Immigration, like all politics, is reproductive politics too...

—Risa Cromer, “Jane Doe”¹

The degree to which bodies are regulated depends on where they are institutionally, legally, and geographically situated.² This reality came into stark focus in the 2018 court case Garza v. Hargan, which captures one of the latest attempts to intervene in abortion access—continuing the fraught and ongoing efforts by certain states and the federal government to circumscribe the extent to which reproductive rights apply and to whom. And now, even since the initial writing of this piece, this reality has become starker with the passing of the Texas Senate Bill 8 (SB 8). The state’s draconian bill, which went into effect on September 1, 2021, ends abortions in Texas after approximately six weeks. Even more dystopian, however, is that the law is enforced by vigilante citizens who have been granted the legal right—incentivized with a bounty of $10,000—to sue anyone who assists a person seeking an abortion.³ In conjunction with Texas Senate Bill 4, which will go into effect December 2, Texas has, for the time being, succeeded in almost entirely eliminating abortion in the state.⁴ These efforts connect with the state’s decades-long commitment to severely curtail mobility, citizenship, and immigration rights. This piece does not address SB 8. It instead looks to Garza to better understand how we arrived here. Through Garza it is possible to see how the state of Texas has developed a legal strategy to restrict access for certain bodies both spatially and temporally and how it has managed to outsource enforcement to private entities, be they subcontractors or citizens. Garza sets the stage for today’s private enforcement of Texas’s anti-abortion law, and for ever more extreme restrictions that deem certain bodies (brown, reproducing, and immigrant) unequal to others.

In 2017, the government stipulated that in order for Jane Doe (J.D.), a pregnant, undocumented minor who was being housed in a shelter funded by the Office of Refugee Resettlement (ORR), to be granted access to an abortion, she must voluntarily leave the United States or, if she remained in the country, find a sponsor who would take custody of her and not intervene in her abortion decision. While sponsorship is a requirement specifically related to immigration, placing a minor in the custody of qualified guardians, it intersects with abortion access in the time it can take for the government to approve a sponsor. In the case of J.D., this approval process created extensive delays to her abortion care. Thus, while abortion is regulated spatially—it must occur beyond the confines of the government-funded facility (in this case the ORR-funded shelter)—it is also regulated temporally. By controlling J.D.’s access to medical care inside their facilities, and the conditions under which she could access care outside of them, ORR, and a minority of judges on the US Court of Appeals for the D.C. Circuit in the Garza case, severely curtailed abortion access for undocumented, unaccompanied minors while detained in federal immigration custody. Even though the decision did not prevail—and J.D. was eventually able to receive an abortion—the case reveals how the state simultaneously functioned as custodian and barrier to care, and how a body’s different legal status is mapped onto and constricted differently in space. In doing so it highlights the challenging situations teens seeking abortion encounter depending on the spaces where they are contained; these spaces are overseen by state and federal governing bodies who often produce conflicting rulings that significantly reduce and, in this case, temporarily prevent a pregnant person’s self-determination.

What does it mean to consider the Garza case through a spatial framework? For one, it means accounting for the various scales at work throughout the legal ruling: J.D.’s body, the ORR-approved shelter where she was detained, the jurisdiction of state and federal laws. The federal, legal, and spatial frameworks governing young women held in Texas ORR-affiliated shelters impose a regime of surveillance and bodily control. Texas serves as a bellwether because the significant restrictions the state legislates for reproductive health care and immigration policy have enormous implications on a national level.⁵ Recent Texas history demonstrates the willingness of the state legislature to radically reduce access to reproductive health care. In 2013 and 2014, almost half of all the clinics providing abortion services closed across the state due to restrictive state laws. In 2013 there were more than forty state clinics and in late 2019, only twenty-two of those clinics were open.⁶ In 2016 $800 million was allocated to border security, while the budget for family planning support shrank to $40 million (from $112 million), shuttering eighty-two family-planning clinics across the state.⁷ When one considers these policies in conjunction with Texas state immigration laws and practices, it is clear that anti-abortion and anti-immigration policies work in tandem to govern whose rights matter most.

