The Impact of Criminalizing Abortion on Prisoners and Mass Incarceration
By Paul Wright
Over the course of its 233-year history, the United States Supreme Court (USSC) has reversed its prior decisions on occasion. Until now those reversals have generally been to expand constitutional rights for the populace, not to take them away. On June 24, 2022, when the USSC issued its ruling in Dobbs v. Jackson Women’s Health Organization, it reversed, by a 6-3 vote, its prior ruling in Roe v. Wade, 410 US 113 (1973), which held that women have a constitutional right to privacy and bodily autonomy that the government could not infringe and that allowed them to choose to have abortions before fetal viability.
The reversal of Roe leaves it up to the states to regulate abortion up to and including banning it in its entirety and criminalizing both women who seek the procedure and physicians or medical staff who provide it—even people who assist women in obtaining abortions. Abortions are now suddenly illegal in 11 states, and at least another 12 have laws on the books which will quickly ban or seriously restrict abortions soon. A number of other states, including Florida, are expected to pass laws banning abortion when they have the opportunity to do so.
The opinion by Justice Samuel Alito in Dobbs holds that Roe was wrongly decided for various reasons and therefore should be reversed. Those interested in the topic should read the entire opinion here: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
I have long noted that while the U.S. claims to be a Republic, the rights you have as a citizen very much depend on the state where you live and the relative strength of its plaintiff’s bar. This is being rapidly and amply illustrated by those states which are quickly taking steps to ensure not only that abortions remain legal but that efforts by anti-abortion states to criminalize or forbid their citizens from traveling to obtain abortions will not be aided. These states include California, Washington, New York and others.
For the immediate future, women will retain access to legal and safe abortions in about 20 states, while the women most impacted by this decision will be ones who live in states that criminalize the procedure and are too poor to be able to travel out of state to access abortion services. The wealthy and middle class will always be able to access safe medical care, if they chose to do so. The ones who will be negatively impacted regardless of their means will be women prisoners.
In the aftermath of Roe, women prisoners seeking to terminate pregnancies often had to go to court and seek injunctions forcing jail and prison officials to provide them with access to abortion services. There is a dearth of information about how many pregnant prisoners are in custody at a given time and how many have sought to terminate their pregnancies. One of the few sources of information is the Pregnancy in Prison Statistics (PIPS) project, which has now evolved to the Advocacy and Research on Reproductive Wellness of Incarcerated People at John Hopkins School of Medicine. A 2016 study by PIPS looked at the federal prison system, 22 state prison systems, six jails and three juvenile prison systems. Combined they represented 57% of women in prison and 5% of women in jail. It found that 4% of women entering prisons and 3% entering jails were pregnant. Given that some 8 million people a year cycle through the jail system alone, these numbers are probably low.
The PIPS study found that of almost 3,000 pregnant women in the study, there were around 900 live births, 44 abortions and 87 miscarriages. Because of their captivity, women prisoners cannot seek medical care on their own; they have to rely on their captors to provide that medical treatment. We can likely expect the number of prison and jail births to increase in those states which criminalize or ban the procedure.
In more than 32 years as an advocate for prisoner rights, I can readily attest that medical care for American prisoners ranges from nonexistent to barbaric to woefully inadequate. For women prisoners in general, and those who are pregnant in particular, that care is much worse. In many states women prisoners are forced to give birth in shackles. Prenatal care is rarely provided, and very few people would think that the harsh, brutal American gulag is an ideal place to have a healthy pregnancy.
On a regular basis, Prison Legal News has reported on the many women prisoners forced to give birth in prison and jail cells, often by themselves over a toilet, and the many babies who have died and will continue to die as a result of inadequate medical care. Prison and jail officials are rarely held accountable for denying medical care to pregnant prisoners. Those deaths, of mothers and children alike, will likely increase. To date, of the anti-abortion advocates who have pushed for overturning Roe because they claim to care about the lives of babies, none has shown the slightest concern or regard for the lives and wellbeing of prisoner mothers or their children.
In the longer-term macro picture, the criminalization of abortion will likely lead to a number of women being prosecuted and caged for seeking to terminate a pregnancy. The American government is skilled at manufacturing criminals simply by criminalizing more and more conduct each year. How many new felons this will produce remains to be seen. But the police-state machinery to maintain surveillance of the entire populace, along with massive, bloated police forces and armies of prosecutors, all stand ready to find, prosecute and cage those seeking and providing abortions. Since so many poor people, especially people of color who are disproportionately poor, are already under some form of government or police-state control or surveillance, it will not be a big step to ramp up these prosecutions when they seek abortions that are now suddenly illegal.
In the 2005 best-selling book Freakanomics, economics professor Steven Levitt and journalist Stephen Dubner argued that legalized abortion had substantially reduced crime rates by reducing the number of children who were born into poverty or unwanted by their parents, whom they claimed were more likely to become criminals. While that conclusion has been questioned, if one-to-two million abortions performed annually have resulted in as many as 20 million fewer births a decade since 1973, it follows that more people would lead to more crime, regardless of the rate. The criminalization of abortion in many states will let us know in around 20 or 25 years who is correct on this.
In ground-breaking research, Prison Legal News reported in 2016 that on any given day at least 50,000 people, nearly all of them men, were locked in prisons and jails for the offense of being too poor to pay court-ordered child support. In 2013, unpaid child support was estimated at over $113 billion. Those numbers—both of men caged for being too poor to pay child support and the amount of unpaid child support—will likely increase exponentially with the new USSC ruling. The American police state has grown to cage over 2 million people based on the premise that people commit or are accused of crimes. Failure to pay child support is not a criminal offense, yet that is small consolation to the tens of thousands locked in cells for just that. Most people do not consider having children to be a cageable offense, yet for people too poor to pay child support, it is.
The most nauseating thing about reading Justice Alito’s opinion in Dobbs is the purported concern for “life” in general and “innocent life” in particular. Yet these same judge are enthusiastic supporters of the death penalty and, as they have noted repeatedly, nothing in the constitution prevents the government from executing factually innocent people who did not commit the crime for which they were convicted. This is hardly a principled position that all life should be respected; rather it is about the raw power of the police state to command and control its population as it sees fit.
Democrats, as the purported defenders of abortion rights, never bothered to attempt to pass a federal law legalizing abortion at the national level before the Dobbs opinion was leaked in May 2022, after which their Women’s Health Protection Act died 51-49 in the U.S. Senate, thanks to a nay vote from Sen. Joe Manchin (D-W.V.). They had fifty years to do something around abortion and did nothing until last month. Now it is likely that Republicans may well attempt to pass federal laws criminalizing abortions at the national level, which would override state efforts to allow abortions.
For the past fifty years at least, Americans have seen a steady and increasing diminishment of personal rights and freedoms at every level, whether by expanded state surveillance or by the loss of free speech, privacy, and bodily autonomy. The police state has grown exponentially in size and capacity with no resistance and bipartisan support.
Overturning Roe is not exactly the starting point; that happened decades ago. But in his concurring opinion in Dobbs, Justice Clarence Thomas stated that the Court’s decisions relating to a right to birth control, same-sex marriage and to engage in consensual sexual acts with other adults are also on the chopping block and ripe for reversal. Abortion will not likely be the last constitutional right to fall by the wayside.
My friend Michael Yasutake was a Japanese American interned during World War Two, and he once told me, “You think you’re an American and have rights because you were born here and your parents were, too. Then the government tells you don’t have any rights, and you are on a train to a concentration camp in Idaho.” Yes, it does seem to work that way.
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