Justice Denied: Violations of Women’s Reproductive Rights in the United States Prison System ¹
By Rachel Roth
Ibis Reproductive Health, Cambridge, Massachusetts, USA
September, 2004

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” – Judge A. Leon Higginbotham, Monmouth County Correctional Institute Inmates v. Lanzaro (1987) ²

Dolores M. was seven months pregnant and addicted to heroin when she violated her probation. The sentencing judge gave her six months, apparently to keep her confined for the remainder of her pregnancy. She was forced to go cold turkey in jail, instead of being treated with methadone, the standard of care for pregnant women. She suffered abdominal pain, headaches, vomiting, and other symptoms, and did not see an obstetrician for six weeks. Close to her due date, she experienced severe pain and could no longer feel the fetus move; it was removed, still-born, by cesarean. – reported in Ellen Barry (1996) ³

When feminists analyze women’s reproductive freedom in the United States, they do so recognizing that women’s rights are shaped by age, wealth, race, and other factors. But what does reproductive freedom mean for women who are literally not free – incarcerated women? Pregnant women behind bars face a double bind: their access to abortion is obstructed at the same time that they are not given proper care to ensure a healthy pregnancy and birth. Women do not automatically forfeit their reproductive rights once they enter the criminal justice system, and yet they face special difficulties in exercising those rights.

Women behind bars: the scope of the problem

With more than two million people behind bars, the United States has become the world leader in incarceration. Women constitute a minority of prisoners – less than ten percent – but they have been entering prison at a faster rate than men since at least 1995. According to the United States Bureau of Justice Statistics, more than 175,000 women are incarcerated in federal and state prisons and local jails – a seven-fold increase since 1980. The Bureau’s most recent surveys found that six percent of women entering local jails and five percent of women entering state prisons are pregnant.⁴

The explosion in the prison population is usually attributed to mandatory sentencing laws that require certain minimum sentences for anyone convicted of particular crimes. Chief among these are drug crimes, including the possession of small amounts of illegal drugs for personal use. In 1986, for instance, the United States Congress enacted a 100:1 sentencing disparity for crimes involving crack cocaine as opposed to powdered cocaine (so that possession or sale of five grams of crack is treated the same as 500 grams of powered cocaine). In 1988 Congress decided that anyone convicted of possessing crack must serve at least five years. Combined with police tactics that emphasize patrolling urban neighborhoods, these developments have had an especially dramatic impact on women of color, who are overrepresented in prison relative to their rates of drug use.⁵

Unlike some countries where crime is primarily a matter of federal law, in the United States, the federal government and all fifty states operate prison systems, and local governments run more than 3,000 jails – without any universal policy on prison conditions. Prison officials often cite the smaller numbers of women as a justification for failing to meet their needs. Not only do women get fewer educational and vocational opportunities than men, but medical care is often less accessible and not gender-specific. Both Amnesty International and Human Rights Watch have documented the sexual harassment and abuse of women in U.S. prisons. ⁶ In addition to leaving emotional scars, such abuse can also lead to unwanted pregnancies.

Access to abortion

In late 1998, two prisoners seeking abortions made headlines. In Cleveland, Ohio, Judge Patricia Cleary sentenced a pregnant woman to jail specifically to prevent her from obtaining an abortion. The judge gave Yuriko Kawaguchi six months for credit card forgery, instead of the probation typical for that offense. What is more surprising is that Judge Cleary didn’t try to cover up what she was doing; rather, she declared in court: “I’m saying she [Kawaguchi] is not having a second-term abortion.” ⁷

This is a clear example of overstepping the bounds of judicial authority. Judges do not have the discretion to enforce their own values on others when constitutional rights are at stake. People accused or convicted of crimes do not automatically lose all their constitutional rights, and reproductive rights are protected by the Fourteenth Amendment’s guarantee of privacy and individual liberty.