These tactics have only continued during the COVID-19 pandemic. Texas Governor Greg Abbott removed abortion from the essential medical procedure and surgery list, delaying access to abortion care during the public health crisis. Texas attorney general Ken Paxton clarified that “any type of abortion that is not medically necessary to preserve the life or health of the mother” would be postponed.⁸ COVID-19 abortion restrictions were also created in Alabama, Arkansas, Iowa, Louisiana, Mississippi, Ohio, Oklahoma, Tennessee,⁹ Kentucky, West Virginia, and Alaska.¹⁰ Some of these state bans have been blocked by court order (Alabama, Ohio, Oklahoma, and Tennessee), and some bans are no longer in effect (Alaska, Arkansas, Iowa, Kentucky, Louisiana, Mississippi, West Virginia, and Texas).¹¹ The strategy to acutely, if not entirely, eliminate reproductive rights also follows the severe border restrictions placed on immigration by the Trump administration under the pretense of public health amid COVID-19.¹²

Exclusions may apply: Reproductive rights for the incarcerated

States continually configure and reconfigure themselves in relation to access to reproductive health care. In then-Circuit Judge Brett Kavanaugh’s dissent to Garza, the decision that overturned the governments’ denial to abortion access and required HHS to allow an undocumented minor (J.D.) to access an abortion, he mentions the rights of those in detention in comparison to those who are incarcerated—adult women held in either federal prison or government immigration custody—are legally allowed access to abortion.¹³ This is an important comparison because it provides a space to consider the legal frameworks of abortion access of people held in different forms of government custody and how spatial and temporal barriers are used by the government to deny self-determination for those it deems unworthy. The incarcerated have their mobility severely curtailed, controlled, and surveilled by the government, and yet, abortion remains a legal right for them. Political scientist Rachel Roth’s research on abortion access for incarcerated people underscores that “federal and state courts have consistently held that imprisonment does not negate women’s constitutional right to abortion … [yet] reproductive control takes on new meaning, because jails and prisons literally control women’s movements and contact with the outside world.”¹⁴ Access to abortion while in prison is supported by both the Fourteenth Amendment’s right to privacy and the Eight Amendment’s right to adequate care of serious medical needs.¹⁵ In Estelle v. Gamble (1976), “the Court firmly established the government’s constitutional obligation to meet the important medical needs of those in its custody.”¹⁶ However, how these medical needs are defined—as elective or necessary, for example—can differ from state to state, prison warden to prison warden, further complicating and politicizing access to basic reproductive health care, and all too often turning pregnancy itself into a form of punishment.¹⁷

Abortion access within spaces of incarceration is not consistent across the country—similar to the disparities encountered by people who are not imprisoned. For the incarcerated, approximately one-third of states have clear policies around reproductive options including abortion; another third uses conditional language suggesting abortion may only be discussed if the incarcerated person inquires about it.¹⁸ Another seven states have created a series of multistep requirements including vast amounts of paperwork, money transfers, and contact with a community provider. Other states place the responsibility of locating an abortion provider on the imprisoned person. Eight states have no written abortion policy whatsoever, creating opportunities for prison officials to interpret the law as they see fit.¹⁹ Additionally, some states require the imprisoned person to pay for the abortion, for transportation to the facility, and even the officer’s time during transportation as well as vehicle wear and tear.²⁰ These extreme variations and inconsistencies across states reveal that although legally guaranteed, abortion is often made difficult to access for the incarcerated. These barriers also intersect with the ways in which abortion access is unevenly distributed geographically and legally even for women who are not incarcerated. Take, for example, Texas where abortion after approximately six weeks is now illegal. Women are forced to travel to the neighboring states of Oklahoma, Louisiana, New Mexico, and Colorado in hopes of being able to secure an appointment.²¹ However, in Oklahoma there is a seventy-two-hour waiting period between a counseling appointment and procedure appointment; in Kansas there is a twenty-four-hour waiting period; in Louisiana there is a twenty-four -hour waiting period and counseling is mandated to be in person, thus requiring two visits to the clinic.²² Combine state restrictions with the number of clinics that remain in these states—four in Oklahoma, three in Louisiana, five in New Mexico, and sixteen in Colorado—and women have far fewer choices for care. These examples further underscore how access, whether for someone who is incarcerated, in detention, or free, significantly depends upon where that person is. Location and jurisdiction can determine whether access to reproductive health care will be granted in a timely manner, if at all.

