Rachel Roth. Feminist Studies. Volume 30, Issue 2. Summer 2004.
“I would rather not be here this time of the evening having to strike the last word to stand up for women who cannot stand up for themselves, but since there are those who have chosen to pick on the most vulnerable women, women in prison, those of us who are free, those of us who have a voice, must take this time to speak for those women.” — Maxine Waters, June 23, 2000
What kept Maxine Waters (D-CA) in the House of Representatives that night was a proposed amendment to restore federal funding for prisoners who request abortions, exposing prisons as increasingly important sites of reproductive politics. Filling our nation’s jails and prisons are poor women of all races and especially poor African American women, the same women who have historically been subject to intrusive forms of government intervention in reproduction. In the current context of mass incarceration and dwindling support for poor mothers in the free world, imprisoned women’s access to abortion is a significant problem of social justice.
Yet, even though a small body of legal scholarship analyzes the constitutional arguments in favor of prisoners’ abortion rights, most empirical research focuses on other issues. Journalists and sociologists have explored the challenges of “mothering from the inside,” as Sandra Enos calls her book on imprisoned women’s strategies for navigating the personal and legal terrain of motherhood behind bars. Feminist critics of the “prison industrial complex” also emphasize the ways that prison threatens motherhood and reproductive health. Ellen Barry, Anannya Bhattacharjee, Angela Davis, and Cassandra Shaylor have documented the serious medical neglect of pregnant prisoners in jails, prisons, and immigration detention centers. Such neglect endangers women’s future health and fertility as well as their current pregnancies. Reports of women giving birth on the floor of their cells are all too common, and miscarriage and stillbirth rates are unusually high among prisoners. Medical neglect in prison often means that untreated diseases progress to the point of crisis; in the case of reproductive cancer, for instance, delays translate into preventable hysterectomies and even premature death.
While recognizing the importance of abortion access to incarcerated women, Barry and others also report that prison employees use abortion as a weapon against women. Some prisoners, especially those whose pregnancies result from sexual abuse by guards, are pressured to have abortions and punished if they refuse, including being placed in twenty-three-hour lockdown. This coercive use of abortion, along with the historic tendency of the mainstream reproductive rights movement to privilege abortion over other reproductive rights, may explain these writers’ emphasis on the right to have children.
Similarly, the lack of attention to abortion rights from human rights organizations may be strategic. In their U.S. campaigns, Amnesty International and Human Rights Watch have prioritized sexual abuse by prison employees and the shackling of pregnant prisoners during labor and childbirth. These groups examine U.S. practices and policies through the lens of international human rights standards, which do not expressly protect women’s right to abortion. Moreover, images of pregnant women shackled to their hospital beds make more sympathetic figures than women seeking to end their pregnancies.
As a result, we know relatively little about how prisons regulate abortion. Government regulation takes place almost entirely outside normal channels, away from public scrutiny, and frequently results in violations of women’s constitutional rights. Only one state has passed a statute protecting prisoners’ abortion rights and only two states have promulgated administrative regulations, meaning that almost all states use closed decision-making processes that deprive interested parties of the opportunity to receive notice of policy changes, submit written comments or testify or lobby their representatives, let alone find the final policy in readily accessible sources such as statute books. In 1998, Leslie Acoca noted that “there are no consistently applied policies” regarding abortion in prison. Perhaps not surprisingly, a major government report released that same year said nothing about abortion, even though it addressed other pregnancy-related policies. An academic survey of medical services and programs reported only the percentage of prisons offering “abortion or abortion counseling,” without describing the content of the policies or the states in which they could be found.
Against this silence, an investigator for the United Nations reported in 1999 that women in state and federal prisons have been denied abortions. Even more important, prisoners have taken it upon themselves to challenge authorities who denied them access to abortion. The goal of my own research is to amplify their challenge, for rather than protecting women’s reproductive freedom, prison policies are often characterized by a disturbing lack of accountability that jeopardizes women’s rights and health. By design or by default, states vest corrections employees with considerable discretion, placing women at the mercy of those who hold power over them. As Waters observes, this situation betrays some of the most vulnerable members of society, women made vulnerable by their dependence on prisons to meet their basic needs and by what Davis and Shaylor call the “social invisibility” of prisons, which shields them from public scrutiny.
In this article, I present and interpret results from an original survey of state corrections policies to create a more systematic, national picture of prison abortion policy. My analysis is based on policy information from forty-four states and the District of Columbia. I use the term “policy” to refer to policies, regulations, administrative directives, standard operating procedures, or field instructions issued by state Departments of Correction (DOCs) or individual prisons. My research assistant Kate Durso and I initially contacted corrections personnel by telephone during 2000-2001 to ask for copies of policies pertaining to pregnant prisoners, including documents on abortion. We put requests for information in writing as required and made follow-up inquiries to try to clarify vague or ambiguous language. I subsequently searched all state DOC web sites, contacted additional personnel and prisoners’ advocates, and hired a law student to update my LexisNexis search of relevant state statutes, administrative regulations, and attorney general opinions.
This simple account, however, belies the elusive nature of my research. I initially contacted the general counsel’s office in the state DOC or the lawyer in the attorney general’s office assigned to the DOC; this call was usually the first of many. Medical directors were more helpful, but even they would defer questions to prison administrators. At least one-third of the states analyzed here have no official written policy. Consequently, prisoners might be subject to different practices within the same state, depending on the prison to which they happen to be sentenced. Without legislative, judicial, or attorney general oversight, prison employees in many states become the final arbiters of critical decisions in women’s lives.
