The view from the Matamoros, Mexico side of the Rio Grande — just across from Brownsville, Texas — reveals an unsettling scene.

Young women and children bathe openly in the murky green water, while others wash their clothes on the bank of the river that has claimed so many lives – most recently those of Idalia and her 21-month-old son Iker. This is the new painful reality of seeking asylum in the United States.

These families are not at the river by choice. They are being forced to wait in perilous conditions as a result of the Trump administration’s forced return to Mexico policy, which it perversely calls the Migrant Protection Protocols (MPP). 

Under the policy, which the ACLU and partners are challenging in a federal lawsuit, people fleeing persecution and legally seeking asylum in the U.S. are forced to wait in Mexico for months on end while their cases proceed in U.S. immigration courts. The Trump administration wants people to think that the policy is benign, but that couldn’t be further from the truth. Since going into effect earlier this year, MPP has been actively putting the lives of asylum-seekers in grave danger. For the most vulnerable people, including pregnant women, young children, and babies, this danger is particularly acute.

Women, children, and men bathing on the Mexican side of the Rio Grande, just across from Brownsville, Texas.

Recently, an 18-year-old Ecuadoran woman named Carolina,* who is more than four months pregnant, was sent to Mexico for a second time after attempting to legally claim asylum in the U.S. She was immediately placed into MPP and returned to Nuevo Laredo, Mexico, a city which according to the U.S. State Department is as dangerous as Afghanistan or Syria. A foreigner to Mexico, she had no safe place to go or community to which to turn. Alone, pregnant, and vulnerable, she was kidnapped and threatened with being sold or killed unless her family paid a ransom.

Carolina was eventually released by her kidnappers. Traumatized, she again returned to the international bridge in Laredo, Texas seeking safety that she believed only the U.S. could provide. But the kidnapping and fear of death was not enough for Customs and Border Protection (CBP) agents. They instead sent her to the same city where she had been kidnapped, failing even to refer her to an asylum officer to have her fear of returning to Mexico evaluated. 

In Mexico, Carolina fearfully stayed close to the gates of the port of entry, terrified that local cartel scouts were waiting to kidnap her again. Thankfully, Carolina’s family had contacted advocates who tried to get her released from MPP. They were unsuccessful, but were able to help Carolina flee to Mexico City for safety. There, she is currently waiting for her next immigration court date — set to occur in an ad hoc “tent court” in Laredo, Texas — hundreds of miles from Mexico City and just across the river from where she almost lost her life.

Hundreds of heartbreaking stories, just like Carolina’s, began to surface immediately after this policy went into effect in January 2019, and more so after the rapid expansion of the policy to Laredo and Brownsville, Texas in July. Nearly 50,000 people have been placed into MPP so far. One woman interviewed by attorneys described a CBP officer telling her she should abort her unborn child because “Trump didn’t want any more pregnant people here.”

A young pregnant mother holds her toddler in a makeshift migrant encampment created to house asylum seekers sent back to Mexico as a result of the “Remain in Mexico” policy.

MPP is part of a consistent pattern of xenophobic and racist efforts by the Trump administration and the Department of Homeland Security (DHS) officials to prevent people from lawfully being granted asylum in the U.S. Instead of welcoming asylum-seekers, as the U.S. has successfully done for decades, the Trump administration has engaged in a campaign of misinformation to provide cover for unlawful policies against people fleeing persecution. 

This inhumane policy is not aimed at any national security interest or protecting us from serious criminals; it’s an attempt to make it nearly impossible for anyone, no matter what terror they’re fleeing from, to enter into the U.S.

MPP’s impact has been made even worse due to how federal agents are executing it. DHS is well aware that there are populations with special needs that should be exempt from MPP. In fact, it has written guidelines that outline the exemption of vulnerable people — specifically pregnant women — from being forced back into Mexico.

