APPENDIX IV: PREGNANCY, ABORTION, STERILIZATION, AND SHACKLING

Between 6 and 10 percent of women in United States prisons become pregnant each year.¹⁶⁰ Although little reliable data exists, one advocacy group estimates that approximately two thousand incarcerated women give birth annually.¹⁶¹ Pregnancies in correctional institutions are usually unplanned and high risk, due to psychiatric illness, alcohol and substance abuse, and poor nutrition.¹⁶² Access to appropriate medical services, therefore, is even more important to preserve the health of the mother, and her child, if she chooses to continue the pregnancy.

Access to Abortion

There is now a significant body of U.S. case law holding that a woman does not lose her Fourteenth Amendment right to choose to terminate her pregnancy¹⁶³ as a result of her imprisonment.¹⁶⁴ Upon legal challenge, courts have struck down corrections policies that either flatly prohibit transportation of prisoners to obtain elective abortions¹⁶⁵ or require women to petition for a court order to authorize transport or temporary release to obtain an abortion.¹⁶⁶ Only one court has held that refusing women access to elective abortions is a violation of a woman’s Eighth Amendment right to adequate care for “serious medical needs,” and that therefore correctional facilities must provide funding if it is not otherwise available.¹⁶⁷

Since most women in prison are indigent, and are paid only 12¢ to 40¢ per hour for work done while imprisoned, many are effectively unable to obtain abortions. Many advocates argue that while the state can attempt to recover costs, it must provide access for indigent women. One court recently agreed, at least as to the costs of transportation and security, when the Arizona district court held that Sheriff Joe Arpaio’s policy of charging prisoners upfront for security and transportation for the procedure was unconstitutional.¹⁶⁸ At a constitutional minimum, facilities must provide timely access to abortion, but not necessarily funding.

Studies show that the realities of correctional facilities do not live up to constitutional standards. A recent survey concluded that policies are “highly variable” across the states and inconsistent in practice.¹⁶⁹ Only 68 percent of correctional health providers answered affirmatively when asked whether women at their facility are allowed to obtain an elective abortion.¹⁷⁰ 88 percent of that group replied that their facility arranges transportation for women seeking abortions.¹⁷¹ These findings are consistent with the experience of advocates, who report that while the law in this area has improved, the realities have not kept pace. The number of calls from women whose access is being impeded has not decreased.¹⁷²

A recent ACLU review of available prison standards found that twenty-two states had passed standards for abortion access for women in prison.¹⁷³ Likewise, a thorough 2004 review of state policies by scholar Rachel Roth found that fourteen states had no written policy at all on abortion access.¹⁷⁴ The dominant policy in states appears to be to “permit prisoners to obtain abortions on the same basis as other ‘elective’ medical care… paying for transportation and security to an outside medical provider as well as paying for the abortion itself.”175 The author of the study found that as of 2004, four states—Alabama, Indiana, Mississippi, and Wyoming—still prohibited access to abortions unless they are to save the life of the mother. Further, general restrictions on abortion access, such as waiting periods and two-trip requirements, may increase the price of an abortion for incarcerated woman to between $2,000 and $3,000 for a first-trimester abortion.¹⁷⁶

The problem appears to be particularly acute in county jails. Since jails are typically only used for shorter-term detention—pre-trial or short sentences—officials there often try to avoid addressing the situation. Because access to legal abortion is restricted to the first weeks of pregnancy, and the risks of the procedure increase with time, such an attitude is harmful to women seeking abortions. A recent New York Civil Liberties Union (NYCLU) report confirms this trend. A study of the New York county jail system, which houses three thousand women at any given time, indicated that less than half of the counties had any policy specifically addressing prisoners’ access to abortion, and only 23 percent provided for unimpeded access.¹⁷⁷

Under international law standards, governments have a general responsibility to ensure access to safe abortion when it is legal. At least six treaty-monitoring bodies—CEDAW, CRC, ICCPR, ICESCR, ICERD, and CAT¹⁷⁸—have discussed the importance of access to abortion to women’s rights to life, health, privacy, and non-discrimination.¹⁷⁹ State responsibility is arguably strengthened in prisons, where the government monopolizes prisoners’ access to care, and is required to provide adequate care.¹⁸⁰ While U.S. courts have repeatedly held that a woman retains a right to abortion in prison, access to the courts is limited, and courts often fail to address the fiscal realities of women in prison.

Sterilization and Denial of Reproductive Capacity

In addition to the lack of access to abortion across the country, advocates are concerned that women are being denied their reproductive freedom in other systematic ways. Justice Now has begun to research and document incidents of sterilization occurring after delivery or during other medical procedures, which may take place without informed consent or under coercion.¹⁸¹ In the course of this research, Justice Now has found that the California Department of Corrections has performed 116 tubal ligations since 2006, making it the only voluntary procedure besides tooth extraction that the department performs.¹⁸²

The result of many of the mandatory minimum sentence laws, indeterminate sentencing procedures, and other harsh incarceration policies that have increasingly led to longer sentences for people in United States prisons—and which have disproportionately affected women there—deprive many women of all reproductive capacity. Many of these policies apply primarily to drug offenses, and women are increasingly, and at higher rates, imprisoned for drug-related crimes.¹⁸³ As a result, women enter prison at a young age and remain there during all their childbearing years. Incarcerated women have voiced serious concern about their effective inability to ever have children, and advocates are increasingly concerned about this less visible, but severe, reproductive injustice.¹⁸⁴

