Abortion Behind Bars
Terminating a pregnancy in prison can be next to impossible.
In March 2004, a 19-year-old Arizona woman was sentenced to four months in Maricopa County jail for a DUI, shortly after discovering she was pregnant.
She asked for a delay in her sentencing hearing so she could obtain an abortion, but the prosecutor refused, saying she could obtain an abortion while on work furlough. Upon arrival at Tent City Jail, the woman, referred to in court documents as Jane Doe, immediately and repeatedly informed the jail’s health staff that she wished to terminate the pregnancy. But her request was denied. When she persisted in asking for an abortion, Doe was transferred to a facility where work furlough was not allowed and telephone access was restricted. Since county policy did not consider abortion a “medically necessary procedure,” inmates seeking an abortion had to secure a court order that allowed for transport off-site. Inmates were also required to cover the costs of security and transportation up front, as well as the cost of the procedure itself. It took Doe seven weeks to obtain a court order before she could undergo the procedure.
Doe filed a lawsuit claiming the county’s policy was unconstitutional. The superior court ruled in her favor and, following an appeal, the U.S. Supreme Court let the lower court’s ruling stand. Inmates can now seek an abortion without a court order, and even though they must still cover the costs of transportation and the procedure, they don’t have to pay up front.
This was a victory in Maricopa County, but the battle Doe fought there 13 years ago is still being fought by incarcerated women across the country today. Most U.S. states require any woman seeking abortion care to navigate a labyrinth of restrictions designed to obstruct them every step of the way. But for incarcerated women, gaining access to an abortion is even more arduous and can vary wildly depending on the state, county, facility, and even the staff itself. In the sprawling carceral state, every prison and jail exists as its own fiefdom. Even though correctional facilities are supposed to reasonably accommodate a woman who wants an abortion, many don’t have official policies regarding abortion at all, and the personal prejudices of correctional staff, as well as law enforcement, can inhibit an inmate’s right to choose.
Courts have consistently upheld that women who are incarcerated retain their right to an abortion.
In the wake of Roe v. Wade, courts have consistently upheld that women who are incarcerated retain their right to an abortion. There are two main legal standards underlying this precedent. In the 1987 ruling Turner v. Safley, the Supreme Court found that regulations can only burden prisoners’ fundamental rights if they are “reasonably related to legitimate penological interests,” such as deterring crime, rehabilitating prisoners, and maintaining security. The second standard was established through Estelle v. Gamble in 1976, which found that failing to provide inmates with adequate medical care constitutes cruel and unusual punishment.
Multiple lower courts have applied these standards to invalidate restrictive abortion policies in correctional facilities. After the Missouri Department of Corrections instituted a policy in 2005 prohibiting all female inmates in state prisons from pursuing “elective” abortions, the 8th Circuit court held that this policy was unconstitutional under the 14th Amendment. In the New Jersey case Monmouth County Correctional Institution Inmates v. Lanzaro, the 3rd Circuit held that an inmate’s decision to have an abortion constitutes a “serious medical need,” and thus facilities cannot erect economic and administrative burdens that prevent women from accessing care because doing so infringes on their 8th Amendment rights.
“When a woman becomes incarcerated, she does not give up her right to have an abortion any more than she gives up the right to have a child,” said Brigitte Amiri, a senior staff attorney at the ACLU’s Reproductive Freedom Project. “That’s really the crux of it.”
However, legal precedent can mean little in jails and prisons where inmates are at the mercy of their jailers and accountability can be weak. If an inmate discovers she is pregnant, inquires about abortion, and is told no, she may not know that this response is against the law. She may not know that the powers-that-be at correctional facilities cannot force her to carry a pregnancy she does not want. She may not know that she has recourse. She may not know that she can inquire about abortion at all.
