It is not the prison that has imposed the burden, but the prisoner’s violation of the law that resulted in her incarceration that has imposed the burden [on her reproductive rights]. —Assistant Attorney General Michael Pritchett, Missouri (Patrick, 2008).
I’m very pro-life and believe in family values. . . . I’m being sued by the Civil Liberties Union and they want me to pick up, to take my female inmates out of jail, take them to an abortion clinic, let them have an abortion, and transport them back to jail. . . . That will never happen. —Sheriff Joe Arpaio, Maricopa County, Arizona (Doe v. Arpaio, 2006).
Both of these public officials tried to prevent young women in custody from terminating their pregnancies, delaying their abortions by 7 and 8 weeks, respectively. Their attitudes—from blaming the victim to outright defiance—are among the many obstacles that women in custody face when they try to carry out their decision to end a pregnancy. Imprisoned women have to fight with corrections officials to obtain abortion care, despite the consensus in the courts that they maintain the right to abortion. These women’s struggles result from the unique circumstances of incarceration and yet also reflect the politics of abortion that affect all women in the United States.
More than 200,000 women and teenage girls in the United States are currently confined in state and federal prisons, local jails, immigration detention centers, and juvenile facilities (
Minton, 2010
, West, 2010
). Many more will spend time behind bars during the course of a year. It should come as no surprise that some of them will need to make reproductive decisions. About 5% of women are pregnant at the time of imprisonment, and these women, economically disadvantaged and disproportionately of color, experience the highest rates of unintended pregnancy (Cohen, 2008
, Roth, 2010
, pp. 81–82). Penal policies on abortion thus affect a significant number of women and reinforce patterns of inequity in health care (Freudenberg, 2002
). Moreover, the serious deficiencies typical of prison medical systems subject women to substandard care that endangers their health.Courts Uphold Women’s Rights
Federal and state courts have consistently held that imprisonment does not negate women’s constitutional right to abortion (
Kasdan, 2009
). Prisons and jails can curtail people’s constitutional rights in some circumstances, but courts have found no legitimate reason to deny women this particular right.In practice, however, women must overcome significant obstacles. Whatever barriers impede and delay women in the broader community also hinder women inside, and the reality of physical confinement compounds these burdens. Reproductive control takes on new meaning, because jails and prisons literally control women’s movements and contact with the outside world.
But Prisons Undermine Them
My research on policies governing access to abortion in state prisons has identified several substantial hurdles for women—finding information, raising money, and complying with onerous rules—or, conversely, figuring out how to navigate in a policy vacuum, all within the time frame dictated by the prison. Drawing on my ongoing research, this section analyzes policy information that I obtained from state departments of correction (Roth, unpublished manuscript).
About one third of states have clear policies directing prison staff to inform women of all their reproductive options, including their right to an abortion. Another third use conditional wording that suggests prison staff will only discuss abortion if a woman brings it up herself. In Washington state, for example, women “will receive” options counseling, whereas in Massachusetts, women will be referred to counseling only “in the event” that they ask for an abortion.
Although many state policies use the phrase “comprehensive counseling” for pregnant women, they rarely describe the nature of this counseling nor list a specific organization to contact if women wish to receive information about abortion. A few specify a “recognized family planning agency” or even name Planned Parenthood, but most simply say to “contact the appropriate referral agency” or “appropriate counseling agency.” Such imprecision raises the possibility that prisons might refer women—inadvertently or intentionally—to “crisis pregnancy centers” whose mission it is to dissuade them from terminating their pregnancies.
When “Jane Doe” was trying to obtain an abortion in Phoenix, Arizona, a jail doctor told her that adoption was the better course and gave her a 1-page handout listing adoption agencies and “abortion alternatives.” The handout did not name any abortion providers. Because prisons control the flow of information (mail, use of telephones, even the ability to call a toll-free number), it is extremely difficult for women to find credible information if no one gives it to them.
Four out of five state prison systems make women pay for abortions—an even worse ratio than state Medicaid programs. The average cost of an abortion at 10-weeks gestation is $451, a significant sum for any low-income woman (
Jones and Koolstra, 2008
, p. 47). This amount represents an even greater sum for women in prison, because they have no opportunity to earn that much money and must rely on the generosity of people outside.At least 11 states impose additional costs on women—from gas, tolls, and other transportation fees to the wages of the officers who take them to their appointments. Because prisons tend to be sited in rural areas and most abortion services are in urban areas, the cost of transportation and staff time is a significant barrier to abortion.
Finally, seven states spell out highly demanding procedures with multiple steps: Fill out paperwork requesting an abortion, have someone on the outside deposit money in a prison bank account, send forms to the provider in the community, wait for them to be returned, and hope they were completed properly to avoid further delays. In Colorado, these steps must be completed at least 15 days before an appointment. Women in some states must find an abortion provider without any assistance from employees at the prison.
