The United States has the highest rate of maternal mortality and morbidity among higher-income countries, and those rates have been on the rise. It also holds the second highest rate in the world when it comes to incarceration for women. According to a 2024 Government Accountability Office (GAO) report, between 4 and 5% of women report being pregnant at the time of incarceration.[1] However, federal agencies have limited information on pregnant people who are incarcerated, as neither the Bureau of Justice Statistics nor the U.S. Department of Health and Human Services regularly collects comprehensive data on this population. Moreover, while the Supreme Court has upheld the principle that people who are incarcerated have a constitutional right to adequate physical and mental health care, there is no mandated national standard or guidance governing the care of pregnant people who are incarcerated.[2]
As such, there is a wide level of variance in care and services between facilities, with some providing comprehensive and compassionate maternal care, and others providing abysmal care and limited maternal services. In recent years, advocates in some states have helped enact legislation that specifically targets expansions in health services for pregnant, postpartum, and post-pregnancy people who are incarcerated. Much of this legislation aligns with recommendations from the 2024 GAO report.
Some of the state legislation proactively mandates maternal services. For example, in Oregon, HB 2535 requires the State Department of Corrections to provide doulas services at Coffee Creek Correctional Facility, the only women’s prison in the state, for any adults in custody who are pregnant or who have given birth in the last year. The law also prevents shackling during labor, childbirth, and postpartum recovery, and requires that the facility provide access to breastfeeding support and enrollment in a breastfeeding program. Similarly, S3530, the New Jersey Incarcerated Women’s Protection Act, includes a number of provisions for women who are incarcerated, including providing doula services during labor and childbirth.
Other legislation permits access to services rather than mandates it. In Washington, SB 5182 requires that the Department of Corrections make “reasonable accommodations” for midwifery or doula services for people who are incarcerated, and who are pregnant or who have given birth in the last six weeks. The legislation does not, however, mandate or otherwise provide coverage of midwifery or doula services.
In other instances, state legislation aims to secure minimum standards of care for pregnant, postpartum, and post-pregnancy people who are incarcerated. Virginia’s HB860 requires the state entity responsible for local and regional jails to set lactation policies. The legislation specifies certain best practices, such as deference to medical professionals regarding the care and treatment of the birthing person, as well as postpartum contact and breastfeeding of the infant.
Some incarcerated individuals who are pregnant may have a substance use disorder (SUD) that requires additional attention, care, and protection. Various bills have been introduced requiring informed consent before testing pregnant and postpartum people and their newborns for substances. States have also proposed and enacted safe harbor plans (provides pregnant persons with a SUD safe harbor from prosecution if they seek treatment for their condition) and more compassionate responses for pregnant people with SUDs that do not further criminalization, such as recommending the individual be enrolled in a recovery or other behavioral health program rather than be subjected to investigation, arrest, or prosecution.
Several states are also utilizing Medicaid Reentry 1115 Demonstration Waivers to improve health care access for pregnant, postpartum, or post-pregnancy people who are incarcerated. Medicaid Reentry 1115 Waivers allow carceral facilities to receive federal funds to cover, at minimum, case management services, Medication-Assisted Treatment (MAT), and a 30-day supply of all prescription medications immediately upon release, to incarcerated individuals for a limited duration of time prior to their release. States can and have been approved to expand beyond these services by also providing family planning services and community health worker services, i.e. New Mexico’s reentry waiver. States have flexibility in determining who would be eligible to receive these services prior to their release, but in most states, pregnant individuals who are incarcerated are eligible. For example, California’s reentry waiver determined that incarcerated adults who are pregnant are eligible to receive services, while Pennsylvania expanded eligibility to include both incarcerated pregnant individuals and individuals who are 12 months postpartum.
As a society, the U.S. is a long way away from ensuring that pregnant, postpartum, and post-pregnancy people who are incarcerated receive the health care that they need, with dignity.[3] At the same time, it is clear from the flurry of legislative and administrative activity in recent years, that improving the health services and conditions for pregnant people who are incarcerated is an area of critical concern for advocates and policymakers alike.
[1] NHeLP strives to use gender inclusive language to accurately reflect the scope of people with various reproductive and sexual health care needs and related experiences. However, in this article we employ “women” when necessary to accurately reference legal terms.
[2] However, note that there are national standards and guidance recommended by health care organizations and associations, such as the National Commission on Correctional Health Care, the American Congress of Obstetricians and Gynecologists, and the American Public Health Association, on minimum policies and practices correctional facilities should implement to meet the needs of incarcerated pregnant people.
[3] Note that with the Administration’s drastic ramp-up of ICE enforcement, we are also seeing an alarming increase in the number of pregnant, postpartum, and post-pregnancy people, as well as young children, in immigration detention, where there have been distressing reports of abuse and mistreatment, and correspondingly little accountability or enforcement.