“There are several layers when thinking about whether a woman who wants an abortion and is in jail or prison can access one,” said Carolyn Sufrin, an assistant professor of gynecology and obstetrics at the Johns Hopkins School of Medicine. “First, does she know she has the right to abortion? When people are in prison and jail, it’s intentional that their rights are stripped from them. It’s part of punishment, and they may assume they give up their right to have an abortion.”
As with anything involving logistics, these logistics can become barricades.
Even if an inmate knows abortion is her legal option, corrections staff have ample opportunity to ignore and obstruct her request. Prisons and jails do not provide abortion care on-site, which means inmates must be transported off-site to a licensed provider. As with anything involving logistics, these logistics can become barricades. The denial of care may not be as blunt as saying “no,” but prison staff might provide misinformation about rules, drag their feet, or tell an inmate she has to pre-pay hefty fees.
“If the nurse giving her information has a bias against abortion, she might just say, ‘We are going to sign you up to see a doctor and not mention that abortion is a possibility,” said Rachel Roth, a reproductive justice scholar and activist who studies how incarceration affects women’s reproductive rights and health. “Even if a woman says, ‘I don’t think I want to have this baby,’ the nurse might say, ‘Well, we don’t do that here — you can’t have an abortion.’ It is incumbent on the woman to go ask somebody else. She has to be really determined if she decides an abortion is what she wants.”
It’s hard to know how many incarcerated women seek abortion care, and harder to know how many are denied. The Bureau of Prisons estimates that 70 percent of the 215,000 women incarcerated in the United States are of childbearing age, and the Department of Justice reports that 1 in 25 women at state prisons and 1 in 33 women in federal prisons are pregnant upon admittance. The estimates for jail are fuzzier — the most recent survey available was from 2002 and indicated that 5 percent of women (or one in 20) entering jail were pregnant. Other estimates are higher. In any case, thousands of women in U.S. custody are pregnant when they enter.
Many of these women do not have good access to healthcare before they go into custody, so the medical exam they receive upon admittance may be the first time they learn they are pregnant. What happens next can determine a woman’s fate. If an inmate wants an abortion but the staff at the facility does not mention it as an option, she may feel she has no choice but to carry the pregnancy to term.
“There are no mandatory standards for healthcare in prisons and jails, no mandatory oversight, and no transparency,” Sufrin said. “So what you get is tremendous variability in what policies and services are out there.”
Anecdotal evidence about incarcerated women seeking abortions surfaces primarily through lawsuits. Court records show that incarcerated women in at least 20 states have had to fight for their right to have an abortion. Not every woman seeking an abortion in jail or prison will be denied one. But three recent cases, from Tennessee, Indiana, and Alabama, illustrate the lengths that incarcerated women must sometimes go to to obtain an abortion, and the lengths to which their jailers and the state will go to stop them.
At the time, she did not know she was pregnant. She found out two weeks later, and unable to post the $1 million bond, asked her counsel to notify the sheriff that she wanted an abortion. Her counsel sent a letter to Sheriff Bucky Rowland, who refused the request, saying his department would not provide funding or transportation for an abortion unless the woman’s life was in danger or the pregnancy was the result of rape or incest.
“We felt like it was an elective procedure,” Rowland said in an interview with the local Daily Herald newspaper. “Her health and her life was not in jeopardy. No other circumstances came into play, except she wanted to have an abortion.”
Cathey and her lawyer tried to lower her bond requirement and secure a pretrial release so that Cathey could obtain an abortion outside of county custody. Her bond was subsequently lowered multiple times, but she still couldn’t come up with the money for several months. By then she was beyond the second trimester of her pregnancy and no doctor in Tennessee performs abortions after 16 weeks. Cathey gave birth on April 6, 2016, four months after she was released. Since then, she has received counseling for postpartum depression.
Cathey is now suing Rowland, the county, and the sheriff’s department for violating her 8th and 14th Amendment rights. She is seeking $150,000 in actual damages and $1.35 million in punitive damages to offset the current and future expenses of raising her child.
