I am the Public Policy Director/Counsel for the ACLU of Idaho — that means I have the privilege of lobbying the Idaho Legislature on all things ACLU. If you don’t know much about Idaho and its politics, let me just tell you: my job is challenging. At the beginning of each session we have goals of doing wonderful proactive work, but by the time week two or three of the session rolls around, it feels like we are on the defense and have little time for our proactive work.
This year however, we celebrated a major victory when our anti-shackling bill, H.B. 163, became law. This victory, like most, did not come easy. We first met with the Idaho Department of Corrections in the fall of 2009 to discuss our concerns about the practice of shackling pregnant women at the facility. They agreed to look into it, and a couple months later they made some changes to their internal policy and restricted the use of restraints on pregnant women during labor and delivery. It was a step in the right direction, but it wasn’t enough. For instance, the policy change only applied to state-run institutions and not the jails that serve 44 counties in Idaho. So, we decided to push for legislation during the 2010 legislative session.
I was really excited and thought it would be a no-brainer for the legislature — how could anyone think shackling a pregnant woman during labor and delivery is a good idea? We even had the support of groups like Right to Life Idaho, who we generally don’t get to work with — at least not on the same side of an issue. And things did go well right out of the gate in early 2010. But then Idaho Department of Corrections expressed opposition to the bill, and at that point, the bill was dead for the session.
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Though disappointed, we did not give up. Early in the 2011 session we worked to get the support of the Idaho Department of Corrections. And we introduced the bill with an even broader coalition of partners that was as diverse as they come — the ACLU of Idaho leading the charge, the Idaho Sheriffs’ Association, Catholic Charities of Idaho, Planned Parenthood of the Great Northwest, and Right to Life Idaho. Indeed, the diversity of our coalition was mentioned more than once, and not without laughter, during committee hearings. But even with this universal support, I won’t lie; I was still a little worried. Our legislature has become more conservative, and there was no end to major legislative issues up for debate this session — maybe legislators would simply push our bill aside for what they perceived to be “more important” issues.
I’m happy to say, I was wrong. H.B. 163 passed both the House and the Senate unanimously and was signed into law by Gov. Butch Otter on April 5, 2011.
Thanks to this new law, except in the most extraordinary of circumstances, every pregnant woman who is incarcerated in Idaho is protected against the use of restraints of any kind during labor and delivery. In addition, prisons and jails must give notice to all female prisoners about the existence of this law, and if restraints are ever deemed necessary, the reasons must be documented in writing.
While there is still room for improvement (for instance, this law doesn’t address the problem of restraints earlier in pregnancy, or during recovery), it is a giant step in the right direction. So, as always, our work is not done, and we will continue to monitor what happens to pregnant women in prisons and jails around the state. But for now, it was a great way to end the session. Of the 14 states considering anti-shackling bills this year, Idaho is the first to pass one into law this session. More importantly, in doing so, Idaho rightly joined 10 other states in enacting a commonsense piece of legislation that protects the dignity and safety of incarcerated pregnant women.
According to the new law, the jail should have been prohibited from using any type of restraint on Gamble during labor, and using of leg and waist restraints on her during and immediately after her pregnancy. It also guaranteed her minimum standards of pregnancy care and required—as with everyone incarcerated while in their second or third trimesters—that she be transported in the jail’s vehicles with seat belts whenever she was taken to court, medical appointments, or anywhere outside the jail.
But that wasn’t the case for Gamble. Instead, she says, when it came time for her to give birth, she was left to labor in a cell for eight hours before finally being handcuffed, placed in the back of a police cruiser without a seatbelt, and driven to a hospital, where she was shackled to the bed with a leg iron after delivering.
In addition to analyzing policies, they spoke with women who were pregnant while in custody and learned that women continue to be handcuffed during labor, restrained to the bed postpartum, and placed in full restraints—including leg irons and waist chains—after giving birth.
“The promise to respect the human rights of pregnant women in prison and jail has been broken,” the report’s authors concluded.
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“The Massachusetts law is part of a national trend and is one of the most comprehensive in protecting pregnant and postpartum women from the risks of restraints,” said Roth in an interview with Rewire. “However, like most other states, the Massachusetts law doesn’t have any oversight built in. This report clearly shows the need for staff training and enforcement so that women who are incarcerated will be treated the way the legislature intended.”
Gamble learned all of this firsthand. In the month before her arrest, Gamble had undergone a cervical cerclage, in which a doctor temporarily stitches up the cervix to prevent premature labor. She had weekly visits to a gynecologist to monitor the development of her fetus. The cerclage was scheduled to be removed at 37 weeks. But then she was arrested and sent to jail.