The second case, arising in Wilkes-Barre, Pennsylvania, is more typical in that it was jail officials who impeded the woman’s access to abortion. Officials denied Karen Ptaschnik’s request for an abortion because they considered it an “elective” procedure that the heavily Catholic, anti-abortion county could refuse to pay for – even indirectly –by denying transportation to a clinic where Ptaschnik would pay for the abortion herself.
Ptaschnik’s right to have an abortion was ultimately vindicated in court when a federal judge ordered the county to arrange for her to go to a clinic. The judge also ordered the county to honor all future abortion requests as necessary medical care. ⁸

The judge’s ruling in Ptaschnik’s case broke no new ground. Instead, it simply reinforced a 1987 decision by the U.S. Court of Appeals for the Third Circuit, Monmouth County Correctional Institute Inmates v. Lanzaro. In that case, the court ruled that a New Jersey jail’s policies unconstitutionally interfered with prisoners’ abortion rights. First, the jail required women seeking abortions to surmount bureaucratic hurdles that no prisoner seeking any other kind of outside medical care had to face. These hurdles created so much risk of delay that a prisoner might no longer be able to terminate her pregnancy by the time she obtained clearance.

Second, the county refused to pay for prisoners’ abortions, regardless of the women’s ability to do so themselves. The county argued that abortions were “elective” procedures, comparing them to cosmetic surgery, and refused to pay unless a jail doctor certified the abortion as “medically necessary.” The court disagreed, finding abortions, like all pregnancy-related care, to be a serious medical need. The court further found that the jail’s policies constituted deliberate indifference to serious medical needs in violation of the Eighth Amendment prohibition on cruel and unusual punishment, as established in Estelle v. Gamble, a 1976 U.S. Supreme Court case.

In Ptaschnik’s case, the federal judge was not sympathetic to the county’s argument that taxpayers’ aversion to funding abortion overruled the obligation to accommodate fundamental rights that prisoners retain behind bars. The judge also rejected the argument that providing abortions would strain financial resources, since abortion is clearly less expensive than the prenatal care and hospital delivery that the county would be obligated to provide instead. But delays and intimidation took their toll. Once Ptaschnik’s fight to get an abortion became public knowledge, her children were harassed by other kids at school and she too was harassed in jail; as she told a New York Times reporter, “There are no secrets in prison.” ⁹ Although she began requesting an abortion at four weeks, she was so far along when she finally won the chance to have an abortion that she could feel the fetus move and changed her mind.

Kawaguchi did not fare much better. Whether sentenced to jail or probation, Kawaguchi should have been able to obtain an abortion. She should have been taken from jail to a facility that would provide the medical care she desired and was legally entitled to receive. But by the time an appeals court ordered her released on bail, she was so close to the legal limit for abortions in Ohio that no facility would perform one, and she could not leave the state to seek an abortion elsewhere.

Kawaguchi’s experience in Judge Cleary’s courtroom started her on a long journey for redress, including suing the judge for violating her rights. While the lawsuit was pending against her, Judge Cleary addressed a church congregation about the controversy. She told those gathered that she is a “good person” who was “in the right place at the right time for the Lord to pick” to save this baby, and that she was “on Cloud Nine” when Kawaguchi said that she might not have an abortion. ¹⁰

Although Kawaguchi lost her suit against the judge, largely because of judicial immunity from liability, Judge Cleary lost her bid for re-election, and the Ohio Supreme Court suspended her license to practice law for six months because of her conduct in the case. Kawaguchi successfully appealed her sentence to a higher court, which found the order of jail time improperly based on her intention to terminate her pregnancy.

Finally, her suit against the sheriff and other county jail personnel resulted in a landmark settlement agreement guaranteeing women at the jail access to a range of reproductive health education and services, as well as visitation with their children. Although the agreement does not include funding for abortions, it does guarantee that women will be able to go to any of the local clinics; local grass-roots funds raise money to help women in need. Of her ordeal, Kawaguchi said, “It’s been a hard personal journey. I’m really hoping that nobody else has to go through what I’ve gone through,” and also that having a child had given her an even “stronger opinion about how a person has a right to choose.” ¹¹ Although Kawaguchi reconciled herself to raising her daughter, being forced to carry a pregnancy to term and having her life altered forever by being made a mother before she chose to surely constitutes the kind of irreparable harm contemplated by the court in the Monmouth decision.