Women now represent nearly 7 percent of the U.S. prison population, a larger proportion than ever before.
Between 1980 and 2014, the number of incarcerated women increased by more than 700 percent, to 215,000, and while there are far more men in prison than women, the growth rate of female imprisonment has outpaced men one and a half times. Women of color are imprisoned at far higher rates than white women, although since 2000, the rate for African-American women has steadily declined while the rate for white women has steadily risen.
Most women are incarcerated for nonviolent offenses, such as drug possession, fraud, and robbery, that stem from poverty. Incarcerated women had a median annual income of $13,980 prior to their incarceration, according to the Prison Policy Initiative, which is 41.5 percent less than non-incarcerated women of similar ages.
“Women are often arrested for things that are deeply tied to their experiences of poverty and racial discrimination, as well as histories of trauma, addiction, and abuse,” said Sufrin. “They are not hardened criminals. Their incarceration is much more about structural inequalities in their lives. They are there because they’ve had bad life circumstances and became trapped in the criminal justice system.”
So most women who enter jail or prison do not have the money to afford an abortion, much less the additional costs that correctional facilities can add. They also have limited capacity to accrue savings while incarcerated. Roth said women in jail often remain in jail because they cannot afford bond.
Saving enough to afford an abortion could take months, and pregnant women do not have time on their side.
Women in jail are usually not afforded the opportunity to work, and thus to save. Women in prison do have work opportunities, but they make somewhere between 23 cents and 93 cents an hour. Saving enough to afford an abortion could take months, and pregnant women do not have time on their side.
“Financial issues are a huge barrier,” said Roth. “It’s hard for low-income women in general to come up with the money to pay for an abortion, and someone who is in jail or prison cannot sell something, get an extra job, or easily call friends and ask for a loan. It is unrealistic to expect somebody who is incarcerated to come up with the money.”
The Hyde Amendment prohibits the use of federal funds to pay for abortions, so the Federal Bureau of Prisons cannot cover the cost of the procedure for women in federal custody, except in extremely limited circumstances. (Correctional facilities do cover medical expenses related to pregnancy and childbirth.) Thirty-three states extend the Hyde Amendment and prohibit state funding of abortions, meaning most incarcerated women have to pay for the procedure themselves. An abortion costs around $500 for a first-trimester procedure and climbs each subsequent week.
Costs related to abortion care extend beyond paying for the procedure itself. Over 90 percent of U.S. counties have no clinics that provide abortions, according to the Guttmacher Institute. Most abortion clinics are concentrated in urban areas while most prisons are in rural areas, meaning it’s likely the journey to an abortion provider will be a long and potentially costly one. Furthermore, 27 states require women to wait a specified amount of time between mandatory counseling and the procedure, necessitating two trips. For women expected to cover transportation and security costs, this means paying double.
With limited ability to earn or borrow, most inmates’ only option is generally a donor, like the National Network of Abortion Funds, that can help offset the costs. But Roth said women who are incarcerated often don’t know these funds exist and correctional staff may not tell them. Furthermore, the logistics of contacting a fund are not easy from jail or prison, where communication is heavily restricted and expensive. It’s not feasible without outside help from a lawyer, family member, or friend, and even then, all the shifting variables still need to fall into place.
“It’s really not fair that people have to luck into finding the right information or private charity to exercise their constitutional right,” Roth said.
Shortly thereafter, she became pregnant and picked up new charges for a misdemeanor offense. Doe tried, but was unable, to obtain an abortion before she returned to prison, so when she reentered IWP on Jan. 20, 2016, she informed multiple staff members that she wanted to have an abortion.
Doe claims staff at the prison repeatedly and deliberately placed obstacles in the way of her access to an abortion provider and repeatedly denied her requests to be transported to a healthcare provider to obtain an abortion. Prison employees allegedly told Doe that she had to “pre-pay” around $1,000 for the costs of transportation, vehicles, and the guards’ time to travel to the abortion provider, as well as the cost of the abortion. They gave her one week to come up with the money. Doe also claims that prison employees misled her about her options for abortion care and where she could get help to pay for the procedure.
