Why Are Alameda County Jails Forcing Women to Take Pregnancy Tests?

For pregnant women in Alameda County jails in the 1980s, the daily realities of life included shackled limbs, denial of prescribed medication, and, in the case of full-term miscarriage, at least one health-care worker who insisted a woman and her baby would be “better off” if the child died. During that time, rates of female incarceration spiked, and a troubled prison system attempted to make do. Women at the jail faced rates of miscarriage 50 times higher than the California average.

In 1986, advocates sued for a litany of offenses. And in 1989, they won. Policies changed. But their attempts at reforming women’s health unexpectedly opened the door for another form of abuse.

For at least several years, Alameda County sheriffs and medical personnel have routinely conducted pregnancy tests on thousands of prisoners, old and young, fertile and sterile, willing or not. It’s a practice that isn’t shared by any other jails in California. No one can say for exactly how long Alameda County jails have been forcing arrested women to take pregnancy tests, and no one can really explain why.

“It’s ironic that they’ve stood the [1989] agreement on its head and are using it as a reason to do something coercive and punitive,” attorney Ellen Barry, who litigated the case and wrote the settlement agreement, told RH Reality Check recently.

One 26-year-old woman was arrested for a misdemeanor in December 2011 in Oakland while she was menstruating. “Deputies at the Glenn Dyer jail wouldn’t give me a pad, but still made me take a pregnancy test,” she told RH Reality Check.

These unique abuses came to light over the past four years, as large political demonstrations in Oakland saw the mass arrest and detention of protesters and journalists privileged enough to not have experienced Alameda County jails before. In June, the American Civil Liberties Union filed a lawsuit against the county for violating women’s Fourth Amendment rights against unreasonable searches.

“This is not a suit that we thought we should have to bring,” said ACLU attorney Elizabeth Gill. “In our view it’s very clearly both unconstitutional and illegal what the sheriff’s office is doing. Mandatory pregnancy testing is a clear invasion of a women’s right to privacy.”

In short, the practice is “crazy,” she said.

Women and the Prison System

The story of Alameda’s mandatory pregnancy tests is really the story of how U.S. prisons have grappled with an influx of young women over the past four decades: with supreme incompetence and intermittent malice.

As the incarcerated population exploded due to mandatory minimum sentencing and the drug war, jails and prisons were suddenly grappling with an influx of women, and an influx of health issues particular to those women. Between 1980 and 2011, the female prison population grew nearly 600 percent.

Still, women remained a relatively small portion of the prison population, making their needs by volume intrinsically less urgent—in 2000, women constituted only 7 percent of the total number of inmates in the United States. In everything from health care and nutrition to labor and housing facilities, women’s care traditionally took a back seat to that of male inmates, even though they faced unique problems inside.

“Women entering correctional facilities are often in very poor health for a number of reasons, including higher rates of poverty, substance abuse, and sexual/physical abuse among this population,” writes Kelly Parker in the Journal of Law and Health.

At any given time, around 2 to 3 percent of all women are pregnant in the United States, but according to Legal Services for Prisoners With Children, an estimated 8 to 10 percent of women who enter prison are pregnant. In Alameda County, more than twice as many pregnant women were admitted into county jails in the 1980s as in previous decades.

These women are not a comparatively large population, but they are a particularly vulnerable one. In some cases, pregnant women who are addicted to drugs have been given longer prison sentences only to ostensibly protect their unborn children.

But prisons did not know what to do with their pregnant women. In 1987, the California Department of Health Services commissioned a study of three of the state’s largest facilities for incarcerated women: the California Rehabilitation Center in San Bernardino county, the California Institution for Women in Riverside County, and the Santa Rita “mega-jail” in Alameda, the fifth largest county jail in the United States. The study found that “in all three facilities, early identification of pregnancy did not routinely occur, health care plans and case management systems for perinatal care did not exist, and prisoner’s prenatal medical records were generally not available at outside contracting hospitals when two women delivered their babies.”

It took a series of lawsuits across the country to effect changes. In 1983, in West v. Manson, women incarcerated and detained at a Connecticut state prison sued for poor treatment and conditions, and won.

So too did incarcerated women in California, in Harris v. McCarthy (1987), and Yeager v. Smith (1987).

In 1986, Vernita Jones, Darlene McKeever, and Patricia Ailsworth—along with unnamed other pregnant women as a part of a class—filed suit against Alameda County and its jail system.

Vernita Jones’ baby had died after she was not allowed to have the methadone that had been prescribed to her by a doctor. “She had entered drug treatment before she was incarcerated and then was precipitously terminated from methadone, detoxed without treatment, and lost the baby at full term,” said Barry.