In the following section, I review judicial, federal, and accreditation guidelines on incarcerated women’s abortion rights, including the problematic way that the dominant discourse on abortion funding constructs abortions as either “necessary” or “elective,” before evaluating policies in the states. At a practical level, questions about prisoners’ reproductive self-determination will become ever more pressing as the number of incarcerated women continues to rise and as the legal and political climate for prisoners’ rights and reproductive rights deteriorates. At a normative level, the way the state exercises its coercive power over those whom it has deprived of liberty should be of broad concern to all citizens. This is especially true when questions of racial bias haunt the administration of justice and when it comes to matters as fundamental and life altering as whether women will be made mothers against their will. By illuminating the policy regimes that govern prisoners’ lives, I seek to bring imprisoned women from the margins to the mainstream of scholarship on reproductive rights and to highlight the regulation of prisoners as integral to a system of public policy that suppresses women’s authority in reproductive decision making.
Abortion Rights and Policy Regimes
Given the silence of state statutes and regulations, where might prison officials look for guidance when forming abortion policy? Only two state DOCs, Georgia’s (1977) and South Carolina’s (1974), have requested an opinion from the attorney general. The federal courts have been clear that women do not automatically lose their constitutional rights once they cross the prison threshold; yet, the language and structure of state policies suggests that they are more likely to take their cue from federal prison regulations and nongovernmental accreditation standards, neither of which fully protects women’s rights. I examine all three sources and evaluate state policies in terms of the extent to which they provide women with meaningful access to abortion.
Federal Court Decisions. Prisoners’ abortion rights implicate both the Fourteenth Amendment right to privacy and prisoners’ Eighth Amendment right to adequate care of serious medical needs. The key authority and only federal appellate decision to fully address this question, including women’s claims to public funding, is Monmouth County Correctional Institute Inmates v. Lanzaro. Beginning with the premise that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” this 1987 decision by the Third Circuit Court of Appeals held that a New Jersey jail’s policies unconstitutionally interfered with prisoners’ abortion rights. First, the jail required women seeking abortions to surmount bureaucratic hurdles that no prisoner seeking any other kind of outside medical care had to face—women had to obtain court orders to be released to visit an abortion facility. These hurdles created so much risk of delay that a prisoner might no longer be able to terminate her pregnancy by the time she obtained clearance. These hurdles also completely foreclosed the possibility of abortion for maximum-security prisoners, who would not be able to obtain a court order to release them. Hence, women subject to these requirements might incur irreparable harm by being forced to carry their pregnancies to term.
Second, Monmouth County refused to pay for prisoners’ abortions, regardless of the women’s ability to raise the funds themselves. The county argued that abortions were “elective” procedures, similar to facelifts or other cosmetic surgery, and refused to pay unless a jail doctor certified the abortion as “medically necessary.” The court disagreed, finding that abortions, like all pregnancy-related care, are a serious medical need. If a woman has no money and cannot raise it (from relatives or grassroots abortion funds, for instance), then the jail must subsidize her request. Even though the U.S. Supreme Court has decided that poor women in the free world may be denied abortion funding, that does not mean that incarcerated women can be denied, because they depend totally on the institution to meet their basic needs.
Finally, the court found “simply inexplicable” the county’s argument that its abortion policy served legitimate penological interests. Forced childbearing does not further goals of security, deterrence, or rehabilitation. Nor can it be justified on cost or administrative convenience grounds, because providing abortions is simpler and cheaper than providing ongoing prenatal care and hospital delivery. Although this decision is only binding in Delaware, New Jersey, and Pennsylvania, courts in several other jurisdictions, including in Kentucky, Missouri, Ohio, and New York, have cited it as precedent.
At about the same time, the question of prisoners’ access to abortion arose in the lower rounds of litigation over Missouri’s restrictive abortion law, litigation that culminated in the Supreme Court’s 1989 decision Webster v. Reproductive Health Services. In addition to restricting public funding, Missouri law prohibits public employees from “participating” in abortions and prohibits public facilities from “performing” or “assisting” in abortions for women whose pregnancies are not life threatening. Reproductive Health Services (RHS), a St. Louis-based abortion provider, maintained that the law would prohibit the state DOC from providing transportation or security for prisoners seeking abortions, thereby violating prisoners’ Eighth Amendment right to adequate medical care. Although the district court judge found this argument persuasive, the Eighth Circuit Court of Appeals did not:
We cannot accept the conclusion that “assisting” an abortion encompasses driving or escorting the patient to the location where the procedure is to take place. The abortion itself does not take place in the vehicle or as the patient is being escorted. We think a more reasonable interpretation of the phrase “assisting an abortion” is the one suggested by the state: direct participation in the surgical procedure itself. Because we thus hold that the statute does not prevent state employees from arranging for abortion procedures for inmates or from transporting and escorting inmates to abortion facilities, we must reverse the district court’s judgment that section 188.205 violates the eighth amendment.
