The case, Crawford v. Roe, originated in 2005, when a young woman refused to take no for an answer and eventually enlisted the ACLU in helping her to exercise her right to make her own reproductive decisions. "Jane Roe," as she is called in court documents, spent seven weeks trying to work with the prison system to obtain an abortion, something the prison had previously accommodated by bringing women to a clinic if they could afford to pay for an abortion with their own money. A change in the governor's office led to a change in that policy. 

While many women face some kind of barrier to abortion, imprisoned women face the literal barrier of the prison itself. As the Eighth Circuit Court of Appeals put it, "certainly, no prisoner could simply elect to leave the institution at will to obtain an abortion." An imprisoned woman will therefore almost always need to be taken to a health facility where she can receive abortion care. (While jails may release someone temporarily to obtain health care on her own, prisons are not likely to do so.) 

Earlier this year, the Supreme Court declined to hear an appeal in a related case from Maricopa County, Arizona. In that case, the sheriff in charge of the county jails had an unwritten policy to require women seeking abortions to obtain court orders from judges before being able to access care. That policy was struck down by the state courts, and the Supreme Court declined to intervene. 

The policy in Missouri was even more burdensome and extreme - it essentially prohibited all abortions unless administrators from the prison's private medical company approved the procedure as necessary for a woman's health or life. A woman seeking an abortion for any other reason would have no recourse. 

To allow such a policy to stand would be to invite attacks on the right to abortion for all women. Jane Roe had argued that the policy violated both her 8th Amendment right to adequate medical care as a person in prison, and her 14th Amendment right to reproductive decision-making. The Eighth Circuit disagreed that her rights as a person in prison to adequate medical care were violated; however, it found that her right to choose abortion as guaranteed by Roe v. Wade and Planned Parenthood v. Casey was completely eliminated - something no state may do. 

The Supreme Court's decisions not to hear these cases should make it clear once and for all that women do not lose the right to have an abortion because they are imprisoned. This is the consensus reached by state and federal courts that have heard cases brought by women when jail and prison officials stood in their way. And yet things are not always that simple. More recent events from Maricopa County are instructive. 

After his final loss in the case, the sheriff told a reporter for The Arizona Republic, "I'm disappointed. We fought the good fight. I still don't agree that we should take females on a voluntary basis to an abortion. I'm still against that. But we took it to the highest court, and we'll see what happens if the situation comes before me again in the jail system." When the situation did come up again, members of his jail staff refused to transport a woman for an abortion - in direct violation of the court's order. The result was a four-week delay in obtaining an abortion, and the need, once again, for legal intervention. 

The sheriff's intransigence reminds us that as important as court decisions are, those decisions alone may not be enough to safeguard women's rights, especially the rights of women who are poor and politically marginalized. Rather, constant vigilance, continued intervention, advocacy, and public education, and the provision of funds to women who cannot afford to pay for an abortion are also vital to ensure that all women can carry out their decisions.  

To learn more about the reproductive rights of women in prison, including the right to parent, check out the pieces below!

• Rachel Roth, What Do Prisons Have To Do With Reproductive Rights?

• Christy Hall, From Inside Prisons, Mothers Long for Their Children
• Amie Newman, Pregnant Behind Bars: The Prison Doula Project
• Nicole Summer, Powerless in Prison: Sexual Assault Against Incarcerated Women
• Malika Sadaa Saar, Mothering As A Reproductive Right

 Read more of Rachel Roth's reporting here. And visit the ACLU Reproductive Freedom Project web site to learn more about legal issues challenging women's access to reproductive health care in prison. To learn more about helping women who need financial assistance, visit the National Network of Abortion Funds web site.

So says Karla Weikal, a spokeswoman for the Davidson County Sheriff's Office in Nashville, Tennessee, where a pregnant woman, an undocumented immigrant from Mexico, was recently arrested and jailed for the misdemeanor of driving without a license, and subsequently gave birth in custody.

The spokeswoman's statement is both true and more complicated than it appears: on the one hand, Juana Villegas DeLaPaz was treated just like other pregnant women in jail or prison; on the other hand, she was treated differently from other people who drive without a license because of a special agreement between the Nashville police and the U.S. Bureau of Immigration and Customs Enforcement (ICE).

Let's unpack the spokeswoman's statement further. A number of local and county police departments have entered into agreements which allow them to arrest people for immigration violations, a power that otherwise rests solely with the federal government. Many jurisdictions have rejected this approach, because they are concerned that if the local police are acting as "La Migra," immigrants may be reluctant to report crimes that they experience or witness, making communities less safe for everyone. Fear of the police poses a special problem for women who are victims of domestic violence, particularly when their husbands or partners are U.S. citizens or legal residents and use the threat of deportation as an additional weapon against them.

