In July 2019, at approximately four months pregnant, Lauren Kent sent a message to her jail’s private medical contractor that read: “PLEASE IM BEGGING YOU I NEED A DOCTOR.”1 In the four weeks leading up to that message, Kent repeatedly informed guards, employees, and medical staff members of her increasingly severe abdominal pain and vaginal bleeding.2 In response, nurses disparaged and belittled Kent and threatened to punish her by moving her to an increased security wing.3 Two days after sending her final message, Kent miscarried.4
Kent’s story reflects a larger reality of egregious reproductive injustice within the criminal legal system. The inadequate and inhumane prenatal care Kent received is just one example of numerous violations of reproductive justice: from forced sterilization of incarcerated individuals5 to almost immediate post-birth separation of infant and incarcerated parent,6 the American carceral state systematically fails to respect reproductive rights and human dignity.
Today, in a post-Dobbs7 world, legal advocates for reproductive justice8 focus considerable time, energy, and resources on protecting legal access to abortion.9 These efforts are meaningful and necessary to achieve reproductive justice in the United States. However, reproductive justice extends beyond abortion rights. Legal advocacy and scholarship must look at the overall state of reproductive rights and identify
larger systems of oppression that threaten bodily autonomy and perpetuate reproductive injustices.10 Looking broadly at the landscape of reproductive justice in the United States, this Note asserts that the American carceral state is one such system that must be attended to and understood as part of the effort to protect and attain reproductive justice.11 This Note argues that until legal advocates reckon with the past and present intersections of reproductive rights and the criminal legal system, reproductive justice cannot be achieved.
The incompatibility of reproductive justice and incarceration is too often overlooked in reproductive rights advocacy.12 This connection between incarceration and reproductive injustice in the United States extends from the original sin of slavery13 through to the complex legal landscape of today, marked by systemic violations of autonomy and access to essential healthcare. The injustices of the criminal legal system disproportionately impact marginalized communities and undermine the fundamental principles of bodily autonomy.14 Given that these injustices are innate to the modern criminal legal system, true reproductive justice cannot be achieved within it. And until there is a reckoning with how criminal law relates to and affects reproductive rights, legal advocates for abortion cannot fully realize reproductive justice.
In Part I, this Note briefly discusses the historical connection between the criminal legal system and reproductive coercion in the United States. Part II then considers how the current criminal legal system violates principles of reproductive justice. Finally, Part III looks forward and proposes a framework to challenge these entrenched systems of oppression. While this Note focuses on the carceral system and its suppression of reproductive rights, this analysis operates against the backdrop of the broader reproductive justice movement and its current state.
I. Reproductive Injustice: A Brief History
The history of reproductive coercion in the United States reveals a fundamental connection between reproductive injustice and the criminal legal system.15 Just as the modern criminal legal system traces its roots to chattel slavery,16 so too does reproductive injustice.17 The coevolution of these systems of oppression continued through the Jim Crow Era,18 persisted during the so-called “War on Drugs,”19 and continues into the modern post-Dobbs era.20 While modern oppression of reproductive rights via the criminal legal system manifests acutely today, a brief look at the intertwined histories of reproductive injustice and slavery reveals that this reckoning is centuries in the making.
