Introduction
In September 2017, seventeen-year-old “Jane Doe” (J.D.) attempted to cross the border into the United States without legal authorization. She was immediately apprehended, detained in federal custody, and held in a privately owned detention center (Winterberger Reference Winterberger2019). Shortly thereafter, she discovered she was pregnant and decided to abort the pregnancy. Lacking a legal guardian, Doe sought and attained a judicial bypass exempting her from Texas’s parental consent requirement. Although Doe arranged to receive an abortion without logistical or financial support from the government, the Office of Refugee Resettlement (ORR) denied her permission to obtain the procedure (Winterberger Reference Winterberger2019). Challenging this administrative decision and claiming abortion rights under the Constitution, Doe filed suit in D.C. Circuit Court, but a three-judge panel again denied her request. Doe’s abortion rights would not be upheld until her case, Garza v. Hargan,Footnote 1 was reheard en banc in late October. After seven weeks of bureaucratic delay and legal contestation, she was finally allowed to receive an abortion. Yet, even as Doe fought executive and judicial obstruction, other pregnant immigrant detainees continued to suffer medical neglect and abuse (ACLU et al. 2017; Ellmann Reference Ellmann2019; Messing, Fabi, and Rosen Reference Messing, Fabi and Rosen2020). Despite the ORR’s and dissenting judges’ claims that restricting undocumented minors’ abortion rights rationally promoted legitimate state interests in women’s health, fetal life, and border security, concerns for pregnant immigrants and their fetuses do not seem to extend far beyond Doe’s case.
The full extent of reproductive injustices against immigrants under the Trump administration is not yet known, due to immigration enforcement agencies’ lack of transparency (Hartry Reference Hartry2012) and inadequate data,Footnote 2 as well as the recent “spike” in detentions of pregnant migrants following Trump’s reversal of an Obama-era policy discouraging detention during pregnancy (Reuters 2018; Sacchetti Reference Sacchetti2019). Nonetheless, the number of miscarriages in immigration detention doubled after this policy change (Sacchetti Reference Sacchetti2019). Moreover, proliferating reports of inadequate perinatal care, exposure to miscarriage risks, shackling, and forced sterilization suggest that reproductive injustices are endemic to U.S. immigration enforcement (ACLU et al. 2017; Bekiempis Reference Bekiempis2020; Ellmann Reference Ellmann2019; Messing, Fabi, and Rosen Reference Messing, Fabi and Rosen2020). For instance, Mexican tourist Nancy Gonzalez Hidalgo was detained, separated from her family, and denied gynecological care for an incomplete miscarriage for nearly a year, despite uncontrollable bleeding and unrelenting pain (SPLC 2019a). Illustrating how unjust treatment can exacerbate miscarriage risk, Immigration and Customs Enforcement (ICE) denied one detainee access to her prescribed hypertension medication, even though untreated hypertension during pregnancy can cause life-threatening complications (Megas Reference Megas2019). In one of many allegations that immigration enforcement officials used unsafe restraints on pregnant detainees, three women “were shackled around their hands, legs, and bellies; all three had miscarriages while in custody” (Ellmann Reference Ellmann2019). After a whistleblower reported unnecessary, coerced sterilizations in a privately owned ICE facility, more than 40 survivors testified in corroboration (Bekiempis Reference Bekiempis2020).
Alongside these reproductive injustices, Doe’s case indicates a contradictory logic underlying current policies: immigrant women’s fetuses may be neither killed nor born alive and healthy. This apparent contradiction provokes several questions. Why prohibit abortion among a population otherwise marked as disposable and targeted for greater reproductive risk? Why adopt policies preventing abortion alongside others that invite fetal death through miscarriage? And what do cases like Doe’s and Hidalgo’s indicate about how power operates and how systems of oppression interact?
To untangle this knotted biopolitical logic, I read the Doe case as a relay point, or site of meeting and exchange, between pro-life and anti-immigrant discourses. Like interpretive or ideational qualitative methods, my approach blurs traditional distinctions between empirical social science and political theory, but from the opposite direction. Critical policy studies scholars (e.g., Lee Reference Lee2013) examine how ideas shape and are shaped by policy making, while I read policies, practices, and legal opinions as works of political thought. The next section reads Garza v. Hargan, not as a case study but as a text or exemplary scene that reveals how otherwise conflicting discourses and logics of power intersect to produce reproductive injustices against immigrant women. From this perspective, the dissenting opinions in the Doe case are significant neither as the object of thick description nor because they provide leverage for statistical inference but rather because they render explicit the often-implicit rationalizations that join together anti-abortion and anti-immigrant discourses. Illuminating the techniques that articulate these discourses as compatible despite their logical contradictions, I trace how power operates through discourse to produce and excuse reproductive injustices against immigrants.
Specifically, I argue that clashing logics of citizenship mediate relationships between regulating individual reproduction and reproducing the American nation, producing facially incoherent reproductive health policies toward immigrants. In other words, I argue, first, that current policies are premised on contradictory amalgamations of radical right-wingFootnote 3 discourses about reproduction and citizenship. Second, I identify techniques that make these policies and discourses appear coherent. Third, I suggest that the successful integration of pro-life and anti-immigrant discourses contributes to the formation of radical-right coalitions in the United States (and transnationally) because reproductive and border control jointly shape the body politic’s demographic future. By foregrounding contradictions between pro-life and anti-immigrant discourses, and showing how these underlying tensions are concealed, I hope to prepare feminists and immigrant rights advocates to disrupt nascent far-right alliances.
I contribute to the interdisciplinary literatures on fetal citizenship, reproductive politics, and migration by complicating the assumption that pro-life and anti-immigrant discourses necessarily align. These discourses may appear mutually reinforcing because both are pillars of the American radical-right discursive edifice. Pro-life discourses legitimate the state’s authority to govern pregnant bodies and potential life, while anti-immigrant discourses legitimate its authority to police borders and migration. Yet, despite reinforcing sovereignty in their respective policy domains, these discourses differ over how to interpret the citizenship status of immigrant women’s fetuses. As I show in the third section, whereas pro-life discourse portrays fetuses as unborn citizens and represents fetal citizenship in superficially inclusive terms, anti-immigrant discourse constructs narrow, racialized accounts of citizenship that exclude pregnant immigrants, their fetuses, and often their children. Together, these contradictory logics of citizenship produce a spectrum of partial inclusion that labels and hierarchically orders pregnant bodies, immigrants, and racialized citizens, marking them for exposure to violence and deprivation.
However, conflicting logics of citizenship pose a dilemma for the radical right, whose coalition depends on bringing patriarchal religious fundamentalists together with ethnonationalists: how to accord citizenship status to fetuses with citizen mothers but not those with immigrant mothers? In the fourth section, I identify two techniques that dissolve this dilemma. The first is debilitation, or subjecting marginalized populations to willful neglect and systematically greater risk of injury while avoiding spectacularized deaths that could mobilize opposition (Puar Reference Puar2017). The second is paralegality, or the quasi-legislative authority of immigration enforcement officials (Valdez, Coleman, and Ackbar Reference Valdez, Coleman and Akbar2017). Debilitation hollows official promises to protect pregnant immigrants or their fetuses, while paralegality justifies inconsistent protection by selectively classifying immigrants’ fetuses as fetal citizens or threats to the body politic. The same techniques mask contradictions within neoliberalismFootnote 4 and sovereigntyFootnote 5 that arise at the intersection of reproductive and immigration politics. Expanding Puar’s account of debilitation’s relationships to larger systems of power, I argue that debilitating pregnant migrants is economically and ideologically productive under neoliberalism, even as it contradicts neoliberalism’s globalizing and diversifying dimensions. Extending political theories of immigration (e.g., Valdez Reference Valdez2016; Reference Valdez2020), I analyze how radical-right reproductive politics are driven by ethnonationalist visions of the nation’s future, enacted through vivid but ineffectual performances of territorial sovereignty, and enforced with sovereign power and biopower. Together, debilitation and paralegality construct a delicate pro-life/anti-immigrant compromise that protects profits and confirms sovereign authority over bodies and borders while displacing responsibility for reproductive injustice.
