Incarceration Status Among Individuals Obtaining Abortion in the United States, 2020

Abstract

Objectives. To examine the abortion frequency among incarcerated people before Dobbs v Jackson Women’s Health Organization was decided.

Methods. We used data from the 2020 Abortion Provider Census to examine the number and distribution of facilities that provided abortions to incarcerated patients.

Results. Sixty-seven clinics across 25 states and the District of Columbia provided more than 300 abortions to incarcerated patients in 2020. Eleven of these clinics are in states that now have total or near-total abortion bans.

Public Health Implications. People in jails and prisons face many structural barriers when seeking an abortion, especially with increased state abortion restrictions and an inability to travel out of state. If they cannot obtain desired care, people may be forced to continue pregnancies in harsh conditions. To address abortion access inequities, policy and research must consider incarcerated individuals. (Am J Public Health. 2023;113(12):1352–1355. https://doi.org/10.2105/AJPH.2023.307411)

After the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization (Dobbs) eliminated federal protections for abortions in the United States, research and reporting have continued to document adverse effects on people’s health and well-being.^1,2 Abortion restrictions in 15 states resulted in 66 clinics ceasing abortion services within 100 days of Dobbs and more than 25 000 people unable to access abortion within the first 9 months of the decision.^2,3 Still, we do not fully understand the effects of Dobbs, including for people in jails and prisons—who have the fewest resources to overcome barriers and categorically cannot travel out of state. Mass incarceration and maternal health outcomes are both characterized by structural racism and racial disparities, raising concerns that abortion bans will have a distinctly negative effect on incarcerated people.⁴

In the United States, 3% to 4%, or roughly 38 000, of incarcerated women are pregnant at intake based on the most recent data on admissions of women to prisons and jails.^5,6 Before Dobbs, the courts consistently ruled that incarcerated individuals retained their constitutional right to abortion. However, carceral institutions implemented inconsistent policies: some expressly prohibited abortion; some allowed it, albeit sometimes with restrictions out of step with state law; and others’ self-pay requirements made abortion functionally inaccessible.⁷ The only existing study of abortion occurrence among incarcerated individuals collected data from carceral facilities and reported 44 abortions among 1040 pregnancies.⁷ We examined the incarceration status of abortion patients using data from a census of clinics providing abortion care in 2020.

METHODS

We used the Guttmacher Institute’s Abortion Provider Census, which contains data from the 807 clinics providing abortion in the United States in 2020.⁸ Among other items, clinics were asked the number of abortions provided in 2020 to individuals who were in prison or jail at the time they obtained care.

Using Stata version 17.0 (StataCorp LP, College Station, TX), we totaled the number of abortions of incarcerated patients and examined geographic distribution, including state policy landscapes, where clinics reported 1 or more abortion to an incarcerated patient. We assigned states a hostile versus supportive score between positive and negative 6 based on 12 abortion protections or restrictions a state might have in effect.⁹

RESULTS

Fifty-five percent (n = 440) of clinics responded to this item. Of the 45% of clinics with missing data, 11% reported not tracking this information, and clinics with missing data accounted for 43% of clinic abortions in 2020. Of clinics that did not respond to the item, 43% were in states hostile to abortion in 2020. By comparison with other nonresponse items, 20% to 24% did not answer items about medication abortion or abortions performed after 20 weeks gestation.

Of the 440 responding clinics, 67 (15%) provided 302 abortions to people in jail or prison. The largest number of abortions any clinic reported providing to incarcerated patients was 25, and only 18 clinics reported 5 or more incarcerated patients. Most clinics (72%) serving incarcerated patients had total annual caseloads of at least 1000 patients.

Clinics were in 25 states and the District of Columbia, evenly distributed across census regions. Four states had 5 or more clinics that reported providing abortions to incarcerated patients. All clinics were in metropolitan or urban areas. Among these states, 12 were considered hostile to abortion rights in 2020 (Figure 1).⁹ Notably, 52% of clinics providing at least 1 abortion to an incarcerated patient were located in a hostile state. Eleven clinics, reporting 22 abortions to incarcerated patients, were in 6 states where abortion is now banned or unavailable beyond 6 weeks gestation as of July 2023.

