This article is the first article featured in our Fall 2020 journal. For the complete journal, please see the “Journal Archive” tab above.
by Sarah Han
While legal, structural violence toward immigrant populations pervades throughout U.S. history, the Trump Administration has caused unprecedented levels of harm to immigrants through its racist public rhetoric and policy actions over the past four years. Now more than ever, it is vital to examine how the rights of immigrant populations can be protected and their health can be promoted. Access to prenatal care is a vital protective factor that has compounding impacts on health for both parents and children. Using a Life Course Theory perspective, this article outlines how barring both undocumented and legally present immigrant mothers and parents from comprehensive prenatal care is an egregious form of legal violence. It also explores potential federal policy options for expanding access to comprehensive prenatal care to both undocumented and legally present immigrant mothers and parents. In particular, the Health Equity and Access under the Law (HEAL) Act for Immigrant Women and Families presents a unique and innovative policy strategy by redefining immigration law directly, rather than reforming healthcare.
Legal violence and life course theory
Legal violence is defined as policies that legitimize and give rise to practices that harm both legal and undocumented immigrants “physically, economically, psychologically, or emotionally” and normalize these injustices under the thin guise of protecting the public. Dr. Cecilia Menjívar and Dr. Leisy Abrego coined the term in 2011 to describe the way that “the current system separates families, blocks access to dire social services, and harms documented, undocumented, and liminally legal Latina mothers alike,” based on ethnographic studies they conducted between 1998 and 2010 with Guatemalan, Mexican, and Salvadoran immigrant mothers and their children. While legal violence against the immigrant community has pervaded throughout U.S. history, over the past four years, the Trump Administration has caused unprecedented levels of harm to immigrant communities through its racist public rhetoric and policy actions.
In September 2017, President Trump announced the phase-out of the Deferred Action for Childhood Arrivals (DACA) program, making undocumented youth vulnerable to deportation and barring them from obtaining work authorizations.[3–5] In April 2018, he enacted a “zero tolerance policy” creating a crisis of separated and detained migrant families and children.[6,7] In August 2019, large-scale raids conducted by Immigration and Customs Enforcement in several states upended entire communities. In February of 2020, the Trump administration implemented a rule change that has forced people to choose between accessing vital services – such as Section 8 housing assistance or SNAP, the Supplemental Nutrition Assistance Program – and renewing their application for permanent residence or visas. This amendment to the “public charge” policy has caused a chilling effect, as immigrants forego services for which they are still eligible. Most recently, the Trump administration has conspicuously left out any support for immigrants and their families in navigating the COVID-19 pandemic in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, while qualifying citizens each received a $1,200 advance in tax credits, despite the facts that immigrant communities contribute tax dollars and make up much of the essential domestic, agricultural, and food workforce and are therefore particularly vulnerable to the disease. Further, health advocates are concerned that undocumented immigrants would be deterred from seeking healthcare because of the chilling effect caused by Trump’s restrictive “public charge” policy and a fear of being reported to ICE.[13,14] This not only risks their health and their lives, but also obstructs opportunities to contain the spread of COVID-19.
Each new policy attack by the Trump administration creates a new public health crisis as this legal violence directly impacts immigrant health with compounding effects over the life course. Life Course Theory posits that health in adulthood is determined by health in pregnancy, early childhood, and adolescence and emphasizes the importance of how social, cultural, and economic factors, in addition to biological and genetic characteristics, can threaten or promote one’s health.[16,17] Another central tenet of Life Course Theory asserts that underrepresented minority populations, like low-income immigrant women and children, are particularly susceptible to these risk and protective factors.[16,17] Life Course Theory examines the way that these risk and protective factors have greater impacts during specific critical periods in life — such as preconception, the prenatal and postpartum periods, childhood, and adolescence — than in others.[16,17] Simply put, the health of a pregnant woman or a newborn is more vulnerable and more consequential than that of an adult in their 30s, 40s, or 50s. Life Course Theory also prompts discussion of intergenerational effects of risk and protective factors: the way in which access to wealth, education, social networks, and other resources can contribute to better health in subsequent generations within a family.[16,17]
By identifying key risk and protective factors, critical periods of life, and highly vulnerable communities, Life Course Theory helps us understand how to more effectively and efficiently disrupt inequities in the health system. For low-income immigrants living in the U.S., policies that restrict access to essential health and social services, fair employment, education, and legal recourse make immigrants “vulnerable to different forms of abuse.” These are structural risk factors that define the social, economic, cultural, and political landscape they must navigate. In other words, this legal violence perpetuates health inequities by directly undermining the social determinants of health for an entire class of people, with women and children bearing the greatest burden of risk and harm.
