A Pregnant Kid in a Cage: Jane Doe’s Fight for Reproductive Rights

By Nicole M. Guidotti-Hernández, Associate Professor of American Studies, UT Austin

This Speaking Justice to Power installment focuses on the Americas, North and South, to foreground the divergent historical roots of the region’s new authoritarianism, now being enacted through confinement practices in numerous states. A multi-part PoLAR conversation with Karina Biondi (APLA Book Prize winner 2017), Catherine Besteman (President Emeritus, APLA) and Orisanmi Burton, complements this Speaking Justice installment’s focus on authoritarian practices of confinement and cauterization.

The Obama administration’s carefully calibrated immigration revisions increased penalties against undocumented border crossers and returned people immediately to their countries of origin. In FY 2016, DHS carried out 530,250 apprehensions and 344,354 removals, compared to 462,388 apprehensions and 333,341 removals a year earlier. Despite the increase, these numbers were far lower than the peak of enforcement operations at the beginning of the Obama years, after he inherited a robust enforcement regime from his predecessors.[1] Add to this, the surge of Central American unaccompanied migrant children that began in 2014, and you have a serious confrontation between what constitutes immigration enforcement priority and the politics of sympathy. “In 2016, the number of Central American migrant children travelling through Mexico remained high (the number of children detected in 2015 was 35,000 and in the first 10 months of 2016, it reached almost 31,000). Children are migrating for family reunification purposes, are in search of new social and economic opportunities or are running away from increasing violence in their country of origin”.[2] With this surge of child migrants, there’s been a ramp up of enforcement priorities, especially at the Texas-Mexico border, where the crisis has been felt exponentially. Children have fled since 2014 to avoid climbing levels of gang violence, extortion and drug trafficking or to find their parents. With the Asylum-Seeking Caravan making its way through Mexico at the time of writing this, I cannot help but reflect on how this moment of international humanitarian crisis is linked to reproductive politics.

With this new wave of migrants in the Fall of 2018, and especially for the children traveling with or born to families on the migrant trail, the politics of empathy have been mobilized away from the potential salvation narrated for DACA recipients. The figure of the refugee, in Trumpian rhetoric, is criminal. The child of the refugee is even more precarious, for his/her salvation depends upon whether or not childhood is decriminalized within the visible logic of whiteness and privilege. If decriminalized, the figure of the refugee-migrant child might mobilize empathy and salvation, yoking them through sentimentality and potential inclusion in the nation. The double move—to evoke family values and salvation— uses the moral ground of humanitarianism and sentimentality to make the Dreamers worthy of protections and unaccompanied Central American migrants and their parents unworthy because they are a security threat. The administration’s deployment of 5,200 active duty military troops to the U.S.-Mexico Border was justified to prevent “an invasion of our country.”[3]

With this administration, there’s been a tightening of border security and the rhetoric of security. The April 6, 2018 DHS memo to the White House cites the end of the “catch and release policy” where “whereby aliens are released in the United States shortly after their capture and apprehension for violations of U.S. immigration laws.[4] Since September of 2017, the administration drafted policy to quickly deport more than 150,000 child migrants from Central America who arrived alone in the U.S. illegally, creating a new class of undocumented migrants.[5] They also rolled back what is known is known as parole for asylum seekers once they cross into the U.S.. Those children would not be allowed to plead their cases for asylum and/or family reunification in front of a judge before deportation. And even though this policy makes parole an option, not a right, the shockwaves the administration intended to send through undocumented communities have worked in continuing the prevention through deterrence strategy, except where children are concerned. They continue to seek reunification with their families and escape persecution.

For this post, I think it best to provide an account from the field regarding the state which seems to be ground zero for some of the most pressing biopolitical issues of the current conjuncture in need of radical critique. As we all know, biopower demarcates the will to have power over bodies; it is, according to Foucault, “an explosion of numerous and diverse techniques for achieving the subjugation of bodies and the control of populations.”[6] Biopolitics and borders could not be a more pressing political theme today. Recently, we’ve seen an even greater shift towards total border enforcement against “illegal” bodies at the national level, and a clamp down on women’s bodies in the state of Texas with new technological fervor. But these drastic policy changes, while intensified with the 2016 election, were brewing long before and have come to a head in some of the most contradictory ways.

One such case is that of Jane Doe, a minor from Central America, detained in a Brownsville South Texas facility, who sought an abortion while in custody of immigration officials. The 17 year old was made an example by the Trump administration, that tried to secure an injunction to block the teen’s abortion request. This marks the difference in the biopolitics of being pro-life and anti-immigrant at the same time. While these two categories might seem antithetical, in this time and place and where Jane Doe was concerned, they are not. The dissonance and convergence of pro-life and anti-immigrant positions for their elasticity and overlap are most striking in Jane Doe’s case. Drawing attention to the Jane Doe abortion case marks a newly emerging link between anti-reproductive rights and anti-immigration politics at the current conjuncture.

Reproductive Justice for All” by Charlotte Cooper. CC BY-2.0.

