The end of Roe is ‘horrific’ for incarcerated people seeking abortion care

·10 min read
Dina Rudick

It was already difficult to get an abortion in prison.

From being forced to pay for transportation to far-away abortion providers to waiting for a court order to undergo the procedure, pregnant people behind bars face severely limited access to abortion. Now, the situation is even more dire with the end of the landmark Roe v. Wade.

The Supreme Court on Friday overturned the 1973 case that made abortion legal on a federal level, a decision celebrated by anti-abortion activists. Abortion rights advocates, however, warn that pregnant people in prisons and jails across the country will be forced to continue unwanted pregnancies, facing harsh birthing conditions in prison and sometimes poor prenatal care. Some had previously filed lawsuits to fight for their once-constitutional right to abortion. People incarcerated in states across the country have long had to fight for their right to an abortion, according to Rachel Roth, reproductive justice specialist and scholar with the Center for Women’s Health and Human Rights at Suffolk University in Boston.

For example, in Tennessee, Kei’Choura Cathey alleged the Maury County Sheriff’s Department effectively deprived her of an abortion by refusing her transportation and funding after her arrest in July 2015, according to court documents. According to WTVF, her only option at the time was to post bail — an exorbitant $1 million— to leave jail and undergo the procedure. Sheriff Bucky Rowland held then that he had medical staff look into the situation, and determined that the abortion was “voluntary” and not medically necessary, which meant Cathey would have to cover costs related to the procedure.

She was ultimately able to have her bail reduced, but by that point, months later, she was too far along in her pregnancy to get an abortion under state law, WTVF reported. The case was ultimately dismissed, with a judge holding Cathey waited too long to file the suit, according to court records.

It’s going to be horrific in states that ban abortion, and even difficult in states that do have abortion rights.

Now many women like Cathey will have no legal recourse if they need an abortion while incarcerated, experts say.

“The fact is, it’s going to be a big brick wall. It’s going to be horrific in states that ban abortion, and even difficult in states that do have abortion rights,” Roth said. “It’s going to take a coordinated effort from all of the abortion funds, bail funds, and attorneys to figure out what to do for individuals who are in the process of being or are already incarcerated.”

Access to abortion varies widely by state, and, even in states that allow abortion, incarcerated people may be blocked from accessing the procedure through barriers like self-payment requirements and prison staff discretion, advocates say.

In a study published last year, a group of Johns Hopkins University researchers looked into more than two dozens prisons and jails and found that a majority of pregnancies in the prisons researched ended in live births or miscarriages — with abortion accounting for 1.3% of pregnancy outcomes. The number was higher in the jails researched, with abortion accounting for 15% of the pregnancy outcomes. Experts say few women even realize abortion is possible while incarcerated, and many who do end up fighting tooth and nail to access the procedure.

Now, with Roe out of the picture, what little access federally incarcerated people had to the family planning procedure is gone. This, experts say, will have serious consequences for people pregnant behind bars.

“Denying incarcerated people access to abortion, and thereby conscripting them to carry pregnancies while being incarcerated, subjects them to, depending on where they are, potentially unsafe and harmful conditions,” said Carolyn Sufrin, a researcher and associate professor of gynecology and obstetrics at the Johns Hopkins University School of Medicine. “This makes the case for why we shouldn’t be incarcerating pregnant folks in the first place, if we’re conscripting them to conditions where they have no say in their pregnancies and limited abilities to access the care that they need.”

Plenty of examples of poor birthing conditions have surfaced in recent years. Two jail administrators in Broward County, Florida, were fired in 2020 after allegedly ignoring a woman as she screamed for help in her jail cell prior to giving birth, according to the South Florida Sun Sentinel, citing the Broward Public Defender’s Office. The woman told the outlet that she was having contractions and labor pains hours before she gave birth, and authorities did not take her to a hospital, as required by law.

Months earlier, Florida had enacted a law to limit isolation for pregnant people while in custody. The law was passed after another woman had her baby alone in a jail cell in 2019, the Sentinel reported. Broward County Sheriff Gregory Tony said then that a review determined the two administrators “grossly failed this agency and this inmate.”

Siwatu-Salama Ra, who told NBC News she gave birth at a hospital in Ann Arbor, Michigan, in front of armed guards, said it’s “devastating” to think that more people may go through what she did now that Roe is off the table. Ra was almost seven months pregnant when she was sentenced in 2018 to two years at Women’s Huron Valley Correctional Facility just outside of Detroit, according to the Detroit Free Press. The case made national headlines as Ra, then 26 with no criminal record, was charged with felonious assault and firearm charges for brandishing her licensed, unloaded gun during an argument in Michigan, which is both a concealed-carry and “stand your ground” state.

