Commentary Human Rights

Blanca Borrego and the Reproductive Oppression of Immigrant Women

Ana R. DeFrates

The Texas Latina's arrest, which took place in the middle of a doctor's visit, is about so much more than immigration policy.

By now, some of you have heard about Blanca Borrego, the Texas Latina who, while at an appointment with her gynecologist, was arrested for allegedly providing a false ID document and taken away in handcuffs.

The exact details are still emerging, but so far we know that Borrego went to Northeast Women’s Healthcare clinic in Atascocita, Texas, for follow-up care with her gynecologist for a cyst that had been diagnosed the year before. Borrego had been sitting in the waiting room for nearly two hours when staff called her into an exam room, where she was met by Harris County Sheriff’s deputies.

Since news of her arrest reached local Texas and then national outlets, several immigrants’ advocacy organizations have weighed in, decrying her arrest as evidence of immigration enforcement run amok and deeply flawed policies that make it nearly impossible for undocumented people to live and work with dignity.

They’re right, of course. But it’s not the whole story. Advocates have long warned against the dangers of local and state law enforcement collaborating with immigration officials, even as state legislatures have proliferated policies like Arizona’s SB 1070 that mandate the practice. This collaboration creates a climate of fear and mistrust that places women, children, and LGBTQ people at particular risk for harm—whether by overzealous police, or Immigration and Customs Enforcement (ICE) officials, or those who would exploit the fear that often deters immigrants who’ve experienced crime from reporting.

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Borrego’s story also illustrates the desperate need for relief for millions of undocumented people in the United States living with the daily fear of detention and deportation. Immigrant women like Borrego are the backbones of their communities: caring for their families, contributing to the U.S. economy, supporting their friends and neighbors, and serving their communities.

In fact, Borrego would have qualified for President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) administrative reform program, which was announced last year. For the estimated 4.1 million undocumented individuals like Borrego—who have been in the United States since January 1, 2001 and have a son or daughter who is a U.S. citizen or lawful permanent resident—DAPA allows work permit applications and protection from deportation. Unfortunately, her home state of Texas is leading a malicious lawsuit against the program, which has been prevented from going into effect while the case winds through the courts. Already, two of her children have enrolled in the president’s administrative relief for DREAMers. Yet, even fully implemented, these programs are temporary, and millions of families still await action from Congress to pass humane immigration reform.

This story is about so much more than immigration policy.

Blanca Borrego’s arrest—which took place in the middle of a visit to her doctor—is a violation of her human right to health care and her basic dignity as a person. A reproductive justice framework, analyzing the multiple, intersecting systems that conspired to facilitate her arrest, reveals this incident to be a case study in how reproductive oppression is used to deny immigrant women their basic rights, with much broader implications for Latin@s, immigrants, and border communities across the nation.

That Borrego was arrested in a gynecologist’s office in Texas is particularly poignant, as the state has become ground zero in the fight for reproductive autonomy for women in general and Latinas in particular. Given the barriers Texas has created to accessing reproductive health care, that she was able to make it to a doctor in the first place is nothing short of a miracle. The sad fact is that many Texas Latinas never make it that far.

Since 2012, Texas has been in the grips of a human rights crisis centered on the reproductive health of Latinas. This crisis was created by the defunding and dismantling of the state family planning program by anti-choice politicians, which led to statewide clinic closures and left many with no affordable, accessible health-care provider whatsoever.

I’ve spoken to women who’ve lived for years with lumps in their breasts, suspecting cancer, with nowhere to go for a mammogram. I’ve talked to women who ration, share, or even completely forgo birth control pills that they would like to be using reliably to prevent pregnancy. Other women live with daily pains that make it hard to work, care for children, and go to school. This human rights crisis has been extensively documented by the Nuestro Texas campaign, a partnership between the National Latina Institute for Reproductive Health and the Center for Reproductive Rights.

Beyond these stories, statistics show that despite the sympathetic support of a few Texas lawmakers, this problem is getting worse: Nearly 40 percent of Texas women are Latina, and Latinas are among the most likely to suffer and die from cervical and breast cancer. In 2013, the Texas legislature passed HB 2, a law designed to shut down abortion clinics that decimated what women’s health infrastructure had survived the earlier defunding. During its most recent session earlier this year, Texas lawmakers passed legislation that requires women seeking abortion to present certain kinds of identification—identification that, unsurprisingly, many immigrant women do not have.

This is the context in which Blanca Borrego was arrested—one where funding cuts, clinic closures, and other restrictions have made Texas a reproductive health-care desert for many of the state’s immigrant, Latina, and low-income women. Yet in her case, overcoming all those barriers wasn’t enough.

