Author, Expert & Speaker

The discord in this country is alarming. A noose caused by political division is tightening around our nation. A flood of information bombards us every day. We pick the topics we want to track and carve out lanes on personal information highways amid the distraction of other shiny objects. Being totally informed in the twenty-first century is impossible.

In this post, I’ve chosen a narrow approach. I endeavor to enlighten on how we’ve gotten to the point where the erosion of empathy in government creates aberrant policies that harm pregnant women and teens held in immigration detention centers. Their crime—seeking shelter from imminent death or imaginable harm in their Central American countries of origin. Putting an even finer filter on the subject, I’ll look at the antidote to the perniciousness that emerged when a District of Columbia federal district court corrected Trump administration policy malfeasance toward one pregnant minor girl held in detention by U.S. Immigration and Customs Enforcement (ICE), the immigration enforcement agency within the Department of Homeland Security. I’m buoyed by the idea that the judicial branch of government, for now, remains a check and balance for harmful xenophobic policies in what can be seen as an evolving totalitarian government.

Pregnant Immigrant Women

According to a March 29, 2018, CNN politics report by Tal Kopan, ICE continues to pave the way to detaining more pregnant immigrants as they await the long and arduous path of petitioning for asylum or using other legal means of immigrating to safety. Kopan reports that many pregnant immigrants are victims of rape and violence who were often attacked on the journey to the United States. Others don’t know they’re pregnant until after entering the United States, often seeking to lawfully make an asylum claim. “Detention is especially traumatic for pregnant women and even more so for victims of rape and gender-based violence,” according to Michelle Brané, director of the Migrant Rights and Justice Program at Women’s Refugee Commission.

Underscoring the psychological impact of pregnancy secondary to rape, a report by Dean G. Kilpatrick, PhD, of the National Violence against Women Prevention Research Center at the Medical University of South Carolina on the mental impact of rape found that some associated mental health problems are life threatening. For example,

when asked if they ever thought seriously about committing suicide:

  • One-third (33%) of the rape victims and 8% of the non-victims of crime said yes. 
  • Rape victims were 4.1 times more likely than non-crime victims to have contemplated suicide. 
  • Rape victims were 13 times more likely than non-crime victims to have attempted suicide (13% Vs 1%).

ICE Regulations to Protect Pregnant Women (Not Pregnant Minors) Don’t Pass Muster

According to ICE regulation 4.4 Medical Care (Women), “this detention standard ensures that female detainees in U.S. Immigration Customs and Enforcement (ICE) custody have access to appropriate and necessary medical and mental health care.” These regulations don’t necessarily apply to pregnant minors. As we’ll see, minor girls are handled differently on the issue of abortion due to the idiosyncrasies of various state laws. As an example of the policies ICE regulation 4.4 provides, I offer the following:

Sec. II. 3. A pregnant detainee in custody shall have access to pregnancy services including routine or specialized prenatal care, pregnancy testing, comprehensive counseling and assistance, postpartum follow up, lactation services and abortion services.(emphasis added

I’ve drawn attention to abortion services, which don’t apply to pregnant minors, as discussed, below.

In addition, there’s ICE regulation 4.4, sec. V.E.2. Expected Practices, Abortion Access,” that specifically provides for funding the termination of pregnancies “in the event continued detention is necessary and . . . if the life of the mother would be endangered by carrying a fetus to term.” The section continues that “in the case of rape or incest, ICE will assume the costs associated with a female detainee’s decision to terminate a pregnancy.”

On their face, ICE regulations are nicely wrapped to appear to allow the free choice of detained women to terminate pregnancies conceived under the most egregious conditions.

However, when placed under careful scrutiny, the reality of freedom of choice for pregnant women in detention falls short. In September 2017, seven organizations, including the Center for Gender & Refugee Studies, sent a joint written protest to Homeland Security’s officer for civil rights and civil liberties and its inspector general proclaiming that ICE policies relevant to pregnant detainees were not being implemented and overseen, to the detriment of pregnant women in detention. The protest pointed to the documented conduct of ICE officials where ICE regulation 4.4 Medical Care (Women) and other federal detention standards were not being met.

At its conclusion, the report states that “given the severity of these violations and the immediate impact on the health and safety of women in immigration detention, we ask that you review these cases and this issue in an expedited manner.” I encourage you to read the cited cases of women formerly detained in ICE detention centers. The stories document the failure of the government to navigate its vacuous set of nice sounding regulations to ensure the safety of this population of immigrant women. However, in actuality, all empathic human emotions have been scrubbed out of the formula by federalized language designed to deflect from the plight of pregnant women caused by an unfounded presidential national security crisis.

The mental health of women in this class is accounted for by ICE. ICE regulation 4.4, sec. F, Mental Health Services, provides the following:

In addition to mental health services offered to all detainees, mental health assessments shall be offered to any detainee who has given birth, miscarried or terminated a pregnancy in the past 45 days.

I have found no implementation policies and procedures for section F. Based on the findings of the joint report, I’m not confident any such mental health programs actually exist.

