This article is part of a larger series titled “The End Of Roe.” Head here to read more.
When a leaked SCOTUS draft decision signaled the end of Roe v Wade was near, the bulk of media voices and activists left one particular group out of conversations around the dystopia to come — one that’s already living it. For decades, many incarcerated women have effectively been navigating a post-Roe world.
For the approximately 58,000 people who enter prisons and jails every year while pregnant, abortion is only accessible in principle. A 2016-17 study found that of 816 pregnant women in state and federal prisons, only 1.3% of pregnancies resulted in an abortion. In contrast, in 2020, nearly 20% of pregnancies nationwide ended in abortion.
“There’s a great divide between what the law says the status of access to abortion for people who are incarcerated should be and what the reality is,” Alexa Kolbi-Molinas, the deputy director of the Reproductive Freedom Project of the American Civil Liberties Union, told HuffPost.
Three years after the Supreme Court decided the landmark Roe v Wade case, the Hyde Amendment became a law, and remains in place today. The legislation prohibits the use of federal funds for abortions, with exceptions for health risks or pregnancy by rape or incest. This meant that in prisons owned and operated by the federal government, prisoners wanting abortions need to pay for the procedure ― the average price of which is now estimated to be over $500 ― on their own. This is virtually impossible for most imprisoned pregnant people, given the staggeringly low labor wages for the incarcerated.
At the state and local level ― where a vast majority of Americans are incarcerated ― abortion access is varied, though often hard to obtain. Of the 19 state prisons allowing abortions in the study, two-thirds of them require those incarcerated to pay for their abortions. Three of the prisons forbid the procedure entirely.
At least 12 states don’t have written procedures for abortions within their prisons. Though, written policies ― or lack thereof ― don’t always accurately indicate whether incarcerated people can access abortion care.
“The lack of a written policy often corresponds with jails and prisons failing to meet their constitutional obligation to make the care available, [but] sometimes it really is ignorance,” Kolbi-Molinas said.
There is “tremendous variability” in abortion access for the incarcerated, said Carolyn Sufrin, an assistant professor of gynecology and obstetrics at Johns Hopkins University and the lead researcher on the previously mentioned prison study.
“It could be [that] they have an official written policy that just doesn’t allow it,” Sufrin noted. “They could have an official written policy that allows it but only up to a certain gestational age, even if that is not consistent with what state law is. Or they might have unwritten rules and policy that just don’t allow it or they might require the incarcerated individuals to pay for their own abortion.”
But few people are paying attention — even among researchers and medical professionals, much less politicians. Sufrin’s study was regarded as the “first-of-its-kind” by John Hopkins. She even noted within her research that data on the matter was “scant and outdated.”
“To our knowledge, there has never been a systematic assessment of abortions, stillbirths, miscarriages, ectopic pregnancies or neonatal and maternal deaths in prisons,” Sufrin wrote.
In the states where prison abortion regulations are the most sparse, the authorities making the calls in that grey area are perhaps the least willing to allow or assist abortion procedures. There is a significant overlap between the states with trigger bans ― which will allow abortion restrictions to become effective immediately if the Supreme Court does overturn Roe ― and states the ACLU has noted as being without established abortion protocols in their prisons.
In 2006, the ACLU sued then-Arizona sheriff Joe Arpaio for refusing to transport incarcerated women to abortion clinics, saying he believed in “family values” and that him helping facilitate abortions would “never happen.”
An Arizona court ultimately prohibited Arpaio from what the ACLU said was a “bait and switch tactic” of requiring prisoners to pay their transportation and security costs for their abortion services upfront.
A year prior, Missouri prison staffers denied a woman’s request to have an abortion.
“It is not the prison that has imposed the burden, but the prisoner’s violation of the law that resulted in her incarceration that has imposed the burden,” Missouri Assistant Attorney General Michael Pritchett stated in defense of the prison’s actions in court documents.
The case went to the Supreme Court, which ruled against the prison.
Both Arizona and Mississippi are anti-abortion states that have trigger bans in place if Roe is overturned.
Other women who have been in the prison system say they have felt pressured to terminate their pregnancies.
Julia Arroyo, who is now the managing director at the Young Women Freedom Center, an organization that seeks to reduce the criminalization of young women, said she felt as if she had no choice but to get an abortion while on probation at 15 years old.
Arroyo, who was in the foster care system at the time, said she was told it’d be difficult to find a home for her if she carried through with her pregnancy.
“For somebody that comes from a particular background, having a cis white male ― that literally had handcuffs right in front of me ― make my medical decisions for me was pretty tough,” Arroyo said.
She doesn’t know if she would have kept the baby if she’d felt like she had more options.
Incarcerated people have long borne the brunt of issues affecting other Americans. As Black motorists are assaulted and killed by police officers, prisoners are regularly brutalized, raped and abused by prison staff. As quality, affordable health care evades lower-income Americans, prisoners get told to drink water when sharing health concerns. And though Roe’s overturning will make abortion much more difficult to access for the everyday woman, particularly those coming from lower-income backgrounds who can’t afford to travel to seek care, incarcerated women can’t hop in a car or plane to get an abortion. And when they do undergo birth in prison, it’s also far more perilous.
Not only does the U.S. have the worst maternal mortality rate in the developed world, but Black women — who constitute 30% of the women’s prison population — are facing a maternal mortality crisis. They are three times more likely to die in childbirth than white women.
Furthermore, it’s still legal in many states for incarcerated people to remain shackled while they give birth, which medical professionals say makes childbirth more uncomfortable and potentially more of a health risk than it would be otherwise. But another ever-present danger lay in callous prison employees.
In 2009, Joan Graeber reportedly asked prison staff for medical assistance when she began leaking amniotic fluid, a protective liquid that surrounds and nourishes the fetus. When she finally received an ultrasound, she was informed that all of her fluids were gone and that the baby had died. Graeber’s attorney said she wasn’t immediately taken to the hospital, placing her at risk of septic shock, which can be fatal.
Almost a decade later, Diana Sanchez was captured on video crying for help while in labor in her prison cell. In a lawsuit, Sanchez states she was ignored by staff, forced to navigate childbirth by herself and that the day was one of “unnecessary terror, pain and humiliation that continues to cause her ongoing emotional trauma.”
Nine months ago, Keiko Kopp was in labor for 30 hours before prison staff responded to her cries for help and transported her to a hospital, according to a report from a local NPR affiliate. She lost the baby an hour after giving birth. Kopp was imprisoned at Lowell Correctional Center, a facility specifically for pregnant women.
For women in prison who undergo labor without malicious treatment, the process is still daunting. Unless a mother is being incarcerated in one of the few U.S. prisons with nurseries, they’ll have a maximum of 48 hours to spend with their newborn. If a relative or trusted friend doesn’t come to care for that child within that time frame, they’ll enter the foster care system.
Arroyo, who’d seen the aftermath of both women having abortions and undergoing birth while imprisoned, noted the women couldn’t even properly console one another afterward. Physical touching, such as hugs, among the incarcerated are considered an offense in many prisons.
As the COVID-19 pandemic famously illustrated, when hardship hits Americans, it will batter those already disenfranchised. For incarcerated women, Roe’s overturning will do the same, but you’ll be hard-pressed to hear about it.