By: Michelle Runco

Published: September 12, 2025

Incarceration works as a tool of reproductive oppression by targeting the right to have a child, the right to not have a child, and the right to parent.[1] While incarcerated women are often left behind in discussions about reproductive health care and abortion, they continue to suffer from severely inadequate reproductive health care and lack the tools to advocate for themselves because of their incarcerated status. This manifests in numerous ways—including shackling during childbirth; inadequate access to menstrual hygiene products, prenatal care, and gynecological care; forced sterilization; and lack of abortion care.[2] Following Dobbs v. Jackson Women’s Health, all women now face more barriers to accessing reproductive care, which disproportionately harms incarcerated women due to their already restricted personal autonomy.[3] Now more than ever, it is vital that states pass legislation that increases the accessibility and quality of reproductive health care for incarcerated women.

Despite the constitutional right for incarcerated people to receive health care while in custody, the care provided is generally subpar.[4] In 1976, the Supreme Court found that inmates have a right to receive general health care in Estelle v. Gamble.[5] The Court ruled that deliberate indifference to serious medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.[6] However, the Court did not specify what standard of care must be administered, requiring only a minimum level of care. The Southern District Court of Georgia found that the standard of care must only be “reasonable” and noted that medical care does not have to be the best the prison is capable of offering or “even very good.”[7] This has left state and federal governments and carceral facilities with wide discretion as to the quality of health care they can provide to inmates without violating the Eighth Amendment. Treatment not only varies across states, but also across individual prisons and jails. Since there are neither national guidelines nor enforcement mechanisms to ensure carceral facilities are meeting the state requirements, these facilities are essentially free to decide what standard of health care to provide to inmates.[8] The only option incarcerated people have to enforce a standard of care is to bring suits against prisons for constitutional violations, which is impracticable for many inmates who lack financial resources.

While lack of adequate health care is pervasive in correctional facilities, it is significantly worse in women’s prisons due to inadequate gynecological-specific care. Particularly, reproductive care is overlooked by government actors, seeing as the prison system was constructed with male prisoners in mind. Prior to the Dobbs decision, incarcerated women had a constitutional right to receive an abortion under Roe v. Wade, even if the carceral facility had policies against providing abortion care.[10] Despite Roe’s protection, many prisons and jails were able to use these policies to effectively limit women’s ability to access that right.[11] A study of several prison systems found wide variety in their abortion policies, with some having no access to abortion; some only allowing abortions during the first trimester; and some forcing the woman to fund her own abortion, even where contrary to state law.[12] Given that Medicaid is suspended during incarceration, forcing women to pay for their abortions greatly impacted accessibility for indigent prisoners.[13] In some instances, female inmates were forced to pay for gas, tolls, and other transportation fees; the time of the officers who had to transport them to the clinic; and potentially even wear and tear on the vehicle used for transportation. Additionally, incarcerated women were often left to book these appointments themselves despite limited access to the internet.[15]

The U.S. Court of Appeals for the Third Circuit found that the right to abortion is included in the right to health care and that the state must pay for women in correctional facilities to obtain one.[16] The prison told a pregnant inmate who wished to terminate her pregnancy that they would not provide her access to or fund an abortion without a court order, as they only provided abortions in cases of medical emergency.[17] The county’s purported economic and administrative interests in limiting abortion access was outweighed by the denial of the fundamental right to an abortion guaranteed in Roe v. Wade.[18] After Roe was overturned by Dobbs v. Jackson Women’s Health, this case would likely no longer be considered good law. Conversely, there were several Circuit Court rulings that found there was no constitutional violation from prisons using similar abortion regulations.[19]

After Dobbs, it is more difficult for incarcerated women to access abortions due to the restrictions imposed on their interstate mobility.[20] In states where abortion is legal, many carceral facilities have no or minimal policies on providing inmates with abortions, and the woman may be expected to cover the costs.[21] In states that do not allow abortion, incarcerated women no longer have any legal recourse to sue for an injunction that would require the prison to allow for an abortion.[22] Of the thirteen states that immediately banned all abortions through trigger laws that took effect once there was no longer federal protections, seven of these states have the highest rates of female inmates.[23] As of 2025, twenty states have banned or limited access to abortion.[24] Experts have emphasized that this will result in many incarcerated women being forced to carry out pregnancies as part of their punishment in a penal system that does not provide adequate prenatal care.[25] This will undoubtedly lead to profound trauma and adverse health effects for both the mother and the fetus.[26]

Courts must consider how forcing women to carry out an unwanted pregnancy as part of their punishment implicates the Eighth Amendment. When incarcerated women are jailed in states that have no abortion access, it becomes part of their sentence to carry out a pregnancy to term—whether they wish to do so or not.[27] For women in states where abortion remains legal, it is still widely inaccessible, depending on the prison policies. Forcing incarcerated women to carry an unwanted pregnancy to term is cruel and unusual punishment that must be found to violate the Eighth Amendment. The Dobbs decision further deepened these discrepancies across the country as to which incarcerated women are forced to carry pregnancies as part of their punishments and which are not, without regard to how this may implicate the Eighth Amendment. Allowing the state to regulate a woman’s decision to have a child as part of her prison sentence restricts her personal autonomy far beyond the reach of what should be considered a fair punishment for a crime, and it is uniquely gendered as well. For women to retain their bodily autonomy, even if they are otherwise restricted while incarcerated, they must have the choice to receive abortion care.

