‘They might have to give birth in chains’: Abortion access behind bars after the end of Roe v Wade

Abortion access in prisons was already ‘abysmal.’ The end of Roe v Wade made things even worse, Josh Marcus reports

Female detainees turn their backs to the visiting media as instructed by Homeland Security officials inside Homeland Security’s Willacy Detention Center. (AFP via Getty Images)

Jane Roe, a 22-year-old Nebraska inmate, wanted an abortion. Knowing that the state had a ban on the procedure after 22 weeks, she quickly alerted prison officials so she wouldn’t miss her window.

Inexplicably, officials rejected the request, even though it was a legally protected part of the medical care those inside Nebraska Correction Center for Women could access. She made more requests, which were also denied. After one, officials said they couldn’t go through with the procedure because Jane had to pay for it herself, and there was a 21-day freeze on money going to inmates. Soon, factoring in the state’s mandatory waiting period and counseling periods before an abortion, she was inching towards the legal cutoff date.

She decided to sue the prison in April, arguing her 14th Amendment rights were being violated. The facility finally relented, and a corrections officer resigned in protest of the lengthy wait Jane Roe faced.

This was all in 2021, before the Supreme Court overturned the constitutional right to an abortion in June. Nebraska joins the many states considering (or commencing) banning abortions altogether.

According to doctors and advocates, it’s now nearly impossible for incarcerated pregnant people in the 25 states with partial or full abortion bans to access the procedure, while those in states where it’s legal still fight an uphill battle to get care. And people in both scenarios are in the hands of a prison medical system that’s been consistently shown to fail mothers.

Women are the fastest growing population in the US prison population, and many of the estimated 58,000 pregnant people who enter prisons and jails each year have suffered from sexual assault, trauma, poverty, and domestic abuse.

“Those are all things that can lead to unwanted pregnancies. You’ve got this population that are more in need of abortion than the average person, and they’re less likely to be able to access them,” Wanda Bertram of the Prison Policy Initiative (PPI) told The Independent. “As soon as a state criminalises abortion overall, it’s going to make it effectively impossible to deliver abortion care behind bars.”

The 10 states with the highest female incarceration rates—Idaho, Oklahoma, South Dakota, Arizona, Wyoming, Kentucky, Montana, Arkansas, Mississippi, and West Virginia—are also those on their way to more abortion restrictions.

As a result, pregnant people in these states face a harrowing set of conditions.

A 2020 PPI report found that at least 20 states had inadequate prenatal care in their prison systems, and new mothers are often separated from children born behind bars in a matter of hours, forced to put their children in the care of family or send them into the foster system.

In June, a federal court found that Arizona’s $280m-a-year privatised prison health care system overall was so “appalling” and “grossly inadequate” that it was a denial of constitutional rights to those inside.

Pregnant people were only given an extra peanut butter sandwich and a carton of milk for prenatal nutrition. Inadequate supplies were on offer to those who suffered post-partum bleeding, who only got a thin panty liner at most. One patient, who prison authorities knew had a history of drug use, wasn’t recommended for methadone therapies that may have saved her from having a miscarriage.

“The medical care that incarcerated people get in jails, prisons, or ICE detention centers is often abysmal. And they each have shown historically that they’re not able to address pregnancy or postpartum needs,” according to Corene Kendrick, deputy director of the ACLU National Prison Project.

The situation is hardly better in states where abortion still is legal.

“Unfortunately in practice, some jail and prison systems make it virtually impossible for incarcerated people to obtain an abortion,” Ms Kendrick added.

The Supreme Court has ruled that prisoners have a right to adequate medical care, and state courts have interpretted that to cover abortion, but there’s often a vast distance between what courts say is mandatory and what prisons actually provide in practice.

According to a landmark 2021 study of 22 state prison systems, all federal Bureau of Prisons sites, and six county jails, only half allowed abortion in the first and second trimesters, and 14 per cent barred abortion altogether. Among the 19 states allowing abortion, two-thirds required inmates to pay for it themselves, a bill that often went beyond the procedure itself to cover staff overtime and transportation. Pregnant people are nearly 20 times less likely to get an abortion in prison than in the outside world.

“You’re stuck between this rock and this hard place, when you can’t really get good pregnancy care, but you’re also struggling to get abortion access,” Ms Bertram of PPI Said “It’s sort of a Catch-22.”

After the Dobbs decision overturning Roe, pregnant people outside of prison can at least travel to other states to access abortions, get the treatment via mail-order medication, or, sometimes at great personal risk, access underground treatment options. All of these options are difficult enough in their own right, and none are available to incarcerated pregnant people, according to Dr Carolyn Sufrin, a Johns Hopkins professor of gynecology and obstetrics, and a co-author of the 2021 prison survey of reproductive care.

“They can’t move. They can get in a car. They can get on a bus. Someone who’s incarcerated has no control over where they are. They have to stay there,” she said.

Federal prisons, which until June were at least nominally bound by Roe v Wade, also required inmates to pay for upwards of $500 for an abortion under the so-called Hyde Amendment, which bars federal funds going towards abortion except in the case of health emergencies and rape.

There are also the hundreds of thousands of women on parole at any given time in the US. According to the PPI, at least 200,000 parolees live in 13 states where abortion ban “trigger laws” are going to be put in place, and it ranges from unclear to unlikely that the terms of their parole will allow them to cross state lines to get an abortion.

The BOP said it is still reviewing what abortion rights its inmates have in the post-Roe world, and whether those extend to people housed in federal facilities in states where abortion is now illegal.

“The Bureau of Prisons is reviewing all of the potential policy options for protecting the reproductive health of inmates in our care and custody,” Donald Murphy of the BOP told The Independent.

Dr Sufrin is doubtful the federal government will go the extra mile for these patients. The Biden administration has already pushed back against persistent calls to open abortion clinics on federal lands, arguing it would lead to “dangerous ramifications.”

“It’s hard for me to imagine that they would facilitate transporting someone in their custody to another state to obtain what is considered illegal care in their home state,” Dr Sufrin said.

“For pregnant people in those states where abortion is illegal, they’re going to be forced to carry unwanted pregnancy, forced to give birth. And they’re going to do so where their access to quality prenatal care is highly variable and sometimes non-existent.

“They might have to give birth in chains.”

Meanwhile, some facilities in states which allow abortion in name simply fail to have written procedures for when an incarcerated person asks for an abortion, or have processes which allow for considerable personal discretion for officials to deny requests at their whim.

All told, those in prison face the very real prospect of being forced to carry pregnancies to term, in a system that puts them at medical risk then separates them from their children.

“What we can say is this is making a bad situation even worse,” Dr Sufrin said. “Humans deserve healthcare. It doesn’t matter what they did, they deserve health care. If they’re pregnant then they should have access to full-scope pregnancy care, whether that’s abortion care or comprehensive prenatal and postpartum care. The Supreme Court has recognized that.”

The last few months have shown, however, that the Supreme Court can take away rights as fast as it grants them, rights which often fail to make it past the prison gate in the first place.