The ACLU filed a federal lawsuit today on behalf of a Pennsylvania couple whose newborn was removed from their care over the mother's positive drug test. Only she wasn't on drugs - she had eaten a poppy-seed bagel before going into labor and the hospital who gave the test made a series of bad mistakes.
We all have nightmares from which we awaken, in the middle of the night, wiping our brows and silently thanking a deity of one sort or another that it was all just a dream.
But for some, as absurd as the events may seem, the nightmare is real.
The ACLU of Pennsylvania filed a federal lawsuit today on behalf of a couple, Elizabeth Mort and Alex Rodriguez, who experienced such a nightmare.
In April of this year, Elizabeth Mort gave birth to a beautiful baby girl; her first child. The baby’s name is Isabella. The threesome (Mort, Rodriguez and Isabella) returned home on April 29th, 2010, from Jameson Hospital where isabella was born, ready to settle into life as a family. One day later baby Isabella was taken from her parents by Lawrence County Child and Youth Services (LCCYS) and held for five days at an undisclosed location, because Mort had failed a drug test given to her while in the hospital.
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Mort had eaten a poppy-seed bagel from Dunkin’ Donuts two hours prior to checking into the hospital before giving birth. The drug test picked up on the poppy seeds and came out positive. The agency, with two police officers present, acting on the information from the hospital-adminstered drug test, took Isabella from her parents.
“When she was gone our family was just at a loss of words,” Mort said. “I couldn’t stop crying. Alex just didn’t even know how to be himself. It felt like our heart was ripped in pieces. The most important person was missing, and we didn’t know when we would see her again.”
How did this happen?
Jameson Hospital, according to the lawsuit, tests all of its maternity patients for drugs despite the fact that neither federal nor state law requires it. The hospital also reports all positive drug tests to LCCYS though, again, this is not mandated by law.
Mort had no idea that her drug test had come back positive until her newborn was taken from her. She was never asked, while in the hospital, whether she had eaten or taken anything that might interfere with a drug test. It was not until Mort’s husband began his own research, distraught at his newborn baby being taken away, did he find out independently that poppy-seeds in fact may influence a drug test.
The hospital did not interview Mort, did not speak with family or friends about Mort and whether there was cause for concern over her baby’s welfare; nor did the hospital speak with Mort’s obstetrician before authorizing LCCYS to seize the newborn accompanied by an (unannounced) police presence.
Though Mort was eventually cleared of any illegal drug use and Isabella was reunited with her family, the family is bringing a lawsuit against Jameson to stop the hospital from wreaking unnecessary havoc on other families who may be victimized by the irresponsible policies.
The lawsuit alleges not only that the hospital is responsible for the harm done to Mort, from taking away her baby, but that her rights were violated when the hospital allowed caseworkers to come in and take her baby without any evidence or reasonable suspicion for doing so, except for a positive drug test – which turned out not to be indicative of drugs anyway.
According to the ACLU,
“During one meeting between LCCYS and Mort, a caseworker admitted the agency had experienced problems with Jameson in the past and that it made a mistake by removing Isabella. The baby was returned to her parents on May 5, 2010. The following day, LCCYS filed a motion with the court saying “[a]fter further investigation, there is no evidence to support illegal drug use by the natural mother, Elizabeth Mort.”
The question of why Jameson Hospital has a policy of drug-testing all obstetrical patients and reporting all positive test to LCCYS, without clear goals for moving forward with the information, is central. Maternity patients may need to agree to the test, but are they agreeing to also be reported to a child welfare agency with a positive test? With no direct follow up first with the patient in question? And to what end? Are these tests meant to ensure newborn safety or to help set the stage for further care for the woman – or both? Certainly, if health providers can help offer referrals and resources or support for people who are struggling with drug addiction, that may be helpful. But it’s a tremendous leap from a woman’s positive (potentially false) drug test to immediately removing a newborn from the home with absolutely no supporting evidence. Perhaps it’s not only the hospital, however, that needs to review its policies but the LCCYS as well. Over whose welfare are they watching if they are so quick to remove a newborn from her parents risking such a diastrous mistake?
