The United States Supreme Court overturned Roe v. Wade today, eliminating the constitutional right to an abortion. Among the many implications of this decision are unjust prosecutions that will fuel mass incarceration and further limits on abortion access in jails and prisons–both disproportionately impacting Black women.
Legal experts warn the decision will lead to prosecutions of providers, including doctors and pharmacists, and possibly those seeking the procedure. Thirteen states have already passed “trigger laws” designed to go into effect upon the Court overturning Roe.
Texas’ trigger law, which will be active in 30 days, makes performing an abortion a felony. Doctors could face life in prison and fines up to $100,000. Idaho’s trigger law, also going into effect in 30 days, makes performing an abortion punishable by a prison sentence of up to five years. Montana is not a trigger state.
Most trigger laws protect women who have had the procedure from being criminally charged. Although, even before today’s decision, women have been unjustly arrested for having abortions. Lizelle Herrera, a Texas woman, was charged with murder in April for having a self-induced abortion. The State ultimately admitted they had no basis in law to continue with the case.
Aside from existing trigger laws and future legislation restricting abortions, the National Association of Criminal Defense Lawyers warns there are thousands of federal criminal codes that could be used against pregnant women without Roe’s protection.
“Prosecutors will reach into the code and treat it like a grab bag and pull out what they can,” Jill Adams, the executive director of If/When/How, an organization that provides legal support for women facing prosecution related to their pregnancy, told Reuters.
Disproportionate impact on Black women
Black women will likely experience the brunt of unjust prosecutions. A study by the National Advocates for Pregnant Women found that between 1973 and 2005, 52% of criminal cases regarding pregnancy outcomes targeted Black women.
One of the cases represented in the study was that of Regina McKnight, a Black woman from South Carolina convicted of homicide after experiencing a stillbirth due to drug use; she served seven years before her conviction was overturned.
“We really can’t look to pre-1973 for any sort of help in understanding what we’re facing,” Dana Sussman, Executive Director of NAPW, told the Guardian. “We’re in a completely different universe when it comes to our willingness to criminalize people.”
Right now, women around the country are grappling with the reality of living in a post-Roe world. But for incarcerated women, this has been a reality for decades. As the Huffington Post describes it, “abortion is only accessible in principle” for incarcerated women. One study found that only 1.3% of pregnancies in carceral settings result in abortions compared to 20% of pregnancies nationwide.
For pregnant women in federal prisons, access to abortion is greatly restricted by the Hyde Amendment, passed three years after the Roe decision, which prohibits the use of federal funds for most abortions. This makes access impossible unless the women can pay out of pocket. Abortions cost upwards of $500, and incarcerated people make an average of $0.14 an hour. Access is not much better at state prisons. A study on pregnancy outcomes in prisons found that a majority require women to pay while others prohibit the procedure entirely.
The Supreme Court’s ruling today will only make abortions more inaccessible than they already are for incarcerated women, and what is worse is there is a large need for the option to abort because pregnancies in carceral settings are high risk.
Risks of giving birth in prison
The United States has the highest maternal mortality rate in the developed world. This risk is substantially higher for incarcerated women because most prisons still require expectant mothers to give birth while shackled. The First Step Act, passed in 2018, prohibits shackling incarcerated women in labor, but it only applies to federal prisons. And 85% of incarcerated women are in state prisons and jails.
Women shackled during childbirth are at a substantially higher risk of developing pregnancy-related mental health disorders and post-traumatic stress disorder specifically, according to the American Psychological Association. The restraints interfere with a physician’s ability to administer epidurals; in one case, a shackled woman dislocated her hip, causing permanent damage. Nurses report higher rates of injuries, falls, and placental abruption while caring for pregnant incarcerated women.
New mothers have a maximum of 48 hours to spend with their newborns unless they are in one of the few U.S. prisons with a nursery–many children will then be taken into foster care.
Again, Black women are disproportionately affected by these practices. They are twice as likely to be incarcerated as White women and three times more likely to die during childbirth than White women.
Click here to access the Repro Legal Helpline, a free, confidential helpline where you can get legal information or advice about self-managed abortion and referrals to local resources.