In 1989, the plaintiffs won, and Barry wrote a long settlement agreement that mandated a new multimillion-dollar women’s health-care facility, and a long list of new rules and guidelines for sheriffs and health-care workers to follow in their treatment of pregnant prisoners. “In the years immediately following the settlement, I believe there was good faith compliance,” she said.

In some ways, Alameda County women were lucky. “Pregnant women incarcerated in correctional facilities that have been the subject of litigation have seen an improvement in the conditions they experience,” Parker wrote. “However, most of these facilities would not have made these changes without the threat of litigation. Thus, those pregnant women incarcerated in facilities that have evaded legal scrutiny may still face conditions not much improved than those endured by Ms. Yeager and others like her.”

The Jones v. Dyer decision and resulting consent decree was a local game-changer, a turning point. It also had consequences that no one could have seen coming.

Whose Policy Is This?

Alameda County sheriffs point to the 1989 settlement agreement in Jones v. Dyer as proof that they’re not only complying with the now long-expired binding consent decree, but that they’re also going above and beyond for women’s health. The agreement, which expired in 1993, delineates a long list of procedures and guidelines meant to protect pregnant women and their fetuses, including specifications as to how pregnancy tests should be made available to all detainees so that pregnant women can access special health care, food, and other rights and services in jail.

“There were no provisions in the settlement agreement that coerced women into having mandatory pregnancy tests—this would have been against the letter and the spirit of the settlement agreement,” said Barry.

Indeed, the agreement also clearly states that those tests are voluntary for all prisoners, and that detainees can choose to opt out: “A prisoner may choose not to have this pregnancy test,” it states.

In 2011, I was arrested while reporting in Oakland, and forced to take one of these pregnancy tests, peeing into a plastic cup in an open cell in front of milling sheriffs who tried to avoid eye contact. I asked them and the health-care worker who took the cup why I had to do this. I got no response.

In an interview several months later, Alameda County sheriffs assured me that this was not their policy. “That’s Corizon’s policy,” they told me, referring to the private health-care company that oversees all medical needs in Alameda County jails. “That’s not us. You should talk to them.”

However, in a 2010 letter sent to the ACLU, Alameda County head sheriff Gregory Ahern writes that “every female prisoner is required to submit to a pregnancy test through urinalysis.”

As prison populations have exploded over the past few decades, so has the prison industry. While private prison facilities have proliferated across many parts of the country, California’s jails have, with some exceptions, remained under public control. But some municipalities have contracted out for specific jail services, including health care.

As attorneys were still hashing out Jones v. Dyer, Alameda County contracted with Prison Health Services in 1988.

“The concern about private health care is that these institutions are basically saying we can do this cheaper, which usually means we can do this at a less quality level,” said Barry. “This issue was highlighted fairly shortly after the settlement was written, and we did have to remind the county a number of times that though they’d privatized, it doesn’t take away their duty to provide constitutionally sufficient medical care.”

Prison Health Services repeatedly violated the settlement by not providing women with prescribed methadone.

“For months and months after they did not get their act together. It was very disruptive and very difficult” to get the company to comply, said Barry.

In 2011, Prison Health Services merged with its largest competitor, Correctional Medical Services, to become the largest company of its kind in the country. Corizon boasts operations in the jails and prisons of at least 29 states, including in three other California counties. The company bills itself as a cost-cutting measure for cash-strapped municipalities that have seen their prison populations skyrocket.

“This has been a very long and a very successful partnership,” said Ahern, the county sheriff, on the occasion of the county’s renewal of Corizon’s contract last February. “Corizon has provided excellent service to our inmate population while saving the County millions of dollars over the length of the contract.”

“Even My Own Bodily Fluids Were Not My Own”

One after another, women held at Alameda County jails told me similar tales of coercion and confusion, regardless of their alleged crime or their personal medical history. (The women all asked to remain anonymous.)

“They made me take one even though I’m infertile, told them so, and even though that could have easily been verified with one phone call. They had a woman cop watch me pee, I think because I had indicated I didn’t want to take a pregnancy test,” one woman told me in a written message.

“They told me it was because ‘Glen Dyer can’t hold women, so all women being held at Glen Dyer need to take a pregnancy test,’ which didn’t make any sense,” wrote another.

“It struck me for the first time when I was forced to pee in the cup, that I really could be coerced to do things that I didn’t want to do, and that it didn’t take much either. I was pretty furious that even my own bodily fluids were not my own,” a third woman wrote in her prison diary, which she shared with me.

