Abortion bans and pregnancy surveillance

The body itself is a prison.

The Supreme Court's 2022 ruling overturning Roe v. Wade has sparked a domino effect of states attempting to enact the most reproductively oppressive laws in a generation. Primarily, these states have created criminal penalties, ranging from large fines to life imprisonment—even a surge of drafted legislation demanding the death penalty for pregnant people who seek to control their own bodies and destinies.

The human rights crisis ensures that if you are a person capable of pregnancy, your body is a cage.

If you find yourself in the clutches of the carceral system, you get to experience the simultaneous duality of being imprisoned twice.

A national conversation around reproductive freedom has largely left out the overarching carceral ramifications for women, transgender men, and nonbinary people across this nation in a post-Roe society. When your body is at the mercy of a patriarchal set of beliefs codified into the law, ensuring any choice made is life-threatening, is that not imprisonment? What choices remain for the people housed in America's correctional facilities whose freedom has already been taken from them? What do you do when the body itself is a prison?

Women are the fastest-growing group of incarcerated people in the United States, with over 170,000 women and girls incarcerated in state prisons and local jails alone. This number does not reflect the number of women housed in federal prisons, juvenile facilities, military correctional institutions, tribal facilities, I.C.E. detention centers, or those monitored under the parole and probation systems. We currently incarcerate more women than all of our NATO allies. Black and Latina women—the same populations who are inordinately affected by fallout from Dobbs—face disproportionate rates of imprisonment.

See also:

The state buries Black and brown people above ground and calls it public safety. The insidiousness of ensuring that the demographic most likely to die in childbirth cannot make life-altering—and sometimes, life-saving—decisions for their safety without fear of imprisonment cannot be overstated. 

Before Dobbs, incarcerated pregnant people had a legal right to seek an abortion—one of the few constitutionally protected choices that existed for birthing people. Per The Pregnancy In Prison Statistics Project, a research collective on the reproductive wellness of incarcerated people and funded by the National Institute of Health,  there are approximately 58,000 pregnant people sent to jails and prisons in the U.S. each year. Despite the Department of Corrections being known to deny or impede the right to seek an abortion and many being unaware of their reproductive rights while incarcerated in various states, the rate of abortion is higher behind bars than in that of the general U.S. population. 

"Denials to abortion range from a doctor who doesn't believe in abortion and does not authorize, to correctional officers who dehumanize and humiliate an individual who wants to get an abortion," said Kimberly Haven, executive director of Reproductive Justice Inside. This circumstance is especially bleak since 11 U.S. states currently have no legislation preventing pregnant people from being forced to give birth shackled in chains, demonstrating a portion of the cruel alternative these people face should they continue with their pregnancies while incarcerated. 

What choices remain for the people housed in America's correctional facilities whose freedom has already been taken from them?

What do you do when the body itself is a prison?

This human rights crisis we as a country have since been thrust into has ensured that if you are a person capable of pregnancy, your body is a cage. And if you find yourself in the clutches of the carceral system, you get to experience the simultaneous duality of being imprisoned twice. 

With reproductive rights now varying from state to state—as Kansas, New Mexico, California, and others have solidified themselves as safe havens—if you are arrested while pregnant, the Department of Corrections can now legally deny you the right to seek an abortion. This applies to people even if they are not convicted of a crime—recall that 60 percent of women incarcerated in America's jails alone are legally innocent and have not been convicted of a crime.

A common misconception is that taxpayers foot the entire bill for incarcerated people, especially in the event of medical bills. Yet, except in cases where abortion is medically necessary to save the life of a parent—which is often at the discretion of prison staff instead of medical personnel—the Hyde Amendment prevents those who are incarcerated in federal prisons, I.C.E. detention facilities, and military installations from having their abortions covered by Medicare, Medicaid, or other government funding. Incarcerated people denied access and funding have even sued correctional facilities and the Bureau of Prisons for having their right to abortion denied.

See also:

For pregnant incarcerated people, matters of life and death may now be fated by prison transfer—a regular occurrence that can happen in the middle of the night, at a moment's notice. "Individuals who are being detained pretrial on bail, again not convicted of a crime, are denied the right to travel to seek abortion care," Haven said. "Those who are on bail or personal recognizance are also denied this right as restrictions imposed on them by the courts deny them the ability to leave their state." 

As the dust settles in the wake of Roe's fall, questions still remain, including those among pro-abortion activist circles as to whether or not incarcerated women, trans men, and non-binary people will face additional charges or time added to their sentences for seeking abortion care in one state, while pending custody transfer to another state with more restrictive anti-abortion legislation. And with the strict, often years-long supervisory nature of the probation and parole system, fears of bail revocations, probation overturning, and other retaliatory criminal penalties for disclosing a desire to seek reproductive care services in restrictive states are rampant in criminal justice reform spaces.  

The future of bodily autonomy hangs in the balance. The choices for pregnant people dwindle by the day as the current national legislative session emerges as the battlefield for just how much humanity the state is willing to show. As activist and legislative efforts attempt to cauterize the wounds left in the wake of the Dobbs decision, what remains to be seen are the fates of pregnant people—especially those doomed to America's swelling correctional facilities—and how the fall of Roe will impact those society has deemed forgettable. 

Periods in prison: The monthly struggle for sanitary products
Read next:



"I felt the thin, soft plastic on my fingertips. I pushed into the huddle harder, reaching, stretching until I had possession of a sanitary napkin—a basic necessity. I felt relief wash over me as I closed my palm and held the pad in a death grip."

Keep reading.

Gabrielle A. Perry, MPH is an epidemiologist based in New Orleans, Louisiana, and the founder of The Thurman Perry Foundation, a Louisiana-based nonprofit operating nationally with a mission of aiding women and girls impacted by incarceration.