As Congress and state legislatures got back to work in the new year, issues of incarcerating and shackling pregnant women surfaced on many of their agendas. Progress on Shackling Women in the custody of the Immigration and Customs Enforcement agency (ICE) may soon get relief from shackling. In January, the bipartisan team of Senator Patty Murray (D-WA) and Senator Mike Crapo (R-ID) got language into the federal budget bill to "ensure all detention contracts and agreements" adhere to ICE policy against shackling pregnant women:

A pregnant woman or woman in post-delivery recuperation shall not be restrained absent truly extraordinary circumstances that render restraints absolutely necessary as documented by a supervisor and directed by the on-site medical authority. This general prohibition on restraints applies to all pregnant women in the custody of ICE, whether during transport, in a detention facility, or at an outside medical facility. Restraints are never permitted on women who are in active labor or delivery.

The action Congress took is critical because half of all women in ICE custody are detained in local jails, not ICE facilities. The default tendency for staff working in those jails would be to use the jail's shackling policy, which in many cases would be more restrictive than the ICE policy.

On the state level, legislators are considering bills in Iowa, Maryland, Massachusetts, and New Jersey, as well as the District of Columbia. The Maryland House Judiciary Committee held a hearing on HB 27, "The Healthy Births for Incarcerated Women Act." Power Inside, the state chapter of the NAACP, and statewide nursing and medical associations testified in support.

Finally, the Nevada Board of Examiners reached a settlement with a woman who was shackled when she was in labor, in violation of a newly adopted state statute.

Setback on Shackling

In a departure from judicial trends finding that shackling women during labor is unconstitutional, a federal judge dismissed a case against Sheriff Arpaio of Maricopa County, Arizona for shackling a woman before and after giving birth. (Sheriff Arpaio is notorious for mistreating people in his custody.) She has appealed the judge's decision.

Why Detain Pregnant Women?

As Elisa Batista of MomsRising reported last month, investigators at Fusion discovered that Immigration and Customs Enforcement (ICE) has been breaking its own policy by detaining pregnant women in an El Paso, Texas detention center. ICE policy makes clear that the agency is supposed to concentrate its resources on detaining people who pose a threat to public safety or have broken a criminal law. If a pregnant woman does not meet those criteria, she is to be considered a low priority for detention.

Moreover, ICE agents are supposed to request permission from supervisors to detain pregnant women. The agency established these guidelines several years ago, reflecting "humanitarian" concerns or perhaps an understanding that detention centers couldn't ensure the health and safety of pregnant women. (For updated information from Fusion, click here.)

People may be surprised to learn about the ICE policy, given that prisons and jails detain pregnant women all the time. But some jails don't want to.

Officials in Hancock County, Indiana recently asked a judge to release a pregnant woman from jail even though she hadn't paid her bond because the county did not want to pay her hospital bill. The judge agreed, and "public officials are breathing a sigh of relief that the county won't be on the hook to cover her medical expenses." 

These news stories certainly raise questions about whether incarcerating pregnant women is sound public policy. If ICE, a federal law enforcement agency, recommends that pregnant women be released while their cases are pending, why can't other local, state, and federal systems do the same?