Journalist and author Victoria Law joins host Rafa Kidvai to discuss the harrowing experiences of incarcerated pregnant people, exemplified by the story of K. Winston, who was denied an abortion in an Ohio jail. They delve into the systemic barriers to reproductive care in prisons, the intersection of incarceration and reproductive justice, and the urgent need to address these hidden injustices.
If you have questions about your legal rights or access to abortion, go to the Repro Legal Helpline or call 844-868-2812. If you are being criminalized for something that happened during a pregnancy, go to Repro Legal Defense Fund to learn more.
Rafa Kidvai: This is No Body Criminalized: How the State Controls Our Bodies, Families, and Communities. I'm Rafa Kidvai, director of the Repro Legal Defense Fund at If/When/How. On our podcast, we talk with experts, activists, and advocates whose daily work intersects with reproductive justice and the state's targeting of marginalized communities.
The founding mothers of reproductive justice in the United States define the term as the human rights to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.
You will hear us restate the shared commitment throughout our interviews because regardless of the issues guests focus on, that is ultimately the world we all intend to create.
Our guest today is Victoria Law. Victoria is a freelance journalist that frequently writes about the intersections between mass incarceration, gender, and resistance. She's also the author of the forthcoming book, Corridors of Contagion: How The Pandemic Exposed the Cruelties of Incarceration.
We started our conversation talking about an article she'd written about nineteen-year-old Kay Winston's, inability to get an abortion while incarcerated.
Victoria Law: Kay Winston was incarcerated in 2014 in an Ohio County jail. The jail staff had planned to X-Ray her, and that was when they told her, "We can't do the X-ray because you're pregnant, go back to your housing unit." And that was how she found out that she was pregnant.
She was 19 years old at the time. She was a full-time college student and she already knew that her life was disrupted by having to spend 90 days in jail. And she knew that under Ohio law she had a right to this procedure. So she attempted to assert that right during her first visit to the jail's doctor and said, "I don't want to continue this pregnancy. How can I get an abortion?"
The doctor said that because she had been sentenced to only 90 days, the jail would not provide her with the option to get an abortion, but by the time she would be released, she would be in her second trimester and passed Ohio's gestational limit for abortion care.
Basically, she was forced to carry this pregnancy to term because the jail refused to provide her with an abortion. So she was sent back to her housing unit and shortly after placed on a housing unit for pregnant people in the jail where she spent the rest of her jail sentence.
Rafa Kidvai: The prison that Kay was in has already previously faced legal action for denying someone an abortion. So it wasn't like they didn't have notice about this issue. It's not like they hadn't put a plan in place. So this really exemplifies that this story isn't an exception to the rule or a one-off accident, but really just symptomatic of a larger problem.
And really in this particular case shows that this prison / slash jail actually had a commitment to ensuring that people don't get the treatment that they need.
Victoria Law: Yes.
Rafa Kidvai: Can you share a little bit about what you think the larger problem is and how this story is symptomatic of a larger problem?
Victoria Law: Yes. I want to emphasize to listeners that what happened to Kay Winston happened in 2014, which was years before the Supreme Court stopped decision. This was at a time in which abortion was legal in all 50 states, and you did not automatically lose your right to abortion just because you were incarcerated.
What this story exemplifies is the double stigma of both abortion and incarceration. The fact that people often feel reluctant to talk about abortion, to ask about abortion, and then when they are incarcerated, there are greater obstacles placed to their access to abortion or even information about abortion as well.
We know about what happened to Kay Winston because she was so appalled by what happened to her that she continues to speak out about this even nine, 10 years later. We don't know how many other people might have had similar scenarios happen when they were arrested and incarcerated and chose not to speak out.
What we do know about abortion behind bars is very limited. There was a study done by the advocacy and research on Reproductive Wellness of Incarcerated People or RWIP, which is a group of medical professionals that examined abortion access or birth outcomes in jails and prisons across the nation.
