(UPDATED) The Health Care Bill and Women’s Health: Wins, Losses, and Challenges

Jodi Jacobson

Today, President Obama will sign into law the Affordable Health Care for America Act.  An initial summary of the wins, losses, and remaining challenges for women's health and rights.

Updates and additions to the original information provided in this analysis can be found below, including “right to pump” mandate extended to every state to allow mothers to pump breastmilk at work and expansion of efforts to address postpartum depression.

See also today’s article (March 24th, 2010) on expansion of nursing and midwifery services in the health reform bill.

Today, President Obama signed the Affordable Health Care for America Act into law.  Many aspects of the Act apply across the board to Americans regardless of age, sex, health history or employment status.  Some of the provisions are of particular importance to women.  Below is an initial summary of the wins, losses, and remaining challenges for women’s health and rights.

WINS:

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Elimination of “pre-existing conditions:”

The Act bars insurance companies from denying coverage to children due to pre-existing conditions, including children up to age 19.  This provision becomes effective 6 months after signing.

The Act bars insurance companies from discriminating against adults based on pre‐existing conditions, health status, and gender.  This is a critical provision for women, but one that does not become effective until 2014.

Why is this important? To date, insurance companies have discriminated heavily against women in various markets by categorizing as “pre-existing conditions” a wide range of health concerns and conditions.  For example, insurance companies have rejected victims of domestic violence and rape and have classified women who have undergone cesarean sections as having “pre-existing conditions.”  In some cases, prior pregnancies have been considered pre-existing conditions. The new bill expressly prohibits insurers from rejecting an applicant based, essentially, on being a woman.  Again, this provision does not go into effect until 2014.

Increases access to OB-GYN and midwifery care:

Plans can not require pre-authorization or referral for OB-GYN care.  This provision becomes effective 6 months after signing.  New policies sold on the insurance exchanges would be required to cover a range of benefits, including maternity care. 

According to the Association of Certified Nurse-Midwives, the original bill in the House of Representatives, since replaced by the Act to be signed today by the President, would have expanded access to midwifery care by addressing inequities in how Certified Nurse‐Midwives (CNMs) are
reimbursed under Medicare, provided funding for home visitation by nurses for Medicaid families during or after pregnancy and improved Medicaid coverage of freestanding birth centers—a high‐quality, high‐value option for women and their families, according to the Association of Certified Nurse-Midwives.  As of this writing it is not clear whether the bill to be signed today includes these provisions, but look for updates.

Partial elimination of gender rating:

Many insurance plans charge women more for insurance coverage than they do men of the same age and health status, a practice known as “gender rating.” The Act eliminates this practice for some women but not for others. Gender rating (and other forms of rating) for individuals and small employers (up to 100 employees) will be prohibited.  It will not apply to plans offered by employers with more than 100 employees, unless a state allows large employers to enter the insurance exchanges after 2017.  In the latter case, rating rules apply to all large employer coverage in that state.  The National Women’s Law Center offers materials that explain the practice of and implications for women of gender rating.

Free preventive care under new plans.

The Act requires new private plans to cover preventive services with no co‐payments and exempts preventive services from deductibles.  Effective 6 months after enactment. This requirement will apply to all plans beginning in 2018.  Preventive care is of course critical for all ages and both sexes, but dramatically expands women’s access to screening for cervical and breast cancer and other forms of preventive reproductive and sexual health care unique to women.

Expands funding for and access to community health centers and primary health care doctors.

The Act increases funding for Community Health Centers, to allow for nearly double the amount of access in terms of patients seen over the next 5 years.  This funding becomes effective in fiscal year 2010 and is an essential aspect of health care particularly for low-income women and their families. 

Expanded access to Medicaid and the Children’s Health Insurance Program

The Act expands eligibility for Medicaid to include all non‐elderly Americans with income below 133 percent of the Federal Poverty Level (FPL) and increases assistance to all states to help cover the costs of additional people to be covered under Medicaid, the nation’s public health insurance program for the low income population.  The Act also maintains current funding levels for the Children’s Health Insurance Program (CHIP) through fiscal year 2015. 

More than 20-million low-income women currently receive coverage for their health and long-term care through Medicaid, and the majority of adult beneficiaries of Medicaid (69 percent) are female.  By expanding the eligibilty requirements, the Act will expand coverage to low-income women and children who urgently need primary preventive and curative care.  This is without doubt a plus for women.