“Rather than being transparent,” Roth writes, “the state in the prison context is instead opaque, multifaceted, increasingly privatized, and characterized by high levels of decentralization, delegation, and discretion that render ambiguous the locus of official state authority. This particular configuration of state power creates distinctive challenges and vulnerabilities for women seeking to safeguard their reproductive health and rights and raises serious questions about accountability for how governments regulate women’s lives.”

Before 1987, the US Bureau of Prisons paid for incarcerated persons’ abortions. It wasn’t until President Reagan’s administration that coverage changed—only extending to abortion as a result of rape, incest, or if a person’s life was endangered by carrying the pregnancy to term.²³ At the federal level, things may be clearer but are in no way better. In reaction to the Supreme Court’s 1973 Roe v. Wade decision, the Hyde Amendment, first passed in 1977 as part of Medicaid appropriations, prohibited federal Medicaid funds to pay for abortion except when a person’s life was in danger. Hyde continues to exist but the terms of coverage have since varied.²⁴ Some years federal exceptions are expanded to include survivors of rape or incest. Additionally, Hyde’s exclusions affect a diverse group of people receiving government benefits: federal employees and their dependents; Peace Corps volunteers; Native American women; low-income women in Washington, DC; military personnel and their dependents; and federal prisoners.²⁵ An incarcerated person may not be aware of these changes, which often coincide with the change of administrations. Currently this is being disrupted through Biden’s 2022 budget proposal; it is the first time since Hyde was passed that this federal abortion ban has not been included in a proposed budget.²⁶

Delaying access: Barriers to abortion in Garza v. Hargan

The Garza case creates some strange spatial gymnastics as it maps the pregnant body of unaccompanied minors onto and out of various institutional sites. Spatial control spans from the border to federal detention centers to ORR-affiliated shelters to reproductive health care facilities. For example, J.D.’s sponsor—the person in whose custody she must make the decision to have an abortion—and the clinic itself cannot be in government-run facilities. As a result, the minor’s body must inhabit two highly regulated spaces: the space of detention and the space of the abortion clinic. Reading Judge Patricia Millet’s and Judge Kavanaugh’s opinions on where J.D. should be placed through a spatial framework demonstrates how the actual geographic location and who oversees this literal space is a critical factor in J.D.’s ability to access reproductive health care—one that must be outside of state control. Because the judges’ opinions discuss institutional oversight and the space where oversight occurs, these are important spatial distinctions for several reasons. One, both types of spaces are controlled to different degrees; in the case of an ORR-affiliated shelter, the government is responsible for legal oversight, and in the case of the abortion clinic, the state legislates access, some health care protocols, and building codes. For an unaccompanied minor, the ability to physically leave one space to access another is highly regulated, orchestrated, and extremely difficult, or often impossible, to do in a manner dictated by the framework in Roe v. Wade. The three-trimester, twelve-week framework in Roe is based on fetus viability outside the womb. The first trimester provides a pregnant person complete autonomy over their decision in a medically safe environment by a licensed doctor; during the second trimester, the state can regulate access to abortion but not outlaw the procedure; and during the third trimester when there is fetus viability, the state can outlaw abortion except to save a pregnant person’s life and/or health.²⁷ Two, with the former administration, unaccompanied minors in an ORR-affiliated facility are being treated similarly, albeit not exactly, to people in prison. This includes how the space looks and feels, the way young bodies are forced to adhere to disciplinary codes of conduct, migrants’ clothing requirements, what they are fed, and when they can play. These daily routines discipline and reinforce the states’ power over their bodies, and because it may feel like prison, it begins to be like prison. Three, in his dissent Judge Kavanaugh compares similarities of abortion access for an incarcerated versus a detained person, and he highlights that the type of space an unaccompanied migrant teen is in may possibly affect her decision-making ability. There is a tacit understanding in this statement that the quality and type of space influences one’s well-being—both materially and psychologically. Additionally, he concedes that to be removed from one’s support networks in spaces of confinement could also make J.D.’s experience far more challenging. Although acknowledging these intersecting aspects, Kavanaugh still seeks to deny J.D. the basic agency and autonomy over her abortion plan.

