Just in time for Mother’s Day, the Minnesota Legislature sent a bill to the governor to improve the treatment of pregnant women in prison and jail. The unanimous votes cap a lightning-fast campaign during a short legislative session.
Officially, the bill is known as Senate File 2423 and the description accompanying the bill reads, “addressing the needs of incarcerated women related to pregnancy and childbirth.”
Lead advocate Children’s Defense Fund shifted the emphasis away from “the needs of incarcerated women” and instead promoted the bill as a way to ensure “Healthy Beginnings for Babies of Incarcerated Women.”
How do babies begin? They begin in women’s bodies.
Women need prenatal care for their health as well as to improve the chances of a having a healthy baby. Pregnant women’s physical and emotional well-being isn’t important just because it has an impact on fetal development; it’s important for women’s own lives, too.
The centering of fetuses or “babies” may have been a useful rhetorical strategy to pass this bill on the first try. But it is a disappointing political strategy. Women in prison are already stigmatized and marginalized, pregnant women especially so. Erasing them from the key campaign message undermines their status further and misses an opportunity to forge links between women’s rights, prison conditions, and other health equity and social justice work.
What does the bill do?
Limits on the use of restraints
Nineteen states now have some type of statute limiting the situations in which a pregnant woman can be shackled.
Under the Minnesota bill, standard practice is not to restrain women “known to be pregnant” unless corrections personnel make an “individualized determination” that doing so is needed for “legitimate safety and security” reasons. In such cases, restraints are to be the “least restrictive available and the most reasonable under the circumstances.”
When corrections personnel are taking a pregnant woman outside the prison or jail, they cannot use waist chains to restrain her, or cuff her hands behind her back.
The bill affords women greater protection than many other states by limiting the use of restraints throughout pregnancy. The bill does leave room for individual corrections officers to interpret the terms “least restrictive” and “most reasonable,” and also implicitly allows for the use of leg irons, which create a serious trip hazard for women whose balance is affected by pregnancy.
Finally, the bill allows the shackling of women in labor and post-partum recovery, but the specific caveats make it less likely that women will be restrained during these times. The criteria are more stringent than those governing shackling during pregnancy: Officers must determine that a woman poses a “substantial flight risk” or that other “extraordinary” circumstances warrant restraining her, and the medical provider must not object.
While not the outright ban on shackling during labor that other states have adopted - and that an earlier version of the bill included - this measure should give women a good deal of protection during the critical period when they are laboring to delivery their baby and need freedom of movement, and also during the first three days of post-partum recovery, when being restrained to the bed interferes with mother-child bonding and increases the risk of developing dangerous blood clots.
New statewide medical standards
The bill is a puzzling combination of specific mandates and conspicuous oversights. It requires certain medical services, such as pregnancy testing and treatment for postpartum depression, while ignoring other basics, like nutrition and prenatal care.
The most unusual provision of the bill deals with doula care - unusual because it mentions doula care at all and unusual because it specifies “access to doula services if these services are provided by a certified doula without charge to the correctional facility or the incarcerated woman pays for the certified doula services” (emphasis added).
How are women supposed to pay for doula services? If enrolled in Medicaid, women lose that coverage when they enter the prison system. Women could theoretically retain private health insurance through a spouse or partner, if they had it to begin with; but imprisoned women are typically very poor and frequently uninsured.
While women in the state prison may be able to earn a few dollars a week at a prison job, women waiting to go on trial in a local jail may not have even this limited opportunity to earn cash.
It’s worth asking why medical testing and mental health care can be mandated, but not doula care. After all, doula care improves outcomes, is cost-effective, and plays a critical role in providing emotional and physical support to women, especially imprisoned women who are not allowed to have anyone they know attend their birth.
By default, the bill mandates that doulas donate their services, in effect writing into law the generosity of a grassroots volunteer program called Isis Rising that brought doula care to the state prison and first supported a woman through childbirth in 2011.
The bill calls for an advisory committee to be convened by the University of Minnesota to consider “evidence-based” standards for the treatment of women and girls who experience pregnancy or the postpartum period behind prison walls. This committee may be able to address essential services that didn’t make it into the legislation, such as prenatal care and nutrition, and also revisit the matter of paying for doula care.
Other positive features in the bill include training for corrections staff and notice to pregnant women of all laws and policies affecting them.
Missing is any kind of oversight or reporting to let the public evaluate whether the law is working. In this respect, unfortunately, the bill is in good company.
Once the governor signs the bill, it will quickly go into effect at the state prison, and will go into effect at local jails next year.