Even where abortion is legal, there are high barriers to obtaining one while in jail

Scott Olson // Getty Images Paige sat in the nurses’ station at the Rockford, Illinois, Winnebago County Jail in shock. Her pregnancy test had just come back positive. Paige, who asked that her last name not be used in this story, did not want to have a baby. The Marshall Project reports that in 2021, she was awaiting trial in Illinois for drug charges that could bring possible prison time, and was already worried about what would happen to her four kids at home. The pregnancy would be high-risk. She’d had three cesarean sections, and doctors told her that her scar tissue from a recent surgery had attached to the placenta. She didn’t believe the county would provide the quality medical treatment she needed. “My own life was at stake at that point,” she said. Paige said she used the jail’s electronic messaging system to send a medical request for an appointment to get an abortion. But the response she got back was so baffling, she said, she almost had to laugh. It consisted of a sad-face emoticon, like this: 🙁 Approximately 3% of women in jail in the United States in 2017 were pregnant at the time of admission, according to data collected by researchers at Johns Hopkins School of Medicine. But with thousands of jails nationwide, and no central oversight, astonishingly little is known about people’s access to abortions. A new report released in March 2024 offers a glimpse at how jails in Illinois provide reproductive care and found that fewer than one-third of the state’s jails have written policies on abortions. The policies that do exist are often vague and confusing and may include steep barriers, like requiring a person to make arrangements for or pay for the procedure themselves, even though they are locked up. A Marshall Project review of pregnancy policies in 27 jails across 12 states found similar patterns elsewhere, as did a recent study in Oregon. The studies suggest that even in places where abortion remains legal after the Supreme Court struck down Roe v. Wade, reproductive rights in jail are precarious and limited. Carolyn Sufrin, an obstetrician-gynecologist and author of the 2017 book “Jailcare: Finding the Safety Net for Women Behind Bars,” said the stakes of access to abortion are especially high for incarcerated people. Their access to nutritious food, good health care and support from friends and family are compromised. They may be shackled during birth or separated from their newborn just hours after delivery. “Each of these steps is laden with trauma. So for those who cannot access abortion because they are incarcerated, they are prevented from trying to avoid pregnancy, prevented from having a say in their child’s birth, and prevented from parenting, all in one pregnancy,” Sufrin said. Emily Werth, senior staff attorney at the ACLU of Illinois and one of the new report’s authors, said the fact that so few jails provided written policies regarding abortion was troubling. Without clear guidance, staff can make decisions based on their personal beliefs instead of the wishes of a pregnant person. “If there are not written policies setting out these standards in the first place, we can and should assume that there will not be respect for legal obligations or best practices,” she said. The jail where Paige was incarcerated, for example, provided no written guidelines to the report’s authors. Paige never got an abortion. Officials at the Winnebago County Sheriff’s Office did not provide a comment in response to a Marshall Project request and did not confirm or deny Paige’s account. The Marshall Project was unable to access Paige’s jail medical records or messages, but her mother confirmed that Paige told her about the incident at the time. “It was supposed to be my decision. Not anybody else’s but mine. And I felt like that did get taken from me,” Paige said. Alexis Mansfield, senior advisor at the Women’s Justice Institute, a nonprofit advocacy organization for incarcerated women in Illinois and a co-author of the new report, said pregnant people should be released from jail whenever possible. Most people are in jail before their trials and are presumed innocent. But if they are detained, they should be entitled to good access to reproductive care, guided by clear written policies. Leaving decisions to staff, who may disagree with a person’s right to abortion, is dangerous. Rebecca Shlafer, associate professor at the University of Minnesota, studies policies that affect families affected by incarceration. “The fundamental problem is that there are no mandatory standards for reproductive health care in jails or prisons in this country. And I think that shocks people,” Shlafer said. The Illinois Sheriffs’ Association, the American Jail Association and the National Sheriffs’ Association would not comment or respond to questions about abortion policies for local jails. One of the largest barriers to abortion access in jails is the requirement that patients pay for the abortion themselves. These rules make access arduous for people in jail, who are more likely to be poor. Even if someone has Medicaid coverage, and they live in a state where Medicaid covers abortion, federal policy requires that coverage be terminated or suspended while a person is incarcerated. The Marshall Project identified jails across the country that require an incarcerated person