Roth, Rachel. “‘No New Babies?’ Gender Inequality and Reproductive Control in the Criminal Justice and Prisons System.” Journal of Gender, Social Policy & the Law 12, no. 3 (May 2011). http://www.wcl.american.edu/journal/genderlaw/12/roth.pdf.
This article offers a comprehensive overview of cases in which judges have intervened to control the reproductive decisions of men and women involved in the criminal justice and prison systems. Analyzing case decisions and appeals, this article presents a gender analysis of judicial rulings that unequally regulate the fertility of men and women. First, the author addresses rights retained in prison, and second, she presents the murky evidence regarding the right to reproduce while incarcerated. The author concludes that while the right to reproduce has not been explicitly denied to people in prison, the ability to conceive is constrained for all prisoners and women in particular. The paper concludes by documenting variation in prohibitions around procreation, demonstrating the range of judicial discretion applied in these cases.
This article makes a strong contribution to the literature around reproductive rights for people imprisoned or on parole, putting the question of judicial power to limit rights on the back burner and analyzing gender inequality in the way that this power is applied. For example, men are rarely sterilized on count order, whereas forced long-term contraception or sterilization is much more commonly a condition of women’s punishment. Furthermore, when men’s rights are curtailed, this is often measured through the policing of their female partners rather than focusing on their behavior alone. Relying solely on case law, this paper makes a strong argument of gender inequity around procreation prohibition, adding one more layer of understanding to the unjust regulation of reproductive rights in the criminal justice system.