October 1, 2012 — Summary of "'She Doesn't Deserve To Be Treated Like This': Prisons as Sites of Reproductive Injustice," Roth, Center for Women Policy Studies, July 2012.
Rachel Roth, an independent scholar and director of communications and foundation support at the National Network of Abortion Funds, focuses on barriers to abortion and safe childbirth in the prison system.
After reviewing the concepts of reproductive justice, the limitations on the constitutional right to medical care in prisons, and class and racial biases in the criminal justice system, Roth "examines barriers to abortion care and pregnancy care to show that institutional resistance to abortion is not the result of a commitment to healthy pregnancy and childbirth," but instead is "part of a widespread pattern of institutional neglect."
The paper highlights several examples from around the country and describes how prison practices, public discourse and public policy contribute to reproductive injustice for pregnant women in prison.
Constitutional Right to Medical Care, Including Abortion
Individuals in prison are the only group in the U.S. with a constitutional right to medical care, Roth writes. The 1976 Supreme Court ruling in Estelle v. Gamble declared that under the Eight Amendment's protections against cruel and unusual punishment, the federal government is obligated to meet an incarcerated person's basic needs.
Despite this, the U.S. "has no national standards to implement the constitutional right to medical care in prison," Roth states.
Nevertheless, appellate courts "have been very clear that women in prison do not lose the basic right to make decisions about pregnancy and abortion," Roth writes. Further, some judges and scholars argue that "the Eighth Amendment right to medical care also protects women's right to an abortion," she notes.
Social Injustice in Prisons
Roth argues that "[p]risons both reflect and reinforce social disadvantage." People sentenced to prison are disproportionately minorities and low-income; when they get out, their challenges in obtaining jobs, housing and education are compounded because of their records.
Roth notes that most women in jail and prisons are mothers and that 4% to 5% of incarcerated women are pregnant when they begin their sentences. Prison policies, public discourse and public policies reinforce a message that women in prison are unworthy of being mothers, even as the system itself further undermines their ability to visit or bond with their children, Roth argues.
Even short sentences can lead to women permanently losing custody of their children, as well as eligibility for public assistance and school loans. "[T]hese policies fall especially heavily on women of color, permanently undermining their right to be mothers," Roth writes.
Barriers to Abortion Care
Court records show that women incarcerated in at least 20 states and the District of Columbia "have had to fight for the right to an abortion," with some women forced to continue their pregnancies, according to Roth.
Many U.S. prisons and jails do not have official written policies on how women and staff members should handle abortion requests, while those that do often have convoluted or ambiguous rules, she continues. Women seeking abortion care must navigate the scant information available amid limited access to outside resources.
Throughout the U.S., women in prison often have to obtain a judge's permission to obtain an abortion and cover the cost of the procedure, transportation and staff time. In some instances, women are simply told, "No, you cannot have an abortion," Roth reports.
Geographical barriers also are factor, since most prisons are located in rural areas and the majority of abortion providers are located in urban areas.
Roth notes that these issues disproportionately affect low-income women and women of color because both groups account for a large portion of female inmates. These groups also are more likely than others to experience unintended pregnancies.
Barriers to Pregnancy Care
Roth writes that while nearly every state prison system has an official policy to provide pregnant women with prenatal care, jails are less likely to have such policies. She cites a government study that found 20% of pregnant women in prison reported receiving no prenatal care, compared with 50% of pregnant women in jail.
Court records and other documents show that corrections officers and medical personnel often ignore or disregard pregnant women when they are in need of medical attention.
Roth notes that some of the most serious problems pregnant women in custody face are prison staff refusing to take bleeding seriously; staff not recognizing or not believing when women are in labor, which can lead to women giving birth in their cells; shackling women during labor and chaining them to the bed during birth; and not providing women with appropriate postpartum care, including separating them from their infants.
Correcting the System
Enabling women to access abortion care is in some ways "more clear-cut" than improving pregnancy care because "[a]bortion is an either-or situation," Roth writes. The key appears to be connecting women with organizations, such as the ACLU Reproductive Freedom Project or NNAF, that can help them get before a federal judge, rather than a local one.
Roth is less optimistic about the capacity for changes to the prison medical care system. "The sheer size of the U.S. prison system, the decentralized and increasingly privatized nature of the system, and the general disregard for the humanity of people in prison are formidable barriers to positive change," she writes.
Roth continues, "While it is crucial to stand up for better treatment of people inside prison," it is also essential to reduce the number of individuals who are sent there to begin with. "Without a shift in political priorities, we will not achieve a society that embodies principles of reproductive justice," Roth writes, noting that the U.S. "leads the world in incarceration, but not in public education, health status or life expectancy."
"Analyzing imprisonment through the lens of reproductive justice has the potential to alter the way people think about prisons" and "may provide a new way to understand the problems of people in prison and the ways that the overarching problem of mass imprisonment affects us all," Roth concludes.