Gamble told jail medical staff that hers was a high-risk pregnancy, that she had had a cerclage, and that her first child had been born six weeks prematurely. Still, she says she waited two months before seeing an obstetrician.
As her due date drew closer, the doctor, concerned about the lack of amniotic fluid, scheduled Gamble for an induction on Feb. 19, 2015. But, she says, jail staff cancelled her induction without telling her why.
That same evening, around 5 p.m., Gamble went into labor. Jail staff took her to the medical unit. There, according to Gamble, the jail’s nurses took her blood pressure and did a quick exam, but did not send her to the hospital. “They [the nurses] thought I was ‘acting up’ because my induction was canceled,” she told Rewire.
She was placed in a see-through cell where, as the hours progressed, her labor pains grew worse. “I kept calling to get the [correctional officers] to get the nurse,” Gamble recalled. By the time a nurse came, Gamble was bleeding. “The nurse made me pull down my pants to show her the blood—in front of a male [correctional officer]!” Gamble stated. Still, she says, no one called for an ambulance or made arrangements to drive her to the hospital.
At 1:45 in the morning, over eight hours after she first went into labor, the jail’s captain learned that Gamble was in labor. “[He] must have heard all the commotion, and he called to find out what was going on,” she said. He ordered his staff to call an ambulance and bring her to the hospital.
But instead of calling an ambulance, Gamble says jail staff handcuffed her, placed her in the back of a police cruiser without a seatbelt—in violation of the law—and drove her to Charlton Memorial Hospital. “My body was already starting to push the baby out,” she said. She recalled that the officers driving the car worried that they would have to pull over and she would give birth by the side of the road.
Gamble made it to the hospital, but just barely. Nine minutes after arriving, she gave birth: “I didn’t even make it to Labor and Delivery,” she remembered.
But her ordeal wasn’t over. Gamble’s mother, who had contacted Prisoners’ Legal Services and Prison Birth Project weeks earlier, knew that the law prohibited postpartum restraints. So did Gamble, who had received a packet in jail outlining the law and her rights from Prisoners’ Legal Services. When an officer approached her bed with a leg iron and chain, she told him that, by law, she should not be restrained and asked him to call the jail to confirm. He called, then told her that she was indeed supposed to be shackled. Gamble says she spent the night with her left leg shackled to the bed.
When the female officer working the morning shift arrived, she was outraged. “Why is she shackled to the bed?” Gamble recalled the officer demanding. “Every day in roll call they go over the fact that a pregnant woman is not to be shackled to anything after having a baby.” The officer removed the restraint, allowing Gamble to move around.
According to advocates, it’s not unusual for staff at the same jail to have different understandings of the law. For Gamble, that meant that when the shift changed, so did her ability to move. When the morning shift was over, she says, the next officer once again shackled Gamble’s leg to the bed. “I was so tired, I just went along with it,” Gamble recounted.
Two days after she had given birth, it was time for Gamble to return to the jail. Despite Massachusetts’ prohibition on leg and waist restraints for women postpartum, Gamble says she was fully shackled. That meant handcuffs around her wrists, leg irons around her ankles, a chain around her waist,g and a black box that pulled her handcuffs tightly to the waist chain. That was how she endured the 20-minute drive back to the jail.
Gamble’s jail records do not discuss restraints. According to Petit, who reviewed the records, that’s not unusual. “Because correctional officers don’t see it as out of the ordinary to [shackle], they do not record it,” she explained. “It’s not so much a misapplication of the extraordinary circumstances requirement as failure to apply it at all, whether because they don’t know or they intentionally ignore it.”
While Bristol County Sheriff’s Office Women’s Center’s policies ban shackling during labor, they currently do not prohibit restraints during postpartum recovery in the hospital or on the drive back to the jail. They also do not ban leg and waist restraints during pregnancy. Jonathan Darling, the public information officer for the Bristol County Sheriff’s Office, told Rewire that the jail is currently reviewing and updating policies to reflect the 2014 law. Meanwhile, administrators provide updates and new information about policy and law changes at its daily roll call. For staff not present during roll call, the jail makes these updates, including hospital details, available on its east post. (Roll call announcements are not available to the public.)
“Part of the problem is the difference in interpretation between us and the jurisdictions, particularly in postpartum coverage,” explained Petit to Rewire. Massachusetts has 14 county jails, but only four (and the state prison at Framingham) hold women awaiting trial. As Breaking Promises noted: “Whether or not counties incarcerate women in their jails, every county sheriff is, at minimum, responsible for driving women who were arrested in their county to court and medical appointments. Because of this responsibility, they are all required to have a written policy that spells out how employees should comply with the 2014 law’s restrictions on the use of restraints.”