A Kaiser Family Foundation brief states:

In order to qualify for Medicaid, women must meet both categorical and income criteria. That means that one must fit into a certain “category” such as being pregnant, a mother of a child under 18, 65 or older, or having a disability. Each of these groups has different income elibiligy criteria, which vary from state to state.

Medicaid income thresholds for adults have been, however, very low. And states the KFF brief, “because women are more likely than men to fall into one of the categories and are more likely to be poor, women are more likely to qualify for Medicaid. Many very low-income women, however, do not qualify no matter how poor they are because they do not fall into one of the eligibility categories.”

Medicaid is also the largest source of public funding for family planning services in the United States, financing contraceptive services for millions of low-income women. A Guttmacher issue brief,  Medicaid’s Role in Family Planning, provides an overview of Medicaid’s role in financing and providing access to family planning services for low-income women. Expansion of Medicaid services means an expansion of critical family planning and contraceptive services for women, one reason that increased access to health care helps reduce the number of unintended and unwanted pregnancies and by extension the need for abortion.  Expanding access to these services and to community health centers generally will also dramatically increase access to testing and treatment for sexually transmitted infections, including but not limited to HIV.

Improves access to and benefits offered under Medicare:

Women make up a majority of those dependent on Medicare services.  Kaiser Family Foundation notes that Medicare is a critical source of health insurance coverage for virtually all older women in the U.S. and for many younger women who have permanent disabilities.

Today, 22 million women–one in five adult women–rely on Medicare for basic health insurance protection, and women make up 57 percent of the Medicare population. Medicare helps to make health care more affordable for older women at a time in their lives when they are most likely to have multiple health problems that require ongoing and often costly medical treatment.

The Act will reduce the economic burden of health care among women and improve their access to services by reducing costs for prescription drugs by

  • providing new, free annual wellness visits to the basic services provided;
  • eliminating out‐of‐pocket copayments for preventive benefits under Medicare, such as cancer and diabetes screenings;
  • providing better chronic care; and
  • reducing overpayments to private Medicare Advantage plans.

The Act also fills the Medicare prescription drug “donut hole.  According to Kaiser, the donut hole is a “unique feature” of the Medicare Part D drug benefit is the coverage gap.  Part D enrollees are required to pay 100 percent of total drug costs after their spending exceeds the initial coverage limit and before reaching the catastrophic coverage limit. In 2010, most Part D plans have a coverage gap, which totals $3,610 in drug costs for plans offering the standard Medicare Part D benefit; by 2019, the gap is projected to be nearly $6,000.

The Act addresses this in 2010 by providing Medicare beneficiaries who go into the donut hole with a $250 rebate, after which they will receive a pharmaceutical manufacturers’ 50 percent discount on brand‐name drugs, increasing to a 75 percent discount on brand‐name and generic drugs to close the donut hole by 2020.

LOSSES:

At the broadest scale, the statement from the National Organization for Women (NOW) most succinctly articulates the basic losses in this round of health care reform:

The bill covers only 32 million of the 47 million uninsured in this country, does not contain a meaningful public option and provides no pathway to a single payer system like Medicare for all.

While these aspects of reform affect all people, they again also disproportionately affect women.

Other losses with disproportionate or specific implications for women include:

Continuation of age-rating

The bill continues to permit age-rating, the practice of imposing higher premiums on older people. ” This practice has a disproportionate impact on women,” notes the National Organization for Women, “whose incomes and savings are lower due to a lifetime of systematic wage discrimination.”

Continuation of gender-rating

The bill also permits gender-rating to continue under some policies. “Some are under the mistaken impression that gender-rating has been prohibited,” states NOW, “but that is only true in the individual and small-group markets.”

Larger group plans (more than 100 employees) sold through the exchanges will be permitted to discriminate against women — having an especially harmful impact in workplaces where women predominate.

NOW states: “We know why those gender- and age-rating provisions are in the bill: because insurers insisted on them, as they will generate billions of dollars in profits for the companies. Such discriminatory rating must be completely eliminated.”

Lack of coverage for immigrant women

Under the Act, immigrants, a highly vulnerable population, will continue to face high barriers to acessing basic health care.  The bill imposes a 5-year waiting period on permanent, legal residents before they are eligible for assistance such as Medicaid, and prohibits undocumented workers from even using their own money to purchase health insurance through an exchange.

According to the National Latina Institute for Reproductive Health (NLIRH), “If passed, the reconciliation package (being considered in the Senate this week) will cover an estimated 9 million uninsured Latinos and increase funding for community health centers, which is a lifeline for many in our neighborhoods. In addition, 4.4 million Americans in Puerto Rico and territories will receive $6.3 billion in new Medicaid funding, increased flexibility in how to use federal funding, access to the Exchange and $1 billion in subsides for low-income residents.”

