As we reflect on the past year, we see that 2014 brought some progress on protecting the reproductive health and rights of women who are incarcerated, but also revealed the deep, even intractable, problems that women face inside prison walls.
Progress and resistance to change
Three states passed laws last spring to limit the use of restraints like handcuffs, leg irons, and waist chains on women who are pregnant, in labor, or recovering from childbirth (Maryland, Minnesota, and Massachusetts), bringing the number of states with such laws to 21. The District of Columbia just passed a bill two weeks ago.
Despite this string of victories, new research exposed the extent to which current laws fail to protect women. The ACLU of Pennsylvania interviewed clinicians in 26 hospitals and found that jail officers still “routinely” shackle women in the second and third trimesters of pregnancy in violation of state law. In addition, not all jail officials are reporting their use of restraints to the state Department of Corrections, as they are supposed to. When they do submit reports, some officials simply cite “security” instead of spelling out the specific reasons why a particular woman was deemed so dangerous that she needed to be restrained.
Pregnant women are still being shackled in New York and other states, as well. Indeed, after more than a decade of growing opposition to shackling from legislatures, courts, and medical professionals, the problem remains significant enough that human rights advocates brought it to the attention of the United Nations, submitting a shadow report on the ways that shackling violates women’s right to be free from torture.
Why don’t things change after policymakers take a stand?
Statutes and court decisions carve out exceptions to the general practice of restraining people. Standard operating procedure is to handcuff and restrain people being taken outside of prison, regardless of age or medical condition. A 75 year-old woman who uses a walker to get around the California prison where she is incarcerated describes a long ambulance ride to and from the hospital. Writing in Tenacious, she says:
I was chained around my waist to hands with handcuffs, shackled around my ankles. I could barely move.
When restraining frail senior citizens is commonplace, it is no surprise that officers restrain pregnant women, despite the risks this creates to both groups, including the obvious risk of injury from tripping and falling. But few state statutes require training for corrections personnel who are charged with carrying out the new rules for pregnant women or require any form of reporting to the public or outside agencies.
As advocates gear up for the new legislative sessions beginning in January, creative strategies will be needed to overcome these persistent problems.
Incarceration as a health risk
2014 provided plenty of evidence that sending pregnant women to prison or jail is a risky proposition. Just last week, a woman gave birth inside of a jail in Lorain County, Ohio. The good news is that medical staff in the jail helped deliver her baby. The bad news is the situation could have been avoided if other staff had taken her seriously when she described how she was feeling. According to the news report:
“We get that from a lot of women,” jail Administrator Andy Laubenthal said, adding that many pregnant women will fake labor pains in order to get out of jail.
In November, a woman in Putnam County, New York also gave birth inside a jail. The ACLU of Montana released a report this fall describing a woman’s experience giving birth in jail in Yellowstone County.
Over the summer, MomsRising joined with local advocates in Texas to publicize the dire conditions in county jails, after a woman sued Wichita County for ignoring her pleas for help when she went into preterm labor. The baby’s umbilical cord was wrapped around her neck and the baby died in the cell where she was born.
Another woman reached out to National Advocates for Pregnant Women to help her get the methadone she needed when she was sent to the Guadalupe County Jail in Texas. She had already enrolled in a methadone program in the community, but jail officials would not commit to continuing her treatment, instead making decisions on a day-to-day basis. Methadone is the standard of care for pregnant women using heroin or opioid painkillers, because abrupt withdrawal can lead to miscarriage or stillbirth - surely an outcome any jail would prefer to avoid.
As a result, the Texas Commission on Jail Standards is engaging in discussions about how to ensure that pregnant women in jail - as many as 500 each month - get the medical care they need. A Commission staffer told the San Antonio Current that she is aware that many people feel the standards for pregnancy care are too vague, but:
If we mandated specific treatment or protocol that might be setting [smaller, rural counties] up for failure and they cannot comply.
Given the Commission’s knowledge that some jails apparently cannot meet their obligations and given the typically low-level charges that women are jailed for, advocates question why pregnant women are incarcerated instead of being released to community supervision. Groups including the Texas Jails Project, ACLU of Texas, and Mama Sana Clinic continue to organize on this issue in preparation for the next Commission meeting on Thursday, February 5, 2015.
A range of threats to safety and bodily integrity
After ten years of litigation, the city of Seattle settled a lawsuit brought by a woman who was shot three times with a Taser by police officers after she refused to sign a ticket or get out of her car during a traffic stop. The officers pulled her out of the car and placed her face-down in the street to handcuff her. She was seven months pregnant at the time.
In states from Alabama and Tennessee to Wisconsin, police are arresting women because they are pregnant and using - or disclosing past use of - drugs and prescription medication, all in the guise of “protecting fetuses.” The medical profession has soundly rejected these efforts to criminalize pregnant women’s conduct, arguing that the fear of arrest and incarceration will only drive women away from medical care, which isn’t good for them or their pregnancies.
And the California governor signed a new law to prevent sterilization abuse in prison. Years of determined activism by the group Justice Now and a series of embarrassing articles by the Center for Investigative Reporting finally persuaded policymakers to take action. Doctors in prison and doctors in hospitals had pressured women to agree to sterilization surgery after they gave birth; an audit by the government found that doctors ignored legal and ethical standards for obtaining women’s informed consent to this permanent, life-changing operation. The law prohibits sterilization for the purpose of birth control and requires a second opinion from a physician outside the prison system before authorizing a hysterectomy or other medical treatment that would result in infertility. As the statute explains:
It is the intent of the Legislature in enacting this act to prevent sterilization abuse of vulnerable populations, to ensure safeguards against sterilization abuse within the coercive environment of prison and jail, and to positively affirm that all people should have the right to fully self-determine their reproductive lives free from coercion, violence, or threat of force.
The events of this past year - the steps forward and back - show that incarceration poses immediate and long-term risks to women’s health and reproductive rights. No one is sentenced to lose her baby in jail or to lose the possibility of ever having a baby in the future, but the substandard conditions inside jail and prison produce these devastating results. These stories highlight the need to reduce the scale of incarceration as part of any strategy to safeguard the health, rights, and futures of women who experience incarceration.