Practicing Pathology: The Rhetoric of Pathology in Jane Doe's Struggle to Obtain an Abortion in Federal Immigration Custody

• Date: 01 December 2019
• DOI: http://doi.org/10.1002/wmh3.320
• Published date: 01 December 2019

408

doi: 10.1002/wmh3.320

© 2019 Policy Studies Organization

Practicing Pathology: The Rhetoric of Pathology in Jane

Doe’s Struggle to Obtain an Abortion in Federal

Immigration Custody

Skye de Saint Felix

In October 2017, the stories of Jane Doe, Roe, and Poe, young women detained at a Texas immigration

detention center run by the Office of Refugee Resettlement (ORR)made national headlines. They were

pregnant, undocumented immigrants who were denied access to abortion because the ORR argued

that they were “not people for constitutional purposes.”Using rhetorical silence, paternalistic rhet-

oric, and dehumanizing rhetoric, ORR director Scott Lloyd had the ultimate power of definition that

allowed him to rhetorically pathologize these women as undeserving of rights and health care. Tapping

into cultural and historical discourses that treat abortion and immigration as pathological and

measures of an afflicted society, Lloyd and ORR policy constituted a rhetoric of pathology that

demonized these women for their “crimes”of illegal immigration, sex, and requesting abortion. Their

stories and the rhetorical strategies used to justify their oppression are particularly important in the

continued fight for women’s bodily autonomy and immigrant rights in a time of heightened border

security, deportation, and family separation.

KEY WORDS: abortion, immigration, pathology

Introduction

In the United States, immigration and abortion are polarizing social and

political issues, but these tensions seemed to be amplified in the aftermath of the

2016 presidential election of Donald Trump. His election was seen by some as

partially affirming xenophobic rhetoric and subsequent policies, leading to a

flourishing of anti‐immigrant sentiment. Not only did Trump run on a campaign

promise to “build a wall”between Mexico and the United States, but, once in office,

he further targeted immigrant rights with the “Muslim ban,”calls to repeal the

Deferred Action for Childhood Arrivals (DACA)and deportation protections for

Dreamers, and increasing the Immigrant Enforcement Agency’s(ICE)power

(Escalante, 2018). While it seems that immigrants are disproportionally targeted

under Trump, young immigrant women have faced an entirely new set of chal-

lenges regarding abortion access. In October 2017, the stories of three immigrant

teens seeking abortions while in federal custody, Jane Doe, Jane Roe, and Jane Poe,

made national headlines. These young women were detained by the federal Office

of Refugee Resettlement (ORR), under the Department of Health and Human

Services (DHHS), while immigrating to the United States. From March to December

2017, at least seven young women in ORR custody requested an abortion and were

initially denied (Sherman, 2018).

Any unaccompanied minor immigrating to the United States from Central

America who is detained at the U.S.‐Mexico border is immediately placed in ORR

custody, but Doe, Roe, and Poe were denied release from the shelter in Brownsville,

Texas (Vasquez, 2018b). This was particularly problematic because their continued

detention prevented them from obtaining the abortions they requested, igniting

social debates about the intersection of immigrant rights and abortion rights.

Although the stories of these women gained attention from activist groups like

Planned Parenthood and NARAL Pro‐Choice America, the American Civil

Liberties Union (ACLU)discovered numerous immigrant women facing similar

injustices who were unable to get help. Doe, Roe, and Poe shed light on a dan-

gerous pattern and an ORR cultural norm of detaining pregnant immigrants for

around 6 weeks, refusing to let them see a credible doctor, and imposing anti‐

abortion ideologies onto young women in vulnerable positions (Amiri, 2018). After

the stories of these women were publicized, reports surfaced of immigration agents

ignoring pregnant detainees during miscarriages and leaving them to bleed for

hours or days without medical attention (Folley, 2018). These actions violate the

Flores Agreement (1997)which states that the government must provide or arrange

for “appropriate routine medical …care”including “family planning services…

and emergency health care services”(ACLU v. Wright, 2017, p. 2). Despite this

injunction, many immigrants were subjected to cruel, inhumane conditions.

In this paper, I investigate the story of Jane Doe, the first young woman to gain

national attention and whose treatment by the ORR became the basis for the

Supreme Court case, Garza v. Hargan (2018). Because of changes to ORR's policy

regarding unaccompanied children (UCs)under the Trump administration, the

ORR headed by Scott Lloyd denied Doe her abortion requests and instead

promoted a firm anti‐abortion ideology. First, I discuss the changes to ORR policy

under conservative leadership and how they affected Doe. Then, I explain how

rhetoric surrounding Doe’s case embodies the rhetoric of pathology, which justified

denying her abortion rights. I argue that the rhetoric of pathology worked by

silencing Doe, positioning the ORR and Lloyd as morally superior to her, and

dehumanizing her as undeserving of care. I conclude by explaining the aftermath of

Doe’s case, including Garza v. Hargan.

ORR Policy and Jane Doe

On March 4, 2017, appointees from the Trump administration revised the

current ORR policy regulating health care in youth immigration detention centers.

Then‐Acting Director of the ORR, Kenneth Tota, enacted a policy, which stated,

“the Director of the ORR is empowered by Congress to make all medical decisions

for the unaccompanied alien child in place of the child’s parents”(Campaign for

Accountability, 2018, p. 9). Based on Tota’s change, Lloyd, who was appointed

quickly after the policy revision, was empowered to implement a “blanket policy

de Saint Felix: Practicing Pathology 409