Four jurisdictions, including the state Department of Correction, have policies that expressly prohibit leg and waist restraints during the postpartum period, but limit that postpartum period to the time before a woman is taken from the hospital back to the jail or prison, rather than the medical standard of six weeks following birth. Jails in 11 other counties, however, have written policies that violate the prohibition on leg and waist shackles during pregnancy, and the postpartum prohibition on restraints when being driven back to the jail or prison.
Even institutions with policies that correctly reflected the law in this regard sometimes failed to follow them: Advocates found that in some counties, women reported being restrained to the bed after giving birth in conflict with the jail’s own policies.
“When the nurse left, the officer stood up and said that since I was not confirmed to be in ‘active labor,’ she would need to restrain me and that she was sorry, but those were the rules,” one woman reported, even though the law prohibits restraining women in any stage of labor.
But shackling pregnant women during and after labor is only one part of the law that falls short. The law requires that pregnant women be provided with regular prenatal and postpartum medical care, including periodic monitoring and evaluation; a diet with the nutrients necessary to maintain a healthy pregnancy; written information about prenatal nutrition; appropriate clothing; and a postpartum screening for depression. Long waits before transporting women in labor to the hospital are another recurring complaint. So are routinely being given meals without fruits and vegetables, not receiving a postpartum obstetrician visit, and waiting long stretches for postpartum care.
That was also the case with Gamble. It was the middle of the night one week after her son’s birth when Gamble felt as if a rock was coming through her brain. That was all she remembered. One hour later, she woke to find herself back at the hospital, this time in the Critical Care Unit, where staff told her she had suffered a seizure. She later learned that her cellmate, a certified nursing assistant, immediately got help when Gamble’s seizure began. (The cell doors at the jail are not locked.)
Hospital staff told her that she had preeclampsia, a pregnancy complication characterized by high blood pressure. Postpartum preeclampsia is rare, but can occur when a woman has high blood pressure and excess protein in her urine soon after childbirth. She was prescribed medications for preeclampsia; she never had another seizure, but continued to suffer multiple headaches each day.
Dr. Carolyn Sufrin is an assistant professor of gynecology and obstetrics at Johns Hopkins Medicine. She has also provided pregnancy-related care for women at the San Francisco County Jail. “Preeclampsia is a leading cause of maternal mortality,” she told Rewire. Delayed preeclampsia, or postpartum preeclampsia, which develops within one to two weeks after labor and delivery, is a very rare condition. The patient suffering seizures as a result of the postpartum preeclampsia is even more rare.
Postpartum preeclampsia not only needs to be treated immediately, Sufrin said, but follow-up care within a week at most is urgent. If no follow-up is provided, the patient risks having uncontrolled high blood pressure, stroke, and heart failure. Another risk, though much rarer, is the development of abnormal kidney functions.
While Sufrin has never had to treat postpartum preeclampsia in a jail setting, she stated that “the protocol if someone needs obstetrical follow-up, is to give them that follow-up. Follow through. Have continuity with the hospital. Follow their instructions.”
But that didn’t happen for Gamble, who was scheduled for a two-week follow-up visit. She says she was not brought to that appointment. It was only two months later that she finally saw a doctor, shortly before she was paroled.
As they gathered stories like Gamble’s and information for their report, advocates with the Prison Birth Project and Prisoners’ Legal Services of Massachusetts met with Rep. Kay Khan (D-Newton), to bring her attention to the lack of compliance by both county jails and the state prison system. In June 2015, Khan introduced An Act to Ensure Compliance With the Anti-Shackling Law for Pregnant Incarcerated Women (Bill H 3679) to address the concerns raised by both organizations.
The act defines the postpartum period in which a woman cannot be restrained as six weeks. It also requires annual staff trainings about the law and that, if restraints are used, that the jail or prison administration report it to the Secretary of Public Safety and Security within 48 hours. To monitor compliance, the act also includes the requirement that an annual report about all use of restraints be made to the legislature; the report will be public record. Like other statutes and bills across the country, the act does not have specific penalties for noncompliance.
In December 2015, Gamble’s son was 9 months old and Gamble had been out of jail for several months. Nonetheless, both Gamble and her mother drove to Boston to testify at a Public Safety Committee hearing, urging them to pass the bill. “I am angered, appalled, and saddened that they shackled her,” Gamble’s mother told legislators. “What my daughter faced is cruel and unusual punishment. It endangered my daughter’s life, as well as her baby.”