Judge Kavanaugh’s dissent reveals his disbelief in a teen’s ability to make an informed decision on their own, and a bias for sponsor-facilitated decision making outside of a government facility. Prioritizing private space for Doe’s decision-making abilities calls into question government custodial space and its effects. He writes:

… it could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion, even though the minor at that point would still be residing in a US Government detention facility. If so, the Government would be in a similar position as it is in with adult women prisoners in federal prison and with adult women unlawful immigrants in US Government custody. The US Government allows women in those circumstances to obtain an abortion.²⁸

Kavanaugh equates safer space to custodial space in a spatial ploy: “It is merely seeking to place the minor in a better place when deciding whether to have an abortion… It surely seems reasonable for the United States to think that transfer to a sponsor would be better than forcing the minor to make the decision in an isolated detention camp with no support network available.”²⁹

One must ask why would a “better space” even be necessary for decision making? Why would this custodial space allow for a greater degree of freedom of choice than another? What Kavanaugh argues as a “better space” is one that the government can and does take its time in finding. This response comes with enormous life-altering consequences for the pregnant migrant teen. Not only was J.D. forced to visit a “crisis pregnancy center”—an anti-abortion, religiously affiliated center that provides inaccurate medical information—and to endure a medically unnecessary sonogram, but also, as a minor, she was required by Texas law to seek a “judicial bypass.” This mechanism grants minors the ability to get an abortion without notifying a parent or legal guardian—in other words, it allows a minor to bypass parental permission and to provide their own consent for the procedure.³⁰ However, even access to this bypass is checked. It entails navigating the court system, working with a court-appointed guardian and attorney ad litem, and attending a hearing before a judge—all of these bureaucratic conditions and legal requirements impede minors to various and unequal degrees. So although immigrant minors are able to bypass one Texas state-law barrier to abortion (i.e., parental consent), ORR’s added restrictions and refusals produce other significant and time-consuming burdens, delaying access to abortion.

After J.D. received the bypass orders, she had to attend two appointments required by Texas law: one for mandatory counseling and one for the procedure. On the first scheduled day, ORR would not allow J.D. to be transported to her appointment. At this point J.D. was approximately between eleven and twelve weeks pregnant. Locating a sponsor had taken a long time. The sponsor, who is typically a family member, must undergo an involved and timely review process including a background check, fingerprinting, and sometimes a home visit all of which are controlled by ORR. The sponsors J.D. had suggested for herself were either denied or deemed unsuitable by ORR, and the process had already taken six weeks. J.D. had been forced to remain pregnant an additional month after the judicial bypass was obtained. Time was critical because Texas law bans abortion after twenty weeks.³¹

Judge Millet illustrates how the government limits J.D.’s movement, resulting in significant and time-sensitive delays in abortion access, through a variety of spatial restrictions—even more restrictive “than the contractor imposes on the non-pregnant minors in its care…”³² And yet, if J.D. were to continue her pregnancy to term, she would easily be able to leave to access prenatal medical care at a separate facility from the shelter.³³ Judge Millet writes:

The government has insisted that it may categorically blockade exercise of her constitutional right unless this child (like some kind of legal Houdini) figures her own way out of detention by either (i) surrendering any legal right she has to stay in the United States and returning to the abuse from which she fled, or (ii) finding a sponsor—effectively, a foster parent—willing to take custody of her and to not interfere in any practical way with her abortion decision… Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby. The bedrock protections of the Fifth Amendment’s Due Process Clause cannot be that shallow...


