Reproductive justice advocates in the South can rarely depend on laws on the book to safeguard incarcerated pregnant people.
Instead, they’ve learned to create their own aid.
Motherhood Beyond Bars, a reproductive justice group in Georgia, was originally centered on helping pregnant people inside prisons. After finding it increasingly difficult to work internally at the Georgia Department of Corrections, the group decided to devote its resources towards helping inmates from the outside.
“The number of problems and fires we’re trying to put out has kind of exceeded even our expectations of what folks would need our help with,” said Amy Ard, executive director of Motherhood Beyond Bars, or MBB. “You start to notice that the vast majority of the women, the pregnant women that we work with, need treatment instead of incarceration.”
Like those in Motherhood Beyond Bars, other reproductive justice advocates in states with a Republican supermajority, say they find it hard to work on legislative solutions to boost legal protections for incarcerated pregnant people. When the collaboration does work, loopholes often snag actual progress. Consequently, more advocates are seeking alternative ways to support incarcerated mothers and pregnant individuals beyond law-making. They’ve turned to establishing direct connections with prison authorities, funding bail, and offering alternatives such as community service, suspended sentences or restorative programs.
In February, MBB began its first diversion program in Fulton County, which is close to where the organization is based. They offer reproductive health education to pregnant individuals in Fulton County Jail while also pinpointing potential diversion candidates.
In the first six cases where they were able to talk to the women who’ve been arrested, work with their public defender or attorneys, find a placement for them, and present this option to a judge and the prosecutors, Ard says MBB has had a 100 percent success rate in getting women diverted from the prison system.
The latest legal assaults on abortion access have brought an extra layer of scrutiny for activists trying to increase protections for a historically vulnerable population. The issue became even more dire after the Supreme Court decision that overturned Roe v. Wade — an unprecedented legal move that led to half of U.S. states restricting abortion access.
Organizers like Rafa Kidvai, director of the Reproductive Legal Defense Fund, saythe state became even more emboldened to criminalize pregnant people.
“The state will step in and use any of the tools that it has, any law it can throw at people, which we call ‘legal spaghetti,’ and see if anything sticks,” Kidvai said. “After Dobbs, we saw people be much more emboldened about that.”
Some groups have found success in building messaging that would sunset harmful laws. In 2016, SisterReach and other Tennessee-based partners — including ACLU Tennessee — successfully collaborated with national organizers — like SisterSong and National Advocates for Pregnant Women — to take down what was known as the “fetal assault” law, which allowed mothers to be prosecuted for the use of illegal narcotics while pregnant if their child was born exposed to or harmed by drugs. State legislators quickly proposed a new bill that would have eliminated the law’s termination date, but it failed in the House Criminal Justice Subcommittee.
SisterReach founder Cherrise Scott spoke to the first woman arrested under the fetal assault law, and learned that the woman was turned away from detox facilities and unsuccessfully attempted to detox on her own. This fueled the organization’s efforts, particularly as it rallied media opposition, arguing that women who didn’t want to be arrested were often crossing state lines to access abortion care. According to Scott, this led to Republican Rep. Andrew Farmer voting no, saying he didn’t want women in his county crossing state lines to get an abortion. After a tie vote, lawmakers decided not to extend the law after the sunset date in July 2016.
SisterReach concluded that “systematic documentation” of the experiences of those impacted by the law was necessary to help inform how state and medical institutions could implement patient-centered care.
In 2017, SisterReach launched a qualitative study on the impact the fetal assault law had on marginalized communities. “Of the women arrested, the majority were low-income women, women in poorly-resourced areas, and women of color,” the group’s report found.
Using the reproductive justice framework, the study aimed to focus on and learn more about the women whose experiences were impacted by the law.
Women told SisterReach that they wished they’d had the opportunity to be in rehabilitation before being criminalized.
“The impact of the [fetal assault] law only exacerbated drug usage,” Scott said. “It only exacerbated overdose deaths, and it also caused women to not go to the doctor because they were being profiled in the prenatal visit setting as well.”
Now, SisterReach is focused on providing sex education, policy and advocacy, and harm reduction with the help of regional stakeholders like the Positive Experience — a local HIV education and advocacy organization — as well as Lake Research Partners, a national public opinion and political strategy research firm.
The move away from legislative coalition building has given SisterReach more flexibility in how it organizes.
“I’m able to do reproductive justice the way I’ve always wanted to do it, not where abortion care is the focal point, but where women’s lives and families are the focal point,” Scott said. “This whole project is to figure out the best ways that we can get moms and children together as quickly as possible.”
Reproductive Legal Defense Fund has been funding legal defense for clients since 2021, in response to the criminalization of people who were prosecuted for alleged abortions at home with medication or in-clinic, miscarriage, stillbirth or other pregnancy outcomes. Criminalization usually happens when someone is under-resourced structurally, and pregnancy makes one uniquely subjected to and vulnerable to criminalization, Kidvai says.
