Giving Birth in Chains: The Shackling of Incarcerated Women During Labor and Delivery

Anna Clark

As birthing choices are increasingly part of the public conversation, pregnant women are increasingly empowered to decide what sort of care is right for their bodies and their child. Except for those pregnant women who are incarcerated.

As birthing choices are increasingly prominent in the public
conversation, pregnant women are more and more empowered to decide what sort of
care is right for their bodies and their child.

Not so for pregnant women who are incarcerated.  Not only are their decisions about care
restricted, but many incarcerated pregnant women are physically restricted
while giving birth: during labor and delivery, they are shackled.

Consider the case of Shawanna Nelson.

When Nelson was six months pregnant, she was incarcerated in
Arkansas for passing bad checks. She went into labor during her short sentence.
A correctional officer shackled her legs to opposite sides of the bed that
transported her to a delivery room, removing them briefly during a nurse’s
examination. Nelson was re-shackled immediately after giving birth to her
nine-pound son.

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"She suffered both mental anguish and injury to her back,
intense pain because she couldn’t move or adjust her position through her birth
process," said Dana Sussman, legal fellow at the Center for Reproductive
Rights.

Nelson later had surgery to treat symptoms resulting from
the delivery of her son, according to The Arkansas Times. She sued the Arkansas
Department of Correction, charging that her treatment violated the Eighth
Amendment’s protection against cruel and unusual punishment.

After winning her case at district court, Nelson’s charges
were dismissed on appeal by a judicial panel that said prison officials
"couldn’t have known the shackling was unconstitutional," said Sussman. Nelson
was granted a rehearing before the 8th Circuit Court of Appeals,
supported by the American Civil Liberties Union’s National Prison Project. Her
case was argued in September 2008. A decision is pending.

Perhaps most surprising about Nelson’s case is that it’s not
uncommon. Last month, a former Washington inmate sued the state for shackling
during her birthing process and high-risk pregnancy, treatment that included a
leg iron and a metal chain across her stomach.

Also last month, former inmates of Cook County jail filed a
federal lawsuit in Illinois challenging the facility’s shackling practice.
Illinois was the first state to have legislation that prohibited shackling; it
remains one of four states that make shackling explicitly illegal.

"I had no idea women were treated like that anywhere," said
Tina Reynolds, who was shackled during labor and the birth of her son fifteen
years ago.

"Shackling is a brutal and inherently unjust practice, so
blatantly draconian," said Malika Saada Saar, executive director of The Rebecca
Project (and contributor to Rewire).

"The problem is that policies for incarcerated men are
extended to women without adapting to distinct circumstances," Saada Saar
added.

The Practice of
Shackling

Shackling usually happens when pregnant women are
transported from one facility to another-when a woman is transferred to a new
prison, for example, or when she’s taken to a hospital for medical care.
Reynolds herself was shackled around the waist during labor. She knows others
who were subjected to a black box placed between their wrist and belly, which
keeps the arms in front and facedown. Shackling also happens around ankles in
transport vans and in wheelchairs, while breastfeeding, and while in neonatal
nurseries, Reynolds said.

To date, 46 states have no legislation that restricts the
shackling of pregnant women in prisons, jails, and detention centers, leaving
the practice to the discretion of individual facilities. Illinois, California,
Vermont, and New Mexico prohibit it entirely, though, as the Cook County case
reveals, implementation of anti-shackling policy can be patchy.

Non-federal facilities are exempt from the U.S. Bureau of
Prisons policy that, in October 2008, barred the shackling of pregnant women,
"except in the most extreme circumstances." This policy is in alignment
with the United Nations Convention Against Torture, which the U.S. ratified.

Shackling policies are especially pertinent given that women
are the fastest growing demographic in U.S. prisons, according to the Women’s
Prison Association. As with the general prison population, most are serving
sentences for nonviolent offenses.

Among detained immigrant women who are pregnant, the
research of Meghan Rhoad of Human Rights Watch (and an Rewire
contributor) found that shackling frequently happens during transport and
occurs less often during labor. Many pregnant women are deported before they
give birth because U.S. Immigration and Customs Enforcement (ICE) tries to
expedite the process for them.

