This is the second article in a Rewire.News series on the treatment of pregnant migrants under the Trump administration’s “zero-tolerance” policy. Read the first article in the series here.
For some pregnant women migrating to the United States to seek asylum, there is no refuge to be found. If federal immigration authorities apprehend them in the borderlands, they may be prosecuted and detained. In custody, they receive negligent medical care that endangers their lives, advocates say.
This is the Trump administration’s “zero-tolerance” policy at work. As Rewire.News reported in part one of this series, the policy is much broader than family separation, and it continues to this day. The U.S. Marshals Service (USMS) is the oft-overlooked federal law enforcement agency helping to carry out President Trump’s zero-tolerance policy in Texas. But what happens to pregnant migrants in U.S. Marshals Service custody, and what conditions do they face? What we found raised a host of questions about the safety of pregnant people seeking asylum in the United States.
Standards of Care
A bulk of Dr. Shelly’s patients in USMS custody are women in their early 20s. They have “no underlying health issues,” said the OB-GYN, who did not want to share her real name or the name of her Texas hospital out of fear of repercussions.
She told Rewire.News that her hospital contracts with facilities that detain prisoners, including migrants, but she is unaware of the specific arrangement her hospital has with federal agencies. It appears as if detained women from nearby facilities are sent to Dr. Shelly’s hospital if they are pregnant or experiencing gynecological issues.
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USMS’ prisoner health-care standards say that women in custody will only receive “medically necessary reproductive health care,” which includes a pregnancy test, prenatal vitamins, one sonogram, and “routine” prenatal examinations. But advocates who spoke to Rewire.News say USMS doesn’t always bring women in for prenatal care. USMS also pays for hospitalization for labor and delivery, though the federal law enforcement agency can contest pregnancy services at any time.
Migrant women in federal custody are not the main patient population of Dr. Shelly’s hospital, but she said there has been an uptick in this patient population since the zero-tolerance policy went into effect. This has meant she and her colleagues have seen an increase in detained patients experiencing heavy bleeding, irregular bleeding, and pelvic pain.
Some women referred to her hospital by USMS have stopped menstruating since being detained. These women are rarely pregnant, she said, but rather their menstruation cycle has been affected by the compounded stress of criminalization and previous traumatic experiences.
A lot of the immigrant women who end up in her care exhibit symptoms of anxiety and depression, the doctor said. Many of her patients are women from Central America, women who have been physically abused or sexually assaulted, sometimes while migrating but usually in their countries of origin.
Dr. Shelly said sometimes there are “really sad visits,” appointments where women disclose that their pregnancy was a result of rape or that they were sexually assaulted while pregnant and migrating to the United States. The doctor discusses the option of abortion with her patients and recommends follow-up appointments. She also asks USMS to allow the patient to access counseling. But because she rarely sees patients more than a couple of times, Dr. Shelly said she cannot confirm whether her patients ever access mental health care.
According to USMS’ prisoner health care standards, “in-depth psychological or psychiatric testing, counseling, or psychotherapy” are not authorized for coverage unless ordered by a court.
Beyond access to mental health care services, continuity of care in general is also an issue, according to Dr. Shelly. It’s doubtful Dr. Shelly will remain the care provider of a migrant patient from the beginning of their second trimester until they give birth. This happens only when a person is apprehended early in their pregnancy, and in federal custody for the entirety of their pregnancy, Dr. Shelly said. Usually, she sees her patients later in their pregnancies and between one and three times “at the most.”
People in their third trimester of pregnancy typically see their health-care provider every two or four weeks, depending on their health and pregnancy history, according to the Mayo Clinic. Beginning at 36 weeks, pregnant people should see their doctors weekly until they give birth.
USMS operates as part of the U.S. Department of Justice and cannot practice the same kind of discretion utilized by federal immigration agencies. For example, it cannot choose to release pregnant migrants facing charges under zero-tolerance, even women with high-risk pregnancies.