What they found was that in the one year between 2016 and 2017 years in which abortion was legal in all 50 states in some shape or form, only 11 out of nearly 1,400 pregnancies behind bars ended in abortion. Compare this to the United States, which has an average of 11.2 abortions per 1,000 women.
Rafa Kidvai: Wow.
Victoria Law: So what we can draw from that is that people may be denied abortions. People may not know that their right to access an abortion does not disappear when they're arrested.
One of the findings they found that many of the women said that even if they had not initially wanted an abortion or sought an abortion, when they found out they were pregnant, jail and prison conditions were so horrific that later on in their pregnancies it made them wish that they had gotten abortions.
Rafa Kidvai: Wow. So while we don't know exactly how many people are being denied an abortion, what we do know for certain is that it's a substantial percentage of people that are being forced to remain pregnant while incarcerated. I'm just wondering what care are people offered when they're pregnant, if it's not the abortion that they wanted?
Victoria Law: Care is perhaps a stretch when we are talking about what happens, what is offered in most jails and prisons. Healthcare is often grossly negligent, inadequate, and sometimes life-threatening in general. And then reproductive healthcare is even more inadequate, less accessible, and sometimes life-threatening or miscarriage and stillbirth-inducing.
So we have to remember that when we think about the fact that jails and prisons may be blocking people's rights to access abortion, there are also environments in which people cannot have safe and healthy pregnancies.
Rafa Kidvai: It feels very much like a slap in the face to say we hold pregnant people to a different standard and in terms of how they're supposed to care for themselves. In fact, we would go so far as to punish a pregnant person if they didn't meet that standard. And here we are as the state actually causing harm and violence to a pregnant person.
Victoria Law: Yes.
Rafa Kidvai: In this particular instance, Kay served a short sentence.
Victoria Law: Yes.
Rafa Kidvai: But what I'm thinking about is all the people who are serving beyond the length of their pregnancy, what does that abortion denial mean for them?
Victoria Law: I mean, the abortion denial means that they have to carry the pregnancy to term. Under these conditions that I just described, many states do not prohibit shackling, which is putting handcuffs, a belly chain. Which listeners who ride bicycles and have to lock up their bicycles, I imagine something as heavy as your bicycle chain around your belly when you are pregnant, and leg irons, which basically clasp your feet together anytime that they are taken out of the jail or prison.
This is for security reasons, but there are very few exceptions for when a person is pregnant. About 40 states now have some legislation that says, "Thou shalt not shackle, when a person is in active labor delivery or postpartum recovery."
But many of these states do not have laws that cover what happens if you are not actively in labor. Or if the guard who is the one who makes the decision about whether to shackle you, does not believe that you are in active labor and thinks that you are just quote unquote, "Faking it," to go to the hospital or does not care to follow this law, which is what happened in New York State even after a law prohibiting shackling was passed.
And then people who give birth while incarcerated in most states get to spend between 48 hours and 72 hours with their newborn. And then they are brought back to the prison and their newborn is sent off hopefully to live with family members, but sometimes sent off to foster care.
This person is returned to prison with very little postpartum aftercare, whether it be in terms of postpartum medical follow-ups or even counseling to say, "Hey, you had to give up your baby after two to three days. You just went through a life-changing experience, and now here you are back in prison not knowing when you are going to next see your infant."
Rafa Kidvai: That kind of cruelty and pain is probably part of what people are trying to evade when they want abortion care in the first place because they know what's in their future and they know that what's going to happen to them is just so violent.
One of the things that you mentioned was, and I'm really glad that you mentioned this, is that Kay's abortion denial happened before Roe was overturned. How has the Dobbs decision and changing legal landscape impacted incarcerated people's ability to access abortion?
Victoria Law: It has impacted incarcerated people's ability tremendously. Even before Dobbs, as we see in Kay Winston's case, people often faced barriers to obtaining abortions.
In Nebraska, a few years before the Dobbs decision, an incarcerated woman in Nebraska went to court and successfully won her right to obtain an abortion. She had to pay for the procedure, she had to pay for the staff time for the staff that were going to accompany her to the clinic or medical center where the abortion happened. But she was able to obtain that abortion because abortion was not illegal In Nebraska.
