Federal Bureau of Prisons policy says that any female prisoner whose pregnancy is the result of rape or incest, or that threatens her life, can get a government-funded abortion with all the medical care and counseling that goes along with that traumatic event. Pregnant prisoners can also request an abortion, if they have the money to pay for it, and the BOP will help them get one.
Will the Supreme Court`s Overturning of Roe v. Wade Change BOP Abortion Policy?
When state law forbids abortion, even for cases of incest or rape, or when the mother`s life is in danger, this creates a dilemma for the BOP. The BOP houses female prisoners all over the country, but most federal prisoners are held in the states that have vowed to outlaw abortion when the Supreme Court overturns Roe v. Wade.
And now it`s happened. The Supreme Court overturned 50+ years of precedent on June 24, 2022, that had protected the right to abortion. This may mean that a federal prisoner has the right to an abortion under BOP policy and federal law, but only if the state where she`s held by the BOP will allow it.
Federal Law Guarantees Abortion Access for Federal Prisoners
The warden shall offer to provide each pregnant inmate with medical, religious, and social counseling to aid her in making the decision whether to carry the pregnancy to full term or to have an elective abortion.
BOP PS5200.02 sec 3.8, 28 CFR 551.23
The BOP`s policy repeats this law, verbatim, and adds the following text:
The Bureau assumes all costs associated with the abortion procedure only when the life of the mother would be endangered if the fetus is carried to term, or in the case of rape or incest. In all other cases non-bureau funds must be used to pay for any abortion procedure, or else the planned abortion may not be performed. In all cases, however, whether the bureau pays for the abortion or not, the bureau may expend funds to escort the inmate to a facility outside the institution to receive the procedure.
If it shocks anyone that the BOP would provide abortion to services to its female prisoners, then they`re unaware that many government agencies provide abortion services to females in their care or custody. For example, the Dept. of Homeland Security provides abortion services to immigration detainees. See J.D. v. Azar, 925 F.3d 1291 (D.C. Cir. 2019) (citing current DHS policy).
Pregnant Prisoners are at the Mercy of the BOP
Regardless of how much money the prisoner might have, she can`t travel to a state where abortions are still legal. She`s stuck in BOP custody with a baby she didn`t ask for, and a pregnancy that might even kill her — a pregnancy that she will be forced to live (or die) with. In fact, the BOP`s medical center for female prisoners, FMC Carswell, is in Ft. Worth, TX. That`s a state intent on preventing abortions of all kinds after the fall of Roe v. Wade.
But BOP policy doesn`t require staff to follow state law. “Staff shall have knowledge of, and shall be guided by, applicable federal and state laws and regulations,” it says. Will abortions remain a viable option for federal prisoner after the overturning of Roe v. Wade? Only if the BOP decides to ignore the laws of the states that have banned abortions, which it can do.
But what`s reality? Even when abortion was legal in every state, the BOP would drag its feet to provide an abortion until the prisoner was too far along and then it was too late to get one. See Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991) (detailing the BOP`s delays but upholding dismissal of lawsuit because there was no “clearly established” right to an abortion in prison).
Something to chew on while people debate the fallout of the Supreme Court`s decision today.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a federal litigation consultant with the Zoukis Consulting Group. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.