What’s Next in the Fight for Reproductive Justice for Incarcerated Women

North Carolina Prison Director Kenneth Lassiter announced in March that officials in the state will no longer shackle incarcerated women during childbirth, capping off a campaign by advocates for such a change in the wake of controversial reports about the practices of prison officials. The move is undoubtedly a step in the right direction—but the organizers and advocates at SisterSong, the women of color reproductive justice collective that led the campaign against shackling in the state, aren’t yet embarking on a victory march.

“We are definitely not finished,” Omisade Burney-Scott, director of strategic partnerships and advocacy at SisterSong, told Ms. “We definitely appreciate the momentum and the changes that have been made, [but] we’re not satisfied.”

Jeanne Menjoulet / Creative Commons

Reports that prison officials in North Carolina brutally shackled two female inmates during childbirth in January were central to SisterSong’s victory last month. Previous state policy instructed correctional officials to shackle pregnant women during the transportation from the prison facilities to local hospitals, and mandated that the women were to remain shackled until “active labor”—but the policy did not define what active labor was, leaving it up to prison personnel to decide when to remove restraints, often in a way that was not medically informed. When a member of the medical staff at a large health facility that serves Raleigh, Durham and Chapel Hill alerted SisterSong that allegedly not just one, but two different incarcerated women from the North Carolina Correctional Institution for Women had remained shackled during the entirety of childbirth—even though, in both instances, medical staff asked to remove the restraints but correctional officers declined—SisterSong set a campaign to end the policy into movement in earnest.

Dismayed upon hearing the reports, SisterSong and policy center Forward Justice took immediate action—calling an emergency conference with several North Carolina organizations to write a letter to Erik Hooks, secretary of the state for the Department of Public Safety. “We wanted to make sure that the department was aware that this was happening, because we didn’t assume necessarily that they would know,” explained Burney-Scott. “We also wanted to kind of ground them in three really important things from our perspective. One, this is a violation of folks’ human rights, right? Like from a reproductive justice standpoint, this is a complete affront to bodily autonomy and agency. For SisterSong, one of our core values is that a person is able to decide when they are going to have a child and under what conditions they have a child. And so, because someone is incarcerated, [that] does not take away that bodily autonomy or that agency—it just makes it more complex.”

Shackling—which can include handcuffs, leg irons and chains around the waist—not only increases the risk of falling, which could harm a fetus, but it also can cause blood clots and serious delays in medical access for the women. The American College of Obstetricians and Gynecologists (ACOG), the American Medical Association (AMA) and the American College of Nurse-Midwives (ACNM) have all strongly condemned the practice of shackling incarcerated women during childbirth. In both cases in January, in particular, the vague language around “active labor” left pregnant women not only disrespected and dehumanized, but in danger. “Both times they were told that the definition that the Department of Public Safety had for active labor was actual pushing,” Burney-Scott revealed. The ACOG, on the other hand, defines labor as beginning at the onset of regular contractions.

And yet, the incidents in January were only the tip of the iceberg. “This has been an issue in the past,” Tina Sherman, a campaign director at MomsRising, noted, “and it’s been talked about for as long as I can recall.” Almost a decade ago in 2010, the National Women’s Law Center published its “Mothers Behind Bars” report and gave North Carolina a failing grade for the state’s “failure to comprehensively limit, or limit at all, the use of restraints on pregnant women during transportation, labor and delivery and postpartum recuperation.” The report did not include how many specific instances of shackling had occurred.

Sistersong On North Carolina's Ban On Shackling Pregnant Inmates

This state just banned shackling pregnant inmates — but it's only the first step toward protecting incarcerated women

Posted by NowThis Her on Wednesday, April 4, 2018

 

SisterSong’s letter detailed the medical dangers of shackling pregnant woman and cited nationally recognized medical associations including the ACOG—as Burney-Scott described, “it was important for them to recognize that you can’t do pain management if you are shackled to the bed.” The coalition also called attention to the fact that even the United Nations had taken up the matter and had deemed shackling during birth as a form of cruel and unusual punishment.

