Cycles of Punishment: The Constitutionality of Restricting Access to Menstrual Health Products in Prisons
![handle is hein.journals/bclr61 and id is 2577 raw text is:
CYCLES OF PUNISHMENT: THE
CONSTITUTIONALITY OF RESTRICTING
ACCESS TO MENSTRUAL HEALTH
PRODUCTS IN PRISONS
Abstract: Despite the recent passage of federal legislation requiring free access
to menstrual health products in federal prisons, many women in state and local
prisons continue to have inadequate access to these products. Not only do most
prisons provide subpar menstrual health products in terms of quality, prisons of-
ten do not provide enough of these products to allow for individuals to change
their pads and tampons at the doctor-recommended frequency. As a result, incar-
cerated women are at a heightened risk of toxic shock syndrome, sepsis, and
ovarian cancer. This Note argues that, because differential treatment on the basis
of menstruation is a form of sex discrimination, the practice of restricting access
to menstrual health products discriminates on the basis of sex. The practice is
neither related to a valid penological interest nor an important governmental in-
terest, and therefore violates the Equal Protection Clause of the Fourteenth
Amendment. Moreover, this practice exposes inmates to an unreasonable risk of
future harm stemming from inadequate menstrual hygiene in violation of the
Eighth Amendment. Injurisdictions where advocacy groups have been successful
in drawing significant attention to health issues related to diminished menstrual
hygiene in prisons, it could be established that prison officials are acting with de-
liberate indifference towards this risk. Thus, this Note will conclude that incar-
cerated women could assert a colorable challenge to the practice of restricting
access to menstrual health products under either the Fourteenth Amendment or
the Eighth Amendment. It is crucial that courts institute constitutional barriers to
these practices in order to protect the health and wellbeing of all prisoners, re-
gardless of gender.
INTRODUCTION
Kimberly Haven, an inmate at the Maryland Correctional Institution for
Women, was provided with twenty-four sanitary pads per month.' Haven
quickly realized that the pads provided were hopelessly flimsy, and regularly
caused women to cancel visits with family or lawyers to avoid the embarrass-
1 AnnE. Marimow, A New Law PromisedMaryland Female Inmates Free Tampons. They're Still
Paying, WASH. POST (June 5, 2009), https://www.washingtonpost.com/local/legal-issues/a-new-law-
promised-marylands-female-inmates-free-tampons-theyre-still-paying/2019/06/04/cc5442da-86d7-
11e9-a491-25df61c78dc4_story.html [https://perma.cc/7ESF-Z93D] (discussing Maryland's legisla-
tive efforts to provide free tampons to women in prison and Kimberly Haven's legislative advocacy).
2541](ViewImageLocal?handle=hein.journals/bclr61&div=65&collection=&method=preview&ext=.png&size=3)
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Cycles of Punishment: The Constitutionality of Restricting Access to Menstrual Health Products in Prisons
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