"We know that some pregnant women in detention are pregnant
as a result of rape that happened in their home country or while they crossed
the border," Rhoad said. "That they may be forced to endure shackling as rape
survivors is absurd and horrifying."

The practice of shackling discourages women from seeking
needed care, Rhoad said.

"The degradation is such a disincentive," Rhoad added. "It’s
related to who’s in immigration detention, including refugees, survivors of
trauma that may have involved shackling, and people with no experience in
detention centers."

The Rebecca Project’s advocacy engages ICE and associations
of county jails, because detained immigrant women are often placed in jails
where shackling is standard practice.

"For some reason, jail policy trumps ICE policy on
shackling," said Saada Saar. "This could be alleviated if ICE and others at the
federal level made a clear statement."

Rhoad is optimistic that pregnant immigrant women in
detention will soon have better circumstances.

"We’ve seen an openness in the new (Obama) administration to
examine the practices in women’s care," Rhoad said.

As well, The Rebecca Project’s anti-shackling efforts
acknowledge the frequency of shackling occurring while women are transported.

"We’ve done extensive work with the U.S. Marshals because
they’re responsible for the transportation of prisoners and are often
responsible for shackling," said Saada Saar.

Anti-Shackling
Movement Builds Momentum, Wins Allies

The 2008 federal policy against shackling cued renewed hope
among advocates for the humane treatment of incarcerated women. Beyond lawsuits
and advocacy with individual departments, legislative campaigns to restrict
shackling are finding unprecedented success-after years of falling on deaf
ears.

New Mexico is the most recent state to bar shackling through
a bill signed by Governor Bill Richardson this spring. New York and Texas
currently have bills backed by legislative support that await the word of their
governors before they become law.

"For us, it’s not enough to change regulations (on shackling
in particular prisons)," Saada Saar said. "To do this campaign through the legislature
gives us a way to respond to violations of the policy. Through state statutes,
mothers’ rights are better protected."

"A lot of states do have corrections policies that restrict
shackling, but (the policies) aren’t commonly known or understood," Sussman
said. "A law allows us to go to court; it makes it hard for others to say they
didn’t know (that shackling is restricted).

"We have a strong case in Illinois because of the law there,
for example. We need to bring cases to ensure enforcement," Sussman added.
"It’s a dual strategy."

It’s a strategy that inspires diverse support. Broad
coalitions are signing on to legislative and legal campaigns to transform the
experience of giving birth in prisons, jails, and detention centers.

Among those backing the New York Anti-Shackling Bill are
women’s health advocates, prison rights organizations, medical and public
health groups, and "even fellowships and ministries that aren’t our frequent
allies," Sussman said.

In Texas, there’s even more strategic alignment with
religious organizations and politicians in the campaign against shackling, said
Sussman.

"With religious groups, what resonates is the simple
inhumanity (of shackling)," said Sussman.

Rhoad said that her organization took on the anti-shackling
campaign because, she said, shackling is "not just a women’s right issue; it’s
a human rights issue."

Meanwhile, when Reynolds attended the National Organization
for Women conference in Indianapolis last month, she was invited to submit a
resolution for NOW to take on shackling in its national advocacy. Her
resolution was adopted, which Reynolds called "a huge step, because they are a
huge organization."

"That was remarkable to me to feel empowered, as a formerly
incarcerated woman who had joined NOW the week before," Reynolds said.

Leaders in the anti-shackling movement credit the campaign’s
momentum to centering the experiences of women who were shackled. Their stories
are featured at press conferences, in letters, in briefs, and other campaign
vehicles. Many are collected through Women on the Rise Telling HerStory
(WORTH), an association of formerly incarcerated women founded by Reynolds.

"It may be possible to resist changes (to the practice of
shackling), but when you’re confronted with the reality of women who’ve had to
endure this, that’s a hard position to maintain," said Rhoad.

Challengers

Despite the multifaceted support for anti-shackling
legislation, the movement is not without its challengers.

The New York Department of Correctional Services (DCS) opposes
the Anti-Shackling Bill that won near-unanimous legislative support and now
awaits Governor Paterson’s approval. The DCS contends that shackling doesn’t
happen in its facilities, and if it did, the department is capable of
addressing the problem independently.