A. Chattel Slavery and the Antebellum South
Subjugation of reproductive rights via the criminal legal system can be traced to the nation’s inception.21 The survival of American chattel slavery depended upon pervasive violations of reproductive justice.22 Women who were enslaved faced egregious and systemic violations of their reproductive autonomy, enduring forced and manipulated marriages and sexual abuse from white enslavers, amongst other violations of bodily autonomy.23 Throughout the antebellum South, white enslavers and supremacists understood that incarceration and reproductive coercion created a path to economic and political control.24 Following the prohibition of the international slave trade in 1808, increases in slave labor in the American South relied fully upon the reproduction of the existing enslaved population,25 further solidifying enslavers’ dependence upon coerced and controlled reproduction.26 As a result, enslaved individuals possessed few, if any, rights to control their reproductive decisions, from the decision of when to engage in sexual activity, to whether to become pregnant in the first instance.27
Understanding slavery’s dependence upon forced reproduction, states enacted, and courts upheld, laws that further entrenched the reproductive abuse of enslaved individuals.28 In 1662, Virginia adopted the legal doctrine of partus sequitur ventrem under which the slave status of a child was the same as their mother’s.29 In most states, rape laws did not apply to assaults of an enslaved person; rape statutes either explicitly excluded Black women from the list of individuals protected by the law, or in the case of race-neutral statutes, courts would decline to enforce the law when Black women were sexually assaulted.30 Under this legal regime, enslavers could sexually assault enslaved women without legal repercussions, and any resulting children were, by law, enslaved.31 Enslavers also brought suit to rescind contractual sales of enslaved individuals when they discovered that an enslaved woman’s inability to bear children had been concealed prior to sale.32 In at least one instance, a court found a breach of contract when an enslaved woman was found to be “incapable of bearing children without endangering her life.”33 Such cases reveal the economic importance of control over the Black body and reproduction in the antebellum South,34 part of a long history of co-opting law to force reproduction under the system of chattel slavery.
Not only do the modern carceral state and reproductive injustice share a root in slavery, but criminal law was also leveraged against enslaved individuals to reinforce reproductive control. Enslaved individuals historically faced criminal penalties including incarceration and the death penalty for asserting their reproductive autonomy, including avoiding or stopping coercive and abusive sexual contact,35 and attempting to raise their children with dignity.36 During the same era, white women enjoyed significantly more reproductive autonomy than their Black counterparts did, including the ability to access an abortion prior to quickening — “the point at which fetal movement could be perceived.”37 White women’s ability to exercise some level of reproductive autonomy while enslaved women were criminally punished for exercising those same rights demonstrates how the slavery and carceral systems often played a critical role in perpetuating reproductive injustice. And yet, slavery and incarceration are often excluded from discussions about, and movements seeking to further, reproductive justice.38
B. Post–Civil War America and Jim Crow
After the Civil War, the carceral system and the social antichoice movement grew and evolved side by side. Following formal emancipation, white Americans viewed the transition of previously enslaved Black Americans into the job market and larger society as a threat to the political and economic power of white America.39 In response, white supremacists turned toward reproductive control through societal and cultural means, promoting theories of eugenics which encouraged white reproduction to neutralize the threat of the newly freed Black population.40
These attempts to control reproduction also often relied on criminalization.41 White physicians advocated for strict midwifery bans to assuage fears that Black and Indigenous midwives threatened the hegemony of the white medical profession.42 These bans left many people of color without access to essential gynecological care, making reproduction more dangerous for Black and Indigenous people.43 These regulations, and the eugenicist theories on which they were based, sought to exert political and economic control; by promoting white reproduction and withholding essential care, the movement hoped to neutralize the threat that newly freed Black Americans posed to the status quo.44
To increase white reproduction, physicians also advocated for regulations criminalizing abortion and contraceptives.45 Following the Civil War, a decades-long anti-abortion movement began. By 1910, abortion was illegal across the United States.46 Furthermore, federal “chastity laws” such as the Comstock Act of 187347 made it a crime to disseminate birth control, or information about birth control or pregnancy termination, either by mail or across state lines.48 The universal regulation and criminalization of reproductive rights after chattel slavery evinces the continued coevolution of the carceral state and reproductive injustice in the United States.