Prenatal Care

Inadequate access to medical care in prison extends to prenatal care. Pregnant women regularly report that “they do not receive regular pelvic exams or sonograms, that they receive little to no education about prenatal care and nutrition, and that they are unable to maintain an appropriate diet to suit their changing caloric needs.”185 Two recent studies demonstrate how unprepared prisons are to respond to the distinct needs of pregnant women. A review of state policies by the ACLU revealed that only thirty-five jurisdictions (thirty-four states and the District of Columbia) have any correctional policies relevant to pregnancy-related care.¹⁸⁶ Comparing those policies to the national standards provided by the National Commission on Correctional Healthcare (NCCHC) and the American Public Health Association (APHA), the ACLU found nearly all the policies seriously lacking.¹⁸⁷

In one particularly egregious case filed in 2009, the ACLU represented a woman in Montana who was five months pregnant when she voluntarily reported to the detention facility to serve a short term for traffic violations.¹⁸⁸ While in detention, she was refused access to essential medication for her ongoing participation in a treatment program for a diagnosed opiate addiction. As a result, she “suffered complete and abrupt withdrawal, experienced constant vomiting, diarrhea, rapid weight loss, dehydration, and other withdrawal symptoms, all extremely dangerous during pregnancy.”¹⁸⁹ Only after nine days and the intervention of a public defender was she able to continue her treatment. Advocates indicate that many prisons force pregnant women to go without any drug treatment (“cold turkey”), even though withdrawal symptoms can put serious stress on the pregnancy.

In October 2010, the Rebecca Project for Human Rights and the National Women’s Law Center released a state-by-state report card on conditions of confinement for pregnant and parenting women. The report based its “grade” for prenatal care provision on whether the state met the following basic standards: (1) provides for medical exams as part of prenatal care; (2) screens and provides treatment for high-risk pregnancies; (3) addresses the nutritional needs of pregnant women; (4) offers HIV testing; (5) provides a preexisting arrangement for deliveries; (6) provides advice on activity levels and safety; and (7) requires prisons to report all pregnancies and their outcomes.¹⁹⁰ Twenty-seven states received an F, indicating that they have none of these policies. Eleven states received a D, indicating that they have one or in some cases two of these policies but generally do not provide adequate prenatal care. No state received an A, which would indicate compliance with all of the standards indicated above. The two reports demonstrate that, while some states have begun to recognize the importance of prenatal care and to institutionalize policies on it, most are still unprepared and unresponsive to the needs of pregnant women in prison.

Shackling in Labor

In many U.S. jails and prisons, the Center for Reproductive Rights has reported, “pregnant women are routinely restrained by their ankles or their wrists when transported for prenatal medical appointments or to go the hospital.” Often they “remain shackled during labor, delivery, and the post-delivery recovery period.”¹⁹¹

During transportation, a shackled woman is put at a greater risk of falling, and if she does, she will be unable to catch herself.¹⁹² During labor, shackling restricts a woman’s ability to move freely to alleviate pain,193 and the resulting stress may reduce the flow of oxygen to the baby during delivery.¹⁹⁴ If complications result, doctors’ ability to quickly respond with an emergency cesarean may be hampered.¹⁹⁵ In 2007, the American College of Obstetricians and Gynecologists (ACOG) wrote: “Physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of women and unborn children at risk.”¹⁹⁶

Additionally, shackling incarcerated pregnant women violates international human rights standards. Rule 33 of the U.N. Standard Minimum Rules for the Treatment of Prisoners prohibits the use of restraints except when necessary to prevent the prisoner from causing injury to herself, others, or property, or when the prisoner is a flight risk. Most incarcerated women in the United States are not imprisoned for violent crimes, and a pregnant woman’s flight risk, especially during and directly after labor, is questionable. In 2006, both the U.N. Committee against Torture and the Human Rights Committee expressed concern regarding the U.S. practice of shackling women during childbirth.¹⁹⁷ Likewise, during the Special Rapporteur’s 1998 visit, she noted that the shackling of pregnant women in the United States “may be said to constitute cruel and unusual practices.”¹⁹⁸

There have been a number of improvements in U.S. practice in recent years. Ruling in Nelson v. Correctional Medical Services in October 2009, the Eighth Circuit held that women have a “clearly established” right not to be shackled during the “final stages of labor… absent clear evidence that she is a security or flight risk.”¹⁹⁹ In 2008, only two states had laws prohibiting shackling of pregnant women, but as of October 2010, the number had increased to ten.²⁰⁰ Also in 2008, the Federal Bureau of Prisons issued a new policy mandating that restraints will not be used during labor, delivery, or post-delivery unless there is an “immediate and credible risk of escape that cannot be reasonably contained through other methods.”²⁰¹

However, this progress is limited. Forty states and the District of Columbia still have no such laws; seven correctional departments have no formal written policy governing the use of restraints on pregnant women; and twenty-three state departments of corrections allow the use of restraints during labor.²⁰² The laws that exist typically do not create private rights of action (which allow a private party to bring a lawsuit), and there is significant evidence that these policies and laws often are not enforced or followed in practice.²⁰³

Further, Nelson and a number of the protective policies and laws are limited only to shackling during delivery—they do not address the larger problem of shackling incarcerated women throughout pregnancy. (Recently, California’s Governor Schwarzenegger vetoed a unanimously passed bill prohibiting the use of shackles on pregnant women during transport, labor and delivery, and recovery, absent a safety concern.²⁰⁴) While the movement to end shackling in labor is growing, advocates argue the “current patchwork system of laws, regulations, and written and unwritten policies has created an atmosphere of noncompliance among correction officials.”²⁰⁵