Reproductive Rights Prof Blog

A Look at Whether the Prison Rape Elimination Act Will Protect Incarcerated Women

The Nation: Will the Justice Department Stand Up for Women Raped in Prison?, by Rachel Roth:

Eight years ago, Congress acknowledged the brutal fact of systemic sexual assault behind bars by unanimously passing the Prison Rape Elimination Act (PREA). The Justice Department is now poised to issue final rules to implement the law, which makes federal funding to prisons and jails contingent on improved staff training, availability of medical and psychological services for people who suffer sexual assault, investigations and publicly available data about reported assaults.

But because violence is endemic to imprisonment, some level of sexual violence will persist. And for women, one consequence of sexual violence is pregnancy, especially for those who are forced to endure repeated rapes. More than 200,000 women are imprisoned right now, and many more pass through prisons and jails over the course of a year—each one vulnerable to sexual assault, and to pregnancy resulting from it. Despite the years of hearings, testimony and research, the Justice Department’s PREA rules still fail to protect the reproductive rights and health of women in this situation. . . .

Schwarzenegger Vetoes Bill Banning Shackling of Pregnant Inmates

RH Reality Check: Schwarzenegger Vetoes Bill to Ban Shackling of Pregnant Women, by Jodi Jacobson:

Over the past year, we have invited a number of reproductive justice advocates to write about the barbaric practice still used in many United States prisons of shackling pregnant women, sometimes for transport, sometimes throughout their incarceration, and often while they are giving birth.  Articles have been written on this issue by Tonya Williams, Malika Saada Saar, Anna Clark, and Amie Newman, among others, and we chronicled the passage of anti-shackling bills in New York, Pennsylvania, and Washington State.  The American Medical Association, the Association of Certified Nurse Midwives, the American Civil Liberties Union, and Human Rights Watch among other leading medical and human rights organizations oppose shackling of pregnant women.

Given the building consensus that shackling pregnant women is not only unnecessary--the vast majority are in prison for non-violent crimes in the first place--but  degrading to say the least, it was a shock to find out this morning that Governor Arnold Schwarzenegger vetoed a bill passed by the California Legislature to end shackling of pregnant women in his state. . . .

In Wake of Mexico City's Legalization of Early Abortion, Many Mexican States Aggressively Enforce Abortion Bans

NY Times: Many States in Mexico Crack Down on Abortion, by Elisabeth Malkin:

GUANAJUATO, Mexico — The woman came into the hospital, bleeding, scared and barely out of her teens. But before anyone would treat her, the authorities had to be called.

Doctors believed that she had had an illegal abortion, so first, a man from the prosecutor’s office had to arrive and ask her about her sexual history. Then, after she was treated but still groggy from the anesthesia, another investigator showed up and took her statement.

The investigation is still open two months later. Prosecutors are seeking medical records to determine whether they will charge the young woman, who asked that her name not be used, as well as the person they suspect helped her. . . . 

Iranian Women's Rights Activist Released from Prison on Bail

Feminist Wire (Ms. Magazine): Iranian Activist and Journalist Released From Prison:

Iranian women's rights activist and journalist Shiva Nazar Ahari was released from the notorious Evin Prison yesterday on approximately $500,000 bail. Ahari had been held since December 2009 on a number of charges, including "waging war against God," according to Radio Free Europe.

Ahari was arrested while traveling to attend the funeral of dissident cleric Grand Ayatollah Hossein Ali Montazeri. According to Reuters, an Iranian opposition website reported that, while in prison, Ahari has spent more than 100 days in solitary confinement. . . .

Mexican Women Imprisoned for "Infanticide" Are Freed After Advocates and Legislators Intervene

Los Angeles Times: 7 Mexican Women Freed In So-Called Infanticide Cases, by Tracy Wilkinson & Cecilia Sanchez:

Advocates say the women, who insist they suffered miscarriages, got caught up in cultural wars over abortion.

The seven women were accused of killing their newborn babies and handed long prison sentences. They insisted they had suffered miscarriages and should not be punished; one claimed she wasn't even sure she was pregnant.

The women have finally been freed, after years in jail and only after their cause was taken up by human rights organizations here and abroad and by a handful of determined legislators. . . .

Advocates for the women say they got caught up in Mexico's cultural wars over abortion. . . .

