Analysis Law and Policy

Pregnant Texans Are Being Charged With Crimes That Don’t Exist

Andrea Grimes

Texas' penal code explicitly exempts pregnant individuals from being punished for harming their own fetuses. But that hasn't stopped prosecutors from charging them with child endangerment for using drugs while pregnant.

The West Texas media loves to show her mugshot—the overhead fluorescent lighting, the height hatch marks on the cinderblock wall behind her disheveled hair, all filtered through the grainy colors and low-resolution pixels of the jailhouse camera. Together, these elements scream the words that news anchors and police beat reporters don’t even need to use: bad mommy.

She is Christene Beam. Or Jennifer Silva. Or Juanita Elkins. Or Talisha Redic. Or Tiffany Rios. And she has been charged with endangering her “unborn child” for taking drugs while pregnant.

Their faces make the newspaper or the 9 p.m. cable broadcast, set alongside a damning headline. Something with a nice jumble of fear-inducing keywords: “pregnant,” “mother,” “meth,” “cocaine,” “unborn,” or “baby.”

Then, after their trial-by-media, they mostly disappear. Perhaps viewers and readers imagine them in jail, serving hard time for their moral failures as women and mothers living with substance addiction.

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The thing is, what they’ve done isn’t actually illegal in Texas.

Yet.

Protected Under the Law?

According to the National Conference of State Legislatures, 38 states have “fetal homicide” laws on the books that increase penalties for crimes committed against pregnant people and the embryo or fetus inside them. Texas’ law, signed by Gov. Rick Perry in 2003, is one of the broadest in the country. It defines an individual as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth,” meaning that, for example, a drunk driver who kills a pregnant person can be charged with a crime against two separate people.

But the Texas law also makes an important exception: A pregnant person cannot be charged with injury to their own fetus, and neither can a doctor performing legal abortion care with “requisite consent.” This exception, nestled into the 2003 modification of the Texas Penal Code, ensures that a crime “does not apply to conduct charged as having been committed against an individual who is an unborn child” if said conduct is “committed by the mother of the unborn child.”

This provision should shield pregnant people from accusations of child endangerment toward their own embryos or fetuses. In fact, Texas Attorney General Greg Abbott effectively confirmed in a 2005 ruling that the law does provide this shield; the Texas Court of Criminal Appeals also issued an opinion on the matter in 2006, overturning the conviction of two Texas women who had been sentenced to jail for taking drugs during their pregnancies.

But that hasn’t stopped prosecutors in the vast, largely rural swath of the state west of Interstate Highway 35 from charging women with reckless child endangerment for ingesting controlled substances while pregnant. And inevitably, these allegations are accompanied by the over-saturated mugshots and scandalized copy that have become the hallmark of local media reports.

Attorney Farah Diaz-Tello, an Austin native who works for the New York-based watchdog organization National Advocates for Pregnant Women (NAPW), keeps an eye on the news for these stories and then intervenes whenever she can.

“The media loves ‘Bad meth mom arrested!’” Diaz-Tello told Rewire. “That’s how we find out.”

Diaz-Tello, who works pro bono, then reaches out to the lawyers who handle these cases, nearly always court-appointed, overburdened public defenders who might not realize that their clients have been wrongfully charged with a non-crime.

“The law is pretty clear,” she said. “Theoretically, the fact that the law doesn’t permit that charge means it shouldn’t be brought.”

Police and prosecutors, though, nevertheless pursue these cases. The child endangerment statute casts a wide net: The accused may have “intentionally, knowingly, recklessly or with criminal negligence, by act or omission” done something to place “a child younger than 15 in imminent danger of death, bodily injury, or physical or mental impairment.” As a state jail felony, it carries a maximum fine of $10,000 and between 180 days and two years of imprisonment.

In some instances, babies test positive for drugs soon after they’re born, and doctors and hospitals, in an attempt to comply with another Texas law about reporting babies “born addicted,” pass on their findings to Child Protective Services or local law enforcement officials. In others, ex-husbands and ex-boyfriends file reports with police, CPS, or even directly with prosecutors—sometimes from hundreds of miles away—alleging that their partners have endangered their children while pregnant.