Jane Doe crossed the border at age 17, with the dream of becoming a nurse who could someday care for senior citizens. But when she was detained at the US-Mexico border and had a medical examination, she was told she was pregnant. A rite of passage on the migrant trail, we can speculate that she was most likely raped while in transit, like so many women who enter the North American migration corridor. When she tried to schedule an abortion, the Trump administration blocked her, prompting a lawsuit in federal court. The ACLU represented the teenage unaccompanied minor and claimed victory when the Federal court provided an injunction so that she could leave the detention facility to receive an abortion. The Trump administration’s prenatal politics put priority on the unborn child, not on the pregnant youth in detention. Jane Doe’s body, while deportable, was not worthy of salvation, only her unborn child was. Raising an ethical question about the incommensurate nature of the politics of prolife that are anti-immigrant, Jane Doe’s case signals how both issues are driven by economies of value. Further, the relationship between punitive immigrant laws and the health of Latinas in the United States cannot go overlooked in the invisible sites of detention camps, where the lack of care is only magnified by the penal nature of such institutions.

Since she was already in detention, Jane Doe’s legal status as a minor was used as a deterrent by the federal government and DHS serving as her “guardian.” Despite the original injunction, Judge Tanya S. Chutkan reissued the order that the teen have an abortion “promptly and without delay.”[7] Jane Doe was sponsored by a volunteer guardian and taken to a clinic for the procedure on October 25, 2017.

Judges of the dissenting position wrote that the decision “Rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”[8] Under the current regime that has retrenched itself in the rhetoric of nativism, the war on women’s bodies and the war on immigrants have intersected in and through the body of the unaccompanied Central American teen migrant who sought an abortion. DHS officials have been instructed to “promote childbirth and fetal life” for teens in custody.[9] This is endemic of what Mark Tooley has called the confused politics of the pro-life movement, where Evangelicals and Catholics have “traditionally opposed abortion as uniquely pernicious because it destroys a completely innocent and vulnerable life, in most cases only for convenience. Yet some try to stretch “pro-life” to include their own political preferences in ways that dilute focused opposition to abortion.”[10] This elasticizing of the prolife position ultimately allows for the rhetoric of anti-immigrant to be compatible with particular Christian ethics of saving the child but not the immigrant mother. But what happens when the immigrant mother is a “child” herself? In this instance, saving the child to save a child does not work in the logic. Instead, pro-life only includes unborn life, not immigrant life. These biopolitics, according to Foucault, are part of an intelligible mechanism[11] of the current state formation. They are instructive of how confinement politics determine reproductive politics. While the state and churches are heterogeneous, in these cases, the two positions make illegal immigration and abortion morally wrong. But how to rectify the pro-life position for the unborn child with the lack of value described to the undocumented immigrant mother’s life? There is a particular strand of the right that is actually doing this right now. There is an eerie convergence between necropolitics, biopolitics, and the pro-life anti-immigrant position in that programs like Prevention Through Deterrence funnel border crossers to their deaths but attempt to preserve the lives of unborn children, not actual undocumented children. Here there is a sleight of hand in the discourse, for what makes a person a person should determine human rights in all three cases—but they are not equivalent in the current discourse. This empty humanism calls for human rights without humanity. Such dehumanization of immigrant life works to bolster the process of claiming the rights of the unborn making them even more human as the state’s expectation is that they would be incorporated into the body politic, unlike their undocumented immigrant mothers. The other side would argue that “no human being is illegal” and worthy of protections. Such forms of governmentality extend to privatized, for profit spaces of immigrant detention facilities in that they show the convergence of public law and private markets, making the pro-life anti-immigrant position an economic one. The potentially U.S. born citizen-child of Jane Doe had more rights than her detained, minor immigrant mother. Here, government interferes with the right to choose what to do with one’s body in favor of protecting the potential child-citizen fetus. Jane Doe did not want to have nor intend to have an “anchor baby”; rather, she intended to maintain her sovereignty as an undocumented migrant in detention by seeking an abortion. This judicial concept of freedom, Foucault would argue, as did the judge who ruled in Doe’s favor, is “the possession [of] a certain freedom, which [s]he will or will not cede.”[12] This idea of the willful, desiring undocumented subject comes through most in Jane Doe’s public statement after the abortion, most likely crafted with the help of her lawyers:

I’m a 17-year-old girl that came to this country to make a better life for myself. My journey wasn’t easy, but I came here with hope in my heart to build a life I can be proud of. When I was detained, I was placed in a shelter for children. It was there that I was told I was pregnant. I knew immediately what was best for me then, as I do now—that I’m not ready to be a parent. Thanks to my lawyers, Rochelle Garza and Christine Cortez, and with the help of Jane’s Due Process, I went before a judge and was given permission to end my pregnancy without my parents’ consent. I was nervous about appearing in court, but I was treated very kindly. I am grateful that the judge agreed with my decision and granted the bypass.

