The Forgotten: Incarcerated Pregnant Women, Access to Abortions, and Implications for the Rest of Us.
By Samantha Pline
Planned Parenthood, the right to abortion, and access to women’s healthcare has been a hot topic in politics and the press in recent months. In all of these conversations, one group of women are often left out, pregnant women in prison. These women represent a part of the population that remains without a strong voice and is often overlooked by advocate groups. Women’s healthcare in prison is not a well-studied field, and the issues uncovered in those studies have wider implications in healthcare advocacy. People incarcerated in women’s prisons often do not have access to the medical care that they have a right to. Access to healthcare that is targeted to a female population, including access to gynecological and obstetric services, generates greater gender equality. Estelle v. Gamble guarantees the right to medical care for inmates. “…deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’… [is] proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care.”[i]
This eighth amendment argument for medical care has been the cornerstone for legal struggles for women to access pre-natal, abortion, and post-natal care. “…incarcerated pregnant women face challenges that range from convincing prison officials that they are pregnant or are in labor to obtaining sufficient nutrition or necessary prenatal care. Once birth approaches, they often face a series of constraints and indignities ranging from loss of control over the timing and method of delivery to the prohibition of ordinarily-available pain medication and the micro-managing of who may be present in the delivery room.”[ii] The Federal Bureau of Prisons has two provisions that related to women prisoners seeking abortions: (1) “A pregnant inmate will be offered medical, religious, and social counseling to aid her in making a decision whether to carry the pregnancy to full term or to have an elective abortion. (2) A pregnant inmate, who so chooses, will be provided an elective abortion at Bureau expense, only when the life of the mother would be endangered if the fetus is carried to term, or in the case of rape.”[iii] While this policy does allow for a woman in a federal prison to obtain an abortion, it does not guarantee speedy treatment, instead it encourages counseling of all types to ‘help’ the woman reach her decision.[iv] Prison officials could, and do, use this to delay any abortion proceedings until past the point of legality.[v] These actions are a blatant violation of a woman’s 8th and 14th Amendment rights, and some circuit courts have held that.
Incarceration rates for women are among the fastest growing in the nation, and between six and ten percent of those women are pregnant.[vi] Women end up pregnant in prison for a variety of reasons. One very common reason for ending up incarcerated are child protection laws that states have applied to fetuses as early as ten weeks, though some states, like Mississippi, have tried to create ‘personhood’ laws that apply at the moment of conception.[vii] A large majority of these women are either indigent or of a racial minority, which puts them at a significant disadvantage in the U.S. Justice system.[viii] Also, some women fall pregnant while already incarcerated, whether through consensual conjugal visits, or through liaisons with or sexual abuse by guards.
Beyond basic barriers for medical care that women face in prison, they also face major obstacles to abortion. “Women do not lose the right to have an abortion simply because they are imprisoned. The right to abortion, rooted in concepts of personal liberty guaranteed by the Fourteenth Amendment, is well-established as a matter of law…”[ix] The obstacles that many states place on access to abortions are magnified by being incarcerated. However, these treatments are not always provided on location. In most states, the women seeking an abortion, and their families, must facilitate all of the arrangements and provide funding for the abortion.[x] In some cases, these women are told that they have no right to an abortion because it is an elective procedure and it will not be provided unless a doctor holds it to be a medical necessity.[xi]
What many of these policies neglect to consider is that many women enter the prison system facing hurdles like substance abuse, mental illness, and the after-effects of physical and sexual violence.[xii] By denying them the option of proper medical care and the option for abortion, prison officials are placing these women in a very difficult position. Very few women receive proper medical care while in prison, and carrying a child to term and giving birth in prison are both very difficult and can be very dangerous.[xiii] If these women are pregnant due to rape, then forcing them to continue their pregnancies can cause deep psychological scars.
Incarcerated women are a microcosm representative of the larger struggles that all American women face in order to gain access to proper medical care. The way these women are treated when they seek to receive an abortion or to get pre-natal care, shows how willing people are to deny basic human needs to women in the name of ‘protecting the child’ or ensuring that policy is followed, with no exceptions. “A true commitment to all pregnant women and mothers would require investigation of all aspects of reproductive health care in all contexts, not just the care provided to women seeking to end their pregnancies.”[xiv] The refusal to grant women the right to abortion violates the 14th amendment and the Casey test by placing an ‘undue’ burden on the woman, and it the policy violates the Turner test, then a fundamental right decided in Roe v. Wade had been violated.[xv] Abortion rights are just a step that women in the country need to take in order to establish a right to health. “‘Health’ in the human rights sense goes beyond the absence of illness, encompassing the right to seek complete mental and physical well-being.”[xvi] If women who are wholly dependent on the government can be so callously stripped of constitutional rights, then what protection do other women have?
[i] Estelle v. Gamble, 429 U.S. 97, 104-5 (1976)
[ii] Deborah Ahrens Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State, 80 Mo. L. Rev. 1, 6.
[iii] §551.20 (2)(c-d)
[v] Alexandria Gutierrez Sufferings Peculiarly Their Own: The Thirteenth Amendment, In Defense of Incarcerated Women’s Reproductive Rights, 15 Berkeley J. Afr.-Am. L. & Pol’y 117,145-5
[vi] Id. at 139.
[vii] Lynne Paltrow and Jeanne Flavin The Policy and Politics of Reproductive Health: Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health. Journal Of Health Politics, Policy, and Law, Vol. 38, No. 2, 299, 301- 309.
[viii] Id. at 311.
[ix] Rachel Roth Obstructing Justice: Prison’s as Barriers to Medical Care for Pregnant Women, 18 UCLA Women’s L.J. 79, 86 (2010).
[x] Id. at 86-7.
[xii] Sufferings Peculiarly Their Own: The Thirteenth Amendment, In Defense of Incarcerated Women’s Reproductive Rights, 15 Berkeley J. Afr.-Am. L. & Pol’y 117, 139.
[xiii] Id. see also supra note 8 and note 6.
[xiv] Lynn Paltrow Testimony to the South Dakota Task Force to Study Abortion (2005), 9.
[xv] Angela Thomas Note: Inmate Access to Elective Abortion: Social Policy, Medicine, and the Law 19 Health Matrix 539, 547-9 (2009)
[xvi] Hilary Hammell Symposium: From Page to Practice: Broadening the Lens for Reproductive and Sexual Rights: Is the Right to Health a Necessary Precondition for Gender Equality? 35 N.Y.U. Rev. L. &Soc. Change 131, 133.