Blood Behind Bars: Unconstitutional Barriers For Incarcerated Women

Access to menstrual products in prisons is alarmingly underprovided, with thousands of incarcerated women forced to ration supplies, improvise with unsafe alternatives, or trade favors to meet basic needs. Such deprivation constitutes a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, as well as a sex-based disparity in punishment, raising concerns about Equal Protection, guaranteed by the XIV Amendment.

Incarceration is not gender-neutral in practice

Prisons are structured around the physiological needs of men because historically men make up the majority of the incarcerated population. Prison standards assume that the typical inmate is male and therefore only consider the hygiene they may require; this includes: toilet paper, soap, and basic clothing. However, there is a key aspect missing from these needs: menstrual products. Men do not need sanitary products to accommodate a menstrual cycle. As a result, menstrual products are considered “luxury goods”. 

But what about the 190,600 women who are currently incarcerated in the United States? There are no laws that mandate access to menstrual products for incarcerated women in thirty-eight states, creating a significant challenge for women in prisons across the country. Rather than being treated as basic hygiene necessities, sanitary products are classified alongside other non-essential comfort items, minimizing their essential role in women’s health and dignity. Without legal mandates, menstrual care is left to the discretion of individual facilities, where supplies may be limited and rationed.

Kimberly Haven, a formerly incarcerated woman, recounted her experience of managing her menstrual cycle needs while facing the structural barriers in prison. 

“Access to pads and / or tampons is not a given—they are closely restricted and sometimes run out, leaving women without any solutions except to beg for more from the guards. More standard pads and tampons are available in the commissary, but you have to pay for them, which is often out of reach for many incarcerated women.”

Haven’s account emphasizes the consequences of a system that treats menstrual care as discretionary rather than essential. In a setting where the state exercises complete control over daily life, leaving women to beg for or purchase the means to manage a predictable bodily function reflects a structural failure to properly accommodate the population under its care.

Eighth Amendment Protections

Under the Eighth Amendment, which prohibits cruel and unusual punishment, the Supreme Court has made it clear that incarcerated individuals are entitled to humane conditions of confinement. In Farmer v. Brennan | 511 U.S. 825 (1994) , the Court held that prison officials must not act with “deliberate indifference” to substantial risks of serious harm. Menstruation is a predictable biological process, and the medical risks of inadequate sanitary care are well-documented; including infection, toxic shock syndrome, and other reproductive health complications. 

Because prison administrators are aware that women menstruate monthly and require sanitary products to maintain basic health, the failure to provide sufficient supplies cannot be seen as accidental or unforeseeable. When prisons ration products, they force women to use unsafe alternatives or rely on financial abilities, thereby subjecting them to unsanitary and dangerous conditions. If officials knowingly permit these conditions to persist without reasonable corrective measures, their inaction may constitute deliberate indifference. 

Equal Protection Clause

Under the Equal Protection Clause of XIV Amendment, the government is required to provide equal protection of the laws within its jurisdiction. Prisons claim to operate under neutral policies – providing a standard hygiene allotment to all inmates. While treating every inmate the same way may seem like equality, it creates inequality in the burdens that female inmates face. 

Men are given adequate supplies to fulfill their biological needs, so when the same protection is not provided to women, it creates a disproportionate impact on women that violates the Equal Protection Clause. Menstrual deprivation is a form of gendered humiliation that functions as punishment beyond the sentence imposed. Women are forced to walk around with blood-soaked clothing or spend their limited money supply on basic necessities, but men are not subject to the same humiliation. 

Broader Implications

When the system provides toilet paper, soap, and clothing as baseline necessities but treats menstrual products as optional, it signals that female biological functions fall outside the assumed standard of care. The absence of statewide requirements in thirty-eight states therefore highlights not just a policy gap, but a systemic oversight in a correctional framework built with the male body as the default.

Image source: Harper’s Bazaar