FIGURE 1—

Landscape of State Abortion Policies Among Facilities Providing Abortion Care to at Least 1 Incarcerated Patient: United States, 2020

Note. Patient data reflect data from the 2020 Abortion Provider Census. Although Washington, DC, is not state based on their policies, we categorized the capital as neutral for this analysis.

Source. Nash⁹ was the source for state hostility.

DISCUSSION

These data indicate that more than 300 abortions were provided to incarcerated individuals in the United States in 1 year. Given that a substantial minority of clinics were unable to, or did not, answer this question, this is almost certainly an undercount. Our data demonstrate that some incarcerated individuals obtained abortions before Dobbs, including in hostile states. The number of incarcerated women increased from 2020 to 2021, especially in jails,⁵ and we suspect that the need for abortion services among people in jails and prisons will continue, but post-Dobbs restrictions will make abortion more unobtainable for many incarcerated people. Furthermore, more people, particularly Black and Brown individuals, may interact with the carceral system because of attempts to access or self-manage abortion care in restricted areas.⁴

Our results, obtained from abortion clinics, are in stark contrast to data collected from carceral facilities, which reported 11 abortions in all federal and 22 state prisons and 33 abortions in a sample of 6 jails.⁷ Given that the abortion ratio in that study’s jails was 18 abortions per 100 pregnancies but only 1 in prisons, it is possible that our data represent more patients in jails, particularly because more people are held in urban than rural jails and virtually all abortion clinics are in metropolitan or urban areas. Although abortion access in rural areas has long been a challenge, the geography is amplified for incarcerated people in, often rural, prisons, whose ability to travel depends on the institutions’ willingness to transport them.

Twenty-two abortions in our study occurred in states where abortion is now unavailable past 6 weeks gestation. Although abortion may have been functionally unobtainable for some incarcerated individuals before Dobbs,⁷ those in restrictive states now have no pathway for access. They cannot travel out of state, nor can they use telehealth or self-manage a medication abortion because the institution controls their means of communication. Without abortion care, incarcerated individuals are forced to continue pregnancies in custody, where they may have limited access to prenatal care, gestate in isolating and harsh conditions, be shackled during birth, and be swiftly separated from their newborns.¹⁰ Stratified abortion access makes forced pregnancy part of people’s punitive sentence. Given racial disparities in incarceration, Black, Latinx, and indigenous individuals are disproportionately harmed by this overlap between incarceration and abortion bans.

The preclusion of abortion access for incarcerated individuals in states that ban abortion raises concerns for carceral institutions’ fulfillment of their constitutional requirement to provide health care.¹¹ Although the Federal Bureau of Prisons’ policy allows abortion with Hyde Amendment restrictions, the Prison Rape Elimination Act requires providing abortion access only in accordance with state law¹²; thus in states with no exception for rape, individuals who become pregnant from rape in custody will be forced to continue a pregnancy originated in state violence.

Despite challenges clinics had responding to this item, these are foundational findings about abortion frequency for incarcerated people before Dobbs.

PUBLIC HEALTH IMPLICATIONS

Incarcerated individuals need, and sometimes obtain, abortions. Our study highlights how sexual and reproductive health research can and should include data about and directly from incarcerated individuals, fighting their erasure and pointing to what equitable health care might look like. Additional research examining abortion access and provision to incarcerated patients, including patient experiences seeking abortion care and what happens when they are denied care, could provide insight into the full extent of barriers to abortion care for people who are incarcerated and how policies can mitigate them.¹⁰

Institution- and state-level policies and access supports, such as abortion funds, should explicitly consider the needs and unique and considerable barriers to care of incarcerated individuals. Potential policy changes include eliminating the exclusion of incarcerated people from Medicaid and repealing the Hyde Amendment. Standardization and oversight of carceral medical care is necessary to ensure that carceral institutions located in states where abortion is legal have policies and practices that ensure abortion access.