A new law took effect this month in Texas to open a window onto jail conditions for pregnant women. This new Texas law is unusual because it requires the government to compile and make available detailed information about jail policies and practices.
Too often, when people try to get this information, they encounter roadblocks. People can file public records requests (also known as freedom of information act requests) but in a state like Texas with almost 250 county jails, preparing and following up on so many requests is a mammoth task. In states with weak public records laws, government agencies can charge exorbitant sums to deter people from seeking information.
“Operating in the dark”
In 2009, the Texas Legislature enacted two measures sponsored by Representative Marisa Marquez, one to limit the shackling of women during labor, birth, and postpartum recovery and another to require the Texas Commission on Jail Standards to establish standards for the treatment of pregnant women in jail. But the standards the Commission issued were vague.
They simply state that each county jail shall have and implement a written plan, approved by the Commission, for medical, mental, and dental services. The plan shall include “procedures for medical, mental, nutritional requirements, special housing, appropriate work assignments, and the documented use of restraints during labor, delivery and recovery” for women known to be pregnant.
Commission staffers and members have defended this general approach. As one said in the San Antonio Current last November, “If we mandated specific treatment or protocol that might be setting [smaller, rural counties] up for failure and they cannot comply.”
More recently, a sheriff who serves on the Commission told the Texas Observer, “Having dictates or services that don’t take [the variations across counties] into account might be an untenable solution.”
Longtime activist Diana Claitor, who directs the Texas Jail Project, pushed back against this hands-off attitude, saying, “It’s become obvious to me that our jails don’t have clear policies, it’s also become obvious how little information there is about how pregnant women are cared for,” she said. “Without information on all the jails’ practices and policies, we are operating in the dark.”
The new law addresses this problem by requiring each and every jail to write a report describing how it treats pregnant women, including health care, mental health care, and drug treatment, nutritional standards, housing, work assignments, and use of solitary confinement. Jails must also report the number of miscarriages experienced by women in custody (the earlier law already requires jails to report the number of women who are pregnant each month).
Inspiring change, ensuring transparency
At least three cases galvanized activists, those of Nicole Guerrero, who gave birth in a jail cell after hours of being ignored by the jail nurse to a baby who died; Shela Williams, who had a miscarriage in jail custody and was not allowed to see her family; and Jessica de Samito, who was denied reliable access to medication prescribed for opiate dependence in jail and had to enlist a national organization to get it. Nicole Guerrero is suing the jail and the private company it hired to provide medical care; a supporter created a fundraising page to raise money for expert witnesses.
Last summer, MomsRising collected signatures from members in Texas to deliver to the Commission on Jail Standards, asking for specific policy changes, including an end to solitary confinement of pregnant women and immediate medical evaluation and hospitalization of women who say they’re in labor.
At each quarterly meeting since then, the Texas Jail Project, the ACLU of Texas, Mama Sana Clinic, and others continued to press the issue with the Commissioners and to get media attention for their efforts.
Advocates found a political champion in Representative Celia Israel who introduced HB 1140 to make the jail standards more meaningful by requiring detailed explanations from jails. The majority of legislators voted for the bill, which the governor signed.
Honoring the “groundbreaking work” done by lawmakers in 2009, Representative Israel’s chief of staff Jennie Kennedy told MomsRising, “HB 1140 was the natural next step to ensure transparency in the process by requiring counties to share their plans for [pregnant women’s] care with the state. This legislation gives us the mechanism to evaluate whether this care is what Texans expect.”
And should that evaluation fall short, legislators will have the information they need to spell out more specific standards to safeguard the health of pregnant women in jail.