 

[1] Carolyn Sufrin et al., Reproductive Justice, Health Disparities and Incarcerated Women in the United States, 47:4 Persp. Sex. & Repro Health 213, 213 (2015).

[2] Azhar Gulaid & Evelyn F. McCoy, Reproductive Health Care in Carceral Facilities, Urban Institute 1, 1-2 (Aug. 2022), https://www.urban.org/research/publication/reproductive-health-care-carceral-facilities.

[3] Kiara Alfonseca, With Roe Overturned, Experts Fear for Incarcerated People and Reproductive Care, ABC News (June 24, 2022, 1:58 P.M.), https://abcnews.go.com/US/roe-overturned-experts-fear-incarcerated-people-reproductive-care/story?id=84544235.

[4] Sam McCann, Health Care Behind Bars: Missed Appointments, No Standards, and High Costs, Vera (June 29, 2022), https://www.vera.org/news/health-care-behind-bars-missed-appointments-no-standards-and-high-costs.

[5] 429 U.S. 97, 104 (1976).

[6] Id. at 104.

[7] Brown v. Beck, 481 F. Supp. 723, 726 (S.D. Ga. 1980).

[8] McCann, supra note 4.

[9] Jennifer G. Clarke & Rachel E. Simon, Shackling and Separation: Motherhood in Prison, 15 Am. Med. Ass’n J. Ethics 779, 779 (2013) (noting that correctional facilities were historically male-focused institutions, leading them to not consider incarcerated women’s needs).

[10] Karissa Rajagopal et al., Reproductive Health Care for Incarcerated People: Advancing Equity in Unequitable Settings, 66:1 Clinical Obstetrics & Gyn. 73, 77 (2023).

[11] Id.

[12] Lizzie Tribone, Five Questions About Reproductive Healthcare in Jails, The Bail Project (Mar. 25, 2024), https://bailproject.org/learn/five-questions-about-reproductive-healthcare-in-jails/.

[13] Crystal M. Hayes, et al., Reproductive Justice Disrupted: Mass Incarceration as a Driver of Reproductive Oppression, 110 Am. J. Pub. Health 21, 23 (2020).

[14] Gulaid & McCoy, supra note 2 at 6.

[15] Id.

[16] Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 335-36 (3d Cir. 1987).

[17] Id. at 328.

[18] Id. at 337.

[19] See Lauren Kuhlik, Pregnancy Behind Bars: The Constitutional Argument for Reproductive Healthcare Access in Prisons, 52 Harv. Civ. Rts.-Civ. Liberties L. Rev. 501, 528-29 (2017) (describing cases from the Second, Fifth, and Sixth Circuits which found that the plaintiff was not entitled to an abortion against the prison policy).

[20] Joshua Sharfstein, Jailed and Pregnant: What the Roe Repeal Means for Incarcerated People, John Hopkins (Sept 21, 2022) https://publichealth.jhu.edu/2022/abortion-care-for-incarcerated-people-after-dobbs.

[21] Shannon Heffernan, Even Where Abortion is Legal, People in Jail Face Huge Barriers, 19th News (March 28, 2024, 6:25 A.M.), https://19thnews.org/2024/03/jail-abortion-policy-study-illinois-oregon/.

[22] Sharfstein, supra note 20.

[23] Alfonseca, supra note 3 (describing how thirteen states had trigger laws that went into effect immediately once Roe v. Wade was overturned, which would ban abortions after six to eight weeks of pregnancy, which makes it nearly imposible to get an abortion before the deadline and listing Idaho, Oklahoma, South Dakota, Wyoming, Kentucky, Arkansas and Mississippi as seven of these states as well as having the highest number of female inmates in the country).

[24] Annette Choi & Devan Cole, See Where Abortions Are Banned and Legal – and Where it’s Still in Limbo, CNN (June 26, 2025, 2:19 P.M.), https://www.cnn.com/us/abortion-access-restrictions-bans-us-dg (showing that thirteen states have near complete abortion bans and seven states have limited bans between six and eighteen weeks of gestation; of the seven states noted to have the most incarcerated women, only Wyoming continues to have legal abortion due to state courts striking down the bans).

[25] Alfonseca, supra note 3.

[26] Id.

[27] Id.