If mothers get convicted and no other family members can take care of them, there’s a chance they will lose their children to the state. Black and Indigenous children enter foster care at roughly double the rate of white children nationally.
“Here in Memphis, Black women are the majority [of] household runners,” Scott said. “So if Mama is in jail, not only is it a situation where now she’s lost her home or her apartment, she’s lost her kids. And now she kind of comes out of this situation homeless.”
Since 2015, Scott and SisterReach have been working on a coalition program with Pregnancy Justice, Southwest Community College and other local stakeholders,for mothers and children impacted by the criminalization of substance use. In May, Scott signed the purchase agreement for a transitional housing facility, on a property of a little over 79,000 square feet. The facility, which will be known as the SisterReach Village, will provide housing for mothers who are in rehabilitation, along with mothers and children living with HIV or impacted by intimate partner violence.
“This is what it looks like when Black women lead liberation centered work for our own people,” Scott said. “As mothers we are thinking about what it looks like just to have somewhere to be well in the interim, that keeps people out of the crosshairs of the criminal justice system.”
Laws are intentionally vague and complicated, Kidvai said. Most people don’t know what resources are available to them, which creates a “stigma criminalization loop.”
There are various steps involved before advocates can even think about crafting and drafting policy, says Kimberly Haven, a formerly incarcerated reproductive justice advocate in Maryland. When creating state legislation, advocates have to be able to address how the existing policy is causing harm.
Regardless of whether policies and practices are up to speed, incarceration is never a conducive environment for the stress-free pregnancy necessary for mothers, according to Dr. Carolyn Sufrin, director at the Center for Advocacy and Research for the Reproductive Wellness of Incarcerated People.
Although mandatory standardization would help, stress is not something reformed policy and oversight can get rid of, Sufrin said.
Sometimes, the prospect of certain legislation can actually bring unintended consequences for doulas and reproductive justice advocates like Justice Gatson, a social justice doula based in Kansas City and founder of reproductive justice organization the Reale Justice Network.
“If there’s not a law on the books, you’re creating one,” Haven said. “And so you need to make sure that when you’re doing that, you’re not also creating unintended consequences down the road.” According to Haven, the way to be proactive about implementation is to put a reporting requirement into the bill.
However, this approach brings its own challenges. Federal agencies often kill bills that include reporting requirements. State laws must outline the specifics of data collection and reporting, a task left to advocates and lawmakers due to the absence of a national standard. Varying data collection methods among states give advocates information that isn’t standardized, posing challenges in holding prisons and jails accountable.
In 2018, Gatson collaborated with ACLU Missouri on SB 180, an anti-shackling bill. Without the funding, implementation of the anti-shackling bill would be difficult, and Gatson discovered that both the state legislature and some white-led organizations, in their own ways, make it arduous for Black and brown grassroots organizers to establish community ties and raise necessary funds to properly introduce such bills.
When MBB was working with incarcerated women inside prisons, Ard explained that the Georgia Department of Corrections refused to renew her volunteer badge without any explanation.
This setback became an advantage.
Ard and her colleagues at MBB in Georgia began to understand that planning treatment programs for pregnant women before they face a judge could keep them with their children, saving time, money and effort.
MBB connects pregnant inmates with treatment programs, gets scheduled interviews, and a conditional letter of acceptance. They then take all of that to a hearing, where a judge makes the decision and determines whether it’s a reasonable path forward for the person in question.
According to Ard, the judges who see high rates of recidivism have a limited amount of options and are hungry for alternatives to jailing.
“They’re not wanting to have someone go back out into the community without any guardrails or any accountability,” Ard said. “That’s not what their job is.”
However, in Kidvai’s experience, prosecutors across the nation are more responsive to the culture of criminalization. Reproductive Legal Defense Fund works on cases all over the U.S., and Kidvai has observed that many judges are typically aligned with prosecutors.
Backlash against reform-oriented prosecutors has led to recalls, litigation and legislative attacks in California, Georgia, Florida and Pennsylvania.
“All the power in the room is on one side, it’s all within the state. It’s all with the CPS attorney, it’s all with the judge,” Kidvai said.
A part of the reproductive justice framework and the driving force for Scott, Gatson, Ard and Kidvai is to keep families together, independent of government control.
The majority of MBB’s caregivers are grandparents and, as Ard noted, the incarceration of a family member can cause a ripple effect over generations. A little bit of investment can actually stretch a long way for the people MBB works with.
“We know [if] we take care of moms, we’ve taken care of everybody else because Mama’s gonna make sure everybody else is getting taken care of,” Gatson said. “So it is an advantage that we invest in whatever it is that we need to do for Black women, Black pregnant people, etc.”
This article was produced in partnership with Just Media, a national hub supporting young writers covering justice issues. Visit the website to read more.
COMMENTS