Even the manner of her arrest speaks to the heavily gendered ways police and immigration policy strip women of their human dignity. Waiting rooms are often scary and vulnerable places, and we can speculate that Borrego may have been anxious about this follow-up visit. After being made to wait for hours (presumably while the staff called the police and waited for them to arrive) she was deceptively called into the exam room, where instead of a caring physician she found officers waiting with handcuffs. She was paraded through the waiting room, where officers reportedly told her daughters that she would be deported. Everything about the arrest served to publicly humiliate Borrego and instill fear in her daughters and anyone else who might be watching.

Cisgender women, trans men, and nonbinary people who can become pregnant are among the most likely to seek reproductive health care, whether for contraception, abortion, breast and cervical cancer screenings, or treatment for pain, cysts, or countless other acute and chronic conditions. For many people, a gynecologist is the only health provider they ever see, making reproductive health providers critical in screening for intimate partner violence, mental health, and other issues that could otherwise be overlooked. That law enforcement and/or immigration officials would collude specifically with this kind of health provider must be seen through a lens of gender and reproductive justice. The intimacy of the violation is profoundly disturbing.

The harms of Borrego’s arrest are clear and far-reaching. While in jail, she was separated from her children and without the ability to work to support them. She now faces possible incarceration and/or detention in a jail-like immigrant detention facility. She obviously didn’t get the medical appointment she originally went to the clinic for, and is unlikely to receive any reproductive (or other) health care if further imprisoned. Instead, she faces the horrors and human rights violations that have been well documented in the U.S. prison and immigrant detention system. If deported, she would be ripped from her family and her home of more than a decade.

But the harm doesn’t end there. As this story continues to spread, so too will one of the most noxious byproducts of anti-immigrant policies and practices: fear. Women like Borrego, perhaps living with pain, facing an unintended pregnancy, or suspecting cancer, will think twice before going to the doctor. Somewhere in Texas or even across the country, a woman will wonder whether police or ICE will be waiting in her doctor’s office. A woman will cancel her appointment, drive past the clinic, never get off the bus. Some of those women might survive without care, as some already do. But for others, the pain will worsen, the pregnancy will go without care, the cancer will spread. And what robs health, dignity, and autonomy from all, will, from some, take even their lives.

Roundups Sexual Health

This Week in Sex: The Sexually Transmitted Infections Edition

Martha Kempner

A new Zika case suggests the virus can be transmitted from an infected woman to a male partner. And, in other news, HPV-related cancers are on the rise, and an experimental chlamydia vaccine shows signs of promise.

This Week in Sex is a weekly summary of news and research related to sexual behavior, sexuality education, contraception, STIs, and more.

Zika May Have Been Sexually Transmitted From a Woman to Her Male Partner

A new case suggests that males may be infected with the Zika virus through unprotected sex with female partners. Researchers have known for a while that men can infect their partners through penetrative sexual intercourse, but this is the first suspected case of sexual transmission from a woman.

The case involves a New York City woman who is in her early 20s and traveled to a country with high rates of the mosquito-borne virus (her name and the specific country where she traveled have not been released). The woman, who experienced stomach cramps and a headache while waiting for her flight back to New York, reported one act of sexual intercourse without a condom the day she returned from her trip. The following day, her symptoms became worse and included fever, fatigue, a rash, and tingling in her hands and feet. Two days later, she visited her primary-care provider and tests confirmed she had the Zika virus.

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A few days after that (seven days after intercourse), her male partner, also in his 20s, began feeling similar symptoms. He had a rash, a fever, and also conjunctivitis (pink eye). He, too, was diagnosed with Zika. After meeting with him, public health officials in the New York City confirmed that he had not traveled out of the country nor had he been recently bit by a mosquito. This leaves sexual transmission from his partner as the most likely cause of his infection, though further tests are being done.

The Centers for Disease Control and Prevention (CDC)’s recommendations for preventing Zika have been based on the assumption that virus was spread from a male to a receptive partner. Therefore the recommendations had been that pregnant women whose male partners had traveled or lived in a place where Zika virus is spreading use condoms or abstain from sex during the pregnancy. For those couples for whom pregnancy is not an issue, the CDC recommended that men who had traveled to countries with Zika outbreaks and had symptoms of the virus, use condoms or abstain from sex for six months after their trip. It also suggested that men who traveled but don’t have symptoms use condoms for at least eight weeks.

Based on this case—the first to suggest female-to-male transmission—the CDC may extend these recommendations to couples in which a female traveled to a country with an outbreak.

More Signs of Gonorrhea’s Growing Antibiotic Resistance

Last week, the CDC released new data on gonorrhea and warned once again that the bacteria that causes this common sexually transmitted infection (STI) is becoming resistant to the antibiotics used to treat it.

