Will the Justice Department Stand Up for Women Raped in Prison? | The Nation


Will the Justice Department Stand Up for Women Raped in Prison?

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Eight years ago, Congress acknowledged the brutal fact of systemic sexual assault behind bars by unanimously passing the Prison Rape Elimination Act (PREA). The Justice Department is now poised to issue final rules to implement the law, which makes federal funding to prisons and jails contingent on improved staff training, availability of medical and psychological services for people who suffer sexual assault, investigations and publicly available data about reported assaults.

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Rachel Roth
Rachel Roth, author of Making Women Pay: The Hidden Costs of Fetal Rights, is the recipient of a Soros Justice...

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Incarcerated women have achieved a string of victories against inhumane treatment in childbirth. But what about access to healthcare for all pregnant women in prison, not just those in labor?

The Supreme Court opens its new term with a case that raises the stakes dramatically in the politics of fetal rights. At issue in Ferguson v. City of Charleston is whether a public hospital violates the Constitution when it tests pregnant women for drug use and turns over positive results to the police without so much as obtaining a search warrant.

Medical professionals and the general public agree that it is not desirable for pregnant women to use drugs. But this case raises a different question: Do women forfeit basic constitutional rights to equal treatment, due process and protection against unreasonable searches and seizures when they become pregnant?

South Carolina has been a leader in the movement, building ever since Roe v. Wade legalized abortion, to establish rights for fetuses. No state has done more to target pregnant women who use drugs. Starting in 1989, the Medical University of South Carolina (MUSC) invited the police and local prosecutor to help implement a policy directed at prenatal-care patients. Women who came to MUSC, the only facility for indigent patients in Charleston, were threatened with arrest if they tested positive for drugs. Some were jailed for the duration of their pregnancies (surely not an optimal environment for pregnant women's health), and others were jailed after giving birth, still in their hospital gowns. All but one were black. The crimes they were charged with--drug possession, child neglect and distributing drugs to a minor--carried penalties of two to twenty years.

South Carolina Attorney General Charles Condon has said, "There is no constitutional right for a pregnant mother to use drugs." True enough. But the Constitution does guarantee rights of personal liberty and due process, which in turn require that all people, regardless of race or gender, be treated fairly and equally under the law. And the Charleston police department has never arrested a male hospital patient and charged him with possessing drugs on the basis of a positive urine test.

The real issue is how to respect pregnant women's constitutional rights while improving their (and their future children's) chances of a good outcome. The state maintains that the "stick" of criminal intervention is necessary to make its policy of "encouraging" pregnant women to get treatment effective. But at the time the policy took effect, there was not a single residential drug-abuse-treatment program for women in the entire state. MUSC itself would not admit pregnant women to its treatment center. And no outpatient program in Charleston provided childcare so that pregnant women with young children could keep their counseling appointments.

Finally, arresting women after they give birth does nothing to promote a healthy pregnancy or newborn. This practice also hinders the basic goals of keeping families together and promoting family stability through the provision of rehabilitative services instead of punishment.

Condon has made plain his desire to challenge the premise underlying abortion law: that a fetus is not a person in the constitutional sense and has no rights of its own. In 1998 he told the Washington Times that he would be "proud" and "very pleased" to defend his policies, "even in terms of reversing Roe v. Wade."

Faced with sanctions and the loss of federal dollars when the federal government investigated MUSC for ethics violations and discrimination against African-American women, the hospital suspended its policy in late 1994. But the program's architects got a boost when the State Supreme Court ruled in 1996 that a viable fetus is a person under the children's code, a ruling that the US Supreme Court allowed to stand. Condon then instructed district attorneys around the state to prosecute for "child abuse" women who take drugs during pregnancy.

Because most women in the United States get pregnant at least once in their lives, the practical and political implications of the Supreme Court's decision in Ferguson v. City of Charleston will be enormous. Fetal rights advocates recently scored a victory in Massachusetts when a judge entered an order of protection on behalf of a fetus and took a pregnant woman into state custody. The state alleges that the woman let her last baby die shortly after birth but has not charged her with any crime. If the Court upholds South Carolina's policy, it will encourage similar actions, effectively putting American women on notice that if they become pregnant, their lives are no longer their own.

But because violence is endemic to imprisonment, some level of sexual violence will persist. And for women, one consequence of sexual violence is pregnancy, especially for those who are forced to endure repeated rapes. More than 200,000 women are imprisoned right now, and many more pass through prisons and jails over the course of a year—each one vulnerable to sexual assault, and to pregnancy resulting from it. Despite the years of hearings, testimony and research, the Justice Department’s PREA rules still fail to protect the reproductive rights and health of women in this situation.

