By Kathrine Jack, staff attorney at National Advocates for Pregnant Women
Did you know that in our own country some female inmates are routinely treated in a manner that the United Nations calls torture? In particular, pregnant inmates are routinely placed in leg shackles and handcuffs during childbirth, a practice that medical experts agree endangers health, makes labor more painful, and is unnecessary. A case before the en banc Eighth U.S. Circuit Court of Appeals, as well as legislation in several states, challenge this practice and seeks to ensure that it not continue.
Women who are in the process of giving birth should be mobile in order to assume various positions as needed, and restraints greatly limit, if not completely prevent, such mobility. Inability to move during labor can cause intensified pain, bruising, and the loss of dignity. Further, laboring pregnant women present a low security risk. A laboring woman could not simply run out of the delivery room. Escape can be prevented by less restrictive means such as stationing a guard at the door. For these reasons, the American Public Health Association and many others oppose shackling as unnecessary and inhumane.
According to international human rights standards, placing a laboring woman in shackles or handcuffs is torture and cruel, inhuman, degrading treatment. A 1999 Amnesty International Report, "Not Part of My Sentence," discusses the use of restraints during labor as a human rights violation. In 2006, both the U.N. Committee Against Torture, which monitors compliance with the Convention Against Torture, and the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, declared that shackling laboring inmates violates both treaties.
However, whether federal courts recognize that this practice violates the U.S. Constitution is unclear. Last summer, in Nelson v. Norris, No. 07-2481, a panel of the Eighth Circuit Court held that Arkansas' practice of shackling pregnant prisoners in labor did not violate any constitutional rights. While incarcerated for credit card fraud, Ms. Nelson gave birth with her legs shackled to her bedpost and in handcuffs during most of the labor process. The narrow issue on appeal was whether corrections officers were entitled to qualified immunity against Nelson's § 1983 claim for violation of the Eighth Amendment. The court refused to see the uniquely degrading and harmful effects of the use of restraints during childbirth and concluded, "Ms. Nelson's experience does not rise to the level of unnecessary and wanton infliction of pain implicating the Eighth Amendment."
Ms. Nelson moved for rehearing en banc, and National Advocates for Pregnant Women, with allies at the Rebecca Project for Human Rights, NESRI and more than 35 organizations, filed an amicus brief in support of Ms. Nelson, raising both constitutional and international human rights arguments.
The Eight Circuit decided to re-hear the case en banc; something that is exceedingly rare. The Court took notice of the international human rights arguments, asking at oral argument, "Based on the amicus submission ..., wasn't Arkansas an outlier in the world's community in terms of treatment of pregnant prisoners?"
Meanwhile, some are not waiting for the courts to declare shackling pregnant inmates during labor unconstitutional, inhumane, and bad policy. Three states (California, Illinois and Vermont) already outlaw the use of restrains during childbirth. Last fall, the U.S. Bureau of Prisons banned shackling laboring pregnant inmates in federal custody, thanks in large part to the advocacy of the Rebecca Project for Human Rights. Earlier this year, a Tennessee Republican State Senator proposed a bill (SB1209) to ban the use of restraints on pregnant inmates during labor and transport to medical facilities. The bill, largely a response to the experience of Juana Villegas who gave birth with one leg shackled to a bed while detained for a traffic ticket, unanimously passed the Tennessee Senate on March 30. This year for the third year in a row, the New York legislature is also considering a ban on shackling of laboring pregnant inmates. Grassroots activists are mobilizing to ensure that the ban is passed this year.
The practice of shackling occurs in the context of the terrible, and, in many instances, cruel healthcare experiences of inmates and in particular the lack of adequate or humane reproductive health care for female inmates. Shackling of pregnant inmates highlights why many believe the use of restraints and shackles when prisoners are transported to and receive medical treatment should also be re-evaluated. As Amnesty wrote, "The use of restraints on women who are pregnant and women who are ill is part of a pattern of the use of restraints in prisons and jails and by police agencies that Amnesty International considers constitutes cruel, inhuman and degrading treatment in contravention of international standards." The even bigger question though is why so many people, including pregnant and parenting women, are imprisoned. Shackling pregnant women in labor is unquestionably wrong, but imprisoning them in the first place also deserves attention.