Does Fear of Immigration Trump Love For Fetal Life? How Trump’s Policies Quietly Endanger Migrant Fetuses in Spite of the Administration’s Pro-life Agenda
DOES FEAR OF IMMIGRATION TRUMP LOVE FOR
FETAL LIFE? HOW TRUMP’S POLICIES QUIETLY
ENDANGER MIGRANT FETUSES IN SPITE OF THE
ADMINISTRATION’S PRO-LIFE AGENDA
LAUREN A. VARGA*
TABLE OF CONTENTS
INTRODUCTION ......................................... 632
I. FETAL PERSONHOOD REIMAGINED AND EMBOLDENED DURING THE
TRUMP PRESIDENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635
A. Background: Legal Decisions and Political Changes
Setting the Stage for the Modern Pro-Life Regulatory Wave 635
B. Abortion Bans by States and Federal Governments During
the Trump Presidency........................... 638
1. State Bans and Restrictions .................... 638
2. Federal Abortion Legislation and Policy .......... 640
C. Other Statutes: Forced Sonograms, Biased Counseling,
Fetal Cremation Requirements, and Unprecedented
Charges Against Pregnant Women for Prenatal Harm .... 641
II. IN SPITE OF THE MODERN PRO-LIFE REGIME, THE TRUMP
ADMINISTRATION’S IMMIGRATION POLICIES HAVE CAUSED FETAL
HARM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 643
A. The 2017 ICE Policy Eliminating Humanitarian Parole for
Pregnant Detainees and the Increase in Miscarriages by
Women in DHS Detention . . . . . . . . . . . . . . . . . . . . . . . . 644
1. Background of the Policy Change . . . . . . . . . . . . . . . 644
2. The Risks Posed to Fetuses While Pregnant Migrants
Are in DHS Detention . . . . . . . . . . . . . . . . . . . . . . . 646
* Lauren A. Varga, J.D. Candidate, Columbia Law School, Class of 2021; B.A., Rutgers University,
2013. I thank Professor Carol Sanger for her guidance and my partner Lorenzo Santos for his constant
support. © 2021, Lauren A. Varga.
631
3. Other Reproductive Harms in ICE Detention:
Nonconsensual Hysterectomies and Sterilization . . . . 652
B. The Migrant Protection Protocols, or “Remain in Mexico”
Policy, Endangers Pregnant Migrants and Their Fetuses . . 655
1. Inclusion of Pregnant Women in the Migrant Protection
Protocols Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655
2. Dangerous Conditions for Pregnant Women Placed in MPP 656
III. CONFLICTING STANDARDS OF TOLERABLE FETAL HARM: ANALYZING
TRUMP’S POLICIES UNDER MODERN PRO-LIFE PRINCIPLES . . . . . . . . 658
A. ICE’s 2017 Detention Policy Fails to Adequately Consider
the Harm it Poses to Detained Women and Fetuses, and
Does Not Offer a Rationale as to Why Those Harms are
Necessary to Achieve its Goals . . . . . . . . . . . . . . . . . . . . . 659
B. The Inclusion of Pregnant Women in MPP is Ineffective and
Unnecessary to Achieve its Proffered Goals. . . . . . . . . . . 661
IV. DISCUSSION: HOW TO PROTECT PREGNANT MIGRANTS WITHOUT
LEGITIMIZING FETAL PERSONHOOD ........................ 664
A. Noncitizens Lack Meaningful Constitutional Protections From
the Harm They Endure While in DHS Detention and MPP . . . 665
B. Modern Immigration Policies Are Punitive in Nature, and
Should Trigger Constitutional Protections for Criminal
Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669
“The essential function of government is to protect the most vulnerable
among us, those who don’t have a voice.” – Governor Michael
DeWine, while advocating for the adoption of an abortion ban in Ohio.
INTRODUCTION
In September 2017, a minor crossed the border into the United States
alone, without her parents or any other family members.
1
Because she
entered the country surreptitiously, she was apprehended immediately.
2
The
1. See Findings of Fact in Support of Amended Temp. Restraining Order at 1, Garza v. Hargan, 304
F. Supp. 3d 145 (D.D.C. Mar. 30, 2018) (No. 17-cv-02122) [hereinafter Garza Findings of Fact].
2. Id.
632 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:631
Office of Refugee Resettlement (ORR), the agency responsible for unaccom-
panied migrant children, sent her to a shelter.
3
She was seventeen years old at
the time, and also eight weeks pregnant.
4
After discovering her pregnancy,
she decided to have an abortion, “presumably in light of her dire circumstan-
ces.”
5
Eventually, Jane Doe received an abortion, but not without a battle that
made its way to the Supreme Court.
6
Because Texas, the state where she was being sheltered, required parental
consent for minors to receive an abortion, she sought out and received a judi-
cial bypass of Texas’s parental notification and consent requirements and
found a requisite guardian to transport her to the facility where she received
the procedure.
7
Still, she was denied an abortion. ORR refused to allow her to
leave the shelter to complete the procedure because of a directive that feder-
ally funded shelters could not take “any action that facilitates” abortions
without the ORR director’s approval; transportation would constitute facilita-
tion.
8
The government also attempted to dissuade her from obtaining an abor-
tion using other tactics. First, they required her to undergo counseling from a
religiously affiliated pregnancy center.
9
Next, they required her to view a
sonogram of the fetus.
10
In addition, ORR attempted to force Jane Doe to
notify her parents of her decision to have an abortion, even after receiving a
judicial bypass for the parental consent requirement, despite the fact that Jane
Doe had been abused by her parents.
11
In the same year the federal government fought to prevent seventeen-year-
old Jane Doe from terminating her pregnancy, another woman sat in custody
at the border. Like Jane Doe, she was also pregnant.
12
Unlike Jane Doe, she
wished to become a mother.
13
Under the Obama administration, she, like
other pregnant asylum-seekers, would have been paroled into the country
while awaiting adjudication of her asylum claims.
14
However, she was
instead held in immigration detention.
15
Teresa was thirty-one years old and
four months pregnant when she was detained.
16
She repeatedly notified
3. Id.
nom., Azar v. Garza, 138 S. Ct. 1790 (2018).
5. Id. at 736 (Millett, C.J., concurring).
6. See Azar v. Garza, 138 S. Ct. 1790 (2018).
7. See Garza Findings of Fact, supra note 1, at 1.
8. Id. at 2.
9. Id.
10. Id.
11. Plaintiff’s Memorandum in Support of her Application for a Temp. Restraining Order at 8, Garza
v. Hargan, 304 F. Supp. 3d 145 (D.D.C. Mar. 30, 2018) (No. 17-cv-02122).
12. Complaint from Women’s Refugee Comm’n et al., to Cameron Quinn, Officer for Civil Rights &
Civil Liberties, Dep’t of Homeland Sec., John Roth, Inspector General, Dep’t of Homeland Sec. (updated
Nov. 13, 2017), https://www.womensrefugeecommission.org/research-resources/joint-complaint-ice-
detention-treatment-of-pregnant-women/ [hereinafter WRC Complaint].
13. Id. at 8.
14. See infra Part II.A.
15. See WRC Complaint, supra note 12.
16. Id. at 8.
2021] DOES FEAR OF IMMIGRATION TRUMP LOVE FOR FETAL LIFE? 633
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