The Trump administration’s quest to force abortion patients to needlessly risk COVID-19 exposure as a condition of obtaining care has entered its sixth month, and is as violently out of touch with reality as ever.
 
Following an October order from the Supreme Court, the U.S. District Court for the District of Maryland is considering new evidence in our lawsuit challenging a Food and Drug Administration (FDA) policy requiring patients who need a medication used for early abortion care to travel in person to a clinical setting for the sole purpose of picking up a pill and signing a form. That policy has been blocked under a court order we won in July — but Trump’s Department of Health and Human Services (HHS) has continued to fight us every step of the way.
 
Their latest argument: COVID-19 is no longer a serious risk, so the federal government should be free to force us to risk exposure as a condition of obtaining essential reproductive health care.
 
This could not be farther from the truth. On Oct. 30, the day the Trump administration filed their latest brief in the district court, nearly 100,000 people in the United States were diagnosed with COVID-19 — then a new global record — and nearly 1,000 people died from it. The United States broke its own record days later, and then again and again; yesterday, a staggering 196,000 new cases and 2,760 new deaths were reported in a single day. The nation’s top infectious disease experts warn that the country “could not possibly be positioned more poorly” for this winter and that we are entering the “most concerning and most deadly phase of this pandemic.”
 
Despite the Trump administration’s own experts at the CDC acknowledging that being Black or Hispanic is associated with dramatically higher risks of hospitalization and death from COVID-19, Trump’s lawyers argue that it is no big deal to force medication abortion patients — a majority of whom are Black or Latinx — to unnecessarily incur heightened COVID-19 risk.
 
Let’s be clear: There is no genuine dispute that forcing people to travel to a health center continues to impose serious COVID-19 risks. That is why the CDC still recommends that patients use telemedicine whenever possible and use mail-order or other delivery services to pick up prescription medications. It is because of this ongoing risk that HHS Secretary Alex Azar renewed the nationwide COVID-19 public health emergency and continues to allow patients to obtain addictive medications like fentanyl and OxyContin through telemedicine.
 
One look at the Trump administration’s legal filings shows just how flimsy their argument is. Unable to muster a single declaration from any employee at HHS or the FDA to support their argument that travel and personal contact no longer pose a meaningful threat, the administration instead asked the court to rely on declarations from officials in seven states (virtually all of which are already seeing sharp COVID-19 spikes), noting that their states have allowed certain businesses and services to re-open. But these local decisions have nothing to do with our case. Allowing people to voluntarily use in-person services cannot justify a federal mandate forcing higher-risk populations to engage in unnecessary travel and personal contact, regardless of their individual circumstances and their clinicians’ judgment, as a condition of obtaining essential reproductive health care.

Trump administration officials might be committed to maintaining the fantasy that COVID-19 is under control, but we know the truth: The pandemic is still real, still dangerous, and forcing abortion patients to needlessly risk exposure to it still poses real harm to them, their clinicians, and their families — with particularly severe risks for people of color.

The path forward is clear. First, the courts must keep the in-person requirement blocked. And as soon as President-elect Joe Biden takes office in January, he should not only direct the FDA to agree not to enforce the in-person requirement during the public health emergency (precluding the need for further litigation), but also instruct the FDA to undertake a comprehensive review of the full set of restrictions on mifepristone. This will ensure that beyond the pandemic, patients’ access to this safe, effective medication is based on the latest science and medical evidence. Medication abortion — like all abortion services — is essential health care, and we hope to never again see FDA restrictions weaponized for a political, anti-abortion agenda.

Customs and Border Protection (CBP) is at the heart of some of the greatest moral horrors of the last four years, personified in stories that we cannot forget: the children breathlessly crying for their parents after being separated at the border; the children sleeping in the dirt in open air cages and people trapped in cells so overcrowded that they pressed their palms against the windows in a desperate plea for help; and the little girl with her arm around her father’s neck, desperately holding on as they both drowned while attempting to cross the Rio Grande river.

As President-elect Biden enters office, he faces a stark imperative: These abuses must never happen again. It will take bold action in a climate where border fear-mongering has too often excused cruelty and met abuse with impunity. 

As President-elect Biden contemplates how to resource the Department of Homeland Security’s handling of the pandemic, it should focus on significantly cutting the budget of CBP. It is the largest federal law enforcement agency in the country and the largest law enforcement air force in the world, with a budget of more than $17.1 billion for both the Border Patrol and operations at ports of entry. Despite its already enormous size, in 2019 DHS claimed that 40 percent of CBP’s resources were being absorbed by an “unprecedented surge” in the number of families fleeing Central American countries, leaving the agency “[unable] to manage its other border security missions.” Simultaneously, it was illegally siphoning funds from other parts of the government to build Trump’s border wall. As the Trump administration’s fiscal ineptitude and cruelty has demonstrated, funding is not the issue when it comes to CBP. CBP simply must not have responsibilities that it’s proven incapable of handling. 

CBP should have no role in detaining people beyond a brief period for processing — including asylum seeking parents and kids. In the past two years, at least seven children died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether. At Border Patrol stations, kids have gone “days, sometimes weeks, in facilities without enough food or toothbrushes.” In Texas, Border Patrol agents reportedly “took away the children’s blankets and mats,” forcing them to sleep on the cement floor as “punishment.” 

