Immigrants in the United States are a broad and diverse group, with varying levels of “status.” From permanent residents to non-immigrant visa holders to undocumented immigrants, all are impacted by the decisions made in Washington, D.C.
On June 24th, 2022, the United States Supreme Court overturned Roe v. Wade, 410 U.S. 113 (1973), striking a massive blow to reproductive rights in the country. With this reversal, given the work we do here at McEntee Law, we wanted to look at the repercussions this will have on immigrants, some of whom are already marginalized.
State Abortion Bans/Restrictions
The choice to have a medical abortion is an extremely personal and complicated one for many individuals. There are various reasons why someone may want, or need, a medical abortion and now there are many new barriers for millions who may seek abortions.
In June 2022, we saw the U.S. Supreme Court overturn the seminal case of Roe v. Wade. When Roe was decided in 1973, the U.S. Supreme Court held that the right to have a medical abortion was covered under the Due Process Clause of the 14th Amendment, which provides a fundamental “right to privacy.” The Due Process Clause has also been held to cover the right to obtain and use contraception, the right to enter into sexual and romantic relationships, the right to marry (including interracial and same-sex marriages), the right of family members to live together, and others. The Roe decision limited individual states in banning the medical procedure altogether – although some states, like Texas, tried to find inventive ways around this.
Now that the U.S. Supreme Court has reversed Roe, many states are banning or have already banned abortion. As of the writing of this post, 15 states have now banned or mostly banned abortions, 5 states had passed full or six-week abortion bans but were blocked by courts, and West Virginia’s near total abortion ban was recently signed into law. For more information on these bans, please see this article by The Washington Post. The majority of these states are southern and generally conservative however it’s worth noting that many of them also have the largest influx of immigrants thanks to their geopolitical makeup. For example, in Texas, 16.8% of its residents are foreign-born and in Arizona, the figure is 13.2%. Thus, these abortion bans will affect the personal rights of millions of immigrants, in particular in states with full bans in place.
Given this, we want to outline the impact this will have on immigrants depending on their status in the U.S.
Refugees & Asylum Seekers
The United States is seen as a “nation of immigrants” and it’s important to note that not all who arrive here do so willingly or because it was their first choice – many come here desperate for refuge.
You may likely have heard the terms “refugee” and “asylee” before – and some people use these terms interchangeably – but there are some important differences between the two groups.
A refugee is “a person who is outside their country of origin and is unwilling or unable to return because of persecution or a well-founded fear of persecution based on: race, religion, nationality, membership in a particular social group, or political opinion.” 9 FAM § 203.2-1.
An asylee is “a noncitizen in the United States or at a port of entry who is found to be unable or unwilling to return to their country of nationality, or to seek the protection of that country because of persecution or a well-founded fear of persecution. Persecution or the fear thereof must be based on the individual’s race, religion, nationality, membership in a particular social group, or political opinion.” 9 FAM § 203.2-2.
In other words, the main difference between a “refugee” and an “asylee” is the person’s location. Refugees are outside of the United States when they are considered for resettlement, whereas asylum seekers can only submit their applications for asylum while physically present in, or at a port of entry to, the United States.
Refugees – and sometimes asylum seekers too – tend to migrate en masse, that is, in large numbers, and due to a specific event, such as civil war, political upheaval, or natural disasters in their home countries. According to the Department of State’s Bureau of Population, Refugees, and Migration Office of Admissions at the Refugee Processing Center Department of Homeland Security, in fiscal year 2021 there were 11,411 refugees resettled into the U.S. predominantly from the Democratic Republic of the Congo, Syria, Afghanistan, Ukraine, Myanmar, Sudan, Iraq, El Salvador, Eritrea, and Iran.
To reiterate, refugees are fleeing extreme instances of instability in their home countries. They are searching for a country with basic human rights, political stability, high standards of healthcare, and, most importantly, a peaceful land to live without fear for their lives. Asylum seekers are similarly looking to escape persecution due to being government critics, journalists, whistleblowers, etc. The United States, due to its size and by virtue of its history in championing human rights abroad, has one of the highest numbers of refugee and asylee applicants around the world.
Many refugees and asylees arrive in the U.S. with pre-existing medical problems, no knowledge of the English language or Western culture, and Post-Traumatic Stress Disorder (PTSD). Some refugees/asylum seekers arriving in the U.S. may need/want abortions because they were victims of rape or gender-based violence in their home countries or on the treacherous journey to the U.S.
Those who go to live in states with abortion bans will now have to travel to another state to obtain care. In total, 16 states and Washington, D.C. protect the right to abortion, and states like Colorado and Illinois, where abortion is still legal, have become safe havens for people seeking abortions, particularly across the restrictive regions of the South and Midwest.
The option to travel may not be readily feasible for newly arrived refugees and asylees who are trying to navigate the complex maze of reproductive health care along with all other challenges they are now facing, and they may not be aware of the restrictions in their new home state.
Before this recent Supreme Court decision, reproductive health care was already difficult to access for lots of immigrants, who are more likely to be uninsured given residency and immigration status restrictions on Medicaid eligibility. Now, given increasing reliance on crossing state lines to obtain abortions, undocumented immigrants are left with few to no options, thereby infringing on their human rights and leaving them to slip through the cracks.
Some immigrants cannot travel to receive abortions as they are in the midst of immigration proceedings and may have travel restrictions imposed on them. Undocumented immigrants also may suffer from fear of being stopped by border patrol searches that can occur within 100-miles of the U.S. border. The U.S. Border Patrol maintains a network of some 110 checkpoints along U.S. roads. The fear of being stopped – and possibly being deported – makes it very difficult for many undocumented immigrants to travel across state lines.
This can, therefore, inhibit immigrants’ ability to cross state borders in search of healthcare services. Historically, legal barriers to accessing abortion increases the rates of unsafe and illegitimate practices popping up and the dangers of this cannot be overstated as health complications can lead to increased maternal mortality rates.
Per current policy, ICE (Immigration and Customs Enforcement) facilities allow abortions for migrants in cases of rape, incest, or a threat to the mother’s life. In response to the overturning of Roe v. Wade, ICE issued a new memo and confirmed that detained immigrants are still entitled to access abortion services, if needed.
“This memorandum serves as a reminder of existing ICE policies and standards requiring that pregnant individuals detained in ICE immigration custody have access to full reproductive health care.” Thus, if a detained pregnant individual is in a state with an abortion ban, it may be necessary to transfer them within an area of responsibility (AOR) or to another AOR, when appropriate and practicable, to ensure such access.
Many immigrants have left behind everything they know. Many may not know or understand their legal rights or options when it comes to abortion. Ensuring the mental and physical welfare of all people, regardless of immigration status, race, gender, sexual orientation, or class, should be imperative to the very integrity of our country.
All immigrants deserve to have autonomy over their bodily choices without fear of persecution or deportation, which, unfortunately, is becoming increasingly rare under this new post-Roe v. Wade era.
If you are an immigrant looking for healthcare services, please see Planned Parenthood’s “Know Your Rights Guide.”
If you would like to learn more, please see the following resources and websites: