The Oregon Justice Resource Center recently released a report focusing on access to abortion in Oregon county jails. It found that access to the procedure varies widely by county. We hear more about the report from Brittney Plesser, co-director of the Fair Law Project at the Oregon Justice Resource Center.
This transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Lawmakers in Oregon recently expanded abortion protections in the state. They made abortion a fundamental right and prohibited public agencies and officials from interfering with abortion access. But for people in the 31 county jails around the state, access to abortion can be a real challenge. The Oregon Justice Resource Center, a nonprofit advocacy organization focused on ending mass incarceration, recently released a report focusing on this issue. They found that access to abortion varies widely by county and that some county policies might prevent a person from obtaining an abortion. Brittney Plesser is an attorney at the Oregon Justice Resource Center, and she joins us now. What prompted this report?
Brittney Plesser: People around the country after the Dobbs decision overturning Roe V Wade became really interested again in abortion rights nationwide. We know as advocates for people who are incarcerated in jails and prisons, that all of the incarcerated people’s rights are at stake regularly. So we wanted to look into abortion specifically to draw attention to the issue. Of course, this issue is not new in Oregon’s jails. But certainly with heightened interest nationwide around abortion, we wanted to look into this population.
Miller: The Oregon State Sheriff’s Association has best practices for the operations of jails. And among those it states that “female incarcerated people do have a right to obtain an abortion.” Do those recommendations have enforceable power?
Plesser: They don’t. These are just best practices. On the state Sheriff’s website, it does say that all of the sheriffs around the state have actually adopted all of their best practices. But what we found here is that that’s not actually true when it comes to abortion access.
Miller: How much variation did you find when you looked county to county or jail to jail?
Plesser: It’s really disparate from county to county. So some counties don’t have policies at all. I was surprised to find that Multnomah County doesn’t even have a policy when it comes to abortion access.
Miller: But they did send you a statement, right?
Plesser: They did. Because I found this so curious, we followed up with them to say, “is it true that you really don’t have a policy on this?” So they sent us a statement that said they do have reproductive health providers and so people could work with their providers on this. But there are no specific policies and that’s really concerning because when people are incarcerated in a jail, they have a lot of issues at top of mind and abortion may not end up being one of them. They’re dealing with their criminal cases. I think over two thirds of people in jail are actually pre-trial or pre-resolution of their case, this is going to be top of mind. Any kids that they have at home already, any family members they’re caring for, pets, their jobs, their housing, all of these things might end up being prioritized in their minds above abortion access. And so without a policy that really lets them know – how you access it, who you contact, how quickly it will happen, how much you’re going to have to pay – without that it’s just not going to be something that they prioritize and it may end up being too late for them.
Miller: You write in the report that Yamhill and Coos counties have the harshest abortion restrictions. What do you mean?
Plesser: Yamhill County actually has an ordinance. This is separate from the sheriff’s office who runs the jails. But there’s an ordinance that says that county officials cannot “facilitate” abortions. And the definition for “facilitate” is extremely broad and makes it so that really a person in jail could not get an abortion. Now, there is some escape language in there that says, “other than pursuant to state and federal law.” It’s unclear at this point how that’s actually been carried out, but we have stories. Mind you, these are older stories, but stories where people actually have been heavily restricted in getting abortions.
Miller: One of them was about a dozen years ago. Bridget Burkholder is the name of the woman who you focus on. What happened to her?
Plesser She wanted to get an abortion. They refused to transport her from the jail. They told her she needed to get a court order to be transported for an abortion. So she goes to the court and says, “I’m seeking an abortion” and the court orders her to actually be mentally evaluated before she can have an abortion. This was a decade ago. I mean, abortion rights were clearly protected at that point, and this was what was happening in Yamhill County, and that ordinance that allowed them to do that still stands today.
Miller: But obviously that was before the state law that I mentioned at the very beginning. Do you know what the status quo is right now? I mean, if a similar case were to be presented in the Yamhill County jail, do you know what would happen?
Plesser: It’s hard to say. I mean, if a person in a jail were to find an advocate to support them and then able to file a lawsuit because I think that’s what it might take, then potentially, based on the new language that we have in Oregon under statute, a person has a case to be successful. But it takes time to file a lawsuit, it takes time to find an advocate. We have a report from one person who we are not permitted to give any information about, who couldn’t overcome those obstacles and ended up having to carry a pregnancy to term.
Miller: You note that a number of counties – I think it was about half of Oregon counties – categorize abortions as elective procedures. What’s wrong with that language, that designation, in cases where say the health of the mother is not in question?
Plesser: Certainly you are electing to get an abortion. But I think the problem with categorizing it that way is that there are two categories of procedures – mandatory and elective. When they’re elective, it’s really focused on who is paying for this procedure and can a person have access, or is it going to be prioritized? And so even though an abortion in many instances will be something that you’re choosing to do if your life is not at risk or the life of the fetus is not at risk, you may not be able to access it because you may have to pay for the abortion yourself. You may have to pay for it yourself ahead of the procedure even being scheduled. You may have to actually facilitate the scheduling yourself. And so making it so that it’s deprioritized really, really limits access.
Miller: How is everything you just described different from the financial realities of abortion access outside of jail?
Plesser: We are fortunate in Oregon that both public and private insurance are required to pay for abortions. But the difference when you go into jail is if you’re insured by OHP Medicaid, then you’re going to lose your access to health care. As soon as you are incarcerated in a jail, it’s federal law that you lose your health care. And so unless you have private insurance or unless you’re able to afford an abortion out of pocket, you’re not going to be able to pay for one.
Miller: I want to go back to the new law that was just passed in July by the legislature making abortion a fundamental right and prohibiting public agencies or officials from interfering with abortion access. Given that, is not interfering with abortion access different from saying you can have it but you have to pay for it and if you don’t have money, you’re out of luck? I mean, does that kind of policy go against state law or is that the kind of thing where money trumps everything else?
Plesser: I think that’s an open question. I mean, abortion, in this instance when it comes to jails and elective procedures, it’s just no different from other elective procedures. And a lot of these policies for procedures other than abortion, say that a person at the jail can actually decide whether something is mandatory or elective.
Miller: So it’s up to officials in terms of the local rules, county by county? And you’re saying it’s an open question whether or not that goes against state law?
Plesser: Yeah, I think it is because it hasn’t been challenged. This is a new state law and like I mentioned, the jail population is really transient and so it’s very hard to track what’s happening there. It’s really hard for advocates to track what’s happening there, and for people to actually seek out help for these issues, file a case and have it not be mooted because they’ve been released from custody.
Miller: Maybe you’re getting to this now in terms of the transience of this population, but before we get to the recommendations which we’ll do in a second, your report is almost exclusively focused on policies. Were you able to get any hard numbers in terms of how common it is for people in Oregon jails to request abortions, and how common it is for those requests to be denied or affirmed?
Plesser: Well, I’ll be honest, we didn’t actually request statistics from the jails themselves just because our experience in working with jails and prisons is that data tracking is sparse, particularly among medical records. It’s going to be much more difficult to get via public records. We did try to survey public defenders to see what their stories were and some of them were keeping track of these things, some of them were not. It’s really hard to get numbers for this group. Transparency just is not there when it comes to jails and prisons.
Miller: Let’s turn to the recommendations. You break them up into a couple of different categories. What are your recommendations for state lawmakers or county commissioners?
Plesser: I think state lawmakers, likely in the 2025 session, can be working toward a bill that creates mandatory reproductive health policies for all jails around Oregon. And I highly recommend that they work with reproductive health professionals in creating these mandatory policies. In the meantime, I think that county officials can be creating a stop gap. They can be coming up with their own policies. The sheriffs can be coming up with their own policies to say that people [don’t] just have a right to an abortion, but that they can actually access them and this is how they access them, so that the policies are usable for both the people who are running the corrections and they know how to enact the policies, [and for] people who need to access abortions.
Miller: Brittney Plesser, thanks very much.
Plesser: Thank you.
Miller: Brittney Plesser is an attorney at the Oregon Justice Resource Center. They are an advocacy organization that is focused on ending mass incarceration and they just put out a recent report looking at abortion access in Oregon’s 31 county jails.
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