Roe v. Wade is one of the most controversial Supreme Court decisions in history. On January 22, 1973, the Court ruled that a woman has a constitutional right to abortion. This decision overturned a Texas law that criminalized abortion. Many believe that reversing Roe v. Wade will create more barriers for immigrants seeking legal status in the United States. State and federal laws that ban or restrict abortion could lead to thousands of people being deported or denied immigration benefits.
Roe v. Wade guarantees safe and legal abortion across the United States. Still, state and federal laws that criminalize pregnancy outcomes or restrict abortion access jeopardize this right for everyone—including immigrants. When someone applies for a green card or other immigration benefits, they must go through an “admissibility” test. Many people are found inadmissible based on state criminal convictions or arrests, even if the conviction was a misdemeanor, or the crime was non-violent.
The intersection between criminal law and immigration law can often lead to uneven results. What constitutes a crime and the resulting penalties vary from state to state. Whereas, thousands of people have been deported or denied benefits because of ancient criminal convictions or minor offenses. If Roe v. Wade is overturned or abortion access is further restricted, women who undergo abortions may be disproportionately affected—and subjected to possible deportation—for their pregnancies. These laws not only impact the health and safety of pregnant people but also have devastating consequences for families and communities.
Since the 1973 Supreme Court decision of Roe v. Wade recognizing a woman’s right to terminate a pregnancy, abortion has become a common medical procedure in the United States, with more than half a million women getting abortions yearly. Despite Roe v. Wade, abortion is still highly controversial, and state legislatures have tried to chip away at abortion rights for decades. In 2013 and 2014, states enacted a record number of abortion restrictions. These new restrictions could significantly impact immigrant women, who may be denied immigration benefits or deported if they have an abortion.
While Roe v. Wade protects the right to abortion nationwide (on a federal level), immigration law reviews criminal offenses that are governed by state law. This means that if a state criminalizes abortion, immigrants in that state may be subject to different rules than immigrants in other states. For example, if a woman is seeking a green card based on her marriage to a U.S. citizen, she will likely be required to prove that she is of “good moral character.” If she has had an abortion in a state that criminalizes abortion, she may be deemed ineligible for a green card or deported if she is already here on a temporary visa.
Another item to look at through an immigration lens when applying for a green card, is the review of whether the immigrant would become a public charge. The public charge concept was first established by Congress in 1882 in order to allow the U.S. government to deny a U.S. visa to anyone who “is likely at any time to become a public charge.” Under the former Trump Administration, the public charge rule was interpreted broadly to reduce the number of individuals eligible for green cards by redefining what made them dependent on government benefits or likely to be dependent on government benefits in the future.
Now, there are two versions of the regulation: The Department of Homeland Security public charge rule applied to green card applicants within the U.S. and the Department of State public charge policy applied to those outside of the U.S. Though both versions of the rule are no longer in effect, whereas the DHS rule was halted on March 9, 2021, and the DOS policy was paused indefinitely on July 29, 2020, certain states lead by Arizona have sought to revive the Trump era rule in an effort to vacate the March 9th rule.
Therefore, with efforts in trying to vacate the March 9th rule and with the overall review of an immigrant’s ability to support him/herself or to have a sponsor that supports the immigrant, it is important to take a look at the potential ramifications for immigrant women who seek to terminate their pregnancies.
Under current law, immigrants are ineligible for green cards if deemed “likely to become a public charge.” If abortion is criminalized, pregnant women who have the procedure could be denied immigration benefits or even deported. This would disproportionately impact low-income women who may be required to continue with the pregnancy, whereas if the fetus is a viable fetus, may be more likely to rely on public benefits. Additionally, many immigrant women already face barriers to reproductive healthcare for reasons such as language barriers and lack of insurance. If abortion is made illegal, it will only exacerbate these problems. Women will be forced to forgo vital healthcare or risk an unlicensed procedure. Either way, their immigration status will be at risk. Criminalizing abortion is not only a violation of women’s rights; it also undermines our country’s commitment to immigrants’ rights.
It’s time for our country to have an honest conversation about Roe v. Wade and its impact on immigrants. We must work to create more equitable and humane immigration laws that protect the rights of all people—regardless of their immigration status.
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