Emily Baker, a Florida mother, was prescribed buprenorphine by her doctor to manage her opiate addiction. She’d been opiate-free for three years when she conceived her second child. Despite taking a medication that was prescribed and monitored by her doctor, the hospital reported her to the state Department of Children and Families immediately after she delivered.
Women, particularly poor women and women of color, are having their babies taken by child protective services, sometimes while they are thrown in jail, for an alleged addiction that needs treatment, not punishment. While this isn’t a new problem, mainstream recognition of a national “opiate epidemic” has politicians scrambling for solutions. But these carceral and punitive responses are dangerous and attack the symptom, not the root cause. With so much at stake, the NAS treatment babies are getting in the hospital after their birth may be contributing to the problem.
How did we get here?
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Neonatal abstinence syndrome is the condition that occurs when babies are born with a physical dependence on a drug because they received that drug in utero. This transmission could have occurred because the baby’s mother used illicit drugs or because she was taking certain medications as prescribed by a doctor. It can also occur if a mother is working with a doctor who prescribes her methadone or buprenorphine as medication-assisted treatment for her opiate addiction.
In 1975, Dr. Loretta Finnegan developed a scale to measure withdrawal symptoms in drug-exposed babies, and it’s still used today to diagnose the condition in newborns. Symptoms of NAS include tremors, excessive crying, yawning, sneezing, diarrhea, and poor sucking, among other things. Often, NAS is treated with morphine, which the baby is given in small doses and slowly tapered off of over the course of several weeks (or longer).
Finnegan was one of the pioneers in the field of NAS research. She’s been called “the godmother of NAS” by the Nation magazine, and with good reason. She is credited with coining the term “neonatal abstinence syndrome,” and for years, her work has set the standard for how babies born with NAS are treated in hospitals across the country.
At Pregnant Women, Drug Use, and Neonatal Abstinence Syndrome: Research & Policies that Support Mothers, Babies, and Families, a recent symposium in Nashville, Tennessee, Dr. Davida Schiff from Boston’s Children’s Hospital moderated a panel on improving guidelines and protocols for managing NAS. Schiff asked an audience comprised predominantly of medical professionals how their hospitals currently treat babies born with NAS. The results showed that not much has changed since Finnegan made her recommendations in the 1970s.
Though groundbreaking at the time, the recommended protocols are hard on both mom and baby. Worse, they may actually contribute to or exacerbate NAS symptoms in babies. Babies born to mothers known to be using opiates or other drugs are typically separated from their mother and taken to the NICU, where they are observed in a quiet, dimly lit room. They are monitored for signs of withdrawal by having their Finnegan score measured on a regular basis. The mother is often discouraged from breastfeeding.
Baker says that during her second pregnancy, her daughter was kept in the NICU for two weeks and treated for NAS with morphine. Says Baker, “[My baby] was doing great, she was breastfeeding awesome. She had no signs of withdrawal and no trace of buprenorphine in her system. But the hospital said, ‘this is our policy, we’re going to watch her in the NICU for 48 hours.’” Baker had hoped to take her baby home without needing NAS treatment, which her obstetrician had assured her she would be able to do as long as her baby was doing OK.
Some medical professionals, however, feel there is a better way to test for and treat NAS, and they’re doing research to back up their claims. Dr. Ron Abrahams, who has been practicing in Vancouver, Canada for 30 years and founded the FIR (Families In Recovery) rooming-in program at B.C. Women’s Hospital and Health Centre, believes that “when you put a baby in a special care nursery, you’re putting it in an abnormal environment. And when you put a baby in an abnormal environment, it will exhibit abnormal behavior.”
Baker says that this is exactly what happened to her daughter. “She had no signs of withdrawal until they discovered that she had jaundice the third day we were there. They threw her under the bili lights [to treat her jaundice] and then all of the sudden she’s having withdrawal symptoms.”
