The following manuscript was published as part of the February 2019 Social Medicine theme issue.
The recent confirmation of Brett Kavanaugh to the United States Supreme Court raises concern about the future of reproductive health, particularly access to abortion and affordable contraception. According to the Center for Reproductive Rights, Kavanaugh’s track record reveals consistent opposition to abortion rights and the ACA’s provisions for maternal and reproductive health. Although his impact on reproductive rights is to be determined, those who will be disproportionately impacted by further compromise of reproductive rights will always be the most vulnerable women among us. This includes the uninsured, poor, and incarcerated.
The prison system perpetuates health disparities in multiple ways, resulting in increased mortality and morbidity among prisoners. Nearly 2 million people in the United States are incarcerated, approximately 750 per 100,000, with the majority being Black or Hispanic.
While some may argue that being incarcerated is equivalent to no longer having autonomy over one’s person and desires, prisoners are entitled to rights and the degree of those rights and liberties are often controversial. In her book Prisoners’ Rights: Principles and Practice, Susan Easton addresses the meaning of having rights while in prison and how those meanings have changed over time and vary by country and legislation. Easton writes that “rights protect individuals from the state and protect the weakest individuals in society from the majority by according individuals the right to be treated with equal concern and respect.” She argues that rights are invariably universal and are consequently available to all regardless of whether or not some individuals in society appear “less deserving.” Prisoners’ rights movements began in the 1960s with prison riots across the states and later transformed into high-profile legal cases. These efforts demonstrate the decades-long history of addressing abuses of power, prison labor, and cruel and unusual treatment of prisoners. One of the ways in which prison systems infringe upon these rights is by limiting or denying access to appropriate health care for prisoners. For women there are numerous needs that differ from those of male prisoners, including a range of reproductive needs.
I argue that incarcerated women should have access to reproductive health care including contraception, women’s health screenings, prenatal care, and terminations while in prison because of the long-term consequences of health complications and unwanted or high-risk pregnancy.
In the United States, over 200,000 women were counted as being under the jurisdiction of state or federal corrections in 2015. Of the women in state prisons, 25% had been convicted of a drug offense, and in federal prisons 56% were serving time for drug offenses. Only 5 to 8% of prisoners were over the age of 55 when assessed in 2016, which means that the majority of women in prisons were in their reproductive years or nearing the years of menopause.
Evidence has consistently shown that women who are at high risk for arrest and imprisonment are very often poor and from racial and ethnic minorities. Additionally, these women are often at increased risk for unintended pregnancies or already have children under 18 years old. As a result, these women are frequently in poorer health prior to coming in contact with the justice system. Women involved with the justice system have also been shown to have poorer birth outcomes such as low birth weight and preterm birth, and are also at much higher risk for sexual violence, previous sexual trauma, and sexually transmitted infections both while incarcerated and after release. Women who are incarcerated also have higher rates of chronic health problems including addiction and mental illness. It is therefore essential that incarcerated women receive appropriate health care services, including reproductive health care, in prison in order to set them up for success after release.
According to the U.S. Bureau of Justice Statistics, an estimated 4 to 5% of women are already pregnant when processed into prison or jail at the time of admission. Other women may become pregnant while incarcerated as the result of conjugal visits where permitted, during home visits or work release programs, or, unfortunately, as the result of rape by prison employees and volunteers.
When it comes to terminations, the prison system has been found to discourage a female prisoner’s desire for or ability to access abortion services. According to Rachel Roth in Obstructing Justice: Prisons as Barriers to Medical Care for Pregnant Women, women do not lose their right to an abortion even if they are imprisoned. Roth argues that the 14th amendment establishes that the state cannot deny an individual’s liberty, which includes the right to an abortion based on the concept of personal liberty in making one’s own reproductive decisions. She argues that the Supreme Court has also consistently established a women’s liberty in making these decisions. According to these concepts, if a woman is in prison and may have some of her constitutional rights restricted, those restrictions must be legitimate — meaning they relate to “prison security, deterrence, or ‘rehabilitation’” and forcing women to continue a pregnancy does not fall under this definition. However, many incarcerated women do not have access to these options and women have reported significant challenges and delays in attempting to access abortion care. Additionally, if a prison’s ownership does not agree with terminations on political or religious grounds, there are no alternatives for women with unwanted pregnancies. Not only have incarcerated women frequently been denied access to termination, they have also been sterilized without informed consent. In 2013, the involuntary sterilization of incarcerated women in California brought attention to the types of abuses being committed by the justice system. According to a few accounts, when medical or prison staff found out how many children a female prisoner already had, these individuals were pressured or coerced into sterilization. Cases like these highlight the lack of oversight and accountability of justice systems in providing ethical and informed health care for incarcerated women.
National organizations such as the American College of Obstetrics and Gynecology recommends allowing incarcerated women access to former methods of contraception, these recommendations are not necessarily implemented due to the correctional facility itself and its policies. It is important to note that contraceptives may also be used for reasons other than to prevent pregnancy, such as in the treatment of menstrual issues, polycystic ovarian syndrome, fibroids, and endometriosis. Many correctional facilities do not demonstrate formal policies with regards to contraception and abortion care, and if they do, the implementation of those policies is variable, resulting in inconsistent counseling and prescription of contraceptive methods.
Lack of Transparency
As briefly noted above, one of the biggest challenges in addressing or changing women’s health care practices in prisons is the lack of transparency of prison policies regarding medical care. Many of these policies are designed internally or by individual prisons, and sometimes by outside companies responsible for providing the medical services. Although standards for medical care in prisons have been developed by non-governmental organizations, there are no national mandates or over-arching policies that govern medical care in correctional facilities. Additionally, many of these facilities operate without any public or external oversight in order to keep them accountable. According to individual reports, prisons govern many aspects of women’s reproductive behaviors such as the amount of time a mother can spend with her newborn child and whether or not she can hold her child during a visit, in addition to the aforementioned control over contraception and abortion care. Women have also reported being coerced into medical decision-making: For example, into having an abortion after becoming pregnant by a prison employee. Unfortunately, many ethical violations are often not reported or exposed to the public due to the lack of transparency and accountability.
During the confirmation testimony of Judge Kavanaugh, many of his statements confirmed his stance on limiting access to contraception and abortion options, particularly among marginalized women, in addition to siding with employers who decide not to cover these reproductive options due to religious reasons. With the privatization of prisons and lack of reproductive access and oversight as it stands now, reproductive rights are under threat. The challenges that women face while incarcerated are substantial and become significantly more complex when attempting to address reproductive needs. According to Knittel et al., there are several areas for improvement in correctional facilities. In addition to routine preventive screening, incarcerated women should have sufficient sanitary pads and tampons for menstruation, hygiene products, access to comprehensive prenatal care in accordance with ACOG, formal education programs for pregnancy, childbirth, and postpartum care, prohibition of shackling or restraint while in labor or postpartum, and programs for addiction treatment and community re-entry preparation. There is clearly a need for transparency and accountability in the prison system to ensure the respect of prisons for their inmates’ basic human needs including standardized reproductive policy, enforcement, and access with possible oversight by medical entities. As John Robertson argues, “Procreative liberty is the freedom to either have children or to avoid having them.” Simply put, this is the non-interference with a woman’s reproductive decisions and appropriate care. This right to reproductive liberty, and other rights to basic health care, do not disappear when one is under the supervision of corrections or incarcerated.