Even after Doe’s repeated inquiries about abortion, the employees soon began treating her as if she was going to carry the pregnancy to term — moving her off the top bunk in her cell, placing her on a “pregnancy diet,” and providing prenatal care.
“Within a week, they were like, ‘OK, you didn’t come up with that money, so you are carrying your pregnancy to term,’” said Kathrine Jack, an attorney who is representing Doe in a lawsuit against the prison. “They kind of put her on the track. It’s interesting that they treated her differently based on whether she was pursuing the abortion or not.”
Doe then sought legal assistance. Her counsel sent a letter to the Commissioner of the Indiana Department of Corrections and the superintendent of the prison demanding that Doe be allowed to visit an abortion provider. Doe also filed a grievance with the prison, which went unheeded.
On Feb. 19, the corrections department said it would transport Doe to a provider if a private donor paid for the transportation costs in advance. A nonprofit stepped in with the money. On March 8, seven weeks after she arrived at the prison, Doe was finally transported to a licensed abortion provider, where she discovered she was 14 weeks pregnant. No abortion clinics in Indiana can perform the procedure after 13 weeks and 6 days. A request to visit an out-of-state facility that could provide the procedure was denied. By the time Doe was released in May, she was six months pregnant, and she gave birth to a child on Aug. 31, 2016.
Doe’s suit alleges that asking a woman to pre-pay — and to cover not only the cost of the procedure but also the cost of transportation (vehicle, gas, tolls) and security (guard time, perhaps overtime) in advance — is saying no without saying no.
“They told her that she had to pre-pay in order to have any chance of getting an abortion,” Jack said. “Obviously if you have just been incarcerated and you are an indigent woman, there is no way to come up with $1,000 in a week, especially when sitting in prison. It was an impossible task.”
The financial hurdles can be steep, but they aren’t the only ones.
Some facilities require women to get a court order to be transported off-site if a medical procedure is considered “elective” or “voluntary.” Such orders can take time to procure, and for a woman seeking an abortion, every day matters. A court order allowing her to be transported to a clinic is meaningless if she cannot get there in time.
Court order requirements also draw extraneous people into what advocates say should be a personal, private decision. Abortion remains a topic that carries stigma and can be difficult to talk about. Forcing a woman to share with a judge — along with guards, sheriffs, wardens, counselors, medical staff, and fellow inmates — that she wants to end a pregnancy can be intimidating and humiliating.
“Court orders are a tremendous burden,” said Sufrin. “It means [women] have to go in front of a judge and explain why want to be transported off-site. They have to disclose to a judge that they want an abortion and put themselves out there like that.”
Many correctional facilities consider abortion to be an “elective” procedure.
And then there’s the reason court orders are deemed necessary in the first place: because many correctional facilities consider abortion to be an “elective” procedure. In the Jane Doe case in Arizona, Amiri, who worked on the case, said County Sheriff Joe Arpaio claimed an abortion was the same as plastic surgery—like getting a nose job. Elective procedures are those that can be delayed or foregone without risking irreversible or serious harm. Abortion does not fall into this category.
“There is this idea that abortion isn’t part of healthcare — that it’s something ‘other’ or ‘different’,” Amiri said. “Labeling it as elective reflects an animosity toward abortion and the idea that women who have abortions should feel shame and stigma.”
The woman, also known as Jane Doe, was in custody of the Lauderdale County Jail in 2015 and requested medical furlough to have an abortion. The sheriff’s office refused her request, telling her she needed a court order to leave jail due to the “elective” nature of the procedure. However, in a small rural county in Alabama — a state known for its heavy-handed opposition to abortion — the chances of getting a judge to grant the order were slim. Randall Marshall, a lawyer from the ACLU Alabama who worked on the case, said even before the hearing, there were rumblings that the judge would oppose the order, so they filed a federal lawsuit instead.