Dr. Mary Hepburn has been working with pregnant women who use substances in Glasgow, Scotland for the last 40 years. And, according to her, “when the mother can stay with her baby, the Finnegan score goes down. Scoring a baby away from its mother results in a different score than scoring the baby when it is with its mother.”
She believes putting the baby with the mother immediately after birth is the best practice. Abrahams agrees—and so does his research. In a 2007 study, he found that “rooming-in”—allowing babies to remain in the room with their mothers following birth—improves outcomes for these babies and reduces the symptoms of NAS by as much as 50 percent.
It makes logical sense that the things that benefit all babies—breastfeeding, skin-to-skin contact, and bonding with their mother—benefit drug-exposed babies too. Women who give birth to a baby generally want to stay with that baby, hold that baby, nurture that baby, and love that baby. Putting their baby in a room far away from them goes against their instincts and wishes. And it turns out that trusting those instincts may actually be beneficial for both mom and baby.
At the NAS symposium, both Abrahams and Hepburn expressed their belief that the Finnegan score should be thrown out altogether. Hepburn explains that when you’re looking for a sneeze or a yawn to document, you’re more likely to not only see those things, but view them as abnormal or problematic. Baker called it “confirmation bias.” She says, “My baby did yawn and she did cry—but, hell yes she cried; she was naked and under the [bili] lights!”
The subjectivity of the scale is one of its biggest liabilities. Each nurse is likely to score a baby just a little bit differently. Baker says that her baby could have been jaundiced because she was breastfeeding, like so many other babies are. But she believes that because she was on buprenorphine to treat an opiate addiction, the nurses chose to see a baby in withdrawal. Abrahams says that the score looks at normal baby behavior that can be interpreted subjectively as withdrawal, “particularly if it’s a brown baby or a poor baby.” He believes that the scoring leads to diagnoses influenced by racial biases.
So what is a good objective indicator of whether or not a baby is doing well? Weight gain. Hepburn says that as long as mom can settle the baby so that it can feed, the baby most likely doesn’t need treatment. Both Hepburn and Abrahams say that neither of them operate under the assumption of withdrawal, and that all other causes for infant behavior should be ruled out before diagnosing a baby with NAS. Abrahams explains that “NAS is a diagnosis of exclusion.”
And excluding NAS as a diagnosis can be the difference between a mother going to jail or a baby being taken into state custody, and a mom leaving the hospital with her child. The women in Abrahams’ study who roomed-in with their babies were more likely to be discharged with custody of their babies too.
Baker says it took over six months to convince the Florida Department of Children and Families that she was a fit parent. She describes countless home visits, DCF interviews with her family and friends about her parenting, and intrusive searches of her cabinets and refrigerator. Though she never officially lost custody of her daughter to the state, she describes the experience as incredibly stressful. “Psychologically, the damage that does to not just me, but my family, my other daughter, you know, the stress that put on my family was unreal.”
It turns out that the benefits to mom and baby aren’t the only upsides to adopting the rooming-in model of care. It’s actually cheaper too. A 2013 study conducted at Dartmouth found that rooming-in decreased the average cost of a mother’s hospital stay by half, partly due to the shortened length of hospital stays for babies that had roomed-in with their mothers. Canada is moving toward a standard of care that consists of rooming mom and baby together.
The United States is just starting to catch on. The Vermont Oxford Network has started a pilot project to improve care of opioid-exposed newborns. According to their website, leaders in quality improvement from three states have adopted their model of care and are working to develop coordinated statewide collaboratives in Massachusetts, New Hampshire, and Michigan. These collaboratives seek to improve the quality of NAS treatment in their state by developing goals, measures, and education events.
At the same time, conservative lawmakers are championing policies that criminalize women for using drugs—whether those drugs are licit or illicit. In 2014, Tennessee’s existing fetal assault law was amended to permit the arrest of pregnant and postpartum mothers based on the argument that this would encourage mothers to seek treatment for their addiction. But making a health-care issue a criminal justice one introduces human rights violations that infringe on a person’s right to health, non-discrimination, and privacy, according to Carrie Eisert of Amnesty International, who spoke on a panel at the Pregnancy, Drug Use, and the Law conference the day prior to the NAS symposium. She says that this criminalization also impedes access to needed health-care services and makes a woman less likely to seek prenatal care for fear of punishment. And we know that these laws disproportionately impact marginalized women from underserved areas, women living in poverty, and women of color.
