The Trump administration’s new “birth tourism” policy, explained

A woman in a purple shirt holds her hands on her pregnant belly. Honduran migrant Raquel Padilla, 27, shows her pregnant belly at the “FM4 Paso Libre” shelter, an organization that offers housing, food, and legal advice to migrants during their stay in Guadalajara, Mexico, on August 10, 2018. | Ulisis Ruiz/AFP via Getty Images

The new rule could hurt women around the world, advocates say.

Midori Nishida says she was forced to take a pregnancy test before boarding a plane in November to Saipan, the US territory where she lived for 18 years. The reason, she wrote in an op-ed, was Saipan’s reputation for so-called “birth tourism,” in which parents travel to US soil to have a baby who’s a citizen.

The airline, Hong Kong Express Airways Limited, apologized earlier this month and suspended its pregnancy-testing practice, according to the New York Times. But now the Trump administration has issued a new rule aimed at stopping birth tourism, and some fear that the kind of targeting Nishida experienced could become more common.

The rule officially takes effect on Friday, but a draft was first reported by BuzzFeed News on Tuesday. And on Wednesday, Vox obtained diplomatic cables indicating that the State Department was already directing embassies to deny visas to people they suspect are coming to the US to give birth.

Under the new policy, consular officers are being directed to assume that if someone is seeking a tourist visa and is likely to give birth in the US, they are “seeking a visa for the primary purpose of obtaining US citizenship for the child.” Pregnant people applying for visas may have to submit extra documentation showing this isn’t the case.

White House press secretary Stephanie Grisham said in a statement Thursday that the policy is “necessary to enhance public safety, national security, and the integrity of our immigration system,” asserting that the birth tourism industry strains hospital resources and invites criminal activity.

“Closing this glaring immigration loophole will combat these endemic abuses and ultimately protect the United States from the national security risks created by this practice,” she said. “It will also defend American taxpayers from having their hard-earned dollars siphoned away to finance the direct and downstream costs associated with birth tourism.”

But reproductive health and human rights advocates say the new policy toward pregnant visitors will amount to discrimination against women.

“Young women already have a difficult time securing visas for travel,” Shannon Kowalski, director of advocacy and policy at the International Women’s Health Coalition, told Vox. “These guidelines will make it harder for women, particularly young women, to travel to the United States for any purpose.”

The policy is supposed to have an exception for pregnant people who travel to the US to give birth because of concerns about infant and maternal mortality in their home countries. But in practice, some fear that exception won’t be honored, and that pregnant people in serious need of medical care will be turned away, possibly to die.

Overall, reproductive health advocates say the new policy is part of a larger pattern by the Trump administration of compromising the reproductive rights and health of immigrants and people seeking to come to the US, many of them people of color. With this proposal, the Trump administration is “extending an agenda of white supremacy to US-bound travelers,” Kowalski said.

A woman was given a pregnancy test before boarding a plane to Saipan

In a November op-ed for the Saipan Tribune, Nishida said she returns to Saipan frequently for visits, but “none of my previous experience would have prepared me for what happened during my most recent flight.”

At the check-in counter for her November 9 flight, she wrote, she was told she had been randomly selected for a “fit to fly” assessment. But she was then handed a form reading, “In our routine initial safety assessment by our ground handling staff, we have reasonable suspicion on the health condition of the passenger above. The passenger has been observed to have a body size/shape resembling to a pregnant lady.”

A woman saying she was a medical professional then escorted her to a bathroom and directed her to take a pregnancy test, Nishida wrote. When it was negative, she was allowed to board.

The practice of testing passengers “is discriminatory in that it targets passengers based on their outward appearance by pinpointing those that ‘appear’ pregnant,” she wrote. “After this incident, I can only think of how I will be suspected, investigated, and humiliated before I can return to a place I consider home.”

Nishida’s story got more attention in US media in January, and Hong Kong Express ultimately issued an apology for pregnancy-testing travelers.

