The GOP’s Hidden Ban on Prison Abortions

Buried in the just-passed bill to keep the government open through next fall is a provision that denies abortion funds for prisoners. How is that constitutional?

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Ed O’Keefe of the Washington Post summarized the recent spending bill, and caught a generally-ignored tidbit on abortion. “The bill once again bans using federal funding to perform most abortions; blocks the use of local and federal funding for abortions in the District of Columbia; and blocks the use of federal dollars for abortions for federal prisoners,” he wrote.

The DC item speaks for itself. It illustrates once again Congress’s hypocrisy on issues of fiscal federalism and local control.

The item on federal prisoners was disturbing in a different way. It deserves more attention than it is likely to receive.

Following the Post’s weblinks, I found the following language:


SEC. 202. None of the funds appropriated by this title shall be available to pay for an abortion, except where the life of the mother would be endangered if the fetus were carried to term, or in the case of rape: Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this section shall be null and void.

SEC. 203. None of the funds appropriated under this 16 title shall be used to require any person to perform, or facilitate in any way the performance of, any abortion.

SEC. 204. Nothing in the preceding section shall remove the obligation of the Director of the Bureau of Prisons to provide escort services necessary for a female inmate to receive such service outside the Federal facility: Provided, That nothing in this section in any way diminishes the effect of section 203 intended to address the philosophical beliefs of individual employees of the Bureau of Prisons.

It’s nice to know that the “philosophical beliefs of individual employees of the Bureau of Prisons” are so well protected. But what about the philosophical beliefs of thousands of incarcerated pregnant women (PDF) across the United States? Roughly one out of every 33 women who enter the federal prison system is pregnant. Whatever she has done, each of these women has a constitutional right to terminate her pregnancy if that is what she chooses to do. Her right to autonomy, privacy, and bodily integrity is not abrogated because she has been convicted of a federal crime or is sent to prison.

And let’s be real. The language of this bill is a de facto abortion ban for most pregnant federal prisoners. Similar language has been included in spending bills since 1987.

I am surprised that this measure is even constitutional. Indeed it probably isn’t. Note the preemptive language: “Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this section shall be null and void.”

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As the University of Michigan’s Sam Bagenstos explained over email, when government takes a woman into custody, and accordingly deprives her of the opportunity to pursue her own ends, it assumes a corresponding obligation to facilitate her exercise of her constitutional rights. This government obligation is limited by practical considerations of safety and security. That’s not what’s at issue here. A legislature can’t just decide that it doesn’t like the exercise of a particular constitutional right and then block prisoners’ ability to effectively exercise it.

Whatever the constitutional arguments, it’s pathetic that such questions even arise. Given everything else going on, this particular provision won’t face political heat. Which politician wants to defend federally-subsidized abortions for convicted criminals?

That’s too bad. It is pretty barbaric to force women to carry their pregnancies to term—particularly women who are locked up within our federal prison system. This is especially barbaric when one considers the actual circumstances of these women. Fewer women are shackled during labor and delivery (PDF), though this still occurs. A much larger number are immediately separated from their infants, who are typically placed in some form of out-of-home care.

Some of these women have committed ugly crimes. Others haven’t. Less than eight percent of sentenced federal women prisoners are there for violent crimes or weapon offenses. Fifty-seven percent are incarcerated for drug offenses.

Their crimes are really beside the point. Everyone is entitled to be treated with basic decency and respect. I don’t for a moment believe that politicians would impose such harsh measures on a more-advantaged group of women. Yet here we are, dispensing another dollop of inhumanity to some of the most troubled and despised people in America.