In Tennessee, driving without a license is a misdemeanor, usually resulting in nothing more than a citation. (The state stopped issuing drivers licenses to undocumented immigrants in early 2006. This issue figured prominently during the Democratic primary debates.) According to local attorneys, Villegas DeLaPaz would not have been arrested but for the local immigration policing program, because she had other identification as well as car registration papers. Once she was arrested, an immigration officer working in the police station found that she had been deported back in 1996 and issued an order to take over her case when local authorities released her. This pending immigration charge automatically made her a medium-security prisoner.

Juana Villegas DeLaPaz was arrested, nine months pregnant, on July 3. She went into labor the night of July 5. She was taken in handcuffs from jail to the hospital, where her ankle and wrist were chained to the bed except for a brief period when she was deemed to be in the final stages of labor and after giving birth. Every trip to the bathroom was made in leg shackles. She was not allowed to use a telephone or even to see her husband when he came to pick up their newborn baby. She was not allowed to take the breast pump offered by the hospital back to jail, and as a result developed a breast infection, all the while her baby went without breast milk.

These details are common to women giving birth in custody, regardless of immigration or security status. So, too, are problems with post-partum needs. Many jails do not allow "contact visits" where a woman can hold and nurse her infant, instead requiring people to be separated by partitions. As a practical matter, a woman would have to have access to a breast pump and refrigeration, be jailed close to home, and have someone willing and able to come to the jail on a regular basis, in order to provide breast milk to her infant - assuming the jail would even allow this. Like Villegas DeLaPaz, other women have reported to human rights investigators and researchers that they did not receive any kind of medication to "dry up" their breast milk when they got back to jail or prison. As a consequence, they endured physical pain, infection, and a visceral reminder of their separation from their baby - and the possibility that the separation might become permanent if the baby went into foster care.

Some women have miscarried in police or immigration custody. In one well-publicized case from 2006, a woman from China reported for what she thought was a routine appointment with immigration officials in Philadelphia. Instead, they put her into a van bound for Kennedy International Airport in New York to deport her. All the while, her husband and two children were waiting for her in the lobby. After what she described as rough handling and denial of food, water, and requests for medical attention for abdominal pain, Zhenxing Jiang was eventually taken to a hospital, where doctors determined that she had miscarried the twins she was carrying. In a surprising twist, perhaps stemming from embarrassment at international coverage of the case, the federal government dropped its objection to her request and she was granted political asylum in 2007.

For now, Villegas DeLaPaz is out of jail while her deportation case is pending. She was released in accordance with an ICE policy to allow for humanitarian consideration of the needs of breastfeeding women and their babies. The policy was adopted in late 2007, following public criticism after a Honduran woman living in Ohio was separated from the nine-month-old baby she was nursing. The woman was subsequently deported.

The New York Times observes that this case has focused new attention on local participation in immigration enforcement. It should also focus attention on the vulnerability of all imprisoned women to mistreatment during labor, childbirth, and the postpartum period.

To learn more:

For extensive coverage of Villegas DeLaPaz' case, see Tim Chavez's web site Political Salsa. On a more positive note, this story is testament to the power of dedicated individuals to educate, mobilize, and elicit attention from the mainstream press via the Internet.

For a feminist analysis of the relationship between the immigration and criminal justice systems, check out the book Policing the National Body or the report "Whose Safety? Women of Color and the Violence of Law Enforcement" by Anannya Bhattacharjee.

For reports about the conditions in jails and prisons where women seeking asylum are detained, see the web site of the Women's Commission for Refugee Women and Children.

The report, issued March 4 by the New York Civil Liberties Union (NYCLU), documents jail policies governing women's access to reproductive health care throughout the state, and finds wide discrepancies between counties as well as a disturbing lack of regulation to protect women's health.

The report has also done something else - spurred a state agency to issue a new memorandum on reproductive health care, encouraging a shift from the "ad hoc" model of service delivery to written policies and procedures, informed by advocates' recommendations.

Local Discretion

In New York, 52 of 58 counties have jail facilities for women. Women account for 25,000 "admissions" each year, with more than 3,000 in jail on any given day, and, as prisoners, each one has a constitutional right to medical care.

Under New York state law, counties are responsible for the costs of medical care for people in their custody, unless an individual in jail has third-party insurance that will cover the costs. The State Commission of Correction has the authority to issue minimum standards relating to medical care and to evaluate county jails' conformance with those standards, but it has little in the way of enforcement power when it identifies shortcomings. Until now, the Commission's minimum standards were almost entirely gender-neutral, reflecting what study author Corinne Carey calls a "one-size fits all" approach to medical care.