This matter was ultimately resolved by a consent decree, under which prison personnel can transport and accompany prisoners to abortion clinics. In practice, however, no one arranges abortion services. The state of Missouri now contracts out medical care to a private company, Correctional Medical Services (CMS), and CMS staff does not “arrange for abortion procedures.” Instead, women must locate a provider on their own. The women’s prison in Vandalia is about 115 miles from St. Louis, and the prison in Chillicothe is about 200 miles from St. Louis and Springfield, where Missouri’s three abortion clinics are located. Once a woman makes an appointment with a provider, she tells the staff, who confirm the appointment and schedule transportation.
More recently, a federal district court in Ohio ruled twice that policies requiring women to obtain court orders before getting abortions were unconstitutional. In 1999, the court ordered the director of a community-based correctional facility in Cincinnati to transport a woman to a facility of her choice, at which she would have an abortion at her own expense. The 2001 decision went further by permanently enjoining the mandatory court order policy at all jail facilities run by the county sheriff and ordering the sheriff to institute a new policy consistent with its opinion.
In another case, in Cleveland, a judge declared in open court that she would deny a woman probation and keep her in jail to prevent her from ending her pregnancy. As a result of this abuse of power, the woman never got an abortion, but her fight for redress led to an unusual settlement agreement that guarantees women in the county jails access to a range of reproductive health services as well as visitation with their children. Although the new policy does not mandate payment for abortions, it ensures at least that prisoners will have access to such services.
In general, pregnant prisoners who challenge restrictive policies have been more successful than women who bring suit after being denied abortions. In these after-the-fact cases, courts impose higher legal standards because government officials and employees enjoy a certain degree of immunity from liability. In addition, the women must prove that jail or prison personnel treated them with “deliberate indifference,” a concept that requires very high burdens of proof. As women seeking justice have learned, taking a casual attitude to medical files marked “EMERGENCY” and ignoring a federal judge who asked for an abortion request to be accommodated as soon as possible do not suffice to establish a violation of a prisoner’s constitutional rights.
Finally, in a case that is still unfolding, jail officials in Louisiana told a woman that she would have to hire an attorney and obtain a court order authorizing an abortion before she could be released. She attempted to obtain a court order, but could not do so; by the time she finished her jail term, she was twenty-five weeks into her pregnancy, too late to have an abortion in Louisiana. She needed an emergency cesarean to deliver the baby, whom she gave up for adoption. This case clearly illustrates the ways that women suffer when jail and prison officials deprive them of access to abortion.
Federal Prison Policy. Before Fiscal Year (FY) 1987, the U.S. Bureau of Prisons paid for prisoners’ abortions. Then Jesse Helms (R-NC), Henry Hyde (R-IL), Robert Dornan (R-CA), and other Republicans in Congress successfully organized to add a funding ban to the Department of Justice appropriations bill. Although opponents initially expressed concern that the ban would be unconstitutional, Congress has only reinstated the funds twice, in 1993 and 1994, during the early years of the Clinton Administration.
Bureau of Prisons policy affects some 11,000 women in federal prisons. The bureau’s regulation states that “the inmate has the responsibility to decide either to have an abortion or to bear the child.” Although the bureau pays for abortion only in cases of rape or life endangerment, it assumes responsibility in all cases for making arrangements and for the costs of transportation and security to an outside facility. The regulation’s “conscience clause” allowing staff to opt out of participating in abortion-related tasks, however, might pose problems in practice.
Without government funding, prisoners must make do with their own resources. According to the American Civil Liberties Union (ACLU), women who participate in work programs in federal prisons earn between 12 cents and 40 cents per hour; those working specifically for UNICOR, the federal prison industries corporation, earn slightly higher wages—up to $1.15 per hour. In the best-case scenario, a woman who worked forty hours per week for six-and-a-half weeks might earn enough to pay for a first-trimester abortion. Approximately one hundred federal prisoners are pregnant each year. Sixteen women obtained abortions in FY 1997 and four did so in FY 1998. There is no publicly available information on how many women requested abortion services, or who paid for them.
For the past few years, Representative Diana DeGette (D-CO) has tried to restore funding for federal prisoners. In the brief debates each year, prochoice representatives link the ban on prison funding to the broader issue of legal abortion, chastising their colleagues for assaulting the rights of powerless women because they cannot achieve their real goal of outlawing abortion altogether. Representative Carolyn Maloney (D-NY) put the 2000 contest over the funding ban in context: “Today marks the 146th vote on choice since the beginning of the 104th Congress when the Republican Party gained the majority in this House.” Representative Barbara Lee (D-CA) tried to shift the focus from abortion per se to civil liberties: “Women in prison have engaged in criminal activity [and] are being punished for the crimes that they committed…. However, this is a separate issue which we are addressing today. Today we discuss civil liberties and rights which are protected for all in America, and remain so, even when an individual is incarcerated.”
Both sides invoke the potent language of the Eighth Amendment for their own ends. Whereas Representative Chris Smith (R-NJ) protested the “cruel and unusual punishment for a child who has committed no crime,” Representative Jerrold Nadler (D-NY) argued that “forcing [a prisoner] to carry a pregnancy to term” is cruel. Nadler has also emphasized the inadequacy of prison health services: “Not only are we forcing women to carry pregnancies to term, but we are forcing them to do so in an environment where medical conditions are notoriously bad.” The issue is so unpopular, however, that no one in the Senate will rise to DeGette’s challenge and question the funding restriction.