When they arrive at the jail, prisoners have a very brief consult with a health-care worker who asks a few basic medical questions. Then they are given the pregnancy test—before they are technically booked into the jail, but are in sheriffs’ custody.

While Alameda County sheriffs claim these tests are meant to protect women’s health, during this limbo period in holding—which can last for more than two days—it is jail policy that detainees are not given access to doctors, nurses, or any other medical care, including their prescribed medications for conditions as serious as diabetes, multiple sclerosis, and HIV.

Alameda County and Corizon both declined to answer questions about their specific reproductive health-care policies and pregnancy test practices due to the ACLU’s pending lawsuit.

“Women are provided with a wide range of services, including contraception, as well as obstetrical care if they are pregnant while incarcerated,” Corizon spokesperson Susan Morganstern wrote in an email. “Corizon’s policies are consistent with the American Congress of Obstetricians and Gynecologists, and the entire program is closely monitored by a board-certified obstetrician/gynecologist.”

Though sheriffs previously said that mandatory pregnancy testing was Corizon’s policy, they have changed their story following the ACLU’s suit.

“They are saying different things in different contexts,” said the ACLU’s Gill. “They’ve variously said they’re required to do it or that their health-care contract requires it, which may be the case but is irrelevant.”

Since the suit was filed, sheriffs have repeatedly stated that the policy was a result of a consent decree, though they’ve declined to provide details.

“In the past we’ve gotten sued for not doing pregnancy tests, so it’s one of those,” Alameda County Sergeant Ray Kelly said, sighing.

Of Alameda County’s two jails, only the suburban Santa Rita “mega-jail” is approved to incarcerate female prisoners of any kind, including misdemeanor arrestees who are only held for a few hours.

“Glen Dyer Detention Facility [in Oakland] does not have the facility or space to dedicate to women’s reproductive health,” said Alameda County Captain Colby Staysa. “The decision to not allow female inmates at Glen Dyer Jail included many factors and was not based solely on reproductive health.”

If the policy originated with the county, it clearly violates the Jones v. Dyer settlement agreement, along with prisoners’ constitutional rights. If it originated with Corizon, it’s even more peculiar.

“There’s a strange notion that if these agencies go with privatization, that lessens the culpability of the government entity in situations where there are unconstitutional violations,” said Barry.

“It’s the sheriffs’ contract, and they are responsible for the healthcare of women in their jails. It’s not like the health-care provider could come in and do whatever they want,” said Gill.

It’s not clear why Corizon would facilitate costly, unwanted medical procedures on unwilling women, but the company has good reason to try to protect itself from potential liabilities. In its short history, the company has fought and settled several hundred lawsuits, with allegations ranging from neglect that resulted in a broken finger, to abuse that resulted in wrongful death.

But when I asked Sergeant Ray Kelly about the county’s contract with Corizon, he was confident: “Inmates get the same level of care that you or I would, probably better in some cases.”

The ACLU’s case is set to go to trial this fall in state court. The suit seeks to maintain pregnancy testing in the jails, but on a voluntary, not mandatory, basis, with a clear opportunity for women to opt out if they choose. The suit also seeks to have a court declare that the mandatory pregnancy testing clearly violates the Fourth Amendment, which protects against unreasonable searches.

“The fix to this is very simple: You don’t force a pregnancy test on every women who’s arrested,” said Gill.

But as long as pregnant women are incarcerated, Alameda County and other jails will attempt to strike a balance between delivering minimally acceptable care while protecting themselves from possible liability.

“Basically what we would like to see is not really any pregnant women in Santa Rita or any other jail,” said Carol Strickman, staff attorney at Legal Services for Prisoners with Children. “I don’t think jails and prisons are very good at providing adequate medical care, and it’s a vulnerable time for people. The bottom line is resources.”

But there’s one quick and simple way that Alameda County could cut its health-care budget right now: Stop forcing women to pee in those cups.

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  • ilr1950

    This is a manufactured problem. No one questions a jails right to do a urine test for drugs. What’s the difference between peeing in the jar for one thing or another?

    • J.D.

      Because it’s none of their business whether she’s pregnant or not. Nosy busybodies, even those with governmental/administrative seal, do NOT have carte blanche to invade a woman’s medical privacy.

      • ilr1950

        The prison needs to know about any medical condition which may require special care or consideration and that includes pregnancy.

        • J.D.

          Inmates aren’t pandas at the zoo. The jail staff is not upgrading their accommodations and giving them special privileges and bigger cells if they’re expecting. The jail is overreaching itself because such tests could definitely constitute violations of the right against self incrimination, depending on the charges. They want to know, let ’em get a court order. That should be fun, depending on the number of inmates they get day in and day out.