To investigate policies affecting women, NYCLU sent Freedom of Information requests to every county and interviewed jail personnel from a subset of counties. As the specific findings outlined below show, a recurring theme is the utter lack of written health care policies. Fourteen of the 52 counties (27%) had no written policies on any of the critical health care matters investigated. New York City is the major exception to this general trend. It is not entirely surprising that New York City would have developed more comprehensive policies than a small, rural jail; after all, Rikers Island, the New York City jail complex, confines 14,000 people, almost as many people as all the other jails in the state combined. New York City also has its own Board of Corrections, as well as an extensive network of dedicated advocacy and legal organizations that press for adequate medical care.

Why is having some sort of uniform written policy across county jails important - or any written policy, for that matter? While NYCLU staff were satisfied that some jails were providing women with adequate care despite the lack of written protocols, they also knew of cases where women had encountered problems. Policies spell out expectations, put public officials on notice, and communicate to women what their rights are. By minimizing uncertainty, they can protect people from missing out on needed care while jail officials seek guidance from the county attorney or a state sheriffs association.

Consider a free world comparison. The fight for contraceptive equity, for example, seeks to ensure that all women whose insurance plans cover prescription drugs have coverage for contraception - because access to contraception is a basic standard of care that women shouldn't have to shop around for or be denied because of their employer's choices. When someone is in jail, there is not even a pretense of consumer choice, making minimum standards all the more important.

Policy Vacuums on Critical Needs

One of the most striking findings of "Access to Reproductive Health Care in New York State Jails" is this: not a single county produced a written policy explaining when to take a woman in labor to the hospital. This may seem like such an obvious matter that no policy is needed, but the real-life experiences of incarcerated women suggest otherwise.

And recent evidence suggests that this problem is not confined to New York. In the summer of 2007, a young woman gave birth alone in the Lackawanna County Prison in Pennsylvania. Although she had repeatedly informed jail personnel that she was in labor and needed to go to the hospital, and had even been placed in an "observation cell," she wound up giving birth all alone, on the floor. In the controversy that ensued, Dr. Edward Zaloga, co-owner of the private company that runs the jail's medical services, told the local paper, "You cannot write a policy for each and every medical condition. It's literally impossible." But neighboring Luzerne County said it had a policy on labor and childbirth, as did the Pennsylvania Department of Corrections.

Given the risks for women of giving birth in jail without adequate medical attention, and the limited medical staff that smaller jails may have on duty during nights and weekends, it would make sense that jails do everything in their power to prevent this situation - including having clear policies instructing that a woman in labor should be taken to a hospital.

Where facilitating healthy childbirth would seem to be noncontroversial, a major area of contention has been whether jails respect women's right to abortion. Indeed, it was the NYCLU's involvement with two cases where women were denied timely access to abortion that led to its investigation and report in the first place. Almost half of the counties had some sort of written policy addressing abortion; however, only thirteen clearly provided unimpeded access to abortion. Potential problem areas identified include: the lack of referral procedures to abortion providers, the lack of specific time frames within which to schedule an appointment, language that appears to give jail officials discretion over the decision, and the requirement that women put up the money before the jail will even schedule an appointment.

Other key findings that demonstrate the need for regulation to ensure appropriate levels of care:

• No county had a written policy on general OB/GYN care.
• Only one county had a written policy on emergency contraception.
• Only four counties had written policies on testing and treatment for sexually transmitted infections, including one archaic policy limited to "prostitutes."
• Only 13 counties (25%) had written policies on the treatment of HIV, even though women in jail are much more likely than women in the general population to have HIV, and interruptions in antiretroviral medication can pose dire threats to health.
• Only two counties had written policies prohibiting the use of restraints on pregnant women; only one additional county had a policy on their use.
• 30 counties (57%) had written policies on access to prenatal care; even this unusually high number leaves almost half without written guidance.

The report addresses additional policy areas, including access to non-emergency contraception, treatment for sexual assault, and custody of newborns.

The Power of Information

Jails in many states operate with limited oversight from the state, and yet fundamental needs and rights are too important to be left to local discretion. In this case, the New York State Commission of Correction agreed. Its new memorandum incorporates many of the recommendations proposed by NYCLU, replacing its previous silence on abortion, for instance, with a clear statement that jails are required to provide access to abortion and to assume the costs. Because other areas of women's health are not "as well defined by law," the rest of the Commission's recommendations are "best practices."

In fact, the Commission welcomed the research results, because it did not have details about the state of women's health care in jail. Although certainly governments should provide their oversight agencies with the resources to collect the information they need, the promulgation of new recommendations shows that research can have a positive impact, and that administrative agencies, as well as courts and legislatures, are important arenas for advocacy.