At the opposite end of the spectrum, at least eight states have no written policy on abortion, a situation that that invites prison officials and individual staff members who are antichoice to impose their own views on the women in their custody. Other states with ambiguous or incomplete policies also open the door to interpretation, discretion, and abuse (
Roth, 2004
).Magnifying the hurdles imposed by prisons are barriers in any given state—such as in-person “counseling” and mandatory delays, a dearth of providers, the lack of second-trimester abortion services, or having to wait an entire week for an appointment because the provider flies in from out of town. This is what happened to “Jane Roe” in Missouri, who had to wait for a week after the prison defied a judge’s order to take her to the clinic (
Roe v. Crawford, 2008
).Doctors and nurses who work in prisons and jails throughout the United States provide insight into the uneven nature of women’s access from their vantage point as insiders. When
Sufrin et al., 2009
surveyed members of a national correctional health professionals association, only 68% of the 286 respondents said that women in their institutions were “allowed” to have an abortion if they asked for one.Organizations such as the American Civil Liberties Union and the National Network of Abortion Funds as well as some state and local groups provide legal and financial assistance to women, but tapping into this help requires knowing that it exists or having the time and luck to find it.
A different kind of problem arises when women feel pressure to have an abortion, especially when they become pregnant as a result of rape perpetrated by someone who works in the institution (
Roth, 2010
, pp. 82, 84). Coercion of any kind reinforces the need for unbiased information, clear avenues of access to health care, and protection from retaliation, whichever decision a woman makes.What happens to women stymied by prison requirements and forced to continue their pregnancies to term? Many find that their struggle with prison administrators does not end, but rather shifts to the quest for adequate prenatal care and, later, a safe birth experience, in a hospital, free from shackles and restraints (
Roth, 2010
). Women also confront the difficult task of making plans for their babies. If a woman does not wish to place her baby for adoption, she must either find a relative to care for the newborn until she is released or turn to foster care, which can result in permanent separation—most states terminate a parent’s rights to her child after a set period of time in foster care, ranging from as little as 6 months to a maximum of 15 (Solinger et al., 2010
).No woman should have to file a lawsuit to exercise a well-established constitutional right, especially when her life is directly in the hands of the state. All institutions that confine women need to adopt transparent policies that recognize abortion rights and outline procedures ensuring timely access to care. Ultimately, the solution lies both in protecting women’s rights when they are in prison and in curbing the U.S. over-reliance on imprisonment as a response to nonviolent, low-level crimes, so that fewer women face these dilemmas in the first place.
Acknowledgments
The author thanks Courtney Jackson for helpful feedback on a draft of this article.
References
- Abortion and women of color: The bigger picture.Guttmacher Policy Review. 2008; 11: 2-5
Doe v. Arpaio. (2006, May 12). Appellees’ answering brief. Arizona Court of Appeals, Division One.
- Adverse effects of U.S. jail and prison policies on the health and well-being of women of color.American Journal of Public Health. 2002; 92: 1895-1899
- Abortion incidence and access to services in the United States, 2008.Perspectives on Sexual and Reproductive Health. 2011; 43: 41-50
- Abortion access for incarcerated women: Are correctional health practices in conflict with constitutional standards?.Perspectives on Sexual and Reproductive Health. 2009; 41: 59-62
- Jail inmates at midyear 2009—Statistical tables.U.S. Bureau of Justice Statistics, Washington, DC2010
Patrick, R. (2005, October 13). Judge orders prisoner delivered to abortion clinic. St. Louis Post-Dispatch.
Roe v. Crawford. (2008). 514 F.3d 789.
- Searching for the state: Who governs prisoners’ reproductive rights?.Social Politics. 2004; 11: 411-438
- Obstructing justice: Prisons as barriers to medical care for pregnant women.UCLA Women’s Law Journal. 2010; 18: 79-105
- Interrupted life: Experiences of incarcerated women in the United States.University of California Press, Berkeley2010
- Incarcerated women and abortion provision: A survey of correctional health providers.Perspectives on Sexual and Reproductive Health. 2009; 41: 6-11
- Prison inmates at midyear 2009—Statistical tables.U.S. Bureau of Justice Statistics, Washington, DC2010
Biography
Rachel Roth, PhD, is an independent scholar and author of the book Making Women Pay: The Hidden Costs of Fetal Rights. Her work includes research and consulting on reproductive rights and imprisonment; she also contributes to RH Reality Check.
Article info
Publication history
Accepted:
January 31,
2011
Received in revised form:
January 31,
2011
Received:
October 22,
2010
Identification
Copyright
© 2011 Jacobs Institute of Women's Health. Published by Elsevier Inc. All rights reserved.
