Limiting Access to Emergency Contraception May Violate Constitutional Rights

In one case, Tampa police arrested a 21-year old rape victim, R.W., after she called the police to report her rape. Abbie Vansickle, “Police Extend Apology to Rape Victim,” Tampa Bay Times (Jan. 31, 2007). R.W. was a pre-med student, and was walking to her car at night when she was sexually assaulted. She went to a rape-crisis center, where staff gave her emergency contraception. R.W. took the first dose at the center, and kept the second dose to take 12 hours later. Then R.W. called the police to investigate the rape. Soon after arrival, the police learned that R.W. had an outstanding warrant, apparently for failure to pay restitution for a juvenile offense. They handcuffed her, and took her to jail. After she was arrested, a guard confiscated her second pill, and R.W. spent the night in jail. The next morning, she asked the jail nurse, Michele Spinelli, to give her a second dose of emergency contraception. Spinelli refused, claiming it was against her religious beliefs. Although R.W. did not get pregnant, she sued Spinelli under section 1983, claiming a Fourteenth Amendment due-process violation of her right to privacy. R.W. v. Spinelli, No. 8:11-CV-1326-EAK-AEP, 2012 WL 727805, at *1 (M.D. Fla. Mar. 6, 2012). The court denied Spinelli’s motion for summary judgment. See also Marimer Matos, “Rape Victim Can Sue for Denied Contraception,” Courthouse News Serv. (June 25, 2013).

In several cases, incarcerated women have claimed that prison officials violated Fourteenth Amendment due process, and the Eighth Amendment prohibition of cruel and unusual punishment, by denying or delaying abortions. See, e.g., Roe v. Crawford, 514 F.3d 789, 800 (8th Cir. 2008); Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987); Bryant v. Maffucci, 729 F. Supp. 319, 321 (S.D.N.Y. 1990), aff’d, 923 F.2d 979 (2d Cir. 1991). However, R.W. seems to be the first case in which a detained woman has claimed federal constitutional protection against a correctional institution’s refusal to provide her with emergency contraception.

Incarcerated Women Face Significant Risk of Unintended Pregnancy
A recent study surveyed women within 24 hours of arrest. Sufin et al., “Emergency Contraception for Newly Arrested Women: Evidence for an Unrecognized Public Health Opportunity,” 87(2) J. Urban Health 244–53 (Mar. 2010) (internal citation omitted). The study excluded women arrested for sex work, as well as women past reproductive age. Twenty-nine percent of the women surveyed were “eligible” for emergency contraception. “Eligibility” meant that they were not pregnant or sterilized, not currently using a reliable method of birth control, and had had vaginal intercourse with a man without an intact condom in the previous five days. Of these “eligible” women, almost half were interested in taking emergency contraception if available.Another study of incarcerated women found that while 84 percent had been sexually active within the three months prior to their arrest, only 28 percent had consistently used a contraceptive method, despite not wanting to become pregnant. JG Clarke, et al., “Reproductive Health Care and Family Planning Needs Among Incarcerated Women,” 96 Am. J. Pub. Health 834–39 (2006). Over 80 percent overall also had a history of unwanted pregnancy.

Sexual Assault Presents Significant Unwanted-Pregnancy Risk for Incarcerated Women
Sexual assault may also cause pregnancy, and women may be arrested shortly after a sexual assault. In 2002, 36 percent of incarcerated women reported that they had been sexually abused prior to incarceration, while 55 percent of incarcerated women reported that they had been physically abused, sexually abused, or both prior to incarceration. Further, among women who had previously been abused, 68 percent had been abused by an intimate partner. Bureau of Justice Statistics Special Report Profile of Jail Inmates, U.S. Dep’t of Justice, 10–11 (2002). A 1999 study at Bedford Hills Correctional Facility for Women showed higher rates of abuse: 75 percent reported physical abuse by an intimate partner in adulthood and 59 percent reported sexual abuse during childhood or adolescence. Angela Browne, “Prevalence and Severity of Lifetime Physical and Sexual Victimization Among Incarcerated Women,” 22 Int’l J.L. & Psychiatry 301, 313 (1999). Adjusting for underreporting, the rates may be higher.

Further, women face significant risk of sexual assault during incarceration. Amnesty International found a total of 2,298 reports of U.S. prison staff sexual misconduct in 2004 alone. Of these, over half of those cases involved female inmates as victims, despite the fact that women represent only about 10 percent of the United States prison population overall. Amnesty Int’l USA, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women 15 (2001). See also U.S. Dep’t of Justice, Office of the Inspector General: Deterring Staff Sexual Abuse of Federal Inmates 3 (2005) (noting that sexual abuse of female inmates is both underreported and alarmingly prevalent). Some reports have found that as many as a quarter of incarcerated women are sexually assaulted. Nicole Summer, “Powerless in Prison: Sexual Abuse Against Incarcerated Women,” RH Reality Check (Jan. 17, 2008). The risk for pregnancy after rape is approximately six to seven percent. See, e.g., MM Holmes et. al, “Rape-related Pregnancy: Estimates and Descriptive Characteristics From a National Sample of Women,” 175 Am. J. Obstet. Gynecol. 320–24 (1996).

