An illustration of a woman chained to a gestational sac.

Incarcerated and Pregnant in Post-Roe America

Access to abortion and other reproductive health care was already inconsistent in the U.S. carceral system. The Dobbs decision will make the situation even worse.

By Anna Louie Sussman • Illustration by Daria Kirpach

At the Women’s Health Specialty clinic Carolyn Sufrin helped found at the San Francisco County Jail, abortion care was relatively straightforward.

New arrivals to the jail underwent health screenings as part of the intake process. Those who found out they were pregnant were offered counseling about their options, and, if desired, an appointment for an abortion at a local hospital was arranged by jail staff and paid for out of the jail’s medical budget, just like any other necessary health care. But Sufrin, MD, PhD, an associate professor of Gynecology and Obstetrics at the Johns Hopkins School of Medicine and in Health, Behavior and Society at the Bloomberg School, knows from her pioneering research on incarcerated pregnant people that this standard of care is far from the norm. With “no mandatory system of oversight that prisons and jails must adhere to, you have tremendous variability,” Sufrin says, adding that even the question of who would pay for a health care service such as abortion varies between facilities.

In 2019, the Prison Policy Initiative reported there were about 231,000 incarcerated women in the U.S. Sufrin and her colleagues have estimated that there are about 58,000 admissions of pregnant women annually to American jails and prisons. (Jail is for shorter-term stays of under a year while prisons are where those convicted serve out their sentences of a year or more.) While women make up just 7% of the overall incarcerated population, their incarceration rates have risen more swiftly in recent decades than men’s; between 1980 and 2020, the number of incarcerated women increased more than fivefold, from 26,326 to 152,854. Abortion rates among the incarcerated are far lower than those of the general population: overall, about 4.2% of pregnancies in incarcerated individuals compared with about 18% in the general population in 2017. According a study by Sufrin, just 11 out of 1,396 pregnancies in a population sample taken from 22 state prison systems, all federal prison sites, and six county jails, in 2016–2017—ended in abortion. In jails, 33 of 224 pregnancies, or 15%, ended in abortion. This suggests that even before the constitutional right to abortion was toppled by the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in June, incarcerated women were already accessing abortion at far lower rates than their counterparts outside.

Now that abortion regulation has fallen back to the states—around a dozen of which have severe bans that have taken effect since June—this already limited access will further recede.

Now that abortion regulation has fallen back to the states—around a dozen of which have severe bans that have taken effect since June—this already limited access will further recede. “Pregnant people who are incarcerated in states where abortion is illegal or severely restricted, they are going to suffer disproportionately, because they don’t even have the option to travel elsewhere,” Sufrin says. “A prison or jail is not going to transport someone out of state for a procedure that is illegal in their state.”

Before Dobbs, courts recognized that incarcerated individuals had the same constitutional right to abortion as anyone else. “Courts consistently recognized that the right to abortion survived incarceration,” says Alexa Kolbi-Molinas, a deputy director of the Reproductive Freedom Project of the ACLU. Indeed, the incarcerated population is the only subset of Americans entitled to guaranteed health care, under a 1976 decision, Estelle v. Gamble, which held that failing to provide adequate health care to address the “serious medical needs” of those who are incarcerated constituted cruel and unusual punishment under the Eighth Amendment. “Whether or not a prison or jail is in violation of the Estelle standard depends on whether the courts consider abortion to be a serious medical need,” Sufrin says. “In the past, the courts have affirmed that abortion is a serious medical need. But obviously that is up for reinterpretation now by the courts. If they decide that abortion is not a serious medical need, then a prison or jail that does not permit abortion would not be in violation of Estelle.”

In the few abortion cases that have made it to court in recent decades, plaintiffs denied abortion care by the authorities overseeing their incarceration almost uniformly won. But with Roe no longer the law of the land, the legal basis on which most of those decisions relied is now gone. “We would still argue that it’s unconstitutional to sentence someone to forced birth,” says Kolbi-Molinas. “The punishment has to fit the crime, and forced birth is not a constitutional punishment for anyone.” But, she added, while the 14th Amendment question of whether abortion is protected under the right to privacy has now been decided by the nation’s highest court, the Eighth Amendment question has not yet been addressed by any courts thus far in the post-Dobbs era.