And while DHS knows that northern Mexican border cities are incredibly unsafe, particularly for migrants and asylum-seekers who are unable to defend themselves from being victimized, it continues to send the most vulnerable back to danger. In fact, it has been well documented that asylum-seekers subjected to MPP have faced rape, kidnapping, assault, extortion, and death after being forced to return to Mexico

The policy has also forced migrants and asylum-seekers to live in squalid conditions without access to proper housing, food, or sanitation. This has caused outrage in the medical community. Physicians for Human Rights has publicly warned that the health and lives of mothers and babies are at risk due to grossly unhygienic living conditions, insufficient nutrition, lack of medical care, and inadequate access to potable water at makeshift encampments of people forced into MPP.

The safety and health conditions that pregnant women are forced to endure while languishing in Mexico are abhorrent and unacceptable. And it is happening right at our doorstep.

That is why the ACLU of Texas and ACLU Border Rights Center interviewed 18 pregnant women, including Carolina, and filed an official complaint with the DHS Office of Inspector General, demanding a return to safety inside the U.S. for all pregnant women in MPP. 

Each of the women listed in the complaint have their own harrowing story of legally seeking refuge in the United States, and instead being cruelly denied protection and sent to Mexico without any regard for their safety.  

MPP must end. Every day it is in effect, lives are in imminent risk. In the meantime, the special exemptions for pregnant women and other vulnerable groups must be followed by U.S. immigration authorities. Because what happens along the Rio Grande and the entire borderlands reflects on the conscience of our entire nation. 

*Carolina is a pseudonym used to protect the asylum seeker from reprisals.

Rochelle Garza, Staff Attorney, ACLU of Texas

Police departments around the country are beginning to deploy “Rapid DNA” machines, which can take a cheek swab or other genetic sample and automatically generate an identifying DNA profile. These machines cost as little as $30,000 and claim to take just 90 minutes. They handle some of our most sensitive information (our DNA) — and yet their design and use is largely unregulated. That should be cause for concern for several reasons.

First, Rapid DNA machines are likely to increase the risk of misidentification and wrongful conviction. Even traditional DNA analysis — which is typically done by trained professionals according to rigorous protocols in accredited laboratories — has led to terrible scandals and errors. For Rapid DNA machines — which police officers operate in precinct houses, without clear protocols, and after at most just a few hours of training — the risks of such injustices are even higher. Limited pilot studies have already raised concerns about the machines’ accuracy, including their failure to produce usable profiles, contamination of samples due to leaks in the machine, and the generation of at least one faulty profile.

These machines are also being used by police in ways they aren’t intended for.  They were designed to test samples taken from individuals for identification purposes, but local police departments are already deploying them on crime scene evidence, which is often far more complex. Such samples often include DNA that may be damaged or degraded, is present only in low amounts, or mixes many people’s genetic material. The FBI’s expert “Scientific Working Group on DNA Analysis” sternly warns that only a trained forensic DNA analyst can interpret crime-scene samples, and that Rapid DNA machines should not be used on them. The scientists also point out that “crime scene samples are often irreplaceable, and Rapid DNA instruments consume the entire sample.” The National District Attorney’s Association takes a similar position. But local police are not listening.

Second, “cheap and easy to use” is a perfect recipe for overuse, particularly when it comes to sensitive technologies in the hands of the government. We have seen this dynamic with cell phone location tracking, face recognition, and communications eavesdropping: intrusive information collection that was once subject to “natural limits” because it was expensive gets deployed far too broadly when new technology makes it cheap. Rapid DNA machines are likely to have this effect. Our DNA is far more than a replacement for the fingerprint; it is the “nuclear weapon” of identifying technologies. It can reveal much more — and more intimate — information than simply our identity, including our propensity for certain diseases, our family members, and our ancestry. And, as technology develops, DNA may reveal even more.