to pay for an abortion, including Frederick County, Maryland, and Maricopa County, Arizona. A study of Oregon’s 31 county jails found most had policies that required a person to pay for the procedure, sometimes even requiring full payment in advance. Many reproductive rights advocates consider Illinois to be the safe haven of abortion in the Midwest, and Gov. J.B. Pritzker has even taken steps to ensure the state covers abortion costs for people in its prisons. But county jails aren’t bound by the same rules and practices. With so many different counties, each with its own policy, this creates a patchwork of policies (and lack of policies) across the state. In some Illinois counties, people are also required to pay for costs beyond the procedure itself, like an officer’s time, transportation, medications and costs of any future complications. Brittney Plesser, co-director of the Fair Law Project at the Oregon Justice Resource Center and author of the Oregon report, said costs were not the only barrier in Oregon jails. Yamhill County has a law that forbids county officials, including jail staff, from facilitating an abortion “by any means.” That directly contradicts a state law banning officials from interfering with abortion rights. Yamhill’s new sheriff said the jail is currently updating its policy, and he has directed staff to handle abortions like any other medical appointment. Besides restrictions instituted by jails, statewide laws limiting or banning abortions disproportionately affect incarcerated people. Amy Hagstrom Miller, founder of Whole Woman’s Health, which provides abortion care, said regulations like mandated waiting periods create a barrier that can be especially difficult for people behind bars. Still, before the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization striking down national abortion rights, Hagstrom Miller’s organization’s clinics were able to serve incarcerated people in Texas, and even had a positive relationship with some jails. But now, that kind of assistance is impossible. Hagstrom Miller said while some other Texas residents can travel to their clinics across state borders, she is unaware of any jail officials providing transport for women in their care. Of the six county policies in Texas reviewed by The Marshall Project, only one had an official policy regarding abortion. The Bexar County Detention Health Care Services policy says staff are prohibited from making referrals for abortion and do “not have the authority to authorize patients to travel out of state for elective medical services.” After Louisiana instituted a near-total ban on abortion, Orleans Parish Sheriff Susan Hutson said she would defy the state’s law and refuse to accept anyone into custody at the jail for “seeking or performing reproductive healthcare services.” In response to Marshall Project questions about how they would handle abortion requests in the jail, a spokesperson said they try to get pregnant people released, but they do not get directly involved in care except for transport. The jail would not clarify whether that could include transportation to states where abortion is legal. A 2020 census of abortion clinics, conducted by the reproductive rights group the Guttmacher Institute, found that 67 clinics across 25 states and the District of Columbia provided more than 300 abortions to incarcerated patients in a single year. Eleven of those clinics were in states that now have total or near-total abortion bans. Because so few abortion clinics answered questions about serving incarcerated people, the study’s authors say this is likely a vast undercount of incarcerated people who could once receive services, but will now have to give birth against their will. Sometimes that may pose real medical danger. Shlafer said people in jail are more likely to have high-risk pregnancies and face conditions where abortion is needed. “The very social conditions that are driving one’s risk for incarceration are also the things that compromise pregnancy,” she said. Paige said her pregnancy was difficult in jail; she had trouble getting proper nutrition and timely appointments, despite the high-risk nature of her pregnancy. In April 2022, she began having contractions and went to the hospital. Because she was not dilated enough, she was sent back to jail and continued having contractions for two days. When the jail finally took her back to the hospital, she said she was so close to giving birth that she almost had to do a dangerous vaginal delivery instead of a C-section, which she eventually received. After Paige gave birth to a girl, she was allowed to go home on a furlough to be with her newborn for three months. But after that, she had to go to prison. While she served eight months for a drug charge, her mother cared for all five of her children so they would not risk going into foster care. Paige said she should have been given the same reproductive care that she would have had on the outside, especially in a state that prides itself on strong reproductive rights. But, she said, “Once you’re labeled as a criminal, and you are in custody, they feel like they own you and you don’t have those rights.” This story was produced by The Marshall Project, a nonpartisan, nonprofit news organization that seeks to create and sustain a sense of national urgency about the U.S. criminal justice system, and reviewed and distributed by Stacker Media.