Giving Birth in Chains: The Shackling of Incarcerated Women During Labor and Delivery


As birthing choices are increasingly prominent in the public
conversation, pregnant women are more and more empowered to decide what sort of
care is right for their bodies and their child.

Not so for pregnant women who are incarcerated.  Not only are their decisions about care
restricted, but many incarcerated pregnant women are physically restricted
while giving birth: during labor and delivery, they are shackled.

Consider the case of Shawanna Nelson.

When Nelson was six months pregnant, she was incarcerated in
Arkansas for passing bad checks. She went into labor during her short sentence.
A correctional officer shackled her legs to opposite sides of the bed that
transported her to a delivery room, removing them briefly during a nurse’s
examination. Nelson was re-shackled immediately after giving birth to her
nine-pound son.

"She suffered both mental anguish and injury to her back,
intense pain because she couldn’t move or adjust her position through her birth
process," said Dana Sussman, legal fellow at the Center for Reproductive
Rights.

Nelson later had surgery to treat symptoms resulting from
the delivery of her son, according to The Arkansas Times. She sued the Arkansas
Department of Correction, charging that her treatment violated the Eighth
Amendment’s protection against cruel and unusual punishment.

After winning her case at district court, Nelson’s charges
were dismissed on appeal by a judicial panel that said prison officials
"couldn’t have known the shackling was unconstitutional," said Sussman. Nelson
was granted a rehearing before the 8th Circuit Court of Appeals,
supported by the American Civil Liberties Union’s National Prison Project. Her
case was argued in September 2008. A decision is pending.

Perhaps most surprising about Nelson’s case is that it’s not
uncommon. Last month, a former Washington inmate sued the state for shackling
during her birthing process and high-risk pregnancy, treatment that included a
leg iron and a metal chain across her stomach.

Also last month, former inmates of Cook County jail filed a
federal lawsuit in Illinois challenging the facility’s shackling practice.
Illinois was the first state to have legislation that prohibited shackling; it
remains one of four states that make shackling explicitly illegal.

"I had no idea women were treated like that anywhere," said
Tina Reynolds, who was shackled during labor and the birth of her son fifteen
years ago.

"Shackling is a brutal and inherently unjust practice, so
blatantly draconian," said Malika Saada Saar, executive director of The Rebecca
Project (and contributor to RH Reality Check).

"The problem is that policies for incarcerated men are
extended to women without adapting to distinct circumstances," Saada Saar
added.

The Practice of
Shackling

Shackling usually happens when pregnant women are
transported from one facility to another-when a woman is transferred to a new
prison, for example, or when she’s taken to a hospital for medical care.
Reynolds herself was shackled around the waist during labor. She knows others
who were subjected to a black box placed between their wrist and belly, which
keeps the arms in front and facedown. Shackling also happens around ankles in
transport vans and in wheelchairs, while breastfeeding, and while in neonatal
nurseries, Reynolds said.

To date, 46 states have no legislation that restricts the
shackling of pregnant women in prisons, jails, and detention centers, leaving
the practice to the discretion of individual facilities. Illinois, California,
Vermont, and New Mexico prohibit it entirely, though, as the Cook County case
reveals, implementation of anti-shackling policy can be patchy.

Non-federal facilities are exempt from the U.S. Bureau of
Prisons policy that, in October 2008, barred the shackling of pregnant women,
"except in the most extreme circumstances." This policy is in alignment
with the United Nations Convention Against Torture, which the U.S. ratified.

Shackling policies are especially pertinent given that women
are the fastest growing demographic in U.S. prisons, according to the Women’s
Prison Association. As with the general prison population, most are serving
sentences for nonviolent offenses.

Among detained immigrant women who are pregnant, the
research of Meghan Rhoad of Human Rights Watch (and an RH Reality Check
contributor) found that shackling frequently happens during transport and
occurs less often during labor. Many pregnant women are deported before they
give birth because U.S. Immigration and Customs Enforcement (ICE) tries to
expedite the process for them.

