Letter to Secretary Pompeo: Rescind Pregnancy and Racial Profiling Rule Now

February 4, 2020

Dear Secretary Pompeo:

We, the undersigned 157 organizations, demand that you rescind the final regulation published Friday, January 24, 2020, in the Federal Register, Visas: Temporary Visas for Business or Pleasure, RIN: 1400-AE96. This regulation is an attack against pregnant people living in countries without access to the Visa Waiver Program and immigrant women, particularly those of color, and with low incomes. The Department of State (“Department”) justifies these changes to temporary visas in the name of national security, when in reality they are thinly veiled racist and xenophobic attacks on the health, dignity, and well-being of pregnant people in other, largely non-European countries and immigrant women of color and their families. The consequences of this regulation will not only restrict the freedom of movement of pregnant people globally, but also stoke fear and confusion in immigrant communities who are already subject to the brutal whims of an administration that embraces blatantly discriminatory policies against immigrants and people of color.

This country has a long history of undermining and controlling the agency and bodily autonomy of women of color. During slavery, Black women were separated from their families, subject to physical and sexual violence, even when pregnant, and were subjugated to forced pregnancy. This country’s obsession with controlling the reproductive choices of women of color soon extended to women of color who immigrated to the United States. From the 1920s to the 1970s, government institutions subjected Mexican-American women, Japanese American women, and countless other individuals who held marginalized identities to sterilization without consent. In our current day, Central American women seeking refuge in this country are detained, those who are pregnant are shackled and left to endure pregnancy without adequate medical treatment, transgender women are sexually harassed and dehumanized, and survivors of violence seeking safety in the U.S. are denied asylum.

This rule resembles other historical efforts to deny the mobility and autonomy of Asian women seeking to enter the United States. The Page Act of 1875, one of the first immigration laws of this country, explicitly aimed to limit the entry of women whom border officials deemed “immoral” and likely to engage in prostitution. In reality, it racially profiled Asian women seeking entry to the United States in an attempt to curtail the migration and growth of Asian families in the U.S. and undermined the dignity and autonomy of Asian women. At the border, Asian women were subject to severe interrogations about their true motives or potential “immoral purposes” for going to the U.S. and the means through which they would support themselves–questions with striking resemblance to those that would be asked of pregnant women seeking tourist visas under this final rule. Just last week, a woman boarding a Hong Kong flight to Saipan was forced to take a pregnancy test before boarding the plane, a policy which the passenger states was explained to her as being requested by the Department of Homeland Security despite the lack of enumeration of such a policy on their website. No person should be subject to such demeaning levels of scrutiny and coercion solely based on how they look and their perceived reasons for simply traveling to another country.  

Similar to other regulations that this administration has promulgated, such as the expansion of public charge, this rule seeks to limit entry to this country to those who are white and wealthy. In giving consular officers the power to deny B nonimmigrant visas to those they “have reason to believe intends to travel for [the purpose of obtaining citizenship for their child],” this rule opens the door to racial and gender profiling as well as body shaming. The broad discretion given to consular offices may easily subject all women of reproductive age and pregnant persons to invasive and coercive questioning, procedures, and harassment. The burden is on the individual seeking the visa to rebut the consular officer’s presumption that the individual is pregnant, at which point the consular officer still has the power to deny a visa. In addition, the regulation would require individuals seeking these visas for the purpose of medical treatment to prove their ability to obtain medical needs and the finances to do so. Otherwise, they will be denied. 

According to Foreign Affairs Manual guidance, pregnant applicants can receive a visa if they meet a high standard of evidence proving a medically complicated pregnancy and that appropriate medical treatment cannot be obtained where they live. In order to meet this higher burden, pregnant people may be subject to invasive and medically complicated questions by consular officers with no medical training, much less specific knowledge in obstetrics care. This is not the first time that we have seen government officials in this administration without any medical experience being required to ask intrusive questions about a person’s reproductive health.  Just last year, Scott Lloyd, the former director of the Office of Refugee Resettlement, admitted in public testimony to tracking and monitoring the menstrual cycles and pregnancies of young women in his custody in order to coerce them out of having abortions.  

Despite policy guidance that the Department issued in the Foreign Affairs Manual that attempts to give an impression of limited consular discretion, vague terms within this guidance still grant consular offices broad powers to interpret circumstances that may trigger enough presumption to deny B nonimmigrant visas. Additionally, decisions by consular officers are non-reviewable, preventing judges from reviewing such decisions. This not only could prevent a pregnant person from receiving life-saving medical treatment, but also sets a dangerous precedent for unchecked racial and gender profiling. 

Under the current system for obtaining B nonimmigrant visas, consular offices can already deny these visas to individuals who demonstrate that their primary purpose to visit the United States is to give birth. We find it disturbing that this rule would subject pregnant people and women of reproductive age from Africa, Central America, and the Middle East and most of South American and Asia to a level of scrutiny not imposed on men or immigrants visiting from generally wealthier and European countries. This regulation is unnecessary and only serves the administration’s misogynistic, xenophobic, and racist policy agenda. 

This rule will have numerous consequences on the ability of immigrant women to travel freely and to make the best decisions for themselves and their families. It will have a chilling effect on those choosing to come to the United States who simply want to visit their families. Already, immigrants and their communities in this country are subject to the fear and confusion created by this administration’s numerous and cruel policy proposals. Due to fears of deportation, raids, and family separation, immigrants are foregoing needed health care, including reproductive health care. In one survey, nearly twenty-five percent of Latina/o respondents said they had a close family member or friend put off seeking health care due to fear of immigration issues and nearly twenty percent expressed the same fears seeking reproductive health care. In the same survey, thirty-seven percent of respondents stated that the political environment around immigration and race is having a negative impact on their health and wellbeing. One study found that Latinas experienced a significant increase in preterm births following the 2016 election. Preterm births are linked to a wide range of negative health consequences. This rule, in combination with other xenophobic policies, will certainly continue to cause stress and harm the health of immigrant women and their families in this country.      

We demand that you rescind this regulation immediately. An administration that claims to value life and family would seek to affirm the autonomy and dignity of pregnant people instead of subjecting them to baseless scrutiny and profiling. An administration that values life and family must stop the separation of families at the border, refrain from interfering in the reproductive choices of pregnant unaccompanied minors, cease the denial of health care to those in detention, and withdraw proposals of public charge expansion that force immigrant families to make impossible choices about their health, immigration status, and ability to raise a family. Pregnancy is not, and never has been, a threat to national security. This rule is a violation of basic human rights and dignity for people of color and must be rescinded immediately.