December 10, 2009
Over the past year, incarcerated women and their allies have achieved a remarkable string of victories against inhumane treatment. First, they persuaded the Bureau of Prisons to issue a new policy in October 2008 limiting the use of restraints on women who are in labor, giving birth or recovering after childbirth; the Marshals Service, which transports people in federal custody, followed suit. Next, they won legislation in the spring and summer of 2009 restricting the use of restraints on pregnant women in New Mexico, Texas and New York. Finally, they successfully petitioned the US Court of Appeals Eighth Circuit for a rehearing of the full court in a case from Arkansas, which resulted in a ruling in October  that shackling women in labor is unconstitutional.
These developments send a strong signal to the rest of the country to stop subjecting women to this dangerous and degrading practice. But what happens to pregnant women in prison before they wind up in chains at a hospital?
When women are brought to a hospital in shackles, the pain and humiliation they endure likely caps months of difficulty from being pregnant behind bars, months without adequate prenatal care or nutrition, or even basics like a bed to sleep on or clothes to accommodate their changing shape.
The lack of common sense and compassion with which imprisoned pregnant women are treated is chilling. Three stories illustrate the dangers women face when they cannot get anyone to take their medical needs seriously.
First, some women are not taken to the hospital until after they have already given birth, despite having informed staff members that they are in labor. Women wind up giving birth in their cells with the assistance of a nurse, corrections officer or cellmates. Others give birth in their cells with nobody to help. Both situations endanger the woman and her baby. Nineteen-year-old Terra K. screamed , pounded on the door and asked for the nurse in the Dubuque County Jail in Iowa, only to give birth alone in her cell. Afterward she asked, “How does somebody have a baby in jail without anybody noticing?”
Next, some women never see their pregnancy result in a live birth. In the Collier County Jail in Florida, Joan S. repeatedly sought medical attention because she was near her due date and leaking amniotic fluid; this went on for almost two weeks. By the time she got an ultrasound, the doctor informed her that all of her amniotic fluid was gone and her fetus’s skull had collapsed. Jail officials then delayed taking her to the hospital, putting her at risk for septic shock the longer the dead fetus remained inside her. As if this were not bad enough, the jail delayed giving her a shot she needed because she has RH-negative blood, which could cause complications if she becomes pregnant in the future. She is only 22.
Finally, corrections personnel neglect women who have had miscarriages. Michelle M. was punched repeatedly in the stomach  by two other prisoners in the Maricopa County jail in Arizona. Guards denied her access to the infirmary. Three days later, she was bleeding so heavily that she was finally taken to a hospital, where doctors told her she had miscarried and instructed her to return for a checkup. But the jail wouldn’t bring her back for the checkup–that is, not until three weeks later, when she began bleeding so much that the jail finally called an ambulance. At the hospital, she needed a blood transfusion as well as a surgical procedure to remove the remains of the pregnancy from her uterus.
These are not isolated events; they are just a few that recently made the news. Institutions of confinement are not required to report the pregnancy outcomes of women in their custody. Until elected officials mandate such reporting, we will have to rely on the efforts of imprisoned women, journalists, human rights investigators, researchers, lawyers and advocates to document the reality of life for pregnant women inside prison walls. Reflecting on more than thirty years of experience, ACLU National Prison Project director Elizabeth Alexander says, “In virtually every case that I have handled involving healthcare claims of women, I have found women who lost their pregnancies or newborns due to the prison’s atrocious neglect.”
The denial of appropriate care to pregnant women is part and parcel of the general state of medical neglect in prisons in the United States. Access to timely, appropriate medical care is further undermined by the trend to contract out medical services to private, for-profit companies .
When women suffer inadequate pregnancy-related care, seeking redress is extremely difficult, given the many hurdles imposed by the Prison Litigation Reform Act. As one example, a federal court dismissed a woman’s lawsuit over her failure to comply with the jail’s internal grievance procedure. She persevered, and the court of appeals overturned the lower court. The court of appeals compared the case to something out of Alice in Wonderland, because all the parties agreed that the jail’s grievance procedure was never made available to anyone being held in the jail, and, therefore, compliance would be impossible.
This state of affairs is even more disturbing when we consider that most women do not pose a threat to public safety. They are serving time–or stuck in jail because they are too poor to make bail–for nonviolent crimes, and could be supervised in the community instead of being incarcerated.
The purpose of prison is to punish and control, not to tend to people’s medical needs, although prisons and jails are constitutionally obligated to do so. Leaving women to give birth all alone in their cells, or to suffer the consequences of a miscarriage or stillbirth without proper medical attention, surely violates the prohibition against cruel and unusual punishment. The United States has no real system of prison oversight to ensure accountability for the treatment of people in custody. As Joan S. said of her decision to bring a lawsuit against the jail and private company that denied her medical care, “I want them to make changes. I don’t want this to happen to other mothers.”