In addition to women in the federal prison system, women detained by the Bureau of Immigration and Customs Enforcement (BICE), which absorbed the Immigration and Naturalization Service (INS), also fall under federal jurisdiction. Although federal funds cannot be used for abortion except in cases of life endangerment, rape, or incest, BICE lacks any publicly available abortion policy. Pregnant women seeking asylum, for instance, might have been raped, but no transparent procedures are available to remedy their situation.
Accreditation Standards. The nonprofit National Commission on Correctional Health Care (NCCHC) is the major organization that sets standards and accredits medical services in prisons, jails, and juvenile detention facilities. Although a top commission official told me she would be surprised if any state prison system lacked an official abortion policy “in this day and age,” the commission’s own guidelines permit this state of affairs. To gain accreditation, a prison must meet 100 percent of the “essential” standards and at least 85 percent of those considered “important.” Providing prenatal care is considered essential; options counseling and abortion are not. The non-essential “Pregnancy Counseling” standard reads:
Pregnant inmates are given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy, whether they elect to keep the child, use adoption services, or have an abortion.
The commission recommends that:
It is advisable that a formal legal opinion on the law relating to abortion be obtained, and based upon that opinion, written policy and defined procedures should be developed for the correctional facility’s jurisdiction.
These standards do not recognize abortion as either a constitutional right or an essential part of women’s healthcare. In addition, the commission significantly weakened the 2003 version of this standard, by dropping any reference to evidence of “actual practice” in its discussion of compliance.
Policy Discourse on Abortion. Language and concepts underpinning abortion policy pose yet more problems for women dependent on government services. Abortion regulations and the court decisions evaluating them tend to retain sharp distinctions between abortions women “need” and abortions women don’t need. Hence, the opposition between “therapeutic” and “nontherapeutic” abortions, a holdover from the era of illegal abortion, when doctors and hospital committees had to determine whether a woman’s condition qualified for an abortion under exceptions to the criminal law. The term “therapeutic” historically encompassed threats to life and health, including mental health. Contemporary policies, especially state Medicaid guidelines, often use the terms “lifesaving,” “medically necessary,” and “elective”; here the problem becomes interpreting the distinctions between “medically necessary” abortions, which states may refuse to pay for, and “lifesaving” abortions, which all states must provide.
When corrections departments use these terms, the results can be confusing. The Nevada DOC, for instance, states that it will not pay for “therapeutic” abortions “absent a significant medical impairment,” which sounds like the very definition of “therapeutic.” In Texas, the policy simply states that “agency funds are not available for elective pregnancy termination.” Such language does not clearly indicate whether the DOC will pay only for “lifesaving” abortions or for the broader category of “medically necessary” or “therapeutic” abortions. A woman carrying a wanted pregnancy who finds out that she has cervical cancer, for instance, may not consider an abortion “elective,” but rather an unfortunate necessity.
Ambiguous policies require interpretation, inviting considerable discretion by medical and other staff. Repeated references to pregnant women as “mothers” also imply that the decision to continue the pregnancy is a foregone conclusion, absent the threat of grave illness and despite assurances to the contrary (that is, explicit assurance that the prisoner gets to make the decision).
Ultimately, the designation “elective” fundamentally misconstrues what is at stake in women’s abortion decisions. Consider how the South Carolina DOC defines “elective” medical care: “a treatment or surgical procedure which is optional and does not require attention.” Clearly this definition does not apply to pregnancy, which requires attention either to terminate or to optimize chances for a healthy birth. The decision whether to continue a pregnancy has long-term implications for women’s health and sense of self. Pregnancy is challenging in the best circumstances, carrying as it does risks of illness, complications, and even death. Finally, motherhood is not just a social role but a legal responsibility that incarcerated women may not be able to fulfill even if they want to do so.
Prison Policies in the States
Providing Access. How effectively do state policies protect women’s access, compared to the variations and judicial guidance described above? If we look first to policies in the Third Circuit, which has clearly affirmed prisoners’ abortion rights, we find considerable diversity. New Jersey provides abortions for prisoners up to eighteen weeks of pregnancy and makes all arrangements, including taking women to Planned Parenthood for options counseling. In addition to the health care vendor’s policy statements, the general outlines of the policy are codified and easily accessible in the New Jersey Administrative Code.
At the other end of the spectrum is Pennsylvania, which has no official written policy on abortion. My contact at the Bureau of Standards, Practices, and Security said that to his knowledge the question had never arisen (and he “hoped it never would”); if it did, requests would be handled on a case-by-case basis. Women in the two state prisons would not be reassured to learn that if they wanted an abortion, they would have to wait for the staff (at the prison or perhaps at department headquarters) to formulate a process to handle their request. Pennsylvania’s strong antiabortion politics and the finite amount of time that a woman has to obtain an abortion make the prospect even less reassuring.
In practice, women imprisoned in Pennsylvania can obtain abortions if they can reach the right advocates. At least two organizations have successfully intervened with prison officials on women’s behalf (the Women’s Law Project and the statewide Choice Hotline); several other organizations refer prisoners to these advocates. Reassuring as it is to know that advocacy can work, this situation also demonstrates how tenuous women’s rights are, because those women who cannot figure out where to turn for help may be forced to continue their pregnancies.