          • ilr1950

            If the woman has a miscarriage you can bet she will blame the prison if she was expected to do something which she thinks might have causes a miscarriage. There are some chemicals a pregnant woman shouldnt be around. Medical care should include prenatal vitamins. If she’s in prison for very long she should be having prenatal care. And she sure as hell is going to need medical care if she stays in prison long enough to give birth.

    • eroteme

      Reproduction is a private affair.

    • http://www.danaseilhan.com Dana

      Why do jails bother doing a urine test for drugs? If you’re on methadone they’ll just refuse it to you; if you’re on any other drug, you’ve got to come down sooner or later. You might be surprised how many people object to mandatory drug testing in all but the most narrow of circumstances. Also I’m really tired of potheads constantly trying to distract from women’s issues by steering the conversation around to drugs, so if that’s your story, quit it.

      • diaztello

        But the drug war IS a women’s issue. I agree that it makes no difference whether a person’s bodily fluids are being tested for pregnancy hormones, criminalized drugs, or abortofacient substances (which don’t show up in urine, btw, but it’s a handy way to elicit a confession). I disagree, however, that this makes it a manufactured problem: we should be questioning the invasive unconsented testing no matter what the supposed purpose, because once we concede that constitutional violations are permissible, we can’t put the genie back in the bottle. And – while it isn’t the case in CA – in some states, a positive pregnancy test might be grounds for further charges in relation to the endangerment of a fertilized egg (!!)

        • ilr1950

          How is testing urine a ‘constitutional’ violation? What part of the constitution is violated? The prison needs to know about ANY medical condition which might result in complications or might require special care or special considerations. And that would include pregnancy.

          • diaztello

            People have a constitutional privacy interest in their body and bodily fluids that is protected by the 4th Amendment (http://en.wikipedia.org/wiki/Ferguson_v._City_of_Charleston). I know that the issues are different in correctional facilities, but maybe you want to read the ACLU’s materials on their case, which I am sure articulate the constitutional arguments. I’d be much more compelled by your reasoning if prisons did in fact give people obstetrical care in correctional facilities, but that’s not really the case, and in any event it sounds like they are testing everyone, regardless of how long they are going to be there. I’m not sure why you are assuming that a prison’s need to know about “ANY medical condition” justifies urine drug testing. Should they then require all people to undergo CAT scans to make sure they don’t have tumors, or EKG’s to make sure they don’t have heart disease? These things might result in complications. Or maybe they can just rely on a person’s self-report of pregnancy and administer a test if requested? Maybe get consent and treat people with dignity?

          • fiona64

            How is testing urine a ‘constitutional’ violation? What part of the constitution is violated?

            Really? REALLY?

            Quote (emphasis added); The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
            violated, and no warrants shall issue, but upon probable cause,
            supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

            Let me put it to you this way: being female is not “probable cause” for a pregnancy test. If you had read the article, you would have realize that they are forcing this on women who are infertile.

      • ilr1950

        Where do you get the idea youre in charge of telling other people to quit anything? Get over your delusions of grandeur. Drug testing in prisons will tell if prisoners are getting drugs from outside sources. The only one talking about pot is YOU.

        • Arachne646

          Even in jail or prison, people have Constitutional protections against unreasonable search and seizure, so collection of bodily fluids like urine or blood for drug testing must be based on probable cause. There must be evidence that incriminates that person in order to collect urine from them without their permission. You don’t lose all your Constitutional rights when you are incarcerated, you just have no way to exercise them if the powers that be don’t so choose.

  • katydid41

    Boys want to intimidate women and control women’s bodies in any venue and for any lame excuse. It’s part of the “Bro-Code” and is an ancient tradition.
    When women run the world RETRIBUTION is the way to go.

  • disqus_ok9xndxFPu

    It’s being used incorrectly. But police really should know if you are pregnant in jail, because a lot of things in jail can be hazardous to pregnant women (who have weakened immune systems and are more prone to injuries due to their condition). For example, pregnant women need vitamins or a really good diet with lots of folic acid, access to preventative medical care (you wouldn’t let a non-pregnant inmate have a monthly or weekly wellness check because they don’t need it, but a pregnant woman should be able to), and need to be able to ask guards for help with heavy lifting or avoiding chemicals without getting pushback. Some things like shackling or solitary can be very dangerous for pregnant women, as well. I don’t think that’s why they do it now, but my goal that I will fight for is to treat pregnant women as they need and want to be treated once their condition is known, and maybe to demand that OTC tests be used that don’t involve testing for anything but pregnancy (and drugs if and only if we were going to ease the detox).