Dr. Shelly said several issues constitute high-risk, including patients who require fetal medicine specialists, patients with uncontrolled diabetes or who are on medication for Type I or II diabetes, those with chronic hypertension, people on multiple medications, and those who have had two or more cesarean sections.
“Mostly ‘high-risk’ means women with an underlying chronic disease on top of pregnancy,” Dr. Shelley said. “This doesn’t necessarily mean they’re out of our care completely, it just means that they get a referral to a specialist in the beginning, they come back to us, and then they go back to [the specialist] at the end to schedule their c-section.”
Before pregnant migrants in USMS custody make their way to Dr. Shelly’s hospital, they usually had a previous hospital visit while in Customs and Border Protection (CBP) or Border Patrol custody. These federal immigration agencies do not have the medical infrastructure to provide care to pregnant people, so they rely on a network of local hospital emergency rooms as the first point of medical care for recently apprehended migrants. This is especially true if migrants appear to be experiencing issues related to their pregnancies.
“I think if they complain about any sort of pain, nausea, dehydration, anything like that, they are usually taken to the emergency room to be evaluated before they make it to me,” Dr. Shelly said.
It seems that USMS is particularly restrictive when it comes to care coverage, especially for women who have high-risk pregnancies. According to a 2010 policy directive, testing, more than one ultrasound, and stress tests are considered by USMS to be “non-routine prenatal care.” (The agency is in the process of updating its policy directive, according to a spokesperson.)
Often pregnant migrants “have no idea” what happened at their emergency room visit, Dr. Shelly explained. Meaning they left the hospital without knowing or understanding what their exams and ultrasounds revealed. The OB-GYN said it’s likely a language barrier. Most of the people working in health care in the Western District of Texas where she is located speak Spanish, but this does not help the increasing number of Central American migrants who speak indigenous languages. It could also be a matter of not having time or capacity. Local emergency rooms are overwhelmed handling patients that federal immigration agencies apprehend but cannot provide care for.
“I’m not exactly sure what’s happening. It could be that no one is taking the time to translate for them, or it’s a stress thing and they’re not remembering what they were told,” Dr. Shelly said. “It could also be that ‘prenatal care’ is just treated as a regular health visit where they say, ‘Your vitals are fine. Your baby is fine.’ But when they see me, they don’t know basic information, like how far along they are, their due date, or the gender [of the fetus].”
For patients receiving prenatal care for the first time in USMS custody, Dr. Shelly’s hospital provides women with an ultrasound.
“If a woman is further along and I know this is her first time seeing a doctor, I’ll let her listen to the heartbeat longer than I usually would,” the OB-GYN said. The process is usually emotional. “I would say that more than half of [the women] cry during their first obstetrics appointment, and it’s related to some sort of trauma that’s happened.”
USMS doesn’t appear to be doing anything to address migrants’ trauma, according to advocates. If anything, the federal law enforcement agency seems to exacerbate it.
Taylor Levy, legal coordinator of Annunciation House, an El Paso, Texas, nonprofit that provides shelter and other services to newly arrived immigrants, told Rewire.News the stories she hears from new mothers recently released from USMS custody are “horrific.” Levy has encountered several women at Annunciation House who gave birth in USMS custody. At some point while receiving care, almost all of them were shackled, Levy said.
A spokesperson for the U.S. Marshals told Rewire.News their policy for the use of shackles on pregnant people “is in alignment” with the First Step Act of 2018.
“Restraints should not be used on pregnant prisoners beginning on the date the pregnancy is confirmed by a health-care professional and ending at the conclusion of the postpartum recovery, [which is] 12 weeks following delivery,” the spokesperson said. “Exceptions to these procedures are the pregnant prisoner poses an immediate and credible flight risk; the pregnant prisoner poses a serious threat of harm to themselves or others, or a health-care professional determines that the use of restraints is appropriate for the medical safety of the prisoner. When exceptions are determined, pregnant prisoners may only be handcuffed in the front.”
There is conflicting information in a 2011 USMS policy directive for the use of restraints.