In addition to these two cases, advocates and reporters have documented prisoners’ difficulties obtaining abortions in Arizona, California, Colorado, Florida, Georgia, Idaho, Louisiana, Missouri, New Jersey, New York, Oregon, Texas, and Virginia. ¹² On top of the kinds of logistical obstacles just described, prisoners face an additional barrier that women in the free world do not. They are often required to pay the costs of being transported to and from the jail and the costs of the guards’ time to accompany them, something that can raise the price of an abortion by hundreds if not thousands of dollars. The United States Congress limits abortion funding for women in the federal prison system to those who have been raped or whose lives are endangered by the pregnancy.

Pregnancy, childbirth, and parenting

What about women who want to continue their pregnancies? They face a myriad of obstacles to healthy pregnancy and childbirth. One of the first obstacles women in prison may have to overcome is coercion to have an abortion. Just as women have to fight with authorities to exercise their abortion rights, so too do women report being pressured into having abortions they do not want.

The same legal principles that underlie incarcerated women’s right to abortion give them a right to prenatal care, but again, the provision is often inadequate at best. Miscarriage and stillbirth rates are high in jail and prison: one California study reported rates as much as 50 times higher than in the outside community. ¹³ The full extent of the problem is unknown, however, because data on pregnancy outcomes is not systematically collected or published. What is known is that typical prison conditions compound women’s medical problems and place healthy women in jeopardy. Women may suffer from such chronic illnesses as asthma, diabetes, high blood pressure, HIV/AIDS, and addiction to alcohol or drugs. Serious overcrowding exposes pregnant women to communicable diseases. Prenatal vitamins and nutritious diets are not routinely provided, but prescription medication contraindicated during pregnancy often is. Few jails or prisons have an obstetrician/gynecologist on site.

For at least twenty-five years, advocates have been reporting that many jails and prisons do not initiate the process to transfer a pregnant woman to an outside hospital until she goes into labor. Administrative delays result in women laboring in police cars or giving birth in the infirmary or even in their cells. Sometimes, as in the case of a women’s prison in Idaho, the hospital is an hour away, increasing the likelihood that women will give birth without proper assistance or support.

In April 1998, for instance, a woman in Milwaukee, Wisconsin, repeatedly told guards that she was in labor and in pain. The guards called the nurses on duty, who never came to see her; nor was she taken to see them. According to press reports, the woman was considered uncooperative and a liar; it was, nonetheless, her due date. She wound up giving birth alone in her cell shortly after midnight. One unusual outcome of this case is that the nurses were fired after an investigation into their conduct. ¹⁴

Women who escape this fate and make it to a hospital often suffer a final indignity: they are handcuffed, shackled around the belly, and placed in leg irons when being transported to receive medical care, even when they are in active labor, and are typically shackled to the hospital bed when they give birth and for the duration of their stay. Women at the Orleans Parish Prison in Louisiana, for instance, report being shackled during labor. Interviews with women revealed widespread problems with inadequate medical care, including failure to provide essential gynecological care for problems like ovarian cysts. According to the executive director of the American Civil Liberties Union of Louisiana, the prison’s practices and violations of court orders endanger women’s pregnancies and threaten their lives. ¹⁵

Some one hundred women held at Rikers Island Jail in New York City travel to a hospital in Queens to give birth each year. Contrary to a 1990 court order, many prisoners have been restrained while recovering from childbirth, and some have been restrained while giving birth as well. One woman reported that her left leg was shackled to the bed and her hands were cuffed together so that she could not reach the call button; she gave birth alone in the middle of the night, with nurses and a doctor arriving a few minutes later. Following advocacy efforts and media exposure, the city promised to change its policy, evaluating each woman individually to determine whether she poses a security risk and requires more than a guard posted outside her door. ¹⁶

Effective 2000, Illinois became the first and only state in the U.S. with a law against shackling women during labor and delivery, thanks to the efforts of an organization called Chicago Legal Advocacy for Incarcerated Mothers (CLAIM) to educate legislators about the reality of giving birth and parenting as prisoners. In 1996, public outcry and Parliamentary criticism forced British prison officials to end a policy of keeping prisoners chained to guards during labor and childbirth – a change that had national impact.