Quick Access to Emergency Contraception Is Critical
Emergency contraception works by preventing ovulation and possible implantation, and can be effective up to five days after intercourse. It is not an abortifacient. Emergency contraception has minimal contraindications, and pills are available over the counter in the United States to people aged 17 and older. It usually consists of two pills; the first dose is taken as soon as possible, up to 120 hours after intercourse. The second dose is taken 12 hours after the first dose.Emergency contraception can reduce pregnancy risk by 85 percent. However, timely access to emergency contraception after assault is critical for its effectiveness. Judith Linden & Jasmine Mathews, “Emergency Contraception After Rape.” Medscape (Apr 29, 2014) [login required]. As time elapses, efficacy decreases.

Prisons and Jails Lack Adequate Emergency Contraception Policies
Only four percent of correctional health providers who responded to a national survey stated that emergency contraception is even available at their facility. Sufin et al., (internal citation omitted). In New York, no county except New York City had a written policy on providing emergency contraception. Bedford reported that it did not provide emergency contraception, and that doctors there would not write a prescription for it, even if a woman requested it. Two other women’s correctional facilities, Albion and Taconic, reported that while they did not stock emergency contraception, doctors could prescribe it and administer the medicine the day after writing the prescription. None of the three prisons had actually dispensed emergency contraception within the past 10 years.

Inadequate Emergency Contraception Policies Leave Prisons and Jails Vulnerable to Lawsuits
Prison and jail policies that inhibit access to emergency contraception may violate women’s due-process and Eighth Amendment rights. Such violations leave correctional facilities vulnerable to section 1983 lawsuits. The Eighth Amendment prohibits “cruel and unusual punishments.” A denial of medical care to an incarcerated person by a correctional facility constitutes cruel and unusual punishment when there is “[d]eliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). Although the Eighth Amendment only provides protection post-conviction, suspects who are pre-conviction have similar rights to medical care under due process. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

The Third Circuit has found that pregnancy-related medical care, including non-therapeutic abortions, is a serious medical need. Monmouth, 834 F.2d at 348–49. With regard to the subjective component of the violation, “deliberate indifference” means recklessly disregarding a substantial risk of serious harm to an incarcerated person. Farmer, 511 U.S. at 836. A prison official imposing cruel and unusual punishment must (1) be aware of the facts from which he or she could draw an inference that there is a substantial risk of serious harm, and (2) actually draw that inference and believe that the incarcerated person is at substantial risk of serious harm. Actual knowledge of the risk can be inferred if the risk was obvious.

The Third Circuit has found that the deliberate-indifference standard was met where a burdensome court-order release procedure created a barrier for obtaining nontherapeutic abortions, and the prison officials failed to even attempt to minimize the delays in access. Monmouth, 834 F.2d at 347. Therefore, the desire to terminate a pregnancy can be a serious medical need. Thus, it seems likely that causing an inmate to become pregnant by denying her emergency contraception could constitute deliberate indifference to a serious medical need. However, it appears that no case has addressed this under the Eighth Amendment. R.W. appears to be the only case addressing it under the Fourteenth Amendment.

Women denied or provided delayed access to emergency contraception likely can prevail on 42 U.S.C. § 1983 claims, under the Eighth Amendment (if post-conviction) or due process (if pre-conviction). The result of withholding or delaying emergency contraception is an unwanted pregnancy. If a nontherapeutic abortion is a serious medical need, surely emergency contraception is. Even nonmedical personnel know that pregnancy can result from intercourse, particularly if unprotected. Thus, a court may hold the risk to be obvious. If a correctional official knows that a female inmate has been sexually assaulted, that official ignores an obvious risk of unwanted pregnancy if he or she refuses to permit the woman to take emergency contraception. The same is true when police arrest a rape victim, and withhold emergency contraception, as in R.W. Therefore, inhibiting access to emergency contraception in correctional facilities violates women’s rights and exposes jails and prisons to additional expenses, including litigation. These institutions should adopt legally sound and medically appropriate policies on emergency contraception, and ensure compliance with such policies.

_{Renée Dudek will graduate from Rutgers Law School in 2017 and clerk for a federal trial court in Philadelphia, Pennsylvania.}

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