The Case of the Pregnant Unaccompanied Child (UAC)

A 2017 report by the Migration Policy Institute (MPI) on Central American immigrants in the United States found that in 2015, “eighty-five percent of Central Americans in the United States were from the Northern Triangle, formed by El Salvador, Guatemala, and Honduras.”[1] According to the MPI report, factors that drive these people north to uncertain safety include “poor political and socioeconomic conditions, . . . some of the world’s highest homicide rates, and widespread gang violence. . . . In (FY) 2016 alone, U.S. Customs and Border Protection (CBP) intercepted nearly 46,900 unaccompanied children.” These UAC landed in the custody of the U.S. Department of Health & Human Services (HHS) after crossing our southern border while fleeing their home countries.

Trump Changes Policy Based on Undisclosed Beliefs, Not Facts

In March 2018, CNN Politics reported that the Trump administration made things more difficult for pregnant immigrants in detention:

According to the new directive, immigration officers will no longer default to trying to release pregnant women who fall into immigration custody, either because they are undocumented or otherwise subject to deportation. The Obama administration policy urged officers to presume a pregnant woman could be released except for extreme circumstances.

The change resulting in inhumane detention follows controversial efforts by HHS to require unaccompanied minor immigrants to be held in custody rather than being released to obtain abortions, a policy that has been the subject of intense litigation and criticism from the advocacy community

Enter the ACLU

In October 2017, the American Civil Liberties Union (ACLU) filed a lawsuit, Garza v. Hargan,[2] in Washington, DC, on behalf of a seventeen-year old unaccompanied minor rape victim who was also abused by her family and learned that she was sixteen weeks pregnant while being housed in an HHS shelter in Texas. Her request to terminate the pregnancy was denied. The lawsuit was triggered after the government refused to transport the minor for an abortion after she received judicial authorization to consent to an abortion under Texas law. The suit alleged that several government employees, including Eric Hargan, the acting secretary of HHS was being forced by the Trump administration to delay her abortion for weeks.

The lawsuit further alleged that the government was holding the minor hostage to force her to carry her fetus to term against her will. The ACLU also alleged that its client was required to visit a religiously affiliated “crisis pregnancy center” to undergo counseling to continue the pregnancy. At the behest of Scott Lloyd, head of the Office of Refugee Resettlement (ORR), the minor was also required to have a sonogram against her will and she was to tell her abusive parents in her home country about her pregnancy. Time was of the essence since Texas law bans abortion after twenty weeks. The chess game of trying to force the minor to take her pregnancy to term, without consideration for her own reproductive choice, went into high speed.

An emergency petition filed by the ACLU got downright pragmatic, highlighting the urgency to a three-person court panel and arguing that “every additional week the government delays her abortion increases the risks associated with the procedure.” This plea for the minor’s rights broke through the government’s soulless blocking of the girl’s abortion—in my view, the government’s tactics amounted to state-sanctioned child abuse and nothing less. The outcome of the case proved successful, but only after weeks of hard-fought legal victories were achieved against the force of the US government. The jockeying around of this case was orchestrated by antiabortionist Hargan, acting director of HHS at the time, who continually blocked the constitutional right of the minor to terminate her pregnancy based on his personal abhorrence of abortion under any circumstances.

An historical footnote with potential implications on Roe v. Wade is appropriate at this juncture. In the Garza v. Hargan case, one of the judges on the three-panel DC district court was Brett Kavanaugh, who later shamefully ascended to the Supreme Court after embarrassing himself during politicized confirmation hearings. Kavanaugh has been criticized for reversing the district court’s decision to allow the abortion to go forward. According to an Americans United for Life article, his rationale was to fully support the Trump Administration’s legal position that “it need not facilitate an elective abortion and that it was not imposing an ‘undue burden’ on the minor’s abortion.”[3] After four weeks of court battles that followed, the minor was finally able to receive a timely abortion, and a powerful judicial precedent has been set for other pregnant minor immigration detainees.

As reported by Brigitte Amiri, Deputy Director, ACLU Reproductive Freedom Project in April 2018,

Fortunately, the court’s decision [in Garza v. Hargan] protects all pregnant unaccompanied minors going forward. Judge Tanya Chutkan recognized that Lloyd is imposing “his ideological opposition to abortion” even in the case of rape, to unconstitutionally ‘exercise complete control over’ unaccompanied immigrant minors. Scott Lloyd’s ideological and religious opposition to abortion has been confirmed over and over again, including in his most recent deposition where he testified he believes abortion is a ‘sin’ and he would potentially be complicit in sin if [he] ever approved an abortion request.” 

Hargan and Lloyd: Idiosyncratic Beliefs Singlehandedly Erode Government Empathy

The aforementioned Hargan is an equal conspirator of malfeasance in government service to Lloyd’s indelicate attempts to prevent undocumented immigrant teens from having access to abortion services. Although the Garza v. Hargan determined that Hargan’s ORR could no longer prevent underage refugees from legally seeking abortions, on March 15, 2019, an MSNBC report by Rachel Maddow revealed documents suggesting that Lloyd and Hargan kept a twenty-eight-page spreadsheet to track the menstrual cycles and advancement of pregnancies of detained girls between the ages of twelve and seventeen and used the information to block girls from getting access to abortions they wanted.

