The Supreme Court opened its new term
with some good news for women: it rejected an appeal from the state
of Missouri, which had hoped for one more chance to defend its unconstitutional
policy banning abortions for women in the prison system.
Crawford v. Roe, originated in 2005, when a young woman refused
to take no for an answer and eventually enlisted the ACLU in helping
her to exercise her right to make her own reproductive decisions. "Jane
Roe," as she is called in court documents, spent seven weeks trying
to work with the prison system to obtain an abortion, something the
prison had previously accommodated by bringing women to a clinic if
they could afford to pay for an abortion with their own money. A change
in the governor’s office led to a change in that policy.
While many women face some kind of barrier
to abortion, imprisoned women face the literal barrier of the prison
itself. As the Eighth Circuit Court of Appeals put it, "certainly,
no prisoner could simply elect to leave the institution at will to obtain
an abortion." An imprisoned woman will therefore almost always need to be
taken to a health facility where she can receive abortion care. (While
jails may release someone temporarily to obtain health care on her own,
prisons are not likely to do so.)
Earlier this year, the Supreme Court declined to hear an appeal in a related case from Maricopa
County, Arizona. In that case, the sheriff in charge of the county jails
had an unwritten policy to require women seeking abortions to obtain
court orders from judges before being able to access care. That policy
was struck down by the state courts, and the Supreme Court declined
The policy in Missouri was even more
burdensome and extreme – it essentially prohibited all abortions unless
administrators from the prison’s private medical company approved
the procedure as necessary for a woman’s health or life. A woman seeking
an abortion for any other reason would have no recourse.
To allow such a policy to stand would
be to invite attacks on the right to abortion for all women. Jane Roe
had argued that the policy violated both her 8th Amendment
right to adequate medical care as a person in prison, and her 14th
Amendment right to reproductive decision-making. The Eighth Circuit
disagreed that her rights as a person in prison to adequate medical
care were violated; however, it found that her right to choose abortion
as guaranteed by Roe v. Wade and Planned Parenthood v. Casey
was completely eliminated – something no state may do.
The Supreme Court’s decisions not to
hear these cases should make it clear once and for all that women do
not lose the right to have an abortion because they are imprisoned.
This is the consensus reached by state and federal courts that have
heard cases brought by women when jail and prison officials stood in
their way. And yet things are not always that simple. More recent events
from Maricopa County are instructive.
After his final loss in the case, the
sheriff told a reporter for The Arizona Republic, "I’m disappointed.
We fought the good fight. I still don’t agree that we should take
females on a voluntary basis to an abortion. I’m still against that.
But we took it to the highest court, and we’ll see what happens
if the situation comes before me again in the jail system." When
the situation did come up again, members of his jail staff refused to transport
a woman for an abortion – in direct violation of the court’s order.
The result was a four-week delay in obtaining an abortion, and the need,
once again, for legal intervention.
The sheriff’s intransigence reminds
us that as important as court decisions are, those decisions alone may
not be enough to safeguard women’s rights, especially the rights of
women who are poor and politically marginalized. Rather, constant vigilance,
continued intervention, advocacy, and public education, and the provision
of funds to women who cannot afford to pay for an abortion are also
vital to ensure that all women can carry out their decisions.
To learn more about the reproductive rights of women in prison, including the right to parent, check out the pieces below!
- Rachel Roth, What Do Prisons Have To Do With Reproductive Rights?
- Christy Hall, From Inside Prisons, Mothers Long for Their Children
- Amie Newman, Pregnant Behind Bars: The Prison Doula Project
- Nicole Summer, Powerless in Prison: Sexual Assault Against Incarcerated Women
- Malika Sadaa Saar, Mothering As A Reproductive Right
Read more of Rachel Roth’s reporting here. And visit the ACLU
Reproductive Freedom Project web site to learn more about legal issues challenging women’s access to reproductive health care in prison. To learn more about helping women
who need financial assistance, visit the National Network of Abortion
Funds web site.