The case for prenatal care
Through this public health lens, we can see that one of the most egregious and harmful forms of legal violence actually precedes the Trump Administration by decades: the denial of access to prenatal care for immigrants. Neither legally present immigrants in their first five years of residing in the U.S. nor undocumented immigrants can access federally sponsored, non-emergency healthcare. While the 2014 expansion of the Affordable Care Act (ACA) of 2010 has made slight improvements in immigrant healthcare coverage and several states have opted to cover some income-eligible noncitizen pregnant women,[20,21] this coverage still falls short. In states that have failed to opt in to providing healthcare coverage to immigrants, the only form of public health care that immigrants are allowed to use is Emergency Medicaid, which only covers life-threatening events and obstetric admissions.[22,23] Estimates from North Carolina and Oregon show that greater than 80 percent of Emergency Medicaid claims are obstetrics cases, which provides compelling evidence that there is great need for comprehensive healthcare coverage among pregnant noncitizen immigrant women. Policy barriers to immigrant healthcare coverage are also reinforced through state-specific policies. For example, in 2010 after Arizona passed SB 1070, enabling police to detain individuals who were not able to prove their citizenship, researchers found a significant decrease in young immigrant women and mothers accessing basic social services for themselves and their infants. As a result of these policies, 32 percent of the 6.3 million immigrant women of reproductive age living in the U.S. were uninsured in 2016, compared to nine percent of their U.S. citizen counterparts. This inequity is even more striking in low-income populations: 48 percent of noncitizen immigrant women of reproductive age in the U.S. were uninsured in 2016, compared to 16 percent of U.S. born women (See Figure 1).
Data courtesy of the Guttmacher Institute
Figure 1. Women of reproductive age who are not citizens are much less likely to be insured, especially those who are low-income (i.e., living under the federal poverty level – $20,420 for a family of three in 2017).
According to the American College of Obstetrics and Gynecology, prenatal care can help ensure and promote the health of both mothers and children by providing important counseling and resources, screening for risk factors like alcohol or drug use, hypertension, or diabetes, and preventing complications such as preeclampsia or hemorrhage, and negative birth outcomes like preterm or low weight births.[26–28] Comprehensive prenatal care is a vital protective factor that reduces maternal morbidity and mortality and improves birth outcomes, with cascading health benefits for the mother and the child across their life course. By excluding noncitizen immigrant women from access to this critical health service, the nation is essentially putting an entire population of immigrant mothers and their children at higher risk of negative health outcomes.
As they are denied access to prenatal care and face a myriad of other sociostructural barriers, low-income immigrant mothers experience higher rates of adverse maternal health outcomes and riskier pregnancies compared to U.S.-born mothers. In a retrospective cohort study of 5,961 singleton births in Colorado, researchers found that undocumented immigrant mothers experienced higher rates of anemia, were less likely to gain enough weight, and were at significantly higher risk of labor complications, such as excessive bleeding and fetal distress, compared to their citizen counterparts.
Furthermore, the increasingly toxic sociopolitical climate rife with anti-immigrant sentiment and discrimination is associated with increased stress and other negative health outcomes. Recently, researchers at the UC Berkeley School of Public Health found that immigrant adolescents in a long-term cohort study of Mexican farmworker families in the Salinas Valley region of California had elevated levels of stress and anxiety, as well as sleep problems and blood pressure changes after the 2016 election. The impact of racialized stressors has compounding implications on immigrant maternal and child health. One study measured changes in birth outcomes in Postville, Iowa before and after the largest single-site federal immigration raid in U.S. history took place in 2008. The study found that infants born to Latina mothers in Postville had a 24 percent greater risk of low birthweight after the raid than infants born in the year before, highlighting the implications of experiencing racialized stressors on newborn children of immigrant mothers. While the effect of stress that is specific to the experiences of imwmigrant women on maternal and child health outcomes is less documented, there is a robust body of research exploring the strong association between prenatal psychological stress during pregnancy and adverse reproductive outcomes. Experiencing discrimination, the threat of deportations and/or the deportation of family members, and a constant inundation of harmful anti-immigrant rhetoric are likely serious risk factors, especially for pregnant immigrant women.[15,30,32]
Federal policy options for expanding coverage to immigrant populations
To redefine the fraught healthcare landscape that immigrants must navigate, public health researchers, practitioners, and advocates alike have identified that the policies that cause this legal, structural violence must be directly addressed.[1,2,20,28] This section outlines three ways that state and federal policy can be leveraged to expand prenatal health coverage to undocumented and legal immigrants.