The upshot? District attorneys and cops get to look tough on drug crime. Anti-choice lobbyists and lawmakers get to brag about their compassion for the unborn. And the public gets to sneer and jeer at “bad mommy” mugshots. What rarely gets reported, however, is that after the initial allegations make the evening news, these erroneous endangerment charges don’t stick, thanks to smart public defenders and reproductive rights lawyers like Diaz-Tello.

But dodging the child endangerment charge doesn’t necessarily mean that these women, or their families, can walk away scot-free. Instead, mothers are nearly always persuaded to plead guilty to possession or other drug-related offenses, which often carry heftier penalties of incarceration; judges may take the child endangerment charges into consideration as well.

Pregnant women, particularly those with substance addiction, don’t tend to fare well in the heavily privatized Texas jail and prison system. Earlier this summer, a San Antonio woman was denied the medical methadone treatment she needed to maintain a healthy pregnancy when she was jailed in Guadalupe County. It wasn’t until she reached out to NAPW for intervention—and pleaded with institutional officials and her parole board—that she was released to home monitoring, where she could continue her drug treatment program. Research suggests, too, that alternatives to incarceration, such as substance abuse rehabilitation programs, are less expensive for taxpayers and more effective at reducing recidivism.

And if women are charged after their babies are born, or if they have other children, those kids will often be funneled into Texas’ overtaxed foster care program, especially if there are no family members available to take on the responsibilities of child care. Lawmakers have continuously attempted to privatize this underfunded state agency, even as children die under the supervision of the supposedly superior corporations.

Furthermore, university research suggests that kids whose mothers are incarcerated “may be more likely to experience a disruption in the caregiving environment” compared to those whose fathers are incarcerated, potentially putting those “children at higher risk for insecure or disrupted attachment relationships,” which could “compromise children’s health and development.”

Still, one West Texas prosecutor told Rewire that he believes incarceration is the best solution when pregnant Texans use drugs.

Joel Wilks, a Taylor County assistant district attorney in Abilene who brought a child endangerment charge against a pregnant woman named Juanita Elkins in 2012, told Rewire that he would have liked to put Elkins in prison on the charges, but Texas’ abortion-exemption statute got in the way.

“We were kinda screwed on that deal,” he said. While Wilks believes “there’s no easy solution” in these cases, he said “there’s a deterrence factor” in being able to prosecute pregnant people for ingesting controlled substances, and an opportunity for “retribution.”

Elkins was one of at least two Taylor County women arrested for using drugs while pregnant who have recently faced the state jail felony-level punishment for child endangerment. Elkins was arrested under this statute in 2012; the other woman, Jennifer Silva, was eventually charged the same year after originally testing positive for methamphetamine when she gave birth in 2009.

The endangerment charges against both women were ultimately dropped after Diaz-Tello cold-called their public defenders and helped pass on legal arguments that convinced reluctant prosecutors, including Wilks, to dismiss the cases.

“The beneficial thing about hearing from [NAPW] out of the blue was we didn’t have to go looking for that information,” recalled Kory Robinson, the Abilene criminal defense lawyer who was appointed to defend Silva in 2012. At the time, he had already considered looking at the statute of limitations on Silva’s case due to the length of time between her original drug test and her arrest, but Diaz-Tello helped shore up his case against the legality of bringing the endangerment charges in the first place.

Robinson remembers presenting his case to Taylor County assistant district attorney Dan Joiner, who “got very upset,” he said, throwing up his hands and storming out of their meeting. But two weeks later, in October 2012, Joiner—”a very good, fair guy,” in Robinson’s estimation—dismissed Silva’s endangerment charges. According to the Abilene Reporter-News, Silva no longer has custody of her child.

Less than six months later in the same jurisdiction, assistant district attorney Wilks dropped similar charges against Elkins.

Wilks told Rewire he wanted to prosecute Elkins on charges of drug possession with intent to distribute, with endangerment charges tacked on “for punishment.”

Ultimately, his plan didn’t work. Wilks dropped the endangerment charges, and Elkins pleaded guilty to drug charges in exchange for ten years of probation.

“In some ways, prison gets a bad rap,” Wilks continued, though he conceded that it’s a “tough call.” He thinks incarceration would have helped Elkins and women like her, even if it means turning children over to foster care.

“Prison does keep you away from drugs and stuff,” said Wilks, who noted that the Texas Department of Criminal Justice, which oversees Texas state prisons and jails, offers a special program for pregnant inmates. (The availability of similar opportunities is varied at county jails, which are generally privatized.) “I think [incarceration] does have a rehabilitation effect,” he said.