As a point of convergence between often-conflicting logics of power, pregnant immigrant bodies provide an anchor around which radical-right discourses can coalesce, despite their contradictions. Anti-immigrant discourses justify regulating individual bodily reproduction to ensure a future body politic predominated by native-born, presumptively white bodies. Pro-life discourses justify regulating women’s bodies and fertility. For the radical right, which fears a “majority-minority” America, reconciling these discourses is vital. Yet, the pro-life movement’s universalist aspirations reveal a fracture. Compulsory birth alone cannot produce the desired national demographics. Rather, assembling a white American nation requires―as it always has―compelling white citizens’ child-bearing while suppressing racialized and noncitizen women’s reproduction (Roberts Reference Roberts1999; Ross and Solinger Reference Ross and Solinger2017). Contributing to intersectional feminist theory, I illuminate a multifaceted matrix of domination that manages the body politic’s boundaries and future demographics by controlling and hierarchically ordering pregnant bodies. Mapping this terrain is crucial not only to countering reproductive injustices against migrant women but also to challenging the powerfully violent―yet, I argue, ultimately fragile―constellation of discourses that legitimate gendered, racialized, nationalist, and neoliberal capitalist structures of power writ large.
Pro-Life and Anti-Immigrant Discourses in Garza v. Hargan
The dissenting opinions of then-Judge (now Justice) Brett Kavanaugh and Circuit Court Judge Karen LeCraft Henderson in Garza v. Hargan illustrate two strategies for reconciling pro-life and anti-immigrant discourses despite their tensions. Though each concludes against Doe’s abortion rights and disapproves of unauthorized migration, their opinions differ in reasoning, tone, and emphasis. Kavanaugh emphasizes state interests in potential life and abortion’s supposed dangers, while Henderson stresses the national security implications of border control and unauthorized migration. Despite divergent representations of pregnant migrants and their fetuses, which are implicitly rooted in opposing logics of citizenship, Kavanaugh’s paternalistic compassion dovetails with Henderson’s xenophobia to place undocumented minors in impossible situations.
Kavanaugh argues that further delaying Doe’s abortion serves her best interests. He describes Doe as isolated, noting that unaccompanied minors lack “a support network of friends and family to rely on … during the decision and its aftermath” (Kavanaugh 2017, 7).Footnote 6 He urges consideration of Doe’s circumstances as a teenager, “alone” in a “government detention facility in a country that, for her, is foreign,” confronted with a pregnancy and a “major life decision” (6). Under such circumstances, he asks, “is it really absurd … to think that the minor should be transferred to her immigration sponsor—ordinarily a family member, relative, or friend—before she makes that decision?” (6). Explaining that the Government is not advocating “forcing [Doe] to talk to her sponsor about the decision, or to obtain consent” but “merely seeking to place the minor in a better place when deciding whether to have an abortion,” Kavanaugh finds it “reasonable” to withhold permission for Doe’s abortion until a sponsor is assigned rather than “forcing [her] to make the decision in an isolated detention camp with no support network available” (6–7). Thus, he concludes, continued delay furthers the state’s legitimate interest in Doe’s well-being.
This reasoning glosses over the ramifications of postponing Doe’s abortion, including increased health risks and the dwindling time frame for legal abortion. Kavanaugh neglects to mention the indefinite―but typically lengthy―waits for guardians to be assigned in cases like Doe’s where no obvious sponsor is available (Storrow Reference Storrow2018). Furthermore, his worry about Doe’s decision-making circumstances presumes that she remains undecided, despite her expressed intention and herculean efforts to terminate her pregnancy. He likewise ignores a Texas court’s finding that Doe possessed sufficient maturity to judge her own best interests and remained unwavering in her decision. Finally, Kavanaugh’s opinion elides the federal government’s responsibility for confining Doe in “an isolated detention camp,” creating the conditions of imprisonment he laments.
Even so, Kavanaugh’s proclaimed concern for Doe is characteristic of the softer, more pro-woman discursive approach widely adopted by North American pro-life activists in recent decades (Leach Reference Leach2020; Saurette and Gordon Reference Saurette and Gordon2013). Kavanaugh (2017, 1) treats caring for Doe as consistent with his anti-abortion leanings, claiming to uphold the state’s “permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” Framing anti-abortion policies as good for women and fetuses is a core element of the pro-life movement’s mother–child strategy, a legislative, judicial, and media approach that defends abortion restrictions on both women’s health and fetal rights grounds (Leach Reference Leach2021). As many feminist scholars argue (Denbow Reference Denbow2015; Siegel Reference Siegel2014; Young Reference Young2003), this woman-protective framing institutes gendered forms of social control that often harm their ostensible beneficiaries. Moreover, such protection rarely extends to all women; woman-protective approaches increase the vulnerability of the most marginalized while obscuring how state action or inaction contributes to their marginalization (Ben-Ishai Reference Ben-Ishai2012; Crenshaw Reference Crenshaw1989).
Henderson’s decision, by contrast, employs vehemently anti-immigrant rhetoric to discount Doe’s interests in favor of the state’s interests in law and order and border security. In Henderson’s narration, Doe’s pregnancy impugns her motives instead of entitling her to compassion or leniency. Doe’s reproductive and legal statuses are reiterated in conjunction throughout Henderson’s account, creating the false impression that abortion was the purpose of her unauthorized migration. Writing that “it is highly likely [Doe] knew when she attempted to enter the United States that she was pregnant, as she was at least eight weeks pregnant at the time. Notably, elective abortion is illegal in J.D.’s home country,” Henderson (2017, 1–3) uses Doe’s pregnancy to cast suspicion on her reasons for attempting long-term migration, despite the legal permissibility of obtaining abortions on tourism visas. To justify her interpretation, Henderson highlights the absence of testimony by Doe about exactly when she discovered she was pregnant, implausibly interpreting an immigration official’s testimony that Doe was examined and informed of her pregnancy after she was detained as “not rul[ing] out” the possibility “that J.D. knew she was pregnant even before the examination” (8). By presenting abortion as her motivation for migrating, Henderson links Doe’s pregnancy and desire for an abortion to her “illegal” actions, representing her as fundamentally criminal, immoral, and responsible for her own predicament.
Henderson binds this judgment of Doe’s motives and character, based solely on her pregnant embodiment while “illegally” migrating, to dire predictions about the national security implications of granting Doe’s rights claim. She argues that permitting Doe’s abortion “rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country,” signaling to “pregnant alien minors the world around seeking elective abortions … that they should make the trip” to America (Henderson 2017, 1, 6). Imagining that Doe’s case would spur massive inflows of unauthorized migration, Henderson warns that “border authorities, immigration officials and HHS itself would be well served to know ex ante whether pregnant alien minors who come to the United States in search of an abortion are constitutionally entitled to one” (6). Granting unlimited reproductive rights to “non-resident foreign nationals,” she argues, “will unsettle the law, potentially to dangerous effect,” eroding the distinction between citizen and foreigner―which she views as “fundamental to our system of ordered liberty”―by setting a precedent for extending all Constitutional rights to foreigners (17). If Doe’s abortion rights are upheld, Henderson sees “no reason she cannot donate to political campaigns” or “possess a firearm … while illegally or unlawfully in the [US],” predicting that “even the government’s ability to try accused war criminals” could be jeopardized (17). For Henderson, then, Doe represents a potential flood of pregnant “illegal” immigrants that will pollute the nation with lawlessness while hamstringing the federal government’s border enforcement powers with excessive rights claims.
To establish Doe’s ineligibility for constitutional rights, Henderson invokes her foreignness and lack of citizenship, legal residency, informal membership in the national community, or even personhood. “J.D. is not a U.S. citizen,” Henderson (2017, 8) writes,
“She is not a permanent resident, legal or otherwise….she has no connection to the [US], let alone ‘substantial’ connections. Despite her physical presence in the [US], J.D. has never entered the [US] as a matter of law and cannot avail herself of the constitutional rights afforded those legally within our borders.”