“Restraints should not be used when compelling medical reasons dictate, including when a pregnant prisoner is in labor, is delivering her baby, or is in immediate post-delivery recuperation,” according to the directive. However, the same document states, “If a pregnant prisoner is restrained, the restraints used must be the least restrictive necessary to ensure safety and security. Any restraints used must not physically constrict the direct area of the pregnancy. Any deviations from the utilization of full standard restraints on a pregnant prisoner (waist chain, leg irons, and handcuffs) must first be approved by a USMS Management Official.”
Exceptions, or the Rule?
Dr. Shelly began to see patients in USMS custody shackled in March 2018, within a month of the Trump administration publicly confirming its zero-tolerance policy. She has seen pregnant women in Marshals custody in the Western District of Texas with their hands or feet shackled at the time they are seeking care or attending an appointment with the OB-GYN. Sometimes it’s a combination of the two, and sometimes they’re also shackled around their bellies.
Dr. Shelly said that in April 2018, USMS tried to shackle a patient at her hospital who was in labor.
“I said, ‘Fuck no,’ and they unshackled her,” Dr. Shelly said. “But now they’re shackling all of my detained patients on the postpartum floor.”
Many Central American women seeking asylum are fleeing gang violence, domestic violence, and other forms of gender-based violence. Once shackled on the postpartum floor, an armed Marshal is assigned to their hospital room for the entirety of their stay, Levy said. According to USMS’ own standards, this means that for the 48 hours following vaginal delivery or the 72 hours following a c-section, asylum seekers are chained to a bed with an unknown stranger watching their every movement.
According to Dr. Shelly, Marshals will actually argue with physicians who try to hold them accountable for violating their own policy and subjecting women to harm. When she tries to address the issue with USMS, she has been told it’s “for everyone’s safety.”
“I’ve told [USMS] these patients aren’t a safety risk for us; these patients are detained because of immigration issues, [and] our concern is that if they’re shackled and something happens, we can’t treat them,” the doctor said. “And this concern is not just coming from me. Our residents have been calling [to complain to USMS], our OB-GYN physicians are upset and have been calling, and we just haven’t been able to get the issue resolved.”
The doctor could not share specifics without obtaining her patient’s permission, but she told Rewire.News that as recently as March, a woman in USMS custody experienced birth complications exacerbated by a delay in care “the patient asked for over and over again.”
“That she was shackled [after giving birth with complications] was shocking,” the doctor said. “I went all the way to the hospital lawyer to get her unshackled.”
Levy confirmed Dr. Shelly’s story. The woman in question was eventually released to Annunciation House, but her ordeal began with Border Patrol.
According to Levy, the federal immigration agency apprehended the asylum seeker, who was seven months pregnant. She was in her 20s and knew she had a high-risk pregnancy. Her first child was born prematurely and she informed Border Patrol she had preeclampsia, a life-threatening pregnancy complication characterized by high blood pressure. She took medication for the condition, but it was confiscated by Border Patrol. The agency decided to prosecute her under zero-tolerance.
“She knew she needed her meds urgently and for 24 hours, she was in Border Patrol custody begging for medical help,” Levy said.
But Border Patrol didn’t provide medical help, according to Levy. Instead, the agency transferred her to USMS custody. Levy told Rewire.News that USMS quickly realized “how bad of shape” the woman was in, so they rushed her to the hospital. By the time she arrived at the hospital, she was at risk of having seizures. Her baby was born prematurely and after giving birth, the woman was shackled to the bed.
“Hospital staff had to fight the Marshals to get the shackles taken off,” Levy said. “There is really no reason to shackle them. They are in labor or they are in distress; they want to be at the hospital so that they give birth safely. This is a horrific way to treat anyone, but especially asylum seekers with nonviolent misdemeanors.”
Shackling: A Human Rights Violation
According to the American College of Obstetricians and Gynecologists, since 2008, federal prisons have purported to limit the use of restraints on pregnant and postpartum incarcerated women. But even with written policies in place, shackling is still a common practice. This is especially true in the borderlands of Texas, where Levy said pregnant migrants are “almost always” shackled when receiving care.
