Mimesis Law
22 August 2019

Surprise, Surprise: Obtaining An Abortion in Prison is a Huge Pain in the Ass

Feb. 1, 2016 (Mimesis Law) — Alabama may represent the gold standard for law enforcement seeking to prevent incarcerated women from obtaining abortions — erect enough hurdles and a woman will eventually capitulate and carry a pregnancy to term.

On July 10, 2015, 29-year-old “Jane Doe” was admitted to Lauderdale County Jail. She had been arrested and charged under Alabama’s chemical endangerment law, the country’s toughest law on prenatal drug use.

Shortly after her arrival, she requested a medical furlough to obtain an abortion. The closest abortion provider was located in Huntsville, Alabama, roughly 75 miles from the facility, which performs abortions up to 21.6 weeks.

Three days later, Lauderdale County Sheriff Rick Singleton denied her request. His response read, in pertinent part, “It is the policy of this office that all non-emergency services are provided through our medical staff at the jail.” He then demanded that she produce a Court Order directing the Lauderdale County Sheriff’s Department to transport her to the abortion provider “for the stated purpose.”

Singleton’s attorney, Ken Webb, defended his client’s decision to deny Doe’s request on the grounds that transporting the inmate from the Jail to the Huntsville abortion provider raised significant security and liability issues.

So Jane Doe followed the sheriff’s instructions, and requested a Court Order. She also filed a lawsuit in federal court (with a little help from the ACLU).

But the sheriff wasn’t the only Alabama official that was giving Ms. Doe a hard time. Chris Connolly, the county’s district attorney, took the unprecedented step of petitioning a juvenile court to terminate Doe’s rights over the embryo, which would effectively prevent her from exercising her right to an abortion. Following the hearing, he stated:

Not only do we oppose this morally, but based on the nature of the charge she is facing, which is chemical endangerment of a child… It is the policy of the state of Alabama to protect all life — born or unborn.

A guardian ad litem was assigned to represent the rights of the embryo, and attorney Maurice McCaney, was appointed to represent Doe. That case was also scheduled for Friday, July 31, in juvenile court.

On July 29, Doe’s attorney in the parental rights case filed an affidavit from Doe, stating that she had a change of heart and had decided to 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… I have arrived at this decision of my own volition and choosing … without any undue influence, duress or threat of harm.

On July 31, the federal court judge dismissed her abortion lawsuit.

Although incarceration is designed to restrict many individual freedoms, it should not completely strip incarcerated individuals of their constitutional rights (Sorry, Joe Arpaio).

Like all women in the United States, incarcerated women have the legal right to obtain an abortion. In theory (and according to the U.S. Supreme Court) a woman can have an abortion for any reason until a fetus is “viable,” and after that if the pregnancy poses a threat to her health or life. In practice, obtaining an abortion in prison is a huge (and often prohibitive) pain in the ass.

Many of these challenges are similar to the ones that women outside prison face when seeking an abortion, such as mandatory delays, financial hardships and transportation hurdles, especially when multiple trips to a clinic are required under state law.

Other barriers are promulgated by administrators at state and local correctional facilities, such as requiring women to cover the cost of transportation and security (in advance), requiring additional bureaucratic red tape such as time-consuming court orders and administrative approval. The manner in which prisons respond to women’s abortion request vary enormously, and often remain undocumented and shielded from outside inquiry.

In a nationwide survey of correctional healthcare providers that describe trends in abortion access and barriers, respondents who indicated that their facilities do allow access to abortion, many said that women receive little or no logistical assistance in arranging, paying for and getting to the appointment. Nationwide, many facilities still do not permit inmates to obtain an abortion without a court order authorizing either a temporary release or transport to and from the facility.

However, the ultimate challenge facing most of these women is figuring out how they are going to pay for the procedure. The 1976 Hyde Amendment prohibits funding abortions for women in federal prisons, and many state prisons and local jails also refuse to fund abortions. When a federal inmate’s pregnancy is deemed “life-threatening’” or results from rape, the Federal Bureau of Prisons pays for transportation, the appointment, and security outside a federal facility. However, the Bureau also has a dreaded “conscience clause”, which allows for staff to opt out of participating in abortion-related tasks.

Only Wisconsin and Minnesota have policies on the books with respect to paying for abortions that result from rape. However, women may be hesitant to report sexual assault that leads to pregnancy, because she may face retaliation from prison personnel for being a tattle-tale.

For non-life threatening abortions, although women still have the right to obtain the procedure, they are totally on the financial hook. Without government funding, women must rely on their own resources and donations. To put it into perspective, an average prison wage is between 12 cents and $1.15 an hour and abortions cost between $300 and $1000 depending on gestation and method.

With odds this good, it’s a wonder that any incarcerated woman has ever obtained an abortion.

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