Cross-posted with permission from the Bay State Banner.
As the Massachusetts Legislature considers this year’s crop of criminal justice reform bills, one that has not gotten much attention is a measure to ensure proper treatment of pregnant women in jail and prison.
Improving the medical treatment and protecting the constitutional rights of these women is vitally important and would contribute to the Commonwealth’s goal of reducing health disparities, because prison policies have a disproportionate impact on poor women and African American women.
Medical neglect of incarcerated women in the United States is all too common, and can have tragic results. Prisons and jails often fail to provide adequate prenatal care, creating anxiety among pregnant women and jeopardizing birth outcomes. Corrections personnel — medical staff as well as corrections officers — fail to diagnose women with ectopic pregnancies, leading to emergency surgery and lifelong infertility.
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In some cases, the result of this negligence is the woman’s death. Similarly, personnel fail to recognize the signs of labor, leading to complications and to women giving birth locked in their cells without any assistance, let alone trained medical assistance.
These are serious problems that threaten the pregnancies, health, and lives of women who have been mandated into the state’s custody. When the government incarcerates someone, it assumes responsibility for that person’s welfare. This is a constitutional obligation as well as an ethical one.
Without explicit laws to protect women’s rights and to ensure some regular means of government oversight, women are left to fend for themselves. But the reality of incarceration severely constrains people’s ability to advocate for their interests — to gather information about medical issues, communicate with the outside world or assert their rights.
The ever-greater numbers of women in custody reinforce the need for active state oversight of gender-specific medical care to meet pregnant women’s needs.
In 1992, the year that the Massachusetts Department of Corrections agreed to a court settlement to improve conditions for pregnant women, 437 women were held at MCI-Framingham. Today, Framingham holds 684 women — almost one-third of whom are awaiting trial, half because they cannot afford even $50 bail.
Framingham operates far beyond its capacity. Women waiting to go on trial, for example, are jammed in at 381 percent percent of design capacity. Sixteen percent of these women are African American, far above their proportion in the population, which is less than seven percent.
A majority of incarcerated women has been charged with or convicted of non-violent offenses, and yet we spend more than $50,000 per year to keep each one of them behind bars.
Legislation is needed to bring corrections policies into the 21st century. For example, the 1992 agreement permits corrections personnel to restrain pregnant women. From the vantage point of 2011, this provision is out of step with evolving standards of decency. Fourteen states now have laws that limit the shackling of pregnant women, including the neighboring states of Rhode Island, Vermont and New York. Idaho and Texas, seemingly far more conservative than Massachusetts, have also enacted laws to protect pregnant women.
Over the past three years that legislatures around the country have been actively passing these bills, a consensus has also begun to emerge in the federal courts: Shackling women in labor violates their constitutional rights by subjecting them and their fetuses to a substantial risk of physical harm and by inflicting unnecessary pain and humiliation.
As a federal court of appeals explained in 2009, “The key constitutional question is whether [the pregnant woman] posed a security risk sufficient to justify being shackled to both sides of the bed while she labored to deliver her baby.”
Just this August, a federal jury awarded $200,000 to a woman in Nashville, Tenn. who had been shackled during labor.
Because shackling during pregnancy makes it difficult for doctors and nurses to provide appropriate patient care — especially in an emergency — the medical and public health community opposes the practice. Organizations that have taken a stand against shackling include the American Public Health Association, American College of Obstetricians and Gynecologists and American Medical Association.
As a mater of public policy, Massachusetts has already decided that universal access to health care is important for individuals, communities and our entire Commonwealth. Pregnancy care has long been recognized as an essential part of this investment.
Every woman deserves prenatal care to monitor her own health and to maximize the chances that she will have a healthy baby. Every woman deserves postpartum care to ensure that she recovers physically and emotionally from childbirth, and in the case of an incarcerated woman, to deal with being separated from her newborn. Every woman in labor deserves to be treated with respect and to give birth in a safe setting. And every baby deserves a safe start in life.
It is past time for our laws to provide these assurances to all women.