Georgia remains a state hostile to women’s health. Nowhere is this more notable than the treatment of incarcerated women and, in particular, pregnant incarcerated women. Georgia’s predilection for punishment and underinvestment in health resources remain two sides of the same coin. The Dobbs v. Jackson Women’s Health Organization decision has thrust reproductive rights into center stage for the November presidential election. Many health care workers have begun to understand that these rights cannot be viewed in a silo but are deeply intertwined with the legal system, as well as one’s wealth and race.
This realization is not new. It echoes many intersectional analyses made historically by Black women. Though home to less than 5% of the world’s population, the United States confines more than 20% of those incarcerated globally. The American criminal legal system punishes more people under harsher conditions for longer periods of time than any other democratic nation on earth. Georgia sits atop this carceral catastrophe.
Credit: Fluence Photography
Credit: Fluence Photography
Credit: Handout
Credit: Handout
Pregnant women, incarceration and reproductive justice
Since 1980, the rate of female incarceration has outpaced that of men, rising 800%. Nearly all of the 200,000 incarcerated women have a history of trauma, which is often exacerbated by the mistreatment and abuse that define jails and prisons. In 2017, an estimated 55,000 pregnant women were jailed, a number that is likely much higher. If reproductive justice is defined as “the right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities,” then incarceration is antithetical to each of these fundamental tenets.
Right to maintain personal bodily autonomy
Carceral spaces are inherently premised on control. There exists a near total lack of privacy, even in health care spaces. Some of the most extreme violations of bodily autonomy occur when incarcerated persons are repeatedly subjected to the widely condemned and dehumanizing practice of strip searches, a form of state-sanctioned sexual violence. Transport to and from various facilities introduces another practice widely considered inhumane: Shackling. Shackling, or the use of metal restraints around the wrists, body and ankles, has been shown to negatively impact physical and mental health. The First Step Act, passed in 2018, prohibits the shackling of pregnant people in federal custody. Unfortunately, the benefits of this policy are not far reaching, as most are confined in local jails or state prisons. A Senate subcommittee investigation, including Georgia’s Jon Ossoff, identified hundreds of cases of abuse of pregnant women in prisons, including repeated violations of shackling policies.
Have child or not have children
The right to be pregnant or not to be pregnant has come to the forefront for all women since the Dobbs decision. Because of the total or partial abortion bans enacted in many states, many women must travel great distances for reproductive health care. This is extremely difficult for women on probation or parole, as they must request a travel permit, a process that can be logistically challenging and slow enough to ultimately impact available treatment options. Those who travel without approval run the risk of incarceration, as do those who help them, especially as states seek to implement abortion trafficking laws. For incarcerated pregnant people, the ability to cross state lines is essentially impossible, and the ability to manage one’s pregnancy is limited. Correctional facilities are not required to adhere to existing guidelines and standards. Failure to administer medications or inappropriate administration of medications is common. Substance use disorders, for example, are significantly undertreated in incarcerated patients despite medical guidelines and lawsuits stating that withholding such treatment amounts to a violation of the Americans with Disabilities Act. It is clear that the defining traits of carceral spaces stand in direct opposition to a therapeutic environment.
Parent children in safe and sustainable community
Most incarcerated women are primary caregivers whose children are thrust into a world of uncertainty. For those able to maintain custody of their children, the substantial barriers to reentering communities created by thousands of collateral consequences drive a cycle of poverty and marginalization. For pregnant incarcerated women, few are informed of their induction date because of a hypothetical security threat. For similar reasons, family and other support persons are not permitted in the room during the delivery. In fact, the family is usually only notified of the birth when called on for guardianship. National physician organizations endorse continual access to newborns for mothers after delivery. This period has proven critical to bonding, breastfeeding and the health of both parties. In practice, most women receive little to no time with their newborn. The separation from their child, whether after an hour or a few days, is uniquely cruel and utterly devastating. Many of these children are funneled into foster care, where 1 in 5 later enter the criminal legal system themselves. In sum, incarceration drives adverse childhood experiences leading to worse health outcomes and intergenerational criminal legal involvement.
A new paradigm of justice for women
The first step forward involves data collection. A patchwork of county, city, state and federal systems make any carceral data collection difficult, and federal incentives along with oversight and sanctions for noncompliance are likely required to see significant change. However, it is not enough to simply count the number of confined pregnant women. External medical oversight is critical to improving the conditions for those incarcerated today. This would enhance both transparency and accountability, ensuring long neglected needs such as treatment for substance use disorders are managed according to guidelines. These improvements collectively represent harm reduction, as carceral environments undermine much of what makes medical care meaningful to patients. Health care is predicated on healing, safety and autonomy — values fundamentally opposed by incarceration.
Ultimately, jails and prisons are not and will never be appropriate environments for pregnant people. Some jurisdictions, including Colorado and Minnesota, have sought alternative sentencing. These programs allow for the diversion of incarcerated pregnant persons into community settings for the duration of their pregnancies and varying lengths of time postpartum. These programs ultimately fall short as mothers typically must return to carceral facilities and family separation endures.
We have the capacity to envision more than a dystopian future of women prisons and jail cells rebranded as mother baby units. There are limitless possibilities that would better support reproductive justice and public safety. Our goal cannot be a slightly better cage. If we take seriously that most social determinants of health are also determinants of crime, we can demand investments based around prevention of harm. We must not lose sight of the fact that nearly all women in the carceral system have first been victimized themselves — both interpersonally and structurally. Maintaining social structures that perpetuate marginalization and criminalization distracts from real solutions and far superior investments.
Carceral spaces undermine the health of individuals, families and communities. Likewise, data proves incarceration is often counterproductive to public safety. These facts make clear that the status quo and subsequent devastation brought by the caging of mothers is indefensible. The compounding of trauma and separation of families is an ongoing, widespread assault to the larger goals of reproductive justice. What should now be clear to all is that fighting for reproductive justice is likewise a project of health justice and racial justice. By rejecting carceral spaces for pregnant women, perhaps the door can be opened to redefining justice for all.
Megan Wasson is a student at Emory University School of Medicine student and future obstetrician and gynecologist. Mark Spencer is an assistant professor of medicine at Emory University and executive director of Stop Criminalization Of Our Patients.
