From Truth Out/ By Victoria Law
Should sheriffs and other jail staff be allowed to decide whether a woman can obtain an abortion? When a woman is arrested and incarcerated, should her reproductive rights be stripped from her? Based on their actions against a woman in custody this past month, Rick Singleton, the sheriff of Lauderdale County Jail in Florence, Alabama, and district attorney Chris Connolly seem to think so. They may also have set a precedent for any other law enforcement seeking to prevent women from seeking abortions—throw up enough obstacles and she’ll decide to carry the pregnancy to term.
Last month, 29-year-old “Jane Doe” entered the Lauderdale County Jail. She already knew that she was pregnant. So did the authorities—accused of exposing her embryo to drugs, she had been arrested under Alabama’s chemical endangerment law. Shortly after her arrival, on July 10, she requested a medical furlough, which is a temporary release for medical reasons, to obtain an abortion. The nearest abortion provider is approximately 75 miles away in Huntsville, Alabama, which provides abortions up to 21.6 weeks. According to the suit she filed, Jane Doe was not requesting that the jail pay for the procedure; she would pay for both the abortion and transportation to the clinic on her own.
Nonetheless, three days later, the sheriff denied her request. According to court documents, his response read, “It is the policy of this office that all non-emergency services are provided through our medical staff at the jail. Your request cannot be handled by our staff and on its face, it does not constitute a medical emergency.” If she wanted an abortion, he concluded, “a Court Order will be required directing the Lauderdale County Sheriff’s Department to transport you to Huntsville, Alabama, for the stated purpose.” So, Jane Doe, whose current release date is unknown, requested just that. With the assistance of the ACLU in Alabama, she filed a lawsuit in federal court. On Monday, July 29, Jane Doe had a hearing as to whether being in jail should restrict her right to an abortion. Then she had to wait even longer—the judge stated that he would issue his ruling on Friday, July 31.
But Singleton wasn’t the only official creating legal obstacles. Chris Connolly, the county’s district attorney, filed a motion to terminate Doe’s parental rights over the embryo, which would strip her legal right to an abortion. A guardian ad litem was assigned to the embryo.Maurice McCaney, a different attorney than her ACLU counsel, was appointed to represent Doe. That case was also scheduled for Friday, July 31, but in juvenile court, which is closed to the public; its records are kept confidential. If Connolly’s motion is successful, it could set the stage for other officials to prevent women from obtaining abortions.
On Wednesday, July 29, Doe’s attorney in the parental rights case filed an affidavit from Doe stating that she had changed her mind and would now carry her pregnancy to term. “After much consideration and counsel, I … have decided that I no longer desire to pursue an abortion procedure and intend to carry the unborn child to full term and birth,” she wrote in the affidavit that McCaney submitted to the court on her behalf. “I have arrived at this decision of my own volition and choosing … without any undue influence, duress or threat of harm.” Had she changed her mind after obtaining the court order necessary for an abortion, it could very well be argued that she made her own decision. And of course, it is impossible to know for sure. But it seems evident from an outside perspective that the delays around the court order, coupled with the threat of terminating her rights over her own body, most likely influenced Doe’s decision to pull out of the legal circus. On Friday, July 31, after speaking with her in closed court, the federal court judge dismissed her abortion lawsuit.
Under the Eighth Amendment, people in jails and prisons have a constitutional right to adequate health care. While many stories have examined that right when it comes to pregnancy behind bars, less is known about women’s access to abortion care. As Jane Doe’s case illustrates, the little that we do know suggests that sheriffs and other administrators around the country have often thrown up barriers to abortion access. In other words, jails and prisons are sites where bodily autonomy, and reproductive justice in general, must be fought for.
Alabama’s Jane Doe is not the first woman in jail who has had to file suit to access her constitutional right to terminate her pregnancy before 20 weeks. Randall Marshall, the legal director of the Alabama ACLU and Jane Doe’s counsel, pointed out to RH Reality Check that there have been similar cases around the country.
In 1987, a woman seeking an abortion was forced to bring suit against New Jersey’s Monmouth County Correctional Institute. The jail’s policy required women to not only pay for the procedure, but also to obtain court orders to be released to have it. She ultimately prevailed, with the court holding that the jail’s policies unconstitutionally interfered with incarcerated women’s abortion rights. Although the county argued that abortion was an “elective” procedure, the Third Circuit Court of Appeals ruled that abortions, like all other pregnancy-related care, are a serious medical need. The court also ruled that, because incarcerated people are totally dependent upon the jail or prison to provide medical care and other basic needs, the facility must subsidize the cost of an abortion if a woman has no money and is unable to raise it.
In 2004, Sheriff Joe Arpaio of the Maricopa County Jail in Phoenix, Arizona, infamous for its tent city and chain gangs, also rejected a woman’s request for an abortion, stating, “I don’t run a taxi service from jail to an abortion clinic and back.” She, too, was forced to file a lawsuit in superior court. She prevailed and was able to obtain an abortion. (At that time, according to the Union-Tribune of San Diego, approximately 45 of the 1,000 women at the jail were pregnant.) The court also ruled that the sheriff and the county could no longer require women to obtain a court order before jail staff would transport them for an abortion.