Though stressing the illegality of Doe’s actions, Henderson cites multiple cases granting unauthorized residents legal protections in support of her claim that Doe, because she was apprehended before crossing the threshold of America’s borders, has minimal―if any―claim to rights under the law (Henderson 2017, 9). Henderson quotes case law affirming the legitimacy of the state’s powers to police the border and exclude foreigners, explaining that “the Supreme Court ‘without exception has sustained’ the Congress’s power to exclude aliens, a power ‘inherent in sovereignty,’ and consistent with ‘ancient principles’ of international law” (11–2). This power, she argues, “applies with all the more force here, where a substantive due process right is asserted not by a U.S. citizen, nor by a lawful-permanent-resident alien, nor even by an illegally resident alien, but by an alien minor apprehended attempting to cross the border illegally and thereafter detained” (13–4). If Doe’s rights are legally violable in other ways―Henderson mentions indefinite detention, targeted deportation for political speech, and deportation with only cursory notice as examples―because of her immigration status, “then she cannot successfully assert a due process right to an elective abortion” (13–4). In a disquieting reverberation of Dredd Scott, Henderson goes so far as to deny that Doe counts as a person under the U.S. Constitution. “Although the panel dissent found ‘deeply troubling’ the argument ‘that J.D. is not a person in the eyes of our Constitution,’ the argument is nevertheless correct,” she states (16). For Henderson, withholding Constitutional protections from Doe is supremely important―“the stakes, both in the short run and the long, could scarcely be higher” (8)―for preserving the nation-state, border security, and the rule of law itself.
Despite their differences, the dissents converge in several respects. Though not as overtly hostile toward unauthorized immigrants as Henderson, Kavanaugh (2017) nonetheless repeatedly describes Doe as an “unlawful immigrant minor” and characterizes her actions as “illegally” attempting to cross the border (2–3, 5). Likewise, despite focusing on border control, Henderson echoes pro-life attacks on women who have abortions, besmirching Doe’s character and blaming her for her circumstances. Additionally, both Kavanaugh and Henderson briefly register disapproval of Roe v. Wade without advocating overturning it. Kavanaugh notes that “some disagree with cases holding that the U.S. Constitution provides a right to an abortion,” but concedes that this is outside lower courts’ purview (8). Henderson (2017) emphasizes that Doe is requesting an “elective” abortion, defends the state’s interest in protecting fetal life, and ridicules the claim that abortion rights are more fundamental than other rights (14, 18). She describes the en banc ruling permitting Doe’s abortion as yet another entry into “the pantheon of abortion-exceptionalism cases” that engage in “maximalist application of some of the most controverted case law in American jurisprudence … over the well-founded objections of an Executive authorized to pursue its legitimate interest in protecting fetal life” (17–8). Though strongly worded, this is the only reference to fetal life in Henderson’s decision.
Finally, both opinions selectively ignore the materiality and inexorable temporality of pregnant bodies. Though Kavanaugh concedes that postponing Doe’s abortion until it becomes illegal would constitute an undue burden, he remains silent about the health risks of delay and the psychic and somatic suffering of prolonging unwanted pregnancies. Henderson mentions the timeline of Doe’s pregnancy only to argue that she must have known she was pregnant before attempting entry. Arguably, by questioning whether Doe has actually entered the US, Henderson may be implying that Doe’s fetus could not be born a citizen because Doe is outside U.S. jurisdiction, but this suggestion is at best subtextual. Neither opinion directly addresses the eventuality that, if Doe remains in custody but is denied an abortion, she will bear a child on U.S. soil. By avoiding references to birth, both opinions discount the consequences of forcing Doe to continue her pregnancy and sidestep complexities regarding Doe’s fetus’s citizenship status. As subsequent sections will argue, refusing engagement with fetal citizenship’s ambiguities is crucial for grafting together anti-abortion and anti-immigrant discourses.
Garza v. Hargan’s twin dissents illustrate potential resonances between pro-life and anti-immigrant discourses as well as the silences that mark the fault lines between them. Kavanaugh’s decision presents deferring Doe’s abortion rights as a compassionate and humanitarian act, even as Henderson’s paints it as a security measure necessary to protect the body politic from foreigners. Analyzing the strategies these opinions pursue offers an entryway into understanding how the radical right performs compassion for fetuses without exempting pregnant migrants from harsh border enforcement practices.
Literature Review: Two Logics of Citizenship
Previous research on fetal citizenship, correctly observing that misogyny routinely appears alongside racism and nativism, too often assumes fundamental compatibility between pro-life and anti-immigrant discourses (Cisneros Reference Cisneros2013) or brackets the complications migration poses for fetal citizenship (McCulloch Reference McCulloch2012). Highlighting the enduring tensions finessed by Kavanaugh and Henderson, I argue that the radical right is riven by competing logics of citizenship, reflected in the figures of “the fetal citizen” and “the anchor baby.” Broad pro-life conceptions of (fetal) citizenship are inflected by an expansionist logic that pushes toward universalism. Though on unequal terms, this inclusivity contradicts the exclusionary logic underpinning anti-immigrant discourses, which employ racialized conceptions of citizenship to otherize or expel. Forced into alignment, these contradictory logics position immigrants, their fetuses, and their children within multifaceted hierarchies on the basis of race, gender, national origin, legal status, religion, class, etc. Because reproductive and border control are driven by opposing logics of citizenship, only barely sutured by rhetorical maneuvers, pregnant immigrants expose a potential fissure over fetal citizenship within the radical right.
Pro-life rhetoric about “fetal citizens” is premised on an inclusive logic of citizenship. Shortly after the turn of the millennium, North American pro-life activists began constructing fetuses as citizens (Casper and Morgan Reference Casper and Morgan2004; Lupton Reference Lupton2012; McCulloch Reference McCulloch2012)―or, in Lauren Berlant’s (Reference Berlant1994) words, “super-citizens” with rights to the maternal body that no other humans possess over another’s body. Like fetal personhood, fetal citizenship is conceptually and discursively tied to pro-life movements’ co-optation of liberal framings like human rights, feminism, and antiracism (Hunt Reference Hunt2021; Leach Reference Leach2020; Reference Leach2021). Across the Americas and parts of Europe, pro-life activists now routinely frame fetal rights as a human rights issue consistent with supporting women’s rights while decrying abortion as violating human dignity (Holc Reference Holc2004; Morgan and Roberts Reference Morgan and Elizabeth2012; Saurette and Gordon Reference Saurette and Gordon2013). Despite promoting policies disproportionately harmful to women of color, pro-life movements often represent themselves as antiracist, purporting to cherish non-white fetal lives and using targeted messaging to discourage abortions among Black and Latina women (Denbow Reference Denbow2016; Guenther Reference Guenther2012). For example, Lisa Guenther (Reference Guenther2012) documents pro-life billboards in predominantly Black communities that frame abortion as anti-Black genocide, invoking historical memories of slavery and Civil Rights struggles. Though ham-fisted―and, as Guenther (Reference Guenther2012) and Jennifer Denbow (Reference Denbow2016) rightly observe, ultimately rooted in racist and misogynist imagery―such messaging suggests that pro-life activists at least hope to be perceived as racially inclusive. Through these deceptive frames, pro-life discourse exhibits aspirations to universality.
Conversely, anti-immigrant discourses are rooted in a racist, nativist, exclusionary logic of citizenship. Opponents of immigration often portray immigrants’ fetuses and children as threats, not potential citizens (Cisneros Reference Cisneros2013). The Trump administration and far-right groups have sought to reverse birthright citizenship, strip naturalized immigrants’ citizenship, and block pregnant women from obtaining visas (Frost Reference Frost2019; North, Narea, and Ward Reference North, Narea and Ward2020; SPLC 2018). As is well known, negative representations of immigrants are historically entangled with racializing discourses that code foreignness as non-white and threatening to the white body politic. Allison Hartry (Reference Hartry2012) shows how ICE policies toward pregnant immigrants of color reflect racist, misogynist, nativist discourses about an impending “invasion via birth canal” that allegedly threatens the (white, native-born) American body politic. P. J. Brendese (Reference Brendese2014) argues that narratives about “illegal” immigrants echo racist metaphors depicting foreign and ethnic others as pestilence, vermin, criminals, or terrorists―metaphors that often appear as preludes to genocide or other racialized violence (Confino Reference Confino2015; Musolff Reference Musolff2011; Sontag Reference Sontag1978). Otherizing representations of foreigners in American political discourse commonly depict Mexicans and “illegal” immigrants in racialized ways that construct Latinos/as as inherently criminal, “perpetual foreigners,” or “not real Americans” while obscuring the federal government’s responsibility for biased policies enabling illegal (but not legal) immigration from Mexico (De Genova Reference De Genova2004). Racialized representations of Asians as unassimilable, deviant, subversive, or inferior are likewise embedded in historical and present-day U.S. immigration policies and discourses (Lee Reference Lee2013).
