There are over 200,000 women currently incarcerated in the United States. Thousands of these women are pregnant. Many persons become incarcerated while pregnant, although they may not find out until they have been imprisoned for weeks. Some persons can become pregnant after they are incarcerated as well. The National Commission on Correctional Healthcare recommends that women be tested for pregnancy upon arrival to jail or prison, but this recommendation is not followed by all correctional institutions. Additionally, the American Civil Liberties Union advises that people have the right to decline taking a pregnancy test to protect their privacy. So, do incarcerated pregnant persons have the right to an abortion?
Based on current case law, the short answer is yes, incarcerated persons have a right to abortion. The current law in the United States is that pregnant people have the right to choose if they want to continue their pregnancy. People do not lose that right when they are imprisoned. Roe v. Wade held that people have a right to abortion, while Planned Parenthood v. Casey created the standard that states cannot impose an undue burden upon a person’s right to abortion. Turner v. Safley is the standard used to determine if prison policies are limiting an incarcerated person’s constitutional rights. Under the test used in that case, prison regulations may infringe on the constitutional right to abortion so long as it is "reasonably related to legitimate penological interests.”
Although it is legal to get an abortion in the United States and therefore legal to get an abortion while incarcerated, access to abortion while incarcerated is not clear or simple. In a recent study examining abortion access in 22 state prison systems, including six county jails and Federal Bureau of Prisons sites, researchers found that some of these entities did not allow abortions for incarcerated persons. The study found that “the majority of state prisons (86%) allowed abortion, with most of these (58%) permitting both first and second-trimester abortions.”
The same study found that “at two thirds of the facilities that allowed abortion, the incarcerated person had to pay for this care.” Because the Hyde Amendment blocks the use of federal funds for abortion care, incarcerated persons are unable to use Medicaid to fund an abortion in most states. Even in the states that do allow Medicaid funds for abortions, Medicaid is often suspended for incarcerated persons, making it an unviable option to fund an abortion. In addition, the average maximum daily wage for incarcerated persons in the United States is $3.45, although averages range from the minimum daily wage of 86 cents. Therefore, it is unlikely that many incarcerated persons are able to afford to fund an abortion and the required transport.
If Roe v. Wade is overturned, incarcerated persons will face more challenges accessing abortion than they already do. Persons incarcerated in a state correctional institution are subject to a system that could easily change policies to deny all abortions to prisoners. For persons incarcerated in the federal system, access to an abortion is dependent on the location of the federal facility. In either scenario, it is unlikely that incarcerated persons would be able to arrange transportation to another state to obtain an abortion.
While incarcerated persons do have the right to an abortion, they often do not have access to it. The choice for most incarcerated persons is not a choice at all, given that in some circumstances they must carry a pregnancy to its conclusion. As a result, many will give birth in shackles after receiving inadequate prenatal care. Prison policies often fail to address pregnancy and abortion access. The prison policies ignore the choices related to pregnancy and ignore the accessibility involved in receiving an abortion. The first step towards more comprehensive choice around pregnancy for the incarcerated is pushing prisons to define and uphold their policies when it comes to those who are pregnant.