Attorneys for the state of Alabama retaliated by filing a motion, in juvenile court, to terminate Doe’s parental rights over her fetus and appointed a guardian to represent the fetus in the hearing. The district attorney told reporters that if her parental rights were taken away, Doe would not have standing to obtain the abortion.
The story gets stranger from there. A few days later, Doe said she had “changed her mind” and decided to have the baby after all. According to Marshall, Doe already had a child and if the state successfully revoked her parental rights to the fetus, the ruling could extend to her first child as well. She dismissed the lawsuit and said on the record that she did not want to terminate the pregnancy.
“It doesn’t take much to read between the lines [to see] the incredible pressure that went on behind the scenes to coerce her to make that decision,” Marshall said. “We firmly believe it was Jane Doe’s fundamental right to make her own decision, whether that’s to obtain an abortion or to deliver a baby. But having initially made the choice to obtain an abortion and then seeing the power of the state coming to bear on her in terms of the termination of parental rights and appointment of attorney in state court — it’s not pretty.”
The challenges to accessing abortion care do not exist at all correctional facilities.
Sufrin cited the San Francisco County Jail as an example of a correctional facility doing women’s healthcare, including abortion care, “right.” It provides counseling for pregnant inmates, transports them to clinics for the procedure in a timely manner, and covers the costs.
But this jail is an exception. There are many jails and prisons, wardens and sheriffs, who seem to do whatever they can to stop the women in their charge from accessing abortion. And yet they do little to make giving birth from their facilities seem like a desirable option.
Healthcare in most correctional facilities is abysmal. A 2011 report from the American College of Obstetricians and Gynecologists found that 38 states lacked adequate policies regarding prenatal care and 41 states did not require prenatal nutrition counseling or the provision of appropriate nutrition to incarcerated pregnant women. Incarcerated women are more likely than the general population to have high-risk pregnancies, and yet 34 states do not require screening and treatment for women with high-risk pregnancies— increasing the chance that these women and their infants will suffer extreme complications, perhaps even death.
“The prison system was set up with men as the default prisoner, so all the rules and policies were designed with men in mind.”
“The prison system was set up with men as the default prisoner, so all the rules and policies were designed with men in mind,” said Sufrin. “Issues that are uniquely about women’s health, like pregnancy, are an afterthought and [facilities] have to scramble to figure out policies to address them. Incarcerated women really have been neglected.”
Incarceration can make labor and delivery traumatic as well. Shackling of inmates during childbirth remains a common practice. According to the National Women’s Law Center, 36 states fail to “comprehensively limit,” or limit at all, the restraining of pregnant women during transportation, labor and delivery, and postpartum. After carrying a pregnancy and giving birth while incarcerated, most of these women are separated from their babies. Children born to incarcerated mothers are usually taken from them within 24 hours and placed with family members or in the foster system.
Nor do the challenges of motherhood go away once a woman is released. If she is poor when she goes into jail or prison, she will be even more so when she gets out, and her record may make it difficult to get a job, as well as housing and education, that would enable her to support a family. Around 60 percent of women who are incarcerated already have children, and the burden of raising another can be great.
The barriers faced by incarcerated women who try to access abortion are extreme, but they are part of a general environment where reproductive rights for all women remain contentious. Advocates say the experiences of women in jail and prison reflect what happens when women aren’t allowed to make decisions about and have control over their bodies, whether they’re behind bars or not.
“This is not just about understanding abortion access for these vulnerable, forgotten women, but also about all women in this country,” Sufrin said. “What happens with abortion access when no one is looking tells us a lot about what we think and do about abortion access in general. It’s sort of a canary in a coal mine.”
Rebecca Grant is a freelance journalist based in Brooklyn. She writes about reproductive rights.