After the Supreme Court overturned Roe v. Wade, ending nearly 50 years of federal protection for abortion, some states began enforcing strict abortion bans while others became new havens for the procedure. ProPublica is investigating how sweeping changes to reproductive health care access in America are affecting people, institutions and governments.
Last month, an Australian traveler who’d been briefly detained at an airport by U.S. Customs and Border Protection provided several news organizations with a recording, which she said showed that while she was in custody, an agency official asked her several times whether she was pregnant or had recently had an abortion.
In the six-minute audio, a CBP representative, who appeared to be reading from a script, explained to the 32-year-old traveler, Madolline Gourley, that the agency is required to collect medical information of people they detain. For women of childbearing age, the agent said, that includes whether they’re pregnant, postpartum or have recently experienced “termination of pregnancy.” In sharing the audio with ProPublica, Gourley wrote in an email, “I think a lot of your readers will be shocked to hear CBP confirms it is OK to ask detained travelers about their pregnancy and abortion status.”
The audio and Gourley’s allegations set off a brief but blistering media storm because they came at a time when new abortion bans are taking effect in more than a dozen states, including Texas and Arizona along the border. Several news outlets published stories echoing Gourley’s outrage that border officials, who work for an agency with a track record of abuses against immigrants, might use such information to deny entry to asylum-seekers or tourists.
But among immigrant advocates, the allegations lent new urgency to long-standing concerns that have less to do with what happens when border agents question immigrants about their health conditions, and more with what happens when they don’t — or when they ignore pleas for help.
The advocates’ larger concern is about CBP facilities, particularly those on the U.S.-Mexico border — overcrowded holding cells known as hieleras, or iceboxes, because they are kept at freezing temperatures. They’re designed to process immigrants and asylum-seekers, not to hold them for extended periods. On Thursday, a coalition of 83 advocacy organizations and 51 medical professionals led by the American Civil Liberties Union issued a new demand that CBP adopt a policy to limit the time pregnant, postpartum and nursing individuals and infants spend in detention to less than 12 hours, absent exceptional circumstances.
“There’s simply no way for people to obtain adequate reproductive health care in CBP custody,” said Esmeralda Flores, senior policy advocate at the ACLU of San Diego and Imperial Counties, which is part of the coalition. “We’re talking about facilities that are notorious for degrading conditions and medical neglect across the board.”
The advocates point to a report last year by the Department of Homeland Security Inspector General that found that up to 274 babies may have been born between 2016 and 2020 while in the custody of the Border Patrol, whose agents aren’t trained and whose facilities are not equipped for such emergencies. In one case, a pregnant Guatemalan woman gave birth in her pants while leaning on a trash can after agents took her to a Border Patrol station instead of the hospital. She and her infant were kept in a holding cell without a crib overnight.
The report found other instances when newborns were held overnight or for days in inadequate facilities. It said that CBP relied on women to self-report their pregnancies and that it failed to regularly collect data tracking pregnancies and childbirths in custody.
In response to the report, CBP issued guidelines in 2021 that required agents to identify, document and tend to the health needs of women and infants in custody. The agency insists that questions like the ones posed to Gourley are not part of a political agenda but intended to make sure detainees get appropriate medical care and accommodations. CBP spokesperson Jaime Ruiz said in an email to ProPublica he would not comment on Gourley’s case. However, he said that while agents are required to ask about “pregnancy loss,” including miscarriages and stillbirths, they “don’t use the word abortion, nor ask about it.”
He added that answers are voluntary and such questions are not meant to be “an intrusion into someone’s privacy or rights. It is for the well-being of those in our temporary custody — their health is our priority.”
Advocates assert that even with the guidelines, agents do not always ask immigrants those questions. And even when they do, the advocates say, there’s no way for pregnant immigrants or infants to get appropriate care in CBP sites because agents and facilities are not equipped to provide it. In their view, the only way to minimize the harm that happens to pregnant immigrants and infants in CBP custody is to reduce the time they spend there. Without a firm policy, they say, the issues will continue.
In their Thursday letter to CBP Commissioner Chris Magnus, advocates pointed to a case from last March: A mother from Nicaragua told the ACLU that while she was in CBP custody, her 6-month-old son went four days without medical attention for pneumonia, despite repeated requests. She reported that agents yelled at her when she tried to breastfeed her baby. Though the new guidelines for families with infants require a medical intake process, welfare checks every 15 minutes and offering snacks, she told the ACLU that none of that happened.
“Each day that passes without such a policy places more families at risk,” said Monika Langarica, an attorney at UCLA Center for Immigration Law and Policy.
CBP did not respond to questions about whether the agency is considering an expedited release mandate for pregnant immigrants and infants or the examples in the coalition’s letter. Their current guidelines say “generally” no one should be held longer than 72 hours and that “every effort must be made to hold detainees for the least amount of time required.” But with the enormous number of people they process, agents have acknowledged difficulty upholding those standards.
In Gourley’s case, she was detained at Los Angeles International Airport because agents suspected she had worked as a cat-sitter in exchange for housing, in violation of the visa-waiver program, which doesn’t permit compensation. She said she was surprised when during her detention, an agent twice pressed her about whether she’d had an abortion and she filed a complaint after she was deported to Australia. Months later, she said, she received a phone call from a CBP official who investigated her case. She recorded the call and shared it with the media, sounding an alarm that brought attention to cases that often don’t get enough of it.
Referring to Gourley, Dana Sussman, the acting director of National Advocates for Pregnant Women, said: “I think what’s remarkable here, and important to recognize, is this person appears to be coming from a well-resourced, privileged position and she feels safe enough generating her own outrage to speak publicly about this. That’s very different than the way many folks arrive in this country.”