with a change in the presidency.
For unaccompanied children placed in the custody of the Office of Refugee Resettlement (ORR), which is responsible for providing care to unaccompanied immigrant children until they can be reunited with family or other caregivers in the United States, access to abortion has, in the recent past, been subject to repressive restrictions. In 2017, ORR prohibited a 17-year-old from Central America from getting an abortion. That same year, the head of the ORR admitted to tracking the menstrual cycles of pregnant teenagers in order to deny them access to legal abortion services. Although ORR eventually amended its policies in 2020 to ensure access to confidential reproductive healthcare including abortion, Dobbs could be used by a future administration to prohibit access to abortion services for this population again. For example, last year, when Texas’ 6-week ban on abortion took effect, ORR issued guidance that unaccompanied minors in Texas in need of abortion care who did not meet the limited exceptions in the state law, would be transferred to a state that could provide such care. Considering Dobbs, this guidance is in jeopardy if there is a change in administration.
The aftermath of Dobbs also opens the door for states to criminalize abortion. As the Center for Gender and Refugee Studies has noted, the criminalization of abortion will unjustly burden undocumented immigrants, “for whom contact with the criminal justice system can lead to detention, deportation, and permanent family separation.” Pregnant asylum seekers who seek out abortion care could risk not only criminal prosecution, but also denial of refugee protections, or even deportation. The discretionary nature of asylum allows room for an immigration judge to deny an asylum seeker’s case on a variety of grounds, including a judge’s determination that the applicant lacks “good moral character.” The criminalization of abortion and an immigration judge’s personal opposition to abortion care could therefore lead to the denial of asylum, even without a criminal conviction at play.
Access to healthcare in the United States is highly limited and insufficient for immigrants, including for asylum seekers in need of reproductive healthcare. About one quarter of documented immigrants and over 40 percent of undocumented immigrants were left uninsured in 2020. Before being granted asylum, access to healthcare generally depends on the state where the asylum seeker lives. In all but a few states, asylum seekers are not eligible for Medicaid, and are not eligible to purchase health insurance through the Marketplace until they have been granted work authorization—meaning that their application for asylum has been pending for at least 180 days. In many of these same states, Medicaid will not cover abortion care except in very limited circumstances. Additionally, some asylum seekers who mistakenly fear that getting state-subsidized health insurance will damage a future application for permanent residence may not apply for coverage that they are eligible to receive. While public health infrastructure such as Planned Parenthood health centers care for many uninsured pregnant people, provisions for reproductive care within these programs have long been under attack. Although the 1976 Hyde Amendment already bars federal funds to pay for abortion (with exceptions for cases of rape, incest, or risk to the life of the pregnant person) some legislative proposals have sought to further defund organizations like Planned Parenthood. Public health services offering abortion care may be further threatened following the Supreme Court’s recent decision, especially under a different administration.
Earlier this month, Human Rights First joined over 150 other immigration, criminal justice, and civil rights organizations in demanding that the Department of Homeland Security (DHS) ensure reproductive rights for all migrants in the United States. The letter calls on DHS to not allow criminal arrest or conviction related to abortion care to affect immigration enforcement action or to restrict immigration relief, to guarantee access to reproductive healthcare including abortion care to all those in its custody, and to allow migrants to travel between states safely and freely for abortion care.
These essential demands are the bare minimum actions DHS must take, but more expansive reforms in access to healthcare are needed so that pregnant asylum seekers and other immigrants in the United States are treated with dignity, ensured holistic healthcare, and guaranteed their bodily autonomy.
Data on Pending Immigration Court Asylum Filings from https://trac.syr.edu/phptools/immigration/asyfile/
Data on Status of Abortion by State: https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html