At the same time immigrant women are left vulnerable.  In its statement on health reform, NLIRH pointed to these serious weaknesses:

  • Over half of all immigrants are women, and 53 percent of all immigrants are from Latin America.  The bill does not allow undocumented immigrants to buy health insurance in the exchange, and maintains a five-year waiting period for Medicaid for lawfully residing residents.  The exclusion of new immigrants from Medicaid is not only unjust, but also bad public health policy.
  • And although the reconciliation provisions are better than what the Senate originally proposed, residents of Puerto Rico are still a long ways away from receiving Medicaid and other federal health care support at the same level as other states of the Union.

Elimination of abortion care in private insurance market:

Despite the President’s promise that no American would be worse off after health reform than before, the majority of women now covered by private insurance plans now have access to coverage for abortion care, a fundamental aspect of women’s health care.

Under the language currently in the Act, incorporated at the insistence of Senator Ben Nelson (D-NE) and with the acquiescence of the White House, the Senate and House leadership, women will now lose coverage for abortion care for policies paid for with private dollars.  The implications of the Nelson language have been addressed in detail in previous articles published by Rewire, but include the following:

  • Requires every enrollee–female or male–in a health plan that offers abortion coverage to write two separate checks for insurance coverage.  One of these checks would go to pay the bulk of their premium, the other would go to pay the share of that premium that would ostensibly cover abortion care.  Such a check would have to be written separately whether the share of the premium allocated for abortion care is .25 cents, $1.00, or $3.00 of the total premium on a monthly, semi-annual or annual basis.  Employers that deduct employee contributions to health care plans from paychecks will also have to do two separate payments to the same company, again no matter how small the payment.
  • Eliminates the provision in earlier versions of the Senate bill and in the original Capps language in the House bill to ensure that there is at least one insurance plan in each exchange that offers and one that does not offer abortion coverage. 
  • Prohibits insurance companies by law from taking into account cost savings when estimating the costs of abortion care and therefore the costs of premiums for abortion care.
  • Includes “conscience clause” language that protects only individuals or entities that refuse to provide, pay for, provide coverage for, or refer for abortion, removing earlier language that provided balanced non-discrimination language for those who provide a full range of choices to women in need. 

A George Washington University Study suggests that the implications of this language include:

  • moving the industry away from current norms of coverage for medically indicated abortions.

  • inhibiting development of a supplemental coverage market for medically indicated abortions.

  • “Spillover” effects as a result of administration of Stupak/Pitts will result in dramatically reduced coverage for potentially catastrophic conditions.

Women’s groups see this as a major loss.  “This battle was fought on the bodies of women and immigrant women,” states NLIRH. 

In the eleventh hour, President Barack Obama caved to the demands of a handful of anti-choice Democrats by agreeing to use the lives of women as trade.  He will use his pen to add weight to the already cumbersome abortion restrictions in the health care bill.  Latinas, immigrants, and women of color are deeply affected by any language restricting abortion access – because women of color and immigrants are disproportionately poor, they are less likely to be able to pay for reproductive health care out-of-pocket, which puts them at risk for seeking alternative, unsafe abortion methods. While health reform might lead to more Latinas being covered, it leaves out a significant portion of the population.  By excluding and stigmatizing immigrants and women who need abortions, we are pushing them to the shadows of our health care system and placing unfair burden on the already-strained system of community health care centers and emergency rooms.  Over half of all immigrants are women, and 53 percent of all immigrants are from Latin America; though it has yet to be signed by the President, this bill is outdated already. 

CHALLENGES:

In the coming months, and to truly fulfill his campaign promises, President Obama–along with Speaker of the House Nancy Pelosi and Senate Majority Leader Harry Reid–must lead the nation and the Congress in making the following changes to the foundation of health reform put in place today.

At a minimum, the Administration and Congress should:

  • Amend the health reform bill to establish a public option thereby increasing competition in the health insurance market.  As most analysts note, the public option is popular and also would prevent insurance companies from increasing rates by exhorbitant amounts as recently happened in California.
  • Eliminate the Nelson language in the health reform bill and revoke the Executive Order signed by the President.
  • Eliminate gender-rating in all policies, starting in 2011. 
  • Eliminate pre-existing conditions for all people in 2011.  It is not clear why we need to wait four years for insurance policies to eliminate pre-existing conditions.  Between this moment and four years from now, untold numbers of people will have to pay exhorbitant premiums to get coverage in high-risk pools due to pre-existing conditions.  It is nice to know these will be eliminated, but waiting four years defeats the purpose.
  • Remove the 5-year cap on immigrants who are legal residents and allow undocumented workers to use their own funds to purchase health insurance through an exchange.

