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Reproductive Health, Rights, and Justice for the Immigrant Community

NARAL Pro-Choice Maryland fights for the reproductive health, rights and justice for all Marylanders, regardless of sexual orientation, gender identity, citizenship status, economic status or any other subsection or group.  This work includes ensuring that all immigrants living or staying in Maryland can be pregnant, not be pregnant, and parent in safety, good health, and dignity. In the United States, immigrants make up approximately 14% of the population (4.4 million people), and account for 17% of women of reproductive age, as well as 23% of births in the U.S.

Immigrants, regardless of legal status or documentation, face unique barriers when it comes to accessing health care and social services. According to the National Women’s Law Center, in 2015, almost 18 percent of all immigrants were uninsured, while only 8 percent of U.S.-born individuals were uninsured.  According to the Maryland Department of Health, in order to be eligible for Medicaid and Maryland Children’s Health Insurance Program (CHIP), “most non-citizens must have a “qualified” immigration status, except for pregnant women and children under age 21, who must only be lawfully-present.”  Even those with a “qualified” status must meet something called the “5 Year Bar,” a federal rule which requires individuals to wait an additional 5 years before even qualifying for these health insurance benefits.  Undocumented immigrants, however, are explicitly excluded from health insurance obtained through the Affordable Care Act (ACA) Marketplace, Medicaid and CHIP.

Undocumented folks may avoid medical facilities and other health care providers for  fear of being reported to ICE or other authority figures. This fear of seeking care has meant that many undocumented pregnant individuals delay prenatal care or forego it entirely; lack access to comprehensive contraceptive care and family planning; and, may not receive postpartum and neonatal health care.

Research by the National Immigrant Women’s Advocacy Project found that immigrant girls were more likely than non-immigrant girls to be a victim of reoccurring sexual assault in their lifetimes.  Immigrant survivors of sexual violence face unique challenges in reporting assault or abuse, including potential questions and consequences related to immigration status, as well as a lack of privacy and/or understanding for non-English speakers who may need to share their experiences through an interpreter. This can deter individuals from reporting their assault to begin with and, when coupled with the other hurdles mentioned above, can lead to a loss of justice for these victims.  Lack of accessibility without fear to court rooms and the legal process as a whole is detrimental to these groups and jeopardizes their access to their reproductive health, rights and justice.

Another issue that immigrants specifically face in the legal system is the lack of representation at their immigration trials.  Unlike U.S.-born persons who are constitutionally required to be offered an attorney for a trial of any kind, those without citizenship are excluded from this benefit.  According to the American Immigration Counsel, only 37% of immigrants as a whole secured legal representation for their removal cases and only 14% of detained persons were able to do so as opposed to non-detained immigrants.  Additionally, having an attorney present in their removal proceedings had a corresponding increase between 19 to 43 percent in rate of case success.  Lack of representation leads to greater increase of removals and an increased number of family separations. NARAL Pro-Choice Maryland believes that every undocumented person in the state of Maryland to deserves access to legal representation so as to give each individual the best opportunity possible to avoid these detrimental outcomes.

Lastly, immigrant women and children face harm and neglect at detention centers all over the United States.  Often detained upon entry to the United States, there are large degrees of family separation that occur at the border; from there, immigrants may embark on a dangerous journey of life within a detention center.  These stays can be characterized by medical malpractice, negligence, and harm to pregnant individuals, especially in privatized detention centers that are not held accountable to nationalized medical standard practices.  The ACLU has published reports that exemplify these violations of bodily autonomy and reproductive rights which includes not having access to menstrual hygiene products or diapers, not having proper care and medical attention for pregnant women, and rampant forced sterilizations.  These reports state that Border Patrol allegedly told pregnant detained women to get abortions: a form of reproductive coercion and blatant disrespect for bodily autonomy.  Additionally, there was one case reported of a Honduran woman in particular who went into premature labor and delivered a stillborn only four days after being detained and denied medical care by Border Patrol staff.  This was an avoidable outcome had staff at the detention center been attentive to the health needs of the detainees.