“Under our new management, we recognize the significant concerns this practice has caused,” the airline said in a statement to the Times last week. “We have immediately suspended the practice while we review it. We’d like to apologize for the distress caused.”

It wasn’t immediately clear if authorities in the US had asked airlines to give pregnancy tests to passengers, or otherwise pressured travel carriers to keep pregnant people out of the US. The Homeland Security Department did not answer Vox’s question about the issue.

But it’s clear that stopping non-US-born pregnant people from giving birth on American soil is a priority for the Trump administration.

How the policy takes aim at pregnant people

The president and other administration officials have been open in the past about their desire to end birthright citizenship, under which anyone born in the US becomes a citizen, as Hamed Aleaziz notes at BuzzFeed. And now, the new rule will create additional barriers for pregnant people applying for B visas, offered to short-term visitors, including tourists, business travelers, and people seeking urgent medical care.

The new rule will not apply equally around the globe. Citizens of 39 mostly Western countries — most of Europe, as well as Australia, New Zealand, Chile, Brunei, Japan, Singapore, and South Korea — generally don’t need a B visa to travel to the US for 90 days or less, and won’t be affected.

B visas are the biggest visa category that the State Department processes annually, numberingabout 6 million. The government does not track how many pregnant travelers come to the US on B visas, but the new rule says that US embassies and consulates have reported trends showing higher levels of birth tourism. Separate 2017 data from the Centers for Disease Control and Prevention suggests the rule would likely affect roughly 10,000 people annually.

Consular officers can already deny B visas to people they believe are birth tourists under existing law. It all depends on the “primary purpose” of an applicant’s visit to the US. If the primary purpose of their visit is business, tourism, or to receive urgent medical treatment, that’s legitimate; giving birth so that their child can obtain US citizenship is not.

In other words, under the current system, a consular officer can’t just deny a visa to anyone who looks close to their due date, nor are they allowed to ask a visa applicant whether they are pregnant or to require pregnancy tests or other evidence that they are not pregnant. An applicant would have to affirmatively state that they’re coming to the US for the primary purpose of birth tourism, but it’s unlikely that they would be so transparent.

Pregnant people can come to the US on a B visa to seek medical treatment related to their pregnancy — and that remains true under the new rule. But the burden is on them to prove that the treatment is necessary, that they can pay for the treatment, and that it’s the primary purpose of their visit.

A former consular officer told Vox that they had to deny visas to women who wanted to give birth in the US because of high mortality rates for mothers and children in their home countries but couldn’t prove that they could pay the full cost of their treatment.

“They would break down in tears,” the former officer said. “Of course, the consular officer has no reasoning in how much this costs or how to determine what is reasonable. A lot of officers think because they or their sister or some friend’s insurance paid $19,000, that is the real cost.”

The State Department’s new rule and guidance would subject pregnant people to even more scrutiny when applying for a B visa. If a consular officer has “reason to believe the applicant will give birth during their stay in the United States, [they] are required to presume that giving birth for the purpose of obtaining U.S. citizenship is the applicant’s primary purpose of travel,” the new guidance reads.

But the administration hasn’t clarified how a consular officer would have any “reason to believe” that an applicant will imminently give birth. Since they can’t ask outright, they might infer based on looks alone, which has no basis in immigration law, said Ur Jaddou, former chief counsel at US Citizenship and Immigration Services and the director of the watchdog group DHS Watch.

“I don’t even understand how they’re going to apply this in a way that is fair, that isn’t regulating women’s bodies,” she said.

More broadly, the policy could impose new hurdles on anyone of childbearing age. Since some B visas are valid for up to 10 years, a consular officer could theoretically weigh whether someone is likely to give birth over the course of the next decade. A 30-year-old, married applicant could therefore suddenly face more scrutiny, without any means of recourse or appeal, Jaddou said.