These conservative lawmakers may not care about the humanitarian arguments, they may or may not care about the scientific arguments, but they very well may care about the cost arguments. Those numbers may be enough to convince the people with power to adopt rooming-in as the standard of care for drug-exposed babies—with, of course, the side effect of benefitting everyone involved.
At the NAS symposium in Nashville, the old guard and the new went head-to-head. After Abrahams presented his research, Finnegan raised her hand to argue that rooming-in wouldn’t work in the United States. Citing the Dartmouth program, Abrahams countered that it would and it does. “Where there’s a will, there’s a way. And we now have evidence that shows it’s cheaper to keep the babies with their mother postpartum rather than putting them in the NICU.”
Finnegan shot back that “without evidence-based research,” the United States can’t adopt his model because “we have the issue of malpractice here.” Tension in the room was high as two leaders in their field challenged each other.
But Abrahams didn’t miss a beat, “In the next five or ten years, if we develop a protocol that says rooming-in is the national standard of care, it will [and should] be malpractice to separate a baby from their mother whether she is drug exposed or not.” Abrahams got not only the last word with his comment, but a round of applause from the room.
This is about more than pride or professional reputations. This is about the mothers and babies who are suffering every day, due to draconian laws and oppressive, outdated protocols. The best we could do 40 years ago is not the best we can do now—we know better, and it’s time to do better. Rooming-in, breastfeeding, and skin-to-skin contact have been shown to drastically improve the outcomes for babies with NAS and decrease the number of babies being diagnosed with it too. Lives depend on these new protocols being implemented in hospitals around the country, and it can’t happen soon enough.
Rewire has identified at least a dozen instances of women experiencing miscarriages, stillbirths, and ectopic pregnancies in jails and prisons across the country, in circumstances that show a shocking lack of medical care from the professionals charged with providing it.
This is the second article in Rewire’s Women, Incarcerated series. You can read the other pieces in the series that have been published so far here.
On the morning of September 11, 2011, Krystal Moore thought she was dying. Sharp pain stabbed at her stomach, so much so that she curled up into a fetal position on her bed. She didn’t know what was happening. Though she was pregnant, she was only six months along, not nearly ready to give birth.
She couldn’t simply call the family doctor. She was an inmate, serving time at the Jerome Combs Detention Center in Kankakee, Illinois, for smoking marijuana while on probation. But in the early hours of that Sunday morning, her pain was escalating quickly.
“I woke up hurting,” she told Rewire. “I tried to get in the shower, and I couldn’t.”
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She asked to go the hospital. She had spoken to some other inmates, and she began to think she was having contractions. The pressure on her stomach was getting worse.
A guard telephoned the jail nurse, Ivetta Charee Sangster, to tell her that Moore was having stomach pains. Sangster was on duty that Sunday, though she wasn’t actually at the detention center, which, like many jails, doesn’t have full-time medical staff available, despite housing a sick and vulnerable population. Even if Sangster had been there, she was only a licensed practical nurse, a role that generally involves providing only very basic medical care, like taking a patient’s blood pressure or changing a bandage. She would not have been able to give Moore the urgent care she required for what had become a serious infection of her womb.
Meredith Manning—Tennessee, 2004
Twenty-three-year-old Manning began to miscarry in a Corrections Corporation of America facility. She bled for two days before she was taken to the hospital, where she gave birth to a baby that died shortly after. This case settled for $250,000.
Sangster sounded irritated on the phone, according to the transcript of the call that later appeared in a lawsuit filed by Moore.
“Krystal Moore, she’s—in my opinion, a lot of times she’s full of shit,” Sangster told the guard. “You can go eyeball her and call me back if you want. She’s probably full of shit. But you can let her know that she can see the doctor tomorrow if she’d like.”