In addition to universal restrictions on abortion, people in carceral settings — primarily Americans of color and recently emancipated individuals — suffered reproductive injustices within the carceral system. Incarceration, particularly the incarceration of women, grew significantly after the Civil War under the pretense of thwarting immorality and punishing behavior perceived as unbecoming.49 The increased incarceration of women acted as a useful tool for white supremacists to control and suppress reproduction through incapacitation.50 During the Jim Crow Era, many states allowed — and in some cases legally required — the forced sterilization of incarcerated individuals.51 Incarcerated individuals also faced “horrific gynecological experiment[ation],” and “physical and sexual abuse.”52
C. The War on Drugs
As the Jim Crow Era ended with the passage of the Civil and Voting Rights Acts in 196453 and 1965,54 the modern pro-choice movement began to gain momentum.55 The movement, again championed primarily by white medical professionals, focused on the right to abortion.56 However, while advocates successfully pushed state-level abortion reform in the late 1960s and early 1970s,57 President Richard Nixon simultaneously unveiled a set of punitive policies under the banner of the “War on Drugs.”58 This so-called “war” utilized the carceral system to target primarily Black people and was rooted in historical trends of anti-drug sentiment and the falsification of drug use statistics.59 Building on President Nixon’s punitive drug policies, President Ronald Reagan reinvigorated the War on Drugs after taking office in 1981.60 Under the Reagan Administration, Congress “increased federal drug sentences, . . . introduced ‘mandatory minimum sentences for simple possession,’” and targeted communities of color.61 The racist weaponization of the criminal legal system, a hallmark of the War on Drugs, imposed new systemic restrictions on reproductive rights.62
During the racialized War on Drugs, abortion advocates often overlooked the reproductive injustices faced by incarcerated individuals; instead, they focused on the push for national abortion rights, culminating in the Roe63 decision.64 As such, while advocates successfully shaped aspects of the legal landscape,65 a parallel narrative unfolded — one that starkly contradicted the ideals of autonomy and bodily integrity championed by reproductive rights activists. As Roe solidified reproductive rights for some women, many people of color and low-income individuals faced increased criminalization and, as a result, additional reproductive injustices.66 Pregnant people of color faced reproductive injustice as federal and state governments passed new laws punishing or penalizing individuals for “actions interpreted as harmful to their own pregnancies,” such as the use of drugs while pregnant.67 Governments pushed to incarcerate pregnant people for drug use,68 and American media spread unsupported stories of pregnant people’s cocaine use resulting in fetal harm.69
Such legal and social trends highlight a continued interconnection between reproductive oppression and the carceral system. Reproductive rights advocates often overlook the historical and current reproductive injustices that chattel slavery, Jim Crow, and the War on Drugs perpetuated.70 The exclusion of these injustices from the reproductive rights conversation, coupled with the pro-choice movement’s primary focus on abortion and contraception, has left a critical gap in scholarly discourse and in legal advocacy.
II. The Modern Carceral System and Reproductive Injustice
The carceral system’s connection with reproductive injustice is not merely a historical phenomenon.71 The modern carceral system has historical roots in racism: from chattel slavery, to Jim Crow, to the War on Drugs, up until today.72 To achieve reproductive justice in the United States, legal advocates must both understand the perpetuation of such injustices via the criminal legal system and reckon with the interconnectedness of these systems of oppression. Today, incarcerated individuals, and those who face the threat of incarceration, enjoy fewer rights, face poorer health outcomes, and have less access to resources that bolster reproductive autonomy.73
The carceral state perpetuates state-sanctioned violations of reproductive rights.74 This Part focuses first on injustices faced by incarcerated individuals and those within the criminal legal system. The Part then highlights the ways in which the growing threat of criminalization further inhibits reproductive justice. Today, the criminal legal system acts as a conduit for state-sanctioned violations of reproductive rights, a trend legal advocates for abortion must confront to realize reproductive justice.
A. Within the Carceral State
Within the carceral system, individuals are subject to a myriad of reproductive injustices, ranging from forced sterilization to the denial of adequate maternal and reproductive healthcare.75 These injustices are often overlooked by legal advocates for reproductive rights.76 To achieve reproductive justice, it is imperative that these systemic violations be brought into the reproductive rights discourse.