The following year, in October 2005, the Supreme Court weighed in on the issue in Crawford v. Roe. Until September of that year, the Missouri Department of Corrections, which operates the state’s prisons, had a policy of providing transportation for women seeking abortions, so long as they could pay for the procedure. On September 5, however, the policy changed. The new prison policy stated that an abortion would only be approved if it was deemed necessary for saving a woman’s life and health—and if it was approved by the medical director and regional medical director. Transportation for what were deemed “elective abortions” would no longer be considered.
Soon after the policy changed, a woman known in court documents as Jane Roe, who was in her 16th or 17th week of pregnancy and facing a four-year prison term for a parole violation, sought an abortion. Although the woman was willing to pay for the procedure, state officials initially denied it, telling her that they would not arrange for an abortion that was not medically necessary. A federal judge disagreed, issuing an order requiring that she be taken to a clinic in St. Louis, but Supreme Court Justice Clarence Thomas temporarily blocked the order. Three days later, the Supreme Court vacated the stay, allowing the woman to obtain the abortion.
But legal precedent doesn’t mean that jails, even those that have already been ordered to stop hindering women’s right to abortion, will always allow access. In 2008, despite the ruling three years earlier prohibiting him from doing so, Maricopa County Sheriff Joe Arpaio demanded a court order from “Mary Roe” in response to her request to be transported from the jail to obtain an abortion. By the time Roe prevailed, four weeks had passed and her pregnancy had progressed to the point of requiring a two-day hospital stay instead of a one-day procedure.
Even when a court order is not explicitly necessary, as reproductive justice scholar and advocate Rachel Roth has noted, policies like Monmouth’s that require incarcerated women to pay for their abortion, as well as for transportation and staff time, can prohibit women from attempting to make arrangements. A recent report based on the Bureau of Justice Statistics confirmed that people in jails and prisons are poorer than those who are not. Nationally, the median income of an incarcerated woman before her incarceration is $13,890, as compared to $23,745 for a non-incarcerated one. For Black women, who are disproportionately policed, prosecuted, and imprisoned, the median income drops to $11,820, compared to $24,255. Given these low incomes, the requirement that women pay for their own abortions has probably forced more than one woman to carry her pregnancy to term instead.
In Oklahoma, which has the highest female incarceration rate per capita, state prison policy requires that a woman submit her request for an abortion, in writing, to the medical provider. The woman is responsible for paying for the procedure; all financial arrangements need to be completed before the abortion will be scheduled. In addition, the policy states that “No Department of Corrections (DOC) employee will be compelled to participate in the offering of these options if to do so would be in conflict with his or her personal/religious beliefs.” Thus, even if a woman is able to raise the necessary funds from prison and reach a provider, she may face further obstacles in finding staff willing to transport her to the clinic. On any given day, 14 of the nearly 3,000 women in Oklahoma’s state prison system are pregnant, but women who have spent more than ten years in Oklahoma’s women’s prisons have told me that they have never met anyone who has ever had an abortion while locked up.
People in jails and prisons have a constitutional right to medical care. Requiring women to obtain court orders or navigate institutional bureaucracies violates that right. And, as seen in the case of Maricopa County Sheriff Joe Arpaio, court injunctions do not necessarily stop administrators from creating that obstacle. Furthermore, in each of these cases, the woman was able to pay the costs of the procedure and, when her request was denied, able to make contact with organizations such as the ACLU to file a lawsuit. But policies requiring women to pay for their abortions can—and probably do—stop other women from even being able to file that first request, meaning that their stories never reach the courthouse or the outside world.
We have to remember that not every person behind bars knows what resources are available to help her fight for her reproductive rights (including her right not to reproduce). We also don’t know how many other women have been denied abortions but have not had access to legal counsel willing to help them file suit. Several months ago, for instance, I received a postcard from a woman who learned that she was pregnant while in the Maricopa County Jail. She stated that she had been unsuccessful at obtaining an abortion and so was forced to carry the pregnancy to term. That was the only communication I heard from her.
And even with financial and legal resources, women can still face lengthy delays when they need abortion care. In Alabama, Jane Doe originally requested a medical furlough so that she could obtain an abortion on July 10. Even if the district attorney had not complicated the process by filing to terminate her parental rights and prevent an abortion, she had to wait three weeks for the judge’s decision. If she had pursued seeking an abortion, the three-week delay might mean a longer and more costly procedure.
Ultimately, Doe’s suit became a battleground for whether women in jail or prison—and women in general—have the right to make their own decisions about their bodies. Speaking to RH Reality Check the day after Doe withdrew her suit, ACLU legal director Randall Marshall said, “This lawsuit is about Jane Doe’s constitutional right to make her own determination regarding her own pregnancy rather than having the state court judge, the district attorney or the sheriff make that decision for her. If this is truly her own decision [to move forward with the pregnancy], it must be respected.”
The continuous denial of abortion access cannot be challenged without also addressing the ways in which incarceration—in jails or prisons—strips people of all bodily autonomy, including their reproductive rights. Since 2000, women in jails and prisons have been the fastest-growing population behind bars. The most systematic way for reproductive rights and reproductive justice advocates to challenge this lack of access is to change policies that send so many women to jails and prisons altogether. Otherwise, advocates face the daunting—and never-ending—task of trying to reach and get resources to the hundreds of pregnant women cycling through jails each year and hoping for speedy and sympathetic court rulings.