Our attempts to contact Sangster were unsuccessful.
By 2:30 that afternoon—at least eight hours since she first alerted guards to her pain—Moore began bleeding while sitting on a toilet. Screaming out of pain and fear, she was finally taken to a local hospital, but not before being forced to walk down the stairs from her cell to the ambulance, according to a court opinion from December 2013.
Moore was fully dilated by the time she arrived at the hospital, where she says she was shackled to the hospital bed. Then, around 5:20 p.m., she gave birth to twins. Had she been taken to hospital earlier, there was a possibility that the babies could have survived, according to an expert who provided evidence for the lawsuit. Instead, one baby lived for only a day; the other survived for 16 days.
“I remember it clear as yesterday. I think about my twins every day and every night. How would they be?” Moore said.
Shela Williams—Texas, 2014
Williams was 18 weeks pregnant when she entered a Texas jail. She had a high-risk pregnancy but did not receive adequate obstetric care while incarcerated. When a doctor finally did examine Williams, he told her that her child “wasn’t going to make it.” She went to a nearby hospital, where she delivered her stillborn; she was not allowed to attend his funeral.
Moore’s case settled last year for $620,000, according to her lawyer. But in a five-month investigation, Rewire found that her story is not unique. After reviewing more than 200 legal cases, as well as the Human Rights Defense Center’s database of “Deaths in [Corrections Corporation of America] Custody,” Rewire identified at least a dozen instances of women experiencing miscarriages, stillbirths, and ectopic pregnancies in jails and prisons across the country, in circumstances that show a shocking lack of medical care from the professionals charged with providing it.
This number is most likely a dramatic under-representation of the problem. In addition to the shame and grief that many women feel at the loss of a pregnancy, incarcerated women often fear complaining about their miscarriages behind bars because they do not want to compromise ongoing cases or face retribution from jail or prison staff, according to community activists and researchers who work closely with incarcerated women.
Bethany Cajúne—Montana, 2009
Although Cajúne was pregnant, and both her doctor and drug treatment counselor had prescribed her continued use of Suboxone (a medication that suppresses withdrawal symptoms) in jail, the doctors and nurses there would not give her the prescription. She went through immediate withdrawal, losing ten pounds in less than two weeks. She feared she would lose her baby. Finally, after nine days, a public defender intervened and she received the treatment. This case settled in 2011.
To be sure, low-quality prenatal care is a symptom of the larger problem of poor medical care in corrections facilities in the United States, as has been documented in California, Arizona, and Florida and through thousands of lawsuits against prisons and the private contractors that sometimes run them.
Prison health services were so bad in the 1960s and 1970s that in 1976 the U.S. Supreme Court ruled that failure to provide appropriate medical care to prisoners amounted to a violation of the U.S. Constitution’s prohibition on cruel and unusual punishment. As a result, incarcerated people are the only group in the United States with a constitutional right to medical care.
The cases we examined were strikingly similar to Moore’s: pregnant women waiting weeks to see doctors, nurses instructing women to take antibiotics for labor pains, and inmates miscarrying in toilets or on cell floors. Sangster’s comments would have fit into any of the cases that we read. Again and again, we saw women inmates in need of prenatal care ignored, silenced, and disbelieved.
Gretchen Harbison—Indiana, 2010
Harbison could not feel her fetus move for three days. She was eventually transferred to a hospital, where she delivered a stillborn. Harbison alleges that the prison doctor failed to treat her pregnancy with any urgency, despite knowing that she had four complicated deliveries in her past.
“I feel like that jail done killed my kids,” said Moore. “I’ve been feeling that since the day I gave birth.”
Prenatal Care Is Crucial—and Missing—Behind Bars
At the end of 2012, there were more than 200,000 women in prisons and jails, comprising 9 percent of the nation’s incarcerated population. Based on current trends, the number of women behind bars is expected to grow.
