While men still outnumber women in prison, female numbers are growing. The Sentencing Project, Fact Sheet: Incarcerated Women and Girls (Nov. 2020), available at https://www.sentencingproject.org/wp-content/uploads/2016/02/Incarcerated-Women-and-Girls.pdf (“Though many more men are in prison than women, the rate of growth for female imprisonment has been twice as high as that of men since 1980.”); Aleks Kajstura, Women’s Mass Incarceration: The Whole Pie 2019, Prison Policy Initiative (29 Oct. 2019), available at https://www.prisonpolicy.org/reports/pie2019women.html (“Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades[.]”).
This rising female inmate population creates medical issues that do not have to be addressed by the male inmate population. There is clearer example than the issue of pregnancy.
The Fourteenth Amendment requires prisoners receive proper medical care. “[A] refusal to furnish medical care when it is clearly necessary could well result in the deprivation of life itself. Since these rights are protected by the Fourteenth Amendment to the Federal Constitution, the complainant sufficiently alleges the deprivation of a right, privilege or immunity secured by the Constitution and laws of the United States” McCollum v. Mayfield, 130 F. Supp. 112, 115 (N.D. Cal. 1955). Likewise, Wisconsin statutes require jails to provide medical attention for detainees or inmates who need it. Wis. Stat. § 302.38 (1) (If a prisoner needs medical or hospital care … the sheriff, superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment.)
Further, the Americans with Disabilities Act (ADA) applies to state prisons. 42 U.S.C. § 12132; see also 28 C.F.R. §§ 35.130(a);35.152(b)(1); Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998); Crawford v. Indiana Dept. of Corrections, 115 F.3d 481 (7th Cir. 1997.) There is no doubt the ADA applies to jails as well. Bell v. Wolfish, 441 U.S. 520, 533-39 (1979) (there is little practical difference between pretrial detention and post-conviction incarceration insofar as rights to reasonable treatment are concerned). See also Title II Regulations, 2010 Guidance and Section-by-Section Analysis. The ADA’s Title II implementing regulations expressly cover “jails, detention and correctional facilities” run by state and local governments. 28 C.F.R. § 35.152.
The Department of Justice (DOJ) has emphasized the importance of correctional facilities complying with the ADA:
The Department wishes to emphasize that detention and correctional facilities are unique facilities under title II. Inmates cannot leave the facilities and must have their needs met by the corrections system, including needs relating to a disability. If the detention and correctional facilities fail to accommodate prisoners with disabilities, these individuals have little recourse, particularly when the need is great (e.g., an accessible toilet; adequate catheters; or a shower chair). It is essential that corrections systems fulfill their nondiscrimination and program access obligations by adequately addressing the needs of prisoners with disabilities, which include, but are not limited to, proper medication and medical treatment, accessible toilet and shower facilities, devices such as a bed transfer or a shower chair, and assistance with hygiene methods for prisoners with physical disabilities. Section-by-Section Guidance and Analysis of the ADA Regulations. Emphasis added.
Importantly, DOJ’s ADA regulatory materials are entitled to deference. Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (“As the agency directed by Congress to issue implementing regulations, . . . to render technical assistance explaining the responsibilities of covered individuals and institutions, . . . and to enforce Title III in court, . . . the Department [of Justice]’s views are entitled to deference”); see also Olmstead v. L.C., 527 U.S. 581, 597-98 (1999). Further, Congress formally found that “discrimination against individuals with disabilities persists in such critical areas as . . . health services.” 42 U.S.C. § 12101(a)(3).
This federal law prohibits “public entities” from discriminating against “a qualified individual with a disability” on account of that person’s disability. Such persons may not be excluded from or denied the benefits of participation in services, programs or activities of a public entity by reason of their disability. 42 USC. § 12131 et seq. This includes medical services while incarcerated. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998) (Title II of the Americans with Disabilities Act, which prohibits a “public entity” from discriminating against an individual on account of disability, applies to state prisons); Bragdon v. Abbott, 524 U.S. 624 (1998) (reproduction does qualify as a major life activity under the Americans with Disabilities Act).
