Incarcerated People Face Nearly Insurmountable Odds of Maintaining Reproductive Autonomy
December 1, 2023 5 minutes read
About one out of six incarcerated pregnant people may need an abortion in the coming years. But their ability to access that care is blocked or nearly blocked in states with abortion bans and major restrictions, according to the authors of a recent study.1
“What’s concerning is the fact that we don’t have a precedent for how facilities are going to react in terms of meeting what was previously considered a constitutionally mandated requirement for facilities to address serious medical needs, and abortion was considered one of those,” says Suzanne O. Bell, PhD, MPH, lead study author and an assistant professor in the department of population, family, and reproductive health at the Johns Hopkins Bloomberg School of Public Health. “Now, in states where abortion is completely banned or highly restricted, it comes into contention with federal policies. This will continue to affect federally incarcerated individuals.”
Forcing women to be incarcerated while pregnant in states that do not allow a person access to abortion care is an egregious violation of human rights, Bell says. “They have no option of traveling outside of the state to access abortion. These people under supervision are forced to continue a pregnancy that is unwanted or unsafe, and it’s not respecting their bodily autonomy,” she adds.
One example involves rape in prison. The Prison Rape Elimination Act requires prisons to provide timely access to all lawful pregnancy-related services if someone becomes pregnant from rape while in custody.2 “In states where abortion is banned, it would not be a lawful service, and [raped prisoners] would be forced to carry a pregnancy to term,” Bell says.
Before the U.S. Supreme Court overturned Roe v. Wade in June 2022, pregnant individuals in federal prisons were provided access to abortion care if they requested it. Some states also provided this access. The courts had maintained that incarcerated individuals retained their constitutional right to abortion.1 That right is gone, and it is unclear whether any prisoners — state or federal — in abortion-ban states will still have access to this care.
Pre-Dobbs, such access had multiple limitations for women. Some prisons required the incarcerated person to pay for the gas and additional time for the prison guard to take them to the abortion facility, Bell notes. Even if some abortion-ban states permitted prisoners to travel out of state for an abortion, it likely would be cost-prohibitive if they were required to cover the travel costs.
“Those states that fully ban abortion are furthest from abortion facilities,” Bell says.
For instance, in the South, women may have to travel 250 miles on average to obtain abortion care, whereas the average distance might be 50 miles in the Midwest. “It’s a sea of red in the U.S., so it’s highly unlikely people in those states would be near a facility that provides abortion,” Bell says.
The legal barrier is daunting because it is untested. If a state says a prisoner cannot access abortion care, and the federal government says the person can access it, how would the courts rule? This problem is compounded by inadequate pregnancy care for many incarcerated women.
“There are many examples of inadequate healthcare provided to incarcerated individuals, particularly around pregnancy,” Bell notes. “My colleagues and others who have studied this in the field have made it clear there is decreased access to adequate healthcare and a higher rate of pregnancy problems.”
There also are reports of prisoners denied prenatal care and then treated inhumanely during labor and delivery, including being shackled or left to deliver without any help. For example, a pregnant woman in an Alabama jail screamed and pleaded for a physician while in labor for 12 hours. No one responded to her cries for help. But they took pictures of the son she delivered alone in a jail shower after she was passed out on the floor.3
Research shows widely disparate and often inhumane treatment of incarcerated pregnant people. Some are denied access to abortion, and some are housed in solitary confinement and are ignored when they need emergent medical attention. Others are shackled throughout pregnancy, labor, and delivery, and even postpartum. They often are prevented from providing breastmilk to their infants and are separated from their newborns within hours of their birth.4
“Just being forced to continue a pregnancy exposes them to increased morbidity and mortality in the United States,” Bell says. “There is a compounding justice issue here, including reproductive justice for this population.”
Bell and colleagues calculated the number of incarcerated pregnant people by using the percentage of pregnant women incarcerated in state prisons based on a prior study’s findings. They used Bureau of Justice Statistics data to identify the number of pregnant women in federal prisons. They used state-specific data on the number of abortions provided and looked at the number of live births to calculate the abortion ratio and estimate the proportion of pregnancies that may require abortion among these incarcerated people.
Their results were an estimated 638 pregnant people incarcerated annually and an expected 110 in need of abortion, including in states where abortion is banned or restricted.
“Our findings highlight the particularly unique restraints experienced by incarcerated pregnant people,” Bell says. “Some of those numbers may seem small, but it’s important to consider this is only going to rise as we increase the incarceration rates and criminalization of pregnant people.” There are more than 165,000 women incarcerated in the United States, and they are disproportionately women of color, she adds.
State abortion bans will have an outsize effect on incarcerated individuals, including those who are in jail and are not released until it is too late to obtain an abortion, Bell says. Over-policing, criminalizing, and devaluing the well-being of people of color means more pregnant women of color will suffer from infringements on their reproductive autonomy and human rights, she adds.
REFERENCES
- Bell SO, Dozier JI, Casubhoy I, Sufrin C. Impact of new abortion restrictions on people in prison: Estimated number of incarcerated people without abortion access and distance to abortion providers. Contraception 2023;110278.
- Bureau of Justice Assistance. Prison Rape Elimination Act (PREA). Last modified Feb. 2, 2023.
- Paúl ML. Alabama woman was forced to give birth in a jail shower, lawsuit says. The Washington Post. Oct. 17, 2023.
- Shlafer RJ, Gerrity E, Norris C, et al. Justice for Incarcerated Moms Act of 2021: Reflections and recommendations. Womens Health (Lond) 2022;18:17455057221093037.
About one out of six incarcerated pregnant people may need an abortion in the coming years. But their ability to access that care is blocked or nearly blocked in states with abortion bans and major restrictions, according to the authors of a recent study.
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