Diaz-Tello sees it very differently. She said that if prosecutors had gotten their way, Elkins could have pleaded guilty “to a crime that doesn’t exist,” potentially setting a legal precedent that could inspire the Texas legislature to amend the existing penal code or give courts room to make attempts at reinterpreting the law—ones that could threaten pregnant people’s authority over their own bodies.

Left With No Option

As legislators and law enforcement officials move to toughen fetal homicide laws throughout the country, reproductive rights supporters have grown increasingly nervous at the possibility of these laws affording a kind of legal “personhood” to fetuses that may contradict the rights of pregnant people.

Some states, for example, have passed fetal homicide laws ostensibly meant to target criminal doctors like Kermit Gosnell, though evidence collected by Rewire last year suggests that Gosnell, a rogue provider who preyed on low-income women with no access to safe abortion care, was an extreme outlier. Instead, a study conducted by NAPW found that the provisions often give law enforcement officials room to hold pregnant people “legally liable for the outcome of their pregnancies.”

Laws of this kind that don’t carefully provide exceptions removing pregnant people from being charged with harm to their own fetuses could, if Roe v. Wade were to be overturned, allow states to prosecute individuals for trying to end their own pregnancies.

In Texas, noted Abilene prosecutor Wilks, “we have very pro-unborn protections as far as DWIs” and other crimes committed against pregnant people.

“But,” he continued, “to make an abortion legal, we have to make some exceptions to that as far as the actions of the mother or a medical professional acting on behalf of the mother.”

Wilks acknowledges that rewriting the Texas Penal Code to enable prosecutors like him to put substance-addicted mothers in prison—but still preserve the overall right to legal abortion—would be a difficult endeavor.

“You could write it a little better, say if your intent is to terminate the life of the fetus then you’re covered,” Wilks mused, suggesting that the law could be clarified to reflect whether an offender was trying to specifically end their pregnancy or whether they had used a substance that happened to result in fetal harm. “But then what do you do? You get somebody who said, ‘I can’t afford an abortion, so I thought I’d try to have a spontaneous abortion by smoking meth.’”

Wilks perhaps inadvertently hit on something that’s been worrying Diaz-Tello ever since she traveled back home to Austin last summer to protest Texas’ omnibus anti-abortion law, HB 2. In a state where lawmakers have taken guaranteed access to legal abortion care out of the hands of all but the wealthiest Texans, she said, “carrying a pregnancy to term is not always a choice.”

Just two years ago, Texans who live along the western Interstate-20 corridor—in Abilene, Midland, and Odessa—had access to legal abortion care nearby at a handful of Planned Parenthood facilities dotting the windy West Texas landscape. Then, in 2011, the state of Texas slashed family planning funds and ended all public funding of Planned Parenthood, forcing dozens of clinics to close.

Rural areas like the Rio Grande Valley and West Texas were the hardest hit. All legal abortion facilities in the West Texas triangle between El Paso, San Antonio, and Fort Worth closed their doors or stopped providing abortion care.

Then came HB 2, which, in part, requires all abortion facilities to operate as hospital-like ambulatory surgical centers. Earlier this month, a Fifth Circuit Court ruling closed all but eight Texas abortion clinics when it allowed HB 2 to go into full effect. Two weeks later, the Supreme Court granted abortion providers a temporary reprieve from the law; as of October 15, eight clinics had been able to reopen, bringing the total number of legal abortion providers in Texas up to 16.

But because of these court rulings, access to legal abortion care can change overnight in Texas. If federal courts allow HB 2 to go back into effect—and evidence suggests that the Fifth Circuit Court of Appeals would like to see it so—the only legal abortion providers that will remain in Texas will be located in Fort Worth, Dallas, Houston, San Antonio, and Austin. The wealthiest West Texans might be able to drive or fly hundreds of miles round-trip to those cities, or to New Mexico. Others might try, as Wilks speculated, to end their pregnancies by other means, risking legal ramifications in the process.

“That’s what happens when you can’t terminate a pregnancy when you want to do so,” said Diaz-Tello. She says that by bringing child endangerment charges against pregnant substance users, the state is effectively saying that “by being a person who is an addict and pregnant, you have some sort of heightened obligation to the state [to preserve fetal life], which is answerable by a prison term.”

