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Defending Prisoners' Access to Abortion

Rachel Hart,
Reproductive Freedom Project
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September 24, 2007

The U.S. Court of Appeals for the Eighth Circuit heard argument today in Roe v. Crawford, a case dealing with the right of prisoners in Missouri to access timely, safe, and legal abortion care. The ACLU argued the class-action lawsuit on behalf of all pregnant prisoners in the state’s custody.

The U. S. Supreme Court has laid out two basic principles for determining whether a restriction on prisoner’s constitutional right is permissible, namely:

1. Prison regulations that curtail constitutional rights are valid only if they are “reasonably related to penological interests.” (Turner v. Safely (1987)).

2. Correctional facilities must meet the serious medical needs of inmates by ensuring access to proper care. (Estelle v. Gamble (1976)).

Accordingly, a woman’s reproductive rights are violated if a prison or jail:

— Prevents her from having an abortion;

— Pushes her to have an abortion she does not want;

— Forces her to get a court order before she can obtain an abortion or otherwise delay access to abortion care;

— Insists she pay for an abortion with her own money regardless of her ability to pay; or

— Requires her to pay for the costs of transporting her to a clinic or hospital to obtain an abortion if she cannot afford to do so.

Yet throughout the year, the ACLU receives phone calls from women in jails or prisons looking for help in obtaining an abortion or from their advocates looking for guidance in handling these cases. Keep in mind that correctional facilities typically provide pregnant inmates with obstetrical care throughout pregnancy and delivery, transporting pregnant prisoners off-site for such care without a court order. Moreover, facilities regularly transport inmates off-site without a court order for other medical and dental treatments that they do not provide on-site.

For more information on rights concerning pregnancy-related care in prisons read Know Your Rights: Pregnancy-Related Health Care in Prison or Jail.

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