Mark Egerman on Inmates' Right to Elective Abortions Under the Eighth Amendment

Mark Egerman (fellow, Georgetown University Law Center, and staff counsel, National Abortion Federation) has posted Roe v. Crawford: Do Inmates Have an Eighth Amendment Right to Elective Abortions?, on SSRN. Here is the abstract:

This note examines the legal questions surrounding incarcerated women who wish to receive an abortion. The note examines the 8th Circuit's ruling in Roe v. Crawford and explores the two legal arguments presented in that case. While the court ultimately found the Fourteenth Amendment argument valid and rejected the Eighth Amendment, the author argues that grounding inmate abortion rights in the Eighth Amendment is ultimately a more sustainable solution for reproductive justice advocates. The core of an Eighth Amendment case is presented with corresponding medical evidence that argues that not only should inmates have access to abortions, but that they should be funded the same as any other serious medical need under the Eighth Amendment.

Parker County Jail Refuses to Transport Inmate for Abortion

Star-Telegram: ACLU raises questions about Parker County's refusal to transport inmate to get an abortion, by Bill Hanna:

The American Civil Liberties Union of Texas questions whether Parker County is infringing on the constitutional rights of its female prisoners after it declined to take an inmate to a medical facility for an abortion.

In a May 18 letter to Parker County officials, the ACLU said that a female prisoner was recently denied transportation outside the jail for the procedure. The group says that Parker County should develop a policy to ensure that other inmates' constitutional rights are not violated in the future. . . .

 

Wash. State Dept. of Corrections Settles with Inmate Shackled During Childbirth

Seattle 911: A Police Blog: DOC settles with woman shackled during childbirth, by Levi Pulkkinen:

The Department of Corrections will pay $125,000 to settle a civil claim by a former inmate who was shackled as she gave birth while in custody.

Former inmate Casandra Brawley filed the suit after giving birth to her son in April 2007 at a Tacoma hospital.

"We are pleased that our client has been compensated for what she endured, and that the legislature has eliminated any possibility of women in prison experiencing this treatment," said Brawley's attorney Sara Ainsworth, of the women's rights organization Legal Voice. . . .

Montana Mother Asks Court to Declare Unconstitutional the Denial of Medical Care to Pregnant Inmates

ACLU News Release: Montana Mother Asks Court To Remedy Mistreatment Of Pregnant Inmates By Detention Facility:

Missoula, MT – A Montana mother denied prescribed medication while serving time in jail for traffic violations asked a federal court today to require the Lake County Detention Facility to compensate her for the physical and emotional suffering she endured while in the facility’s custody and to declare unconstitutional the denial of needed medical care to pregnant inmates.  Bethany Cajúne is represented by the American Civil Liberties Union and the ACLU of Montana.

“I was afraid my baby might die because Lake County Detention Facility was denying me treatment,” said Bethany Cajúne.  “No one should go through what I went through.  I’ve brought this case to make sure it doesn’t happen to another woman.”

In March 2009, Cajúne voluntarily reported to Lake County Detention Facility to complete an outstanding short-term sentence for traffic violations.  At that time, she was approximately four to five months pregnant, raising five small children at home and attending GED classes four days a week.  She was also nearing a year of successful participation in a medication-treatment program for a diagnosed addiction to opioid drugs.  Despite attempts by Cajúne’s treating physician and drug treatment counselor to ensure that Cajúne continue receiving Suboxone, a medication that suppresses withdrawal symptoms, the facility denied her this care.  As a result, Cajúne suffered complete and abrupt withdrawal, experienced constant vomiting, diarrhea, rapid weight loss, dehydration, and other withdrawal symptoms, all extremely dangerous during pregnancy.  Despite repeated warnings of the serious risk abrupt withdrawal posed to her health and pregnancy, including miscarriage, the facility continued to deny Cajúne her medication.  It took the intervention of a public defender to secure Cajúne’s release after nine days of being denied care so that she could resume the treatment. . . .

To read the complaint: http://www.aclu.org/reproductive-freedom/cajune-v-lake-county-complaint

To watch a video about the case: http://www.youtube.com/watch?v=kdeZ7qHWJSA

Arizona Court Rules that Sheriff Cannot Block Inmates' Access to Abortion Care

ACLU News Release (10/20): Court Rules That Sheriff Arpaio Can Not Block Inmates Access to Abortion Care:

PHOENIX – In a case brought by the American Civil Liberties Union, an Arizona court found today that Maricopa County Sheriff Joseph Arpaio can no longer require inmates seeking abortion care to prepay their transportation and security costs before they can obtain an abortion.  