Because fetal citizenship frames assign membership in nation-states prior to birth, while anti-immigrant discourses exclude immigrants’ offspring from citizenship altogether, strange hybrids appear at their interchanges. In one example, cited by Monica Casper and Lynn Morgan (Reference Casper and Morgan2004), a district court barred a pregnant woman’s deportation on the grounds that her fetus was an American citizen. On one hand, this exemplifies pro-life logics that elevate fetuses over women and anti-immigrant logics that elevate citizens over foreigners. On the other hand, if deportability is a form of violence, as some argue (García Hernández Reference Hernández and Cuauhtémoc2014; Kanstroom Reference Kanstroom2000), this case marks a rare instance when protecting fetal rights also protected the pregnant person. Reflecting on how this defense is taken up in panics over “birth tourism,” Sean Wang (Reference Wang2017) explores their double-edged implications. “Jus soli and [immigrant women’s] unborn American fetus-as-citizen become a desperate line of last defense against anti-immigration assaults,” he observes, “desperate because in invoking that defense, we again de-humanize migrant women as merely ‘containers of citizens’ and never citizens in their own right” (272). Put differently, though fetal citizenship may afford immigrant women a modicum of protection, its “transgressive potential” is “limited” because it conditions their health care, residency, and rights on their pregnancies (272). Indeed, for Wang, this ambivalent relationship between fetal citizenship and immigration enforcement produces the fetal citizen “as the defining site of struggle” over birthright citizenship, the demographic future of the body politic, and the racialization of belonging in the American nation (abstract, 270). Such contradictions between fetal citizens’ rights and sovereigns’ rights to exclude foreigners are not unique to deportation proceedings. As Jennifer Musial (Reference Musial2015) observes, conflicts between pro-life and anti-immigrant discourses about citizenship featured prominently in Arizona state legislative debates over a bill prohibiting sex- and race-selective abortions. Lawmakers debated whether the bill applied to undocumented people’s fetuses, whether “fetal citizenship supercede[ed] migrant status,” and whether “fetuses have citizenship rights (like the right to contest discriminatory abortions) while their pregnant carriers remain ‘illegal immigrants’ trying to have ‘anchor babies’ within this anti-migrant rhetoric” (274). These examples show, in contrast to Doe’s case, how a pro-life logic can cut against strict immigration enforcement.
Tensions between pro-life and anti-immigrant discourses are not incidental but entailed by opposing logics of citizenship. From a pro-life perspective, fetuses are already citizens before birth, and these unborn citizens are universally entitled to U.S. government protection regardless of the maternal body they inhabit. Implicit in this view, any fetus whose birth is expected to occur within U.S. borders is at least presumptively an American citizen. Of course, this citizenship claim is contingent and therefore speculative; if the pregnant migrant is deported and gives birth elsewhere, the future child is not an American citizen and the fetus retroactively has never been one either. Yet, extending presumption of citizenship to immigrants’ fetuses is necessary to pro-life discourse, because deferring membership in the polity until birth would render the very notion of “fetal citizens” incoherent. Conversely, in anti-immigrant discourses that disregard “anchor babies’” citizenship claims, pregnant immigrants are treated as unambiguously foreign, subject to violence and exclusion because they fall outside the umbrella of state protection. But if pregnant immigrants and their fetuses are legitimate targets of violence, there is no reason to prevent them from having abortions. Indeed, the rational basis of the state’s authority to govern migrant women’s reproduction at all wears exceedingly thin if it has no interest in their health or their fetuses’ potential lives.
Further tensions arise because “potential citizens” carries different meanings in immigration and reproductive politics. Vis-à-vis reproduction, “potential citizens” refers to unborn or imagined future generations, over whom the state has authority and for whom it has responsibility, due to its stake in the nation’s future population. In the context of immigration, “potential citizens” might refer to anyone who could immigrate and become naturalized. Yet if any aspiring immigrant is―in theory, if not in practice―a potential citizen in this sense, the imagined national community’s boundaries expand until they dissolve. Extended into this new context, the argument that the state has a right to manage and a responsibility to protect future citizens renders its obligations and sphere of authority unlimited. Conversely, restricting this authority and responsibility to only current citizens would undermine the rationale for the state’s interest in potential life. Justifications for state authority to regulate reproduction and immigration therefore clash, and this contradiction becomes visible at the site of the fetal citizen.
Finally, Natalie Cisneros’s (Reference Cisneros2013) analysis of “anchor babies” rhetoric connects denigration of immigrant mothers to attacks on birthright citizenship, showing how racialized depictions of “‘alien’ reproduction” as an “invasion” or “infestation” threatening the (implicitly white) nation undermine jus soli (301). Giving birth on American soil without the proper paperwork functions as evidence that immigrant mothers not only lack civic virtues but also actively “‘contaminate’ the social body” by “render[ing] vulnerable the boundaries of citizenship” (301). Undocumented pregnant bodies destabilize the citizen/noncitizen binary because they carry potential-citizens inside bodies coded as “alien,” criminal, dangerous, or unhealthy for the body politic. Anti-immigrant discourses use “anchor baby” imagery to portray undocumented maternal bodies as poisoning their fetuses/children’s citizenship claims, revealing the deeply “racialized nature” of “citizen” and “illegal alien” identities (301). Coding immigrant bodies as non-white and biologizing immigrant mothers’ (alleged) fraudulence marks their offspring as permanently unassimilable. On this view, extending “‘birthright citizenship’ to children of illegal ‘aliens’” dangerously and immorally bestows “the rights and privileges of citizenship [upon] always-already alien bodies” (302). Because “alienness” is purportedly hereditary and threatening to the nation, pregnant migrants and their fetuses/children are constructed as national security threats (302). The discursive link Cisneros draws between national security and controlling “alien” reproduction more convincingly explains Henderson’s conviction that ruling in Doe’s favor would undermine national security than her stated rationale that upholding Doe’s rights would increase unauthorized immigration by abortion-seekers. Within this discourse of alien maternity, undocumented immigrants’ fetuses/children cannot be considered real citizens, regardless of legal or Constitutional decrees.
Unexpectedly, Cisneros (Reference Cisneros2013) does not think Otherizing representations of “alien” maternity necessarily disrupt fetal citizenship. Rather, she contends, “the construction of the fetus as a virtuous citizen makes possible (and is made possible by) the discourse that refers to some fetuses as ‘anchor babies’ and ‘multiplying rats’” (303). Citing Berlant’s (Reference Berlant1994) argument that fetal citizenship negates pregnant women’s agency, Cisneros (Reference Cisneros2013) reads fetal citizenship as an abstract ideal that imagines the nation as a unified, intimate community and as a “concretely racialized” notion that excludes immigrants and their offspring through nostalgic, ahistorical images of the nation’s past (297). The “anchor baby” is thus figured as the fetal citizen’s underside. Like “upper-middle-class white maternal bodies,” Cisneros argues, “‘alien’ women’s always-already racialized bodies are disciplined and regulated by discourses” that subordinate pregnant women to the fetuses they carry, “but instead of constituting ‘alien’ fetuses as ‘fetal citizens’ deserving of protection, these fetuses (and the children they sometimes become) are constituted as racialized, anti-citizen ‘anchor babies’” (297). That is, she argues that immigrants’ fetuses are racialized and excluded along with their mothers, even though anti-abortion discourses position them in hierarchical relationships vis-à-vis one another.
