Unborn Citizens or Anchor Babies? Reproductive Injustice in Immigrant Detention

In the APSA Public Scholarship Program, graduate students in political science produce summaries of new research in the American Political Science Review. This piece, written by Dennis Young, covers the new article by Brittany R. Leach, University of Virginia,  At the Borders of the Body Politic: Fetal Citizens, Pregnant Migrants, and Reproductive Injustices in Immigration Detention“.

Immigrant women held in detention facilities have often been denied access to proper reproductive care. Miscarriages, inadequate prenatal care, and in some cases forced sterilization are just some of the reproductive injustices pregnant migrants face while they await a decision on whether or not they will be deported. However, this poses something of a puzzle as the groups calling for increased border security and violence against immigrants are also the organizations defending the sanctity of life. A new article by Dr. Brittany Leach helps scholars understand how reproductive injustice against immigrants in detention is justified through an unstable connection between anti-immigrant and anti-abortion rhetoric.

In early 2017, a young pregnant woman sought an abortion procedure while being held in an immigrant detention facility in Texas. Despite the urgency of her situation, she was denied the opportunity to seek an abortion. When she turned to legal action to remedy the issue, the case made it all the way to the appellate court, where now Supreme Court justice Brett Kavanaugh and DC Circuit Court of Appeals judge Karen Henderson dissented. Leach analyzes these two dissents in conjunction with a larger analysis of anti-immigrant and anti-abortion discourses on the radical right to explain how these seemingly contradictory approaches have been brought together.

These two dissents invoked very different legal ideas and definitions that both ultimately sought to justify forbidding this young woman from obtaining an abortion. In the case of Brett Kavanaugh, Leach finds that his dissent primarily focused on the issue of the state’s interest in the health and welfare of infants. He framed the issue as one in which an anti-abortion policy was good for both the mother and the fetus, demonstrating a very paternalistic investment in the case and presenting the mother as incapable of making her own decisions. By contrast, Henderson was much more vehemently anti-immigrant and argued that giving unlimited reproductive rights to immigrants was a slippery slope to immigrants feeling entitled to all constitutional rights. Henderson argued that because this young woman’s legal rights were violable in other ways, including being detained and subject to potential deportation, she should also not be given the right to seek an “elective” abortion.

These two dissents help illustrate just how fragile the connection between anti-immigrant and anti-abortion discourses are. Firstly, these dissents both make the case that this woman should not be entitled to seek an abortion, but pay little heed to the damage that waiting for this procedure would do to the young woman carrying the child. Leach points out that while the dissent seems to be trying to protect this young woman, it actually seeks to put her fully within the government’s power. Furthermore, both dissents sought to sidestep the issue of the fetus’s citizenship status. For many anti-abortion advocates the idea of “fetal citizenship”, or the notion that an unborn fetus can also be a rights bearing citizen, means that an abortion should be considered a violation of the fetus’s basic human rights. However, at the same time, anti-immigrant advocates often frame unborn immigrants as potential “anchor babies” being used to help undeserving immigrants obtain a visa. The idea of “fetal citizens” and “anchor babies” seem contradictory as the first requires caring about the fetus, where the second is demonized and perceived as a threat to the nation.

“The collision between anti-immigrant and anti-abortion discourses may be useful for sowing dissent on the right, and in turn, provide more ways to fight back against incarceration and immigrant detention.” This tension leads to a major issue in which the far-right must present a coherent narrative around pregnant immigrants whose fetuses are both unborn citizens and dangerous threats. One part of resolving this tension is that pregnant immigrants in detention are debilitated, meaning not killed, but also not allowed to live freely and flourish. This in turn allows their potential children to be treated as either a potential threat or a potential adoptee, whichever is more economically or ideologically productive at the time. As pregnant immigrants are debilitated, they are hurt by the horrific conditions of a detention center but not by any particular active agent. Delaying or preventing abortion care allows the “anchor baby” threat to be addressed without appearing to compromise notions of “fetal citizenship”. They protect the fetus by preventing abortion care, but do not allow the mother or the “anchor baby” to live freely in the United States. This is one way that an increasingly vocal and radical right relies on flexible notions of personhood and citizenship to control and oppress immigrant populations.

However, Leach concludes by suggesting that there is a path forward in which activists can use these fissures to seek justice for immigrants. The collision between anti-immigrant and anti-abortion discourses may be useful for sowing dissent on the right, and in turn, provide more ways to fight back against incarceration and immigrant detention. The better scholars can understand the limitations and contradictions of these two strains of right-wing thought, the more effectively activists can learn to exploit these tensions and seek reproductive justice for more pregnant immigrants.