Barriers to Reproductive Justice While Detained is an examination of select issues relating to reproductive health and the care of young children in immigration detention.
The United States Customs and Border Protection (CBP) detained nearly one million immigrants at the U.S.-Mexico border in the fiscal year 2019. The number of family units confined tripled compared to any previous year on record. With these increasing numbers of detained individuals, facilities detaining migrants run by CBP and Immigration and Custom Enforcement (ICE) were constantly at- or over-capacity prior to the coronavirus pandemic.
The detention of immigrants is inherently a violation of reproductive justice, as it denies people their bodily autonomy and human rights. Within the system, practices of and conditions in detention facilities compound the problem, as horrifically exemplified by the coerced sterilization of detained people in a Georgia center. This document provides yet another view, by highlighting a number of areas in which CBP and ICE facilities are failing to meet the basic needs of detained individuals with respect to reproductive health care and the care of young children.
This report seeks to promote awareness of these problems among the legal and medical providers working with detained people, and to provide ready access to some of the relevant legal standards. The four areas of focus—menstruation-related hygiene, access to diapers and formula, lactation accommodations, and pregnancy-related medical care—are not exclusive nor exhaustive but were the areas most frequently mentioned in interviews conducted with formerly detained persons. Because CBP and ICE officials often failed to inform the detained individuals where they were being held in a language that they understood, most of those interviewed did not know the names of the facilities, or whether they were held in a CBP or ICE facility. Many interviewees also reported being transferred to multiple facilities during their detention.
We hope that, by applying a reproductive justice lens to immigration detention, these documents offer a new advocacy avenue to support and enhance legal and service providers’ powerful work with and on behalf of people who have been subjected to immigration detention in the United States.
Hear from people currently experiencing barriers to their reproductive health and learn more about the consequences when these barriers go unchecked by exploring menu options below.
Barriers to Reproductive Justice While Detained: Key Standards
This Key Standards reference document accompanies the Barriers to Reproductive Justice While Detained report and highlights applicable requirements relating to reproductive health and the care of young children in immigration detention settings, as set out in U.S Immigrations and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) standards. For references, see the PDF download.
The standards examined in this document are the 2015 Transport, Escort, Detention, and Search (TEDS), as applied to CBP facilities; the 2008 Performance-Based National Detention Standards (PBNDS), its 2011/2016 updates, and relevant1 National Commission on Correctional Health Care (NCCHC) standards,2 as applied to dedicated ICE facilities; and the 2000 National Detention Standards (NDS) and its 2019 update, as applied to non-dedicated ICE facilities.
The standards discussed in this reference document include access to menstruation-related hygiene products; access to diapers and formula; lactation accommodations; and pregnancy care, such as diet and medical care. This reference document is not meant to be an exhaustive resource, nor does it delve into other important issues, such as sexual assault or the unique challenges faced by transgender and nonbinary individuals in detention.
A note on gendered language: this toolkit often uses the term “woman” or “women,” which reflects the language of the standards discussed. Otherwise, this toolkit strives to use gender-neutral language whenever possible.
The United States government reportedly maintains the largest immigration detention network in the world. As of September 2019, this network includes at least 37 U.S. Immigration and Customs Enforcement (ICE)-dedicated facilities and 186 ICE non-dedicated facilities, county and local jails that contract with ICE to confine individuals.3 No reliable statistics have been released about the number of U.S. Customs and Border Protection (CBP) detention facilities in the country; these in- clude both facilities at ports of entry and Border Patrol stations in the interior of the United States.
Each detention facility is subject to certain standards. Since October 2015, CBP has operated its detention facilities under the National Standards on Transport, Escort, Detention, and Search (TEDS).4 But the standards to which a particular ICE detention center is subject to depends on numerous factors, thus muddying the legal landscape and enforceability of the standards. These factors include: which federal agency operates or contracts for the facility; the state in which the facility is located (and pertinent state laws); applicable case law; whether the facility is ICE- dedicated or not; and whether the facility is publicly or privately operated.
All federal facilities detaining minors are additionally bound by the 1997 Flores Settlement Agreement, which will not be discussed in this document.