1. The Fundamental Decision to Have Children. — Incarceration itself interferes with reproductive justice because it “interferes with people’s abilities to decide if and when to have children.”77 The reproductive injustice of incarceration has been acknowledged and nevertheless upheld by courts.78 In 2002, the Ninth Circuit held that while certain constitutional rights, such as the right to marry,79 follow an individual even when they are incarcerated, the rights to “bearing and rearing of children[] are superseded by the fact of confinement.”80
Discrete reforms cannot adequately rectify the affront to reproductive justice the carceral system poses. Because female “fertility . . . declines with age,” and because “most incarcerated [people] are confined during their childbearing years,” incarceration can, and often does, “preclude[] reproduction.”81 This core violation of reproductive rights existed in carceral settings long before the Court reversed Roe, and long before Roe itself.
2. Forced and Coerced Sterilization. — As the Court stated in Skinner v. Oklahoma,82 an individual who is sterilized against their will suffers “irreparable injury . . . [and] is forever deprived of a basic liberty.”83 Despite this assertion, the Court did not wholly reject states’ power to authorize sterilization in furtherance of state policy.84 Indeed, thirty-one states and Washington, D.C. legally allow forced, permanent sterilization.85 Forced sterilizations occurred as recently as 2011 in state prisons86 and 2020 in immigration detention centers, often by physicians who failed to disclose what procedures they performed and without adequate informed consent.87 Communities of color, specifically those individuals of color who are incarcerated or are facing incarceration, disproportionately suffer under such sterilization laws.88
A series of egregious, recent forced sterilizations are rooted in modern reliance on a 1909 California law, which permitted forced sterilization of certain incarcerated individuals perceived to suffer from mental illnesses that could be genetically transmitted.89 While the law was repealed in 1979 — after a reported 20,000 sterilizations90 — the practice continued. An estimated 150 incarcerated individuals in California were sterilized after 2006, with some forced sterilizations performed as recently as 2011.91 At twenty-four, Kelli Dillon, who was incarcerated at Central California Women’s Facility, was told that she was undergoing an operation to biopsy potentially cancerous cysts.92 The doctor instead removed “her ovaries and part of her fallopian tubes,” but told Dillon he only “took out some cysts” and that she could still have children.93 Dillon realized she was sterilized a year later, when a lawyer requested her medical records.94 After Dillon brought suit against the California Department of Corrections and Rehabilitation for her forcible sterilization, the Center for Investigative Reporting launched an investigation.95 The investigation found that the most individuals sterilized in accordance with the 1909 law were women of color, whom the staff “deemed likely to be incarcerated again.”96 One doctor justified his actions by describing his desire to save the state and taxpayers money by reducing the need for welfare via forced sterilization.97 Similar injustices occurred to incarcerated individuals in North Carolina and Virginia, and all three states maintain outreach and compensation programs to notify and compensate victims and families.98
Similarly, forced sterilization within immigration incarceration facilities continues.99 People who have immigrated to the United States frequently find themselves in carceral immigration centers, which mirror the conditions of federal and state prisons across the United States.100 In 2020, a whistleblower report filed by a nurse at a carceral immigration facility in Ocilla, Georgia alleged that the facility had performed invasive, nonconsensual hysterectomies on immigrant women detained by ICE.101 Following the report, testimony from other women corroborated the story and revealed a broader pattern of reproductive injustice within ICE facilities.102 Although they endured violations of reproductive justice, those detained and sterilized by ICE face significant barriers to asserting their legal rights and seeking remedies.103 In addition to legal barriers, many individuals in such circumstances face language barriers and coercion, including deportation as a punishment for reporting.104
Ultimately, despite credible, modern reports of forced sterilization in carceral settings, such injustices are often considered relics of the past and are rarely centered within the landscape of reproductive rights.105 Legal scholarship and modern reporting often detail the “history” of sterilization in carceral systems.106 In addition, legal advocacy surrounding sterilization is often “viewed as distinct from . . . traditional reproductive rights concerns.”107 Courts too often tend to consider sterilization, particularly carceral sterilization, as distinct from other reproductive rights.108 This disjunction between sterilization and other reproductive injustices, coupled with the lack of attention given to incarcerated individuals’ unique vulnerability, creates a gap in modern reproductive rights advocacy and scholarship and presents an opportunity for the movement to address an ongoing wrong.