Pursuant to the ADA, correctional facilities have an affirmative duty to take appropriate steps regarding inmates with disabilities:
[B]ased on its reading of federal law, this Court holds that prison officials have an affirmative duty to assess the potential accommodation needs of inmates with known disabilities who are taken into custody and to provide the accommodations that are necessary for those inmates to access the prison’s programs and services, without regard to whether or not the disabled individual has made a specific request for accommodation and without relying solely on the assumptions of prison officials regarding that individual’s needs. Pierce v. District of Columbia, Pierce, 128 F.Supp.3d 250, 272 (D.D.C. 2015)
Critically, the ADA protects against intentional AND unintentional discrimination: As one court recently noted: “[t]he ADA seeks to prevent not only intentional discrimination against people with disabilities but also – indeed primarily – discrimination that results from ‘thoughtlessness and indifference,’ that is, from ‘benign neglect.’” Brooklyn Cntr for Independence of the Disabled v. Bloomberg, 980 F. Supp.2d 588, 640 (S.D.N.Y. 2013) (quoting, H.R.Rep. No. 101–485(II), at 29 (1990)).
So do pregnant inmates have a critical need for medical care? Courts disagree whether a healthy pregnancy is a “serious medical need.” One court said that pregnancy is not a serious medical need if a doctor has not identified any special need for care and when it would not be obvious to an average person that there is a problem. Coleman v. Rahija, 114 F.3d 778 (8th Cir.1997). In a case about a prisoner’s right to an abortion, however, another court stated that pregnancy is different from other medical issues and is a “serious medical need” even when there are no complications or abnormalities. Monmouth County Correctional Institution Inmates v.Lanzaro, 834 F.2d 326 (3d Cir. 1987)
National Standards for Pregnancy-Related Health Care in Correctional SettingsWell-known sets of standards for correctional health care come from the National Commission on Correctional Health Care (NCCHC), the American Congress of Obstetricians and Gynecologists (ACOG), and the American Public Health Association (APHA). The standards specifically address the care and treatment of pregnant inmates.
Along with other sources, these standards provide some guidance on minimum policies and practices correctional facilities should implement in order to meet the needs of pregnant inmates. In addition, the American Medical Association (AMA), the Association of Women’s Health, Obstetrics and Neonatal Nurses (AWHONN), and the American Correctional Association (ACA) have released statements with guidance on the use of restraints on pregnant inmates. A. NCCHC
The NCCHC publishes Standards for Health Services as a set of best practices for the provision of health services in correctional settings and to govern its accreditation program for prisons and jails. The NCCHC standard titled “P-G-O7: Care of the Pregnant Inmate” directs that “[p]regnant inmates receive timely and appropriate prenatal care, specialized obstetrical services when indicated, and postpartum care.” This standard also discusses the need for facilities to be prepared to handle the prevalence of high-risk pregnancies among incarcerated women, and sets forth specific compliance indicators for pregnancy care generally, including:
- Prenatal medical examinations
- Prenatal laboratory and diagnostic tests, including HIV testing and prophylaxis when indicated
- Advising inmates on levels of activity and safety precautions during pregnancy
- Prenatal nutritional guidance and counseling
- Maintaining a list of specialized obstetrical services
- Written agreement with a community facility for delivery
- Documented, appropriate postnatal care
- Keeping a list of all pregnancies and their outcomes
- Having a written policy and defined procedures addressing compliance with this standard
The NCCHC standard titled “P-G-09: Pregnancy Counseling,” additionally recommends that a pregnant inmate receive counseling and assistance appropriate to her intentions, whether she wants to continue to term and then keep her child, place the baby for adoption, or have an abortion. Finally, in October 2010, the NCCHC published a position statement on the use of restraints, acknowledging the serious health risks involved in using restraints on pregnant inmates, and recommending that their use be avoided, if possible, and used in the least restrictive way if avoidance is not possible.