Though she has left the jail behind, Gamble wants to ensure that the law is followed. “Because of the pain I went through, I don’t ever want anyone to go through what I did,” she explained to Rewire. “Even though you’re in jail and you’re being punished, you still have rights. You’re a human being.”
Almost three years ago, the State of Indiana first charged Purvi Patel with both feticide and neglect of a dependent following Patel’s home delivery of what state doctors testified was a 25-week-old fetus. Today, there is still no clear picture of the events leading up to those charges. Based on the conflicting evidence presented at Patel’s seven-day trial, it’s not clear what Patel knew about her pregnancy, including how far along she was. It’s not clear what exactly happened that day in Patel’s bathroom. And, most importantly, there is no clear picture of whether the delivery resulted in a live birth.
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But on Monday, lawyers from the state Attorney General’s Office argued to the Indiana Court of Appeals that none of those unknowns matter. Patel’s charges of feticide for unlawfully terminating her pregnancy and neglecting a live dependent were not contradictory. Quite simply, argued Indiana Deputy Attorney General Ellen Meilaender, if there’s evidence that a person’s conduct contributed to the death of a fetus or a severely prematurely infant born alive that then dies, that person faces possible felony prosecution both for feticide and criminal neglect of a dependent—setting a disturbing potential precedent for pregnant people throughout the state.
The Indiana feticide statute makes it a felony for a person to “knowingly or intentionally terminate a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.” The statute is silent on whether a self-induced abortion falls under this category. Indiana prosecutors argue that it does and told the appeals court Monday that the jury verdict against Patel proved them right.
The state made a similar argument with Patel’s conviction for felony neglect of a dependent. According to the state, by taking abortion-inducing drugs, Patel created a situation that put her “dependent”—in other words, her fetus—in harm’s way. Once delivered alive, the state argued, Patel had a legal duty to immediately seek medical attention on its behalf, including clamping her umbilical cord immediately after delivery to prevent neonatal blood loss and calling 9-1-1 for emergency care. It made no difference, prosecutors said, that the medical evidence was contradictory as to whether there was a live birth at all, or what, if anything, Patel understood was happening at the time of the delivery.
Patel’s attorneys may disagree with the inferences made by the jury, state attorneys argued, but that doesn’t mean the law grants the court grounds to overturn the jury verdict.
It wasn’t clear to me at the end of oral arguments that the three-judge panel was buying the State’s argument. The judges pushed Meilaender hard on where the law should draw the line between taking nonprescribed abortion medications that produce a live birth where the baby then dies—as the state argued happened here—to drinking whiskey, smoking cigarettes, or taking any other host of actions that may help contribute to a miscarriage. The judges seemed to agree that it would be excessive to prosecute pregnant people for smoking, for example. The judges also appeared skeptical about the argument that the feticide statute doesn’t require the fetus to die in utero, and that even a live birth can and should be prosecuted under this statute if the accused person’s original intent was to terminate a pregnancy outside Indiana’s stringent legal abortion requirements.
But it also wasn’t clear they bought the argument of Patel’s attorney, Lawrence Marshall, that the state hadn’t met its burden of proof when it convicted her. Marshall stammered to keep the judges on point, refusing to answer whether federal constitutional precedent, from Roe v. Wade to Planned Parenthood v. Casey, would protect many other people from unchecked pregnancy policing under feticide laws. (Spoiler: The simple answer is no—as Tennessee, Mississippi, Alabama, and Arkansas, to name a few, show).
The heart of the state’s negligence case against Patel rests on her alleged failure to seek care for a live birth. Yet Marshall could not specifically and directly answer the judges’ concerns that Patel, after allegedly cutting the umbilical cord during delivery, should have also immediately clamped or kinked it to prevent any blood loss to the fetus she just delivered. He did not note that it is unreasonable to expect any woman immediately following an extremely premature delivery to have the presence of mind to do such things, lest she face felony prosecution. He tried to point out that there was medical testimony at trial that at 25 weeks, severely prematurely born infants have only modest survival rates even when born at hospitals and immediately transferred to neonatal intensive care units, and tried to argue the state couldn’t prove that Patel had any idea a live birth had even happened. But all those counters appeared to fall flat on a panel of judges clearly willing to consider, and perhaps even accept, that Patel’s failure to kink her umbilical cord and call 9-1-1 immediately post-delivery was sufficient to convict her for felony neglect of a dependent.