Delaware does not release its DOC policies to the public, and my contact in the central office told me that only a state resident can file a freedom of information request to obtain these policies. According to other contacts, however, women incarcerated in Delaware must pay for abortions and are levied a $100 charge for transportation and security as well, in apparent violation of the Monmouth decision. In what sounds suspiciously like a double standard, the prison does not have guards take women to the clinic as part of their regular day’s work; rather, a guard must be willing to “moonlight” on a Saturday for the $100. Delaware has a grassroots fund that raises money for poor women who cannot afford abortions, and the prison staff have contacted this fund directly on behalf of poor prisoners.
Like these three, other states fall along a continuum of access. As a matter of policy, nine states provide women with counseling and access to abortion, at least during the first trimester: California, Connecticut, Georgia, Hawaii, New Jersey, New York, Oregon, Vermont, and Washington. Except for Georgia, these states also fund abortions in their Medicaid programs, most under court order, three by legislation or popular referendum (Hawaii, New York, and Washington). In 1991, Washington voters mandated government funding of abortion in all programs that fund maternity care.
California’s policy is unusual because it implements a state statute, dating from 1972, that requires notices of abortion rights to be posted in at least one “conspicuous” place where prisoners will see them. The DOC “will provide” first-trimester abortions, “medically necessary” later abortions, and possibly other abortions on a “case-by-case” basis with “prior approval.” In 1985, a prisoner challenged the constitutionality of the law’s limits on second-trimester abortions, but she withdrew her suit in 1990.
As straightforward as the California policy looks on paper, it is not clear how it works in practice. I found this policy and its statutory counterpart by searching the California state government web site. The lawyer I spoke with in the general counsel’s office of the DOC knew nothing about it. The DOC staff member who responded to my written request for information suggested that the department would only pay for “medically necessary” abortions and seemed unaware of written policy statements guaranteeing women broader abortion rights, even though she was familiar with the overall policy on medical standards of care in which they are embedded. In addition, a woman who spent fourteen years in a California prison and who had worked in that prison’s law library told me that she never saw any signs posted about abortion rights. The critical need in California—home to the two largest women’s prisons in the world—may be to increase prisoners’ and advocates’ awareness of the formal policies, should they have to negotiate with authorities.
Another group of states funds only what they call “medically necessary” or “therapeutic” abortions: the District of Columbia, Massachusetts, Minnesota, Nevada, New Mexico, Tennessee, and West Virginia. Because few states define their terms, prisoners have no way to know when they are entitled to services or whether a “therapeutically indicated” abortion is really a synonym for “abortion to save a woman’s life.”
A state’s Medicaid policy may or may not provide guidance. In Massachusetts, for instance, the policy on “special health care practices” explains that the DOC will fund only “medically necessary” abortions, which are not defined. In practice, a local hospital donates abortion services to prisoners through the fourteenth week of pregnancy. The DOC assumes the costs of transporting prisoners to and from the hospital. The fact that a hospital has stepped in to meet this need suggests that “medically necessary” means something quite different to DOC administrators than it does to Medicaid officials, who paid for more than 6,000 such abortions in 1999.
By far the most explicit policy is Minnesota’s, which operates on a state supreme court decision requiring Medicaid funding:
A therapeutic abortion includes an abortion performed for the following reasons:
- The woman suffers from a physical disorder, physical injury or physical illness including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless the abortionis performed;
- The pregnancy resulted from rape;
- The pregnancy resulted from incest; and/or
- The abortionis being done for other health reasons.
In its most recent iteration, Minnesota shifted some of the burden for arranging abortions to women by authorizing health services staff to identify resources and potential providers, but not to call those providers on behalf of prisoners.
In what appears to be the dominant policy, many states, including Delaware, permit prisoners to obtain abortions on the same basis as any other “elective” medical care—by completing the necessary paperwork and paying for transportation and security to an outside medical provider, as well as paying for the abortion itself. This is the case in Arkansas, Colorado, Michigan, Nebraska, South Carolina, and Texas; this is also the case in West Virginia when the abortion is not DOC-funded. A 1974 South Carolina attorney general opinion concludes that the DOC “should grant a female inmate’s request” for an abortion, but does not spell out who should pay. Apparently, Florida, Illinois, Iowa, and Missouri pay for transportation and security; responsibility for these costs is unclear in Kentucky, New Hampshire, Oklahoma, Rhode Island, and Wisconsin. Finally, Tennessee appears to pay for transportation whether or not a woman qualifies for a DOC-funded abortion. Typically, the woman must have the money in her prison account or proof that someone else has paid before the prison will approve her visit to the provider. Sometimes the provider has to fill out paperwork as well, before the appointment—a requirement that might cause delays. In addition, the prisoner may be required to see a psychologist, as is the case in Nevada; the purpose of this requirement is not clear and might cause yet further delays. State policies that impose all the costs associated with an abortion on women are more onerous than federal policy. Transportation and security costs can present a serious obstacle to getting an abortion, because the vast majority of abortion providers work in urban areas, whereas prisons tend to be located in rural areas.
Women who are medium- or maximum-security prisoners may face additional obstacles. In Nebraska and Illinois, for instance, a woman who wants an abortion must be eligible for release on furlough; that is, she would have to be a minimum-security prisoner trusted by officials to return after her appointment. Until 2002, Oklahoma policy specified:
The Department of Corrections will not perform or pay for abortions. Routine obstetrical care will be provided by the Obstetrics and Gynecology Department of the University of Oklahoma Health Sciences Center, unless an inmate furnishes proof of private physician and insurance (or other financial responsibility) coverage. A health leave may be approved for an appointment with a licensed physician even when the stated or suspected purpose is an abortion.