Rather than offering substance-addicted pregnant Texans abortion care if they choose—thus circumventing the child endangerment issue—or rehab in their communities, however, officials instead incarcerate them, said Diaz-Tello. This, she noted, could push more marginalized people into a criminal justice system that she described as “broken beyond belief.”

Diaz-Tello is far less optimistic than Wilks about the benefits of incarcerating mothers of young children. She says that it can be difficult to win over hearts and minds, even in the pro-choice and reproductive justice communities, when she talks about people who struggle with substance addiction. However, she points out, the charges these women face are potentially a harbinger of broader restrictions to come.

“Even if people don’t care about the lives of people who are addicted,” said Diaz-Tello, “I hope that they would be able to see that the prosecution of drug-using women are usually just the first volley in going after the most vulnerable, most marginalized population, to build precedent, so that they can go against people who look more like them.”

In other words, attempts to criminalize pregnancy in Texas could not only break up families by forcing pregnant women into prisons and children into foster care; they could be the starting point for a new strike on reproductive rights across the state.

The Threat of Fetal “Personhood”

Such creeping attacks on choice are already beginning to emerge elsewhere. In 2014, Tennessee lawmakers became the first in the United States to explicitly criminalize drug use during pregnancy; Gov. Bill Haslam signed the bill into law in April. Meanwhile, courts in South Carolina and Alabama have also empowered prosecutors to seek charges against pregnant people for drug usage. In all three states, Black women are expected to be disproportionately negatively affected.

This punitive climate scares many people away from seeking health care they need—a particularly tragic consequence, in light of evidence that shows substance-using pregnant women who have access to prenatal care experience better perinatal outcomes than those who don’t.

At the NAPW offices in New York City, Diaz-Tello says she gets phone calls “every week” from women in the South who fear they’ll go to jail if they seek substance abuse treatment while they’re pregnant.

“The number one thing is that people avoid prenatal care and drug treatment,” as a result of these kinds of laws, said Diaz-Tello. “They’re terrified.”

And they have good reason to be: In July, Tennessee’s SB 1391 had only been in effect for one week before Mallory Loyola was arrested for “exposing her child to amphetamine”—in other words, using drugs while pregnant. Loyola faces a fine of up to $2,500 and up to one year in jail.

For now, women in Texas are ostensibly protected from the kind of treatment those in Tennessee, Alabama, and South Carolina are facing. Still, as in the past, that hasn’t stopped more child endangerment charges from cropping up. In the last year, two more West Texas women have been arrested, this time in Ector County.

The first case, involving an Odessa woman named Talisha Redic, is particularly heartbreaking: She gave birth prematurely to a child in 2013 that was found to have cocaine in its system. Afterwards, six of Redic’s living children, between the ages of two and 11 years old, tested positive for cocaine in late 2013. The infant died, and a warrant was issued for Redic’s arrest on six counts of child endangerment.

In December 2013, Redic turned herself in to the local authorities; Ector County District Attorney Bobby Bland brought a seventh child endangerment charge against Redic for ingesting cocaine while she was pregnant with her now-deceased child.

Bland issued a statement saying that his office had been denied an opportunity to put Redic in jail for life.

“The maximum punishment for the current charges is two years in prison. Had an autopsy been performed, we might have been able to develop evidence sufficient to charge the Defendant with a first-degree felony, which carries the maximum penalty of life,” said Bland in a February 2014 statement. He continued, “Justice has been denied for this infant’s death.”

For failing to complete the autopsy, a grand jury found earlier this year that “the Investigators of the Ector County Medical Examiner’s Office lack credibility, competence and accountability … which has limited our ability to fully investigate the matter at hand.”

Bland then pushed for the medical examiner’s office to be entirely disbanded, which the county commissioner’s court rejected. The chief medical examiner has since left her post for a different county department.

But while Redic awaits trial on her seven charges, Bland has turned his attention to a second Ector County woman, Tiffany Rios, who was arrested in September 2014 after giving birth in March to a child who tested positive for cocaine.

Rios failed to appear at her scheduled September arraignment, which means she hasn’t yet been assigned a public defender. Rewire attempted to reach Rios at the address listed with the court, but was told that she didn’t live at the residence.

When Rewire contacted Bland by phone for comment on the Rios case, he said he couldn’t weigh in on a pending charge, but that he was aware that the Texas Penal Code exempts pregnant women from being charged with injury to their own fetuses.

