It’s OK to Ask Detained Tourists About Abortions, US Border Agency Says

An Australian tourist who was deported from the US after being asked whether she had recently had an abortion has been told by Custom and Borders Protection (CBP) that agents acted properly in their interactions with her.

Madolline Gourley was transiting through Los Angeles International Airport at the end of June on her way to Canada when she was detained over suspicions she had breached the conditions of the visa waiver programme.

While detained she was asked by a CBP agent whether she was pregnant – she wasn’t – and whether she had recently had an abortion. Just days earlier, Roe v. Wade had been overturned by the US Supreme Court, the 1973 court case that legalised abortion across the US. However, abortion remained legal in California, Australia, and Canada, where Gourley, 32, was due to cat-sit in exchange for a holiday.

“I wasn't distressed or upset by this particular question,” Gourley told VICE World News over email, “but I remember thinking, ‘Did she seriously just ask that?’ I couldn't believe what I just heard.”

At the time, CBP said it regretted “any inconvenience or unpleasantness a passenger may have experienced during his/her CBP processing” and that “we take allegations of unprofessional behavior seriously. CBP has standard procedures for handling allegations of misconduct. If we confirm employee misconduct, we will take firm and appropriate action to correct the situation.”

In a recent interview, a CBP spokesperson denied that Gourley had even ever been questioned about an abortion specifically. However, a special agent who called Gourley this week with a follow-up told her it was policy to ask about “termination of pregnancy.”

The agent told her an investigation into Gourley’s experience “did not reveal any derogatory action from the part of any CBP employee”.

“The questions you were asked were in line with the policies and procedures related to travellers in CBP custody,” the CBP official said. “Under current guidelines, CBP officials are required to collect information regarding potential medical issues, including pregnancy, postpartum and termination of pregnancy to childbearing females in CBP custody. This is done to ensure the health and wellbeing of those under our custody and is a top priority for CBP.”

The wording of the special agent conflicts with the CBP’s publicly available policy regarding women of childbearing age, where termination is not mentioned once. It defines pregnancy loss as “stillbirths and miscarriages.”

It also conflicts with what the CBP told VICE World News after being approached for comment. 

A spokesperson said they could not comment on what they characterised as a private conversation between an individual and a CBP official, but said that “the correct terminology is pregnancy loss” and that “under current guidelines CBP officials are required to collect information regarding potential medical issues of concern, including pregnancy, postpartum and pregnancy loss to childbearing females in CBP custody” – not “termination of pregnancy” as Gourley was told on the phone.

Gourley told VICE World News that she was not asked any other questions about her health or existing medical conditions by the agent while being detained last June, despite actually having an autoimmune disease. 10 minutes before she was told her entry was refused, another officer asked her if she was on any medication – after she had already been in custody for nearly 3 hours.

She has since also seen a questionnaire asked of individuals in custody, and believes she wasn’t asked any questions other than if she was pregnant and whether she had had a recent abortion. The abortion question is not listed in the questionnaire.

Three months on, Gourley said she still remained perplexed about the incident, which sparked international media coverage.

"Given I was taken aside for suspicion of intending to work illegally (in Canada no less...), I don't see how the abortion question was relevant to my set of circumstances,” she wrote over email. 

“While it's kind of inappropriate to ask at all, of anyone, I am an Australian citizen passing through LAX on my way to Montreal. Yes, immigration officers are allowed to ask questions about your travel plans, but how is 'Have you had a recent abortion?' relevant? Abortion is legal in my home state back in Australia, it's still legal in California and I'm fairly certain it's legal in Canada, so what's the issue?”