Earlier this year, as part of a partial settlement in an ACLU lawsuit involving the right of women prisoners to obtain timely, safe and legal abortions, Arpaio agreed to follow a 2005 court order prohibiting Maricopa County correctional facilities from requiring inmates to obtain a court order before an abortion. However, in the course of settlement negotiations, Arpaio decided inmates must prepay transportation and security costs associated with obtaining the procedure. In his ruling today, Judge Robert H. Oberbilling of the Superior Court of Arizona indicated that requiring inmates to prepay security and transportation costs could be more onerous than the court order Sheriff Arpaio previously required.

"We are so pleased that Sherriff Arpaio can no longer pull a bait and switch by requiring women prisoners to pay transportation and security costs before obtaining an abortion,” said Brigitte Amiri, a senior staff attorney for the ACLU Reproductive Freedom Project who argued the case today before the court. "Arpaio’s new prepayment requirement was yet another way for him to do an end run around the law and to interfere with a woman’s private decision about whether to end a pregnancy.”

In May 2004, on behalf of a woman inmate seeking an abortion, the ACLU challenged an unwritten Maricopa County Jail policy that required inmates to obtain a court order before officials would transport them for abortion care. The Maricopa County Superior Court struck down the unwritten policy in August 2005, holding that it violated women's reproductive rights and served “no legitimate penological purpose.” The Arizona Court of Appeals upheld that decision; both the Arizona and the United States Supreme Courts refused to hear the case. . . .

Texas Lawsuit Challenges Practice of Jailing Women to Protect Their Fetuses

Austin American-Statesman: Jailed for being Pregnant? Court to Hear Arguments on Drug User's Incarceration, by Chuck Lindell:

Amber Lovill was almost six months pregnant and on probation when a mandatory drug test found high levels of methamphetamine in her system.

What happened next to the Corpus Christi woman — jail time followed by drug treatment in a secure facility for felons — prompted a legal challenge that will be heard this week by the state's highest criminal court.

Lovill argues that she was the victim of gender discrimination and heavy-handed prosecution. Her cause has been taken up by civil liberties and women's rights groups who complain that Lovill was treated more severely than a man or nonpregnant woman in the same situation....

Prosecutors say Lovill was targeted for violating her probation, not for being pregnant. But probation officers also were entitled to take action to protect the fetus from Lovill's drug use, said Doug Norman, Nueces County assistant district attorney....

A ruling, expected weeks or months later, could better define when — or if — the Texas criminal justice system can punish women in an effort to protect the health of their fetuses.

Eighth Circuit Court of Appeals Condemns Shackling of Pregnant Prisoners in Labor

ACLU press release (10/2): Federal Appeals Court Condemns Shackling Of Pregnant Prisoners In Labor:

ACLU Client Shackled During Labor In Arkansas

Ruling in the case of an Arkansas woman who was shackled to her hospital bed while in labor in 2003, a federal appeals court today said that constitutional protections against shackling pregnant women during labor had been clearly established by decisions of the Supreme Court and the lower courts. This is the first time a circuit court has made such a determination. The full Eighth Circuit Court of Appeals made the ruling today in the case of ACLU client Shawanna Nelson.

"This is a historic decision by a U.S. Court of Appeals that affirms the dignity of all women and mothers in America," said Elizabeth Alexander, Director of the American Civil Liberties Union"s National Prison Project. "Correctional officials across the country are now on notice that they can no longer engage in this widespread practice."

Nelson was a 29-year-old non-violent offender who was six months pregnant with her second child when she was incarcerated by the Arkansas Department of Corrections (ADOC) in June 2003. Three months later, after going into labor, she was taken to a local hospital where correctional officers shackled her legs to opposite sides of the bed. Nelson remained shackled to the bed for several hours of labor until she was finally taken to the delivery room. . . .

