Maternity and Birthing

Two More Victories against Inhumane Treatment of Imprisoned Women

Rachel Roth

Two victories in one day: A federal jury in Tennessee affirms that shackling during labor violates women's rights, and the Virginia Department of Corrections announces that it will no longer engage in the practice.

In April, I wrote about an important federal court decision holding the Nashville Sheriff’s Office accountable for violating a woman’s rights by shackling her during labor and then denying her access to a breast pump when she was taken back to jail after giving birth.

Today, The Tennessean reports that a federal jury awarded the woman $200,000 in damages for the wrongs she suffered at the hands of the government. Notably, the judge ruled that the woman’s immigration status was irrelevant to the jury’s decision about whether the Sheriff should compensate her for having violated her rights.

In other news today, the Virginia Department of Corrections announced that it would no longer shackle women during labor, birth, or post-partum recovery.

These developments are two more tangible signs of the growing recognition that all women, including those who have been arrested or are undocumented, deserve to give birth in safe, humane, and dignified circumstances.

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Update: You can read more about the Tennessee trial and monetary award here.

One of the news articles yesterday said that ten states have laws against shackling pregnant women. That article did not take into account the new laws passed this year. The total number is 14: California, Colorado, Hawaii, Idaho, Illinois, Nevada, New Mexico, New York, Pennsylvania, Rhode Island, Texas, Vermont, Washington, and West Virginia.

Legislation has been introduced in many other states as well.

News Abortion

Tennessee Woman Charged With Attempted Murder After Failed Self-Induced Abortion

Kanya D’Almeida

Pro-choice advocates see Anna Yocca’s situation as the end result of a rash of highly restrictive laws that have choked reproductive rights throughout Tennessee.

A 31-year-old woman from Murfreesboro, Tennessee, was arrested last week on the charge of attempted first-degree murder after a failed attempt to abort her 24-week pregnancy in September resulted in her being rushed to a hospital, where doctors delivered a 1.5-pound baby boy.

According to local news reports, detectives investigating the incident found Anna Yocca allegedly made “disturbing statements” to hospital staff where she was admitted after using a coat hanger to try and terminate her pregnancy. Those statements led a Rutherford County grand jury to indict her for attempted murder and confine her to the Rutherford County Adult Detention Center. Her bond has been set at $200,000 and her court date for December 21.

Pro-choice advocates see Yocca’s situation as the end result of a rash of highly restrictive laws that have choked reproductive rights throughout Tennessee, largely since voters approved a November 2014 amendment to the state constitution that awarded lawmakers sweeping powers to chip away at access to reproductive health care.

New measures include such anti-choice bills as SB 1280, passed in May, which requires facilities providing abortion services to be licensed as ambulatory surgical treatment centers (ASTCs), effectively legislating the conversion of these smaller clinics into mini-hospitals. Gov. Bill Haslam signed the bill into law despite leading bodies of medical experts, including the American Congress of Obstetricians and Gynecologists, having labeled ASTC standards for abortion providers “medically unnecessary.” A court, however, agreed to temporarily block the measure from taking effect while a legal challenge to the law proceeds.

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Other bills introduced in Tennessee’s GOP-led legislature, such as SB 1391strip pregnant women of their constitutionally protected right to privacy under the guise of “protecting” fetuses and unborn babies, essentially giving the state a green light to investigate or incarcerate women based on pregnancy outcomes following the suspected illegal use of a narcotic.

“Tennessee’s homicide law explicitly doesn’t apply to [Yocca],” explained Farah Diaz-Tello, senior staff attorney at the National Advocates for Pregnant Women, “but this arrest tells women that if they try to seek emergency medical assistance, they may end up behind bars. That won’t stop women from having abortions, but it will stop them from getting help.” 

In a statement released shortly after Yocca’s arrest, the Memphis-based reproductive justice organization SisterReach lamented, “Our greatest fear has come to pass, and it could have been avoided. Women are attempting to self-abort due to restrictive abortion and punitive fetal assault legislation.”

“These acts of desperation will happen more frequently unless the Tennessee Legislature reconsiders its posture about both current and potential anti-abortion legislation and the fetal assault law which allows a penalty of up to 15 years in prison for fetal harm,” said SisterReach Founder and CEO Cherisse Scott.

Murfreesboro Police Department Detective Tommy Roberts reported that Yocca apparently filled a bathtub with water, climbed in, and tried to induce an abortion using a coat hanger. When she began bleeding profusely, her boyfriend rushed her to a nearby hospital. She was then transferred to a medical facility in Nashville, where doctors delivered a premature baby.

Advocates like Scott say that until women have access to safe abortions, acts like self-induced abortions will continue.

“The Tennessee legislature is responsible for the coat hanger, however, Ms. Yocca is on trial and that is unacceptable,” Scott said in the press release.