"We know that some pregnant women in detention are pregnant
as a result of rape that happened in their home country or while they crossed
the border," Rhoad said. "That they may be forced to endure shackling as rape
survivors is absurd and horrifying."

The practice of shackling discourages women from seeking
needed care, Rhoad said.

"The degradation is such a disincentive," Rhoad added. "It’s
related to who’s in immigration detention, including refugees, survivors of
trauma that may have involved shackling, and people with no experience in
detention centers."

The Rebecca Project’s advocacy engages ICE and associations
of county jails, because detained immigrant women are often placed in jails
where shackling is standard practice.

"For some reason, jail policy trumps ICE policy on
shackling," said Saada Saar. "This could be alleviated if ICE and others at the
federal level made a clear statement."

Rhoad is optimistic that pregnant immigrant women in
detention will soon have better circumstances.

"We’ve seen an openness in the new (Obama) administration to
examine the practices in women’s care," Rhoad said.

As well, The Rebecca Project’s anti-shackling efforts
acknowledge the frequency of shackling occurring while women are transported.

"We’ve done extensive work with the U.S. Marshals because
they’re responsible for the transportation of prisoners and are often
responsible for shackling," said Saada Saar.

Anti-Shackling
Movement Builds Momentum, Wins Allies

The 2008 federal policy against shackling cued renewed hope
among advocates for the humane treatment of incarcerated women. Beyond lawsuits
and advocacy with individual departments, legislative campaigns to restrict
shackling are finding unprecedented success-after years of falling on deaf
ears.

New Mexico is the most recent state to bar shackling through
a bill signed by Governor Bill Richardson this spring. New York and Texas
currently have bills backed by legislative support that await the word of their
governors before they become law.

"For us, it’s not enough to change regulations (on shackling
in particular prisons)," Saada Saar said. "To do this campaign through the legislature
gives us a way to respond to violations of the policy. Through state statutes,
mothers’ rights are better protected."

"A lot of states do have corrections policies that restrict
shackling, but (the policies) aren’t commonly known or understood," Sussman
said. "A law allows us to go to court; it makes it hard for others to say they
didn’t know (that shackling is restricted).

"We have a strong case in Illinois because of the law there,
for example. We need to bring cases to ensure enforcement," Sussman added.
"It’s a dual strategy."

It’s a strategy that inspires diverse support. Broad
coalitions are signing on to legislative and legal campaigns to transform the
experience of giving birth in prisons, jails, and detention centers.

Among those backing the New York Anti-Shackling Bill are
women’s health advocates, prison rights organizations, medical and public
health groups, and "even fellowships and ministries that aren’t our frequent
allies," Sussman said.

In Texas, there’s even more strategic alignment with
religious organizations and politicians in the campaign against shackling, said
Sussman.

"With religious groups, what resonates is the simple
inhumanity (of shackling)," said Sussman.

Rhoad said that her organization took on the anti-shackling
campaign because, she said, shackling is "not just a women’s right issue; it’s
a human rights issue."

Meanwhile, when Reynolds attended the National Organization
for Women conference in Indianapolis last month, she was invited to submit a
resolution for NOW to take on shackling in its national advocacy. Her
resolution was adopted, which Reynolds called "a huge step, because they are a
huge organization."

"That was remarkable to me to feel empowered, as a formerly
incarcerated woman who had joined NOW the week before," Reynolds said.

Leaders in the anti-shackling movement credit the campaign’s
momentum to centering the experiences of women who were shackled. Their stories
are featured at press conferences, in letters, in briefs, and other campaign
vehicles. Many are collected through Women on the Rise Telling HerStory
(WORTH), an association of formerly incarcerated women founded by Reynolds.

"It may be possible to resist changes (to the practice of
shackling), but when you’re confronted with the reality of women who’ve had to
endure this, that’s a hard position to maintain," said Rhoad.

Challengers

Despite the multifaceted support for anti-shackling
legislation, the movement is not without its challengers.

The New York Department of Correctional Services (DCS) opposes
the Anti-Shackling Bill that won near-unanimous legislative support and now
awaits Governor Paterson’s approval. The DCS contends that shackling doesn’t
happen in its facilities, and if it did, the department is capable of
addressing the problem independently.

