U.S. Prisons’ Lactose Intolerance: Lactation and Incarcerated Women’s Eighth Amendment Right to Breast Pumps



For the past 20 years, the U.S. government has made continuous efforts to encourage mothers to breastfeed and express breast milk for their infant children. Despite overwhelming consensus about the benefits of breastfeeding and breast milk, tens of thousands of incarcerated women in the United States are regularly denied the ability to express breast milk while separated from their children. Prisons prohibit incarcerated women’s use of breast pumps and argue that a woman’s decision to breastfeed does not qualify as a “serious medical need.” Yet U.S. courts’ interpretation of a “serious medical need” that qualifies for Eighth Amendment protection has been flawed from the outset. This Article proposes that incarcerated women possess a constitutional right to access breast pumps due to lactation—the female body’s physical and hormonal response to pregnancy and childbirth—and not due to a decision to breastfeed. As a result, a request to express breast milk and to use any necessary medical devices in prison would rise to the level of a serious medical need—one that cannot be ignored without violating a woman’s Eighth Amendment right to adequate healthcare.

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