With the recent SCOTUS decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, there are many new questions about abortion in the United States. But what if you are a noncitizen immigrant and need an abortion? Will any of the new laws affect you or your immigration case or status?
At the time of writing, many legal questions remain about the extent of abortion laws in effect. Various states are passing new abortion-related laws. At the same time, advocates have just begun filing lawsuits to challenge the limits of state laws and Dobbs. Nevertheless, there is enough information to have an idea of what, if any effects these laws could have on noncitizens.
- Criminal Penalties
Several states have already enacted laws banning or limiting various types of abortion-related actions, both surgical and non-surgical. These laws generally make abortion procedures a criminal offense, usually a felony. Felony convictions can include heavy fines and years of jailtime.
Abortion-related criminal penalties generally only affect the abortion provider, i.e., the medical practitioner providing the procedure and/or medication. Most states have clear carveouts exempting mothers from any criminal penalty. However, not all state laws explicitly state mothers cannot be criminally prosecuted. For instance, laws in Alabama, Utah, and West Virginia do not explicitly state that pregnant mothers cannot be punished. It is beyond the scope of this blog if women in these states could be prosecuted.
- Loss of Professional License
Abortion providers are generally the target of most laws. In addition to criminal penalties, many state laws revoke the professional’s license. Loss of a professional license could affect noncitizen applicants and recipients of employment-related benefits dependent upon professional qualifications, such as H-1B, J-1, and O-1 nonimmigrant visas, as well as employment-related immigrant visas and green cards. Medical practitioners should be especially cautious.
- Felony Convictions
Felony convictions can have major repercussions for certain noncitizen immigrants. For instance, a single felony conviction will generally make one ineligible for Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA).
- Murder Convictions
Whether women could be convicted of murder for having an abortion is not completely farfetched. For instance, in Utah the “killing or attempted killing of a live unborn child in a manner that is not an abortion” can be prosecuted as criminal homicide. Just in April of 2022, a Texas woman was indicted for murder after inducing her own abortion. Though the charges were dropped, such cases raise the specter of possibilities to come. According to the Journal for Public Health and National Advocates for Pregnant Women statistics, at least 1,331 cases involved someone punished for allegedly harming the health of their fetus, including self-inducing an abortion—as recently as 2006-2020.
Whether murder or manslaughter convictions would carry heavy immigration consequences is unlikely under current federal law. Under U.S. immigration laws, a murder conviction may be considered an “aggravated felony”—the most serious type of immigration violation, resulting in almost certain deportation with little chance of future return to the United States. However, abortion with consent is exempted from federal homicide laws. Because federal law controls with respect to aggravated felonies, even if one were convicted of abortion-murder under state law, it would unlikely be analogous to a federal murder conviction.
- Good Moral Character
Good moral character (GMC) is a slippery concept affecting some noncitizens applying for immigration benefits. Spending more than 180 days in jail would affect one’s GMC. Similarly, “[c]ommitt[ing] unlawful acts that adversely reflect upon the applicant’s moral character” could also be grounds for lack of GMC. GMC is a required element for certain immigration benefits, such as naturalization, cancellation of removal for non-permanent residents, and Violence Against Women’s Act self-petitioners.
- Multiple Criminal Convictions
One can be barred from entering the United States or from getting a green card if convicted of two or more offenses with an aggregate jail sentence of five years or more. Thus, an abortion conviction with jailtime – plus another conviction – could give rise to this immigration consequence.
- Crimes involving Moral Turpitude
Certain criminal convictions could also be considered “crimes involving moral turpitude” (CIMT). Convictions for CIMTs can make one deportable from the United States, and merely admitting to committing a CIMT could bar one from entering the United States or from eligibility for adjusting status to a permanent resident. The 1946 immigration case Matter of M-, 2 I&N Dec. 525 (BIA 1946), held that “abortion is a crime involving moral turpitude”, and the noncitizen’s New York conviction for assault with intent to commit abortion qualified as a CIMT. Immigration laws have undergone significant changes since Matter of M-, and one would hope that a modern abortion conviction would not be strictly construed as a CIMT. Yet, the door is open. The current seminal test for a CIMT outlined in the case Matter of Silva Trevino, 26 I&N Dec. 826 (BIA 2016), defines a CIMT as a crime involving “reprehensible conduct” with some culpable mental state (i.e., more than mere negligence). Most likely, whether an abortion conviction qualifies as a CIMT will be highly dependent on the wording of the state law.
In conclusion, noncitizens seeking abortions in U.S. states where abortion has been limited should be cautious. A conviction or mere admission could effect your immigration case. If an abortion is necessary, a safer option may be to travel to a different state where the procedure remains legal.
- Crimes of Child Abuse
Child abuse convictions may be deportable offenses. Whether a noncitizen could be prosecuted for a child abuse violation really depends on whether the aborted fetus would be considered a “child” under federal law. Dobbs did not go so far as to claim an unborn fetus is a person. Under current federal law, a person is not a person until after birth. So, deportation for a crime of child abuse is unlikely.
- Discretion
Virtually all immigration benefits involve a discretionary determination. This means that the judge or officer must weigh the positive factors (like eligibility for the benefit, family ties, work history, etc.) against negative factors (e.g., criminal history). While there is some caselaw guiding the discretionary analysis, ultimately the discretionary decision depends on adjudicator whim. Once abortion is criminalized, it is possible that a record of the act or conviction for the act could be construed very negatively.
Conclusion
Noncitizens in need of an abortion in U.S. states limiting abortion should exercise caution. An arrest or mere admission of the experience could cause negative immigration consequences. A safer option would be to travel to a different state allowing the procedure. If you are uncertain or unable to travel, consult a qualified immigration attorney.