“My job is to enforce the law and to make sure that justice is served,” Bland said. When asked how incarcerating Rios might serve a larger public safety interest, Bland replied, “That’s not an appropriate question.”

Once again, it appears Farah Diaz-Tello, who hopes to intervene in Rios’ case if she can, has found herself at odds with a prison-minded prosecutor.

“You can do just about anything in the name of a fetus,” Diaz-Tello said.

And in West Texas, prosecutors aim to try.

Commentary Abortion

Language Matters: Why I Don’t Fear Being Called ‘Pro-Abortion’

Maureen Shaw

Words can and do hurt, especially when they cast people who seek or provide abortion care as immoral or murderers. But pro-choice activists can embrace unapologetic language that represents hope, self-determination, and bodily autonomy.

Recently, an anti-choice website profiled me, repeatedly describing me as “pro-abortion.” I understood immediately that this was meant to be an insult and a negative character judgment. But instead of taking offense or feeling bullied, I smiled—even as the vitriol poured into my Twitter mentions.

I haven’t always been able to smile at anti-choice trolls. They attack your ideology, personality, and even your family. It’s threatening and can feel very unsafe, and with good reason; just ask any clinic escort, pro-choice journalist, or abortion provider who has been targeted by anti-choice zealots or organizations. Online harassment and bullying is deliberate and meant to incite fear; it’s also a stepping stone to physical violence and intimidation.

The first time I was on the receiving end of such hatred, it made me sick to my stomach and I was tempted to abandon social media altogether. But removing my pro-choice voice from the conversation felt like handing trolls a victory. So with a few tweaks to my public profiles (like erasing my location and no longer posting photos of my children), I’ve decidedly moved beyond that fear and refuse to shrink in the face of online harassment (Twitter’s mute function certainly helps too).

These experiences taught me two very important lessons: first, about cowardice (it’s so easy to spew hatred from the anonymity of the internet) and second, about the importance of language. Most of us here in the United States have heard the saying, “Sticks and stones may break my bones, but words will never hurt me.” While this is certainly true in the most literal of interpretations, we know words can hurt when they come in the form of threats against abortion providers or calling women who have abortions “murderers.”

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Indeed, the way we talk about abortion is critical, from how we describe our adversaries to legislative bill titles and abortion procedures themselves. When anti-choice lawmakers and activists wield language that is inflammatory, misleading, or demonizing, the public’s perceptions of abortion are compromised. The ensuing negativity, in turn, helps transform commonplace medical procedures into “morally repugnant offenses”—to use the language of ethics, which the anti-choice movement so often co-opts—that abortion opponents want to heavily restrict (at best) or outlaw (at worst).

The so-called pro-life constituency understands this all too well and has done a brilliant job of manipulating language to guide the national discourse on abortion. Even the “pro-life” moniker is a calculated—not to mention hypocritical—move. After all, if a person is not “pro-life,” they’re implicitly anti-family and anti-child. This automatically puts pro-choice activists and allies in a needlessly defensive position and posits anti-choice ideology as favorable.

This perceived favorability runs deep and has very real implications for pregnant people. For example, politicians and activists alike jumped at the chance to essentially redefine dilation and extraction (a surgical procedure used in later abortions) as “partial birth abortion” (and sometimes, “dismemberment abortion”). It’s an obvious misnomer and a dangerous conflation, as one cannot be born and aborted; that would be murder, not abortion. As a result, the procedure was banned without a health exception, courtesy of the 2003 federal Partial Birth Abortion Act. And there’s no ignoring the current onslaught of anti-choice legislation with catchy names like the “Women’s Public Health and Safety Act,” the “Born-Alive Abortion Survivors Protection Act,” and the “Pain-Capable Unborn Child Protection Act.”

Let’s be honest: These bills are not about protecting women’s health or safety. Their sole purpose is to demean women by prioritizing unviable fetuses over women’s very real health-care needs. And they’re successful in part due to their phrasing: The words “child,” “survivor,” and “protection” all evoke positive imagery, while simultaneously (and not so subtly) vilifying the person who no longer wishes to be pregnant.

