When I tell people that I am interested in both criminal justice and reproductive justice, they often look at me askance, or raise their eyebrows.  Don’t these two fields clash a lot, they ask? Well, yes, in some ways. But women’s health advocates and prison reform activists have more in common than many might think. Beyond the fact that there are more women in prison than ever before because women’s incarceration rates have skyrocketed since the beginning of the so-called “war on drugs,” women’s lives are effected by high prison rates in multiple other ways. Feministing’s Samhita draws the connections in her most recent (and last) post on the Nation’s Passing Through.  One reason, she says, that the women’s health and anti-incarceration movements need to start talking to each other is that women’s STD rates are exponentially higher in communities that have the highest incarceration rates, even in women who are not engaging in so-called risky behavior. A recent Washington Post Op-Ed has more:

One obvious reason is that conversations about sexual behavior, race and sexually transmitted infections remain taboo. Another is that the incidence of many STDs, particularly HIV, is concentrated in poor, segregated neighborhoods that are characterized by high rates of incarceration. Inner-city populations of African Americans and Latinos account for almost two-thirds of the 2.2 million Americans in prison nationwide, and two disturbing trends are increasingly present in these communities.  

One is the shift in the patterns of marriage and courtship that result when so many men are removed from a community. The other is an increase in the number of “multiple concurrent sexual partnerships,” in which individuals are engaged in sexual relationships with more than one person at a time. In many communities, when one sexual partner is imprisoned, the person left behind chooses another partner. When widespread, this behavior creates an efficient, effective pattern for introducing and maintaining an STD through a network of sexual relationships. 

As the Op-Ed, written by two public health academics, later notes, we as a society ignore the fallout of our addiction to incarceration at the peril of our health — and particularly of women’s health.  But the op-ed gets something seriously wrong:  it suggests that we can place blame for the high rates of HIV and other STDs at the feet of the women left behind when their men are dragged off to jail. We shouldn’t be placing blame on the community at all. And as Samhita rightly notes, it’s not quite so simple:

High rates of incarceration has such deleterious side effects that we have only begun to understand. Beyond dismantling and shaming entire communities, the onslaught of emasculating practices via police has created greater threats to masculinity, which backfire in the form of unsafe sexual practices, multiple partners and in its extreme form, rape.  

It may be true that, as some claim, the feminist/women’s health movement fanned the flames of the incarceration fury — particularly in the 1990s with the push toward victim’s rights. But it’s time to move beyond the divisive past and start to work from our commonality — that women and men, both inside and outside the prison walls, deserve better. 

Some days, I wonder whether certain prosecutors learned about a little thing called legislative intent when they were in law school. The reason I’m wondering this today is this: in Alabama, a prosecutor is charging a woman who is addicted to methamphetamine and who was unable to kick her addiction during her pregnancy with “chemical endangerment,” a new offense created in 2006 to protect children who live in homes where methamphetamine is produced. The law was envisioned as providing a tool with which to remove kids from homes where parents were producing meth.Operating on the theory that a fetus is a child, and paying no mind to the legislative intent motivating the law, the county prosecutor has used it to charge several women whose infants test positive for meth immediately after birth.  The prosecutor tries to sell the law as being about insuring maternal and fetal health:

 ”We are doing this for the sole purpose of trying to make sure both the mother and the child have a healthy pregnancy,” he said.  ”We’re not trying to throw these women in jail. That’s absolutely not the goal of it.” 

Putting aside for a moment the fact that he is in fact throwing women in jail, this statement is totally wrongheaded.  Expert after expert has asserted and article after article has shown that jailing pregnant women and new moms who struggle with addiction does not ensure healthy pregnancies — in fact, it has just the opposite effect.  Prosecutions like this one drive pregnant women away from seeking the prenatal care that is so vital to their health and that of their fetuses.  Feminist Law Profs has a laundry list of just some of the negative consequences of these prosecutions:

They deter women from getting drug treatment; they restrict reproductive freedom by incentivizing abortion; they are inevitably selectively enforced against the poor and minority; they remove the focus from the very real problem of lack of prenatal care for poor pregnant women; they take the attention off proven risks to fetuses such as fetal alcohol syndrome and tobacco use during pregnancy; they put hospitals and medical care providers in an adversarial relationship with their patients; they lead to absurd results, such as prosecuting women for not getting prenatal care or having a miscarriage; and so forth.

And yet, the prosecutions continue. Despite the fact that drug treatment programs are less expensive than incarceration and are more effective and ensuring healthy pregnancies and helping women get off drugs, treatment continues to be offered very little and funded even less. In some states, there is not a single drug treatment program that is aimed at or has space for a pregnant woman or mother and children. Given all these facts, the Alabama prosecutor’s pledge of purpose becomes even more laughable. The facts are out there to prove that his prosecutions are counterproductive. But at least the healthy child routine provides a good facade to mask the other, less socially acceptable, purposes of these prosecutions.  If this prosecutor (or the others out there pushing punishment on pregnant women and mothers) really cared about making sure pregnancies resulted in healthy births, they’d have halted the prosecutions yesterday.  

Earlier this week, the Eighth Circuit Court of Appeals heard oral arguments on a case out of Missouri about the right of pregnant women who are incarcerated to be transported to secure an abortion.  Here’s some background on the case, via Rachel Roth at RH Reality Check:

The case arose when a young woman beginning a four-year sentence in Missouri was told she could not have an abortion. This represented a change in policy for the prison; in the past, women who could come up with the money were taken to a clinic for abortion care. Then in 2005, with a new anti-choice governor in office, the prison administration and the Department of Corrections reversed course, adopting a policy that categorically denies women access to abortion.

After weeks of being rebuffed by prison officials, “Jane Roe” wrote to the ACLU and eventually sued the prison. The court’s decision in her favor was straightforward, because the Supreme Court has been very clear that while states can enact policies to make getting an abortion more difficult, they cannot ban abortion altogether, as the Missouri prison had done. The Supreme Court has also made it clear that people do not automatically lose all of their constitutional rights when they cross the prison threshold. Jails and prisons must have a legitimate, prison-related reason for restricting such rights, and forcing women to bear children does not further any legitimate goal related to prison administration or crime control. Calling the decision an offense to its values, the Missouri government has asked the court of appeals to reinstate its unconstitutional policy.

It’s a funny thing when a state argues that a woman should lose her constitutionally protected right to abortion when she is incarcerated. While it’s true that people who are in jail in the U.S. do lose many rights that are ancillary to liberty, they retain the rights guaranteed them by the Constitution. This is clear in the realms of the First Amendment and the Eighth Amendment, for example (though the Supreme Court yesterday declined t0 hear a case about the censorship of outgoing inmate mail). While there are sometimes legit penological considerations that allow the government to restrict a constitutional right more than might be possible for the general public, that logic doesn’t fly here:  the state prison system regularly transports women over three hours away for a cosmetology exam.  This case is not about making the prison system run more smoothly; it’s about picking on the most vulnerable women in society in an attempt to further restrict the abortion rights of all.  Let’s hope the Eighth Circuit upholds the lower court’s decision and reminds the states that people who are incarcerated retain all of the constitutional rights they had before entering prison, including those related to their reproductive health.