States adopt ICHIA and create fund to cover undocumented immigrants
Each state may follow the path that Washington, California, Oregon, Illinois, Maine, New York, and the District of Columbia have already taken: using state funds to cover undocumented immigrant women and adopting the Legal Immigrant Children’s Health Improvement Act (ICHIA) option to expand coverage to legally present immigrant pregnant women and children. Enacted in 2009 as a part of the Children’s Health Insurance Program Reauthorization Act (CHIPRA), ICHIA gave states the option to provide prenatal care coverage with federal matching funds for extending coverage to legally present immigrant children and pregnant women. A study published in Obstetrics and Gynecology observed changes in immigrant women’s usage of prenatal care and its impact on maternal health outcomes before and after Oregon expanded prenatal care coverage to both legally present and undocumented immigrants between 2008 and 2013.[22,35] The study found that, after the expansion, immigrant women were 32 percent more likely to have a first trimester visit and 28 percent more likely to have received adequate prenatal care visits. It also found there were increased rates of diagnosis for gestational diabetes and hypertension after the expansion, indicating that these risk factors were previously going undiagnosed. While these findings are promising, adopting ICHIA would still only cover legally present immigrants. To meet the full needs of all immigrants regardless of legal status, states would also need to create a separate fund to extend prenatal care coverage to undocumented pregnant immigrants. In conservative states like Arizona and Texas, enacting either of these policies would require unlikely shifts in political will in their respective legislatures, leaving millions of pregnant immigrants in those regions without coverage for prenatal care.
Universal healthcare coverage: Medicare-for-All
Another strategy is to enact universal healthcare coverage through a policy that is popularly known as Medicare-for-All. The strategy aims to simplify the U.S.’s complex and inefficient systems of private insurance, public insurance, and healthcare providers to equalize access for everyone. It is undergirded by the moral principle that healthcare is a right. Currently two bills have been introduced: Senate Bill 1129, sponsored by Senator Bernie Sanders (I-VT), and House Resolution 1384, sponsored by Representative Pramila Jayalpal (D-WA). Both bills would essentially eliminate private insurance and replace it with publicly funded coverage by expanding Medicare (which currently only covers American citizens aged 65 and older and those with disabilities) to cover all American citizens, as well as legally present and undocumented immigrants. Adopting a system of single-payer coverage would provide mothers access to prenatal, preconception, postpartum, and all other necessary care regardless of immigration status.
Supporters of Medicare-for-All point to the success and higher quality healthcare of similar programs in other nations, like Canada, Taiwan, and South Korea, which have lower administrative costs and greater consumer satisfaction.[38–40] However, while several countries operate on some version of single-payer healthcare, all but a few still place restrictions on healthcare for undocumented immigrants. Medicare-for-All’s coverage of all residents, regardless of legal status, would make the U.S. one of only a handful of nations that allow immigrants to access federally funded healthcare plans – single-payer or not. Furthermore, Medicare-for-All would constitute a significant reorganization of the U.S. healthcare system and upend the private insurance market. Despite recent polls showing that a slim majority of respondents are in favor of Medicare-for-All, the policy has been denounced or criticized by both the Trump Administration and several senators, including Democratic senators running for re-election in battleground states,41 indicating that it is unlikely that this policy will become law in the current political and economic context. While the fate of this legislation is contingent upon the 2020 elections, several Democratic senators, as well as Democratic presidential nominee and former vice president Joe Biden, would not support a single-payer option. These candidates disagree with the Medicare-for-All approach and are instead in favor of passing legislation that lowers the Medicare age and also provides a public option, but does not eliminate the private insurance market.
The Health Equity and Access under the Law (HEAL) Act for Immigrant Women and Families
Finally, the third strategy is to actually target the policies that define immigrants’ status in the U.S. Rather than tackling healthcare policy to widen healthcare coverage, this approach would reform the immigration policies that directly bar immigrants from accessing federally funded health services. In October 2019, Rep. Jayalpal also introduced H.R. 4701, titled The Health Equity and Access under the Law (HEAL) Act for Immigrant Women and Families. The HEAL Act would 1) eliminate the ban on enrollment for lawfully present immigrants who are in their first five years of residence in the U.S., 2) enable income-eligible young people with DACA status to enroll in Medicaid or CHIP or buy private insurance coverage on the ACA marketplaces, 3) allow undocumented immigrants to buy ACA marketplace coverage and obtain the ACA’s affordability subsidies, and 4) reinstate Medicaid eligibility for immigrants from U.S. territories in the Pacific Islands.[42,43] By targeting the immigration policies that restrict immigrants from accessing affordable public and private health coverage, the HEAL Act directly combats the aforementioned structures of legal violence. Furthermore, this policy option would not require a total reorganization of the U.S. healthcare system, as adopting Medicare-for-All would, preserving the private insurance market. And while it would greatly benefit immigrant women and families, as specified in its title, the HEAL Act would open up access for all income-eligible immigrants, regardless of gender or pregnancy.