In addition to the information on restraints that they provided in the letter, SisterSong also offered assistance with the crafting of the new anti-shackling policy for the state prisons. “Our coalition runs the gamut from reproductive rights health and justice organizations, to folk who do work with formerly incarcerated and justice-involved people, attorneys who are doing civil rights work with mass incarceration, prison abolitionists, policy advocacy,” Burney-Scott detailed. “We really do have, we feel like, a really strong coalition of folk who could sit down at the table with the department, look at the policy, and make some recommendations around language and breadth and depth.”

The coalition’s offers were, however, quickly rebuffed by the North Carolina Department of Public Safety. The department instead went to the Federal Bureau of Prisons, the National Commission on Correctional Health Care and American Correctional Association for guidance with the revisions, an action which SisterSong deemed “problematic” because prisons officials were consequently hearing only the advice of other prisons-related institutions, rather than hearing any counsel from medical or community organizations.

With the update, the resulting policy now details that wrist restraints must be taken off once contractions begin “unless there are reasonable grounds to believe the offender presents an immediate, serious threat of hurting herself, staff or others” or if the inmate presents “an immediate, credible risk of escape.” When the mother is bonding with her newborn—whether that’s through cradling the child or nursing—she, again, cannot be restrained. That being said, the policy still calls for a pregnant inmate to be restrained by the wrists while she is being transported.

Plenty of questions remained unanswered by the new rule. “How long is the bonding period, and who determines that?” asked Burney-Scott. “And we also know that postpartum is the most dangerous time for a person who has just delivered a baby and so we don’t have a sense of like how soon that person is re-shackled. We also don’t have a sense of like, are they being re-shackled during transport for any kind of postpartum doctor’s appointments, or what is postpartum support even look like? We also wonder what happens when they go back to the facility, like what kind of support do they receive?”

Another glaring issue that the Southern reproductive justice groups have with the updated policy—plenty of room for inconsistency remains. As the updated protocol notes: “When the use of restraints during labor occurs, officers must immediately notify the Associate Warden for Custody of the reasons why restraints were applied and an incident report must be completed.” In other words, the responsibility lies with the correctional officer to not only remove the shackles when contractions begin, but to also report when and why an inmate remains shackled during delivery. The new policy provides for little oversight, which was, in part, the issue with North Carolina prisons’ previous practice. After all, the former policy stipulated that women were not to be shackled during labor, and yet there were still instances of officers breaking with guidelines. What’s to stop an official from breaking with policy again, despite the updates, and claim there was reason to keep the inmate restrained?

Repercussions do exist within the prisons system in North Carolina. According to the state Department of Public Safety’s employee manual, prison personnel engaging in unsatisfactory job performance or unacceptable personal conduct can receive disciplinary actions ranging from a written warning, disciplinary, suspension without pay, demotion or dismissal when “just causes exist.” The prison system’s definition for unacceptable personal conduct even includes “the abuse of client(s), patient(s), student(s) or person(s) over whom the employee has charge or to whom the employee has a responsibility.” It should be noted, however, that these same repercussions were in place when the former anti-shackling policy stood.

“The degree to which those repercussions occur is subjective because it depends on your direct supervisor and what they would consider kind of the breadth or the extent of the violation, right?” Burney-Scott said. “This is a brand-new policy. People were not clear about the previous policy, so I don’t assume that they’ll be clear about this policy now. We need to push for stronger laws that also monitor and demand accountability in the practice—and you know, allowing a correctional officer with no medical training to override decisions made by a pregnant person’s doctor or midwife, based on their perception of safety or flight risk, is also highly problematic.”

Sherman also agreed that while aspects of the updated policy in North Carolina prisons were positive, more needs to be done to help both incarcerated women and babies. To even begin to address the issue though, the MomsRising leader believes that prisons need to first be more transparent in their day-to-day practices. “We really need to have an idea of what is happening—both policy level and on the ground—and what are the best ways to ensure that both mother and baby are receiving the proper medical care that they need,” Sherman noted. “It’s definitely an ongoing campaign to ensure the health of mom and baby.”

