Today, a federal court of appeals will consider a question of vital importance to the growing numbers of women behind bars: do women lose their reproductive rights when they go to prison?
The case arose when a young woman beginning a four-year sentence in Missouri was told she could not have an abortion. This represented a change in policy for the prison; in the past, women who could come up with the money were taken to a clinic for abortion care. Then in 2005, with a new anti-choice governor in office, the prison administration and the Department of Corrections reversed course, adopting a policy that categorically denies women access to abortion.
After weeks of being rebuffed by prison officials, “Jane Roe” wrote to the ACLU and eventually sued the prison. The court’s decision in her favor was straightforward, because the Supreme Court has been very clear that while states can enact policies to make getting an abortion more difficult, they cannot ban abortion altogether, as the Missouri prison had done. The Supreme Court has also made it clear that people do not automatically lose all of their constitutional rights when they cross the prison threshold. Jails and prisons must have a legitimate, prison-related reason for restricting such rights, and forcing women to bear children does not further any legitimate goal related to prison administration or crime control. Calling the decision an offense to its values, the Missouri government has asked the court of appeals to reinstate its unconstitutional policy.
For more than twenty years, courts have ruled that incarcerated women retain their abortion rights, and yet for all those twenty years, jails and prisons have continued to violate those rights. Across the country, women have been told by sheriffs to get a judge’s permission, something that takes time, money, and the services of a lawyer. Women are routinely told that they must pay not only for the abortion, but for the costs of employees’ time and of transportation, down to turnpike tolls, even though people in prison have a constitutional right to medical care. In many cases, these requirements are unwritten and ad-hoc, reflecting the whim of local officials. From California to New York, from Louisiana to Pennsylvania, women have wound up carrying pregnancies to term because jail officials stood in their way until it was too late to have an abortion – or until they gave up.
Every woman has a lot to think about when faced with an unwanted pregnancy, but for women inside, the question takes on special urgency. Women may be concerned about the kind of prenatal care they will receive in prison and worried about what the future holds. Those facing long prison sentences may find the prospect of having a child unbearable. A woman serving as little as fifteen months can lose her parental rights if she has to place her child in foster care, even if she has never been accused of child abuse or neglect.
In recent years, politicians have made a concerted effort to restrict access to second-trimester abortions, and yet they create the very conditions that lead women to need later terminations. Prison officials delayed Jane Roe’s abortion by almost two months, subjecting her to a more expensive, more complicated procedure, and to weeks of worry about whether she would be able to get an abortion at all.
Women in prison are an easy target for anti-choice forces. Typically poor and disproportionately women of color, they are among the least powerful members of society. Isolation in prison, without ready access to information or even a telephone, diminishes their power even further.
The struggles of women inside represent the need to keep closing the gap between rights as ideas and rights as tools we can use to shape our lives. Even with the courts on their side, incarcerated women still find they have to go to extraordinary lengths to carry out their reproductive decisions. If their rights can be negated, whose will be next?