Long Past Due: Constitution Protects Women in Prison from Unsafe Shackling During Childbirth

Diana Kasdan

Last week a federal Court of Appeals held for the first time that the Constitution protects pregnant women in prison from unnecessary and unsafe shackling during labor and childbirth. Our video answers FAQs on shackling.

Last week, in Nelson v. Norris, a federal Court of
Appeals held for the first time that the U.S. Constitution protects pregnant
women in prison from the unnecessary and unsafe practice of shackling during
labor and childbirth.  Notably,
although the American Civil Liberties Union argued the case more than a year
ago, the court’s decision comes on the heels of three states (TX, NY, and NM)
passing legislation in 2009 to restrict the use of shackles on pregnant
inmates.  These three join IL, VT,
and CA in restricting the practice. 
Both the outcome and the history of the Nelson case and the recent legislation demonstrate the dramatic
shift that has taken place around this issue.


ACLU attorney Diana Kasdan answers a few questions about the controversial practice of shackling inmates during labor.

In 2003,
Shawanna Nelson was six months pregnant and serving a short sentence for a
nonviolent offense in Arkansas state prison.  When she went into labor, officials took her to the hospital
where prison security shackled her legs to opposite sides of her hospital
bed.  The shackles remained on for
the duration of her labor.  The
treatment of Ms. Nelson, unfortunately, was not a deviation from practices in
other states.  At that time, only
one state, Illinois, had legislation restricting the use of shackles on
pregnant inmates.  And the
practice, though common, had not been widely reported or publicly
discussed.  However, Ms. Nelson,
and her attorney were not deterred. 
They were confident that the federal Constitution does not tolerate the
obviously cruel, inhumane, and harmful practice of restraining a woman with
metal chains as she labors to give birth. 
So they went to court.

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In 2007, a federal trial
court decided that Ms. Nelson was entitled to proceed to trial on her claim
that shackling during labor constituted cruel and unusual punishment—a
violation of the Eighth Amendment. 
By this time, two other states, California and Vermont, had passed anti-shackling
legislation, Amnesty International had documented this nationwide practice, and
the national press had begun to call attention to the issue.

Nonetheless, in 2008, on the state’s
appeal from the trial court decision, a three judge panel of the Eighth Circuit
completely dismissed Ms. Nelson’s claim on the basis that her treatment did not
raise any constitutional concerns. That same year,
however, a national coalition of advocates came together with the mission of
raising the voices and stories of incarcerated women and ending the practice of
shackling pregnant women in U.S. prisons and jails. As part of that effort, the ACLU helped Ms. Nelson and her
attorney petition for a rehearing before the full court, and dozens of medical
and public health professional and advocates submitted a friend-of-the-court
brief in support of Ms. Nelson. In
the year it took the full court to reconsider Ms. Nelson’s case, advocates
successfully moved three more states to pass anti-shackling legislation, and
introduced similar restrictions in three other states.

Thus, last
week’s historic decision not only reaffirmed the constitutional rights of Ms.
Nelson, it demonstrated the power of collectively raising women’s voices to
remind courts, lawmakers, and ourselves of the fundamental human dignity of the
hundreds of thousands of women and mothers who are incarcerated across our
country.

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