ACOG is professional organization of medical doctors who specialize in Obstetrics and Gynecology, with a membership that includes over 90% of U.S. board-certified obstetrician-gynecologists. In November 2011, ACOG published its Committee on Health Care for Underserved Women Committee Opinion, Health Care for Pregnant and Postpartum Incarcerated Women. The Opinion is targeted to OBGYN providers specifically, and focuses on the special needs of incarcerated women. Unlike the NCCHC, the ACOG standards specifically state “The use of restraints on pregnant incarcerated women and adolescents may not only compromise health care but is demeaning and rarely necessary,” and explain the specific health risks associated with using restraints. The ACOG standards include:
- Assessments for pregnancy risk at intake
- Pregnancy counseling and abortion services
- Perinatal care that meets ACOG’s general standards
- Assessments and treatment for substance abuse
- Testing and treatment for HIV, and care to prevent perinatal HIV transmission
- Mental Health screenings
- Dietary supplements for pregnant and breastfeeding inmates
- Delivery of services in a licensed hospital
- Provision of postpartum contraceptive methods while incarcerated
- Written policies on compliance, training for providers, and mechanisms for accountability
The APHA is the oldest national organization of public health professionals, which has long worked to strengthen prisoners’ access to adequate and humane medical care. The APHA publishes its own comprehensive Standards for Health Services in Correctional Institutions (2003), available for purchase on their website. The standards for the care of pregnant women overlap in some respects with those set forth by NCCHC and the ACOG, but also address important issues not mentioned in those standards. The APHA standards include:
- A “sensitive and dignified” reproductive system examination as part of initial health screening
- Prenatal screening tests
- Prenatal health education
- Special housing and diet when necessary
- Identification and proper referral of high-risk pregnancies
- Treatment to prevent perinatal transmission of HIV for HIV-positive women
- Prohibition of shackling during labor and delivery
- Training of health care staff in jails and prisons for labor and delivery in case of emergency
- Standing arrangement for deliveries that allow mother and infant to spend time together after birth
- Ongoing access to newborns after delivery
- Access to family planning services, including abortion counseling and services
Finally, most courts that consider the practice of shackling women during labor has found it unconstitutional. In 2009, the 8th Circuit Court of Appeals ruled that there is a clearly established right not to be shackled during labor. Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th Cir. 2009) (en banc). This decision confirmed the consensus expressed in earlier district court opinions. Women Prisoners of D.C. Dep’t of Corr. v. Dist. of Columbia, 877 F. Supp. 634 (D.D.C. 1994), modified in part on other grounds, 899 F. Supp. 659 (D.D.C.1995); Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D. Wash. 2010) In 2011, the Middle District of Tennessee relied on Nelson to hold that women should not be shackled during labor or post-partum recovery and that correctional facilities must provide women with medically necessary devices, such as breast pumps, when prescribed by their doctors. Villegas v. Metro. Gov’t of Davidson Cnty., 789 F. Supp. 2d 895 (M.D. Tenn.2011). Contra, Shade Swayzer vs. David Clarke Jr. et al Milwaukee County Case Number 2016CV008964 (denied). See also, Peter Eisler, Linda So, Jason Szep, Grant Smith, Special Report-As more women fill America’s jails, medical tragedies mount (Reuters 2020), https://www.reuters.com/article/us-usa-jails-women-specialreport/special-report-as-more-women-fill-americas-jails-medical-tragedies-mount-idUSKBN28Q1PE;Terry v. County of Milwaukee, Case No. 17-CV-1112-JPS (2019)
A collection of stories on pregnant prisoners may be found at The Marshall Plan “Pregnant Prisoners” https://www.themarshallproject.org/records/319-pregnant-prisoners