The Massachusetts Safe Pregnancy Bill and International Human Rights
One of every three women held prisoner worldwide is in the United States, even though the U.S. has only five percent of the world’s population.
This lopsided figure reflects the U.S. tendency to imprison more people, for more time, than peer nations. Add in racial bias and restrictive bail practices, and low-income women of color are disproportionately likely to spend time behind prison walls.
As we commemorate International Women’s Day, we can draw on global human rights concepts to improve conditions for imprisoned women.
Right now, the Massachusetts Legislature is considering a bill, S. 2012, to change the way that pregnant women in prison and jail are treated.
How does the bill stack up against international norms set by the United Nations Rules for the Treatment of Women Prisoners?
Shackling: The U.N. Rules are clear: “Instruments of restraint shall never be used on women during labor, during birth and immediately after birth.”
This mandate reflects the growing consensus that shackling a pregnant woman is unsafe, unnecessary, and inhumane. Leading national groups including the American Medical Association, American Public Health Association, American Congress of Obstetricians and Gynecologists, American Bar Association, and Amnesty International all oppose the practice.
The Massachusetts bill bans the use of restraints on women during labor and birth.
The bill rightly recognizes that shackling creates risks of falling and injury for women throughout pregnancy and during post-partum recovery, and bans the use of leg irons and waist chains after the first trimester.
Not only do restraints interfere with women’s labors and with doctors’ ability to care for their patients - and intervene quickly if emergencies arise - but they make it difficult for women to hold their babies and care for them during the precious hours they have together in the hospital before being returned to prison or jail.
Diet and exercise: The U.N. Rules require “adequate and timely food, a healthy environment and regular exercise opportunities.”
Although the bill does not deal with prison conditions generally (“a healthy environment”), it does mandate “a diet containing the nutrients necessary to maintain a healthy pregnancy, including prenatal vitamins and supplements” as well as “the opportunity for a minimum of one hour of ambulatory movement each day.”
Solitary confinement: The U.N. Rules flatly prohibit the use of solitary confinement for pregnant women.
The bill addresses solitary confinement only for women who have given birth and been returned to jail or prison: “Postpartum [women] shall not be subject to isolation absent an individualized, documented determination that [she] poses a serious risk of harm to herself or others.”
Certainly, women who are suffering postpartum depression should not be isolated; mounting evidence attests to the devastating impact of solitary confinement on all people and especially people whose physical or emotional health is already fragile.
Privacy: In keeping with the centrality of individual worth to human rights principles, the U.N. Rules assert that medical interactions “shall be carried out in a manner that safeguards privacy, dignity and confidentiality.”
The bill recognizes this norm, and takes some steps toward upholding it, stating that if an officer is present during any “physical examinations, labor, or childbirth, the employee shall be female and positioned at the head of the bed so as to maintain maximum patient privacy.”
International human rights
The United Nations encourages all member nations to adopt the specific guidelines in the Rules.
The United Nations also encourages all nations to embrace international human rights treaties that embody broad principles of dignity and respect for people in prison.
Although enforcing commitments under such treaties is easier said than done, the United States has pledged to uphold human rights by joining two treaties relevant to shackling: the Convention Against Torture and the International Covenant on Civil and Political Rights.
Shackling is considered a violation of women’s human rights under these treaties because it is cruel, inhuman, and degrading. Since women of color in the United States disproportionately suffer from incarceration, the practice also violates women of color’s right to be free from discrimination.
The U.N. Human Rights Committee has recommended since 2006 that the federal government ban shackling. The issue is expected to be on the agenda when the United States meets with the Human Rights Committee in Geneva later this month to account for its human rights record.
Securing women’s rights
On February 20, Massachusetts Governor Deval Patrick announced emergency regulations to put an immediate stop to the most egregious forms of shackling used on pregnant women, citing the need for the state to protect women’s “fundamental dignity.”
However, these regulations expire after 90 days, and they do not contain all the safety measures in the bill or any provisions about prenatal care.
Some version of the “safe pregnancy” bill has been languishing in the State House for more than a decade. When Representative Kay Khan first introduced the bill in 2001, only one state had a law against shackling pregnant women. Today, 18 states do, including such politically conservative states as Arizona, Texas, and Louisiana, as well as Massachusetts’ neighbors Rhode Island and Vermont.
Over the past decade, federal courts have condemned shackling a pregnant woman in labor as the “unnecessary and wanton infliction of pain,” offensive to “contemporary standards of human decency.” A group of women who were shackled won a $4 million settlement against the Sheriff of Cook County, Illinois.
It is time for public policy to promote the health and safety of all pregnant women. The Massachusetts Legislature should follow the U.N.’s recommendation to consider “the specific needs and realities of women as prisoners,” and finally set standards for the treatment of pregnant women in prison and jail.