RELEVANT LAWS

FEDERAL LAWS

Deferred Action for Childhood Arrivals (DACA)

This was an Obama era program that was originally introduced in 2012, went on a brief hiatus during the Trump Administration and was recently revived under current President Joseph R. Biden.  With the revival of the DACA under President Biden, it is important to understand its impacts on reproductive care for its recipients as all 800,000 of them are of reproductive age.  Firstly, DACA creates a system in which immigrant children brought to the United States before their 16th birthday are eligible for something called Temporary Protected Status (TPS).  This is NOT citizenship.  Therefore, they are still barred from accessing traditional healthcare coverage options afforded to U.S. born persons.  Additionally, their prior years of residency in the U.S. do not count towards their “5 Year Bar” leaving them at a lack of coverage for an extended period of time.  This creates a lapse of coverage for a demographic in desperate need of  reproductive healthcare as many of them are at their prime stages of family planning.

MARYLAND LAWS

HB0016 (SB0478) – Correctional Services – Immigration Detention – Prohibition (Dignity Not Detention Act)

This bill passed by both chambers in Maryland  at the end of the Maryland General Assembly 2021 session and currently awaits the Governor’s approval.  Its goals are to eliminate illegitimate private detention centers that have been characterized in the past by reproductive coercion, medical neglect and even forced sterilizations.  This piece of legislation would both end currently existing private detention centers (by October of 2022) while also barring the creation of new ones.

Although this bill passed through both chambers of Maryland Congress it was vetoed by Governor Larry Hogan.

HB0023 (SB0234) Personal Information – State and Local Agencies – Restrictions on Access (Maryland Driver Privacy Act)

This bill also heard in the Maryland General Assembly during the 2021 session would prohibit state and local governments from using facial recognition technology on drivers’ licenses of undocumented persons.  This practice is used to seek immigrants out to then lead to their arrests and subsequent deportation/family separations and instills unwarranted fear in these communities.

Although this bill passed through both chambers of Maryland Congress it was vetoed by Governor Larry Hogan.

As we look towards the future of state law in Maryland regarding immigration, these issues will undoubtedly be reoccurring topics; ensuring respect, safety, and dignity for all detained individuals must be prioritized. The existence of private detention centers allows for a lack of standardized medical practices and leaves immigrants vulnerable to unregulated medical neglect in these facilities.  Privacy is a major concern as state and local agencies continue their use of facial recognition a reoccurring tool to identify undocumented persons. Ensuring privacy is key to ensuring immigrants’ ability to live and thrive in U.S. communities without fear of potential deportation/family separations.

Isabella Sansanelli, Policy and Legal Research Intern, 2021

Summer 2021 updates
Over the last several months, the Biden administration has set forth a series of changes related to immigration enforcement. Notably, the administration moved to end the detention of families earlier this year, and now they have issued a new policy stating that women known to be pregnant, postpartum, or nursing should not be detained except in special circumstances. Unless a pregnant, postpartum, or nursing woman is a threat to national security, public security, or border security, she is not to be detained. The policy requires senior Immigration and Customs Enforcement (ICE) officials to review every single instance in which a pregnant, postpartum, or nursing woman is detained in order to determine the validity of her threat to either national, public, or border security.”
Priscilla Alvarez, ICE Issues New Policy Guidance Discouraging Detention of Pregnant Women, CNN (July 9, 2021), https://www.cnn.com/2021/07/09/politics/immigration-detention-pregnant-women/index.html.
In addition to these administrative changes in policy, the U.S. Supreme Court recently issued some major rulings on immigration. In Johnson v. Guzman Chavez, the Court held that noncitizens who are detained for illegal reentry and pursuing withholding of removal will not be entitled to a bond hearing while they await their hearing. In Niz-Chavez v. Garland, the Court held that the government is required to serve a notice to appear in a single document, which will increase the opportunity for a noncitizen to become eligible for discretionary relief and be able to stay in the country under a circumstance which would otherwise warrant removal. In U.S. v. Palomar-Santiago, the Court held that noncitizens who seek to dismiss an indictment for illegal reentry after being removed on false grounds will have to follow the same tedious requirements to dismiss the indictment as noncitizens who were removed on legitimate grounds. In Sanchez v. Mayorkas, the Court held that individuals who entered the U.S. unlawfully will be barred from ever becoming eligible for a green card. Finally, in Garland v. Dai, the Court found that a liberal Ninth Circuit practice of accepting credibility determinations made by lower courts was inconsistent with the Immigration and Nationality Act. The Court found that federal courts shall accept the lower courts’ factual determinations unless the record contemplates a different conclusion, or a reasonable adjudicator would be compelled to conclude the contrary.

Shea Roodberg, Policy and Legal Research Intern, 2021

 

 

 

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We fight for a future that includes access to all reproductive health care no matter your zip code or employer. Maryland must lead the charge. Are you with us?