American Journal of Law & Medicine

Access to Elective Abortions for Female Prisoners under the Eighth and Fourteenth Amendments


Victoria, a pregnant inmate housed in a Louisiana state prison, brought a civil rights action challenging the prison's policy of requiring her to obtain a court order to receive an elective abortion. (1) Although Louisiana state law purported to allow Victoria to obtain an elective abortion, Victoria was unable to obtain her abortion because of procedural delays. (2) Victoria was released from prison before she gave birth but her pregnancy was too far along for her to legally obtain an abortion. She was therefore forced to carry her pregnancy to term and forced to place her newborn child with adoptive parents. (3) Had she given birth in prison, she would have been shackled to her hospital bed, as Louisiana policies require. (4)

Little information regarding pregnancy, prenatal care, perinatal outcomes, and access to elective abortions for female inmates exists. We know, however, that between six and ten percent of the women entering jail or prison are pregnant (5) and that more women may become impregnated in prison as a result of rape by prison guards. (6) Although not all pregnant inmates are incarcerated for the majority of their pregnancies, the majority of women who carry their pregnancies to term face inadequate prenatal care during their incarceration. (7) Furthermore, due to factors such as poor socioeconomic conditions and drug use before incarceration, female inmates may have pregnancies with higher risk factors than the unincarcerated population. (8) Carrying a pregnancy to term generally ends in a degrading and traumatic experience for the female inmate, such as shackling women during childbirth, which is the policy in federal prison and in almost all state prisons. (9) Although shackling laws have recently come under attack by women's and human rights groups such as Amnesty International and the American Civil Liberties Union (the "ACLU"), only ten states have repealed these laws. (10) The other forty states still use some type of restraint, including belly chains, leg irons, and handcuffs during labor and delivery. (11) Shackling may cause complications during delivery such as hemorrhage or decreased fetal heart rate. (12) The numerous health risks and emotional difficulties involved in carrying a pregnancy to term while incarcerated may give a female inmate strong motivation to seek an elective abortion.

Currently, there is no clear national policy regarding access to elective abortions for pregnant inmates. (13) The federal courts have split on the issue of whether female inmates have a right to elective abortions and disagree about what that right substantively entails. (14) A national standard is necessary to protect pregnant inmates' rights to elective abortions. Given the current political climate, which is particularly hostile towards abortion rights, it is the United States Supreme Court that can most effectively accomplish the goal of establishing a clear national policy regarding the rights of female prisoners to have elective abortions. This Note will examine the likely outcome should the Supreme Court hear a case to resolve the current circuit split. In light of the Court's recent decisions relating to abortion rights under the Fourteenth Amendment in Planned Parenthood v. Casey and Gonzalez v. Carhart, the Court will likely rule that pregnant inmates must have meaningful access to elective abortions under the Fourteenth Amendment. The rationales expressed by the Sixth, Third, Fifth, and Eighth Circuits in deciding the relevant cases likewise suggest this result. The Court, however, will likely find that denying pregnant inmates access to elective abortions does not constitute cruel and unusual punishment under the Eighth Amendment.

Part II of this Note provides a more extensive look at the facts relating to female inmates' access to elective abortions in federal and state prisons and why such access is particularly important to incarcerated women. Part III examines both federal and state policies regarding pregnant prisoners' access to elective abortions, which often deny female prisoners access to abortions, either constructively through procedural delays or explicitly through state laws that restrict access. Part IV reviews the case law relating to inmates' constitutional rights regarding access to adequate healthcare and, more specifically, the case law relating to pregnant inmates' access to elective abortions. Part IV concludes with a discussion of the federal circuit court split regarding pregnant inmates' access to elective abortions as a part of a prisoner's right to adequate healthcare.

