Tucked away in the appendix of the Trump administration’s proposed 2019 budget are new restrictions for undocumented people in Immigration and Customs Enforcement (ICE) custody who may want to access abortion care.
As part of the administrative provisions for funding regarding “U.S. Immigration and Customs Enforcement—Operations and Support,” the budget appendix outlines that “none of the funds appropriated by this Act … shall be available to pay for an abortion, except where the life of the mother would be endangered if the fetus were carried to term, or in the case of rape or incest: Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this section shall be null and void.”
This does not deviate from ICE’s Performance-Based National Detention Standards (PBNDS), which have been revised several times since 2000. Some of PBNDS’ stated goals are to improve medical and mental health services and reinforce protections against sexual abuse and assault. As part of PBNDS’ medical care requirements for women, a pregnant person in detention can access abortion care. If the pregnancy is the result of rape or incest, or if the person’s health is endangered as a result of carrying the fetus to term, ICE assumes the costs associated with the abortion procedure. If a person in detention simply wants to exercise their right to abortion care, they can fund their own procedure.
What may change under Trump is that undocumented immigrants in ICE custody could be prohibited from accessing abortion entirely. According to PBNDS’ medical care requirements for women, whether ICE or the detained person is covering the cost of the abortion, the federal immigration agency will “arrange for transportation at no cost to the detainee for the medical appointment.”
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In Trump’s proposed budget, this may no longer be the case. Section 219 of the budget appendix reads: “None of the funds appropriated by this Act for U.S. Immigration and Customs Enforcement shall be used to require any person to perform, or facilitate in any way the performance of, any abortion.”
Section 220 of the budget appendix reads: “Nothing in the preceding section shall remove the obligation of the Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement to provide escort services necessary for a female detainee to receive such service outside the detention facility: Provided, That nothing in this section in any way diminishes the effect of section 219 intended to address the philosophical beliefs of individual employees of U.S. Immigration and Customs Enforcement.”
When read in conjunction, this means ICE agents can hinder undocumented people who are funding their own abortion from accessing care if the agent has not just religious, but “philosophical” reasons as to why they do not want to facilitate the abortion by providing transportation.
There are instances in which this provision bars undocumented people in ICE custody from accessing abortion care. If, for example, one ICE agent oversees transportation to doctor’s appointments and they use religious reasons to opt out of providing transportation, there is no other option for the people detained in that facility who are seeking abortion. If multiple agents decline to provide transportation to doctor’s appointments for philosophical reasons, it could delay a detained person’s abortion care for weeks. Depending on state laws, ICE agents’ actions could prohibit a detained person from accessing care entirely.
These budget stipulations are part of a larger trend of “anti-choice fanaticism” working its way into the immigration system. This was first illustrated by the case of Jane Doe, a pregnant unaccompanied immigrant teen in Office of Refugee Resettlement (ORR) custody who was essentially “held hostage” for wanting to access abortion care. After a lengthy legal battle, the Salvadoran minor was able to have an abortion, but similar cases have emerged in the months since.
Jane Doe’s case wasn’t the first of this nature; it was simply the first that made headlines. As Rewire reported in October, ORR officials had attempted to halt a medically induced abortion in March by blocking a teen from taking the second pill associated with the procedure. The teen was transferred her to an emergency room and forced to “undergo a gynecological exam to see if the pregnancy was still viable.” The girl was eventually allowed to take the second pill.
Much like Trump’s proposal to have ICE agents dictate whether people in detention can access abortion, it is one person effectively dictating whether teen girls in ORR custody access care: Scott Lloyd. In March 2017, the Trump administration implemented a revised policy “that allows [shelters] to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion,” according to court documents. This directive prevents unaccompanied immigrant minors in the government’s care from obtaining abortions by prohibiting all federally funded shelters from taking “‘any action that facilitates’ abortion access to unaccompanied minors in their care without ‘direction and approval’” from Lloyd, the ORR director.
Immigration advocates see Lloyd as an ideological pick by the Trump administration, one whose personal beliefs mirror those of anti-choice extremists and men’s rights activists, as evidenced by his published writings. Emails released by the ACLU as part of Jane Doe’s court proceedings reveal how entrenched anti-choice extremism has become within ORR. Lloyd is an anti-choice radical, and nothing in his background indicates he is qualified or equipped to lead ORR or to “counsel” pregnant people in ORR custody against seeking abortion care, which he admitted to doing when speaking to the Christian Broadcasting Network.
Lloyd has attempted to block teens’ access to abortion care, despite the fact that many in ORR custody are likely pregnant as a result of rape. Brigitte Amiri, senior staff attorney with the American Civil Liberties Union (ACLU) Reproductive Freedom Project and the attorney who fought on Jane Doe’s behalf, told Rewire that stats for unaccompanied immigrant minors are similar to those of other migrant women. Eighty percent of Central American women crossing Mexico en route to the United States are raped along the way, according to a 2014 report from Splinter.
What if ICE agents object to facilitating abortion care, even in instances of rape? Trump’s new policy could either greatly hinder or completely block access to care for immigrant women in the detention system.
In a statement in response to Trump’s budget proposals, Dana Singiser, vice president for public policy and government affairs for Planned Parenthood, said the administration’s plan “lays out an agenda that will be harmful to people’s health and lives” and that it imposes “extreme ideological beliefs on all people.”