Now that the public comment period has closed, the ball is officially in the Justice Department’s court. But the court of public opinion can still be used to press for stronger standards to “prevent, detect, and respond to” sexual assault behind prison walls.

The Supreme Court has held that women’s constitutional right to make reproductive decisions is twofold: the right to end a pregnancy or to continue it. Women do not lose these basic rights when they cross the prison threshold. But nowhere do the proposed rules explicitly recognize them. The single sentence about pregnancy-related medical care makes no mention of specific services or specific rights. Experience teaches that express guarantees are essential to protect the rights of women in custody—as plenty of examples show.

The standard of care for women who have been raped includes offering emergency contraception, which can prevent pregnancy if taken within 120 hours. The proposed rules do not mention emergency contraception. Instead, they refer to a separate government protocol that deals with sexual assault—and which is currently undergoing revision itself.

In Tampa, Florida, a young woman called the police for help after being raped. The police took her for medical care, which included being given the first dose of emergency contraception, with instructions to take the second dose in twelve hours. But then the police learned of an outstanding warrant, stemming from a juvenile offense, and arrested the woman. Once in custody, a jail worker refused to give her the second dose of her medication. This incident illustrates the need for unambiguous guidance to provide women with emergency contraception.

Because not all women will come forward immediately after an assault, and because emergency contraception does not work 100 percent of the time, some women will become pregnant and decide to have an abortion. But prison and jail officials often obstruct access to abortion, as lawsuits brought by women across the country attest. They do so by withholding information, denying women access to the telephone, imposing bureaucratic hurdles and flatly refusing to take women to a clinic for care. This stonewalling results in women having later abortions—enduring as many as eight weeks of delays—or being forced to continue the pregnancy because the time to obtain an abortion has run out.

Given this pattern of interference with an established constitutional right, the PREA rules need explicit instructions to provide women with unbiased information about their options and with access to abortion. Government policy has long recognized the harm of sexual assault by providing funding for abortion in cases of rape, and the final rules should make clear that PREA funds can be used to provide abortion care for those women who want it.

While some prison and jail personnel undermine women’s access to emergency contraception or abortion after an assault, others pressure women to have abortions—or worse. The National Commission established by Congress to investigate prison rape recounts this chilling story. After being raped by a corrections officer in an Arkansas prison, a woman told her assailant that she thought she might be pregnant. He attempted to induce an abortion by forcing her to drink quinine and turpentine. When that didn’t work, prison officials punished her for refusing to have an abortion by forcing her to sleep on the floor in solitary confinement for thirty days.

A Wisconsin woman in a prison mental health unit fell for an officer’s attention, but said their sexual encounters quickly turned into rape. When she became pregnant, prison personnel responded by sentencing her to a year in solitary confinement.

It’s clear that prisons and jails need a mandate to respect women’s decision to continue a pregnancy and to provide them with appropriate medical care, not punishment.

Another glaring problem with the proposed rules is that they do not apply to Immigration and Customs Enforcement (ICE) facilities. Women confined in immigration detention facilities are just as likely as women confined in any other kind of prison to experience sexual assault, as Congress and the National Commission recognized. ICE medical care is already notoriously inadequate, including its failure to inform women pregnant as a result of rape of their right to an abortion.

Very few of the comments submitted by the public address the proposed rules’ blind spot around reproductive health needs, reflecting a longstanding reality: few prisoners’ rights groups focus on the particular needs of women, and few women’s rights groups focus on the particular needs of women in prison. With abortion and contraception under political attack, and corrections agencies resisting the PREA mandates overall, women’s reproductive needs are all too easily ignored. (Full disclosure: I co-signed comments submitted by the National Women’s Law Center, which you can read here.)

It is bad enough that the government takes women into custody and then fails to assure their safety, subjecting them to sexual harassment and abuse at the hands of government employees. The least we can expect is that jails and prisons should redress these harms, rather than compounding them by denying women healthcare and protection from retaliation.

At some point in the near future, the attorney general will issue final rules. Those rules can be weak or they can be strong. People who care about the welfare of women inside must continue to call on the Justice Department to live up to its name, and be prepared to monitor the implementation of the final rules.

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Click here to read the comments submitted to the Justice Department by the National Women’s Law Center and other organizations on the need for stronger rules upholding reproductive rights and healthcare (the Docket ID is DOJ-OAG-2011-0002-1151 at www.regulations.gov).

Click here for a critique of other deficiencies in the Justice Department’s proposed rules.


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