By Violet Rush, If/When/How Legal Intern
Incarcerated people retain the right to abortion, but recent events indicate that prisons and jails are not upholding that right. Recently, Kei’Choura Cathey was denied access to an abortion during her incarceration in Maury County, Tennessee. The sheriff considered abortion an “elective procedure” and refused assistance for funding or transportation to the clinic. Cathey was not released until she was past sixteen weeks pregnant – the cut-off period for clinics in Tennessee. Cathey gave birth in April and is now in counseling for postpartum depression.
Denying imprisoned women access to abortion presents complex legal issues and logistical nightmares. In addition, some facilities require pregnant people to obtain court orders to be transported off-site. This adds to the cost prohibitive nature of abortion because those who are incarcerated may be forced to pay for their transportation and guard accompaniment. Payment for peripheral services is particularly cruel considering that many states require multiple visits to clinics and incarcerated women have no source of income. Further, the criminal justice system often lacks a sense of urgency when imprisoned people face time-sensitive issues like pregnancy termination. Twenty-week abortion bans are present in many states, but a number of clinics within those states will not perform abortions past sixteen weeks or fewer. Ultimately, time becomes the primary obstacle for incarcerated individuals seeking abortions.
The disproportionate targeting of Black women for minor offenses makes them particularly susceptible to the challenges of obtaining an abortion during incarceration. Black women are incarcerated at four times the rate of white women, and forty-four percent of women in jail are Black. In addition, a majority of incarcerated Black women are of child-bearing age.
A simple solution to improving abortion access for incarcerated people is tenuous. While policy guidelines should be implemented by national organizations that wield influence over prisons such as the National Institute of Corrections, the incarceration industry suffers from an unparalleled lack of transparency. National groups like the ACLU Reproductive Freedom Project work hard to research and litigate these issues, yet the experts on regionalized injustice are the grassroots organizers.
Effective organizing will likely require innovative coalitions between disconnected groups. First, reproductive justice activists can help build partnerships between abortion funds and local criminal justice reform groups. Together we can develop and execute a plan to educate prison officials, prison staff, and incarcerated women and create a pipeline for abortion funding. Second, we can work with public defenders to improve the odds of abortion access prior to incarceration. Because imprisonment is a product of the legal system, law students and attorneys have a particular obligation to ensure that incarcerated people are able to access abortion.
The right to abortion is completely hypothetical when incarcerated people cannot access the medication or procedure. However, the right to abortion is not truncated simply because a pregnant person is incarcerated. So in addition to keeping abortion legal, let’s work harder to ensure that abortion access is available to everyone who needs it.
The views and opinions expressed in this blog are those of the author(s) and do not necessarily reflect the views or position of If/When/How.