UPDATES ON PROVISIONS NOT ORIGINALLY INCLUDED IN THIS ANALYSIS:

Postpartum Depression:

From the Perinatal Pro Weekly Blog:

[The] historic passage of Healthcare Reform also makes history for America’s mothers as language from The Melanie Blocker Stokes MOTHERS Act becomes LAW!!!

Finally, the plight of millions of American women, infants and families has been acknowledged and the tide forever turned! With this long sought federal mandate, states will find more support for PPD programs, researchers will find funding encouragement to continue their search for etiology and cure, and communities will harken to respond to this unmet need. Grants will be made available to fund a variety of entities and programs charged with caring for women suffering from postpartum depression.

The Right to Pump:

The Breastfeeding Blog notes that the Act establishes a right to pump at work in all 50 states. Tanya writes: Whatever you think of the health care bill passed by Congress yesterday, you may be pleased to hear that the bill extends a right to pump at work to moms in every state.  Some states, such as California and New York, already have such a law, but must most don’t.

A provision (in my mind the most important one) of Congresswoman Carolyn Maloney’s legislation was incorporated in to the Senate version of the health care bill some time ago, and I’m told that it remained in the bill just approved.  When signed, the bill would require employers of 50 or more employees to:

…provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to do so. The employer shall make reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk. An employer shall not be required to compensate an employee for any work time spent for such purpose.

The law establishes a “right to pump” at work up to a year from the birth of the child.  

Analysis Human Rights

From Protected Class to High-Priority Target: How the ‘System Is Rigged’ Against Unaccompanied Migrant Children

Tina Vasquez

Vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation.

This is the first article in Rewire’s two-part series about the U.S. immigration system’s effects on unaccompanied children.

Earlier this month, three North Carolina high school students were released from a Lumpkin, Georgia, detention center after spending more than six months awaiting what seemed like their inevitable fate: deportation back to conditions in Central America that threatened their lives.

Wildin David Guillen Acosta, Josue Alexander Soriano Cortez, and Yefri Sorto-Hernandez were released on bail in the span of one week, thanks to an overwhelming community effort involving pro bono attorneys and bond money. However, not everyone targeted under the same government operation has been reprieved. For example, by the time reports emerged that Immigration and Customs Enforcement (ICE) had detained Acosta on his way to school in Durham, North Carolina, the government agency had already quietly deported four other young people from the state, including a teenage girl from Guatemala who attended the same school.

Activated in January, that program—Operation Border Guardian—continues to affect the lives of hundreds of Central American migrants over the age of 18 who came to the United States as unaccompanied children after January 2014. Advocates believe many of those arrested under the operation are still in ICE custody.

Department of Homeland Security (DHS) Secretary Jeh Johnson has said that the goal of Operation Border Guardian is to send a message to those in Central America considering seeking asylum in the United States. But it’s not working, as Border Patrol statistics have shown. Furthermore, vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation. These youth arrived at the border in hopes of qualifying for asylum, but were unable to succeed in an immigration system that seems rigged against them.

“The laws are really complicated and [young people] don’t have the community support to navigate this really hostile, complex system. That infrastructure isn’t there and unless we support asylum seekers and other immigrants in this part of the country, we’ll continue to see asylum seekers and former unaccompanied minors receive their deportation orders,” said Julie Mao, the enforcement fellow at the National Immigration Project of the National Lawyers Guild.

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“A Grossly Misnamed” Operation

In January, ICE conducted a series of raids that spanned three southern states—Georgia, North Carolina, and Texas—targeting Central American asylum seekers. The raids occurred under the orders of Johnson, who has taken a hardline stance against the more than 100,000 families who have sought asylum in the United States. These families fled deadly gang violence in El Salvador, Honduras, and Guatemala in recent years. In El Salvador, in particular, over 400 children were murdered by gang members and police officers during the first three months of 2016, doubling the country’s homicide rate, which was already among the highest in the world.

