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. 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 Amnesty International had documented this nationwide practice, and the national press had begun to call attention to the issue.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,
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 andand 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 fundamentalof the hundreds of thousands of women and mothers who are incarcerated across our country.