Because the Commission does not have enforcement powers, continued monitoring and advocacy may be needed to ensure that county jails respond to the memorandum. Some jail administrators may readily incorporate them, having operated an ad hoc system because of financial concerns and because that's how things have always been done; others may resist for the same reasons. The report provides a model that organizations in other states may find valuable in their own efforts to secure better care for women in jail.

Prisons, jails, and immigration detention facilities are part of an expanding array of institutions that shape women's reproductive lives, along with courts, legislatures, school boards, and the local pharmacy. The United States is the world leader in incarceration, and the number of women behind prison walls has risen steadily over the past 25 years.

By virtue of being a strict system of physical confinement and punishment, incarceration has unique institutional characteristics, and yet it also provides a kind of microcosm of reproductive politics. Nowhere is race and class stratification more evident than in the criminal justice and prison systems, where poor women and men of color are dramatically overrepresented relative to their numbers in the population. And prisons are one place where the metaphor of "choice" is sorely inadequate. A pregnant woman in prison cannot choose between a midwife and a doctor, cannot choose who will be in the room with her when she gives birth. Many women have their birthing "options" dictated to them by their health insurance plan - or lack of coverage - and women who are imprisoned have even less say over their treatment or their providers.

As the articles in this series show, imprisonment has an adverse impact on women's reproductive rights and health all across the spectrum: it strains and severs parent-child relationships, makes pregnancy a difficult, uncertain experience, and exposes women to sexual abuse and then compounds the violation by denying them access to the full range of reproductive health care. In addition, it severely curtails women's ability to decide whether to have children, now or in the future. While some women have been denied access to abortion care, other women have been deprived of any future childbearing decisions because medical neglect destroyed their fertility (see Robin Levi's article in this issue of Collective Voices).

All of this happens against a complicated legal and practical backdrop. People in prison are the only group in the United States with a constitutional right to medical care. The right to medical care has its roots in the Eight Amendment's prohibition of cruel and unusual punishment. In the landmark 1976 case Estelle v. Gamble, the Supreme Court reasoned that, "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." The idea is that when the government punishes someone by incarceration, it is obligated to meet that person's basic needs. The Court concluded that "deliberate indifference to serious medical needs" constitutes the "unnecessary and wanton infliction of pain," whether by medical personnel or by guards who intentionally deny or delay access to care.

In practice, however, securing needed medical care can be daunting, as numerous lawsuits and investigations attest. Women encounter multiple barriers to care - from co-payments they can ill afford to having to convince a guard that they need to see a doctor. Gynecological and obstetric care is often woefully inadequate. In a nationally representative government study, 20 percent of pregnant women in prison reported getting no prenatal care, and 50 percent of pregnant women in jails went without care. Since 1976, both the Court and Congress have taken actions that make it more difficult to enforce the right to medical care or to seek redress for violations. "Deliberate indifference" is a higher standard than medical malpractice and one that can be very difficult to prove.

How many women are affected by these conditions, and who are they? More than 200,000 women are imprisoned, or about 10 percent of the imprisoned population. Although women have always been a minority of those imprisoned, they have been entering prison at a faster rate than men for some time. To put this in perspective, a woman is three times as likely to wind up in prison today as in 1974. These statistics reflect the number of women locked up on a given day; many more pass through jails and prisons over the course of a year.

Five to six percent of women are pregnant when they are processed into prison or jail. And the majority are already mothers, usually the primary parents of children under eighteen, and they are disproportionately African American, Latina, and Native American, in for non-violent offenses, and most especially those related to drugs, given our national policy of treating drug addiction as a criminal rather than health matter.

An increasing number of women are growing old in prison, thanks to mandatory sentencing policies that impose long terms without the possibility of parole. Even after they pass out of their "reproductive years," they still have distinctive women's health concerns, such as obtaining regular mammograms and preventing osteoporosis. Rigid prison rules and routines do not accommodate elderly women who have trouble working, standing in line for long periods, climbing into upper bunks, or dropping to the ground on their frail bones at a moment's notice.

Finally, taking into account women on probation and parole - who live under the constant threat of being sent to prison - over one million women are under the jurisdiction of the criminal justice system.

Although the U.S. Constitution provides the legal framework for evaluating prisoners' rights claims, International Human Rights Day reminds us that human rights accords often provide a deeper conception of the rights of incarcerated people. Various accords, for instance, proscribe men guarding women and the shackling of women in labor and childbirth. Most fundamentally, these accords insist that people in prison be treated with a basic level of human dignity that differs markedly from the "lock ‘em up and throw away the key" attitude that has shaped so much U.S. policy and led to a massive prison system. At $60 billion per year, that attitude is quite costly to American society as whole, as well as to the individual women, families, and communities personally affected by incarceration.

For further information and a list of organizations who work on this issue, see the entry on "Incarcerated Women" in the Reproductive Justice Briefing Book.