Since the Dobbs decision states have criminalized abortion, which means that in places like Texas and Oklahoma where abortion is now illegal, you do not have any legal standing to go to court to try to access an abortion. There is no legal standing to even do that.
Even before Dobbs, many incarcerated people did not have the wherewithal to go to court. But the Dobbs decision closes the door for women and pregnant people who are incarcerated in states that have now banned abortion.
Rafa Kidvai: So in conversations about how to get people the abortion, they need folks who are under the control of the state, like people who are incarcerated or on parole or under immigration detention are often overlooked. How would you like to see our movement integrate them into our visioning of the future?
Victoria Law: One of the major things the movement can do is recognize and talk about the fact that pregnant people are incarcerated. There's approximately 4% of people who enter women's jails and prisons do so while they are pregnant. So I think that that is an astonishing statistic.
I mean, there's about 191,000 women and girls incarcerated in the US, in prisons, in jails, in juvenile detention facilities, in immigration detention. If approximately 4% are pregnant, this means that there is a lot of work to do to combat all of these reproductive injustices that we just talked about. So including them in that conversation is a big first step. Don't ignore them because they're locked away and they're out of sight, out of mind.
It is also very important to remember the abuses that are allowed to happen inside reverberate and ripple out into the outside world as well. So ways in which state actors can deny access to rights like the right to have an abortion. That right to have that basic control over what happens to your body can also ripple out into the outside world. What happens behind bars does not necessarily stay behind bars.
So I think breaking that double stigma of abortion and incarceration is crucial. We should be re-examining why we are incarcerating so many people in the first place. This includes pregnant people. I mean, we see this with the waves of pregnancy criminalization that have started to happen around the country and these criminalizations are not necessarily new.
We are seeing several states such as Wisconsin having laws like fetal endangerment laws even before Dobbs happened. And now what we're seeing are more pregnant people being locked up or more people being locked up post-pregnancy because of what they did with their bodies while they were pregnant. And so I think also including that in our conversations and working to expand what the focus is.
So the focus is not just you have the right to an abortion if you are outside, if you are able to pay for it, if you're able to take the time off of work, if you're able to travel. But also to say, these rights should not end at the jail or prison door or when you are handcuffed.
Rafa Kidvai: What made you want to do this kind of work and cover these kinds of stories?
Victoria Law: I have been reporting on what is happening in women's jails and prisons for, gosh, 15 years now. More than that, maybe 20 years at the risk of dating myself. And women's incarceration is often under-reported because people in women's jails and prisons often make up about 10% of the prison of the incarcerated population.
So it's not a huge percentage, but when we think about the fact that there's over 191,000 women and girls incarcerated throughout the US, each of these people is a person whose life has been ripped away and are ripped away from their families and communities.
What we're seeing with the incarceration of women and girls or people classified as women and girls is that oftentimes there is specific needs such as reproductive healthcare or the lack of reproductive healthcare is ignored. And going back to what I said earlier, the double stigma of abortion and incarceration means that we know even less about what their access to abortion is.
How many people actually wanted abortions but were unable to get them? How many people wanted abortions but felt that they couldn't ask because they were incarcerated and they thought that they had either lost their right to obtain an abortion or were embarrassed to ask for an abortion? To some jail doctor who may or may not deny their request, but also may be treating them as if they are some sort of piece of garbage because they have been arrested and are locked up.
So one of the things I wanted to do was to shine a light on these issues, and I also wanted to shine a light and amplify the work that currently and formerly incarcerated women are doing around these issues. One of the other things I wanted to do was to really amplify the fact that people who have been impacted are working to change these conditions.
So it's a twofold process to bring these conditions into the larger conversations both about incarceration and say reproductive rights or reproductive justice or reproductive injustice, and then also to highlight the ways in which those who are most impacted are continuing to challenge these conditions.
Rafa Kidvai: When you were asking the question of why are so many people being sent to jail and prison in the first place, it made me think that the statistic that we have that shows the low rate of abortions amongst incarcerated people suggests just how much of a barrier incarceration can be to abortion. And, I guess, what do you see as the solutions to this?
