In the immediate aftermath of Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court overturned the constitutional right to an abortion, many organizers and service providers began making plans to ensure that people who become pregnant have access to reproductive healthcare. Advocates rightly argue that where someone lives should not determine their liberty or personal autonomy when it comes to accessing healthcare and making decisions about their bodies. However, a critical element missing from this conversation — ironically, given the focus on liberty and autonomy — is that many women and people who become pregnant will not be able to travel for these services because they are incarcerated, on probation, or on parole.
Incarceration, by default, limits autonomy and restricts movement; limitations on travel and requirements to attend frequent meetings, agree to supervision, or submit behavioral reports also mean that many, if not most, people on probation or parole will also be unable to travel. Add in the compounding intersections of childcare, poverty, work schedules, and skyrocketing prices for fuel or air travel and it becomes clear just how much of an impediment these so-called “workarounds” are for millions of American women and people who become pregnant.
Sadly, this is not new; it is merely the latest example of the criminal legal system’s long history of criminalizing the reproductive rights of women and people who become pregnant throughout prosecution, jail and supervision conditions that punish reproductive health. Those under supervision experience economic disadvantages and health inequities that are greater than those faced by the general public; research shows they display higher rates of chronic physical and mental health conditions, and nearly half of them experience either a miscarriage or an abortion in their lifetime. These disparities are even wider for people of color under supervision.
We understand systems of incarceration and the many restrictions on liberty that come with them because we have witnessed them firsthand. One of us, Vivian, spent three years in a state prison, where she met women who had to endure labor and delivery in restraints and then hand their infants over to strangers soon after. While on supervision, a compassionate parole officer extended her curfew, allowing Vivian the freedom to work and participate in an education program. That compassion resulted in a career as both an expert and an executive supporting reentry efforts, with a particular emphasis on Black women and girls. The other, David, oversaw Alameda County’s Probation Department as chief probation officer, and dealt with more than 20,000 people on probation. He also served as deputy commissioner of New York City’s Department of Probation and has since served as a senior executive, facilitator and expert on probation, anti-recidivism and youth justice. In our careers, we have seen the consequences of restricting autonomy and liberty and the ultimate dehumanization that such restrictions lead to.
We also know that while the Supreme Court’s decision in Dobbs to overturn Roe will have dire consequences for women and people who become pregnant under supervision, it is only one of many decisions that has led or will lead to suffering for people who encounter our criminal legal system every day. While this particular decision will increase surveillance, prosecution and punishment for women and people who become pregnant — limiting their well-being, economic mobility and liberty in the process — our broader criminal legal system has been doing that for years to poor people, disenfranchised people, and Black and Brown people.
Access to abortion services is just one example of a far more wide-ranging problem when it comes to accessing healthcare while incarcerated, on probation or on parole. Agencies should consider modifying supervision conditions wherever possible, including waiving restrictions on travel to other states for medical procedures. Given that we know there is no link between abortion and public safety, system and agency administrators should also enact policies that ensure noncompliance with abortion bans (allowing someone on parole to travel to another state to receive an abortion, for example) will not be considered a violation of supervision.
More fundamentally, this is a moment to reassess the intensity of supervision for women and people who become pregnant, most of whom are low-risk. The majority of them should be on administrative, not active, supervision. And while reassessing risk, we should also consider the false binary of risk assessments that too often prioritize the status quo and create harmful and unnecessary barriers that increase, rather than reduce, recidivism — itself another form of societal risk.
The issue of reproductive choice is the most immediate example of how restrictions on liberty and autonomy that have long been imposed on those under the control of the criminal legal system are expanding to society at large. The opposite should be true: to make our society more safe, fair, free and prosperous, we should be increasing access, opportunity and autonomy to all, not reducing it. While realizing that vision will be a challenge that requires many small steps and improvements, immediately addressing issues of equity like access to care that most acutely impact the most marginalized people is a step in the right direction.
We call on agencies to move forward, not backward, to ensure the progress that still remains is not lost.
Reverend Vivian D. Nixon is writer in residence at Columbia Justice Lab’s Square One Project and former executive director of College & Community Fellowship. David Muhammad is the executive director of the National Institute for Criminal Justice Reform.