Despite the fact that broadening coverage is morally just and beneficial for both population health and economic health, most nations have strict restrictions on immigrant’s use of publicly funded healthcare. Thailand is the only country in the world that has allowed immigrants, which make up 6 percent of a population of 67.1 million, to buy into their national healthcare upon arrival since the Ministry of Health expanded coverage in 2013. An NPR article in 2016 outlined the Thailand governments’ rationale:
“The government recognized the migrants’ contribution to the economy, considered access to healthcare a human right, and was concerned that the lack of proper care for this vulnerable population would allow for communicable diseases that had already been controlled in Thailand to spread once again.”
Reports indicate that this approach is working, as data show that immigrants residing in Thailand are more likely to seek treatment for communicable diseases, compared to before the expansion. Moving forward, Thailand’s government is committed to keeping the policy and further improving its healthcare system. Including immigrants in healthcare coverage would not only fulfill a moral obligation of the right to health, it would also address an economic issue. While President Trump purports that expanding coverage to include undocumented and liminally legal immigrants would “bankrupt the nation,” evidence shows that immigrants actually subsidize the U.S. healthcare system. In a 2013 study, researchers found that immigrants paid about $33 billion in Medicare taxes in 2009, but only used $19 billion in health services. In contrast, U.S.-born enrollees actually contributed less than what they used in care. Furthermore, a study in Germany found that limiting healthcare access for asylum seekers and refugees actually led to larger healthcare costs down the road.
Several pieces of evidence support the idea that expanding publicly-funded healthcare to immigrants regardless of status is a popular idea – at least more so than Medicare-for-All. While allowing immigrants to access social services is still an incredibly partisan issue, recent polls show positive trends in U.S. citizens’ perspectives of immigrants living and working in the U.S. In a Gallup poll conducted this year, 76 percent of respondents said they thought immigration was a good thing for our country today. Furthermore, while Medicare-for-All has been a divisive issue, there appears to be widespread support for covering immigrants with publicly-funded healthcare amongst policymakers at the federal level. In one of the Democratic debates in June 2019, all 10 presidential candidates – including Biden, Sanders, Indiana Mayor Pete Buttigieg, California Senator Kamala Harris, California Representative Eric Swalwell, New York Senator Kirsten Gillibrand, and Colorado Senator Michael Bennet – unanimously raised their hands when asked if their health care plans would cover undocumented immigrants, demonstrating an unprecedented level of support for expanding services for immigrants and an important shift in political will at the national level. It is worth noting that, while the now-presumptive Democratic nominee has voiced his support for giving undocumented immigrants access to publicly-funded healthcare, Biden has yet to clarify how he plans to enact this policy if he is elected President. However, this support may indicate that if the HEAL Act, or other legislation targeting immigration policy with consequences on health care coverage, were to land on his desk as President, Biden may view it favorably. In particular, the HEAL Act is strategically framed as addressing the health of women, mothers, and children, as policies that support mothers and their children tend to be more politically favorable.
Policies that bar immigrant women from accessing prenatal healthcare are a form of legal violence that causes disparities in maternal health outcomes. These barriers – compounded with the challenges of accessing other social determinants of health, such as education, nutrition, and a sense of community and security – are a critical maternal health issue. “Equalizing the life circumstances of mothers… as a starting point toward greater social equity in the U.S.” is one of the top priorities in the field of maternal and child health. Directly addressing this legal violence by implementing policies that expand coverage to low-income immigrant women for prenatal healthcare is a vital first step.
The HEAL Act for Immigrant Mothers and Families would be the most targeted policy for accomplishing this goal. Allowing states to decide whether or not to adopt the CHIPRA option of expanding Medicaid would simply continue the status quo of barring immigrant populations from prenatal care in some states and not others, perpetuating health inequities based on region. And while universal healthcare coverage would be ideal, Medicare-for-All is so hotly contested across partisan lines that it is being called the third rail of American politics today. By specifically targeting immigration policies and accurately framing the bill as having the greatest benefit for women and families, Rep. Jayapal’s HEAL Act is the most strategic policy option for directly addressing the legal violence that immigrants face.
The passage of the HEAL Act would also send a strong message to all Americans and to the world, countering the toxic anti-immigrant sentiment that has emanated from the current federal administration for the past four years and asserting that the U.S. is truly committed to social equity and the wellbeing of all mothers and families, regardless of their country of origin. While the implementation of the HEAL Act would also need to be accompanied by policies and programs for improving enrollment of immigrant women by combatting fear and distrust (e.g., by reforming “public charge” and how it penalizes immigrants for their use of vital health and social services), it is a novel, strategic, and potentially popular policy mechanism that would be a monumental first step in expanding healthcare coverage to some of the most vulnerable members of our population.
Sarah Han is a Master of Public Health Student at UC Berkeley’s School of Public Health.
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