3. Access to Contraception and Abortion. — Even before Dobbs, the right to affirmatively access contraception and abortion healthcare featured heavily in the Supreme Court’s jurisprudence concerning reproductive rights.109 Despite jurisprudence affirming the constitutional right to abortion for incarcerated women,110 incarcerated individuals are often denied access to contraceptives and abortion through legal restrictions and institutional barriers.111 Discussions of these injustices appear infrequently in scholarly literature and legal advocacy112 and should be reckoned with as a part of the reproductive justice movement.
Institutional barriers permeate the carceral system, even in states where abortion and contraception are not restricted by law.113 Although a majority of incarcerated women express a desire to begin contraception before release, most prisons and jails fail to offer contraceptive access.114 Many are not equipped to enable continued use of pre-incarceration contraceptive methods.115 Especially for those individuals “in short stay jails with unpredictable release dates,” there is a heightened “risk of unplanned pregnancy upon [release and] reentry.”116 While media attention paid to threats to contraception has increased,117 advocates and scholars often fail to acknowledge that even before Dobbs, incarcerated women were regularly denied access to contraceptive care.118
Barriers to accessing abortion during incarceration are similarly overlooked. Since before Dobbs, the accessibility of abortion for an individual in a federal or state prison was contingent on the facility’s geographic location, potentially resulting in the denial of abortion services.119 This patchwork abortion care regime underscores the arbitrariness and lack of uniformity in reproductive healthcare provision innate to the federal prison system. Moreover, multiple states require incarcerated individuals to bear financial responsibility for the procedure and related security measures.120 Some states simply label the procedure as “elective” and require prisoners to “pay[] for transportation[,] . . . security[,] . . . [and] the abortion itself.”121 Such incarceration-specific hurdles contribute to a broader context of reproductive injustice in the United States, where restrictive laws already curtail abortion access.
4. Conditions of Pregnancy. — In 2016, national statistics on pregnancy and incarceration were collected by the Pregnancy in Prisons Statistics Project.122 In 2016 alone, nearly 1,400 pregnant people were admitted to prisons, leading to “753 live births” while incarcerated.123 Today, pregnant incarcerated individuals face numerous challenges, including inadequate and untimely care, shackling in violation of obstetric best practices, and inhumane separation of infants from parents.124 All this, despite the Court’s holding that healthcare while incarcerated, including healthcare during pregnancy, is a constitutional right.125
Despite the Court’s affirmation of the constitutional right to healthcare for those in custody, “many jails and prisons provide substandard, minimal, or even dangerous prenatal care.”126 There is no governing body that ensures correctional facilities adhere to a prescribed set of essential healthcare services, including adequate pregnancy care.127 While guidelines exist, the absence of standardized regulations, oversight, and avenues for legal recourse in carceral healthcare contributes significantly to the variability in prenatal care provided to incarcerated individuals.128 Recall Lauren Kent, the woman whose miscarriage symptoms were ignored for weeks.129 She is one of many incarcerated individuals who are unable to receive basic maternal healthcare. Similar stories report pregnant individuals deprived of caloric and nutritional needs, laboring alone in cells after begging for help, and being refused post-labor medical care.130