ICE picked up some 121 people in the early January raids, primarily women and their young children. Advocates argue many of those arrested were detained unlawfully, because as people who experienced severe trauma and exhibited symptoms of post-traumatic stress disorder, generalized anxiety, and depression, they were disabled as defined under the Rehabilitation Act of 1973, and ICE did not provide reasonable accommodations to ensure disabled people were not denied meaningful access to benefits or services.

Just a few weeks later, on January 23, ICE expanded the raids’ focus to include teenagers under Operation Border Guardian, which advocates said represented a “new low.”

The media, too, has also criticized DHS for its seemingly senseless targeting of a population that normally would be considered refugees. The New York Times called Operation Border Guardian “a grossly misnamed immigration-enforcement surge that went after people this country did not need to guard against.”

In response to questions about its prioritization of former unaccompanied minors, an ICE spokesperson told Rewire in an emailed statement: “As the secretary has stated repeatedly, our borders are not open to illegal migration. If someone was apprehended at the border, has been ordered removed by an immigration court, has no pending appeal, and does not qualify for asylum or other relief from removal under our laws, he or she must be sent home. We must and we will enforce the law in accordance with our enforcement priorities.”

DHS reports that 336 undocumented Central American youth have been detained in the operation. It’s not clear how many of these youth have already been deported or remain in ICE custody, as the spokesperson did not respond to that question by press time.

Acosta, Cortez, Sorto-Hernandez, and three other North Carolina teenagersSantos Geovany Padilla-Guzman, Bilmer Araeli Pujoy Juarez, Pedro Arturo Salmeron—have become known as the NC6 and the face of Operation Border Guardian, a designation they likely would have not signed up for.

Advocates estimate that thousands of deportations of low-priority migrants—those without a criminal history—occur each week. What newly arrived Central American asylum seekers like Acosta could not have known was that the federal government had been laying the groundwork for their deportations for years.

Asylum Seekers Become “High-Priority Cases”

In August 2011, the Obama administration announced it would begin reviewing immigration cases individually, allowing ICE to focus its resources on “high-priority cases.” The assumption was that those who pose a threat to public safety, for example, would constitute the administration’s highest priority, not asylum-seeking high school students.

But there was an indication from DHS that asylum-seeking students would eventually be targeted and considered high-priority. After Obama’s announcement, ICE released a statement outlining who would constitute its “highest priorities,” saying, “Specifically individuals who pose a threat to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators and recent border entrants.”

In the years since, President Obama has repeatedly said “recent border crossers” are among the nation’s “highest priorities” for removal—on par with national security threats. Those targeted would be migrants with final orders of removal who, according to the administration, had received their day in court and had no more legal avenues left to seek protection. But, as the American Civil Liberties Union (ACLU) reported, “recent border entrant” is a murky topic, and it doesn’t appear as if all cases are being reviewed individually as President Obama said they would.

“Recent border entrant” can apply to someone who has been living in the United States for three years, and a border removal applies “whenever ICE deports an individual within three years of entry—regardless of whether the initial entry was authorized—or whenever an individual is apprehended by Customs and Border Protection (CBP),” explained Thomas Homan, the head of ICE’s removal operations in a 2013 hearing with Congress, the ACLU reported.

Chris Rickerd, policy counsel at the American Civil Liberties Union’s Washington Legislative Office, added that “[b]ecause CBP refuses to screen the individuals it apprehends for their ties to the U.S., and DHS overuses procedures that bypass deportation hearings before a judge, many ‘border removals’ are never fully assessed to determine whether they have a legal right to stay.”

Over the years, DHS has only ramped up the department’s efforts to deport newly arrived immigrants, mostly from Central America. As the Los Angeles Times reported, these deportations are “an attempt by U.S. immigration officials to send a message of deterrence to Central America and avoid a repeat of the 2014 crisis when tens of thousands of children from Honduras, El Salvador and Guatemala arrived at the U.S. border.”

This is something Mao takes great issue with.

“These raids that we keep seeing are being done in order to deter another wave of children from seeking asylum—and that is not a permissible reason,” Mao said. “You deport people based on legality, not as a way of scaring others. Our country, in this political moment, is terrorizing young asylum seekers as a way of deterring others from presenting themselves at the border, and it’s pretty egregious.”

There is a direct correlation between surges of violence in the Northern Triangle—El Salvador, Guatemala, and Honduras—and an uptick in the number of asylum seekers arriving in the United States. El Salvador, known as the murder capital of the word, recently saw an explosion of gang violence. Combine that with the possible re-emergence of so-called death squads and it’s clear why the number of Salvadoran family units apprehended on the southern border increased by 96 percent from 2015 to 2016, as Fusion reported.

