The Supreme Court ruled this June in Dobbs v. Jackson Women's Health Organization that the Constitution does not guarantee a right to abortion. The decision reversed the nearly 50 years of precedent set by Roe v. Wade. The moment it was handed down, the ruling impacted millions of individuals living in states with laws that ban or restrict abortion. To make matters worse, many of the states with these “trigger laws” had already made abortion hard to access through additional barriers (like the regulation of medication abortion). The reality is that Dobbs is part of a concerted right-wing, anti-choice battle against abortion.
Incarcerated and Pregnant
Nowhere is this war against abortion and reproductive freedom more evident than in prisons and jails in the United States. While the rate of pregnancy in prisons has remained stable since 2002, in the same time the number of women who are incarcerated has increased rapidly and so have incarcerated pregnancies. While the Eighth Amendment requires that they provide prenatal care to individuals in their custody, many correctional facilities nationwide still regularly neglect the basic needs of their pregnant inmates. In 2019, Diana Sanchez, a woman in a Denver jail gave birth alone in her cell without any medical assistance despite pleading for help from deputies. Not only this, many incarcerated women are shackled during labor and delivery - a practice which many states have only recently outlawed. As a result of this dismal state of care for pregnant inmates, pregnancy is a high stakes medical condition when in custody.
Despite this, incarcerated women generally have little reproductive freedom. Before Dobbs, access to abortion was constitutionally protected in prison and jails but closely tied to state regulations. Thus, in states with non-hostile policies, inmates generally had an easier time accessing abortion clinics but still faced significant barriers like prohibitive costs or far distances to travel to an abortion clinic. Furthermore, the Hyde Amendment also prohibits the use of Medicaid coverage for abortions in federal facilities (except in cases of rape or incest). All in all, these restrictions and regulations mean that the rate of abortion in prisons and jails is actually lower than in the general population - even though incarcerated pregnant people may be more likely to need an abortion.
Post-Roe for Incarcerated Individuals
While many fear for the fate of pregnant people under Dobbs, the risks for pregnant people in custody are especially high. The SCOTUS ruling gives states the power to criminalize or otherwise regulate abortion making a bad situation worse. Those unfortunate enough to be in custody in states that have trigger laws that went into effect post-Roe are unlikely to be able to access abortion care. The risk does not end in the confines of prison. Women are also more commonly on parole or probation due to the types of offenses they are charged for. Once they are granted parole or probation, most have restrictions on where they can travel. This means that a pregnant parolee will be unable to cross a state line to access abortion care if they live in a state with a trigger law. Furthermore, the average length of a probation term is two years - too long for a pregnant woman to wait for this surveillance to end.
If we are serious about the threat that Dobbs poses to reproductive justice, we must consider too that the threat is far greater for incarcerated women. Some promising pieces of legislation (none of which go far enough) enhance prenatal and postpartum care, allow for release of pregnant inmates for 1 year after delivery, and the establishment of basic protocols for humane birth in prison.