Standards for Customs and Border Protection (CBP) Detention Facilities
National Standards on Transport, Escort, Detention, and Search (TEDS) 2015: CBP operates its detention facilities under the TEDS 2015 guidelines, which recognize numerous federal statutes and regulations binding CBP to certain standards of care. These standards set out to establish a barer minimum of agency conduct.
Standards for Immigration and Customs Enforcement (ICE) Dedicated Facilities
Performance-Based National Detention Standards (PBNDS): The PBNDS standards, initially issued in 2008 and updated twice, govern ICE-dedicated detention facilities.
2008 PBNDS. Despite only mentioning female detainees three times, the 2008 PBNDS standards are the first standards to make explicit reference to the sexual assault and rape standards contained in the Prison Rape Elimination Act (PREA) of 2003.
2011 PBNDS. In the 2011 update, the PBNDS became the first detention standards to specifically address women’s medical care, requiring facilities to provide gynecological and obstetrical health care in compliance with the NCCHC.
2016 PBNDS. In the 2016 update, PREA was incorporated into the PBNDS, as was Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination based on disability and requires facilities to provide detainees with disabilities equal access to its programs and activities. Revisions also included improvement of communication protocols with detainees of limited English proficiency, the addition of the reporting requirement of pregnant detainees, and clarification of reporting and medical care timelines for detainees who may be pregnant or indicate a history of domestic abuse or violence.
National Commission on Correctional Health Care (NCCHC) 2018: NCCHC standards were created under the American Medical Association in the 1970s and are updated frequently. The most recent revisions were released in 2018. These standards are the recommended requirements for a carceral healthcare delivery system. They are explicitly folded into PBNDS 2011 and thus apply to ICE-dedicated facilities. In contrast, ICE no longer requires the non-dedicated facilities that are governed by the NDS to maintain accreditation with or follow the standards of the NCCHC.
Standards for Immigration and Customs Enforcement (ICE) Non-Dedicated Facilities
National Detention Standards (NDS): The NDS guidelines, initially issued in 2000 and updated in 2019, gov- ern the treatment of people held by ICE in facilities that are not solely dedicated to ICE, such as local and state jails and prisons.
NDS 2000. A product of collaboration between the American Bar Association and the U.S. Department of Justice, the NDS 2000 was the first revision of the first set of standards on the treatment of persons in immigration detention, specifically under ICE.
NDS 2019. This updated set of guidelines no longer requires health care programs at these facilities to be under direction of a licensed physician, but does add new provisions for the prevention and intervention of sexual abuse and assault in detention, as required by PREA. It governs the treatment of immigrant detainees in almost 140 facilities in 44 states.
A Note on Other Issues of Care of Pregnant Women
For providers who are interested in standards that would apply to other aspects of care for pregnant detainees (e.g., use of restraints, abortion access, mental health), TEDS, PBNDS 2011 & 2016, and NDS 2019 contain explicit rules around these issues. For example, NCCHC states that the use of restraints is potentially harmful to the pregnant woman and fetus. Overall, NCCHC is the most detailed in highlighting a comprehensive approach to the medical screening and care of pregnant detainees.
- Theresa Cheng, MD, JD, conducted the interviews and wrote this document in collaboration with the ACLU of California’s Gender, Sexuality, and Reproductive Justice and Immigrants’ Rights teams. Primary contributors include Arneta Rogers, Reproductive Justice and Gender Equity Attorney, ACLU of Northern California; and Phyllida Burlingame, Legal-Policy Co-Director (Policy), ACLU of Northern California. Mitra Ebadolahi, Senior Staff Attorney, ACLU of San Diego & Imperial Counties, and Monika Langarica, Immigrants’ Rights Staff Attorney, ACLU of San Diego & Imperial Counties, assisted with review. Design by Gigi Harney. Cover art by Micah Bazant for Forward Together and Mijente.
- An accompanying tool, Barriers to Reproductive Justice While Detained: Key Standards, is attached to the report.
- We thank Border Kindness, Al Otro Lado and the interviewees who made this document possible.
- The ACLU of California is a collaboration of the ACLU affiliates in California. Our statewide Gender, Sexuality, and Reproductive Justice team works to ensure equal access to reproductive health care and to support the rights of all to parent with dignity. Our statewide Immigrant’s Rights team works to ensure that the rights and liberties guaranteed by our constitution apply to all immigrants, regardless of immigration status.
- Published by the ACLU of California November 2020.