Serena Alfieri, associate director of policy with the
Correctional Association of New York, said that DCS’s point about shackling not
occurring is fueled by a lack of documentation. She notes that many women don’t
file complaints about the practice out of fear of retaliation.

Stories about shackling most frequently come from women
after they are released. There are documented stories of shackling happening as
recently as February 2009, according to Alfieri.

Alfieri said opponents of anti-shackling efforts often cite
security concerns about inmates using the opportunity of pregnancy and birth to
escape. The New York Anti-Shackling Bill includes exceptions for terrorists and
past escapees.

"It’s interesting that the only argument opponents (to the Anti-Shackling
Bill) really have is that prisoners will escape and therefore community safety
is at stake," said Alfieri. "But (in New York) they’re not even using that
argument. Their saying it just doesn’t happen."

It is Alfieri’s theory that DCS might have taken a different
strategy if "they ever vaguely even thought this bill had a chance to become a
law.

"After similar bills haven’t passed in recent years, (DCS)
underestimated the amount of support for this," Alfieri said. The
Anti-Shackling Bill’s success comes after at least seven years of the issue
being dropped by the legislature.

Reynolds said, "I wonder if (the DOC) knows that there is a
difference between labor and birth. Because there is a difference. They might
remove shackles during the actual birth, but labor-and labor pains-is
experienced beyond that.

"It is painful and horrific to be shackled during labor
pains," she added.

While New York’s DCS goes through the pains of downsizing
and union pressure, its leaders and employees are trying to ensure that not a
lot of more changes are happening, Alfieri said.  She believes that this contributes to DCS’s
opposition to the Anti-Shackling Bill-the department resists out of a desire to
not cause any more upheaval than is already happening.

"Security is where they come from; the impact on the health
of women and children just doesn’t occur to them, it’s just not on the table,"
Alfieri said.

Turning Point for
Incarcerated Women, Reproductive Justice Advocates

Nonetheless, awareness of the impact of incarceration on
women and children is rising across the nation.

Reynolds believes that growing national attention to
shackling is partly attributed to empathy for the child involved in births that
happen in prisons-though, she said, she hopes people recognize the connection
between the child and its mother.

The momentum is further fueled by international standards
against shackling pregnant women. Sussman said that the movement’s approach
frames the issue as violations against UN standards of torture.

"Gains on the international level are powerful for
advocacy," Sussman said. "We use it in our letters, all through our campaign."

Rhoad echoed Sussman’s ideas.

"Exploring this as a human rights issue is imperative,"
Rhoad said. "We can look at the basic standards of treatment and the strong
support in the international arena for prohibiting shackling in all but the
most extraordinary circumstances."

It’s an idea that that offers the reproductive justice
community an opportunity to evolve.

Shackling is a "very important issue for the reproductive
rights community, though it hasn’t quite been claimed yet," Saada Saar said.
"Now is an opportunity to re-claim it and shed light on mothers’ rights."

Reynolds said she agreed that shackling, as well as the
impact of incarceration more broadly, remains "sorely missing in reproductive
justice circles."

The Center for Reproductive Rights is "primarily an abortion
access organization, but (working on the anti-shackling campaign) broadens us
as a reproductive justice group," said Sussman. "The reproductive justice
community believes strongly in the full spectrum of health care, including
abortion access and childbirth services."

Sussman noted that reproductive justice groups that focus on
particular community and regions have been among the strongest advocates in the
anti-shackling campaign, recognizing, for example, how the criminal justice
system impacts communities of color.

In fact, birthing rights advocates can be credited for
overturning the practice of shackling in the city of Philadelphia (a policy
that hasn’t extended to the state of Pennsylvania).

"Doulas and midwives worked with mothers in prisons, and
they’re work and intervention changed that policy in Philadelphia," said Saada
Saar.

It is, after all, a simple idea.

"Women should be given the opportunity to recover and heal
in a treatment facility with their child," said Reynolds. "People deserve the
dignity to have a child in a healthy way, free of restraints, without feeling
more oppressed."

