Allison M. Whelan, J.D.
Senior Fellow, Center for Biotechnology &Global Health Policy, University of California, Irvine School of Law
A legislative advisory committee is set to present an amended bill to the Minnesota State Legislature this session that raises the standard of care provided to incarcerated pregnant women in Minnesota prisons.
The amendment seeks to clarify language of a law passed on May 8, 2014 seeking to ensure incarcerated pregnant women receive the same standard of care they would receive outside a correctional facility. The Minnesota Senate and House unanimously passed the bill, which was described as “a first step toward providing a healthy start in life for the babies born to the estimate 4,200 women per year in [Minnesota] who are pregnant at the time of their arrest.” It was the first law to consider the unique needs of pregnant inmates.
Under Minnesota Statute § 241.88, correctional facilities “may not restrain a woman known to be pregnant” unless an individualized determination is made that it is “necessary for the legitimate safety of the woman, correctional staff, or public.” It also prohibits restraining women who in labor or who have given birth within the previous three days unless there is a substantial flight risk or other “extraordinary” medical or security reason and the woman’s medical provider does not object. Whenever restraints are used, they must be the “least restrictive” possible. Minnesota is the twentieth state to enact such prohibitions on restraining pregnant inmates.
The law also requires correctional facilities to provide other pregnancy-related services such as pregnancy and STD tests, access to a certified doula if there is no charge to the facility; prenatal, childbirth, and parenting educational materials; and access to a mental health assessment and treatment during pregnancy and postpartum that includes access to psychotropic medications and therapy for postpartum depression.
The amendment seeks to require a special cuffing style for pregnant women, implement reporting requirements for correctional officers who handcuff pregnant women, and ensure all female inmates receive pregnancy tests, not just those who request them.
This law and others like it enacted by other states provide extremely important protections and rights to incarcerated pregnant women, many of whom have high-risk pregnancies. Federal law already prohibits shackling pregnant women in federal prisons, but not all state prisons have enacted similar bans. Many professional organizations, including the American College of Obstetricians and Gynecologists, the American College of Nurse-Midwives, the Association of Women’s Health, Obstetric, and Neonatal Nurses, and Amnesty International oppose shackling pregnant inmates, arguing restraints should be used rarely and as least restrictive as possible whenever their use is absolutely necessary.
Although considered by many correctional facilities as necessary for the safety of inmates, staff, and the public, shackling is also a means of exerting retribution and symbolizing a prisoner’s subordination. Shackling is demeaning, stigmatizing, and psychologically damaging. The Supreme Court recognized the prejudicial impact of shackles in Holbrook v. Flynn, with Justice Thurgood Marshall opining that “shackling a defendant during court proceedings is an inherently prejudicial practice that may violate a defendant’s constitutional right to a fair trial.” If a violent criminal’s shackles can be removed, then certainly pregnant inmates, particularly during labor and postpartum recovery, deserve to have their shackles removed. This makes even more sense once one considers that the majority of inmates (and females in general) serve time for non-violent, property- and drug-related offenses.
Shackling pregnant and laboring women is also physically and medically dangerous, placing both the woman and fetus at risk. First, labor itself is a restraining condition so additional restraints are unnecessary. A laboring inmate is highly unlikely to represent a flight risk. Second, shackles can interfere with a health care provider’s ability to adequately assess and treat pregnant patients (for example, if her leg(s) are chained to the bed rails). Third, shackles and restraints make labor and delivery more difficult because research suggests walking, remaining mobile, and having the ability to change positions during labor can ease labor pains and reduce labor time. Postpartum, restraints can interfere with a woman’s interactions with her child and inhibit her ability to breastfeed.
States continuing to enforce shackling pregnant inmates must reconsider these inhumane, demeaning, and unsafe policies. There is simply no place in a society that adheres to the rule of law for treating pregnant patients in this manner. For more on this topic, view these articles here, here, here, and here.