To be fair, anti-choicers aren’t the only ones with a working knowledge of the power of language. The pro-choice community has made serious efforts in recent years to reclaim the word “abortion” and paint it as a positive (or at the very least, common) experience. Just look at 1 in 3 Campaign’s Abortion Speakout, the #ShoutYourAbortion social media campaign, and websites that curate positive abortion stories, and you’ll see a plethora of women embracing this shared reality. And it’s not just grassroots activists who have thrown down the proverbial gauntlet: Developers recently created a Google extension to change all “pro-life” mentions to “anti-choice.” Take that, anti-choice interwebs!

There have been efforts to move away from the terms “pro-choice” and “pro-life” altogether, because those simple labels don’t reflect a truly intersectional approach that goes beyond the traditional narrative around reproductive rights. I continue to identify as pro-choice because the term works for me. I believe it accurately expresses my support of the full spectrum of choice—parenting, pregnancy, adoption, and abortion—though I also understand and support activists’ rejection of the label.

As a pro-choice activist, I am heartened by these efforts and the ground gained. For so long, we’ve been on the defensive, from fighting stereotypes that pro-choicers can’t be parents to furiously trying to keep clinics open nationwide (and it doesn’t help that the mainstream media often fails to responsibly or fairly report on abortion). It’s been like trying to climb a steep hill covered in oil slicks.

But no longer. Thanks to the campaigns I’ve mentioned and others like them, pro-choicers everywhere—myself included—can more easily reclaim the power of language to shatter stigma surrounding abortion.

While I don’t pretend to have a new dictionary for those of us who work to support abortion rights, there are simple ways to leverage the words already in our lexicon to achieve success on this front. For starters, we can refuse to use the term “pro-life” in exchange for a more accurate description of the movement fighting to end access to a basic health service: “anti-choice.” We can also explicitly describe abortion as mainstream health care more consistently; doing so helps dispel the myth that abortion is rare, immoral, and a marginalized component of women’s health. And finally, we shouldn’t be afraid to embrace being called “pro-abortion.”

Why? Because “abortion” is by no means a dirty word—or thing, for that matter. I will happily embrace being called “pro-abortion.” Admittedly, the term is problematic when it’s used to suggest that all pregnancies should end in abortion or used to simplify reproductive justice and human rights issues. For me, pro-abortion means hope, self-determination, and bodily autonomy. And I’m most definitely in favor of all of those things.

I’d like to think the tables will turn in the very near future: that our courts nationwide will follow the Supreme Court’s lead and affirm the right to abortion without political interference, and that people will no longer be shamed for seeking abortion care. Until then, it’s paramount that each and every individual of the pro-choice community continues to demand progress. And what better way than with powerfully pro-choice and pro-abortion words? They’re the building blocks of our movement, after all.

Analysis Maternity and Birthing

Pregnant Women Are Being Shackled in Massachusetts—Even Though It’s Been Illegal for Years

Victoria Law

According to a new report, not a single jail or prison facility in the state has written policies that are fully compliant with the law against restraining pregnant women behind bars.

Korianne Gamble was six months pregnant in November 2014 when she arrived at the Bristol County Sheriff’s Office Women’s Center, a jail in North Dartmouth, Massachusetts. Six months prior, the state had passed “An Act to Prevent Shackling and Promote Safe Pregnancies for Female Inmates.”

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.

According to a new report, Gamble isn’t alone. Advocates have been monitoring pregnancy-related care since the law’s passage. After obtaining and analyzing the policies of the state’s prison and jail system, they found that no facility has policies that are fully compliant with the 2014 law. They issued their findings in a new report, Breaking Promises: Violations of the Massachusetts Pregnancy Standards and Anti-Shackling Lawco-authored by Marianne Bullock of the Prison Birth Project, Lauren Petit of Prisoners’ Legal Services of Massachusetts, and Rachel Roth, a reproductive-justice expert.

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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Medical experts, including the American Congress of Obstetricians and Gynecologists, the American Medical Association and the American College of Nurse-Midwives, have all agreed that shackling during pregnancy is unnecessary, inhumane, and dangerous. Shackling increases the risk of falling and injury to both mother and fetus while also preventing medical staff from assessing and assisting during labor and delivery. In 2014, both the Massachusetts legislature and then-Gov. Deval Patrick (D) agreed, passing the law against it.

“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.”

Since then, both the Public Safety Committee and Health Care Financing Committee approved the bill. It is now before the House Committee for Bills in the Third Reading, which means it is now at the stage where it can be taken up by the House for a vote.

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.”