With the rise of COVID-19 cases in prisons and the questionable future of our government, it is important to highlight some of the most pressing issues in our criminal justice system. One of them is how our government fails pregnant women who are incarcerated.
The most alarming aspect of pregnancies in prisons is the lack of documentation. There is a 15-year gap in data regarding pregnancies and pregnancy care provided in prisons from the Bureau of Justice Statistics. The most up-to-date information is from 2002 and 2004 which documented the rates of pregnant women upon their admittance to local, state and federal prisons and jails.
Why is this concerning?
Due to the policies of the criminal justice system in our country that perpetuate mass incarceration, incarcerated pregnancies will inevitably continue to rise. Additionally, pregnancies in prisons are often high-risk due to several factors existing prior to incarceration. These factors include substance abuse, domestic violence, mental illness, poor nutrition and a lack of prenatal care. Most prisons do not have any of the standards for specialized care that these pregnancies require.
Between 1980 and 2017, the number of incarcerated women has increased by more than 750%. In 2017, the rate of imprisonment for Black women was double the rate for white women. Currently, the imprisonment of white and Hispanic women is increasing, and the rate of Black women is declining.
When considering how our prisons care for pregnant women, these factors are extremely important. Currently, there are no mandatory standards of care for pregnant women in American prisons. There are basic recognized guidelines, but several state systems fail to meet them.
Twelve state carceral systems do not specify medical examinations as a component of prenatal care, and in two states this policy is unavailable to the public. Twenty-three states do not provide screening and treatment for high-risk pregnancies, and once again, two states fail to make this policy publicly available. Pre-existing arrangements for deliveries are not required in 24 states, while three states neglect to make this policy publicly available. Only 12 states prohibit or limit the use of restraints during child labor.
In Indiana, IC 11-10-3-3 is the only law describing expected standards for prenatal and postnatal care. Unsurprisingly, it’s fairly vague.
“Necessary prenatal and postnatal care and treatment shall be provided consistent with acceptable medical practice and standards,” the code reads. “When possible, arrangements shall be made for children to be born in a hospital outside the correctional facility. ”
Indiana is among the states that do not prohibit or limit the use of restraints and don’t provide screening and treatment for high-risk pregnancies.
In some states where they do have these policies in place, critical parts of pregnancy care are still missing.
Under the Eighth Amendment, all prisons and jails must provide prenatal care, but there are no federal standards to ensure this care is being adequately provided. This explains why only 54% of incarcerated pregnant women receive some form of prenatal care.
It is well-documented that incarcerated women often give birth in improper conditions. There are several accounts of women giving birth in their cells by themselves, or of being shackled to a hospital bed while in labor. This can pose greater risks as it can worsen pain, limit movement during labor and interfere with the ability of health care providers to assess the mother and fetus.
This policy was originally developed to prevent the prisoner from escaping or harming themselves or others. However, there have been no documented escape attempts among incarcerated women during child labor, and most women who are pregnant in prison are nonviolent offenders. The Federal Bureau of Prisons and many other organizations have denounced the practice of shackling during child labor. Despite this, there is no legal requirement for state and local prisons or jails to abide by this policy, which explains why so many of these institutions still have this policy in place.
Nutritional standards are already poor among prisons and jails, and there is a lack of critical nutrition standards for pregnant incarcerated women. This is important because unbalanced diets can increase the risk for preterm birth, birth defects and other developmental problems. Currently, 31 states lack nutritional policies for incarcerated pregnant women. Twelve states have some guidelines but use vague language, leading to substandard care.
Even when incarcerated, women still maintain the constitutional right to an abortion. Most states have several restrictions in place that make obtaining an abortion extremely difficult, however. It can also vary greatly depending on the location of the facility because concrete policies regarding abortions are difficult to come by.
Pregnant incarcerated women face additional barriers through prison or jail staff as there are several accounts of staff simply refusing the right to an abortion for an inmate. These women are frequently expected to pay for all of the related expenses of an abortion upfront, and it can take months because many do not have the financial resources to afford these procedures while earning prison wages. Incarcerated people in Indiana only earned between 12 and 25 cents an hour in 2017.
In the 2017 court case Doe v. McCauley, Doe repeatedly informed guards at Indiana Women’s Prison that she wanted to obtain an abortion. The guards repeatedly denied her requests to see a health care provider, and told her she only had one week to pre-pay around $1,000 in fees for the procedure.
After seeking legal assistance, she was finally transported to a health care provider where she found she was already 14 weeks pregnant. Abortion clinics in the state of Indiana cannot perform abortions after 13 weeks and 6 days. She requested to be transported to an out-of-state facility in order to have the procedure but was denied. Without any options, she was then forced to carry her pregnancy to term.
These barriers to abortion are largely unconstitutional as they violate the Eighth and Fourteenth amendments. The right to have an abortion is a serious medical need and the economic and administrative barriers these facilities place on women infringes on their constitutional rights.
Considering the additional health risks in prisons with the rise of COVID-19 in facilities paired with the questionable political climate of our country, the lack of proper reproductive care has serious consequences for these women. We must fight for change within the criminal justice system and the rights of all prisoners.
Alex Petit (she/her) is a senior studying marketing and creative technologies in art and design. She hopes to pursue a career that has relevance to criminal justice reform or urban city planning.