The median age of women in state and federal prison is 34, and the majority of incarcerated women are of reproductive age, according to a study by the Bureau of Justice Statistics. Many women in prison have high-risk pregnancies, complicated by problems including poor nutrition, domestic violence, mental illness, and drug and alcohol abuse.
Poor prenatal care in corrections facilities is a grave concern, especially since those facilities have become one of the major providers of health care for marginalized communities, according to Brad Brockmann, executive director of the Center for Prisoner Health and Human Rights at the Miriam Hospital in Providence, Rhode Island, an affiliate of Brown University.
“For many of the individuals who come into the system, their first physical as adults is when they enter prison or jail, because prior to January 2014 Medicaid was not available to many, with only safety-net programs available in the community,” Brockmann said.
Tiffany Pollitt—Pennsylvania, 2010
An inmate hit Pollitt in the stomach; she repeatedly reported the incident, but no doctors or nurses took her seriously. She continued to say she was in serious pain. Corrections officers told Pollitt to “grow up,” asked her what she expected them to do, and told her “better luck with next shift.” Then Pollitt bled all over the floor of her cell. Finally, she was transferred to a nearby hospital, where she delivered a stillborn baby.
The quality of prenatal care provided by prisons or jails varies wildly between and within states, with most facilities providing very poor care, according to a 2010 review of state policies by the National Women’s Law Center and the Rebecca Project.
The survey graded all 50 states on their treatment of mothers behind bars. Thirty-eight states received a failing grade in the category of prenatal care. The researchers reported that 43 states do not require medical exams as part of prenatal care for women in confinement. Forty-eight states don’t offer pregnant women screening for HIV.
And this review only examined what states said their policies were; there were no on-site inspections. “Paper reviews are of limited value in a corrections context,” said Amy Fettig, senior staff counsel for the ACLU’s National Prison Project.
The reality is, no one is looking closely at what is happening in practice on a national scale when it comes to the care of incarcerated pregnant people, experts told Rewire.
DeShawn Balka—Georgia, 2012
Balka was about 24 weeks pregnant when she entered the jail. She experienced nausea, cramping, bleeding, and vaginal discharge, which she reported to jail guards. No one examined her. Then she began experiencing extreme pain and cramping. She sat on the toilet in her cell and pressed the emergency call button; no one responded. Ultimately she gave birth into the toilet. Her baby was pronounced dead at the hospital a few hours later.
For instance, there are no clear answers to some fundamental questions, such as how many women are pregnant during incarceration each year in the United States. A 2011 report by the American Congress of Obstetricians and Gynecologists put the number at 6 to 10 percent of incarcerated women, while a 2008 study by the Bureau of Justice Statistics estimated that between 4 and 5 percent of women admitted to state and federal prisons that year were pregnant.
There are also no comprehensive data for the number of pregnant women in jails, which typically house people prior to conviction or sentencing, or sometimes for immigration matters or for shorter sentences.
And there is simply no national picture of pregnancy outcomes—miscarriages, abortions, stillbirths, and live births—for incarcerated women, experts told us. The most recent data we could find came from 1998, when the Government Accountability Office reported that there were about 1,400 births in prisons that year.
Only two states require collection of data on pregnancy outcomes for incarcerated women—Delaware and Oregon, according to the Rebecca Project report. Delaware did not respond to our request for records, but Oregon provided information recorded about the only state prison that houses women, Coffee Creek Correctional Facility, between July 2012 and November 2014.
Countess Clemons—Tennessee, 2011
Eighteen-year-old Clemons started miscarrying in a prison in Tennessee. After leaving her in a cell for almost three hours, guards took Clemons to a hospital, where she delivered a baby who died soon after he was born. This case settled for $690,000 in 2014. The Corrections Corporation of America was also issued a sanction for destroying video evidence of the delay in treatment.