There are about 350,000 cases of gonorrhea reported each year, but it is estimated that 800,000 cases really occur with many going undiagnosed and untreated. Once easily treatable with antibiotics, the bacteria Neisseria gonorrhoeae has steadily gained resistance to whole classes of antibiotics over the decades. By the 1980s, penicillin no longer worked to treat it, and in 2007 the CDC stopped recommending the use of fluoroquinolones. Now, cephalosporins are the only class of drugs that work. The recommended treatment involves a combination of ceftriaxone (an injectable cephalosporin) and azithromycin (an oral antibiotic).

Unfortunately, the data released last week—which comes from analysis of more than 5,000 samples of gonorrhea (called isolates) collected from STI clinics across the country—shows that the bacteria is developing resistance to these drugs as well. In fact, the percentage of gonorrhea isolates with decreased susceptibility to azithromycin increased more than 300 percent between 2013 and 2014 (from 0.6 percent to 2.5 percent).

Though no cases of treatment failure has been reported in the United States, this is a troubling sign of what may be coming. Dr. Gail Bolan, director of CDC’s Division of STD Prevention, said in a press release: “It is unclear how long the combination therapy of azithromycin and ceftriaxone will be effective if the increases in resistance persists. We need to push forward on multiple fronts to ensure we can continue offering successful treatment to those who need it.”

HPV-Related Cancers Up Despite Vaccine 

The CDC also released new data this month showing an increase in HPV-associated cancers between 2008 and 2012 compared with the previous five-year period. HPV or human papillomavirus is an extremely common sexually transmitted infection. In fact, HPV is so common that the CDC believes most sexually active adults will get it at some point in their lives. Many cases of HPV clear spontaneously with no medical intervention, but certain types of the virus cause cancer of the cervix, vulva, penis, anus, mouth, and neck.

The CDC’s new data suggests that an average of 38,793 HPV-associated cancers were diagnosed each year between 2008 and 2012. This is a 17 percent increase from about 33,000 each year between 2004 and 2008. This is a particularly unfortunate trend given that the newest available vaccine—Gardasil 9—can prevent the types of HPV most often linked to cancer. In fact, researchers estimated that the majority of cancers found in the recent data (about 28,000 each year) were caused by types of the virus that could be prevented by the vaccine.

Unfortunately, as Rewire has reported, the vaccine is often mired in controversy and far fewer young people have received it than get most other recommended vaccines. In 2014, only 40 percent of girls and 22 percent of boys ages 13 to 17 had received all three recommended doses of the vaccine. In comparison, nearly 80 percent of young people in this age group had received the vaccine that protects against meningitis.

In response to the newest data, Dr. Electra Paskett, co-director of the Cancer Control Research Program at the Ohio State University Comprehensive Cancer Center, told HealthDay:

In order to increase HPV vaccination rates, we must change the perception of the HPV vaccine from something that prevents a sexually transmitted disease to a vaccine that prevents cancer. Every parent should ask the question: If there was a vaccine I could give my child that would prevent them from developing six different cancers, would I give it to them? The answer would be a resounding yes—and we would have a dramatic decrease in HPV-related cancers across the globe.

Making Inroads Toward a Chlamydia Vaccine

An article published in the journal Vaccine shows that researchers have made progress with a new vaccine to prevent chlamydia. According to lead researcher David Bulir of the M. G. DeGroote Institute for Infectious Disease Research at Canada’s McMaster University, efforts to create a vaccine have been underway for decades, but this is the first formulation to show success.

In 2014, there were 1.4 million reported cases of chlamydia in the United States. While this bacterial infection can be easily treated with antibiotics, it often goes undiagnosed because many people show no symptoms. Untreated chlamydia can lead to pelvic inflammatory disease, which can leave scar tissue in the fallopian tubes or uterus and ultimately result in infertility.

The experimental vaccine was created by Canadian researchers who used pieces of the bacteria that causes chlamydia to form an antigen they called BD584. The hope was that the antigen could prompt the body’s immune system to fight the chlamydia bacteria if exposed to it.

Researchers gave BD584 to mice using a nasal spray, and then exposed them to chlamydia. The results were very promising. The mice who received the spray cleared the infection faster than the mice who did not. Moreover, the mice given the nasal spray were less likely to show symptoms of infection, such as bacterial shedding from the vagina or fluid blockages of the fallopian tubes.

There are many steps to go before this vaccine could become available. The researchers need to test it on other strains of the bacteria and in other animals before testing it in humans. And, of course, experience with the HPV vaccine shows that there’s work to be done to make sure people get vaccines that prevent STIs even after they’re invented. Nonetheless, a vaccine to prevent chlamydia would be a great victory in our ongoing fight against STIs and their health consequences, and we here at This Week in Sex are happy to end on a bit of a positive note.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.