When the US supreme court decided to strip away constitutional abortion protections in June, it effectively made the situation for many pregnant incarcerated women who are seeking abortions a lot worse.
Conditions for reproductive healthcare in many US prison facilities are often abysmal. With many pregnant inmates regularly facing dire circumstances, including being denied abortions or being forced to give birth while shackled, experts warn that the overturn of Roe v Wade will now result in even more severe consequences for an already marginalized community.
From 1980 to 2020, the number of incarcerated women across the country increased by more than 475%, according to the Sentencing Project. In 2020, Idaho led the nation in the highest female state imprisonment rate, at 110 per 100,000 female residents, followed by Oklahoma, South Dakota, Arizona, Wyoming, Kentucky and Montana. As of two years ago, the imprisonment rate for Black women was 1.7 times the rate of the imprisonment for white women. Meanwhile, Latinx women were imprisoned at 1.3 times the rate of white women.
The Prison Policy Initiative found that an average of 58,000 people are pregnant each year when they enter local jails or prisons. In many of the states that already have the highest female state imprisonment rates, they also now have strict abortion laws that ban the procedure almost entirely.
As a result, the overturn of Roe v Wade is expected to make the lives of pregnant incarcerated people who are seeking abortions increasingly difficult.
“People experiencing incarceration and pregnancy in states where abortion has been severely restricted or outlawed altogether will likely face new barriers as jails and prisons seek to hide behind the supreme court’s decision to avoid their constitutional obligation to provide healthcare (including abortion) to people in custody,” Alexa Kolbi-Molinas, deputy director of the Reproductive Freedom Project at the American Civil Liberties Union told the Guardian.
“Even where correctional staff and officials do not deliberately block access to care, the reduced availability of services and need to travel even greater distances to access legal abortion, and the greater demand for services in states where abortion is still legal, will only exacerbate all the financial and logistical obstacles that already existed,” she added.
A study led by Carolyn Sufrin, the director of the Advocacy and Research on Reproductive Wellness of Incarcerated People program at Johns Hopkins University, surveyed incarcerated people’s abortion access across 22 state prison systems and six county jail systems.
The study, which collected policy data for 12 months in 2016 to 2017 and was published in 2021, found that there were already a myriad of obstacles such as self-payment requirements that can prevent a pregnant inmate from obtaining the care. Out of the 19 states that then permitted abortions, two-thirds required the pregnant inmate to pay.
Only 11 of the 816 pregnancies in state and federal prisons that ended during the study time period were abortions, or 1.3%. Out of 224 pregnancies that ended at study jails, 33 were abortions, with over half of those happening during the first trimester.
“There were already few abortions in prison settings … so will [the overturn of Roe] impact abortion access for an incarcerated individual? Absolutely,” Sufrin said.
For a lot of incarcerated women across the country, many remain behind bars because they are unable to afford bail. As a result, self-payment requirements for those seeking abortions are often very difficult to fulfil.
“State prison systems or jails sometimes would force pregnant people to pay for the procedure, sometimes including even the cost of transport or the time to have prison guards with them, which is problematic because normally if an incarcerated person is going off site for any other medical procedure, they wouldn’t be charged for the cost of transport or the time for the guards,” Corene Kendrick, deputy director of the ACLU’s National Prison Project, told the Guardian.
“Trying to expect those people in jails to come up with the money for transport to an offsite abortion procedure when they can’t even come up with the money to make bail, to go home to their families, really creates an insurmountable barrier.”
In 2017, Kei’Choura Cathey, a former inmate who discovered she was pregnant in August 2015 while awaiting trial, sued the Maury county sheriff in Tennessee, claiming that he denied her the right to an abortion because her pregnancy was not a threat to her health nor the result of rape or incest.
Cathey’s only option at the time was to post bail so she could leave jail to receive the abortion. However, her bail was set at a staggering $1m. Eventually, her bond was lowered to $8,000. However, according to the lawsuit, by the time Cathey was able to post bond, she was already more than six months into her pregnancy, thus making her abortion illegal.
Experts fear a lot of pregnant incarcerated women seeking abortions in a post-Roe reality may face similar circumstances.
“Prisons or jails will argue … that’s an elective procedure so we are not going to cover it,” said Kendrick, which could force many incarcerated pregnant women who are unable to cover the procedure to carry their pregnancies to term.
For a lot of pregnant inmates, birthing conditions in prison facilities are already dire. Numerous reports in recent years have emerged of inmates either being forced to deliver while shackled to their beds or having to deliver their babies on their own.
While some states – and in effect, prison facilities – have passed outright bans on abortion as a result of the supreme court’s ruling in June, others have not overhauled abortion protections just yet.
In Wyoming, for example, abortion is legal but remains restricted, as it can only be performed until fetal “viability”.
In a statement to the Guardian, Wyoming’s department of corrections said that the supreme court ruling on Roe in June has not affected its policies on abortion-related issues.
“The WDOC has not had any change in policy or care for abortion related issues in the WDOC for inmates or offenders. The WDOC does on occasion have female inmates that are pregnant during incarnation and they are cared for at the Wyoming Medium Correctional Institute in Torrington, WY. We rely upon the expertise of expert medical advice in all decisions related to the health and wellness of our inmates.”
Ultimately, according to Sufrin, “there’s tremendous variability in what healthcare service deliveries look like on the ground, and systems are not really set up to provide the full scope of comprehensive pregnancy and postpartum care for people.”
For pregnant incarcerated people who are sent off-site for abortions, another issue that has emerged since Roe’s overturn is the hesitancy or even outright refusal from external healthcare providers to perform the abortions.
“We’ve already seen instances of local hospitals turning people away and not providing medically necessary care because of ambiguities in the law, [such as] there might still be a heartbeat, those sorts of things. Then the carceral facility is left to manage dangerous bleeding or an ectopic pregnancy and they’re just very much ill-equipped to do that and don’t want to and should not,” Sufrin said.
“Even in the best of circumstances, there’s still a lot of constraints and a lot of trauma that pregnant folks experience. So now after the Dobb’s decision, we anticipate … that we’re going to have more pregnant people in our country and fewer people with access to abortion. And I believe that we will see that in incarcerated settings as well,” she said.