Analysis Law and Policy

With Tribal Jurisdiction in the Hands of the Supreme Court, Native Women Rally for Their Rights

Kanya D’Almeida

While protesters on the courthouse steps were united in their resolve to speak out against sexual assault and affirm tribal nations’ inherent ability to protect Native women and children, the feeling inside the building, observers said, was much more uncertain.

When she was 26 years old, Diane Millich suffered an abusive relationship. A member of the Southern Ute Indian tribe, she lived with her non-Native partner on a reservation in southwest Colorado, where in the space of a year she endured over 100 incidents of being “slapped, kicked, punched, and living in horrific terror.”

She made 20 attempts to leave the man, calling every authority she could think of to come to her aid. Again and again, her plea for help came up against the same answer: There was nothing law enforcement personnel could do to protect her, a Native woman, from her white husband. The Southern Ute tribal police lacked authority to apprehend the non-member, while the La Plata County deputy sheriff had no legal grounds for assisting her on tribal lands.

This legal quagmire, she said, fostered in the couple the notion that the husband was above the law. Time and again law enforcement personnel responding to domestic violence calls in her home would leave, having done nothing but explain that their hands were tied. On one occasion, she said, “after a beating, my ex-husband called the county sheriff himself to show me that no one could stop him. He was right; two deputies came and confirmed they did not have jurisdiction.”

Millich initially shared her experience back in 2012, in a House briefing regarding reauthorization of the Violence Against Women Act, the federal law that seeks to improve the criminal justice response to violent crimes against women. This past Monday, she picked up the threads of that story outside the Supreme Court of the United States, where more than 200 people gathered in protest over a Court hearing that advocates say threatens to roll back years of established tribal sovereignty.

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Addressing a crowd on the lawn across from the high court, Millich explained that even when her husband tried to shoot her with a 9mm gun at a federal Bureau of Land Management site where she worked at the time, authorities were unable to prosecute him. In fact, the issue of who had jurisdiction over the shooting was so unclear that investigators used a measuring tape to determine the precise spot from which the shot had been fired.

Because of an amendment to VAWA passed in 2013, Native women can bring criminal charges against domestic abusers in tribal courts. But today, the warren of laws regarding tribal jurisdiction that kept Millich from prosecuting her abuser is in danger of being weakened even further, as the nine justices of the Supreme Court consider the merits of a case known as Dollar General v. Mississippi Band of Choctaw Indians, a dispute that arose when a tribal minor alleged that an employee of the company repeatedly molested him in a store on Mississippi tribal lands in the summer of 2003.

The boy’s family sued for damages in tribal court, a move the corporation has fiercely resisted on the grounds that tribal courts lack jurisdiction over non-Natives. A total of five lower courts upheld the tribal court’s right to adjudicate the case, leading Dollar General to appeal directly to the Roberts Court, asking it to define once and for all “the scope of tribal authority to adjudicate tort [civil] claims against nonmembers.”

For decades, tribal courts have exercised the right to do just that, largely as a result of exceptions laid out in the 1981 Montana v. United States ruling, which allows tribal adjudication of tort claims when it comes to consensual relationships and situations that “threaten the political integrity, economic security or the health and welfare of the tribe.”

“This case falls squarely under Montana, as every single [lower] court has recognized, including the tribal district court and the tribal supreme court, as well as the federal district court and the Fifth Circuit Court of Appeals,” Mary Kathryn Nagle, an attorney at Pipestem Law Firm who sat in on the oral hearings Monday, told Rewire.

“Ever since 1981, the Supreme Court has had numerous opportunities to say definitively that tribes cannot exercise civil jurisdiction over non-members, but it has not done so. It has never categorically eliminated civil jurisdiction altogether and that is what Dollar General is asking for today—they asked for nothing less than the complete elimination of all civil jurisdiction, because according to them it is simply unconstitutional to make non-Natives answerable to any tribal court jurisdiction when they willingly decide to enter tribal lands.”

Thus, advocates charge that a Supreme Court ruling in favor of the corporation could have devastating consequences, particularly for Native women and children.

Organizers of Monday’s protest, including the National Indigenous Women’s Resource Center (NIWRC), FORCE: Upsetting Rape Culture, and the Indian Law Resource Center, said that a positive ruling in favor of Dollar General would block the few remaining channels through which Native women seek recourse for domestic and sexual violence at the hands of non-Natives.

Even by conservative estimates, rates of sexual assault among American Indian and Alaskan Native women are staggering. Department of Justice data suggests that Native people “are 2.5 times more likely to experience sexual assault crimes compared to all other races.” Approximately 34 percent of Native women will experience rape and 61 percent will likely be assaulted in their lifetime. The fact that an estimated 86 percent of the perpetrators are non-Native men, according to Amnesty International, heightens the stakes of the impending Supreme Court ruling.

In a stark visual representation of the scale of the epidemic, participants in the protest wore or carried squares of cloth sewn onto shawls bearing the stories of sexual assault survivors as they marched in a circle chanting “Shame on Dollar General.” Later, they laid them down in the lawn across from the Supreme Court building, forming a vast quilt of red and purple fabric.