As organizers worked to free Ra and draw attention to her case, she was preparing to give birth inside. She said she developed an infection during her first month at the facility and ended up going into premature labor. At the hospital, authorities shackled her to the bed, she said. Ra said that pregnant incarcerated people experience “some of the most inhumane horrifying practices done by the state to pregnant women” when taken from the facility to give birth.

“No woman or person deserves to give birth in shackles and chains, Ra told NBC News. “No child should be born into a world surrounded by armed police officers with heavy military like uniforms just to be separated from its mother within the next 24 hrs. This is what will happen when you take the right to abortion away from women and people who are being criminalized in this country.”

Officials at the facility did not immediately respond to a request for comment from NBC News.

Advocates have fought for years to end the practice of shackling pregnant people during labor and/or postpartum recovery. At least 37 states have laws that limit shackling, which experts say makes it difficult for doctors to deliver the babies and may lead to injuries during childbirth. Despite the laws, 82.9% of hospital nurses surveyed in 2018 said the incarcerated pregnant patients they cared for were shackled “sometimes to all of the time,” according to research published in the Journal of Obstetric, Gynecologic, & Neonatal Nursing.

Ra ended up serving about nine months of the sentence after appealing her conviction and ultimately taking a plea deal, she told NBC News. Ra has said she pulled out her gun in self-defense when a woman tried to run her and her mother over with a car, according to the Detroit Free Press. A Michigan court ultimately overturned the felony convictions.

She credits organizers with the Siwatu Freedom Team for her release, and although she is happy to be home with her family, Ra said she has dedicated her time to advocating for pregnant people in prison.

“Roe v. Wade, even that piece of legislation and that sense of protection at a federal level isn’t even ideal,” Ra told NBC News. “It was a very simple and necessary one. So here we are feeling like we’re taking generations, generational steps backwards, when we should be moving ahead.”

Last year, the American Civil Liberties Union filed a lawsuit on behalf of a woman at the Nebraska Correctional Center for Women in York who sought an emergency order to have an abortion. According to the complaint, her request for the procedure was repeatedly denied and leaders at the facility ultimately said there was a 21-day freeze on large payments to prison accounts, so she wouldn’t be able to pay for the procedure through her account — even though the woman did not plan to pay for the abortion through her prison account.

Authorities told her that by the time the freeze was lifted, she would be past the state’s 22-week threshold for an abortion, according to the complaint. Authorities have not addressed the allegations publicly, and officials at the Nebraska Correctional Center for Women in York did not reply to requests for comment.

The woman was ultimately able to have an abortion, despite the freeze, with the ACLU’s legal assistance, said Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project. But, moving forward, the courts may be no help without Roe in place.

“We may be able to challenge abortion bans in some states under state constitutions, but, in general, their rights are going to stand and fall with the rights of the people in the state who aren’t incarcerated,”

“We may be able to challenge abortion bans in some states under state constitutions, but, in general, their rights are going to stand and fall with the rights of the people in the state who aren’t incarcerated,” Kolbi-Molinas said of the country’s incarcerated population. “If there’s no federal protection, if there’s no state constitutional protection and a state makes it illegal, that’s probably going to be the end of it.”

Kolbi-Molinas said the ACLU has won a majority of its cases on behalf of people seeking abortion, and she has seen severe restrictions including pregnant incarcerated people being required to cover salary compensation for staff members who transport them to abortion providers. These events illustrate the high stakes of incarceration for pregnant people, particularly for women of color in jails and prisons, who will be the most likely to be affected.

“We know that Black women are incarcerated at twice the rate of white women,” Sufrin said, adding that both Latino and Indigenous women are incarcerated at higher rates than white women. “It most likely is going to disproportionately impact women of color, who are already disproportionately incarcerated. That will parallel trends across the nation, but it will do so in a distinctly punitive way for people who are incarcerated because of the restrictions of their environment and the loss of autonomy.”

Along with concerns about loss of access and birthing conditions, activists say they are worried that pregnant people behind bars will face even more criminalization for their pregnancy outcomes. People have been jailed after having miscarriages, and advocates warn that incarcerated pregnant people will be penalized for miscarriages and self-managed abortions in the future.

“People don’t often think about abortion as connected to criminal justice, when oftentimes incarcerated people are ground zero for having their rights stripped away,” said Samantha Masters, a reproductive justice organizer with the advocacy groups #FreeBlackMamasDMV and Organizing Black. “Right now we’re seeing the criminal state expand to include incarcerated mothers in an even wider net.”