A series of events in 2014 brought significant attention to the United States-Mexico border. Over the summer, reports of an influx of undocumented Central American immigrants began circulating. (1) Though most coverage mentioned only children crossing the border, many of these young migrants traveled alongside their mothers. (2) Reports of this influx raised public awareness about the increased level of immigration enforcement at the border and the rise of federal family detention centers in the American southwest. That same year, a series of lawsuits against the State of Texas's House Bill 2, which implemented significant restrictions on reproductive health clinics and abortion services in the state, shone a light on the health crisis facing women in the Rio Grande Valley. (3) Though seemingly unrelated--and often treated as such by both government and media--these circumstances have had inter-related results, particularly for Latina women in south Texas communities.
Scholars have long understood immigration enforcement as a mechanism of racial control (4) and reproductive oppression as a tool of gender subordination. (5) Yet Latino/a rights and mainstream reproductive rights organizations have historically failed to address the way these mechanisms operate together to police immigrant Latina women. (6) Through an intersectional framework, this Note examines the outcomes of two coexistent and interrelated systems in the Rio Grande Valley and illuminates the racial control dynamics of State anti-abortion policies as well as the doctrinal shortcomings of abortion jurisprudence in providing remedies for marginalized women.
Although a vast body of work has addressed the intersectional dynamics of reproductive oppression and racial control, (7) most of this work looks at oppressive forces of state policies related to reproduction outside of the abortion context or at the negative outcomes of advocates' narrow focus on abortion rights. There is a historical reason for this: activists and academics concerned about the marginalization of women of color sought to address the various reproductive oppressions experienced by Black, Latina, Asian, and Native American women that have been largely neglected by the mainstream (mostly white) feminist/pro-choice movement. (8) Women at society's margins have faced forced sterilizations, (9) lack of access to culturally sensitive birthing care, (10) family caps on welfare benefits, (11) and the criminalization of miscarriages, (12) among other infringements of bodily and reproductive autonomy. (13) The American healthcare, welfare, and prison systems still frequently and pervasively deploy similar tactics. (14)
By focusing on anti-abortion legislation in this Note, I do not mean to suggest that the reproductive freedom (15) movement should prioritize abortion access--or "choice"--over these other violations of reproductive autonomy. Nor do I mean to suggest that abortion should continue to be held at the forefront of conversations surrounding reproductive freedom, rights, and justice. (16) Rather, I focus on anti-abortion measures here because advocates on both sides are currently waging battles over autonomous reproductive control couched in the language of abortion. (17) Furthermore, much of the academic work discussing abortion and abortion jurisprudence has failed to address the racial control dynamics of anti-abortion policies, the ways in which anti-abortion policies work alongside other subordinating structures and government forces to police race, and the negative impact these disciplining mechanisms have on women who are either not pregnant or who are and wish to carry to term. (18)
A long history of progressive advocates marginalizing both Latina women and their reproductive health needs have contributed to what Professor Kimberle Crenshaw calls "conditions of possibility." Disregard for the needs of women of color within these social movements, coupled with pervasive social stigma associated with reproductive healthcare, has rendered women of color especially susceptible to this particular form of contemporary, state-imposed gender and racial oppression. This Note uses undocumented women in the Rio Grande Valley as its site of study, looking at the conditions present in this geographic and social space that make its inhabitants particularly vulnerable. I point to the broad ripple effects of anti-abortion legislation on other areas of reproductive freedom and healthcare to show how one instance of reproductive oppression reinforces myriad others. Using frames established in earlier intersectional works, this Note illuminates the ways that anti-abortion measures work as a tool of racial oppression. My purpose is to move conversations about anti-abortion regulations from the doctrinal realm of "choice" and "undue burden" into more critical, intersectional discussions about the racial and gender dynamics at play in reproductive oppression.
Part I of this Note lays out the constituent systems of immigration enforcement and anti-abortion policies in recent Texas history and situates these systems within larger national trends. Part II addresses the way the systems work together, using a framework of "intersectional subordination" to highlight the particular violence they work upon undocumented immigrant Latina women and Latino/a communities more broadly. Part III gives a brief historical perspective on the intersectional failure of the Chicano/a (19) rights and reproductive rights movements. It argues that the marginalization of Latina women generally, and activism against Latina reproductive oppression specifically, has contributed to the development of an abortion jurisprudence that fails to remedy the expansive negative outcomes of anti-abortion policies. Finally, Part IV concludes by arguing that the undue burden standard fails to protect marginalized women from violations of their reproductive and bodily rights and argues for reworking abortion jurisprudence and reproductive justice advocacy to better encompass the full intersectional experience and racialized outcomes of anti-abortion policies.
Two Forces at Work
Texas is home to approximately 4.3 million immigrants, (20) the majority of whom are Latino (21) and about 1.7 million of whom are undocumented. (22) The foreign-born population in Texas, consisting of both documented and undocumented immigrants, is largely concentrated in seven areas of the state, one of which is the Lower Rio Grande Valley ("The Valley"). (23) Four counties comprise The Valley--Starr, Hidalgo, Willacy, and Cameron--and the region includes a string of colonias, unincorporated communities that house many of the region's Latino/a immigrants (24) and typically lack such infrastructure as electricity, paved roads, sewage and drainage systems, and clean water. (25) In total, The Valley has a population of approximately 1.3 million people. (26) The vast majority is Latino/a (27) and over one quarter is foreign-born. (28) The region is one of the most impoverished and poorly educated in the country, with almost half its residents reporting an education level below ninth grade and over a third living under the poverty line. (29)
These stark conditions of inequality and disadvantage make The Valley especially vulnerable to neoliberal policies that have dominated American governance in the past several decades. (30) The term neoliberalism refers to policies that dismantle the public safety net and transfer services into "the private realm of family and market." (31) Neoliberal policies shift public services into the private market and simultaneously strengthen punitive systems that intervene in disenfranchised communities, particularly those of color. (32)
The effects of state government divestment from the reproductive healthcare safety net alongside increased federal funding for immigrant detention and deportation provide an example of the mechanisms neoliberal governance deploys to contain oppressed communities. In the case of undocumented immigrant women in The Valley, this containment is both physical and social. The immigration system uses the threats of apprehension, detention, and deportation to prevent travel and movement, trapping undocumented immigrants in poor, undeveloped border communities. The intersection of that threat with the evisceration of the reproductive healthcare safety net especially burdens undocumented Latinas, policing their immigration status, bodies, and family structures, and limiting their ability to rise in the social hierarchy.
The Rise of Coercive Detention and Deportation
In the past decade, immigration enforcement has increased dramatically throughout the United States and, particularly, in Texas. (33) Though illegal immigration has largely "leveled off" over the past eight years, the Obama administration has adopted a strong enforcement policy in order to assert its commitment to securing the nation's borders. (34) Increased enforcement has manifested itself not only in the greater presence of immigration officials in border communities, but also in a dramatic rise of deportations (35) and an overall policy shift toward detention as a "deterren[t]" mechanism. (36) In 2013 and 2014, the federal government used an influx of women and children to justify a dramatic escalation of enforcement along the United States-Mexico border, especially in the Rio Grande Valley. (37) The increased presence of the Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"), and Customs and Border Patrol ("CBP") has had the government's intended effect of stemming the tide of new would-be immigrants, (38) but, meanwhile, has had a devastating impact on Latino/a communities in The Valley. (39)
The National Context
According to a recent report by the American Civil Liberties Union ("ACLU"), in 2013 the federal government conducted a record 438,421 deportations, the majority...