Expanding Reproductive Rights to Indigent Noncitizens: A Prioritarian Goal of Reproductive Justice

The terrain of reproductive policy in the U.S. must be reformed with the goal of concentrating on the reproductive rights of noncitizens. Given the long history of failing to address the reproductive interests of the least advantaged members of society, this article identifies the creation of the constitutional rights to contraception and abortion as on-demand, pay-to-play rights through Supreme Court jurisprudence and legislatively through the Hyde Amendment as obstacles to reproductive access. Namely, these forces disadvantage indigent pregnant women, their families, and their future children, a disadvantage most palpably felt by noncitizens. The failure to tend to the reproductive interests of the least advantaged members of society thus has reverberating consequences, further entrenching social inequalities for future generations. The primary protections available to pregnant, indigent noncitizens are the limited, emergency-related protections of the EMTALA, which will be explored as the manner in which noncitizens can exercise reproductive rights by unpacking judicial, administrative, and professional interpretations of that law. While that statute, DACA, and other measures are steps in the right direction, this article concludes that reproductive policy still must be significantly reformed to offer more expansive care to this group.