While the government provides for most of my needs at the shelter, they have not allowed me to leave to get an abortion. Instead, they made me see a doctor that tried to convince me not to abort … People I don’t even know are trying to make me change my mind. I made my decision and that is between me and God. Through all of this, I have never changed my mind….No one should be shamed for making the right decision for themselves. I would not tell any other girl in my situation what they should do. That decision is hers and hers alone….This is my life, my decision. I want a better future. I want justice.”[13]

4556038521_2f774a9774_b (1)
Minneapolis protest against Arizona immigrant law SB 1070” by Fibonacci Blue. CC  BY 2.0.

In articulating choice as justice, Jane Doe’s sophisticated dissent taps into one of the core values of human rights: a rejection of public shame for being who you are and making the choices that you make. Moreover, as a self-possessed child-subject, Doe’s decision contests the power relations of immigrant detention and the pro-life movement by stating that she herself has made a pact with God about the decision. Deploying a human rights frame as a reproductive rights issue, Jane Doe ultimately uses the same rhetoric that the pro-life camp does in demarcating choice as her final decision alone without capitulating to public pressures of pre-procedure counseling or religious organizations. In arbitrating her own decision, she too focuses on human rights and moral responsibility, just in a different direction than the pro-life anti-immigrant camp.

Contemporary Texas and national biopolitics then are in favor of protecting the unborn child over the criminal minor immigrant, especially when that immigrant is an undocumented mother and to paraphrase Spivak, “saving brown and poor women” from themselves at the cost of not protecting the most vulnerable. We are not only in a moment of structural violence where the intersections of race, class, and gender impact the policing of our bodies in their reproductive capacities, but moreover, the speed of technology in communicating this information has only intensified the violence against vulnerable populations, especially on the other major biopolitical front, that of the U.S.-Mexico border. The bodies of asylum seekers, the bodies of women, bodies of color, and bodies close to the U.S.-Mexico border signify the other call for an intersectional feminist critique of the most urgent sort. Jane Doe was a kid in a cage, like all the other unaccompanied migrant children who crossed the border in the summer of 2017-2018. But her caging was different in that the confinement practices became a battle ground for the intersections of pro-life and anti-immigrant legal precedents. With a materialist critique that centers on the intersectional practices of human caging, we elucidate not just the politics of reproduction, but the politics of how we move in the world, what undocumented minor women-children do with their bodies, how asylum seekers and migrant caravans decide to move across borders, seek medical care, participate in communities and simply live. Citizenship, migration, and statelessness, have become the default categories of how boundaries are drawn these days with biometrics, antiterrorist units, a war on women’s bodies, and a public war on non-whiteness. When coupled with the fate of embodiment that further abjects the non-normative, structures of gender and race make possible new emerging forms biopolitical violence. Based on Jane Doe’s case as a pregnant kid in a cage, we can no longer separate anti-immigration politics from pro-life reproductive politics. For the elasticity of the pro-life movement does indeed posit the life of the undocumented immigrant child-mother worthy of deportation and unworthy of salvation.


J & N e-session0013.JPGDr. Nicole M. Guidotti-Hernández is Associate Professor of American Studies and Mexican American and Latina/o Studies at the University of Texas at Austin. Her book titled Unspeakable Violence: Remapping U.S.  and  Mexican National Imaginaries, Duke University Press (2011) was a finalist for the 2012 Berkshire Women’s History First Book Prize and has received many favorable reviews. Her second book, Borderlands Masculinities: Attachment, Affect and Desire will also be published by Duke University Press in 2019.

As a public intellectual, Dr. Guidotti-Hernández has written numerous articles for the feminist magazine Ms. and the feminist blog The Feminist Wire, covering such topics as immigration, reproductive rights, and the Dream act. She also sits on the national advisory council for the Ms. and is currently on the national advisory council for Freedom University in Athens, Georgia.

[1] https://www.ice.gov/news/releases/dhs-releases-end-fiscal-year-2016-statistics.

[2] https://www.unicefusa.org/mission/emergencies/child-refugees/central-american-child-migrants

[3] Michael Sherer and Thomas Gibbons Neff. “Trump Sending 5200 Troops to the Border in an Election Season Response to Migrants.” October 28, 2018. https://www.nytimes.com/2018/10/29/us/politics/border-security-troops-trump.html. Retreived November 1, 2018.

[4] https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/posts/white-house-memo-on-39-catch-and-release-39. Retrieved November 1, 2018

[5] http://www.newsweek.com/trump-administration-weighs-deporting-thousands-unaccompanied-child-migrants-668778

[6] “Michel Foucault The History of Sexuality Vol. 1: The Will to Knowledge. London: Penguin. p. 140 (1998)

[7] “Undocumented teen Immigrant Has the Abortion She Sought for Weeks. The Washington Post. October 25, 2017.

[8] Ibid.

[9] Ibid.

[10] “Confusedly Pro-Life.” Human Life Review. January 1, 2014

[11] “The Birth of Biopolitics.” The Birth of Biopolitics: Lectures at the Collège de France, 1978—1979. New York: Picador, 2010. 15.

[12] Ibid. 42.

[13] https://www.vogue.com/article/jane-doe-permitted-to-have-abortion

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