Reproductive Health Rights in BOP: What rights can clients invoke by referencing BOP’s policies and procedures?

(Note: Today's post was authored by Kansas FPD Intern Erin Downey, JD Candidate, KU Law 2025. Thank you Erin!)

"There has been limited attention to addressing incarcerated women’s gender-specific health care needs, which may be in part due to the smaller proportion of the incarcerated population that they represent, facilitating their neglect. However, it also relates to the inherently male focus of the system that has allowed women’s needs to be eclipsed or conflated with those of males who are incarcerated."

American College of Obstetricians and Gynecologists’ Committee on Health Care.

There’s no doubt the modern carceral state exacerbates reproductive policing particularly harmful to women of color. Early subjugation of reproductive rights through the criminal legal system can be traced back to chattel slavery, eugenics-motivated contraceptive regulation, and forced sterilization of incarcerated individuals. Today, female-identifying individuals make up approximately 7% of the 152,000 federal individuals incarcerated, with women of color making up a disproportionate subset of this population. Of these individuals, a majority are of reproductive age, mothers, primary caregivers to young children, and incarcerated for nonviolent charges.

Under the Eighth Amendment’s “cruel and unusual punishment” clause, prisons and jails are constitutionally required to provide access to adequate healthcare to incarcerated individuals. Yet, federal and state prisons and jails deny incarcerated folks access to reproductive care ranging from free menstrual products to contraceptive care to pregnancy termination procedures. Carceral institutions determine their own scope of healthcare policies and services, though even existing programs are reportedly not widely implemented. Advocacy pressing for institutional accountability is thus essential in upholding incarcerated individuals’ dignity and health rights. 

The BOP currently lists its reproductive care policy in the Female Offender Manual. Below we summarize issues and policies related to abortion; contraceptives; pregnancy and childbirth; menstrual products; menopause; and preventative care.

Abortion

Issue: Prisons and jails present unique barriers to abortion access due to limitations with geography, finances, staff refusals, and a general lack of awareness of institutional policies. The Dobbs ruling further complicated prison policies by exacerbating a patchwork abortion regime, “underscor[ing] the arbitrariness and lack of uniformity in reproductive healthcare provision innate to the federal system.” Even if individuals can access abortion care, crippling costs averaging between $600-2,000 without insurance or federal aid can lead to significant financial strain on the incarcerated individuals and their supporters.

Policy: For now, elective abortions remain available in the federal carceral system. Under its Birth Control, Pregnancy, Child Placement and Abortion program, the BOP requires the Warden to “offer to provide each pregnant inmate with medical, religious, and social counseling to aid her in making the decision whether to carry the pregnancy to full term or to have an elective abortion.” In turn, the incarcerated individual must sign a written statement affirming their choice to have an abortion. As regulated by the Hyde Amendment, the BOP is only required to pay for “medically necessary” abortions—when the pregnancy presents a danger to the mother’s life or is a result of rape or incest. In all cases, the Bureau may expend funds as part of transportation and escort for the procedure. More recently, however, a BOP spokesperson noted that the abortion policy “has been under review for some time for various reasons” after the Dobbs ruling, suggesting the agency may implement differing policy in the near future. 

Contraceptives

Issue: Incarcerated individuals often have inconsistent access to contraceptives in prison, with statistics suggesting approximately 45% of prisons and jails make contraception available only when deemed “medically necessary.” Further, residual racist practices lead women of color to be particularly vulnerable to coercive contraceptive practices, including sterilization and long-acting reversible contraceptive procedures occurring as recently as 2020.

Policy: BOP policy states that “[m]edical staff shall provide an inmate with advice and consultation about methods for birth control and, where medically appropriate, prescribe and provide methods for birth control.” Importantly, birth control in prison and jail is “ordinarily limited to hormone replacement therapy,” and implanted contraceptives—like intrauterine devices (IUDs)—are not made available. Wider options may be available in Residential Reentry Centers (RRCs).

Pregnancy and Childbirth 

Issue: About 3% of individuals in federal prisons self-report being pregnant when admitted into prison—more become pregnant during incarceration. Due in part to adverse incarceration impacts like stress, poor nutrition, violence, and histories of substance use disorders, pregnant people in prison have greater odds of preterm births, abruption, and antepartum hemorrhaging. Despite nearly universal policies prohibiting shackling during pregnancy and childbirth, the Pregnancy in Prison Statistics Project finds that over half of prisons and jails continue to use restraints during pregnancy, birth, or the postpartum period. Additionally, inconsistent prenatal and postpartum care often lack comprehensive standards, especially if officers act as gatekeepers to “triage…labor symptoms and contact medical personnel.” After giving birth, incarcerated individuals often experience traumatic separation from their newborns, hindering bonding and breastfeeding initiation. Institutional policies further restrict lactation, with few facilities having comprehensive lactation policies, while nursery programs, though beneficial for bonding, have restrictive participation criteria and emphasize incarceration over community-based alternatives.