In addition to transparency, these reproductive justice organizations demand correctional officers to be better trained to address more systemic issues. On March 27, Lassister, director of prisons in North Carolina, went on air with WUNC, the local NPR station, to explain that staff at the North Carolina Correctional Institution for Women, the only prison location in the state where incarcerated women who are pregnant are held, would be trained on the updated protocol regarding restraints.

Still, SisterSong believes that training should be taken even further to touch upon the intersectionality of prison policies. “We think that’s a great step, and we would also like to see that training incorporate a deeper understanding or training around racial equity and transformative justice. And not something on diversity or inclusivity,” Burney-Scott declared. “We really do want to people understand bias and how white supremacy and racism impacts the work that folk are doing in this carceral system—I’m not sure that’s going to happen.”

Prison demographics disproportionately represent communities of color. In North Carolina, for instance, black people were 22 percent of the state’s population in 2015, but they made up 53 percent of the prison populations. In prisons across the U.S. in 2015, the black and Latinx populations—approximately 32 percent of the country’s population—were 56 percent of all incarcerated people. And of women in jails across the country, NPR reported in 2016 that 64 percent were women of color. When brutal shackling occurs in prisons then, it overwhelmingly hurts pregnant women of color. To make matters worse, even without incarceration in the mix, black women suffer from high maternal mortality rates—three times that of the rate for white women. The fact that a dangerous procedure such as restraining a pregnant inmate, even if it is just during transportation, disproportionately impacts black women, means then that an already at-risk group is put even further at risk. “It just elevates the need for there to be laws and constant monitoring and advocacy around this issue,” Burney-Scott said.

Sens. Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.) introduced the Dignity for Incarcerated Women Act in the summer of 2017, which would require, among other things, that incarcerated women not be shackled during childbirth. Their efforts shined a new light on what is a national issue. Twenty-two states have laws against shackling pregnant prisoners during labor and recovery, and more are considering passing bills to outlaw the procedure. But even with these anti-shackling laws and policies in place, many incarcerated inmates still find themselves restrained during childbirth and recovery. The state of New York banned the shackling of pregnant prisoners in labor in 2009, and yet The New York Times surveyed 27 women who had given birth in prisons in the state and found that 23 claimed they were still shackled either before, during or after delivery since the passage of the anti-shackling law in 2009.

In general, there’s little information on incarcerated women and pregnancy, let alone whether or not women are shackled during childbirth. When Mother Jones asked Carolyn Sufrin, medical anthropologist and OB-GYN at Johns Hopkins School of Medicine, how frequent prisons births are, she couldn’t give the publication an answer. “People just really don’t think about women who are incarcerated,” Sufrin explained. “We have zero systematic information on how many incarcerated women have miscarriages, abortions, stillbirths—basic vital statistics.”

Yet, with a dramatically rising rate of incarcerated women in the U.S., more pregnant inmates stand to be shackled during childbirth. As The Sentencing Project reports, the number of incarcerated women rose by more than 700 percent, from 26,378 in 1980 to 222,061 in 2014. Until lax policies, laws and oversight are replaced with more thorough and effective legislation and accountability at the federal and state levels, shackling will continue to be an issue that threatens the lives of women in prisons across the country.

Both MomsRising and SisterSong have already begun that work by increasing awareness around issues such as reproductive justice in prisons. “When the public at large doesn’t even realize that this is going on,” Sherman explained, “it’s a huge barrier to making change.” During last week’s inaugural Black Maternal Health Week, SisterSong reached out to North Carolina lawmakers to discuss the core elements of policies and laws that would help effectively decrease the rate of maternal mortality rates for black women—and while Burney-Scott doesn’t see changes to the practice of shackling taking effect immediately in 2018, she has hope that serious progress will come soon.

“We’re not going to be able to do any kind of conversations that would yield in legislative policy change [for 2018], but that doesn’t mean we can’t start conversations,” she said. “There’s still more work to do.”

Maura Turcotte is an editorial intern at Ms.

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