Women make up a relatively small portion of the U.S. prison population—approximately 7 percent—yet the number of incarcerated women more than tripled from 1995 to 2008. Female incarceration rates are growing twice as fast as male incarceration rates and the prison system remains decades behind on women’s reproductive rights. According to 2007 data, 5 percent of incarcerated women in state prisons are pregnant upon arrival. Inmates rely on correctional institution health services to meet their reproductive health needs.
However, majority of states do not protect incarcerated women against shackling procedures, where they are forced to give birth while physically restrained. This unnecessary practice is both inhumane and humiliating as it involves the placement of shackles and handcuffs around a woman’s ankles and/or wrists, as well as chains around their stomach throughout labor and delivery. This month, Massachusetts and Minnesota enacted laws that prohibit the shackling of incarcerated women during labor, childbirth, and recovery. They join 19 other states that have adopted anti-shackling legislation: Arizona, California, Colorado, Delaware, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Nevada, New Mexico, New York, Pennsylvania, Rhode Island, Texas, Vermont, Washington, and West Virginia. Iowa, New Jersey, and the District of Columbia are currently reviewing anti-shackling bills.
Consensus among health care practitioners
Shackling a woman’s wrists and ankles restricts her mobility and can result in a longer and more painful labor experience, as well as a potential reduction in the oxygen supply to her fetus. Shackling also hinders breastfeeding—a critical activity for mother-child bonding and the nutritional well-being of the infant. Physical restraints also may inhibit a physician’s ability to perform emergency procedures when needed during delivery.
The medical community condemns the barbaric practice of shackling. Several medical organizations such as the American Medical Association, the American College of Nurse-Midwives, and the American College of Obstetricians and Gynecologists argue that shackling during labor and delivery is detrimental to the well-being of both pregnant inmates and their babies.
Unjustified and unpersuasive shackling arguments
Those in favor of shackling argue that the practice is necessary to prevent incarcerated women from escaping during labor. While the medical community has demonstrated that mobility during labor is fundamental to preserving the health of both mother and infant, the escape prevention argument treats women as primitive, second-class citizens. In fact, there have been no reported escape attempts by inmates in states with anti-shackling measures.
Those in favor of shackling also argue that it is necessary to prevent incarcerated women from harming themselves and others. This argument implies that incarcerated women are dangerous, but in fact, the majority of incarcerated women are nonviolent offenders as illustrated in a 2009 fact sheet by the Women’s Prison Association. The widespread practice of shackling applies to all pregnant inmates, despite the severity of their alleged crimes.
Shackling is unconstitutional
Pregnant inmates are constitutionally protected to receive appropriate medical attention whether they chose to have the child or to have an abortion. Despite these protections, a 2010 report reveals that “Thirty-eight states received failing grades (D/F) for their failure to institute adequate polices, or any polices at all, requiring that incarcerated women receive adequate prenatal care.” Only eight states provided prenatal medical exams, 19 provided proper prenatal nutrition and 17 provided screenings and treatments for high-risk pregnancies. Out of the 22 states that acknowledge providing prenatal nutrition counseling, only 11 states mandate this activity for pregnant inmates.
Aside from this systemic lack of care, the primitive nature of shackling also violates the Eighth Amendment’s protection against “cruel and unusual punishment.” Courts have declared the practice as unconstitutional in every shackling case. In the 2009 Nelson v. Correctional Medical Services case, the 8th U.S. Circuit Court of Appeals upheld female inmates’ right to be shackle-free during labor. Two years later, the Middle District Court of Tennessee used the Nelson verdict in its decision that female inmates “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.”
Federal shackling policies
The Federal Bureau of Prisons and the U.S. Marshals Service have implemented some anti-shackling policies for incarcerated women. While the Federal Bureau of Prisons forbids custody control belts in the transportation of pregnant inmates, it still permits other restraint methods. The U.S. Marshals Service prohibits physical restraints on pregnant women during labor and recovery, and mandates that correctional officers use the least confining restraint mechanism on women in other circumstances.
The shackling of pregnant women is a result of the lack of gender-sensitive policies in the criminal justice system. Security and safety practices have historically been implemented to protect staff and inmates in predominantly male correctional facilities. Without thinking about how this practice might affect many female inmates who have suffered sexual and physical abuse, similar policies were adopted for all women inmates regardless of background. As the prison system gradually learns to apply a gender-sensitive lens, the unconstitutional and barbaric practice of shackling must be abolished entirely at the local, state, and federal levels.
Heather Schultz was an intern with the Women’s Health and Rights Program at the Center for American Progress.