"Everybody is captivated by the story of how they were
born," Reynolds added. "Why shouldn’t mothers be able to tell a joyful story to
their child, without worrying about leaving out details of shackles and poor
care? That story they share should be pure and beautiful."

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To schedule an interview with Anna Clark please contact Communications Director Rachel Perrone at rachel@rhrealitycheck.org.

  • invalid-0

    Absolutely barbaric! This is not about the incarcerated being dangerous to anyone during labor, but about the tough-on-crime, retribution climate of our nation that has gone too far for too many years. Thankfully, tiny sparks of compassion and economic reality are breaking through….

    Ms. Nelson passed bad checks. In California, the state of “Higher Incarceration”, it cost us tax payers $49,000 a year to lock up each inmate….

    WE NEED ALTERNATIVE PUNISHMENT THAT FORCES OFFENDERS TO REIMBURSE THOSE THEY HARMED AND DOES NOT BANKRUPT OUR STATES. That’s a tall order, but locking up 1 person out of every 100 is not sustainable. We need something more effective and cheaper.

  • http://www.correctionsrising.com invalid-0

    I can only speak about how the Florida Department of Corrections handles this kind of situation and our rules say no restraints shall be applied to pregnant women in labor, giving birth, or whenever a medical doctor says so. I am actually surprised that some prison systems do require restraints for women in labor or giving birth. However, we should not lose sight of why these women are in prison in the first place. Their crimes cost society a considerable amount of money and resources and it is they, the now incarcerated inmate, who willing chose her path. We are all concerned with the birth of a new born, and so should the female inmate be also. But this is by no means an argument to justify the application of restraints onto a woman in labor or giving birth. I simply want to point out that the inmate is responsible for his or her incarceration by committing crimes. This article points out the specific charge of one of the female inmates: check forging. Of course the charge of check forging is not associated with an inmate who may be a security risk such as escaping. But think of all the thousands of other female inmates incarcerated who are security risks. Now realized that Correctional Officers are trained NOT to know the specific crimes of inmates because it may affect their impartiality. That is why most Correctional Officers forgo what is seemingly common sense and follow rules and regulations to the letter, their trained that way.

  • invalid-0

    Regardless of why women are incarcerated, shackling women during labor or delivery or post-recovery is opposed by every major medical and public health organization. You cannot be truly concerned with the health and well-being of infants if you rationalize the shackling of the women who are giving them life.

  • http://www.asnatureintended.info invalid-0

    It doesn’t matter, is totally inhumane to chain a woman in labor/delivery not only the mother’s life is in jeopardy but also the baby. Very wrong, unnecessary and inhumane to society. What a disgrace!

    • invalid-0

      It’s easy for someone to sit back and quickly judge those who are simply following their training in maintaining safety and security of a prisoner, rest assured if they had to be the ones transporting these women to and from State and Federal Prisons they would think about their safety a little more. Why is it every time someone is restrained, they somehow claim to suffer mental anguish? Because people are quick to find any way to gain sympathy from the people and create a law suit in hopes to get free money from tax payers. I wish there was a fee for filing these tort claims, currently it cost a person nothing to create a suit or tort claim and then it cost the County, State, or Federal government several thousand dollars to defend (ever if they have a strong case and are right). Talk about injustice.

  • http://art150.com invalid-0

    Personally, i don’t feel in most cases these women have cause to complain if they commit their crimes whilst pregnant. If the treatment is unfair, they should consider this before breaking the law.

    HOWEVER, i think in cases where the women was raped, or the crime is minimal, i really don’t see this treatment as necessary. How many of these women would pose such serious danger that they could break out of custody after the birth. Hardly any i suspect. So whilst i have no time for some of these criminals looking to make a quite buck, some poor women are true victims and should be protected.

  • invalid-0

    This goes way beyond “unfair” treatment. This is barbaric, and it is torture, plain and simple. If you have ever seen or even heard a woman going through labor pains, you would understand why she needs free range of motion to deal with the pain. And why should only rape victims be unshackled? What about a woman convicted of murder who was then raped in prison, in contrast with a pregnant woman who writes bad checks to pay for baby supplies? Furthermore, why should a pregnant woman be subjected to a punishment that other women are not, and no man ever will be? Your argument falls apart under the simplest of logic tests. It’s a practice that should be universally banned.

