On June 24, 2022, the Supreme Court overturned the 1973 decision Roe v. Wade, abolishing the constitutional right to abortion. After 50 years of federal protections for the right to choose, states will now be left to decide if abortion will be legal and to what degree. In states like New York, the right to abortion is enshrined in law. Legislators even took additional steps this spring to ensure that New York is a safe haven for all. However, across much of the country, it will not take long for a pipeline to form further connecting the pursuit of bodily autonomy to criminalization and mass incarceration. Given existing racial inequities in both healthcare and incarceration, the striking of Roe will impact Black and Brown people acutely.
According to the Guttmacher Institute, it is estimated that 26 states are now “certain or likely” to ban abortion. Multiple are poised to restrict abortion via new legislation or the enforcement of pre-Roe bans. Several states already have so-called “heartbeat bills,” which ban abortion when fetal pole cardiac activity can be detected (often as early as 6 weeks into pregnancy). Meanwhile, thirteen states have “trigger laws” in place, making abortion illegal upon, or shortly after, the striking of Roe v. Wade. For example, under Missouri law, it is now a felony to perform an abortion in circumstances other than a medical emergency. Oklahoma’s trigger law makes abortions punishable by up to 10 years in prison or a $100,000 fine unless they are administered to save the life of a pregnant person.
Though these laws vary in their specifics, such as exceptions and date of implementation, each serves to criminalize abortion. As described in a 2021 report by the National Association of Criminal Defense Lawyers, “if either the trigger bans or ‘heartbeat’ bills are permitted to go into effect, they would open the floodgates to a new wave of arrests, prosecutions, and prison sentences in many states, casting a wide net and ensnarling a wide swath of individuals, many of whom might be only peripherally linked to the abortion itself.” We are now facing that harsh reality head-on.
The criminalization of abortion is and will undoubtedly be racialized. Among states who report race and ethnicity data, the abortion rate among non-Hispanic Black women is 3.4 times higher, and the rate among Hispanic women 1.7 times higher, than among white women. Experts believe that this is the case in part because of longstanding racial and ethnic disparities in access to healthcare and information due to structural inequalities that negatively affect people of color. In addition, per the Washington Post, “of the 22 states that have banned or may now severely limit abortion, many are in the South, which is home to nearly half of the country’s Black population.” The court’s recent decision, resulting in the criminalization of abortion across much of the country, will further entrench inequality, as Black individuals are already incarcerated at disproportionate and staggering rates.
Meanwhile, those in prison and jail in states where abortion is now or will be outlawed will suffer alongside those on the outside. In practice, obtaining an abortion in prison or jail is already grossly inaccessible. Research on reproductive health care in carceral settings reveals that access to abortion on the inside is prohibitively expensive and that many prisons do not have policies in place to guide the process. Lawsuits have even been filed over the outright denial of abortion to incarcerated people.
Without Roe, circumstances will undoubtedly worsen. Workarounds, such as traveling to another state or obtaining medication via mail to induce abortion, will not be accessible to those who are incarcerated. Dr. Carolyn Sufrin, the founder of the Johns Hopkins’ Advocacy and Research on Reproductive Wellness of Incarcerated People (ARRWIP), explains “[People are] going to be forced to carry a pregnancy and be forced to give birth -- that literally will be part of their sentence, their punishment.” This is particularly salient given that 10 of the 26 states that have or are likely to ban abortion in the wake of the Roe decision have the highest rates of women's incarceration in the country.
Kay Winston, who found out she was pregnant upon her incarceration in Ohio, notes that laws that ban abortion based on how far along the pregnancy is can be particularly prohibitive for those who are incarcerated because they face major delays in receiving abortions. Sheriffs can be resistant to paying for transportation for the procedure and Winston herself was told to wait until her release, 60 days later, to have an abortion. Such delays can quickly run out the clock in states where the legality of abortion is time-dependent, something that will be increasingly common in the absence of Roe. People with uteruses behind bars, who already have their rights restricted, are left with little to no options when it comes to abortion.
New York and 15 other states, as well as the District of Columbia, have laws enshrining the right to abortion. Abortion has been legal in New York State since 1970 – three years before Roe v. Wade legalized abortion throughout the country. Since the right to abortion is codified in New York, the recent federal decision will not impact individuals living in New York State. In addition, in 2019 the state made a monumental move to pass the Reproductive Health Act. Under this law, an individual can receive an abortion up to and including at 24 weeks of pregnancy. After 24 weeks, abortion is still an option if a person’s health or pregnancy is at risk.
Abortions were further protected in New York on June 13, 2022, when Governor Kathy Hochul signed into law a package of six bills, ensuring that abortion remains legal, safe, and accessible, not just for New Yorkers but for all individuals that need it. Among other things, the package closes loopholes to ensure that charges cannot be filed against healthcare practitioners who provide reproductive services, like abortion, to people from states that have limited the right to choose. The package also authorizes the state to defend abortion providers from licensure issues and medical malpractice.
New York lawmakers are also working on the Equality Amendment, which would create long-term protections for those seeking reproductive care. Although the right to abortion is already protected in New York, the Equality Amendment clarifies that any state action that discriminates against a person based on a pregnancy outcome is prohibited. The Equality Amendment passed last Friday in a special session endorsement of the amendment. Last week’s win was the first step in a multistep process to amend the State’s constitution. Next year, the amendment must pass the Legislature, as well as gain support from the majority of voters in a public referendum, which could happen as early as 2023.
Turning to access to abortion behind the walls, in New York, under law, correctional facilities are required to inform incarcerated persons of their option to participate in pregnancy counseling services and their right to abortion (N.Y. Correct. Law §611). However, in practice, procuring an abortion whilst incarcerated in New York can be difficult, sometimes even impossible. In 2008, the New York Civil Liberties Union found that only 23% of surveyed county jails “provided for unimpeded access to abortion services” and that under half had policies in place regarding abortion access. The state’s response to the overturning of Roe should also include measures to ensure that the reproductive rights of people in prison and jail are protected.
In 2021, the House of Representatives voted to expand the right to abortion afforded by Roe v. Wade – the vote was 218 in favor and 211 against. The legislation moved to the Senate earlier this year and was blocked by a vote of 46-48. Even though places like New York have enacted legislation to preserve reproductive rights, it is not feasible for a handful of states to serve as safe havens for the entire country. In the absence of Roe v. Wade and without federal law in place to protect the right to abortion, countless are at risk of incarceration and existing racial inequalities will become further entrenched. We need the federal government to act swiftly to shield people who seek, perform, or abet abortions from criminalization and to defend the bodily autonomy of those who are marginalized.
Their body, their choice.