Third, Rapid DNA machines are likely to encourage the growth of government DNA databases, putting some of our most sensitive information in government hands. It also raises the likelihood of false hits. Even before Rapid DNA machines, we were seeing local police departments asking too many people — even kids — to provide DNA samples. This cheaper, faster technology — combined with the fact that many states have expanded their laws to authorize DNA collection from those who have merely been arrested — is only likely to exacerbate the problem. According to reports by the New York Times and other outlets, the FBI is working to enlist these machines into a national pipeline that will pour into its centralized DNA database, CODIS. And these machines are also likely to incentivize the growth of rogue DNA databases, which are maintained at the local level with far fewer quality, privacy, and security controls than federal databases.

Fourth, the easy availability of DNA testing through these machines is likely to exacerbate existing problems with the criminal justice system, including racial disparities in DNA collection that exist because our criminal justice system disproportionately suspects, arrests, and convicts people of color — and collects DNA from them accordingly. Rapid DNA machines may also encourage police attempts to obtain DNA without a warrant, including through pretextual arrests and the collection of so-called “abandoned” DNA that we all scatter around as we live our lives (for example on the things we touch and eat).

Recommendations

Given these risks, policymakers at all levels should think hard about whether it is appropriate to allow police departments to deploy Rapid DNA machines. Where police departments have already acquired them or been permitted to do so, measures (some which we have discussed previously) must be taken to guard against the pitfalls discussed above, including:

• Strict quality controls. The FBI is currently crafting use standards for Rapid DNA machines that will feed into CODIS. But local police departments are already using the machines outside of any standards. State lawmakers should look at this issue promptly and impose quality controls, including training and validation standards, to prevent sloppy use from creating injustices.
• Formal acquisition, use, and retention restrictions. This technology demands formal, legally binding restrictions on the collection, use, and retention of DNA. This should include regulations that: limit use to individuals who police have probable cause to believe committed a crime; ensure that the samples and results will be used only for their intended purpose; guarantee individuals whose DNA is collected and tested a right to access their results; and ensure expungement as soon as a person’s DNA data is no longer needed for the purpose that justified its collection.
• Limitation on “voluntary” collection. Collection of DNA should not be based on the fiction that submission is “voluntary” — that people are free to refuse police officers asking them for a biometric reading. Police officers have significant power and discretion in their encounters with us, and few such encounters are free from coercion. The New York Times story clearly showed such abuse in action; in the Pennsylvania town they profiled, where police must obtain consent from those under arrest, 90 percent of individuals asked agreed to hand over a sample. Officers explained that away with “criminals do stupid things,” but more likely most of those people did not feel they had a choice. Even people with more privilege may fear saying “no” to a police “request” that sounds an awful lot like a demand. No one should have to identify themselves to the police if they’re not suspected of a crime — and certainly should not be asked to turn over their DNA.
• Democratic control. Many local departments purchase surveillance technologies using DHS or DOJ grants that circumvent the local democratic budgetmaking process. And at least one town profiled by ProPublica paid for its DNA database with funds acquired through police banditry (aka “civil asset forfeiture”). No police department should spend money on this technology — no matter its source — without permission from its city council, county board, or other democratically elected oversight body. That is true even in jurisdictions that have not yet passed the “Community Control Over Police Surveillance” (CCOPS) legislation that the ACLU recommends.
• Transparency. Democratic control over police technology is impossible if communities don’t know what their officers are using and how. Legislators should ban nondisclosure agreements with technology vendors in which the government promises not to be transparent to its community about the nature of the technology it’s buying. Among other things, such agreements interfere with independent expert study of the technology. Individuals accused of a crime should also be guaranteed access to any available information about their tests and how they were conducted.

Vera Eidelman, Staff Attorney, ACLU Speech, Privacy, and Technology Project
& Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

Update: On October 4, 2019, the Supreme Court announced it would hear arguments June Medical Services v. Gee, the case challenging Louisiana's TRAP law, this term. 

Abortion rights captured the nation’s attention earlier this year when seven states passed early abortion bans. With the changes in the Supreme Court, and President Trump’s promise to appoint justices that would overturn Roe v. Wade, the concern about whether these new abortion bans would be upheld by the Supreme Court understandably reached a fever pitch.