That data say there were 51 pregnant prisoners during that time, but give little insight into the type of care provided to these women, apart from the indication that some women were assessed to see whether their pregnancies were high-risk. Of these pregnancies, 37 resulted in births while incarcerated. Eleven women had c-sections, and three women’s labor was induced. There was one miscarriage and one abortion, and an additional four women returned a negative pregnancy test after earlier indicating that they were pregnant. At the time the data were provided, seven of the pregnant prisoners remained incarcerated, while at least two had been released prior to giving birth.
The data do not cover jails, which are governed separately by each of Oregon’s 36 different counties, according to Wendy Smith, a spokesperson with the state’s Health Services Administration.
It’s therefore reasonable to imagine that thousands of women around the country are experiencing a wide range of pregnancy outcomes while in jails and prisons, with no oversight mechanism to track the care they receive.
But most states do not collect data on incarcerated pregnant woman, and there is no national set of data about prenatal care or pregnancy outcomes for incarcerated people.
Experts say this lack of national and local data is no coincidence.
“It’s one of the many areas where the lack of data points to the invisibility of incarcerated people, and specifically incarcerated women,” Tamar Kraft-Stolar, director of the Correctional Association of New York’s Women in Prison Project told Rewire.
Nicole Guerrero—Texas, 2012
Guerrero began to experience pain, bleeding, and cramping, and alerted medical staff. Guerrero was put in solitary confinement, where she went into labor by herself on the floor of her cell. The umbilical cord was wrapped around the baby’s neck, and the baby was later pronounced dead. Guerrero was made to stay in solitary confinement while the infant was taken away.
Despite the lack of comprehensive national data, our investigation found that, with few exceptions, prenatal care in prisons and jails across the country is shockingly inadequate.
For Laila Batts, poor prenatal care behind bars came close to ending her life.
In early January 2007, Batts was detained for ten days at the Elmwood Complex Women’s Facility, in Santa Clara, California, after writing a bad check to pay some bills.
Batts was in her first trimester of pregnancy the day she entered jail, and that night she began to experience spotting and severe cramping. For the next ten days, Batts complained to nurses about her pain.
By Monday, January 8, Batts told jail staff that she wanted to go to the hospital, because her condition was getting worse. Her request went unfulfilled. On January 9, a nurse saw Batts bleeding on the floor of her cell and complaining that her symptoms were getting dramatically worse, but the nurse did not send for emergency help. When Batts finally saw a doctor the next day, January 10, the doctor noted that she was suffering from an abnormal pregnancy, was at risk of an ectopic pregnancy, and required care, according to records produced in the lawsuit. But instead of providing that care, the doctor sent Batts back to her cell. Batts thought she was suffering a painful miscarriage.
“What started out as a request for modified community service in light of her pregnancy turned into a near-death sentence, bringing Ms. Batts within hours—perhaps minutes—of losing her life,” court filings said.
The day after she was released from jail, Batts woke in excruciating pain and was rushed by ambulance to the emergency room, where, she told Rewire, surgeons removed her ectopic pregnancy, as well as a fallopian tube. Ectopic pregnancies are extremely dangerous, and require immediate attention to avoid potential death of the pregnant person.
Latish Durden—Georgia, 2012
Durden had a high-risk pregnancy and had surgery on her cervix while at the jail. She required constant monitoring. She began experiencing cramping, bleeding, and discharge, but she was not treated. Eventually she was taken to the hospital, where she delivered a stillborn baby.
Batts settled her case, but declined to say how much she was awarded.
What is unusual in her lawsuit is that the complaint focused on the physical and mental pain that she endured. The vast majority of cases we examined focused on the loss of the fetus, not on the suffering of the pregnant woman, because the law tends to focus more on permanent losses—the death of a “viable” fetus—than on temporary pain experienced by the woman. For this reason, we found more cases involving stillbirths (a loss of pregnancy after 20 weeks’ gestation) than miscarriages, which occur prior to 20 weeks.
And because many miscarriages are difficult, if not impossible, to prevent, it is extremely difficult for women who have suffered them while incarcerated to prove any fault on the part of the authorities. This makes mistreatment of miscarriage tough to detect, with even grassroots community advocates struggling to identify where it has occurred.
