Post-Roe and Women Under Carceral Surveillance
Ira Memaj and Robert E. Fullilove
People with the capacity to get pregnant have benefited socially and economically from the legalization of abortion in Roe v. Wade.[1] Roe has allowed people to exercise their right to choose when, how, and under what circumstances they decide to become a parent. However, for incarcerated women and pregnant persons, the freedom to exercise that right has always been severely restricted and they have little decision-making power about their bodies, and limited or no access to contraception, abortion services, and pre- and post-natal care.
The recent decision of Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortions, galvanized many across the United States to vocalize the dangers of a post-Roe America.[2] Unsurprisingly, women under carceral surveillance were almost non-existent in the conversation. As public health educators and scientists who have worked with and advocated for incarcerated women, we critically question whether Roe was ever enough since the rights granted under it were rarely extended to incarcerated women. We also discuss the impact the Dobbs decision may have on incarcerated women, pregnant people, and women on parole, and highlight that women under carceral surveillance must not be forgotten in the construction of post-Roe laws and policies.
Since 1980, the rate of incarcerated women has increased by more than 400%.[3] Policies such as the war on drugs and the three-strikes law have disproportionally targeted people living in poverty, sex workers, people living with severe mental health conditions, LGBTQ+ communities, and communities of color.[4] Although the COVID-19 pandemic prompted many states to release some incarcerated people, the incarceration rate among women remains high, especially among women of color, with Black and Latinx women being incarcerated at significantly higher rates than their white counterparts (65 per 100,000, 48 per 100,00, and 38 per 100,000, respectively).[5] The majority of incarcerated women are of reproductive age, and about 80% are mothers. Approximately 58,000 women who are admitted to jails and prisons every year in the United States are pregnant.[6]
In an environment that was designed for men, services specific to women’s health, including abortion care services, are often neglected. In fact, because there is no official standard of reproductive care in correctional facilities, access to abortions and prenatal care are left to the discretion of county governments and jail officials, which in many cases, according to well-documented reports, have sexually abused incarcerated women.[7] Moreover, prison conditions, subpar medical care, and inhumane practices such as solitary confinement and shackling, present severe health consequences for the mother and the fetus.[8] Pregnant incarcerated people are at a higher risk of miscarriage, premature delivery, and worse maternal health outcomes.[9]
Even when reproductive health services are available for incarcerated pregnant people, access to them is difficult. Many must pay for the service, the guards that accompany them to abortion centers, and the transportation fee.[10] Access to reproductive resources and services has also been strained by the pandemic. As jails and prisons struggled to provide sufficient COVID-related protections (e.g., masks, other PPEs, etc.), some incarcerated women used their minuscule earnings to purchase PPE, while others were forced to use their menstrual pads as cleaning supplies to reduce their risk of transmission.[11] Although the Department of Corrections (DOC) have concealed much of the data, abortion services and prenatal care in prisons were reported to be constrained during the pandemic.[12]
With the overturning of Roe, we are concerned at the lack of transparency, especially regarding the consequences of Dobbs on the wellbeing of incarcerated women and pregnant people. Many will be forced to carry unwanted pregnancies to term, including those resulting from sexual assault. Incarcerated pregnant people will likely experience the inhumane practice of shackling during delivery, followed by sudden separation from the newborn, both of which have devastating health consequences.[13]
Pregnant people on parole and who live in states that outlaw abortions will face delays gaining formal permission from their parole officer to travel to another state for abortion services. If denied, they will have to endure an unwanted pregnancy. Pregnant people on parole are more likely to experience unemployment, financial distress, and worse health outcomes.[14] When forced to continue their pregnancies, their health, economic, and family outcomes become more daunting, reproducing a vicious cycle of marginalization. Moreover, the overturning of Roe may lead to abortion-related imprisonment in some states, and perhaps higher recidivism rates for women on probation or parole.[15]
It is important to not underestimate the power of the collective action. This should include demands that incarcerated women and pregnant people should be released early, especially as most who are incarcerated cannot afford bail or are serving time for low-crime offenses. Legislators and activists must push reform on cash bail, which can help reduce the number of women under carceral surveillance. Moreover, we urge lawmakers to support the passing of the First Step Act, which prohibits shackling during labor and delivery. Prohibiting shackling of incarcerated pregnant people will not only prevent adverse events during delivery but will also be a step towards humanizing incarcerated people. Public health officials and trauma informed health providers must work together to establish reproductive and sexual health care standards in detention centers to ensure that incarcerated women and pregnant people have access to menstrual products, contraception, STI/HIV screenings, abortion services, obstetrics and gynecologic care, lactation support, and nursery programs. Although these proposals may not be enough, the beauty of the collective struggle lies with our courage to reimagine a world where violent and dehumanizing institutions are destroyed, and critical systems of support and nurture are created and maintained.
Ira Memaj, MPH, is a PhD student in Community Health & Health Policy at CUNY School of Public Health and Health Policy, New York, United States.
Robert E. Fullilove, EdD, is a professor of Sociomedical Sciences at Columbia University Mailman School of Public Health, New York, United States.
References
[1] A. Sonfield, K. Hasstedt, M.L. Kavanaugh, and R. Anderson, “The Social and Economic Benefits of Women’s Ability To Determine Whether and When to Have Children,” Guttmacher Institute (2013).