Only minimum-security prisoners or those in community-based correctional facilities, such as halfway houses or work-release centers qualified for health leaves. These restrictions are precisely the kind that the Third Circuit found unconstitutional because they completely foreclose the possibility that higher-security prisoners will be able to exercise their right to have an abortion. Under a new policy, however, prisoners can now obtain abortions (at their own expense) during the first trimester without meeting specific security criteria; but after this point, prisoners can obtain abortions only for a “documented fetal abnormality” or threat to their health. The structure of the policy implicitly requires women to pay whether their abortion is “elective” or “for medical reasons.”
Women who have been raped also find that they are on their own when it comes to securing an abortion. Only two states, Minnesota and Wisconsin, have policies that address women who have been raped. Wisconsin’s policy explains that state funds may be used for abortion when “the pregnancy is the result of incest or sexual assault as reported to local law enforcement.” Prisoners may be reluctant to report sexual assaults, however; if prison personnel believe a woman consented to sex, they may place her in solitary confinement as punishment.
Women may find their rights subverted, regardless of their ability to pay, in at least four states: Alabama, Indiana, Mississippi, and Wyoming. In Indiana, a prison staff person volunteered that the women are not allowed to get “elective” abortions even if the women “offer” to pay themselves. In Alabama, a doctor must recommend an abortion for “life or death” circumstances; this recommendation goes to the Commissioner of Corrections—a political appointee who is far removed from an individual prisoner’s situation—for final approval.
Other informants have indicated that abortion access depends on the warden’s preferences and change accordingly. Neither the Mississippi DOC official nor the liaison at the university hospital with which the DOC contracts could verify whether women can purchase abortions with their own funds in nonlifesaving situations. In Wyoming, my contact at the women’s prison first said that abortion is not allowed unless it is a medical necessity, and later that “consideration would be given” if a woman sought to obtain an abortion with her own funds. Unfortunately, these are states without written policies or which will not release policy. Practices in these states at least warrant further investigation.
At least fourteen states appear to lack explicit, official, written policy: Alabama, Alaska, Florida, Indiana, Kentucky, Michigan, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, and Pennsylvania. Informants in most of these states said there was no policy; directives about pregnancy are silent on abortion in Alaska, Florida, and New Hampshire. Some people may argue, at least theoretically, that there are benefits to having no policy. In North Carolina, for instance, DOC officials maintain they have no written policies, although they have “established practices” to provide for prenatal care and delivery at a community hospital. When probed about abortion, the department’s attorney would only say that “health care choices are between the inmate and the doctor.” If it is true that the department “doesn’t interfere” with health care choices and also funds those choices, then perhaps physician discretion could be a good thing. It is possible that facility personnel, who work with prisoners on a daily basis, may be more responsive to their needs than people working in a central office in the state capitol. Typically, though, only some people can maneuver successfully in a policy vacuum. Furthermore, in practice, “no policy” often turns out to mean that women bear all of the costs.
Counseling. According to the Florida official who responded to my questions, “the department does not get involved with any process of counseling or participating in abortions. A representative from the Florida Department of Children and Family Services provides these services if needed.” Given reports of coercion, it is understandable (and perhaps desirable) that prison officials might not want their staff to be directly involved in counseling. Because prisoners’ ability to acquire information on their own is limited, however, the state must meet its responsibility to provide women with appropriate information and counseling.
What do women do when faced with policies like Colorado’s, which state that the warden’s duties include “provid[ing] opportunities for counseling by community social agencies to aid the female offender” and also that “a pregnant female offender may contact outside agencies to aid her in making a decision whether to carry the pregnancy to full term or to have an elective abortion.” A woman may find this process difficult if the prison is located in a rural area that lacks local resources, especially resources that are culturally sensitive and available in languages other than English. She may also experience difficulties if she does not have ready access to a telephone, the agency does not have an 800 number for toll-free calls, or the prison blocks outgoing calls to toll-free numbers. Some states are clearly concerned with legality; Wisconsin, an antichoice state by many measures, specifies that “all options will be presented equally by the social worker,” who also assists with “abortion arrangements [and] financial assistance.” Oregon and Rhode Island make clear that “personnel will not withhold service or information from patients due to their own personal or religious convictions.”
Oddly, several states mention abortion only in the context of counseling: Hawaii, Idaho, Iowa, Ohio, and Vermont. In Idaho, for instance, the pregnancy directive states only that “early pregnancy diagnosis … allows a woman considering abortion time for adequate counseling and decision making,” without specifying the steps necessary to carry out such a decision. Conversations with medical directors in states that provide funding gave me the impression that DOC officials get periodic requests from antichoice legislators or residents to justify their policy. Typically they respond by referring to the Monmouth decision and/or state rulings on abortion. Above and beyond legal requirements, DOC officials in some states clearly have a strong sense that funding abortions is the right thing to do, especially when their overarching policy is to provide a standard of care consistent with that available in the outside community. Moreover, where abortion is truly regarded as a regular part of ob/gyn care and is integrated into the routine delivery of health services, officials may not see the need to spell out abortion policy.