All the government argues with respect to sponsorship was that its flat and categorical prohibition of J.D.’s abortion was permissible because she could leave government custody if a sponsor were found or she surrendered any claim of legal right to stay here and voluntarily departed.³⁴

Regarding the government’s position on facilitating an abortion, Millet claims: “[t]he government argues that it need not ‘facilitate’ J.D.’s decision to terminate her pregnancy. But the government is engaged in verbal alchemy… This case does not ask the government to make things easier for J.D… It just has to not interfere or make things harder.”³⁵

On the one hand, the government will not promote abortion, take her to the clinic, pay for the procedure, or in any way support what is needed for such a decision. Yet, the government cannot “interfere or make things harder” by adopting a policy and practice to “categorically blockade exercise of [unaccompanied child’s] constitutional right” to choose.³⁶ ORR policy, however, did appear to be making access far more difficult. For example, it included

A ban on “any action that facilitates an abortion” (ECF No. 5-4 at 2), which includes, inter alia, any action relating to scheduling appointments, arranging transportation, making the UC available to be transported, pursuing a judicial bypass, “draft[ing] approval documents,” “review[ing] information relevant to her health and the procedure,” and even “maintain[ing] custody of her (while ensuring her health remains stable) during and after the abortion procedure.”³⁷

According to United States District Judge Chutkan, ORR’s interpretation of “facilitation” is “so capacious that it prevents not only government officials or employees from assisting pregnant UCs, but also applies to private contractors and persons who are unaffiliated with the government.”³⁸

The government’s interest in facilitation only occurs in cases of minors in immigration custody.³⁹ Once J.D. turns eighteen, she is moved from an ORR-approved space of government oversight for children to DHS, a space of government control for those eighteen years and older where abortion is allowed because J.D. is now an adult.⁴⁰ This is also true when eighteen and in ICE custody. The government’s position on facilitation also rests on the unaccompanied minor immigrant’s ability to voluntarily depart the facility where they are detained and leave the United States. What the government fails to acknowledge is the difficulty with voluntary departure—J.D. cannot just leave while in government custody because she wants to. Voluntary departure can only be granted by the government. Departure is not necessarily expeditious, further prolonging the pregnancy. Additionally, abortion is completely banned in most Central American countries where the majority of these young women are fleeing from.⁴¹ Leaving the US would force her to remain pregnant.

Millet’s position prevailed and the government permitted J.D. to access abortion. ORR eventually changed its policy in September 2020. As of February 2021, their website states that ORR provides “[f]amily planning services, including pregnancy tests and comprehensive information about and access to medical reproductive health services and emergency contraception.”⁴²Although this multi-year legal challenge ended positively with the federal government policy change, Garza is a pattern that demonstrates the extent to which abortion access for some is increasingly restricted through ever more legal barriers.

This spatial limbo of an unaccompanied, pregnant migrant minor evokes Giorgio Agamben’s “state of exception.” For Agamben, the “state of exception” “… is not a special kind of law… rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept.”⁴³ Through this expansion, these exceptions eventually can become juridical order. Through Garza, we witness how the state created yet another legal mechanism to control women’s bodies in connection with immigration policy.⁴⁴ This “exception” is being further deployed through Texas’s criminalization of abortion in SB 8 (and SB 4) that is now in the process of being adopted by at least six other states including Arkansas, Florida, Indiana, Mississippi, North Dakota, and South Dakota.⁴⁵ What appears as an exception is quickly becoming the norm.