Aside from neglectful and inadequate care, pregnant individuals in custody are often subjected to practices that violate both their dignity and “the core principles of reproductive justice,”131 including unnecessary shackling and solitary confinement.132 The practice of shackling incarcerated pregnant individuals during labor, birth, and postpartum presents substantial dangers to maternal and fetal well-being.133 Despite federal- and state-level prohibitions, as well as international restrictions on the shackling of pregnant individuals, data indicate that prisons vary in compliance and consistency.134 Shackling while pregnant elevates the risk of falls, compromising safety for both the pregnant individual and the fetus.135 The practice of restraining through shackling can also impede blood circulation for pregnant individuals, heightening the potential for complications, including fatal blood clots.136 Moreover, the psychological impact of being physically restrained during pregnancy contributes to increased stress and anxiety, negatively affecting the well-being of both the parent and the developing fetus.137 A lack of oversight and accountability among custody officers, insufficient awareness of the laws within hospitals, and punitive attitudes toward pregnant incarcerated individuals allow these violative acts to persist, inhibiting reproductive justice and violating the bodily autonomy of pregnant individuals in carceral settings.138
Finally, the systematic separation of incarcerated mothers from their newborns is a pervasive practice throughout the carceral system that violates reproductive dignity.139 The practice raises myriad medical concerns for parent and child, disrupting critical early bonding opportunities between parents and newborns, including denying both parties the benefits of breastfeeding.140 The perpetuation of this separation within carceral settings undermines the fundamental right to parent in a dignified manner.141 The routine deprivation of essential parent-child bonding not only exacerbates the challenges of reentry for the parent but also hampers the infant’s potential for healthy emotional attachment,142 perpetuating a cycle of intergenerational reproductive injustice.143
Incarcerated pregnant individuals are often ignored in discussions of reproductive rights and advocacy.144 The lack of engagement with carceral reproductive injustice is exacerbated by the decentralized nature of the carceral system and the according lack of reliable national data.145 Addressing reproductive injustices within the carceral system requires integrating them into the larger discourse on reproductive rights, demanding accountability and recordkeeping, and fighting to ensure that the legal guarantee of healthcare while incarcerated is meaningfully upheld.
B. A Growing Threat of Criminalization
In addition to the pervasive reproductive injustices that characterize the carceral system, another threat looms: the co-opting of the criminal legal system to enforce regulations that curtail reproductive rights. Criminal prosecution, and the threat thereof, are longstanding, state-sanctioned methods for curbing reproductive rights and suppressing bodily autonomy.146 The antichoice movement’s increasing reliance on the criminal legal system to further its goals has been fast-tracked by Dobbs, which opened the door to the possibility of a prosecutorial presumption of fetal personhood, or at least some fetal rights.147
From the criminalization of pregnancy outcomes to the targeting of healthcare providers who perform abortions, the criminal legal system is being weaponized to police and punish reproductive choices.148 This legal trend presents an obstacle to achieving reproductive justice, as the threat of criminal punishment is increasingly utilized to suppress individuals’ reproductive autonomy. Growing criminalization exacerbates existing inequalities within the carceral system and perpetuates a cycle of reproductive oppression, disproportionately impacting marginalized communities.149 Accompanying and furthering the trend toward criminalization is the rise of fetal protection laws and fetal personhood theories, which often act as the legal underpinning for draconian restrictions on abortion and pregnancy.150 Scholars and advocates have not yet fully addressed the increasing criminalization of reproductive rights.151 In failing to address this reality, scholars and advocates overlook both an emergent threat to reproductive autonomy and its connection to the historical tradition of hampering reproductive rights via the criminal legal system.