It’s not exclusively kids. Border Patrol stations don’t have bedding, showers, or staff trained to interact with or assist traumatized people. The ACLU and its partners have documented freezing temperatures and filthy cells where people are held virtually incommunicado for days. Border Patrol agents subject pregnant people to physical mistreatment, verbal abuse, and severe delays in medical care (if it is provided at all). In February 2020, a woman in Border Patrol custody was forced to give birth to her baby while standing up, holding on to the side of a trash can in a Border Patrol station near San Diego.

Yet in 2019, CBP unlawfully spent emergency funds Congress allocated for the care of adults and children on dirt bikes and dog food — instead of medical care, food, and sanitary conditions. As the Biden transition team contemplates a new model for receiving asylum seekers, it should develop alternatives to detaining them. The incoming administration cannot forget what this recent history shows: CBP simply cannot be trusted with detention.   

CBP should also be removed from the asylum process, where life or death is often at stake. CBP personnel confiscate crucial (often irreplaceable) personal documents from people seeking asylum and have lied on government forms. Implementing the Trump administration’s disastrous forced Return to Mexico policy, Border Patrol agents sent asylum seekers back to Mexico with fake future court dates, even writing “Facebook” in place of peoples’ actual addresses. The Trump administration replaced trained asylum officers with CBP agents to conduct credible fear interviews — a crucial step in the asylum process. That’s akin to having an arresting police officer also sit as the judge.  

CBP should also never make decisions about how and when to separate families arriving at our border. Families belong together, and that presumption should never be challenged by a law enforcement agency that is notorious for human rights abuses.
 
We also need reforms that address CBP’s culture of impunity for abuse — including the death of people at the hands of CBP. Since January 2010, at least 117 people — including some U.S. citizens — have died following encounters with CBP. On May 23, 2018, 20-year-old Claudia Patricia Gómez González was shot in the head by a Border Patrol agent shortly after she crossed into the United States. CBP only admitted the facts of this killing after the release of a bystander video. Agents almost never face consequences for their actions and some deaths go unreported altogether.

We need stronger standards to limit CBP’s use of deadly force. CBP officers should be required to keep their badges visible at all times and wear body cameras (with appropriate privacy protections in place). We need a complaint mechanism that’s accessible online, and a uniform process for review and investigation of abuses. 

President-elect Biden has pledged to ensure that CBP personnel are held accountable for inhumane treatment. Accountability will require more than the appointment of new leadership. It will require a reckoning with and recalculation of CBP’s role. 

The federal government is secretly purchasing and using our cell phone location information to locate and track people in the United States, including for immigration enforcement. We’re suing to bring some much-needed transparency to these disturbing practices.
 
The GPS chips in modern smartphones provide us with many conveniences, allowing apps on our phones to quickly map our location, provide weather updates, and more. But many of those apps don’t keep our location information to themselves. Without users realizing it, apps regularly sell users’ location information to other companies who use it for marketing and other purposes.
 
In February, The Wall Street Journal reported that this sensitive location data isn’t just for sale to commercial entities, but is also being purchased by U.S. government agencies, including by U.S. Immigrations and Customs Enforcement to locate and arrest immigrants. The Journal identified one company, Venntel, that was selling access to a massive database to the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and ICE. Subsequent reporting has identified other companies selling access to similar databases to DHS and other agencies, including the U.S. military.
 
These practices raise serious concerns that federal immigration authorities are evading Fourth Amendment protections for cell phone location information by paying for access instead of obtaining a warrant. There’s even more reason for alarm when those agencies evade requests for information — including from U.S. senators — about such practices. That’s why today we asked a federal court to intervene and order DHS, CBP, and ICE to release information about their purchase and use of precise cell phone location information. Transparency is the first step to accountability.

We’re asking the agencies to turn over all records related to their purchase and use of cell phone location data, including contracts, policies and procedures for use, communications with companies, legal analyses, and more.
 
Among the questions we seek answers to is how the government can justify obtaining sensitive cell phone location data without getting a search warrant. In Carpenter v. United States, a case argued by the ACLU, the Supreme Court ruled that law enforcement agencies cannot request personal location information from a cellphone company without first obtaining a search warrant from a judge. As Chief Justice Roberts wrote, these records deserve protection because mapping a cellphone’s location “provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
 
If law enforcement agencies can buy their way around the Fourth Amendment’s warrant requirement, the landmark protection announced by the Supreme Court in Carpenter will be in peril. Despite federal agencies spending hundreds of thousands of dollars on access to cell phone location databases, those agencies have not publicly explained their legal justifications or internal limitations on access to this invasive information. More than nine months after we submitted a request for information under the Freedom of Information Act, DHS, CBP, and ICE have yet to provide us with a single responsive record. DHS has even refused to provide its legal memorandum about these practices to U.S. senators who have requested it.
 
The public deserves to know how the agencies are accessing bulk databases of Americans’ location data and why. Today’s lawsuit aims to find out.