Unexpected Consequences: The Constitutional Implications of Federal Prison Policy for Offenders Considering Abortion

33 Pages Posted: 8 May 2009  

Claire Bernice Deason

affiliation not provided to SSRN

Date Written: May 5, 2009

Abstract

As many as 6,000 women are pregnant in prison in the United States. The option of abortion is particularly suited for these women, who struggle with public assistance, drug addiction, or who are at risk of losing their child to the foster system. The Bureau of Prisons policies governing abortion in prison effectively require potentially coercive religious counseling, empower prison administrators to “pass the buck” and control abortion access, and disregard the time constraints associated with pregnancy. Although these federal prison policies are facially constitutional and therefore survive substantive challenges, they are unconstitutional as applied because they deny pregnant offenders the constitutionally protected procedures that should accompany the right to abortion. A simple, albeit surprising, analogy to prison correspondence policies can provide a roadmap for establishing the basic protections of notice and a hearing. These procedural safeguards ensure that incarcerated women have the information they need to make reproductive decisions behind prison walls.

Keywords: abortion, prison, prison abortion, prison pregnancy, incarcerated women, procedural due process

Suggested Citation

Deason, Claire Bernice, Unexpected Consequences: The Constitutional Implications of Federal Prison Policy for Offenders Considering Abortion (May 5, 2009). Minnesota Law Review, Vol. 93, No. 4, 2009. Available at SSRN: https://ssrn.com/abstract=1399553

Claire Bernice Deason (Contact Author)

affiliation not provided to SSRN ( email )

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