A more common albeit inadequate reason for the lack of specific policy may be that most systems have in place a separate protocol for prisoners who want to obtain “elective” medical care outside the prison and see abortion as falling under that protocol. A staff person at the Michigan women’s prison indicated this was the case. Still, it seems that something would have to be spelled out somewhere, or at least be made common knowledge among the medical staff, because it is common practice for new prisoners to be given a pregnancy test. Indeed, prisoners in Michigan had access to subsidized abortions when the state paid for abortions under the Medicaid program, and the change in policy was transmitted somehow.
Because prisons are overcrowded, corrections officials may send prisoners to a county jail or a public or private prison in another state. Federal prisoners are routinely confined at state and local institutions, especially before and during trial. In any of these situations, a woman could be sent to a facility that operates under more restrictive policies than those in her original jurisdiction. This situation may make it difficult for her to assert her rights under the more liberal “home” policy. Alternatively, state prisoners may wonder why their federal counterparts get assistance they do not.
Some health care providers are clearly frustrated by the lack of guidance. In 1996, for instance, a woman held in Cochise County, Arizona, requested an abortion. No policy was in place, except the general state policy that funding of abortion is limited to life endangerment. The woman was told to wait until she was extradited to Michigan, at the very end of the first trimester. Afterwards, the detention nurse and her supervisor requested that the county set a policy to govern future abortion requests, but officials declined to do so, saying that state law and “jail procedures” already governed the issue.
Privatization. States increasingly contract out medical care to private companies. The District of Columbia, for instance, contracts with the Corrections Corporation of America (CCA), a company that provides medical services and even owns and operates entire prisons. The District’s abortion policy, which I obtained by filing a freedom of information request, is CCA boilerplate; the final section of the policy document inserts facility-specific procedures. In this case, a woman must submit a purchase order to her case manager to obtain an abortion. (The District operates jails only; D.C. residents convicted of felonies serve their time in federal prisons.)
Privatization raises critical questions. To what extent do prison officials assume responsibility for abortion policy during the process of negotiating a contract with a given company? To what extent do private employees have final authority to interpret ambiguous policies and make decisions for prisoners? Recall that the private medical company in Missouri requires women to find abortion providers on their own.
Other Hurdles. Prisoners may have to navigate additional obstacles not created by the DOC. If the local hospital is Catholic, for instance, as in the case of South Dakota, prisoners may be out of luck unless they can convince the warden to authorize a trip to a different hospital or clinic. The same problem arises if the local hospital is public in a state that prohibits the performance of nonlifesaving abortions at public facilities. In addition, fifteen states impose a mandatory waiting period: women typically have to wait twenty-four hours after consenting to an abortion before they can have the procedure. Whether a prisoner would have to make two trips to an outside facility depends on the specific wording and interpretation of the requirement in each state; an additional trip would increase her costs. Women seeking abortions after the first trimester might also need to make two trips or stay in the hospital for up to three days. In any of these situations, the price of an abortion increases dramatically—to $2,000-$3,000 for a first-trimester abortion and as much as $5,000-$8,000 for a later abortion.
Looking to the Future
During the 2000 debate in the House of Representatives over the DeGette amendment to restore funding for federal prisoners, Representative Jan Schakowsky (D-IL) addressed the consequences of forced childbearing and the difficult prospect of being an incarcerated mother:
We have heard all of the arguments, I think, but I want to tell my colleagues about an experience that I had when I was in the state legislature in Illinois. We wanted to talk about real options for mothers in prison, or women who gave birth in prison…. I had legislation that would have offered women in prison who were nonviolent, short-term offenders, that is their prison sentence was less than seven years, to be in residential settings where they could be mothers and could be with their children. That is not at all what happens, and that bill did not even get out of committee to be considered on the floor, because oh, no, we are going to punish these women, and now we are going to punish them to the extent that we are going to force them to have that child, but that child is going to be immediately ripped away from that mother whether she wants that baby now or not. I think we have to begin by doing what is right and allowing the constitutional rights of those women to be exercised when they are in prison, and to continue to give them reasonable options, if they want to carry that baby to term, to be able to have a setting in which motherhood and childhood can thrive and survive.
In truth, prisoners’ chances of thriving as mothers are precarious at best. For African American women caught in the net of repressive drug policy, welfare policy, and foster care policy, prospects are particularly grim. The reality is that few women have access to the kind of residential placements that Schakowsky describes or to prison nurseries in which they can care for their newborns. Women get fewer visits from family and friends than men, which translates into fewer opportunities to see their children. In addition, Native American women arrested on reservations may be sent out of state to federal prisons, far from home. Although some states seem to be making good faith efforts to help prisoners maintain relationships with their children, they can only do so much in light of the limited budgets provided by state legislatures for such programs.
Federal law severely limits prisoners’ ability to assert their rights or seek redress when they are wronged. Congress prevents legal aid lawyers who receive federal funding from working on cases involving either prisoners or abortion. In addition, the 1996 Prison Litigation Reform Act (PLRA) makes it harder for prisoners to challenge the conditions of their confinement and jeopardizes existing consent decrees that order improvements in prison conditions and health care. Prisoners rely heavily on these decrees; at the time the PLRA went into effect, federal courts had found conditions unconstitutional in at least one penal institution in almost every state in the nation.