Much like Mao, Elisa Benitez, co-founder of the immigrants rights’ organization Alerta Migratoria NC, believes undocumented youth are being targeted needlessly.

“They should be [considered] low-priority just because they’re kids, but immigration is classifying them at a very high level, meaning ICE is operating like this is a population that needs to be arrested ASAP,” Benitez said.

The Plight of Unaccompanied Children

Each member of the NC6 arrived in the United States as an unaccompanied child fleeing violence in their countries of origin. Acosta, for example, was threatened by gangs in his native Honduras and feared for his life. These young people should qualify as refugees based on those circumstances under international law. In the United States, after they present themselves at the border, they have to prove to an immigration judge they have a valid asylum claim—something advocates say is nearly impossible for a child to do with no understanding of the immigration system and, often, with no access to legal counsel—or they face deportation.

Unaccompanied children, if not immediately deported, have certain protections once in the United States. For example, they cannot be placed into expedited removal proceedings. According to the American Immigration Council, “they are placed into standard removal proceedings in immigration court. CBP must transfer custody of these children to Health and Human Services (HHS), Office of Refugee Resettlement (ORR), within 72 hours.”

While their court proceedings move forward, HHS’s Office of Refugee Resettlement manages the care of the children until they can ideally be released to their parents already based in the country. Sometimes, however, they are placed with distant relatives or U.S. sponsors. Because HHS has lowered its safety standards regarding placement, children have been subjected to sexual abuse, labor trafficking, and severe physical abuse and neglect, ThinkProgress has reported.

If while in the care of their family or a sponsor they miss a court date, detainment or deportation can be triggered once they turn 18 and no longer qualify for protections afforded to unaccompanied children. 

This is what happened to Acosta, who was placed with his mother in Durham when he arrived in the United States. ICE contends that Acosta was not targeted unfairly; rather, his missed court appearance triggered his order for removal.

Acosta’s mother told local media that after attending his first court date, Acosta “skipped subsequent ones on the advice of an attorney who told him he didn’t stand a chance.”

“That’s not true, but it’s what they were told,” Benitez said. “So, this idea that all of these kids were given their day in court is false. One kid [we work with] was even told not to sign up for school because ‘there was no point,’ it would just get him deported.”

Benitez told Rewire the reasons why these young people are being targeted and given their final orders of removal need to be re-examined.

Sixty percent of youth from Central America do not ever have access to legal representation throughout the course of their case—from the time they arrive in the United States and are designated as unaccompanied children to the time they turn 18 and are classified as asylum seekers. According to the ACLU, 44 percent of the 23,000 unaccompanied children who were required to attend immigration court this year had no lawyer, and 86 percent of those children were deported.

Immigration attorneys and advocates say that having a lawyer is absolutely necessary if a migrant is to have any chance of winning an asylum claim.

Mao told Rewire that in the Southeast where Acosta and the other members of the NC6 are from, there is a pipeline of youth who arrived in the United States as unaccompanied children who are simply “giving up” on their valid asylum claims because navigating the immigration system is simply too hard.

“They feel the system is rigged, and it is rigged,” Mao said.

Mao has been providing “technical assistance” for Acosta and other members of the NC6. Her organization doesn’t represent individuals in court, she said, but the services it provides are necessary because immigration is such a unique area of law and there are very few attorneys who know how to represent individuals who are detained and who have been designated unaccompanied minors. Those services include providing support, referrals, and technical assistance to advocates, community organizations, and families on deportation defense and custody issues.

Fighting for Asylum From Detention

Once arrested by ICE, there is no telling if someone will linger in detention for months or swiftly be deported. What is known is that if a migrant is taken by ICE in North Carolina, somewhere along the way, they will be transferred to Lumpkin, Georgia’s Stewart Detention Center. As a local paper reported, Stewart is “the last stop before they send you back to whatever country you came from.”

Stewart is the largest detention center in the country, capable of holding 2,000 migrants at any time—it’s also been the subject of numerous investigations because of reports of abuse and inadequate medical care. The detention center is run by Corrections Corporation of America, the country’s largest private prison provider and one that has become synonymous with maintaining inhumane conditions inside of its detention centers. According to a report from the National Immigrant Justice Center, Stewart’s remote location—over two hours away from Atlanta—hinders the facility from attracting and retaining adequate medical staff, while also creating barriers to visitation from attorneys and family members.

