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Will Overturning Roe v. Wade Kill the Right to Abortion Under BOP Policy?

by Dale Chappell

Official policy of the federal Bureauof Prisons (BOP) provides cost-free abortion to any female prisoner whose pregnancy is the result of rape or incest, or which threatens the life of the mother. It also allows for an “elective abortion,” if the prisoner pays for it. PS 5200.02; 28 CFR 551.23. But with the Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) — which overturned a 49-year-old precedent establishing a protected right to abortion in Roe v. Wade, 410 U.S. 113 (1973) — more than half of all states have enacted laws banning abortion, sometimes even in the cases of rape, incest, or the health of the mother. Several states have also created criminal penalties for anyone helping a woman get an abortion.

What effect will this have on abortions in federal prison, especially in cases where it’s medically necessary to save the life of the mother? BOP’s abortion policy is explicitly circumscribed by “applicable federal and state laws and regulations.” This creates a dilemma for a pregnant federal prisoner; after all, she doesn’t get to choose the state of her incarceration.

If it’s a high-risk pregnancy, chances are the prisoner will be housed at BOP’s Federal Medical Center (FMC) for women, located on the former Carswell Air Force Base in Fort Worth. But Texas is the state leading the push to completely ban abortion, enacting a “Heartbeat Act” (SB-8) in May 2021. It deputizes private citizens to sue anyone who assists a woman with an abortion after the sixth week of her pregnancy, providing statutory damages of $10,000 plus immunity from paying a defendant’s legal fees if the suit fails. Does that put BOP employees at risk simply for following BOP policy to help a prisoner obtain an abortion at FMC Carswell?

The federal government sued the state over this law and won a preliminary injunction from the federal court for the Western District of Texas on October 6, 2021. But that was stayed two days later by the U.S. Court of Appeals for the Fifth Circuit. See: United States v. Texas, 2021 U.S. Dist. LEXIS 193174 (W.D. Tex.); and 2021 U.S. App. LEXIS 30317 (5th Cir.). The Fifth Circuit then certified a question on the same law in a related case to the Texas Supreme Court, which decided that it didn’t allow a state official to file suit under it — thereby making it impervious to appeal — on March 11, 2022. See: Whole Woman’s Health v. Jackson, 642 S.W.3d 569 (Tex. 2022). After that, the federal government gave up and dismissed its case.

BOP is not the only federal agency that allows abortions for those in its custody. For example, the Department of Homeland Security must provide abortions for migrant detainees it holds, as provided by J.D. v. Azar, 925 F.3d 1291 (D.C. Cir. 2019). The government’s briefs in its Texas suit also detail other federal agencies assisting with abortions.

Of course, BOP has previously dragged its feet in providing an abortion for a pregnant prisoner until it was too late to get one, and federal courts then refused to hold the agency accountable. See: Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991). Now a pregnant prisoner’s right to any abortion at all under BOP policy is in serious question. 

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