Twenty-two states have laws that ban the practice of restraining incarcerated pregnant women during childbirth, but this has no bearing on whether pregnant people are shackled while receiving prenatal and postpartum care. According to Ash Williams, who helped organize an anti-shackling campaign in North Carolina, these bans don’t always prevent women from being shackled during childbirth. Pregnant people in federal facilities, including migrants in USMS custody, also have little recourse against shackling.
There has recently been a concerted effort to end the shackling of incarcerated pregnant people, and this movement has largely been led by Black women in the reproductive justice movement. In Tennessee, the organization Healthy and Free Tennessee supported a bill sponsored by Memphis Democrats, Sen. Raumesh Akbari and House Minority Leader Karen Camper, that would stop the practice of shackling incarcerated pregnant women. The bill, which failed in the House Corrections Subcommittee, would have prohibited the use of restraints during active labor, while in transport to a medical facility, and during active delivery and postpartum.
Because of the reproductive justice organization SisterSong’s efforts in North Carolina, the state’s director of prisons signed new policies in March 2018 to clarify that pregnant people should not be restrained while delivering a child. Ash Williams, the North Carolina organizer for SisterSong, told Rewire.News these policies don’t go far enough.
“I know this was framed as a win in the media, but for me personally, this didn’t feel like a win,” Williams said. “I think maybe people have moved on already, but there is still a lot of work to do. Shackling is still happening in North Carolina and nationwide.”
Dr. Shelly said she always notes in the patient’s chart when they are shackled and makes a point of telling the Marshal who is present that she is doing so. Sometimes that’s enough to “scare them” into unshackling the patient, she said. But Dr. Shelly isn’t always at the hospital. When the doctor does see shackled patients, she will say something to USMS, which sometimes unshackles the women.
“But then when I hear from the residents later in the day, they’ll say [the patients] were shackled again. Unfortunately, I can’t be there all day to yell at [USMS],” Dr. Shelley said.
Progress on Paper ≠ Progress on the Ground
Physicians at Dr. Shelly’s hospital have tried a range of tactics to get USMS to unshackle pregnant women, the doctor said. For example, they tell the federal law enforcement agency that pregnant patients are at a greater risk of developing a blood clot if their movement is restricted, or they explain that detained pregnant patients have an increased risk of a postpartum hemorrhage that can’t be treated effectively if they’re shackled.
“They’re also at fall risk,” Dr. Shelly said. She explained that sometime in October 2018, a woman who had just had a c-section almost fell because she was shackled. “Other times, when they do unshackle them, they keep the things attached to their leg, but they don’t shackle them to the bed. It’s just horrendous.”
Dr. Carolyn Sufrin, a medical anthropologist and an OB-GYN at the Johns Hopkins School of Medicine who was a physician at a San Francisco jail for six years, reiterated that shackles endanger a woman’s life.
“There’s a reason every major health care organization denies this practice,” Sufrin said.
If an emergency intervention is required during childbirth, Sufrin said, shackles hinder doctors’ ability to intervene if there is a drop in fetal heart rate, for example, or the woman has excessive bleeding during labor or birth.
“If the woman has to be transferred to an operating room for an emergency c-section, we don’t have time to negotiate with the guard to find the key and unlock the shackles,” Sufrin said.
“It’s just common sense not to do this, and it really shows the punitive and gendered nature of our system.”
Indeed, the facilities that hold women were designed with men in mind as the default prisoners. One of the reasons Sufrin wanted to collect information about the pregnancies of people behind bars is that they have specific medical and mental health needs, as do the children they give birth to. Without any data of how many women are pregnant and give birth behind bars each year, there can be little understanding of their specific health care needs.
Little is known about USMS’ population of pregnant people or the care they receive. The federal law enforcement agency would not release any information related to these demographics to Rewire.News. Rewire.News filed a Freedom of Information Act (FOIA) request with the agency and will continue reporting on this issue as more information is available.