But undocumented immigrants’ fetuses are not always, only, or simply excluded; they are selectively included, excluded, or positioned hierarchically in relation to the gestating person. As Skye de Saint Felix (Reference de Saint Felix2019) shows, the ORR’s denial of Doe’s abortion request is underwritten by racialized, gendered pathologization of pregnant immigrants. Even so, the ORR’s ban on “facilitating” abortions and their director’s openly pro-life rhetoric (Winterberger Reference Winterberger2019) contradict the conclusion that undocumented immigrants’ fetuses cannot be represented as fetal citizens who deserve state protection. Doe’s case, especially, challenges the view that immigrants’ fetuses are necessarily excluded from fetal citizenship. Kavanaugh and―to a lesser extent―Henderson purport to rescue Doe’s fetus from her intention to abort it. Moreover, Kavanaugh claims to be protecting Doe as well. Both Doe and her fetus are therefore granted a semblance of protection, albeit only in name and in order to render Doe maximally subject to state authority.
My departure from Cisneros may track a renegotiation of the pro-life/anti-immigrant compromise in public discourse or it may simply reflect distinctive features of Doe’s case. Because Doe arrived at the border unaccompanied and underage, the state’s duty of care toward minors played a significant role in legal justifications for intervening in her pregnancy. For Kavanaugh, Doe’s age might enhance the expected efficacy of the state’s corrective punishment (Foucault Reference Foucault1995). For Henderson, it may signify greater scope for subordination. Furthermore, unlike undocumented mothers who give birth in American communities, Doe’s apprehension at the border prior to her due date could be interpreted as preventing contamination of the social body. In Kavanaugh’s account, Doe’s imprisonment could be read as an antidote to her purportedly criminal motherhood, administered in time to prevent the clandestine birth of a racialized fetus “anchoring” her to the US, thus enabling redemption of her fetus as an abstract citizen. For Henderson, Doe’s rapid detention means she can be deported before giving birth, neutralizing her fetus’s claim to membership in the American body politic. Henderson’s numerous references to the illegality of abortion in Doe’s country of origin suggest not only that Doe’s foreignness justifies restricting her rights in U.S. custody but also that her fetus belongs to some other nation-state that disallows abortion of its fetal citizens. Reaffirming U.S. sovereignty against an imaginary influx of pregnant “aliens,” Henderson’s opinion also reaffirms Doe’s home country’s sovereignty over its fetal citizens.
Although “fetal citizens” sometimes represent an idealized future citizenry or “the integrity of the nation” (Holc Reference Holc2004, 758), Doe’s fetus cannot serve this purpose because its membership in the nation depends on its birth location. Its citizenship is questionable even if its personhood is stipulated. Because Doe’s fetus is as much a potential foreigner as a potential citizen, the moment when legal personhood and citizenship are established is not as easily shifted from birth to conception. While fetal citizenship may serve to align pro-life and anti-immigrant discourses in exclusively domestic contexts, in the context of migration the leap from fetal person to fetal citizen risks foregrounding tensions between the two discourses. Doe’s fetus is ultimately a liminal figure, scrutable neither as an idealized future citizen nor as a dangerously foreign “anchor baby.” This representational ambiguity is, the next section argues, crucial to maintaining the pro-life/anti-immigrant coalition.
Analysis: Debilitation and Paralegality
This section identifies two techniques, debilitation and paralegality, that reconcile pro-life and anti-immigrant logics of citizenship. Debilitation refers to the “the slow wearing down” of disposable populations through exposure to biopolitical risks, including injury, ill-health, and infrastructural breakdown (Puar Reference Puar2017: xiv, xvi). It brooks a compromise over fetal citizenship that discourages direct or intentional killing of immigrants’ fetuses via abortion while excusing their systemic exposure to risk of injury or death via miscarriage. The ORR’s prohibition against “facilitating” abortion assuages demands for protecting fetal life; meanwhile, redoubled policing of pregnant immigrants (Sacchetti, Reference Sacchetti2019) and detention facilities’ underdeveloped reproductive health care infrastructure (ACLU et al. 2017) appease nativist desires to punish “alien” mothers and “anchor babies” by subjecting pregnant immigrants (and their fetuses) to medical neglect and other reproductive injustices. This pro-life/anti-immigrant compromise is reinforced by paralegality (Valdez, Coleman, and Ackbar Reference Valdez, Coleman and Akbar2017), or the quasi-legal policy-making authority of bureaucrats, contractors, and enforcement agents. Delegating the decision to debilitate to lower-level officials allows situational shifts in the meaning of citizenship, including its applicability to fetuses. Because this compromise coheres and conflicts with broader discourses of power, my analysis complicates Puar’s theorization of debilitation’s relationship to neoliberalism, ethnonationalism, sovereignty, and reproductive politics. Debilitation and paralegality manage tensions between competing discourses of power, constituting reproductive injustices against immigrants as a central terrain of struggle over the consolidation or dissolution of radical-right coalitions.
Debilitation and Neoliberalism
Debilitation in immigration detention involves avoiding newsworthy detainee deaths and maintaining token antiabortion protections for detainees’ fetuses while creating carceral conditions that undermine the health, fecundity, and well-being of immigrants and their families. As theorized by Puar (Reference Puar2017, xiv), debilitation entails targeting of disabled people for exclusion or marginalization and targeting others for disproportionate risk of becoming disabled by structural violence. Pregnant immigrants are increasingly targeted for arrest, detention, and debilitation (Reuters 2018). They are also targeted by abusive prison guards and doctors because of pregnancy, which heightens their vulnerability (Bekiempis Reference Bekiempis2020; SPLC 2019a). This targeting illustrates the logic of “the right to maim,” Puar’s corollary to Foucault’s (Reference Foucault1995; Reference Foucault and Senellart2010) sovereign right to kill and biopolitical right to life. Distinct from the sovereign logic of “kill/let live” or the biopolitical logic of “make live/let die,” the right to maim operates through a logic of “will not let/make die” that exposes populations to risk and injury while preserving their biological existence (Puar Reference Puar2017, x, 104). If debilitated populations are not necessarily marked for death, nor are they allowed to truly live; their well-being is systematically foreclosed and gradually eroded, yet they are not allowed to die, at least not quickly, in great numbers, or in spectacular ways.
Though debilitation might appear to diminish populations’ capacities for producing economic value, Puar (Reference Puar2017) argues that debilitation is profitable and ideologically productive under neoliberalism. Economically, debilitation funnels public money into private enterprise, consolidates ideological blocs, reduces political transaction costs, and subdues rebellious subjects (13, 74). For instance, debilitated populations provide custodial objects for private prison companies (78–81). Because spending on immigration enforcement tends to rise alongside detentions and deportations (Burnett Reference Burnett2018), privatization of immigration enforcement creates perverse incentives for prison and border security contractors, whose profits increase as injustice intensifies (Ackerman and Furman Reference Ackerman and Furman2013). According to the Homeland Security Advisory Council’s 2016 Report to the Subcommittee on Privatized Immigration Detention Facilities, the ramifications for pregnant women are especially severe. Debilitation also amplifies the precariousness imposed by deportability (perpetual vulnerability to deportation). Deportability is central to undocumented people’s lived experiences of fear, instability, rightlessness, exclusion, militarized policing, indefinite detention, and gendered violence (De Genova Reference De Genova2004; Sampaio Reference Sampaio2014). Jill Harrison and Sarah Lloyd (Reference Harrison and Lloyd2012) add that deportability augments exploitation of undocumented and legal workers alike. Fear of deportation may deter migrant workers from demanding fair wages or safe working conditions, rendering them especially vulnerable to exploitation and maiming. Moreover, the terrified bottom-tier of undocumented workers implicitly warns citizen and legal-resident workers not to make trouble, lest their own conditions worsen. But even as debilitation intensifies exploitation of workers outside immigration prisons, debilitated migrants are themselves profitable not as worker-subjects but as custodial-objects, who are valued not despite but because of their inability to participate in economic transactions (Puar Reference Puar2017, 46). In these ways, debilitation exacerbates exploitation of immigrants, especially where “illegality” intersects with class, gender, or race/ethnicity.