There’s also the matter of Georgia being notoriously tough on asylum seekers, even being called the “worst” place to be an undocumented immigrant. The Huffington Post reported that “Atlanta immigration judges have been accused of bullying children, badgering domestic violence victims and setting standards for relief and asylum that lawyers say are next to impossible to meet.” Even more disconcerting, according to a project by Migrahack, which pairs immigration reporters and hackers together, having an attorney in Georgia had almost no effect on whether or not a person won their asylum case, with state courts denying up to 98 percent of asylum requests. 

Acosta, Cortez, and Sorto-Hernandez spent over six months in Stewart Detention Center before they were released on baila “miracle” according to some accounts, given the fact that only about 5 percent of those detained in Stewart are released on bond.

In the weeks after ICE transferred Acosta to Stewart, there were multiple times Acosta was on the verge of deportation. ICE repeatedly denied Acosta was in danger, but advocates say they had little reason to believe the agency. Previous cases have made them wary of such claims.

Advocates believe that three of the North Carolina teens who were deported earlier this year before Acosta’s case made headlines were kept in detention for months with the goal of wearing them down so that they would sign their own deportation orders despite having valid asylum claims.

“They were tired. They couldn’t handle being in detention. They broke down and as much as they feared being returned to their home countries, they just couldn’t handle being there [in detention] anymore. They’d already been there for weeks,” Benitez said.

While ICE claims the average stay of a migrant in Stewart Detention Center is 30 days, the detention center is notorious for excessively long detainments. Acosta’s own bunkmate had been there over a year, according to Indy Week reporter David Hudnall.

As Hudnall reported, there is a massive backlog of immigration cases in the system—474,000 nationally and over 5,000 in North Carolina.

Mao told Rewire that the amount of time the remaining members of the NC6 will spend in detention varies because of different legal processes, but that it’s not unusual for young people with very strong asylum cases to sign their rights away because they can’t sustain the conditions inside detention.

Pedro Arturo Salmeron, another NC6 member, is still in detention. He was almost deported, but Mao told Rewire her organization was able to support a pro bono attorney in appealing to the Board of Immigration Appeals (BIA) to stop proceedings.

Japeth Matemu, an immigration attorney, recently told Indy Week’s David Hudnall that “the BIA will tell you that it can’t modify the immigration judge’s ruling unless it’s an egregious or obvious miscarriage of justice. You basically have to prove the judge is off his rocker.”

It could take another four months in detention to appeal Salmeron’s case because ICE continues to refuse to release him, according to the legal fellow.

“That’s a low estimate. It could be another year in detention before there is any movement in his case. We as an organization feel that is egregious to detain someone while their case is pending,” Mao said. “We have to keep in mind that these are kids, and some of these kids can’t survive the conditions of adult prison.”

Detention centers operate as prisons do, with those detained being placed in handcuffs and shackles, being stripped of their personal belongings, with no ability to move around freely. One of Acosta’s teachers told Rewire he wasn’t even able to receive his homework in detention.

Many of those in detention centers have experienced trauma. Multiple studies confirm that “detention has a profoundly negative impact on young people’s mental and physical well-being” and in the particular case of asylum seekers, detention may exacerbate their trauma and symptoms of post-traumatic stress disorder. 

“People are so traumatized by the raids, and then you add detention on top of that. Some of these kids cannot psychologically and physically deal with the conditions in detention, so they waive their rights,” Mao said.

In March, Salmeron and fellow NC6 member Yefri Sorto-Hernandez received stays of deportation, meaning they would not face immediate deportation. ICE says a stay is like a “legal pause.” During the pause, immigration officials decide if evidence in the case will be reconsidered for asylum. Sorto-Hernandez was released five months later.

Benitez said that previously when she organized around detention, a stay of deportation meant the person would get released from detention, but ICE’s decision to detain some of the NC6 indefinitely until their cases are heard illustrates how “weirdly severe” the agency is being toward this particular population. Mao fears this is a tactic being used by ICE to break down young people in detention.

“ICE knows it will take months, and frankly up to a year, for some of these motions to go through the court system, but the agency is still refusing to release individuals. I can’t help but think it’s with the intention that these kids will give up their claims while suffering in detention,” Mao said.

“I think we really have to question that, why keep these young people locked up when they can be with their communities, with their families, going to school? ICE can release these kids now, but for showmanship, ICE is refusing to let them go. Is this who we want to be, is this the message we want to send the world?” she asked.