  • http://www.lsrj.org invalid-0

    Texas Governor Rick Perry actually signed HB 3653 (which prohibits shackling or restraining women during labor or delivery) on June 19. The law becomes effective on September 1, 2009.

    For more information, please see the Texas Legislature’s website:

    http://www.legis.state.tx.us/billlookup/Actions.aspx?LegSess=81R&Bill=HB3653

  • anna-clark

    Join the broad coalition that’s urging Governor Paterson to sign the
    bill that prevents women in prison from being shackled during labor and
    after delivery at the Anti-Shackling Rally on July 9 (tomorrow!)

     

    See details here.

  • invalid-0

    Here in my little corner of the world in Southern California, the hospital I work for will not allow women who are giving birth to be shackled. Are they shackled during transportation while pregnant? Yes, for the safety of other patients and healthcare personnel in the hospital. Do I agree with this? Yes, I certainly do. It is done to every inmate who visits our facility, man or woman – escapes have happened. Remember, they are in jail for a reason. We even offer a Doula program so that they have someone who is there for them and only them during labor. I work in a program that manages the healthcare of jail inmates so I am aware of what happens. This said, I also see what these women have done while pregnant, and also their histories – other children given up, doing drugs and alcohol while pregnant, etc. The healthcare that these women get is equal to, or better that what the commmunity as a whole recieves – access to nurses and a doctor every day, twice a week to an OB/Gyn. Doesn’t sound like human rights are being violated to me. Now who pays for these services? All of us taxpayers, of course.

  • emma

    I cannot believe people are defending this. Those of you who are saying ‘oh well, she should have thought of that before she committed the crime’ – are you serious? Having committed a crime doesn’t make one a sub-human, undeserving of even basic rights. And I can’t believe someone’s actually suggesting that someone jailed for writing bad checks has committed such a horrific crime that shackling is an appropriate part of her punishment. It’s a non-violent offense; there is no way to justify it on the basis of her presenting a danger to anyone. It sounds like it’s intended to serve no purpose other than to punish, degrade and cause gratuitous pain and suffering.

     

    Can I also remind you that the United States imprisons a higher percentage of its population than any country in the world – more than any prison state; more than Russia, China, Iran… The US jails people for minor, non-violent offenses that would not be considered to warrant prison sentences in most countries. That level of punitiveness is a major problem, and the use of shackling is another element of that punitive culture. Shackling anyone – especially someone who’s giving birth – is a horrendous, inhumane practice, but also…what exactly is achieved by treating non-violent, minor offenders like hardened criminals? What is this supposed to accomplish, other than allowing elected officials to brandish their ‘tough on crime’ cred?

     

    (If you want more info on the subject of paragraph two, google ‘global imprisonment rates’.)

  • invalid-0

    It is so hard bringing a baby into the world as it is and now these women have endure this?

    I don’t really care what these women did to become a prisoner but when a loady is having a baby she should be at the best of comfort during that trying time and that is a fact.

    I know that prisons have no feelings at but this is way over the top.

    I wonder if a man was having a baby would they do the same thing to him? I really doubt it.

  • invalid-0

    I know they get the best of the best when it comes to health insurance but when these women are in full fledged ready to have a baby isn’t hard to do anything other than having a baby?

  • invalid-0

    What is this supposed to accomplish, other than allowing elected officials to brandish their ‘tough on crime’ cred?

    Profits for the Prison Industrial complex (another phrase to google).

  • cnmellen

    As a midwife working in public hospitals in New York City I have had several occasions to care for prisoners in labor and giving birth. I always demanded that their shackles be removed. Shame on the doctors and nurses who allow their laboring patients to be abused this way and not speak out against it.

    But remember, it is not so long ago that all women were strapped by the wrists and ankles to the delivery table to give birth, one of several cruel and punitive routine practices in hospital births.