Policy: The BOP currently presents two programs for offenders who will give birth during their period of incarceration: Mothers and Infants Together (MINT) and Residential Parenting Program (RPP). MINT offers community residential programming aimed to assist incarcerated individuals during the last two months of their pregnancy and, if eligible, up to three months after birth. On the other hand, RPP allows minimum-security incarcerated individuals with less than a 30-month sentence to reside in a supervised environment for up to 30 months. Unfortunately, these programs are not universal and are offered at no more than half of the 10 facilities housing female offenders. If you represent a pregnant client who is likely to be sent to prison, ask the district court to recommend placement in a MINT or RPP facility.

Under Section 301 of the First Step Act of 2018, pregnant incarcerated individuals “shall not be placed in restraints,” unless the individual poses an immediate risk of flight or serious harm to themselves or others; or the individual’s healthcare professional deems restraints appropriate for the individual’s medical safety. Should an individual be restrained under an exception, an official or marshal must submit a written report of the circumstances to the Director of the BOP or USMS within 30 days of restraint.

BOP facilities often do not have on-site obstetricians and gynecologists.

Menstrual Products

Issue: Due in part to biosocial stressors, approximately 1/3 of women experience abnormal periods while incarcerated—well above the experience of 16% of women who are not incarcerated but living under the federal poverty line. In locations without readily available menstrual products, asking officers for products can often be dehumanizing and humiliating, and open incarcerated individuals up to abuse or coercive situations. Without adequate access to supplies, women often “generate alternative solutions, which have resulted in unsanitary and unsafe outcomes,” such as homemade tampons leading to vaginal infections.

Policy: Under the First Step Act, all menstruating incarcerated individuals in federal prisons and jails have access to tampons, pads, and panty liners free of charge. BOP policy specifically states that staff may not ration these products, and that “in general population, all products must be made available in common areas, either a bathroom or accessible area of the housing unit…at all times of the day, and [individuals] may keep them in their cell, consistent with personal property requirements.” For individuals in restricted housing, products must be available for issuance on a daily basis. Additionally, “[m]issue of items for other than intended purposes is not cause for withholding access, but is managed via routine disciplinary procedures.”

Menopause

Issue: Projections of the incarcerated population suggest that adults aged 55 and older will make up more than 1/3 of the U.S. prison system by 2030. While little data has been collected detailing women’s aging experiences while incarcerated, qualitative interviews suggest that women who experience menopause while incarcerated struggled to access adequate supplies, common remedies, and medical care to address their symptoms or pursue pain relief.

Policy: Currently, the BOP does not detail any policy in its handbook specifically related to menopause. Though the Bureau has policy related to some age-specific mental health screening and physical health testing, lack of age-specific care almost certainly exacerbates menopausal symptoms like insomnia, fatigue, mood changes, urinary incontinence, abnormal uterine bleeding, and osteoporosis during incarceration.

Preventative Care

Issue: Incarcerated people experience more irregular bleeding and sexually transmitted diseases, often with limited access to individualized preventative care. Correspondingly, incarcerated individuals exhibit higher rates of cervical and breast cancer. 

Policy: BOP policy indicates newly incarcerated individuals can have STD and pregnancy testing if clinically indicated. As part of initial physical exams, physicians are also to review gynecological and obstetrical history, conduct a clinical breast and pelvic examination, and—when clinically indicated—a Pap smear. The Medical Director’s current published guidance comments that sentenced individuals are to be routinely provided Pap smears every 3-5 years. Incarcerated individuals generally have the right to refuse medical treatment, though some circuits have limited the right if a prison regulation is reasonably related to legitimate penological interests.

Though liberty in choosing physicians or location of services is restricted in prison and jail, BOP policy at least proposes decent—though not comprehensive—reproductive healthcare. Notably, the policy seems to do little to address biosocial stressors inherent in carceral facilities which exacerbate high rates of chronic disease, substance abuse disorder, mental illness, and trauma as compared to the general public. At the very least, however, understanding recent BOP policies and guidelines can empower incarcerated individuals and legal representation to advocate for their rights and hold staff accountable.

* If you think a violation has taken place against you, inform your counselor. You may be asked to file a grievance formally through the BOP’s administrative remedy program, which is listed here.

** LGBTQ+ individuals make up a considerable proportion of the individuals incarcerated at BOP female prisons, with significantly increased exposure to harmful experiences in prisons. While not thoroughly discussed in this post, the BOP’s program statement regarding issues specific to trans individuals can be found here.