A copy of the ruling by the Eighth Circuit is available online at: www.aclu.org/prison/medical/41232lgl20091002.html 

Scholarship by Michelle Oberman

Michelle Oberman (Santa Clara Law) has posted Thirteen Ways of Looking at Buck v. Bell on SSRN. Here is the abstract:

This article is a review essay of Paul Lombardo's THREE GENERATIONS, NO IMBECILES: EUGENICS, THE SUPREME COURT AND BUCK V. BELL [Johns Hopkins Press, 2008]. Using Lombardo's rich and fascinating history of eugenics in the U.S. as a foundation, I propose and then explore a series of implications that stem from Buck v. Bell and are related to eugenic practices in the U.S. in the 1920s and 30s. The themes upon which Lombardo touches may be grouped into three general categories: the state role in regulating fertility; gender, race, and class issues in fertility regulation; and contemporary reproduction-related politics as they pertain to human attributes. The article is written with an eye to a semester-long study of the governmental regulation of reproduction, past, present and future. Among the themes that fall within the first of these three broad categories are issues of fiduciary duty, which grow out of Lombardo's examination of the roles of doctors and lawyers in the Buck case. I also consider the government's role in regulating population more generally, examining the eugenic implications of contemporary immigration and population policies. The themes relating to gender, race and class include the consideration of maternal-doctor-fetal conflicts, as well as historical and contemporary efforts to link fertility control to criminal punishment. Finally, the third set of themes includes a discussion of the eugenic implications of contemporary issues in reproductive technology. Lombardo's book is well researched and fascinating. It deserves a broad readership, and this review provides a mechanism for bringing this rich history to life in the classroom and beyond.

Professor Oberman has also posted Eva and her Baby (A Story of Adolescent Sex, Pregnancy, Longing, Love, Loneliness and Death) on SSRN:

This article is written in the form of a creative non-fiction essay in which I tell the story of Eva, a girl who was convicted of manslaughter in connection with the death of her newborn child. I undertook this mode of story-telling after years of writing in more conventional modes about maternal filicide in general, and neonaticide in particular. (Most recently, I co-authored a book entitled When Mothers Kill: Interviews from Prison (NYU Press, 2008)). The conventions governing standard law review writing and the relatively distant observer's voice I adopted in my earlier writings left me feeling as though I had failed to communicate an important part of the factors underlying neonaticide. This essay, in which I fuse Eva's story with my own, undertakes to tell a fuller truth about the complex factors that underlie this crime. The essay is part of a series of creative endeavors (essays and articles) in which I adopt an ethnographic or quasi-ethnographic approach to considering the nexus of criminal law and women's lives.

NY Will Become Sixth State to Ban Use of Shackles on Pregnant Prisoners

Boston Globe: 6th state will curb shackling, by Cristian Salazar:

NEW YORK - For nearly four hours before she gave birth, Venita Pinckney had a chain wrapped around her swollen abdomen. Her ankles were shackled together and her hands were cuffed.

The 37-year-old was in a maximum-security prison for violating parole. An officer told her the use of restraints on pregnant inmates was “procedure.’’

“I’m saying to myself, ‘I feel like a pregnant animal,’ ’’ said Pinckney, who was taken from the Bedford Hills Correctional Facility to a hospital for the birth of her son last year.

At state prisons around the country, jailed women are routinely shackled during childbirth, often by correctional staff without medical training, according to civil rights organizations and prisoner advocates. The practice has been condemned by the American College of Obstetricians and Gynecologists for unnecessarily risking women’s health, and court challenges are pending in several states.

Federal prisons and five states largely ban shackling pregnant women in prison. Governor David Paterson is expected to sign a law this week that would make New York the sixth state to do so. . . .

Several lawsuits challenging the practice are pending throughout the country.

NY Times on Shackling Female Inmates During Childbirth

NY Times editorial: Childbirth in Chains:

The American College of Obstetricians and Gynecologists called several years ago for an end to the barbaric and medically hazardous practice of shackling female prisoners during labor. In addition to further frightening these vulnerable women, the practice of chaining their legs, wrists and even their abdomens makes treatment and delivery more difficult and places mother and child at greater risk of harm.

The Federal Bureau of Prisons must have had these facts in mind last fall when the bureau ended the routine use of restraints for women in labor and limited shackling to cases in which a woman presents a danger to herself, the baby or the staff. Five states have similar policies. New York would become the sixth — if Gov. David Paterson signs an antishackling bill that sailed through the Legislature this spring.