The Supreme Court’s ruling overturning Roe v. Wade is raising concerns for women of color who are behind bars — a population that could be disproportionately affected by abortion bans in states across the country.
Women of color are statistically more likely to seek an abortion and to be incarcerated, highlighting why advocates worry they could be hurt by the decision.
“The criminalization of abortion is going to further drive mass incarceration,” said Chelsea Moore, policy director for the non-profit Dream Corps Justice. “And anytime we see any form of new criminalization, it inevitably disproportionately impacts Black and indigenous people of color.”
Women in jail already faced severe hurdles to access healthcare services, including obtaining menstrual products and abortion services.
Roe’s overturning significantly complicates an already difficult situation, raising questions of how women will be treated in federal facilities, state prisons and county jails that lie under different state laws.
Before the court’s action, incarcerated women had a right to an abortion, but there were no mandatory standards, said Dr. Carolyn Sufrin, an obstetrician who is also director of the Advocacy and Research on Reproductive Wellness in Incarcerated People program at Johns Hopkins University.
Federal facilities had their own rules and regulations, while state facilities and even county jails could have different rules.
In practice, this left incarcerated women facing a number of hurdles, and women imprisoned in states with heavy restrictions were generally unable to get an abortion.
Even those women who legally could access the service faced challenges in paying the typical $500 cost for the procedure and transportation, particularly in so-called abortion deserts — states or areas with only one or two clinics.
Such deserts will be expanded by Roe’s reversal.
“Overturning Roe v. Wade is going to make a bad situation even worse for this population,” said Sufrin. “If someone is pregnant and incarcerated in a state where abortion is illegal, they don’t have the freedom of movement to try to travel to another state where abortion is legal. Maybe they would get released from jail while still pregnant, but they might be too far long at that point to try to organize the logistics of going to an abortion-supported state.”
Women released from prison on probation or parole will also face new challenges as states move to outlaw abortion following the Supreme Court’s decision.
“There are travel restrictions for people on probation or parole,” said Moore. “If you want to leave even your county, but especially your state, you have to get permission from your community custody officer. If you live in a state where you would need to travel to get an abortion, that’s going to be near impossible.”
Sufrin said she is especially concerned how the “vigilante policing” of pregnant people could lead to self-managed abortions — and therefore more women incarcerated — if some states go through with threats to press charges against women who do go over state lines for abortions.
Incarcerated women who carry fetuses to term will face another challenge: Environments where access to quality prenatal care is often nonexistent. “In some cases, what the facility calls prenatal care may just consist of getting your blood pressure checked once every few weeks,” said Sufrin.
Sufrin’s research estimates there are as many as 58,000 admissions of pregnant people to prisons and jails each year.
As part of their research, Sufrin’s team tracked pregnancy outcomes for one year at federal prisons as well as 22 state prisons and six jails, including the nation’s five largest. They found that out of more than 800 pregnancies that ended in birth, only one percent of those ended abortion — suggesting difficulties accessing the care needed.
“When Roe was in place and incarcerated people had a constitutional right to abortion, it was already a less than ideal situation,” said Sufrin.
Today, there are 20 prenatal women in federal custody, according to a spokesperson for the Federal Bureau of Prisons. They added that BOP is reviewing all potential policy options for protecting the reproductive health of inmates in its care and custody.
It’s unclear whether federal prisons will follow the laws of the state the facility is in, or their own rules and regulations on abortion.
Another issue with subpar maternal care is that it increases the likelihood for miscarriages and stillbirths.
Research shows that Black women already have a 43 percent higher risk of miscarriage than white women. Once incarcerated, some practices, like shackling, can lead to increased risk for negative pregnancy outcomes.
Pamela Winn was six weeks pregnant when she was sentenced to 78 months in federal prison. At the time, she was a registered nurse and the single mother of two boys. While incarcerated, she found herself shackled anytime she was transported.
One day, as she was being loaded into a van — shackled — she fell. When she began bleeding a few days later, concerns of a miscarriage immediately floated through her mind. For weeks, her pleas for medical attention went unaddressed by prison staff.
At 20 weeks pregnant, Winn miscarried.
“I suffered the entire miscarriage shackled to the bed with two male officers between my legs,” Winn said in her testimony to the US Commission on Civil Rights Briefing: “Women in Prison: Seeking Justice Behind Bars” in February 2019. “When the nurse stated I had passed the fetus and asked for the linen that I had soiled, she was told [by] the officers that the linen which contained my unborn child had been thrown in the trash.”
With some states charging women for inducing miscarriages due to previous drug abuse or other behaviors, it’s not clear if incarcerated pregnant people who miscarry will have time added to their sentences, leading some women already incarcerated worried about their futures.
Kathryn Griffin, founder of Texas DOC’s Our Roadway to Freedom rehabilitation program, spoke to women at the Lucile Plane State Jail in Dayton, Texas on what the end of Roe will mean for them. Texas is one of six states with a total abortion ban. Many of the women Griffin spoke to told her the abortions they’d heard of were only for those at the county jail, and usually only for life threatening situations like ectopic pregnancies.
“Because they’re incarcerated, they feel they’re at the back of the line,” said Griffin. “They’re not a priority.”
Others, though, recounted their own failed pregnancies while in custody.
“Some of them talked about miscarrying, the fetus falling in the prison or jail toilets,” said Griffin. “They didn’t know they were even pregnant. And then they weren’t granted privileges to go [to a hospital] to make sure everything was out.”
Almost all expressed concerns about recidivism rates.
Some of the women said after all the rehabilitation work they’ve been doing to ensure they don’t end up reincarcerated, they’re now worried the end of Roe will lead them back to imprisonment.
For Moore, the health care crisis in prisons and jails across the country, compounded with the Court’s decision, will only lead to a loss of lives, especially for Black women, who are three times more likely to die in childbirth than white women.
“We need to demand more of our legislators,” said Moore. “We need to let them know that this is an issue that we care about, that the issue of overturning Roe is not disconnected from the mass incarceration crisis that we’re experiencing. It’s related to it and it’s going to compound it and we’re tired of locking people up and throwing away the key and devastating Black and indigenous communities of color.”