U.S. Immigration and Customs Enforcement (ICE) will avoid the arrest or detainment of individuals who are pregnant, postpartum or nursing, according to new guidance released on July 1.
“ICE should not detain, arrest or take into custody for an administrative violation of the immigration laws individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist,” wrote ICE acting director Tae Johnson in the memo, saying it “reflects our commitment to treat all individuals with respect and dignity while still enforcing our nation’s laws.”
Departure From Trump-Era Policies
This new Biden administration policy takes a turn away from the previous administration’s immigration agenda, coming amidst a broader effort from the Biden administration to soften stringent immigration policies put in place by former President Donald Trump.
In 2017, Trump reversed an Obama administration guidance that directed ICE to try to release any pregnant woman in their custody. According to a Government Accountability Report conducted in 2019, Trump’s directive led ICE to detain 2,089 pregnant women and 381 nursing women in 2018—a 52 percent increase from the 1,380 pregnant people detained during the last year of the Obama administration.
The new ICE directive is more expansive than the Obama-era policy: It not only applies to pregnant people, but also applies to those who are nursing and who have given birth within the last year. It also uses gender neutral language, acknowledging that transgender individuals can give birth in addition to cisgender women, resulting in a policy which offers more protections to the people who need them most and have historically been forgotten.
“This action by the Biden administration is a welcome step in the right direction. This move brings us closer to more humane treatment by ICE of people who are pregnant, postpartum, or nursing,” said senior staff attorney with the National Prison Project of the American Civil Liberties Union, Eunice Cho.
The Fragility of Biden’s Guidance
Biden’s new policy was not issued through legislation, but rather through executive order, as is the case for all of his immigration policies to date. Since they are not codified in law, these protections for undocumented pregnant and postpartum immigrants could be reversed under a future administration.
“Any change in presidential administration can materially change people’s lives, especially immigrants and folks who are kind of trying to navigate their way through the immigration system,” said Breanne J. Palmer, a lawyer for UndocuBlack Network. “People who endure detention when they’re pregnant or nursing, you know, they really have very little recourse.”
Palmer’s organization was among a number of immigration advocacy groups that filed a complaint in March with ICE’s parent agency, the Department of Homeland Security. The complaint details how pregnant immigrants were treated in detention centers between February 2020 and February 2021, including descriptions of pregnant detainees being denied crucial medical care.
The Intersection of Medical Care and Citizenship
The health of immigrant and undocumented pregnant persons has been fraught for a while now, as many risked their health by postponing prenatal care and giving birth at home during Trump-era immigration enforcement policies. “They put you between a rock and a hard place,” says Maria, the mother-in-law of an undocumented pregnant woman. “It’s either your baby or your immigrantion status,” she said, in regard to choosing status safety over bodily safety with her daughter-in-law’s pregnancy. In this way, ICE’s announcement is a glimmer of hope—there is not a double punishment burdening undocumented pregnant persons, however some issues persist as there is still anti-immigrant policies in place and a great lack of social services for a vulnerable population.
Use of restraints on pregnant individuals in ICE custody is largely prohibited, but selectively enforced. Despite many states instating anti-shackling laws on detained or incarcerated pregnant persons during labor, fewer restrict the practice through the entire pregnancy term, according to the American College of Obstetricians and Gynecologists. There is a push among immigration advocacy groups to limit the detention and restraint of those who are pregnant in the criminal justice system more broadly.
“The immigration detention system separates mothers from their families, denying them the ability to parent; it mistreats pregnant people and denies access to abortion and other reproductive health care, interfering with the rights of detained people to control their reproductive lives and have healthy and positive pregnancy outcomes,” the Center for American Progress wrote in a 2019 report.
In a fact sheet entitled “Health Harms Experienced by Pregnant Women in U.S. Immigration Custody” written by Physicians for Human Rights (PHR), the pervasive ways in which pregnant people in custody are denied access to medical care are outlined in detail. PHR offers recommendations to both the Department of Homeland Security as well as the U.S. Congress, the most notable of which demanding they “restore the presumption of release from immigration detention for pregnant women” and “codify into law standards of medical care that ICE is obligated to follow.” With this July 1 announcement, these standards, though not complete in their entirety, are closer to being met.
“It’s great to see the administration directing ICE to finally take meaningful steps to limit enforcement activities in this manner,” said Jorge Loweree, the director of policy at the American Immigration Council. “We are hopeful that this announcement is an indication of a broader shift on detention policy.”