In most cases, women who survive the obstacle course of pregnancy behind bars to give birth are separated immediately from their newborns and returned to prison. Prisons in a few states have on-site nurseries where women can live with their infants for between one month and one year. Women must meet specific eligibility criteria, and advocates report that such nurseries are rarely full to capacity, despite the numbers of eligible women. Minimum security federal prisoners may be eligible for an alternative, residential program during their last trimester of pregnancy and the first three months of their child’s life. This program served 49 women during Fiscal Year 1997. The state of California runs a community-based prison program for women and their young children, but provides spaces for fewer than 100 of the state’s 10,000 female prisoners. ¹⁷

Women’s imprisonment illustrates the way that gender-neutral policy can have gender-specific impact. It is unlikely that state legislators or members of Congress considered child custody when they passed strict mandatory sentencing laws. But most women who are processed through the criminal court system are mothers, typically single parents with custody of children under age 18; a woman who has recently given birth may well have another child on the outside. Once women are put in prison instead of being put on probation or being given community service, as they might have been in the past, arrangements must be made for the care of their children. When fathers are incarcerated, it is almost always the mothers who take care of the children. But when mothers are imprisoned, only about one-fifth of fathers assume responsibility for the children; that job falls most often to grandmothers. Another group of children, estimated as about fifteen percent, wind up in foster care. Strict federal legislation passed in 1997 speeds up the process of permanently terminating a parent’s rights when her children are in the foster care system, jeopardizing family bonds if a child is in foster care for 15 months in a 22-month period; most prison sentences are longer than 15 months. ¹⁸

Since 1995, all federal prisons have been required to offer some sort of parenting program (classes, children’s visiting centers), but actually getting to see your children is another matter. One problem for women is that they are often sent far from home because there is only one women’s prison in their state, or, if they are federal prisoners, because the U.S. Bureau of Prisons operates prison and detention centers for women in only 12 states and Puerto Rico. Women typically receive fewer visits from family and friends than men, and this hurts them in two ways. Seeing family is important in and of itself, and being able to demonstrate a continuing relationship with children is important should a woman’s parental rights ever be challenged in court. ¹⁹

Where do we go from here?

As more and more women enter the prison system, there will be more and more conflicts over reproductive rights. While the concerns of prisoners are not so different from those of other women – access to health care, freedom to choose abortion or birth – their ability to act on their own behalf is far more constrained. Women can organize within prison walls, as those who transformed AIDS education and care at New York’s Bedford Hills state prison show. ²⁰ Still, they need resources and help from the outside, and the legal climate is getting worse. The 1996 Prison Litigation Reform Act (PLRA) makes it harder to challenge the conditions of confinement, jeopardizes existing consent decrees ordering improvements in prison conditions, and limits the impact of victories in court.

The difficulties faced by pregnant prisoners provide an opportunity to reconsider the mandatory incarceration of anyone convicted of a non-violent crime, especially those related to drug use and possession. This is not to say that women should receive more lenient treatment than men, but rather to say we should reconsider sentencing policy across the board.

We must also reconsider our budget and policy priorities. To put things in perspective, consider this figure: one of every 140 U.S. residents was behind bars in 2003. In 1996, Americans spent almost $25 billion on prisons. Today, California’s prison budget alone hovers around $6 billion. Since 1984, California has built 23 new prisons and only one new university. ²¹ Alternatives to incarceration represent a better investment in the future.

Observers have drawn a contrast between Finland, where the loss of freedom entailed by a prison sentence is considered the major punishment, and the United States, where prison conditions themselves are punishing. Violations of women’s reproductive rights vividly illustrate these punitive conditions. Forced childbearing, health risks, and physical violations are unfair and extreme punishments that no one should have to endure.

Notes

1. This article is adapted and updated from “The Reproductive Rights of Prisoners: Between A Rock and A Hard Place,” originally published in Sojourner: The Women’s Forum, July 1999.

2. Monmouth County Correctional Inmates v. Lanzaro 34 F.2d 326 (3rd Cir. 1987).

3. Barry, E. (1996). “Women Prisoners and Health Care: Locked Up and Locked Out.” In K. Moss (Ed.), Man-Made Medicine: Women’s Health, Public Policy, and Reform (pp. 249-72). Chapel Hill, NC: Duke University Press.