Puar (Reference Puar2017) also argues that debilitation is profitable because it decouples financial growth from social reproduction―gestational and care labor, traditionally performed by women, that perpetuates populations intergenerationally―unleashing profit-seeking from concerns about replenishing the workforce or consumer base (146–7). Complicating this, I suggest that dismemberment of social reproduction is both profitable and dangerous because it expands opportunities for capitalist accumulation (acquisition of capital resources by opening new markets or intensifying marketization of previously less-commodified domains). Because capitalist accumulation under neoliberalism primarily acquires human capital (Brown Reference Brown2015; Foucault Reference Foucault and Senellart2010), commodifying housework and childcare is vital to this process. Debilitation enables women’s conversion into human capital by undermining traditional social reproduction and intensifying exploitation of low-wage domestic workers (disproportionately immigrant women of color), thereby facilitating highly skilled women’s integration into the professional workforce (Rottenberg Reference Rottenberg2017). However, returning to a system of ruthless value extraction at home and abroad after a brief period of respite for (some) workers in advanced industrial economies triggers a multifaceted crisis, similar to those that arose with the first wave of industrialization and accumulation (Fraser Reference Fraser2009). One aspect of this general crisis is the crisis of care, or working women’s diminishing ability to fulfill traditional social reproductive obligations due to increasing participation in wage labor and eroding welfare states (Fraser Reference Fraser2009). In short, if debilitation is profitable because it dismembers social reproduction, it also invites crisis for the same reason.
Debilitation may partially hedge against the crisis of care by converting low-wage feminized migrant laborers into carceral-objects or vice-versa, exploiting or debilitating migrant women as-needed. Yet, managing this conversion requires delicate balancing, particularly amidst large-scale transformations in the gendered division of labor. Debilitation’s destructive influence on social reproduction and the careful management of this destruction are evident in reproductive injustices attendant to U.S. immigration enforcement, including family separation (SPLC 2019b). Family separation debilitates children who are confined in appalling conditions (Dickerson Reference Dickerson2019), lost by ICE (Wang Reference Wang2018), or placed with inadequately vetted sponsors and guardians, including human traffickers.Footnote 7 Rupturing family relationships and endangering immigrant children constitute reproductive injustices because they violate the rights to parent and raise children in safe, healthy environments (Ross and Solinger Reference Ross and Solinger2017). Contemporary family separation echoes long histories of reproductive violence against women, children, and families of color (Roberts Reference Roberts1999; Ross and Solinger Reference Ross and Solinger2017)―though, importantly, calls for family reunification have historically limited as much as propelled immigration reforms (Lee Reference Lee2013).
Dovetailing with debilitation, children taken at the border may be rehabilitated through fostering or adoption. Such rehabilitative opportunities create professional-managerial jobs while incentivizing compliance by debilitated individuals and populations (Puar Reference Puar2017, 108–11, 21–5). Like family separation, contradictory reproductive health policies toward pregnant immigrant detainees enable their fetuses/children to be treated either as “anchor babies” slated for debilitation or potential adoptees for rehabilitation, minimizing their alleged danger to the body politic either by diminishing their capacities or by incorporating them into American families. Regardless, undocumented immigrants’ children are not permitted to be simultaneously alive, healthy, embedded in loving non-white kinship networks, and inside U.S. borders. The debilitation of pregnant migrants and the debilitation/rehabilitation of their fetuses/children integrate pro-life and anti-immigrant discourses by satisfying pro-life “saving children” narratives and neutralizing the threat anti-immigrant narratives attribute to undocumented immigrants’ fetuses/children. Enacting yet invisibilizing violence against “alien” mothers and their offspring, debilitation obscures contradictions between pro-life and anti-immigrant logics of citizenship.
Ideologically, neoliberalism rationalizes debilitation through victim-blaming. Neoliberal constructions of reproductive and fetal citizenship individualize responsibility for health risks, pregnancy outcomes, and postnatal maternal and infant health (Lupton Reference Lupton2012). In the context of immigration detention, this responsibilization blames immigrants for state neglect, treating border-crossing or overstaying visas as evidence of inherent criminality and bad motherhood. By invoking gendered and racialized images of immigrant criminality to blame Doe for her circumstances, for example, Henderson absolves the state of responsibility for harms that may befall Doe or her fetus during detention or deportation while justifying its authority to regulate Doe’s body and America’s borders. Yet, victim-blaming only goes so far, given pro-life portrayals of fetuses as innocent.
Racialization―processes that label immigrants, their fetuses, and their children as non-white―strengthens victim-blaming narratives while weakening support for birthright citizenship. Because debilitation is racialized, it bolsters political support among ethnonationalists while concealing structural violence by appealing to humanitarian narratives and replacing spectacular deaths with less visible slow deaths or maimings (Puar Reference Puar2017, 11; Valdez Reference Valdez2020). Debilitating pregnant immigrants reinforces racist representations of “alien” mothers as deviants, “anchor babies” as fraudulent citizens, and “illegal” immigrants as criminals. Reproductive injustices against immigrant detainees reflect and reinforce constructions of immigration detention as punishment, invited by violating immigration laws. As Daniel Kanstroom (Reference Kanstroom2000) argues, deportation functions as punishment because it is routinely included alongside criminal penalties, even for minor crimes. Using deportation to purge criminality from the body politic exacerbates deportability’s racialized and gendered harms (Kanstroom Reference Kanstroom2000; Sampaio Reference Sampaio2014; Valdez Reference Valdez2016).
However, precisely because debilitation enables and is enabled by neoliberalism as well as racism, nativism, and misogyny, debilitating pregnant migrants simultaneously opens opportunities for aligning neoliberalism with radical-right discursive formations and embeds new tensions into this alliance. Insofar as neoliberalism requires globalization, migration, or women as human capital, it conflicts with patriarchal and ethnonationalist efforts to remake the body politic by controlling reproduction and reasserting national borders. For instance, debilitating pregnant migrants may prove economically counterproductive from a neoliberal perspective if border enforcement’s escalating violence imperils inflows of migrant labor that replenish domestic workforces and provide cheap reproductive labor. Indeed, one of Doe’s stated reasons for migrating to the US was fulfilling the demand for social reproductive labor, specifically elder care (Roy and Thompson Reference Roy and Thompson2019). Arguably, detaining Doe undermined global labor market efficiencies by interrupting her pursuit of the American Dream by migrating north to perform much-needed, highly exploitative labor.
Though compatible with (some) women’s increased professional opportunities and market-friendly solutions to the crisis of care (e.g., egg-freezing employment benefits, childcare tax deductions), neoliberalism is ultimately inconsistent with fully elaborated feminist visions of reproductive autonomy because it depends on exploited care labor and disciplines reproductive decision making to extract maximum value from women (Denbow Reference Denbow2015; Rottenberg Reference Rottenberg2017). Nonetheless, neoliberalism marshals some resistance to antiabortion policies because cultivating women as human capital requires effective fertility management by valuable female workers and trades off with ethnonationalist projects promoting high birth rates among women with desirable economic, ethnic, or citizenship characteristics. It is therefore significant that Circuit Judge Patricia Millett (2017), concurring with the en banc majority, passionately defended Doe’s abortion rights and meticulously refuted the dissents. Despite the shortcomings of liberal negative rights as a foundation for reproductive freedom (Roberts Reference Roberts1999), the liberal right to choose abortion ultimately held in Garza v. Hargan.
In sum, debilitating pregnant migrants is ideologically and materially productive under neoliberalism if it facilitates privatizing, dismembering, and commodifying social reproduction; accumulating women as human capital; individualizing responsibility for health risks; or exploiting and stratifying labor. Despite raising new dilemmas, debilitation provides a point of articulation between pro-life and anti-immigrant discourses by enabling the state to appear concerned with fetal life without addressing pregnant migrants’ and their fetuses’ routine endangerment. Antiabortion restrictions that target immigrants alibi structural violence against pregnant migrants and their communities. Extended into immigration policy, pro-life discourse functions as part of a broader field of debilitation. Meanwhile, the debilitation/rehabilitation matrix creates discretionary space for different biopolitical and sovereign logics to operate interchangeably, allowing government functionaries to treat each immigrant’s fetus as simultaneously a citizen and not a citizen. With one hand, the state protects immigrants’ fetuses from abortion, while with the other, it subjects pregnant migrants to dangerous conditions. Current policies toward pregnant immigrant detainees thus satisfy pro-life demands to protect life and racist, nativist demands to punish unauthorized migrants.