The overturning of Roe simply formalized what was already a reality for many people in the U.S., where the number of clinics performing abortions has been steadily declining in huge swathes of the country, as legal restrictions such as parental notification laws, waiting periods, and clinic regulations grew. And the “right” to abortion has always, in practice, been guaranteed only to those with the time and resources to obtain it; federal funds have long been prohibited from paying for abortion care. Even when Roe guaranteed the constitutional right to abortion on paper, nearly 1 in 10 abortion patients traveled out of state for their care, according to the Guttmacher Institute, a research organization that supports abortion rights. For incarcerated women, an already tenuous situation has become even more challenging.

Pre-Dobbs, abortion access for incarcerated women was “abysmal,” says Andrea James, JD, the founder and executive director of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, who was formerly incarcerated at a federal correctional facility in Danbury, Connecticut. Post-Dobbs, she anticipates, the states gearing up to ban abortion “will just trigger a complete evisceration of the right to choose in states that already had little access,” she says. “Imagine those women who are in states where it was already almost impossible for women on the outside, for poor women, Black women, to access the right to choose—now you’re in a prison that’s deep within a state that is surrounded by red states where they will not allow for abortion. That’s a real, real concern.”

Even in states without outright bans, the bureaucratic delays that are generally part of health care in carceral settings will pose a problem, adds Andrea Knittel, MD, PhD, an assistant professor of Obstetrics and Gynecology at University of North Carolina at Chapel Hill. These delays may push eligible patients past the point of eligibility in places with gestational age limits dictating when an abortion can be performed, such as states that ban abortion after six or eight weeks. “Even if their facility helps to coordinate appointments and all of those things, all of the literature would tell us that health care in jails and prisons often involves some amount of delay,” Knittel says. “The additional time … between what would just have been a phone call by a patient to a provider—the addition of anywhere from a couple of days to a couple of weeks—I think is likely to represent the difference between yes and no, for can someone access abortion when they need to.”

“They are going to be forced to carry unwanted pregnancies or unsafe pregnancies against their will, as part of their punishment."

These barriers arise just as, Sufrin anticipates, carceral facilities may be faced with an increased number of pregnant people, given the increased restrictions on abortion access outside of jail or prison. “People who otherwise terminated pregnancies are going to be continuing, and that, I suspect, will also be true in prisons and jails—people who would have otherwise had abortions in the community and then maybe get arrested for things.” Such an influx of new pregnant patients, she predicts, will put additional strain on scarce health care resources. (James also fears for people who become pregnant while incarcerated, as a result of sexual violence in women’s prisons.) “Prisons and jails already have variable and limited abilities to meet the health care, mental health, and social needs of pregnant people,” Sufrin says. “This is only going to exacerbate those already limiting and limited systems.” And just as abortion bans are chilling the provision of miscarriage care for people outside of carceral institutions, Sufrin envisions incarcerated individuals having an even more difficult time availing themselves of complex pregnancy management or medically necessary abortions.

Ultimately, reduced abortion access for the incarcerated population will mean that more pregnant individuals will be carrying their pregnancies to term, and then, depending on the length of their sentence, will be forced to relinquish those babies to family members or the state. (The only subset of the incarcerated population in abortion-restrictive states that may still have access is the small share of incarcerated individuals who are in federal prison, because the federal government has the capacity to transfer prisoners across state lines.) “They are going to be forced to carry unwanted pregnancies or unsafe pregnancies against their will, as part of their punishment. Then they’re going to be forced to give birth because they were incarcerated. And not only were they denied the ability to have an abortion, but they are then denied the ability to parent because their newborns are taken away from them immediately. And they’re going to experience birth under duress, and under circumstances they don’t control,” says Sufrin, enumerating the cascade of indignities she fears will befall incarcerated pregnant people in the near future. “It violates all the principles of reproductive justice, all in one pregnancy.”

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