The Judges Decide to Unshackle Women During Prison Childbirth

It seems hard to believe that any group of intelligent, sane judges–liberal or conservative– appointed to the federal bench because of their reputed sound judgement and civility, could approve the practice of shackling pregnant women to their beds while they give birth. But that’s been the law of the land in this country until just now.

While I write about various kinds of political and social outrages almost every day, once in a while I come across something that truly makes me despair. That how I feel when I look back on my life and realize that a practice such as this has been routinely taking place for all thsse years. If any reader  knows a judge who can tell  just why he or she condoned this practice as a matter of proper legal wisdom, I wish they would write and  explain it to me. In the meantime, this in full from Diana Kasdan of the American Civil Liberties Union (published on the excellent reproductive health site RH Reality Check). 

Last week, in Nelson v. Norris, a federal Court of Appeals held for the first time that the U.S. Constitution protects pregnant women in prison from the unnecessary and unsafe practice of shackling during labor and childbirth. Notably, although the American Civil Liberties Union argued the case more than a year ago, the court’s decision comes on the heels of three states (TX, NY, and NM) passing legislation in 2009 to restrict the use of shackles on pregnant inmates. These three join IL, VT, and CA in restricting the practice. Both the outcome and the history of the Nelson case and the recent legislation demonstrate the dramatic shift that has taken place around this issue.

In 2003, Shawanna Nelson was six months pregnant and serving a short sentence for a nonviolent offense in Arkansas state prison. When she went into labor, officials took her to the hospital where prison security shackled her legs to opposite sides of her hospital bed. The shackles remained on for the duration of her labor. The treatment of Ms. Nelson, unfortunately, was not a deviation from practices in other states. At that time, only one state, Illinois, had legislation restricting the use of shackles on pregnant inmates. And the practice, though common, had not been widely reported or publicly discussed. However, Ms. Nelson, and her attorney were not deterred. They were confident that the federal Constitution does not tolerate the obviously cruel, inhumane, and harmful practice of restraining a woman with metal chains as she labors to give birth. So they went to court.

In 2007, a federal trial court decided that Ms. Nelson was entitled to proceed to trial on her claim that shackling during labor constituted cruel and unusual punishment—a violation of the Eighth Amendment. By this time, two other states, California and Vermont, had passed anti-shackling legislation, Amnesty International had documented this nationwide practice, and the national press had begun to call attention to the issue.

Nonetheless, in 2008, on the state’s appeal from the trial court decision, a three judge panel of the Eighth Circuit completely dismissed Ms. Nelson’s claim on the basis that her treatment did not raise any constitutional concerns. That same year, however, a national coalition of advocates came together with the mission of raising the voices and stories of incarcerated women and ending the practice of shackling pregnant women in U.S. prisons and jails. As part of that effort, the ACLU helped Ms. Nelson and her attorney petition for a rehearing before the full court, and dozens of medical and public health professional and advocates submitted a friend-of-the-court brief in support of Ms. Nelson. In the year it took the full court to reconsider Ms. Nelson’s case, advocates successfully moved three more states to pass anti-shackling legislation, and introduced similar restrictions in three other states.

Thus, last week’s historic decision not only reaffirmed the constitutional rights of Ms. Nelson, it demonstrated the power of collectively raising women’s voices to remind courts, lawmakers, and ourselves of the fundamental human dignity of the hundreds of thousands of women and mothers who are incarcerated across our country.

One response to “The Judges Decide to Unshackle Women During Prison Childbirth

  1. Below is a letter sent by me on 8-26-09 to the Boston Globe after they reported on the NY law passing. The letter wasn’t published but a similar letter was in The Daily Hampshire, but not a similar one in the neighboring county, home of the jail for women in Western MA.

    “Unlike New York (“6th State will curb shackling-N.Y. set to ban use on pregnant women”), Massachusetts has no law banning the shackling of women prisoners who are in labor. A MA Department of Correction policy allows the routine use of shackles on pregnant women although during the second and third trimester women prisoners are to be handcuffed only. According to DOC policy, full restraints are to be used when returning a woman to jail or prison after birth. Waist shackles cannot be used. Despite the DOC directive, the experience of many women in Massachusetts is that they are shackled unless a medical practitioner attending the birth directly intervenes. Routinely, women are shackled to the bed by one foot within two hours after giving birth. For this to begin to change (H.1490) “An Act Relative to Pregnant and Postpartum Inmates” introduced by Rep. Kay Khan needs to pass. Massachusetts would then have a law explicitly stating no shackling of women traveling to or from a hospital and no shackling during delivery. Attention can be given to the woman and the newborn’s health and the burden no longer fall on the doctor or nurse midwife, who now must convince a guard that a woman in labor poses no security or flight risk.”

    Unfortunately, despite the court ruling, my guess is that in most states (even states that have passed an anti-shackling law) and in most prisons and jails, the ruling will not prevent prison guards from exercising their illegitimate authority. Unless the women giving birth, midwives and doctors know about the ruling and demand humane treatment, women prisoners will continue to be shackled. Even if this were to change, there is still the matter of shackling women as they are brought from prison/jail to the hospital, often their feet are shackled and their hands are cuffed across their stomachs.

    The ruling is definitely progress but organizing, education and vigilance remain key.

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