There are some exceptions to the rule — for example, travelers could show that they are not able to access adequate prenatal care in their home country. But it seems they would still have to prove that they could pay for it in the US, said Philip Wolgin, the managing director of immigration at the Center for American Progress, a liberal think tank.

The Trump administration rationalizes the new rule by claiming that foreign governments or groups could “recruit or groom” individuals who were granted American citizenship at birth as a result of birth tourism to act against the US. It’s unclear whether there is any evidence that foreign entities are engaging in such long-game schemes.

The administration also asserts that birth tourism often draws criminal actors seeking to profit from the industry.

But the policy comes at great cost to people who are or could become pregnant. Doug Rand, a former Obama administration official who worked on immigration issues, said it’s a policy “designed to cast basically all women of childbearing age as presumptive lawbreakers, which is typical of this administration.”

Imposing these kinds of disproportionate burdens runs afoul of the US Constitution, which protects against sex discrimination. But since these consular interviews involve noncitizens and are taking place on foreign soil, the US Constitution doesn’t protect them.

There could be legal challenges to the policy, however, based on US immigration law.

“There is no statutory basis to deny entry to a woman because of the state of her reproductive cycle,” Jaddou said.

Trump’s pattern of targeting immigrants and reproductive rights

Advocates are also concerned that the new policy will lead to racial profiling of Asian women attempting to visit the US. Much media coverage of “birth tourism” has focused on people from China who travel to US soil to give birth, with the Wall Street Journal calling Saipan the “latest hot spot” for the practice in 2017.

According to Nishida, Saipan’s reputation led airline workers to presume she was a birth tourist simply because she appeared pregnant to them. Under the new policy, such presumption could become more widespread.

“The Trump administration will go to any lengths to demean immigrant women,” Sung Yeon Choimorrow, executive director of the National Asian Pacific American Women’s Forum, told Vox. “Millions of Asian people come to the US to visit their families, and targeting them because of their race or country of origin is discriminatory and wrong.”

“As an immigrant woman who has experienced harassment at an airport when I was pregnant,” Choimorrow added, Nishida’s experience and the Trump administration’s rule “are disturbing, invasive, and reveal the coercive and invasive methods that our government will use to enforce the new rule.”

The Trump administration has already been criticized for denying women visas to visit the US. More than 40 women were denied visas to attend the United Nations Commission on the Status of Women conference in New York last year, according to the International Service for Human Rights. Women from African and Middle Eastern countries affected by the Trump administration’s travel ban appeared to be disproportionately affected, and a petition protesting the denials said the women had been asked for documents like marriage certificates and even proof that they have children, BuzzFeed News reported at the time.

It’s not clear whether these women faced concerns over “birth tourism” or questions about whether they were pregnant. However, according to Kowalski, the new State Department rule would only exacerbate the difficulties women face coming to the US. “The guidelines are discriminatory on their face,” she said.

Advocates say the new policy fits into a larger pattern by the Trump administration of infringing on the reproductive rights of people who come to the United States. Under previous Office of Refugee Resettlement Director E. Scott Lloyd, the administration pursued a policy of attempting to block unaccompanied immigrant minors in the government’s care from getting abortions, leading to multiple minors suing for the right to terminate their pregnancies.

The Trump administration has also been accused of failing to provide adequate prenatal care to pregnant people in immigration detention. One asylum seeker, Rubia Morales, says in a lawsuit filed earlier this year that her treatment in ICE custody led her to have a miscarriage, KPBS reports. She says a doctor at the facility told her that her bleeding was “normal,” and that she could deal with it by buying sanitary pads for $1 each.

The administration has also tried to make it harder for survivors of domestic abuse to get asylum in the United States, and has changed rules around visas for victims of crimes in ways that advocates say could harm survivors.

“This administration has a track record of detaining pregnant people and has made it impossible for victims of domestic violence and sexual assault to seek asylum,” Choimorrow said. “There is no justification for the harm they have done to immigrant women or for their xenophobic agenda.”

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