Part V develops the thesis by first explaining why pregnant inmates retain their constitutional rights, including the right to elective abortions. It then argues that both the Fourteenth and Eighth Amendments should protect a pregnant prisoner's right to an elective abortion. Finally, it presents the opinion that, because of the circuit split, the federal courts have failed to uniformly protect the rights of pregnant inmates across the country. It asserts that because of this failure, the Supreme Court must resolve the issue. Part VI examines the probable holding should the Supreme Court hear such a case. (15)


The female prison population is increasing quickly, resulting in limited access to healthcare for female inmates. From 1995 to 2005, the number of incarcerated women rose fifty-seven percent, while the population of incarcerated men increased by only thirty-four percent. (16) As of 2008, there were 114,852 women in state and federal prisons. (17) In 2010, the ACLU estimated that this number had risen to more than 200,000. (18) For every 100,000 women in the United States population, sixty-eight women are sentenced to more than one year in state or federal prison. (19) Prison staff cannot meet the physical and mental healthcare needs of this rapidly growing female inmate population, which frequently results in "poor quality treatment" and long delays in accessing medical care. (20) Many incarcerated women struggle with substance abuse, mental illness, and histories of physical and sexual abuse. (21) These struggles suggest that female prisoners are very much in need of quality medical care. Female inmates suffering from treatable diseases such as "asthma, diabetes, sickle-cell anemia, cancer, late-term miscarriages, and seizures have little or no access to medical attention, which sometimes results in permanent injury or death." (22)

The reproductive healthcare needs of the female inmate population, including prenatal and abortion services, are likewise unmet. Data on pregnant women in prison is limited. Various surveys report that between three and ten percent of women entering jail and prison are pregnant. (23) The most recent federal study, conducted in 2004, reported that four percent of state inmates and three percent of federal inmates stated they were pregnant at the time of their admission. (24) Prisons often lack the facilities to provide the reproductive health services that pregnant inmates require. In 1994, the National Institute of Corrections stated that provisions of gynecological services in prisons were inadequate. (25) Only half of the country's state prison systems offered female-specific services such as Pap smears and mammograms. (26) The ACLU reported in 2007 that a nationally representative government study showed that"20 percent of pregnant women in prison reported getting no prenatal care, and 50 percent of pregnant women in jails went without such care." (27)



Two Federal Bureau of Prison policies govern inmates' access to elective abortions. (29) The "Birth Control, Pregnancy, Child Placement and Abortion" program statement gives female inmates access to elective abortions after women have participated in "medical, religious, and social counseling." (30) The policy further requires that "the inmate shall inform the institution medical staff as soon as she suspects she is pregnant." (31) When prison medical staff verify the pregnancy, they then must promptly "notify the inmate's case manager." (32) The warden provides the pregnant inmate with resources for "medical, religious and social counseling to aid her in making the decision whether to carry the pregnancy to full term or to have an elective abortion." (33) Upon completion of medical, religious, and social counseling sessions, "each staff member involved shall document the session in a memorandum to the inmate's central file." (34) The policy then requires that"[a] copy of each request for an elective abortion and the supporting documentation from the medical, religious, and social counseling sessions ... be sent for information purposes to the Medical Director's attention." (35) At this point, the Clinical Director can arrange for an elective abortion to take place. (36) The policy requires the Bureau of Prisons to pay for the abortion only when the procedure is required. Such a procedure would be required where carrying the fetus to term would endanger the life of the mother or when the pregnancy is a result of rape. (37) The policy states, however, that the Bureau of Prisons "may expend funds to escort the inmate to a facility" outside the institution to receive the procedure." (38)

The "Religious Beliefs and Practices" program statement sets forth separate religious counseling requirements for women seeking to terminate their pregnancies. (39) This policy states that"[p]regnant inmates will be offered religious counseling to aid in making an informed decision whether to carry the pregnancy to full term." (40) The program statement does not explicitly allow a pregnant inmate to obtain an elective abortion without receiving religious counseling. (41) Furthermore, staff who do not wish to assist the inmate in the process of terminating her pregnancy are not required to participate. (42) In practice, this policy may force a woman wishing to terminate her pregnancy to discuss her choice with an evangelical Christian minister or an Islamic cleric, as both evangelical Christian ministries and Islam have an increasing presence in prisons. (43) As these faiths are generally pro-life, the pregnant inmate may be ultimately convinced not to go through with her plan to terminate her pregnancy.