Paralegality
Paralegality refers to a relationship between immigration law and immigration enforcement in which the law is determined by the actions of those “charged with implementing the law,” but “not charged with writing law,” legislatively or judicially (Valdez, Coleman, and Ackbar Reference Valdez, Coleman and Akbar2017, 552). It is a form of “lawmaking which is not officially captured in, nor necessarily guided by, legislative documents and/or legal text,” occurring “alongside the law, sometimes in contradiction of it, and sometimes in ways that end up being constitutive of future iterations of the law…circulat[ing] without a precise or settled textual legal anchor and/or author” (552). Paralegality explains the centrality of situational, disjointed enforcement to immigration policy and how the administrative state obscures responsibility for its policies’ debilitating effects. Like debilitation, paralegality embeds flexibility into the pro-life/anti-immigrant compromise, managing conflicts between divergent logics of citizenship by allowing enforcement officials to shift the fulcrum of the compromise in either direction.
Paralegality reinforces debilitation and further alleviates tensions between pro-life and anti-immigrant discourses in several ways. First, conferring decision-making power on lower-level government employees and private partners confirms the state’s sovereign authority to regulate the population’s life, death, and health while abdicating responsibility for how its agents use delegated powers. Second, discretionary enforcement permits situational interpretation and application of policies, allowing the meaning and treatment of pregnant immigrants and their fetuses to vary case by case. Decentralized decision making enables the state―through its agents, delegates, and partners―to authorize contradictory decisions, statements, and outcomes while maintaining the appearance of policy coherence. Consequently, the state appears to protect fetuses at an abstract policy level despite enacting debilitation in practice. Paralegality thus creates space to pursue conflicting agendas simultaneously under the auspices of enforcing the law. Finally, para-legal governance distances policy makers from policies’ negative effects while preserving the state’s ultimate right to evaluate or reverse specific practices, judgments, and outcomes enacted by others in its name. Delegating unsavory calculations to executive agencies or private contractors allows the severity of mistreatment to fluctuate, so long as it remains sufficiently low-grade to avoid implicating elected officials or inciting public outcry. Under paralegality, the logic governing pregnant migrants remains open, without forsaking the sovereign’s right to exercise its latent authority. Paralegality thus undercuts accountability while retaining the state’s supreme authority to decide which bodies and populations will be allowed or compelled to live, die, and/or reproduce.
Biopolitics and Sovereignty
Paralegality and debilitation are distinctive techniques of power because they enable the sovereign to defer deciding the terms of life and death either by creating permanent gray zones of citizenship governed by a logic of “will not let/make die” or by delegating decision-making power to functionaries who can be called to account (or not) as needed. Motivated by racialized and gendered visions of the nation’s future, these techniques enable the radical right to simultaneously legitimate reproductive and border control. Toward this end, they combine elements of both biopower and sovereign power. By deferring the sovereign’s moment of decision, debilitation and paralegality stage a shell game in which sovereign power is omnipresent yet peripheral, always nearby but never exercised in a direct and explicit manner that might provoke democratic reckonings. Simultaneously, fleeting yet extravagant displays of force at the border channel dissent toward predictable flashpoints like the so-called “migrant caravan” (Allen Reference Allen2019). This subsection shows how radical-right reproductive politics combine sovereign power and biopower, explaining how desires to control the nation’s future and to reconcile ethnonationalist ideologies with the material processes of capitalist globalization drive the pro-life/anti-immigrant compromise.
Images of the nation as demographically consistent over time and biologically reproduced compels regulation of pregnant bodies (Athanasiou Reference Athanasiou2006), projecting the desired nation into an imagined future by promoting fertility among some populations while debilitating others. This is commonly understood as a form of biopolitics because it enhances future life (Deutscher Reference Deutscher2017; Foucault Reference Foucault1988; Reference Foucault and Senellart2010). Yet, policies targeting pregnant migrants like Doe and Hidalgo employ brute-force enforcement techniques more characteristic of sovereign power. Moreover, representations of immigrants and racialized citizens as diseases, injuries, infestations, or degeneration of the body politic are unfortunately becoming mainstream in American politics (Allen Reference Allen2019; Fritze Reference Fritze2019; SPLC 2018). As Andreas Musolff (Reference Musolff2011) demonstrates, such imagery is derived from Schmittian notions of sovereignty that rationalized state and paramilitary violence against foreign and domestic “enemies,” historically providing fascism’s legal and political foundations. Recognizing that radical-right reproductive politics are enacted through biopower and sovereign power reveals that, although debilitation and paralegality might appear to challenge sovereignty, in fact, they confirm it, by reiterating the sovereign’s control over the body politic while abdicating responsibility for outcomes wrought in its name and on its authority.
Banu Bargu (Reference Bargu2014) conceptualizes “contradictory amalgamation[s]” of sovereign power and biopower as “biosovereignty,” or configurations of power and discourse in which the sovereign “power to command life and death … refounds and installs itself in new, albeit contingent, configurations based on the fertilization and mutual interpenetration of sovereign tactics with biopolitical tools of government” (26). Rather than sovereignty’s disappearance, she argues, late modernity is characterized by a “recalcitrant, seasoned, and self-invigorating” sovereignty that “augments itself” through “increased control and governance over life” (26). Against the “individualizing and totalizing domination” of the biosovereign state, Bargu positions “necroresistance,” which refuses this domination “by wrenching the power of life and death away from the apparatuses of the modern state” (27). In short, biosovereignty refers to states’ power and authority to control bodily life and death through violence and administrative management. Seizing bodily autonomy despite state efforts to control bodies challenges biosovereignty’s efficacy and legitimacy.
Considered in relation to reproductive injustices in immigration detention, biosovereignty regulates the terms of reproduction in addition to life and death. Controlling reproduction reifies the body politic’s spatial and temporal boundaries, reasserting state control over territories and populations by excluding demonized foreign others through sovereign violence and hierarchically ordering reproductive bodies within the nation-state through softer biopolitical means. The cases of Doe, Hidalgo, and other pregnant detainees mistreated in U.S. immigration prisons exhibit this interplay between sovereign power and biopower. For instance, the ORR’s policy against “facilitating” abortion reflects a biopolitical concern for life, while medical neglect erodes life to bare biological existence. Likewise, insofar as harsh conditions in immigration detention disincentivize pregnancy among undocumented immigrants, the gentle neoliberal-biopolitical nudge toward responsibilization interlaces with sovereignty’s brute force, manifested in shackling. On this interpretation, refusing permission for Doe’s abortion reiterates biosovereignty, coextensively with the field of debilitation visited upon women like Hidalgo. These reproductive injustices are constituted through contradictory admixtures of biopolitical racism with sovereign powers to police and exclude.
Because reproductive biosovereignty regulates individual bodies and the body politic, it entails an inward-facing dimension that hierarchically orders bodies according to their (perceived) desirability as (potential) mothers and an outward-facing dimension that polices the body politic’s borders by excluding or enacting violence upon foreign or racialized bodies. Both dimensions converge on pregnant immigrant bodies, barring them from abortion and motherhood. The result is a matrix of partial, hierarchical inclusion. Together, pro-life and anti-immigrant discourses divide pregnant immigrant bodies into fetus and “mother,” categorizing the former as fetal citizens or “anchor babies”, and ranking the latter according to their proximity to high-status traits like native-born citizenship, whiteness, wealth, Christianity, and so on. This hierarchical system classifying immigrant bodies interlocks with related schemas that differentiate and order pregnant citizens’ bodies.
