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Abstract

Dobbs v. Jackson Women’s Health Organization has fundamentally altered the legal landscape regarding abortion access. Though abortion rights for all people across the United States have now been eliminated or are in jeopardy, incarcerated people are a particularly vulnerable group, given the way carceral institutions restrict autonomy and the drastic health implications of an unwanted pregnancy while confined. Before Dobbs, detained people retained the constitutional right to an elective abortion while incarcerated. To remedy violations of this right, women brought claims under the Fourteenth Amendment and the Eighth Amendment. In a post-Roe world, however, incarcerated folks denied abortion access are no longer able to seek legal recourse under the Fourteenth Amendment. To challenge court policies that restrict abortion access, incarcerated plaintiffs must rely solely on an Eighth Amendment claim. This note explores the ways that Dobbs both strengthens and exacerbates the need for an Eighth Amendment claim. I argue that depriving someone of an elective abortion procedure violates the Eighth Amendment’s protection against cruel and unusual punishment, irrespective of whether abortion is constitutionally protected as an implied fundamental right. I also acknowledge the inherent limitations of pursuing an Eighth Amendment claim in this realm and discuss possible ways forward. Ultimately, by illustrating how offensive to human dignity it is to deny people elective abortions, a robust Eighth Amendment claim provides an avenue to rebuild constitutional protections, both for incarcerated women and women everywhere.

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