The language of prison policies can also work against women. First, prison policies are replete with references to “unborn children” and even to “children,” suggesting hostility to abortion. The Idaho directive personifies the fetus further by using the term “prenatal passport” to describe a woman’s medical records, as if the fetus were the one needing documentation and permission to travel. Furthermore, if a woman is not at death’s door, then policymakers tend to consider her abortion “elective.” Given the pervasive dichotomy between abortions women “need” and ones they do not need, it is significant that the Monmouth decision frames the discussion in terms of pregnancy. As a “serious medical need,” pregnancy might call for abortion or prenatal care; in either case, the state is obligated to provide medical treatment.
Anecdotal evidence shows that women encounter resistance to their reproductive authority at the local level, where about 40 percent of female prisoners are confined. Advocates and reporters have documented conflicts between jailed women and sheriffs, wardens, or judges who tried to prevent them from getting abortions. In one case, Luzerne County, Pennsylvania, jail officials refused to transport a woman to a clinic where she would pay for an abortion with her own money. Her right to have an abortion was ultimately vindicated when a federal judge ordered the county to arrange transportation, following Monmouth; so much time had passed, however, that she could feel the fetus move and decided to continue the pregnancy. Flouting the judge’s order to honor all future abortion requests as necessary medical care, county officials instead adopted a policy to pay for an abortion only if a doctor certifies it as a medical emergency and to provide the money up front for women who cannot afford it and then deduct it from their commissary account and bill them after they are freed. Even with the law and the courts clearly on their side, women may not be able to hold jail authorities accountable when they try to put their rights into practice. Stories such as this one underscore the need for greater accountability in the penal system. Where there is no official, written policy, women will be in serious jeopardy of having to carry their pregnancies to term, if for no other reason than pregnancy may progress faster than the gears of bureaucracy. Where policies are ambiguous, women may face delays in obtaining counseling or other information about how to proceed, even when money is not an obstacle. For the great majority of women who are economically disadvantaged, the typical policy will foreclose their ability to exercise their rights. My findings also suggest that some states completely abridge women’s right to seek abortions, especially if women are high-security prisoners. Although written policies per se do not guarantee access to abortion, they do provide a tangible resource to invoke when challenging recalcitrant prison authorities.
With the help of privately funded advocates, women might challenge restrictive policies or adopt pro-active strategies, such as encouraging prison officials to develop explicit policies or bring their policies in line with constitutional standards. California requires that notices of abortion rights be posted; Oregon and Rhode Island give women information about reproductive health care; Massachusetts and Rhode Island specify that relevant policies be made available in the prison law library. Whatever the motivation—a commitment to providing respectful, comprehensive care comparable to that delivered in the outside community or concern about potential lawsuits—these steps can be duplicated in other states. As evidence from Pennsylvania shows, advocacy can work to ensure prisoners’ rights, if it does not come too late. On the national level, organizations like the ACLU’s Reproductive Freedom Project and the National Network of Abortion Funds work to assist prisoners and connect them to local resources. But case-by-case intervention is time-consuming and expensive for nonprofits that are often stretched thin.
Where litigation is needed, one promising avenue lies in states that provide Medicaid funding. If state courts have already determined that funding bans violate the privacy or equal protection guarantees of poor women in the free world, then poor women in jail and prison can try to marshal those same arguments on their behalf, because all departments of correction pay for pregnancy care. In addition, any class action litigation on behalf of poor women should include prisoners. The Medicaid program also pays for abortions for women who have been raped, as does the federal Bureau of Prisons. State prison policies make no such distinction; in almost all cases, they are silent on the question of sexual assault. A woman who is raped in prison or who winds up in prison after being raped encounters exactly the same official policies and obstacles as any other prisoner. The arbitrary limits imposed on prisoners’ access to abortion after the first trimester are another area for possible intervention. Nothing in the Supreme Court’s abortion decisions authorizes such limitations before viability; even after viability, abortion bans must include exceptions for women’s health. Finally, prisoners may even find recourse in the Planned Parenthood v. Casey decision. This 1992 Supreme Court decision was a setback for abortion rights, because it held abortion regulations to a lower constitutional standard than Roe v. Wade and gave a green light to the states to restrict access to abortion. Yet the specific language of the Casey standard may be useful to women in prison. The Court held that “an undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.” As we have seen, the path to an abortion for imprisoned women is strewn with substantial obstacles, obstacles that prisoners cannot necessarily circumvent on their own. Incarcerated women may be able to prove that restrictive policies “unduly burden” their ability to exercise their rights because of the reality of confinement in prison.
Incarceration by definition entails the loss of freedom. But does this mean that any and all forms of punishment may be meted out to prisoners? Denying women access to abortion—in essence, forcing them to bear children—constitutes a uniquely gendered form of punishment. Forced childbearing is all the more troubling for prisoners who must endure pregnancy under adverse conditions, only to confront a legal regime that almost guarantees they will lose their parental rights if they have to place their children in foster care for more than one year. This kind of punishment calls into question the legitimacy of state power, especially when it is unwritten, unregulated, and wielded in an arena fraught with race and class bias. Relegated to the far end of a continuum of “reproductive freedom,” prisoners’ difficulties exercising their constitutional rights serve as stark reminders of the barriers that increasingly characterize access to abortion throughout the United States.