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Pregnant, in Prison and Denied Care | The Nation

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Pregnant, in Prison and Denied Care

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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.

About the Author

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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A new law to address systemic sexual violence behind bars still fails to protect the health and rights of women who are assaulted.

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.

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."

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