As reported by Maddow, the spreadsheets are evidence of the federal government’s inquiry into the most personal aspects of a female’s reproduction information. The columns in the government’s spreadsheet are

  • Date of pregnancy
  • How the pregnancy was reported
  • Alien ID number
  • Age
  • Name of shelter where housed
  • Date of admission to shelter
  • Result of pregnancy test
  • Estimated gestation age of fetus
  • Whether the pregnancy was the result of consensual sex
  • Whether the pregnancy was reported as the result of a sexual assault
  • TOP: whether there was a request for Termination of Pregnancy

The spreadsheet, according to Maddow’s report, was used to facilitate the federal government’s blocking of the constitutional right of girls to execute their right of choice to end a pregnancy. This makes perfect sense considering the antiabortion beliefs of Lloyd and Hargan, both Trump administration appointees.

The documents relied upon by Maddow clearly show that Lloyd continued tracking the above data for months after Judge Tanya Chutkan ordered the government not to interfere with girls’ access to abortion. Why would Lloyd want to keep tracking the data? No one knows the answer to this question. There’s simply no legitimate reason for keeping this data after the court order.

Updates on Scott Lloyd and Eric Hargan

According to the Administration of Children & Families archives “Scott Lloyd is the former Director of the Office of Refugee Resettlement (ORR). Mr. Lloyd joined ORR from the Knights of Columbus, a Catholic fraternal and charitable organization, where he served as an attorney in the Public Policy office” (emphasis added). Lloyd was removed from office in November 2018.[4]

Also see “Scott Lloyd, Who Tried to Deny Undocumented Teens Abortion, Once Helped His Ex Pay for One.”

According to HHS.gov,

Hargan was sworn into office as Deputy Secretary of the Department of Health and Human Services on October 6, 2017. He immediately served as Acting Secretary of HHS from October 2017 to January 2018.. . . Azar was sworn in as the Secretary of Health and Human Services on Jan. 29, 2018. 

Conclusion

Behind the headlines and remarks from political pundits are complex problems that rely on government intervention to constitutionally protect and serve the people. I’ve drilled down on a below-the-fold news issue. We all should wonder what’s going on in other government departments headed appointed by Trump. Under closer analysis, when no one is watching, people without voices are being abused by our government. Specifically, those abuses are perpetrated by political appointees who harbor lack of empathy for people; they ignore the rule of law as an end to a means—laws they are otherwise under oath to enforce.

I end with this thought-provoking quote:

“Men are afraid that women will laugh at them.
Women are afraid that men will kill them.” 
― Margaret Atwood, author of The Handmaid’s Tale

Image courtesy of 123rf.com


[1] The MPI report shows the 2015 top seven origin countries of Central American immigrants also include Nicaragua, Panama, Costa Rica, and Belize.

[2] According to the Americans United for Life website, “in Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017), the ACLU sued the federal Department of Health and Human Services (HHS), which cares for undocumented minors in federal custody who had attempted to cross the U.S. border illegally, in a federally-funded shelter.”

[3] According to the same article, “Judge Kavanaugh dissented. . . . He wrote that the majority had ‘badly erred,’ referring to the majority’s decision as a ‘radical extension of the Supreme Court’s abortion jurisprudence’ and as inventing ‘a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.’ . . . Kavanaugh disagreed that the minor had a right to an immediate abortion facilitated by the government, noting that the minor did not have any family or support network in the U.S. to help her make her decision.” (In my view, Kavanaugh’s an extreme and perverted white privileged point of view threatens the future of Roe v. Wade.)

[4] According to a November 19, 2018, article in Rolling Stone, “HHS Secretary Alex Azar came under mounting pressure to remove Lloyd from the position after internal emails and depositions made public as part of an ACLU lawsuit revealed that Lloyd devoted an outsize share of his time to micromanaging the abortion requests of teen girls in his custody—a tiny fraction of the individuals for which O.R.R. is responsible.”

3 Responses to When Personal Beliefs become Government Policy: The Erosion of Empathy in Government under Trump

  • Excellent blog Mark and so very disturbing and horrifying. SMH, after reading what you wrote and another article written by Martin Garbus for The Nation- What I Saw t the Dilley, Texas Immigrant Detention Center, which also is horrifying leaves me angry, and very emotional along with great shame for this country. Your final quote made me shudder- “Men are afraid that women will laugh at them. Women are afraid that men will kill them.”
    ― Margaret Atwood, author of The Handmaid’s Tale

    • Bobbi, thank you for your comments. The situation I describe is but one of uncountable and pernicious breakdowns in our government driven by a lack of humanitarian considerations and contempt. A bad combination. The tone for all this is directly related to lack of leadership and interest of the guy in the WH, and the GOP lemmings.

  • Right on point as always. Keep up the fight.

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