The "Birth Control, Pregnancy, Child Placement and Abortion" program statement includes neither a timeline for the provision of these services, nor a timeframe during which the Clinical Director must arrange an elective abortion for the woman once she has completed the counseling services. (44) Indeed, "arranging for the abortion to take place is often the most arduous step of the process ... because the number of facilities that perform the service has been declining, [and] so many areas without abortion providers remain in the country." (45) Thus, while the federal policy nominally provides pregnant inmates with access to elective abortion services, in practice the policy--and those in charge of implementing the procedures it requires--may effectively limit pregnant inmates' meaningful access to elective abortion services. (46)


Only thirty-four states and the District of Columbia have pregnancy-specific prison laws. (47) Twenty-one of those states have standards that address healthcare both for pregnant inmates planning to carry their pregnancies to term and for pregnant inmates planning to terminate their pregnancies. (48) Fourteen of those states have standards that address prenatal care but not access to abortion. (49) An alarming total of sixteen states do not have any pregnancy or reproductive healthcare correctional standards at all. (50) Court-order policies still exist in several states and often work to effectively restrict pregnant inmates' access to elective abortions. (51) Additionally, states with policies that require women to pay for transportation to a clinic, limit access to phones for women to make arrangements, or require women to pay for a procedure all effectively limit actual access to elective abortions. (52) States without standards for elective abortion access leave the decision-making process in the hands of wardens and prison medical care providers. If these individuals are pro-life, they may prevent a woman from receiving an elective abortion through procedural roadblocks, unnecessary delay, or outright refusal. (53)



Inmates do not give up all their constitutional rights during their incarceration. Indeed, the Supreme Court has held that "prisoners [must] be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." (54) In the context of healthcare, several cases have helped clarify the rights that prisoners retain as well as the conduct that constitutes a violation of those rights.

In Turner v. Safley, the Supreme Court rejected strict scrutiny as the appropriate standard of review for determining the legal rights of prisoners. (55) Instead, the Court concluded that a penal policy that "impinges on inmates' constitutional rights is valid if it is 'reasonably related' to legitimate penological interests." (56) This test balances the inmate's interests against the interests of the institution to determine whether the inmate's rights are being unreasonably restricted. (57) Courts consider four factors to determine the reasonableness of the regulation at issue. First, courts must determine whether there is "a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." (58) Accordingly, a regulation that restricts an inmate's rights is not reasonable "where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." (59) Second, courts ask "whether there are alternative means of exercising the [asserted] right." (60) Third, courts must consider the impact that accommodating the asserted constitutional right will have on prison resources. (61) Fourth, courts examine whether there are "ready alternatives" to accommodate the asserted right "at 'de minimus' cost to valid penological interests." (62) The absence of ready alternatives weighs in favor of the reasonableness of the restriction on the inmate's rights, while "the existence of 'obvious, easy' alternatives may" show that the restriction is "not reasonable, but is an 'exaggerated response' to prison concerns." (63) Turner "does not call for placing each factor in one of two columns and tallying a numerical result." (64) Rather,"[t]he objective is to determine whether the regulation is reasonable given the prison administrators' penological concerns and the inmate's interest in engaging in the constitutionally protected activity." (65)

Prisoners' rights are also protected by the Eighth Amendment, which has been interpreted to include a fundamental right to adequate medical care. In Estelle v. Gamble, the Supreme Court held that inadequate medical care violates the Eighth Amendment's protection against cruel and unusual punishment when the medical care or lack thereof, exhibits "deliberate indifference to serious medical needs." (66) The Eighth Amendment "proscribes more than physically barbarous punishments ... [and] embodies 'broad and idealistic concepts of dignity, civilized standards, humanity and decency' against which we must evaluate penal measures." (67) Furthermore, the Eighth Amendment "proscribes punishments grossly disproportionate to the severity of the crime" and punishments that "involve the unnecessary and wanton infliction of pain." (68) The government has an obligation "to provide medical care for those whom it is punishing by incarceration." (69) This is so because "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." (70) The Court concluded that the "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." (71)

In deciding Estelle, the Court was careful to describe the parameters of a valid Eighth Amendment claim. The Court stated that, "in order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend 'evolving standards of decency' in violation of the Eighth Amendment." (72) Estelle essentially established a two-pronged test to determine whether there has been an Eighth Amendment violation: the inmate must show (1) that the inmate had an objectively serious medical need, and (2) that the prison was deliberately indifferent to that need. (73)


Multiple cases in federal court have challenged the validity of denying pregnant inmates meaningful or actual access to elective abortions. These claims have alleged violations of both the Eighth and Fourteenth Amendments. Courts have used the four-part Turner test and the language of Estelle to analyze the constitutionality of states' restrictions on pregnant inmates' access to elective abortions. (74) The Supreme Court has not yet ruled on the issue, and the Sixth, Third, Fifth, and Eighth Circuits have each ruled differently. …

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