Throughout the trial and the appeal, the state compensated for its lack of direct evidence about the situation by trying to redirect the jury’s focus to Patel’s “character,” which, prosecutors argued, helped inform the decision to convict her. Patel was in a relationship with a married man. Evidence at trial showed she had been texting back and forth with a friend concerning the pregnancy and her desire to terminate it, in part because of fears her conservative Hindu family would not support her. That’s both sexually provocative and naive, argued the state in its appellate brief—provocative because she was acting outside religious and social norms, and naive because “family would have loved her regardless and would have welcomed the baby, as it is their religious belief to love a child even if born out of wedlock and their religion is opposed to killing anyone or anything.”
Meanwhile, the state argued, the evidence that should be weighed in Patel’s favor did not matter. That included evidence at trial that showed Patel believed she was only about 12 weeks pregnant—not about 25 weeks—when she took the unprescribed abortifacient. Not important, argued the state. All that matters is her fetus was old enough to fall outside Indiana’s limit on 20-week abortions. Evidence at trial showed that Patel tried, ultimately unsuccessfully, to navigate Indiana’s web of anti-choice restrictions before ordering abortion-inducing medications online; but that just demonstrates Patel had the right criminal intent to support the jury’s conviction, said Meilaender, not that those regulations are difficult for non-lawyers to navigate on their own.
In other words, argued Meilaender, the details that should normally be necessary to support a criminal conviction—details such as what Patel knew, and when—just don’t matter in this case.
Those details do matter. That’s why the U.S. Court of Appeals for the Ninth Circuit rejected nearly identical arguments in the prosecution of Jenni Linn McCormack, an Idaho woman who also terminated a pregnancy and was criminally prosecuted for it. Expecting patients to understand the intricacies of abortion restrictions or face criminal prosecution at its very core unduly burdens abortion rights, that court ruled.
It will likely be months before the Indiana Court of Appeals issues its opinion. And I’m not going to make any guesses about how this case turns out. But I will say that, despite all the unknowns in the Patel case, there are plenty of knowns that ultimately affect Patel and pregnant people in Indiana as a whole.
We know that Indiana law does not mandate sex education be taught in its schools. The Indiana Department of Education recommends its inclusion as part of a school’s comprehensive health education program. But that’s it. And for those schools that decide to offer some form of sex ed, there’s no requirement that the information provided be unbiased and medically accurate, let alone do anything other than stress abstinence-only sex ed. And of course, parents in Indiana have the option of opting out of sex ed entirely for their children should they so choose.
We also know that legal abortion in Indiana is extensively and severely restricted. First, any person seeking an abortion must receive state-mandated counseling that includes information designed to discourage the patient from having an abortion. That counseling must be done in person. Indiana law then requires a patient to wait an additional 18 hours after that counseling session before an abortion can be performed. That means, effectively, patients must make two separate trips to an abortion clinic to have the procedure. A patient must also undergo an ultrasound before obtaining an abortion and during that ultrasound the provider must offer her the option to view the ultrasound image.
Indiana law also prohibits the use of telemedicine for medication abortion. Also, Indiana bans abortions after 20 weeks, with only a very narrow exception of when the patient’s life or physical health is at risk.
And if that patient can navigate the consent and waiting period requirements, how will they pay for the procedure? In Indiana, abortion is covered in private insurance policies only in cases of life endangerment, rape, incest, or the severely compromised health of the pregnant person. Individuals have the option of buying a separate abortion policy, but that, of course, is at additional cost.
What do Indiana’s sex ed requirements and abortion restrictions have to do with Patel’s conviction and appeal? Everything.Just like the fact that Patel, like Bei Bei Shuai before her, is not white and is not wealthy. A lack of comprehensive sex education means it’s increasingly likely other patients will, like Patel, have very little apparent understanding of the pregnancy process, particularly early on in pregnancy when indicators such as a missed period can be mixed. An increasingly draconian set of abortion restrictions means more and more patients like Patel will find themselves unable to access a legal provider or afford an abortion at all, which means that more and more patients like Patel will be forced into either attempting to self-terminate an unwanted pregnancy or carrying it to term.
Attorneys for the State of Indiana tried to tone down the “canary in a coal mine” aspect to Patel’s conviction. But there really is no denying it. During Monday’s arguments, they were pressing for the right to bring felony charges against women who terminate their own pregnancies. They insisted those prosecutions are exactly what the Indiana legislature intended when passing its feticide statute and further, such prosecutions advanced the state’s “significant” interest in protecting “unborn human life.”
Combine those arguments with the unavailability of comprehensive sex ed and the anti-choice restrictions in Indiana, and it’s clear that Patel’s case is absolutely a test case in the limits, if any, of state power to regulate pregnancies and their outcomes. Should Patel’s conviction be upheld, then the courts will have sent a very strong message to the the people of Indiana: The state expects and demands a healthy, live birth with each pregnancy, and failure to produce one could result in felony charges.