Serena Alfieri, associate director of policy with the
Correctional Association of New York, said that DCS’s point about shackling not
occurring is fueled by a lack of documentation. She notes that many women don’t
file complaints about the practice out of fear of retaliation.

Stories about shackling most frequently come from women
after they are released. There are documented stories of shackling happening as
recently as February 2009, according to Alfieri.

Alfieri said opponents of anti-shackling efforts often cite
security concerns about inmates using the opportunity of pregnancy and birth to
escape. The New York Anti-Shackling Bill includes exceptions for terrorists and
past escapees.

"It’s interesting that the only argument opponents (to the Anti-Shackling
Bill) really have is that prisoners will escape and therefore community safety
is at stake," said Alfieri. "But (in New York) they’re not even using that
argument. Their saying it just doesn’t happen."

It is Alfieri’s theory that DCS might have taken a different
strategy if "they ever vaguely even thought this bill had a chance to become a
law.

"After similar bills haven’t passed in recent years, (DCS)
underestimated the amount of support for this," Alfieri said. The
Anti-Shackling Bill’s success comes after at least seven years of the issue
being dropped by the legislature.

Reynolds said, "I wonder if (the DOC) knows that there is a
difference between labor and birth. Because there is a difference. They might
remove shackles during the actual birth, but labor-and labor pains-is
experienced beyond that.

"It is painful and horrific to be shackled during labor
pains," she added.

While New York’s DCS goes through the pains of downsizing
and union pressure, its leaders and employees are trying to ensure that not a
lot of more changes are happening, Alfieri said.  She believes that this contributes to DCS’s
opposition to the Anti-Shackling Bill-the department resists out of a desire to
not cause any more upheaval than is already happening.

"Security is where they come from; the impact on the health
of women and children just doesn’t occur to them, it’s just not on the table,"
Alfieri said.

Turning Point for
Incarcerated Women, Reproductive Justice Advocates

Nonetheless, awareness of the impact of incarceration on
women and children is rising across the nation.

Reynolds believes that growing national attention to
shackling is partly attributed to empathy for the child involved in births that
happen in prisons-though, she said, she hopes people recognize the connection
between the child and its mother.

The momentum is further fueled by international standards
against shackling pregnant women. Sussman said that the movement’s approach
frames the issue as violations against UN standards of torture.

"Gains on the international level are powerful for
advocacy," Sussman said. "We use it in our letters, all through our campaign."

Rhoad echoed Sussman’s ideas.

"Exploring this as a human rights issue is imperative,"
Rhoad said. "We can look at the basic standards of treatment and the strong
support in the international arena for prohibiting shackling in all but the
most extraordinary circumstances."

It’s an idea that that offers the reproductive justice
community an opportunity to evolve.

Shackling is a "very important issue for the reproductive
rights community, though it hasn’t quite been claimed yet," Saada Saar said.
"Now is an opportunity to re-claim it and shed light on mothers’ rights."

Reynolds said she agreed that shackling, as well as the
impact of incarceration more broadly, remains "sorely missing in reproductive
justice circles."

The Center for Reproductive Rights is "primarily an abortion
access organization, but (working on the anti-shackling campaign) broadens us
as a reproductive justice group," said Sussman. "The reproductive justice
community believes strongly in the full spectrum of health care, including
abortion access and childbirth services."

Sussman noted that reproductive justice groups that focus on
particular community and regions have been among the strongest advocates in the
anti-shackling campaign, recognizing, for example, how the criminal justice
system impacts communities of color.

In fact, birthing rights advocates can be credited for
overturning the practice of shackling in the city of Philadelphia (a policy
that hasn’t extended to the state of Pennsylvania).

"Doulas and midwives worked with mothers in prisons, and
they’re work and intervention changed that policy in Philadelphia," said Saada
Saar.

It is, after all, a simple idea.

"Women should be given the opportunity to recover and heal
in a treatment facility with their child," said Reynolds. "People deserve the
dignity to have a child in a healthy way, free of restraints, without feeling
more oppressed."

"Everybody is captivated by the story of how they were
born," Reynolds added. "Why shouldn’t mothers be able to tell a joyful story to
their child, without worrying about leaving out details of shackles and poor
care? That story they share should be pure and beautiful."

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