What Do Prisons Have to Do with Reproductive Rights?

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What Do Prisons Have to Do with Reproductive Rights?

Rachel Roth

What do prisons have to do with reproductive rights? As it turns out, plenty. Prisons, jails, and immigration detention facilities are part of an expanding array of institutions that shape women's reproductive lives.

What do prisons have to do with reproductive rights? As it turns out, plenty.

Prisons, jails, and immigration detention facilities are part of an expanding array of institutions that shape women's reproductive lives, along with courts, legislatures, school boards, and the local pharmacy. The United States is the world leader in incarceration, and the number of women behind prison walls has risen steadily over the past 25 years.

By virtue of being a strict system of physical confinement and punishment, incarceration has unique institutional characteristics, and yet it also provides a kind of microcosm of reproductive politics. Nowhere is race and class stratification more evident than in the criminal justice and prison systems, where poor women and men of color are dramatically overrepresented relative to their numbers in the population. And prisons are one place where the metaphor of "choice" is sorely inadequate. A pregnant woman in prison cannot choose between a midwife and a doctor, cannot choose who will be in the room with her when she gives birth. Many women have their birthing "options" dictated to them by their health insurance plan – or lack of coverage – and women who are imprisoned have even less say over their treatment or their providers.

As the articles in this series show, imprisonment has an adverse impact on women's reproductive rights and health all across the spectrum: it strains and severs parent-child relationships, makes pregnancy a difficult, uncertain experience, and exposes women to sexual abuse and then compounds the violation by denying them access to the full range of reproductive health care. In addition, it severely curtails women's ability to decide whether to have children, now or in the future. While some women have been denied access to abortion care, other women have been deprived of any future childbearing decisions because medical neglect destroyed their fertility (see Robin Levi's article in this issue of Collective Voices).

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All of this happens against a complicated legal and practical backdrop. People in prison are the only group in the United States with a constitutional right to medical care. The right to medical care has its roots in the Eight Amendment's prohibition of cruel and unusual punishment. In the landmark 1976 case Estelle v. Gamble, the Supreme Court reasoned that, "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." The idea is that when the government punishes someone by incarceration, it is obligated to meet that person's basic needs. The Court concluded that "deliberate indifference to serious medical needs" constitutes the "unnecessary and wanton infliction of pain," whether by medical personnel or by guards who intentionally deny or delay access to care.

In practice, however, securing needed medical care can be daunting, as numerous lawsuits and investigations attest. Women encounter multiple barriers to care – from co-payments they can ill afford to having to convince a guard that they need to see a doctor. Gynecological and obstetric care is often woefully inadequate. In a nationally representative government study, 20 percent of pregnant women in prison reported getting no prenatal care, and 50 percent of pregnant women in jails went without care. Since 1976, both the Court and Congress have taken actions that make it more difficult to enforce the right to medical care or to seek redress for violations. "Deliberate indifference" is a higher standard than medical malpractice and one that can be very difficult to prove.

How many women are affected by these conditions, and who are they? More than 200,000 women are imprisoned, or about 10 percent of the imprisoned population. Although women have always been a minority of those imprisoned, they have been entering prison at a faster rate than men for some time. To put this in perspective, a woman is three times as likely to wind up in prison today as in 1974. These statistics reflect the number of women locked up on a given day; many more pass through jails and prisons over the course of a year.

Five to six percent of women are pregnant when they are processed into prison or jail. And the majority are already mothers, usually the primary parents of children under eighteen, and they are disproportionately African American, Latina, and Native American, in for non-violent offenses, and most especially those related to drugs, given our national policy of treating drug addiction as a criminal rather than health matter.

An increasing number of women are growing old in prison, thanks to mandatory sentencing policies that impose long terms without the possibility of parole. Even after they pass out of their "reproductive years," they still have distinctive women's health concerns, such as obtaining regular mammograms and preventing osteoporosis. Rigid prison rules and routines do not accommodate elderly women who have trouble working, standing in line for long periods, climbing into upper bunks, or dropping to the ground on their frail bones at a moment's notice.

Finally, taking into account women on probation and parole – who live under the constant threat of being sent to prison – over one million women are under the jurisdiction of the criminal justice system.

Although the U.S. Constitution provides the legal framework for evaluating prisoners' rights claims, International Human Rights Day reminds us that human rights accords often provide a deeper conception of the rights of incarcerated people. Various accords, for instance, proscribe men guarding women and the shackling of women in labor and childbirth. Most fundamentally, these accords insist that people in prison be treated with a basic level of human dignity that differs markedly from the "lock ‘em up and throw away the key" attitude that has shaped so much U.S. policy and led to a massive prison system. At $60 billion per year, that attitude is quite costly to American society as whole, as well as to the individual women, families, and communities personally affected by incarceration.

For further information and a list of organizations who work on this issue, see the entry on "Incarcerated Women" in the Reproductive Justice Briefing Book.