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.

4. Garza v. Hargan, 874 F.3d 735, 743 (D.C. Cir. 2017) (Henderson, J., dissenting), vacated sub

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