Victoria Law: I think a big first step is to stop locking up people. I mean, we see that people who are pregnant are being locked up, they are being denied these kinds of reproductive healthcare. We see that the United States continues to criminalize people for drug use for what they do with their bodies. We see this criminalization of pregnancy spreading out.
We see that pre-trial detention, which is you are arrested and charged with something, but you have not gone to trial, you have not pled guilty., You are still technically innocent until proven guilty has gone back up after dipping in 2020 when the COVID-19 pandemic first hit.
I mean, there are approximately 84,000 women in jails on any given day. So these are either women who have not been found guilty and are still awaiting their day in court and cannot afford to pay bail, which is an amount of money that you post. Usually an exorbitant amount, say $50,000, $500,000 to ensure that you return to your court date. Not that you are dangerous and that's why you need to pay money, but just to say you will come back to court. Or who are serving short sentences like Kay Winston was.
So I think one of the big solutions is to see this as another reason to end the United States addiction to perpetual punishment and perpetual imprisonment.
Rafa Kidvai: Absolutely. I'm so grateful for the work that incarcerated people have done and the work that you have done to share these stories. What kind of impact do you hope that your stories will have?
Victoria Law: I'm hoping that my stories shed more light on these issues and encourage people who are working around issues to expand what they are working on. To include what is happening inside jails and prisons or for people who are working around incarceration issues to expand to think about what are some of the other issues that specifically affect incarcerated women?
What is happening inside jails and prisons that is not being looked at and how do we link this to larger movements? Because these should not be issues that are considered siloed from each other. What happens outside as we see with the Dobbs decision, impacts so many people inside. And what happens inside, as I mentioned earlier, also can ripple out into what is permissible to do to people on the outside as well.
Rafa Kidvai: So we're at our last question. And as you know, our podcast is called No Body Criminalized. I would love to know, what does no body criminalized, the phrase, mean to you?
Victoria Law: Well, no body criminalized should mean exactly that. No body criminalized. You had asked earlier what can be done around this? And one of my answers was, stop locking people up. We as the United States are addicted to punishment and we are addicted to this idea of perpetual punishment.
We as a nation continue to expand criminalization. Criminalizing what people can do with their bodies, what people can do with this, what actions people can take, what actions people cannot take. So no body criminalized should mean that we should stop criminalizing people. As we have seen, criminalization does not make people safer.
The United States still has the world's highest rate of incarceration, and we are by far not the safest nation. So if criminalization and incarceration actually resulted in safety, we should all be able to walk down the street with $100 bills in our hands and not have to worry about anything and leave our homes unlocked and everything else. That is not the case.
So no body criminalized means stop locking people up and instead start focusing on what people need to have happy and healthy lives in societies and communities that support each other.
Rafa Kidvai: Here are some takeaways from our conversation. The case of Kay Winston illustrates a systemic issue within the criminal legal system where incarcerated individuals are often denied access to abortion and other basic healthcare.
Victoria explains the inadequate healthcare that's provided to pregnant people in jail and prison, and the barriers incarcerated individuals face to accessing necessary medical procedures and treatments. She also thinks the US as a whole has to move away from criminalization and move towards addressing social issues to create a safer and more just society.
Victoria Law is a freelance journalist and author. You can keep up with her work on her website, victoriallaw.net. I'm Rafa Kidvai, the host of this podcast and director of the Repro Legal Defense Fund at If/When/How. The Repro Legal Defense Fund funds bail and strong defenses for people being punished for abortion, miscarriage, stillbirth, and other pregnancy outcomes.
Learn more at reprolegaldefensefund.org. If you have questions about your legal rights, go to reprolegalhelpline.org or call 8448682812. No Body Criminalized is produced by Phantom Center Media and Entertainment for the Repro Legal Defense Fund at If/When/How. Pamela Kirkland is the show's producer. Kojin Tashiro is lead producer and mixed this episode. And remember, keep your community safe and don't talk to cops.