It should have been a best-case scenario for the woman in the Indiana prison. She was early in her pregnancy, serving time close to a city with more than one abortion provider.
But despite repeated requests for an abortion, prison personnel stalled and put obstacles in her path until it was too late. Whether intentional or simply a coincidence, by the time someone from the prison finally took her to a clinic, some seven weeks after she first said she wanted to have an abortion, she was just past the legal limit of 13 weeks and six days in Indiana. Jane Doe continued her pregnancy to term.
Jane’s story illustrates the challenges that women in prison and jail face when trying to end a pregnancy, and also illustrates the proliferation of barriers to abortion. She had tried to get an abortion before being incarcerated, only to wind up at an anti-choice pregnancy center instead of a legitimate health clinic. And once in prison, she had only until the end of her 13th week of pregnancy to get the medical care she needed because of the state’s TRAP laws (TRAP stands for Targeted Regulation of Abortion Providers).
The courts have consistently held that women do not lose the right to have an abortion when they are behind bars, and so in December, she filed a lawsuit against the prison and its employees for violating her constitutional rights. If being denied an abortion weren’t bad enough, Jane experienced serious complications, as she had with her earlier pregnancies, including hospitalization for vomiting and dehydration, urinary tract infections (thanks at least in part to restricted access to the bathroom in the prison), pain, bleeding, and severe headaches from pre-eclampsia, a life-threatening condition involving very high blood pressure.
Later in December, another woman, from Tennessee, also filed a lawsuit after being denied access to an abortion. According to court documents, the county sheriff would permit access to abortion only if the pregnancy endangered her life or was the result of a crime. Their stories are but two of many from 2016 that show how incarceration is a threat to women’s reproductive health and rights.
No Abortion Care, But What About Pregnancy Care?
While these two women were forced to continue pregnancies against their will, other women lost pregnancies they intended to carry to term, or watched their newborn baby die, because they were denied medical attention. In one two-week period in October, three stories made the mainstream news:
· In Tennessee, a woman sued the private company responsible for providing medical care in the prison where she was incarcerated. She gave birth in a cell after nurses told her she was “faking” labor; her baby was hospitalized for five days.
· In Florida, a judge recommended that an 18-year-old with a high-risk pregnancy be transferred to the hospital. That didn’t happen and within five days of going to jail, her fetus died inside her.
· In New Mexico, a woman in jail told the staff that she needed to see a doctor because she was cramping and bleeding. She gave birth the next day in the jail infirmary to a baby whose umbilical cord was wrapped around his neck and died.
These are all serious incidents with devastating consequences. That they made news at the same time, in different parts of the country, suggests they are not anomalies, but predictable dangers to which pregnant women are exposed inside of prisons and jails.
No Relief from Solitary Confinement
Many health and human rights experts advise against putting pregnant women in solitary confinement, because the oppressive conditions can trigger or worsen psychological distress and it makes it even more difficult than usual to access medical attention. A group of women sued the Allegheny County Jail in Pennsylvania for subjecting them to solitary confinement for minor infractions of the jail’s rules, such as, in one woman’s case, wearing her engagement ring, which she had been allowed to keep when she came into the jail.
The women in the class action suit spent up to 22 days at a time in solitary, going without regular showers, nutritionally-enhanced pregnancy meals, or any freedom of movement, unless they went for their one hour of “recreation” in the gym at the designated time of 11 p.m. - 3 a.m. The United Nations considers more than 15 days of solitary to be torture. Notably, the Pennsylvania state prison system policy takes a different approach, calling for pregnant women who are being disciplined to be sent to the infirmary.
Recognizing the inherent hazards of solitary confinement, the New Jersey Legislature passed a law to exclude certain vulnerable groups, including pregnant women, from such punishment. But Governor Christie vetoed the bill, criticizing the lead sponsor and dismissing the measure as an “ill-informed, politically motivated press release.”
Health and human rights experts also condemn the use of restraints on pregnant women. Yet despite winning a spate of victories in legislatures and courts, pregnant women continue to be shackled. In Massachusetts, for example, prisons and jails have violated a 2014 law limiting the use of restraints. Violations include handcuffing and use of other restraints on women in labor, restraining women to the bed in the hospital, and using waist chains and leg irons on women in postpartum recovery.
In addition, the law requires the use of vehicles with seatbelts for pregnant and postpartum women, but some women are either driven in vehicles without this safeguard or forced to miss court dates because no one makes sure an appropriate vehicle is available. A bill to address these problems made it through three committees but never got a vote.1
In several other states, such as Georgia, Missouri, and New Jersey, legislators also worked on bills to limit the use of restraints. The Missouri bill was likely inspired by a lawsuit against a county jail that “shackled and chained” a woman during a three-hour drive to the state prison when she was in her 39th week of pregnancy. She went into labor during the drive, but instead of taking her to an emergency room, the jail officers continued on to the prison. Only then, did someone get her to a hospital.
On the judicial front, Maricopa County, Arizona settled a lawsuit brought by a woman over the use of restraints before and after she gave birth. The county chose to settle rather than face a jury at trial. The settlement came just weeks after the long-term sheriff, whose controversial tactics had already cost the county over $100 million in legal fees, lost his re-election bid.
Time for a Change?
Ironically, one government institution that has had an official policy favoring keeping pregnant women out of prison is Immigration Customs and Enforcement (ICE). In practice, this has not always happened, and all the signs point to abandoning this policy in the future, given the new administration’s intention to accelerate the detention and deportation of undocumented immigrants.
Women in the custody of ICE have limited access to reproductive health care and especially abortion; the Hyde Amendment bans federal funding for this basic medical procedure. Because the administration plans a build-up of immigration prisons, many more women could be spending their pregnancies inside prison walls without needed medical care or nutrition. (ICE also incarcerates entire families in substandard living conditions.)
Alternatives to incarceration are getting a hearing at the state and local level, though. Over the summer, a woman gave birth inside a cell in a Detroit-area jail. She had told the nurses three times over a period of almost eight hours that she was in labor. Each time, the nurses sent her back to her cell.
Video footage shows the encounters with the nursing staff as well as the birth. After keeping it to herself for months, the woman decided to speak out so that no one else would have to go through what she did. Instead of being met with indifference or blaming the victim, the incident has inspired thousands of people, including a state legislator, to call for an investigation and greater oversight of the jail, as well as discussions of what could be done instead of jailing someone.
Similarly, The Pittsburgh Post-Gazette ran not one but two editorials in response to revelations about poor treatment at the county jail. The editorial board concluded that pregnant women don’t belong in prison or jail unless public safety absolutely requires it, because:
Alternatives to incarceration stand “to benefit the women, their babies and the taxpayers.”
1 Disclosure: The author co-wrote Breaking Promises: Violations of the Massachusetts Pregnancy Standards and Anti-Shackling Law and works with the Massachusetts Anti-Shackling Coalition to improve compliance with the law.