The End of Roe Will Be Devastating for Incarcerated People

In 2018, Latice Fisher, a Black mother of three, was jailed after experiencing a stillbirth when prosecutors cited her online searches for abortion pills. In 2019, Marshae Jones, a Black woman in Alabama, was jailed in 2019 for miscarrying after being shot in the stomach. Last October, Brittney Poolaw, a member of the Wichita and Affiliated Tribes, was sentenced to four years in prison for a stillbirth after alleged substance use. And just last month, Lizelle Herrera in Texas was briefly jailed and charged with homicide for allegedly self-inducing an abortion.

As we stare down the likely end of Roe v. Wade, it’s been said before and bears repeating: Wealthy, mostly white people with privilege will still be able to get abortions; poor people of color and the most marginalized will bear the brunt of the government reducing our bodies to incubators and crime scenes. And in particular, it’s incarcerated people who stand to suffer the most, according to Urban Institute’s latest research highlighting the already devastating conditions people in the prison system face when trying to access basic reproductive care. The think tank is currently studying the effects of a recent California law to improve abortion access and other conditions for incarcerated pregnant people.

Right now, despite how Roe protects incarcerated people’s right to abortion, just 68% are aware they have this right. On top of this, there’s a long history of prison staff simply refusing pregnant inmates’ requests for abortion care, which is illegal. The cost of abortion is a big barrier, too: Two-thirds of prisons that allow abortions require the pregnant person to pay for both the abortion and all associated costs, including not just gas and transportation fees, but “officer time” for those who escort them. This is often impossible: In California, for instance, incarcerated people working full-time are paid $0.08 an hour, and at most $3.90 per day.

It certainly doesn’t help that prisons tend to be located in rural areas, far from the nearest abortion provider, and those seeking care are tasked with the sometimes impossible burden of locating a nearby clinic without resources or support.

Yet, these already bleak conditions can and will get worse when Roe falls. “We know many states have trigger laws to ban abortion once Roe is overturned, and [an incarcerated person] won’t even have the option to drive to another state for care,“ Urban Institute senior policy manager Evelyn McCoy told Jezebel. As for states where six-week abortion bans like Texas’s may take effect, McCoy says lack of pregnancy tests in prison could result in someone not knowing they’re pregnant until it’s already too late to legally have an abortion in their state.

It’s no coincidence that Black, brown, and Indigenous people are overrepresented in prison populations, given the indelible legacies of slavery, white supremacy, and Jim Crow on the prison system, as well as the current over-policing of communities of color. This also extends to the surveillance and criminalization of their pregnancy outcomes, from miscarriage to self-managed abortion, which, for the most part, can’t be distinguished. This phenomenon will only worsen when Roe opens the door for all pregnancies to be monitored and treated with criminal suspicion, as we’ve already been seeing for years—the carceral system has always been a reproductive justice issue.

Criminal charges for pregnancy loss including abortion have significantly increased in recent years, from 413 prosecutions between 1973 and 2005, to more than 1,250 between 2006 and 2020, per National Advocates for Pregnant Women. Low-income people of color are, as always, at even greater risk.

Pregnancy loss and substance use struggles should be met with care and resources—instead, upon entering the prison system, pregnant and pregnant-capable people of color could find their lives endangered. Maternal deaths in prisons are rarely if ever counted, but we already know that Black people experience the highest rates of maternal mortality. Against all medical guidance, several states still allow the shackling of pregnant incarcerated people, which the American Medical Association calls “a barbaric practice that needlessly inflicts excruciating pain and humiliation,” and “increases their potential for physical harm from an accidental trip or fall,” which, obviously, “can negatively impact her pregnancy.”

Shackling, of course, isn’t the only violence incarcerated women and pregnant people face: Prisons have long been breeding grounds for rape and sexual violence, with 60% of prison rapes committed by guards. That some incarcerated people—particularly trans and LGBTQ people—could be impregnated by their rapists and denied abortion care only compounds this trauma. Reproductive oppression and coercion are a feature of the carceral system: As recently as 2017, a judge in Tennessee offered to reduce jail time for incarcerated people, who are more likely to be poor people of color, opted to be sterilized.

According to Azhar Gulaid, a policy analyst at Urban Institute, it’s possible coerced sterilizations, particularly targeting people of color, happen more often than we realize in prisons, building on the white supremacist history of forced sterilizations carried out by the state. “Despite laws and protections, in actuality, on the ground, prison staff have so much discretion that then leads to this.”

In addition to the existential threat to Roe, trans people—who also seek abortion care—are being subjected to a barrage of dehumanizing political attacks, including, most recently, the criminalization of gender-affirming care for young people in Alabama. Twenty-one percent of trans women have been incarcerated at some point, where they’re subject to higher rates of harassment and abuse, and the end of Roe will further obstruct trans pregnant people’s access to abortion and other vital health care. That trans people face higher rates of prison rape, McCoy says, “might increase the potential for pregnancy and need for abortion.”

Our conversations about the apocalyptic state of reproductive rights in America right now can’t exclude incarcerated people, who have already lost much of their agency and autonomy to the carceral system. They can’t be a footnote in efforts to protect abortion access in a post-Roe America—advocates and support networks should center incarcerated people in their organizing, and work toward decarceration and divesting from prisons, too.