Eight years ago, Congress acknowledged the brutal fact of systemic sexual assault behind bars by unanimously passing the Prison Rape Elimination Act (PREA). The Justice Department is now poised to issue final rules to implement the law, which makes federal funding to prisons and jails contingent on improved staff training, availability of medical and psychological services for people who suffer sexual assault, investigations and publicly available data about reported assaults.
But because violence is endemic to imprisonment, some level of sexual violence will persist. And for women, one consequence of sexual violence is pregnancy, especially for those who are forced to endure repeated rapes. More than 200,000 women are imprisoned right now, and many more pass through prisons and jails over the course of a year—each one vulnerable to sexual assault, and to pregnancy resulting from it. Despite the years of hearings, testimony and research, the Justice Department’s PREA rules still fail to protect the reproductive rights and health of women in this situation.
Now that the public comment period has closed, the ball is officially in the Justice Department’s court. But the court of public opinion can still be used to press for stronger standards to “prevent, detect, and respond to” sexual assault behind prison walls.
The Supreme Court has held that women’s constitutional right to make reproductive decisions is twofold: the right to end a pregnancy or to continue it. Women do not lose these basic rights when they cross the prison threshold. But nowhere do the proposed rules explicitly recognize them. The single sentence about pregnancy-related medical care makes no mention of specific services or specific rights. Experience teaches that express guarantees are essential to protect the rights of women in custody—as plenty of examples show.
The standard of care for women who have been raped includes offering emergency contraception, which can prevent pregnancy if taken within 120 hours. The proposed rules do not mention emergency contraception. Instead, they refer to a separate government protocol that deals with sexual assault—and which is currently undergoing revision itself.
In Tampa, Florida, a young woman called the police for help after being raped. The police took her for medical care, which included being given the first dose of emergency contraception, with instructions to take the second dose in twelve hours. But then the police learned of an outstanding warrant, stemming from a juvenile offense, and arrested the woman. Once in custody, a jail worker refused to give her the second dose of her medication. This incident illustrates the need for unambiguous guidance to provide women with emergency contraception.
Because not all women will come forward immediately after an assault, and because emergency contraception does not work 100 percent of the time, some women will become pregnant and decide to have an abortion. But prison and jail officials often obstruct access to abortion, as lawsuits brought by women across the country attest. They do so by withholding information, denying women access to the telephone, imposing bureaucratic hurdles and flatly refusing to take women to a clinic for care. This stonewalling results in women having later abortions—enduring as many as eight weeks of delays—or being forced to continue the pregnancy because the time to obtain an abortion has run out.