But banning abortion outright isn’t the only way to eliminate abortion access in a state.  For decades, anti-abortion politicians have been quietly trying to push abortion out of reach by passing abortion restriction on top of restriction.  The new Supreme Court term started this week, and several challenges to such restrictions are pending in the Supreme Court. The Court could thus issue a ruling that would affect the future of abortion access this year without ever taking up a case involving an outright abortion ban.

Many of the abortion restrictions passed in recent years are called Targeted Regulation of Abortion Providers (TRAP) laws. They serve no medical purpose, and are passed with the sole intention of making it difficult — if not impossible — for people to access abortion.  A TRAP case from Louisiana, brought by our colleagues at the Center for Reproductive Rights, is one of the cases that SCOTUS could take up this term.

The TRAP law in question in the Louisiana case requires doctors who work at abortion clinics to have admitting privileges at a local hospital. If it stands, it would shutter all the clinics in the state except for one.

A district court struck down the law after finding that it would serve no medical purpose and would decimate abortion access in the case. The state appealed, and the Fifth Circuit Court of Appeals upheld the law. While it agreed that the law had limited-to-no medical utility, the court inaccurately found that the law wouldn’t cause clinics to close.

If you are experiencing déjà vu, you are not alone.  In 2016, the Supreme Court heard Whole Woman’s Health v. Hellerstedt, and found that a nearly identical law in Texas, which also required abortion providers to have admitting privileges at a local hospital, served no medical purpose and would unnecessarily force clinics to close.  The Court ruled that the law was therefore unconstitutional. The Whole Woman’s Health decision should have controlled the outcome in the Louisiana case too, but the Fifth Circuit failed to follow it.

Louisiana is not alone in trying to use TRAP laws to effectively ban abortion.  In Kentucky, we represent the last abortion clinic in the state, EMW Women’s Surgical Center, in several lawsuits, including a challenge to a TRAP law that requires abortion facilities to have a written transfer agreement with a local hospital. EMW had a transfer agreement with a local hospital for years, but Governor Bevin’s administration rejected it because it was signed by the head of the OB/GYN department rather than the hospital’s CEO. To prevent the state from shutting EMW down and eliminating abortion access in Kentucky, we went to court.  The law was struck down after trial, but the state’s appeal is now pending in the Sixth Circuit Court of Appeals.

In Ohio, a TRAP law is also being used to quietly and gradually close abortion clinics.  The law creates a complicated obstacle course for clinics: it says surgical facilities must have a written transfer agreement with a hospital, but the state department of health can waive that requirement if the clinic has one or more backup doctors with hospital admitting privileges.  The health department previously said that two backup doctors are insufficient for a waiver, and have arbitrarily demanded three instead.  Now – for no medical reason – they are requiring four back-up doctors. In states where doctors are subject to harassment for simply being associated with abortion access, finding that many back-up doctors can be next to impossible.

In Missouri, the state’s last clinic is facing a similar fight.  Earlier this year, the health department threatened to shut down that clinic, which is a Planned Parenthood affiliate, over disputes about its license. Planned Parenthood’s lawyers ran to court, and were able to get a court order prohibiting the state from closing the clinic—for now.

These states have followed up their restrictive TRAP laws with legislation that effectively bans abortion (although none are currently in effect). The agenda of these anti-abortion politicians is clear: TRAP laws have nothing to do with public safety, and everything to do with hostility to abortion. They are part of a strategy to do anything that eliminates abortion access.         

As the Supreme Court starts its new session this week, all eyes should be on the Louisiana case.  If the Court allows the Louisiana law to take effect, it will not only be devastating for people in Louisiana, it could also pave the way for courts to uphold other TRAP laws and abortion restrictions that will push abortion out of reach even more so than it already is.  TRAP laws hide their true intention under complex regulatory requirements that obscure what they are meant to accomplish, which is an end to abortion access. We must remain vigilant against all attempts to ban abortion, including both explicit as well as more subtle attempts.

Brigitte Amiri, Deputy Director, ACLU Reproductive Freedom Project