[2] Dobbs v. Jackson Women’s Health Organization, The United States Supreme Court, no. 19-1392, judgement of June 24, 2022; N.K. Walecki, “The Post-Roe World,” Harvard Magazine (July 18, 2022), https://www.harvardmagazine.com/2022/07/post-roe-world-harvard-experts; S. Artiga, L. Hill, U. Ranji, and I. Gomez, “What Are the Implications of the Overturning of Roe v. Wade for Racial Disparities?,” KFF, (July 15, 2022), https://www.kff.org/racial-equity-and-health-policy/issue-brief/what-are-the-implications-of-the-overturning-of-roe-v-wade-for-racial-disparities/.
[3] E. Swavola, K. Riley, and R. Subramanian, “Overlooked: Women and Jails in an Era of Reform,” Vera Institute of Justice, (August 2016).
[4] M. M. Flowers, “Portraits from Prison Tell Stories of Women in the Drug War,” Open Society Foundations: Voices, (July 27, 2015), https://www.opensocietyfoundations.org/voices/portraits-prison-tell-stories-women-drug-war.
[5] The Sentencing Project, “Incarcerated Women and Girls,” The Sentencing Project, (May 12, 2022), https://www.sentencingproject.org/fact-sheet/incarcerated-women-and-girls/.
[6] C. Sufrin, L. Beal, J. Clarke, R. Jones, W. D. Mosher, “Pregnancy Outcomes in US Prisons, 2016–2017,” American Journal of Public Health 109/5 (2019).
[7] Reproductive Rights Project, “Access to Reproductive Health Care in New York State Jails,” Reproductive Rights Project, (March 2008), https://www.nyclu.org/sites/default/files/publications/nyclu_pub_healthcare_jails.pdf; NWHN Staff, “Reproductive (In)Justice: Women and Mothers in Prison,” National Women’s Health Network, (May 1, 2014) https://nwhn.org/reproductive-injustice-women-and-mothers-in-prison/.
[8] A. Baldwin, A. Sobolewska, and T. Capper, “Pregnant in Prison: An Integrative Literature Review,” Women and Birth, 33/1 (2020), p.41–50; G.G. Ferszt and J.G. Clarke, “Health Care of Pregnant Women in U.S. State Prisons,” Journal of Health Care for the Poor and Underserved, 23/2 (2012), p.557–69; K. James and E. Vanko, “The Impacts of Solitary Confinement,” Vera Institute of Justice, (April 2021), https://www.vera.org/downloads/publications/the-impacts-of-solitary-confinement.pdf; P.A. Ocen, “Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners,” California Law Review, 100/5 (2012), p.1239–1311; C.L. Griggs, “Birthing Barbarism: The Unconstitutionality of Shackling Pregnant Prisoners,” American University of Gender Social Policy and Law, 20/1 (2011), p.247–71; S. Mignon, “Health Issues of Incarcerated Women in the United States,” Ciência & Saúde Coletiva, 21/no. 7 (2016), p.2051–60; J. G. Clarke and M. E. Waring, “Overweight, Obesity, and Weight Change Among Incarcerated Women,” Journal of Correctional Health Care, 18/4 (2012), p.285–92.
[9] M. J. Paynter, E. K. Drake, C. Cassidy, E. Snelgrove-Clarke, “Maternal Health Outcomes for Incarcerated Women: A Scoping Review,” Journal of Clinical Nursing, 28/11 (2019), p.2046–60; R. Shlafer, J. B. Saunders, C. M. Boraas, et al., “Maternal and Neonatal Outcomes among Incarcerated Women Who Gave Birth in Custody,” Birth 48, no. 1 (2021), p.122–31.
[10] C. Sufrin, R. K. Jones, L. Beal, W. D. Mosher, and S. Bell, “Abortion Access for Incarcerated People: Incidence of Abortion and Policies at U.S. Prisons and Jails,” Obstetrics & Gynecology, 138/3 (2021), p.330–37.
[11] K. Bragg and K. Sosin, “Inside the COVID Unit at the World’s Largest Women’s Prison,” PBS News (October 19, 2020), https://www.pbs.org/newshour/health/inside-the-covid-unit-at-the-worlds-largest-womens-prison.
[12] C. Kramer, A. Williamston, R. J. Shlafer, and C. B. Sufrin, “COVID-19’s Effect on Pregnancy Care for Incarcerated People,” Health Equity 6/1 (2022), p.406–11.
[13] N. Wolfrey, “Incarceration Harms Moms and Babies,” National Partnership for Women & Families National Birth Equity Collaborative (June 2021), https://www.nationalpartnership.org/our-work/resources/health-care/incarceration-hurts-moms.pdf; L. S. Goshin, D. G. Sissoko, G. Neumann, C. Sufrin, L. Byrnes, “Perinatal Nurses’ Experiences With and Knowledge of the Care of Incarcerated Women During Pregnancy and the Postpartum Period,” Journal of Obstetric, Gynecologic & Neonatal Nursing 48/1 (2019), p.27–36
[14] W. K. Norris, M. K. Allison, M. F. Fradley, and M. J, Zielinski, “‘You’re Setting a Lot of People up for Failure’: What Formerly Incarcerated Women Would Tell Healthcare Decision Makers,” Health & Justice 10/1 (2022), p.4; L. Couloute and D. Kopf, “Out of Prison & Out of Work: Unemployment among Formerly Incarcerated People,” Prison Policy Initiative (July 2018), https://www.prisonpolicy.org/reports/outofwork.html.
[15] W. Bertram and W. Sawyer, “What the End of Roe v. Wade Will Mean for People on Probation and Parole,” Prison Policy Initiative (June 30, 2022), https://www.prisonpolicy.org/blog/2022/06/30/roe/.