However, while biosovereignty and ethnonationalism are mutually reinforcing, both appear at odds with neoliberal-capitalist globalization. Perhaps, then, techniques like debilitation and paralegality only performatively maintain nation-state sovereignty while actualizing the sovereignty of capital, as Wendy Brown (Reference Brown2010) argues with respect to border walls. Like walls, harsh detention policies leave economic and political drivers of migration unaddressed. This ineffectuality is integral to immigration and border control’s proper functioning because meaningful interference with unauthorized immigration would imperil neoliberal processes of globalization that require a highly mobile, exploitable, and stratified transnational labor force. Though debilitation may amplify (migrant and citizen) workers’ exploitability and the military-prison-border-patrol-industrial complex’s profitability, these economic gains evaporate without continual unauthorized migration. Shifting responsibility from global economic and political structures onto immigrants protects the fantasy that nation-states can preserve traditional values by containing “aliens” who embody threatening Otherness, even as globalization melts away traditional ways of life (115–119).
Indeed, debilitation may be valuable for the American radical right precisely because it strengthens the illusion of strictly controlled borders without substantially diminishing cross-border flows of bodies. If so, my analysis of reproductive injustices against pregnant immigrant detainees extends and reinforces Brown’s (Reference Brown2010, 24) contention that theatrical border enforcement is symptomatic of territorial nation-state sovereignty’s decline, not its reinstantiation. On this view, episodes of spectacular border-policing violence defend fantasies of a clear “inside” and “outside” in contexts where these terms no longer “correspond to nation-state identity or fealty” because “otherness and difference are detached from jurisdiction and membership” (82). That is, states continue using citizenship to distinguish insiders and outsiders because bare legal status is all that remains of the nation, once imagined as implying shared culture, beliefs, or ways of life. Extravagantly enforcing vestigial membership categories underscores nation-state sovereignty’s forfeiture of its “a priori status and easy link with legal authority, unity, and settled jurisdiction” (84). This decoupling of friend/enemy and citizen/foreigner binaries explains connections between racialized border policing and racialized oppression within the body politic.
Performances of sovereignty do not merely rely on racism, nativism, misogyny, or capitalism, but deepen, mobilize, and reproduce them (Brown Reference Brown2010, 93). Consistent with Brown’s analysis (81), Henderson’s framing of immigration as a national security issue reflects the shift from grounding state legitimacy in its ability to defend the population against other states to its protection of citizens from transnational threats, including migration. Constructing migration as threatening to democracy or rule of law―as Henderson does―relies upon and reifies analogies between individual and nation-state sovereignty, imbuing violations of territorial borders or sovereign legal authority with citizens’ personal fears of bodily violation and loss of control (78–9). Moreover, anti-immigrant rhetoric by governing officials from Trump to Henderson produces borders as “permanent zones of violent conflict and lawlessness,” inciting xenophobia without challenging illicit economies that depend on exploiting undocumented workers (113, 78–9).
However, even if reassertions of sovereignty upon pregnant migrants’ bodies are merely performative gestures, they have important ideological and material effects. Moreover, contradictions remain. For instance, capitalist interests in maintaining inflows of migrants―whether as worker subjects, carcercal objects, or both over time―seem fundamentally at odds with territorial nation-state sovereignty, especially ethnonationalist variants seeking to engineer a predominantly white, native-born body politic. If desires for the American nation’s future whiteness drive policies that debilitate pregnant immigrant detainees, such policies must be harmonized with domestic pro-life policies compelling white American women to reproduce. This provides the impetus for anti-immigrant/pro-life coalition-building, because future realization of the radical right’s desired (white, native-born) population depends their ability to successfully coordinate attacks on racialized/noncitizen women’s right to reproduce with attacks on white/native-born American women’s right not to reproduce.
This configuration of power and discourse effectively precludes reproductive autonomy for all women, though some are granted relatively more tolerable choices while others are denied livable lives. As an articulatory node between pro-life and anti-immigrant discourses, pregnant immigrants are punished for abortion and motherhood alike. Pro-life conceptions of citizenship and policies coercing (presumptively white) American women into reproducing are extended to immigrant fetuses, undermining immigrant women’s abortion rights; at the same time, racialized opposition to immigration produces debilitation, undermining their rights to bear children and parent in safe environments. Reproductive autonomy―unless bridled by disciplinary regimes dictating its proper exercise―challenges this constellation of power by granting women (not the state) authority to decide the terms of nascent life, death, and birth. Empowering women to decide their reproductive futures also grants them agency in shaping the body politic’s future. Biosovereignty, understood as encompassing reproduction, explains the state’s commitment to controlling immigrant women’s bodies and reproductive lives, even at the risk of heightening tensions between the discourses that legitimate its authority to regulate bodies and borders. If “illegal” immigrant detainees’ pregnant bodies are the lynchpin of multiple axes of power that sustain nation-state- and bio-sovereignty and if excessive force risks mobilizing public opposition and exacerbating tensions between the state’s legitimating discourses, then debilitation and paralegality become indispensable.
Conclusion
Examining Doe’s case alongside systemic reproductive injustices in U.S. immigration prisons illuminates how pregnant immigrant bodies foreground tensions between pro-life and anti-immigrant logics of citizenship. Debilitation and paralegality obscure these contradictions, enabling a fragile compromise in which anti-abortion measures position the state as fetal citizens’ protector, even as debilitating carceral conditions undermine pregnant migrants’ and their fetuses’ health. These techniques confirm without exercising the sovereign’s ultimate authority to regulate national borders and the terms of life, death, and reproduction that produce the future body politic. Combined, pro-life and anti-immigrant discourses degrade “alien” mothers through the ruse of protecting fetal life while countering the demographic “threat” posed by alien reproduction through exposure to medical risk and reproductive abuse. My analysis maps how reproductive oppression interlocks with racism, nativism, neoliberal capitalism, and other forms of domination, giving rise to complex hierarchies and displacing responsibility for reproductive injustice. However, although Kavanaugh’s and Henderson’s dissents illustrate the potential alignment between pro-life and anti-immigrant discourses, Doe’s rights were ultimately upheld against powerful right-wing opposition. Garza v. Hargan consequently foretells not only dark futures where nascent fascism takes root in America but also possible worlds where feminists disrupt these alliances and transform the structural conditions from which they emerged.
This analysis has three implications for scholars and activists. First, feminists should prioritize immigrant women’s reproductive autonomy as central to broader struggles for reproductive justice, because this focus refuses undemocratic authority and contests the legitimacy of state power in the domains where it is most profoundly unaccountable, simultaneously challenging gendered, racialized, nationalist, and economic oppression. For instance, quantitatively inclined readers could contribute by systematically documenting and quantifying reproductive injustices in immigration detention, including miscarriage rates. A more radical approach might involve liberating detainees from immigration prisons or creating fugitive spaces of sanctuary. Second, mobilizing opposition against immigrant detainees’ reproductive abuse and neglect is strategic as well as just because it stages a collision between pro-life and anti-immigrant logics of citizenship, potentially sowing dissent on the radical right. Moreover, successfully fighting to end incarceration and deportation of pregnant women―or anyone―for civil immigration offenses would require feminists to build intersectional coalitions powerful enough to potentially defeat the radical right and abolish the conditions that produce its transnational rise. Finally, building on previous scholarship (e.g., Anzaldua Reference Anzaldua2007; Espejo Reference Espejo2011; Gatens Reference Gatens1996) and drawing new insights from activist practice, intersectional feminists, and other critical theorists should continue creating new images of the body politic, developing alternative geopolitical metaphors, and envisioning futures that realize reproductive justice and bodily autonomy. Such alternatives might accept cross-border entanglements and permeable borders as permanent conditions, replace fears of otherness with affirmations of difference, and embrace the ambiguous borderlands of belonging as spaces for continually renegotiating democratic boundaries.
ACKNOWLEDGMENTS
I am grateful for the support of the Citizen and Scholars Foundation’s Charlotte Newcombe Doctoral Dissertation Fellowship and for the guidance of my dissertation committee: Lawrie Balfour, Denise Walsh, Stephen K. White, Murad Idris, and Allison Pugh. Thanks as well to Jacquelyn Delin McDonald and Dustin Greenwalt for their comments and proofreading.
CONFLICT OF INTEREST
The author declares no ethical issues or conflicts of interest in this research.
ETHICAL STANDARDS
The author affirms this research did not involve human subjects.
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