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 often 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, incarcerated 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 interest, 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. In jurisdictions 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 deliberate indifference towards this risk. Thus, this Note will conclude that incarcerated 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, regardless of gender.
Mitchell O. Carney, Cycles of Punishment: The Constitutionality of Restricting Access to Menstrual Health Products in Prisons, 61 B.C. L. Rev. 2541 (2020), https://lawdigitalcommons.bc.edu/bclr/vol61/iss7/6