One of thousands of quilt squares that carpeted the lawn across from the US Supreme Court on Monday reads "It's Not My Fault".

One of thousands of quilt squares that carpeted the lawn across from the US Supreme Court on Monday reads, “It’s Not My Fault.”

“So far we’ve collected over 1,200 quilt squares from survivors around the country, and displayed them 25 times for tens of thousands of people to see,” Rebecca Nagle, co-director of the Monument Quilt Project, told Rewire on the sidelines of the demonstration.

“By stitching our stories together we create and demand public space to heal and we also build public understanding of the United States’ culture and policies that create the current crisis of rape for Native Americans, including the government’s policy regarding tribal jurisdiction,” she said.

In her public address, Nagle said that as a survivor she is tired of being told that she is “broken.”

“I am not what’s broken,” she said. “What’s broken is a racist legal framework that allows violent people to prey on Native women and children with no consequences, the fact that whenever I’m in a group of Native women and we start talking about violence and sexual abuse, every woman in the room has a story … What’s broken is a society built on domination and greed where a corporation’s bottom line is more important than justice for a child survivor of sexual assault.”

She said one survivor even wrote on her quilt square, “Dollar General, your attack on tribal jurisdiction is an attack on my body.”

While protesters on the courthouse steps were united in their resolve to speak out against sexual assault and affirm tribal nations’ inherent ability to protect Native women and children, the feeling inside the building, observers said, was much more uncertain.

Mary Kathryn Nagle, author of the NIWRC amicus brief on the case, said that the arguments made on Monday were “incredibly difficult to listen to.” Far from focusing on the experience of the survivor, she said many of the judges seemed more interested in Dollar General’s arguments that a non-Native corporate entity could be stripped of its constitutional right to due process by being forced into a tribal court.

“But even when Justice [Stephen] Breyer asked the Dollar General representative to explain what was wrong with tribal courts, they could not provide a single answer, or give an example of an American citizen whose due process rights have been violated in a tribal court,” she said.

She said the notion that tribal courts are somehow inferior to state courts is both offensive and inaccurate, given that tribal systems of government, particularly the Iroquois Confederacy, predate all other forms of government in this country and provide the basis for the U.S. Constitution itself.

Court transcripts further revealed that much of the hour-long hearing was devoted to the question of consent—the cornerstone of the first Montana exception—with Justices Ruth Bader Ginsburg, Anthony Kennedy, and others debating whether or not the corporation expressly consented to tribal jurisdiction, despite the fact that Dollar General, in leasing land from the tribe to operate the store on the Mississippi reservation, agreed in writing to be governed by both tribal and federal regulations.

“Never once did a justice ask, ‘What about that little boy? Did he consent to being sexually assaulted on his own tribal lands?’” Nagle said.

Other legal experts called the entire proceeding “dehumanizing and racist.” Sarah Deer, a professor at the William Mitchell College of Law who also heard the arguments, said they revolved around the myth that tribal juries—or what Dollar General referred to as “All-Indian” juries—are inherently unfair. “It’s important that we keep our framework around citizenship,” she said. “Because it’s not ‘Indians’ who sit on our juries; it’s citizens of our tribes.”

“The whole thing, the images and the protocols, struck me as being very patriarchal,” Deer told Rewire. “The theme was corporations and their rights—not tribal power or the victims. Granted, the centrality of this case is a mechanical jurisdictional question, but to have no humanity in over an hour of discussions is hard to wrap your head around.”

Significant bodies of scholarship dedicated to the issue of sexual violence against Native women have acknowledged that this very process of dehumanization has contributed to a feeling of impunity among perpetrators that then feeds a pattern of abuse.

In its 2007 Maze of Injustice report, still widely cited given the dearth of current statistics involving Native women, Amnesty International traced the roots of the current rape crisis back to the founding of the United States, when sexual violence was used as a tool of conquest, right up to 1968 when a federal appellate court ruling (Gray v. United States) “upheld a statute under which an American Indian man who committed a rape in Indian Country received a lower penalty if the victim was a Native woman.”

Such legal frameworks that posit Native people as somehow inferior, and which Native lawyers and advocates had assumed were a thing of the past, now threaten to reemerge if the Supreme Court’s June ruling goes in favor of Dollar General, experts say.

“It feels as if all the things I thought had been settled back in the 1990s are back on the table like nothing’s changed,” Deer said. “The abortion battle is starting again, and now this—it’s demoralizing.”

One participant at the rally, a representative of the Cherokee Nation who gave her name only as Cinema, told Rewire that she came to the protest because she could no longer be silent. “I see this case as just one other way in which capitalism and sexism interact, with corporate greed threatening to tear away at our basic human rights. It’s very familiar in terms of how this country was formed—around genocide and the stealing of resources, including people, for profits.”

 CORRECTION: This post has been updated to reflect the correct spelling of Diane Millich’s name.

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