1. Fetal Personhood. — The fetal personhood theory is a legal framework that defines fetuses as independent people, which thereby attaches full rights and legal remedies to the fetus.152 Laws predicated on this theory often put the rights of the pregnant person in tension with those of their fetus, creating a foundation for restricting reproductive rights and enabling criminal punishment of pregnant people.153
Despite the rejection of fetal personhood at common law,154 the theory gained traction in recent years, even capturing the attention of Supreme Court Justices.155 The concept of fetal personhood is now apparent in many legal regimes through broad definitions of personhood in statutes, the explicit inclusion of fetuses in definitions of personhood, and the inclusion of personhood language in abortion regulations.156 Recently, the Alabama Supreme Court extended fetal personhood to embryos fertilized through in vitro fertilization (IVF), thereby leaving open the possibility of attaching criminal penalties to the disposal of unused fertilized eggs during the IVF process.157
Because fetal personhood laws extend protective rights to fetuses and define fetuses as “separate legal entit[ies]” distinct from the pregnant individuals carrying them, pregnant individuals and healthcare professionals can face criminal prosecution for fetal harm.158 Even statutes that may not intend to assign personhood may allow for the prosecution of pregnant individuals, highlighting the dangers inherent in the rise of fetal personhood within the legal system.159 Legal advocates for reproductive justice must reckon with the increasing potential for the fetal personhood movement to be used as a vehicle to criminalize reproductive rights.
2. Pregnancy Criminalization. — Pregnancy criminalization occurs when an individual is “arrested for reasons related to their pregnancy, or where the terms of their bail, sentencing, or probation are heightened because they became pregnant after being charged with an unrelated crime.”160 Criminalization of pregnancy often combines punitive drug policies with expansive views of personhood to criminally punish pregnant people for behaviors that, absent their pregnancies, would not be criminalized.161 As pregnancy-related arrests soar, predominantly affecting marginalized and financially vulnerable populations,162 advocates face the urgent task of safeguarding reproductive rights from novel and insidious assaults.
Antichoice advocates, empowered by the Dobbs decision, exploit the legal concept of fetal personhood to criminalize a spectrum of actions related to pregnancy, primarily focusing on substance use.163 The surge in pregnancy-related arrests post-Dobbs is not a random occurrence but rather a calculated move to advance an antichoice agenda through legal channels. By framing actions during pregnancy, particularly substance use, as criminal offenses, antichoice advocates intertwine the carceral system and reproductive injustice, leveraging a punitive response to punish and deter basic vindication of reproductive rights.164 These practices capitalize on the vulnerability of pregnant people and their need for familial, communal, and medical support, and often lead pregnant individuals to accept coercive plea deals and pretrial conditions in hopes of avoiding incarceration.165 Legal advocates for reproductive rights must grapple with the weaponization of the criminal legal system to curb reproductive rights.
3. Increasing Threat of Abortion Criminalization. — Reproductive rights are increasingly restricted through the criminalization of abortion, abortion-related travel, and aiding and abetting abortion. Antichoice advocates are utilizing felony charges, civil penalties, and even imprisonment to curtail reproductive justice.166 These laws create uncertainty for healthcare providers regarding the legal boundaries of abortion services and bar access for patients.167 The criminal penalties for illegal abortion vary widely among states, including fines of up to one hundred thousand dollars and lifetime prison sentences.168 Notably, Texas and Oklahoma extended these penalties to those “‘aiding and abetting’ abortion[s],” potentially implicating employers, healthcare insurers, and individuals providing logistical support.169 These laws may also disrupt women’s healthcare by impeding hospital staffing, hindering access to essential medications, and discouraging physicians from providing necessary treatments.170 Wide variation and inconsistency across state laws intensify the challenges for women, providers, and organizations.171
Criminalization is likely to compound other reproductive injustices and create a cascading effect on health outcomes. Criminal prohibitions of abortion set legal foundations for the future criminalization of preventive measures like birth control, adding complexity to the legal connection between reproductive injustice and the criminal legal system.172 Similarly, with the erosion of “a common baseline” of reproductive rights protection post-Dobbs, a “[c]hilling [e]ffect on [w]omen’s [h]ealthcare” is likely.173 At present, reproductive rights scholarship and advocacy often fail to address how criminal law is increasingly leveraged to thwart reproductive justice, and a reckoning with the duality and interconnectedness of these systems of oppression is needed to address these alarming trends.