4. Greenfeld, L. and T. Snell. (1999). Women Offenders: Bureau of Justice Statistics Special Report. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs. December. Available at http://www.ojp.usdoj.gov/bjs/pub/pdf/wo.pdf

5. Roberts, D. (1997). Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Pantheon, Chapter 4.

6. Amnesty International. (2001). Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women. Amnesty International. New York: Amnesty International. Available at http://www.amnestyusa.org/women/custody/ Amnesty International. (1999). “Not Part of My Sentence”: Violations of the Human Rights of Women in Custody. New York: Amnesty International. Available at http://web.amnesty.org/library/Index/engAMR510011999 Human Rights Watch. (1996). All Too Familiar: Sexual Abuse of Women in U.S. State Prisons. New York: Human Rights Watch. Available at http://hrw.org/reports/1996/Us1.htm

7. Quoted in The Plain Dealer. (1999). “Judge Cleary: In Her Own Words,” February 21.

8. Lewin, T. (1999). “A Prisoner Is the Focus of an Abortion Debate.” The New York Times, January 10.

9. Quoted in Lewin, T, ibid.

10. Quoted in The Plain Dealer, ibid.

11. Kropko, M.R. (2002). “Settlement of Lawsuit Fine Tunes Inmates’ Abortion Policy.” The Beacon Journal, posted on Ohio.com, June 4.

12. Roth, R. “Do Prisoners Have Abortion Rights?” Feminist Studies, forthcoming Summer 2004, and “Searching for the State: Who Governs Prisoners’ Reproductive Rights?” Social Politics, forthcoming Fall 2004.

13. Youth Law News. (1985.) “County Jail Miscarriage Rate 50 Times State Average,” Nov.-Dec., p. 4.

14. Held, T. (1999.) “Two Nurses Fired for Failing to Help Pregnant Inmate,” The Milwaukee Journal Sentinel, May 26.

15. Perlstein, M. (1999). “Hearing Set on Mothers in Jail,” The Times-Picayune, May 4.

16. Siegal, N. (1999). “Inmates Again Shackled During Birth, Critics Say,” The New York Times, April 11. The New York Times. (1999). “Restraint Policy Changed for Pregnant Inmates,” April 16.

17. On the federal program, see A Profile of Female Offenders, p. 11 (Washington, D.C.: U.S. Department of Justice, Federal Bureau of Prisons, May 1998). On the California program, see “Pregnant Prisoners Fight to Keep their Babies,” Legal Services for Prisoners with Children, available at http://www.prisonerswithchildren.org/news/pregnantprisoners.htm

18. Roberts, D. (2002). Shattered Bonds: The Color of Child Welfare. New York: Basic Civitas Books.

19. Incarcerated Parents Manual: Your Legal Rights and Responsibilities. (2001). Legal Services for Prisoners with Children and Prisoner Legal Services, available at http://www.prisonerswithchildren.org/pubs/ipm.pdf

20. The Women of the ACE Program of the Bedford Hills Correctional Facility. (1998). Breaking the Walls of Silence: AIDS and Women in a New York State Maximum Security Prison. Woodstock, N.Y.: Overlook Press.

21. Braz, R. (2000). “California Prison Expansion Senseless,” posted July 11, available at http://www.alternet.org/story/9439/.

Additional web resources

Aid to Children of Incarcerated Mothers (AIM)
http://www.takingaim.net

The Birth Attendants (volunteer doulas for women in prison in Washington state)
http://www.birthattendants.org/

Chicago Legal Advocacy for Incarcerated Mothers (CLAIM)
http://www.c-l-a-i-m.org/

Justice Now
http://www.jnow.org/

Legal Services for Prisoners with Children http://www.prisonerswithchildren.org/

Mothers and babies in prison in the UK
http://www.sheilakitzinger.com/Prisons.htm

United States Bureau of Justice Statistics
http://www.ojp.usdoj.gov/bjs

Women’s Commission for Refugee Women and Children http://www.womenscommission.org/