41-c-2 Abortion

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

41-C-2. Abortion

(a) Your Right to Choose: Access to Elective Abortions

An "elective abortion" is the voluntary termination of a pregnancy, where a woman personally chooses to have her pregnancy ended for non-emergency reasons. You do not lose your legal right to decide whether to continue a pregnancy or to have an elective abortion just because you are in prison.⁴⁵ However, states are allowed to place restrictions or limitations on a woman's right to an abortion, like requiring parental consent for pregnant minors, as long as they do not place an "undue burden" on a woman's right to choose.⁴⁶ An undue burden exists, and therefore a provision of a law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus is "viable" (able to live outside the womb).⁴⁷ Courts decide what kind of obstacles might count as an "undue burden." Prisons and jails sometimes have regulations that make it difficult to obtain an abortion. So, if you think you could be pregnant and might want an abortion, you should get a pregnancy test as soon as possible by contacting your prison's medical center.

There are two main types of prison abortion policies that have been challenged in the courts:⁴⁸

(1) Blanket prohibitions that explicitly prohibit transporting prisoners off prison grounds in order to get abortions (assuming the abortion is not medically necessary),⁴⁹ and

(2) Court order provisions that require female prisoners to get a court order before they can get an abortion.⁵⁰

In both of these kinds of cases, courts have relied on the Supreme Court's "reasonableness" standard as set forth in Turner v. Safley, to decide whether the challenged policies violated a woman's right to an abortion under the Fourteenth Amendment.⁵¹Turner also stated that prison regulations that restrict the rights of prisoners must be substantially related to some legitimate (justified) concern of the prison, where it was held that restrictions on the right to marry between prisoners and civilians were not reasonably related to any prison objective.⁵²

When considering whether prison policies involving blanket prohibitions and court order provisions are unreasonable, courts take into account a range of concerns including the safety risk of transporting prisoners off prison grounds, and the need to allocate scarce resources and time.⁵³ To show that it is unreasonable to refuse to transport women to clinics or hospitals for an abortion, courts have cited the prison's ability to provide transportation for other kinds of medical examinations during pregnancy, including delivery.⁵⁴ Likewise, as the Third Circuit explained in Monmouth, prisons already have to provide all pregnant prisoners with proper pre-natal and post-natal care, and taking a prisoner to get an abortion requires no greater outlay of resources..⁵⁵ The Monmouth court further found that prison officials must provide abortion services even if the prisoner cannot pay for them.⁵⁶

Your right to access an abortion varies depending on the kind of prison you are in and where it is located. In federal prison, federal regulations require female prisoners to be offered...