Diana Claitor, executive director of the Texas Jail Project, says she usually doesn’t hear about a miscarriage from the woman who suffered it.
“Mostly we get a grandmother calling,” Claitor told Rewire. “The first call I got was an elderly Hispanic woman asking, ‘Is there any way we can get the body of our dead grandchild and put it in the family plot?’”
“Sanctity of Life in Texas Looks Like This”
Many of the cases of miscarriage or stillbirth we found occurred in states that have recently introduced laws that claim to protect fetuses, even at the expense of the woman bearing them.
For example, miscarriage in Texas is treated differently if it does not happen behind bars.
Last year, Dallas police swarmed a high school after a fetus was found in a toilet. They launched an investigation, reviewing video footage and interviewing teachers to find the “suspect.”
But two years earlier, no such attention was given to the case of Autumn Miller, who in the summer of 2012 miscarried into a toilet while serving a one-year sentence at the Dawson State Jail, also in Dallas.
Miller, who in pictures has light brown hair and a warm smile full of straight, white teeth, was already the mother of three children. She had entered the jail in February, after violating probation on a drug possession charge, not realizing she was pregnant.
Throughout May and June, Miller complained of cramps and fatigue, and requested a pregnancy test and Pap smear. She never received either from the jail.
On the night of June 14, Miller began bleeding, and experiencing pain so severe that she couldn’t walk, according to a lawsuit filed against the Corrections Corporation of America. Miller told guards she felt like she was having a baby.
Guards brought her to a medical unit where a nurse waited on a telescreen (like the jail in Kankakee, there was no full-time medical staff on-site). But Miller could barely explain what was happening before a guard turned off the screen, handed her a menstrual pad, and locked her in a segregated cell.
Screaming, Miller gave birth into a toilet. She was then handcuffed, shackled, and transported to the hospital separately from her newborn. Miller named the infant Gracie Robinson; she barely weighed a pound. Gracie died four days later.
“They had her locked in a cell down in the medical area, all by herself, when she was laboring, unbeknownst to her,” Miller’s lawyer, Paula Sweeney, told Rewire. “Then they couldn’t find the key to get the door open when it became apparent what was going on. Then, as she’s laying there on the cot, with blood everywhere, in terror and agony, the male guards start taking pictures with their cellphones.”
Miller’s case was settled in January 2014, and the facility that housed her has since been shut down because of budget cuts as well as increased scrutiny about what was going on behind the prison walls.
“Texas runs around bragging about the sanctity of human life, until you get a chance to see it in real life,” Miller’s lawyer told us. “Sanctity of life in Texas looks like this.”
No Role for Prosecutors in Prenatal Care
Experts have a wide range of recommendations to improve pregnancy care in prisons and jails, including laws that require tracking and reporting pregnancy outcomes, the elimination of solitary confinement for pregnant prisoners, and an increase in inmates’ access to OB-GYNs.
In Texas, a coalition of groups, including the Texas Jail Project and the ACLU of Texas, is pushing for a bill that would mandate tracking of prenatal care and treatment of pregnant prisoners in the state’s approximately 250 county jails.
The bill has caused unease among some women’s advocates, however, because of fears that gathering data on pregnant inmates could lead to more punitive action by the state.
“There is legitimate fear from legislators that are interested in doing this kind of tracking that those numbers will be used to punish pregnant women for drug use,” Mathew Simpson, policy strategist at the ACLU of Texas, told Rewire. “When it comes down to it, if we don’t know the birth outcomes, we can’t make an assessment of where the gaps are.”
The broader picture, however, is that jails and prisons are generally the wrong place to house pregnant women, given that they frequently lack the appropriate staff or facilities, and are fundamentally geared toward punishment, not care.
“Judges and prosecutors think that it’s a good idea to empower jail guards—whose job is to punish criminals—to give prenatal care,” Lynn Paltrow, the executive director of National Advocates for Pregnant Women, told Rewire. “There has to be a very clear consensus that there is no role for prosecutors to be involved in prenatal care.”