III. A Reckoning
Reproductive rights advocacy is too often myopically focused on the experience of “middle [and upper] class, heterosexual, white women” untouched by the carceral system, and their “access to abortion and contraception.”174 This focus pushes the experiences of women of color, particularly low-income and incarcerated women of color, to the periphery. In addition, centering contraception and abortion unnecessarily restricts a holistic understanding and addressing of vast reproductive injustices in the United States.175
The future of reproductive justice in the United States faces challenges as antichoice advocates continue to capitalize on the criminal legal system as a tool for restricting and preventing the full exercise of reproductive rights. Reproductive justice cannot be achieved unless the injustices of the criminal legal system are also addressed. Maintaining a narrow focus on the experiences of white women, abortion, and contraception will limit legal advocates’ ability to meaningfully address the interconnectedness of the criminal legal system and reproductive injustice.176 A broader understanding of reproductive justice must look at those systems that perpetuate reproductive injustices, including the criminal legal system and the American carceral state, and how those systems interact with a history of racism and classism.
From the moment of detainment, where individuals are stripped of reproductive autonomy, to the conditions of confinement, where reproductive healthcare is frequently inadequate or denied altogether, the carceral system perpetuates egregious violations of reproductive justice.177 The overpolicing and mass incarceration of Black and brown communities exacerbate these injustices, perpetuating a cycle of reproductive oppression. In addition, a growing trend toward criminalization of pregnancy and abortion risks further entrenching reproductive injustices within the carceral state.178
An investigation of the past and present failures of the American carceral system suggests that any comprehensive approach to reproductive justice must address the injustices of the carceral system head-on, and through an abolitionist approach.179 The reproductive injustices within the American carceral state are vast and cannot be overcome through a reformation of the system. Abolitionist scholars observe that traditional reform measures often perpetuate rather than eradicate inequalities, maintaining oppressive systems under the guise of progress.180 Abolition, however, calls for the complete dismantling of these systems, recognizing that incremental changes only serve to perpetuate injustice.181 By envisioning and actively working toward a society free from systems of control and violence, abolition provides a framework for genuine liberation from reproductive injustices in the modern American carceral system.
For decades, advocates of color have supported a holistic approach to reproductive justice that reimagines community well-being and envisions a system that does not depend on the caging of humans.182 These advocates center the voices and experiences of those most impacted by systems of oppression like incarceration and reproductive injustice, and they proceed with an intersectional lens that looks beyond abortion.183 This approach requires that legal advocates for reproductive justice do not view their work as separate from prison abolition; prisons and the criminal legal system are key perpetuators of reproductive injustice. Addressing the ills of the criminal legal system is not just a project of solidarity, but an essential part of attaining reproductive justice.
Conclusion
The use of incarceration and the criminal legal system to control reproductive rights was a documented practice long before Dobbs.184 But since the overturning of Roe and the rise of laws predicated on the theory of fetal personhood, criminalization in the reproductive rights space is increasing.185 Incarceration removes bodily autonomy from individuals, and antichoice supporters and lawmakers have found this avenue increasingly attractive in controlling those who seek to exercise their bodily autonomy through contraception and abortion. The intersection of abolitionism and abortion rights is rooted in a shared commitment to challenging systemic oppression and upholding individual autonomy, particularly in matters concerning bodily integrity and reproductive choices.
Opposition to the criminalization of reproductive choices is a common thread that binds abolitionist and abortion rights perspectives. Advocates within these movements argue that restrictive abortion laws are emblematic of oppressive structures that extend beyond reproductive rights.186 Abolitionist theory necessarily opposes the criminalization of abortion through the broader lens of dismantling systems that exert control over individuals’ bodies and restrict autonomy via coercion. Reproductive justice advocates ought to follow suit, embracing the abolitionist charge to challenge the American carceral state from the ground up.