In the seven months since the announcement of Operation Border Guardian, DHS has remained quiet about whether or not there will be more raids on young Central American asylum seekers. As a new school year approaches, advocates fear that even more students will be receiving their orders for removal, and unlike the NC6, they may not have a community to rally around them, putting them at risk of quietly being deported and not heard from again.

News Health Systems

Complaint: Citing Catholic Rules, Doctor Turns Away Bleeding Woman With Dislodged IUD

Amy Littlefield

“It felt heartbreaking,” said Melanie Jones. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

Melanie Jones arrived for her doctor’s appointment bleeding and in pain. Jones, 28, who lives in the Chicago area, had slipped in her bathroom, and suspected the fall had dislodged her copper intrauterine device (IUD).

Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“I think my first feeling was shock,” Jones told Rewire in an interview. “I thought that eventually they were going to recognize that my health was the top priority.”

The doctor left Jones to confer with colleagues, before returning to confirm that her “hands [were] tied,” according to two complaints filed by the ACLU of Illinois. Not only could she not help her, the doctor said, but no one in Jones’ health insurance network could remove the IUD, because all of them followed similar restrictions. Mercy, like many Catholic providers, follows directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, tubal ligations, and contraception.

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Some Catholic providers may get around the rules by purporting to prescribe hormonal contraception for acne or heavy periods, rather than for birth control, but in the case of copper IUDs, there is no such pretext available.

“She told Ms. Jones that that process [of switching networks] would take her a month, and that she should feel fortunate because sometimes switching networks takes up to six months or even a year,” the ACLU of Illinois wrote in a pair of complaints filed in late June.

Jones hadn’t even realized her health-care network was Catholic.

Mercy has about nine off-site locations in the Chicago area, including the Dearborn Station office Jones visited, said Eric Rhodes, senior vice president of administrative and professional services. It is part of Trinity Health, one of the largest Catholic health systems in the country.

The ACLU and ACLU of Michigan sued Trinity last year for its “repeated and systematic failure to provide women suffering pregnancy complications with appropriate emergency abortions as required by federal law.” The lawsuit was dismissed but the ACLU has asked for reconsideration.

In a written statement to Rewire, Mercy said, “Generally, our protocol in caring for a woman with a dislodged or troublesome IUD is to offer to remove it.”

Rhodes said Mercy was reviewing its education process on Catholic directives for physicians and residents.

“That act [of removing an IUD] in itself does not violate the directives,” Marty Folan, Mercy’s director of mission integration, told Rewire.

The number of acute care hospitals that are Catholic owned or affiliated has grown by 22 percent over the past 15 years, according to MergerWatch, with one in every six acute care hospital beds now in a Catholic owned or affiliated facility. Women in such hospitals have been turned away while miscarrying and denied tubal ligations.

“We think that people should be aware that they may face limitations on the kind of care they can receive when they go to the doctor based on religious restrictions,” said Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, in a phone interview with Rewire. “It’s really important that the public understand that this is going on and it is going on in a widespread fashion so that people can take whatever steps they need to do to protect themselves.”

Jones left her doctor’s office, still in pain and bleeding. Her options were limited. She couldn’t afford a $1,000 trip to the emergency room, and an urgent care facility was out of the question since her Blue Cross Blue Shield of Illinois insurance policy would only cover treatment within her network—and she had just been told that her entire network followed Catholic restrictions.

Jones, on the advice of a friend, contacted the ACLU of Illinois. Attorneys there advised Jones to call her insurance company and demand they expedite her network change. After five hours of phone calls, Jones was able to see a doctor who removed her IUD, five days after her initial appointment and almost two weeks after she fell in the bathroom.

Before the IUD was removed, Jones suffered from cramps she compared to those she felt after the IUD was first placed, severe enough that she medicated herself to cope with the pain.

She experienced another feeling after being turned away: stigma.

“It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

The ACLU of Illinois has filed two complaints in Jones’ case: one before the Illinois Department of Human Rights and another with the U.S. Department of Health and Human Services Office for Civil Rights under the anti-discrimination provision of the Affordable Care Act. Chaiten said it’s clear Jones was discriminated against because of her gender.

“We don’t know what Mercy’s policies are, but I would find it hard to believe that if there were a man who was suffering complications from a vasectomy and came to the emergency room, that they would turn him away,” Chaiten said. “This the equivalent of that, right, this is a woman who had an IUD, and because they couldn’t pretend the purpose of the IUD was something other than pregnancy prevention, they told her, ‘We can’t help you.’”

 

Tell us your story. Have religious restrictions affected your ability to access health care? Email stories@rewire.news

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