Among other things, the new law requires that inmates have access to mental health assessments and treatment during pregnancy and postpartum, and mandates that correctional facilities offer pregnancy and STD tests to inmates.
As of July 1, a Minnesota law is in effect that will protect incarcerated pregnant women in the state. The law sets new requirements for the state’s prisons relating to the treatment of prisoners during pregnancy and childbirth.
SF 2423 was passed unanimously in May by both the Minnesota house and senate, and was signed shortly after by Democratic Gov. Mark Dayton.
Nationally, the number of incarcerated women in the United States increased by 587 percent between 1980 and 2011, leaving more than 120,000 mothers incarcerated across the country, according to the National Resource Center on Children and Families of the Incarcerated. More than 2.7 million children in the United States have a parent in prison.
In Minnesota, an estimated 4,200 pregnant women are arrested every year, according to Jessica Anderson, director of legislative affairs and communications for the state’s Children’s Defense Fund. Isis Rising, a “prison-based pregnancy, birth, and parenting project” based out of Minnesota that supported the new law, notes that pregnant women often face risks prior to incarceration, which affect both their health and the health of their children while in prison. The group noted in a statement:
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Many of our Isis Rising clients have experienced poverty, homelessness, drug use, mental health issues, and domestic violence. … This law is an essential first step in acknowledging the needs of incarcerated pregnant women and the importance of providing care that will promote maternal and child health in the context of incarceration.
The new law includes several important provisions for pregnant women’s health in prison. It requires, for example, that inmates have access to mental health assessments and treatment during pregnancy and postpartum, and mandates that correctional facilities offer pregnancy and sexually transmitted disease tests to inmates, along with prenatal, childbirth, and parenting materials. The law also bans the use of restraints and shackles on pregnant women in most circumstances, and allows women access to doulas as long as there is no extra cost to the state.
In 2007, Isis Rising, a project of the organization Everyday Miracles and funded by the University of Minnesota, began offering doula services to pregnant women in the Minnesota Correctional Facility in Shakopee. The doulas coach incarcerated women through their pregnancy and offer support during the process. According to the University of Minnesota, the doula project at Shakopee has already shown signs of success. Sixty percent fewer children were born with costly cesarean sections in 2013 than in 2006, and no doula babies were born preterm.
Additionally, the shackling ban makes Minnesota the 20th state with such a ban on the books. But many states still allow the shackling of pregnant women, including during labor. The American Medical Association has called the practice of shackling women during childbirth “barbaric” and “medically hazardous.”
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.”
Throughout the world, pregnant women involved in illicit drugs as users, producers, or sellers are roundly vilified. They are viewed, as described by conservative Tennessee state legislator Rep. Terri Lynn Weaver (R-Lancaster), as the “worst of the worst.”
In the eyes of the law and often the broader society, a woman’s pregnancy can compound any crime she may have committed. In countries as different as Russia and the United States, a pregnant woman charged with a drug offense may be harshly punished-and often treated more severely than a woman who is not pregnant. In addition, she is very likely to lose custody of any child born while she is incarcerated or undergoing legal proceedings.
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In 2014, for example, the U.S. Department of Justice’s Knoxville, Tennessee, office issued a press release about the prosecution of Lacey Weld, who had six years added to a prison term because she was pregnant when she participated in methamphetamine manufacturing. Weld pleaded guilty to the offense, but the court increased the penalty because she had used methamphetamine during the manufacturing, which the prosecutor argued risked the health of her fetus.
Notably, none of the men who were involved in the manufacture of the drugs, who were equally responsible for any toxic fumes Weld may have inhaled, were given enhanced penalties.
Tennessee legislators in 2014 also passed a controversial and wrong-headed fetal assault law that allowed pregnant drug users to be prosecuted for harming their fetus—even if there was no medical evidence of harm or no chronic health effects. It was a law that had the chilling effect of scaring women who used drugs away from seeking help; at least one gave birth without medical assistance.
The good news is that in March, after a long fight by activists and public health authorities, Tennessee legislators voted to let the law expire. That was a heartening but single victory. The bigger fight is overcoming the notion that jail is an appropriate place for a pregnant woman—or any person—who has committed a nonviolent drug crime.
Too often, women are on the wrong end of conventional wisdom that is based on bad science and knee-jerk sensationalism. In the 1980s and 1990s, media reported countless lurid stories of a generation of “crack babies” forever harmed by this new form of cocaine. But the link between cocaine use and chronic health and developmental issues in infants and children turned out to be unclear, at minimum, and sometimes spurious. Factors like poverty and the level of neonatal care were as important as cocaine use or many other licit and illicit drugs, including alcohol.
And that generation of crack babies who would overwhelm and threaten our health-care and educational systems? Never materialized.
Still, the mythology persists.
The same tropes are now reappearing in connection with neonatal abstinence syndrome (NAS), a treatable and temporary condition that may affect drug-exposed infants. We are now seeing a groundswell of anxiety about NAS and opioid use, particularly in the United States. While research suggests that NAS is but one of many factors affecting a child’s health, infants with NAS are the subjects of the same panicked rhetoric of a generation ago.
And their mothers are condemned even when they seek help. Public health authorities recognize that medication-assisted treatment (MAT), such as methadone, is the gold standard of treatment for pregnant women experiencing drug dependency. But on the ground, probation officers, social workers, and judges in family courts and drug courts often have shockingly little knowledge about the benefits of MAT and order women off the very medication that can help them carry a pregnancy to term.
For a woman behind bars, denial of MAT during pregnancy is just the start of her worries. Even if she has a healthy delivery, her baby can be removed from her within hours. The state is supposed to prefer placing the infant with a family member, but some will end up in the foster-care system-a bleak outcome that challenges the official line that the goal is really to defend the vulnerable and preserve healthy families. In too many cases, children whose mothers could have safely parented them with just a little support wind up cycling through foster care and, for some, a permanent placement with another family or guardian.
A minor drug offense shouldn’t mean the splitting of a family. Being pregnant is not a crime. Instead of being criminalized, a woman who needs help for problematic drug use should be given appropriate health care outside the criminal justice system and services that can help her lead a healthy life and support her parenting. Time and time again, public health research has shown that supportive services that focus on the whole woman and preserve the family bond, can mean better health outcomes for both mother and child.
The United Nations’ Bangkok Rules on the treatment of women offenders and prisoners, adopted in 2010, urge authorities to seek alternatives to imprisonment for women, especially if they are pregnant or a sole or primary caretaker, and to take into consideration women’s special needs as prisoners.
Instead, what we have are U.S. states and many nations investing more in the drug war than they’ve invested in the health and human rights of the women, children and families they claim to protect.