State Standards for Pregnancy-Related Health Care and Abortion for Women in Prison

Introduction

On any given day, more than 200,000 women are living behind prison or jail walls. Thousands of these women are pregnant and depend on correctional authorities for their health care, and correctional authorities are legally obligated to meet those needs. Whether an incarcerated woman decides to continue her pregnancy to term or have an abortion, she has a constitutionally protected right to obtain appropriate medical care.

To what extent, if any, a prison's policies address pregnancy-related services is one important indicator of how that facility treats pregnant women in its custody. Presented here are the results of research to identify pregnancy-specific correctional policies posted on state department of corrections websites, or contained in databases of state laws and regulations, as well as national and federal standards. This is not an exhaustive survey of all state standards that may relate to the treatment of pregnant inmates, but a resource guide identifying such standards as are readily available online.

This resource guide includes five sections: First, it provides a short summary of minimum national standards that correctional facilities should meet as one important step for addressing the health needs of pregnant inmates. Second, it offers a short summary of the federal courts’ treatment of the use of restraints on pregnant inmates. Third, it provides an overview of the ways that federal agencies meet or fail to meet national standards. Fourth, it offers a general overview of the ways that the state policies located meet or fail to meet those national standards. Finally, it provides a state-by-state directory to help you directly retrieve online, or request by phone or mail, individual state department of corrections' policies addressing pregnancy-related care, including abortion.

II. What the Courts Say

Every court to consider the practice of shackling women during labor has found it unconstitutional. In 2009, the 8th Circuit Court of Appeals ruled that there is a clearly established right not to be shackled during labor. [1] This decision confirmed the consensus expressed in earlier district court opinions. [2] In 2011, the Middle District of Tennessee relied on Nelson to hold that women 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. [3]

III. How the Federal Government Measures Up

Several federal agencies have policies in place that regulate the provision of healthcare to pregnant inmates and the use of restraints. These standards vary. Immigration and Customs Enforcement’s (ICE) regulations on medical care for female inmates contain the most comprehensive requirements regarding the provision of obstetrics and gynecological healthcare. The Federal Bureau of Prisons (BOP) similarly requires family planning, pregnancy care and social services, and accommodations (but not funding) for abortion and prohibits the use of custody control belts when escorting pregnant women for medical trips, it permits the use of other restraints. Finally, the U.S. Marshal Services (USMS) does not allow the use of restraints on women during labor or recovery, and requires correctional officers to use the least restrictive means to restrain pregnant women at other times. For more information about the above agencies, you can visit each agency’s website:

ICE
www.ice.gov/doclib/detention-standards/2011/medical_care_women.pdf

USMS
www.usmarshals.gov/foia/Directives-Policy/prisoner_ops/restraining_devices.pdf

BOP
http://www.bop.gov/policy/progstat/5538_005.pdf
www.bop.gov/policy/progstat/6070_005.pdf

IV. How The States Measure Up

We found pregnancy-specific laws or correctional policies for over half of the states and the District of Columbia. We could not locate relevant pregnancy or reproductive health care correctional standards for eight states. [4] Of the policies or laws located for forty-one states plus the District of Columbia:

  • Twenty-one have standards that mention both health care for pregnant inmates planning to carry to term and for those who seek an abortion; [5]
  • Twelve have standards that mention prenatal health care, but not abortion access. [6] However, three of those fourteen merely note that inmates do not have to pay for pregnancy testing and/or pregnancy care, without any further details regarding what that care entails; [7]
  • Two have an administrative regulation on correctional health care that addresses abortion access, but not other pregnancy-related health care; [8]

Of the forty-two jurisdictions for which we found some type of law or policy regarding treatment of pregnant inmates, very few included standards that closely tracked the NCCHC or APHA standards and recommendations. More often, the law or policy we found failed to specifically address most of those standards. For example, out of these forty-two jurisdictions, only:

  • Twelve explicitly state that medical examinations shall be included as a component of prenatal care. [9]
  • Six mention HIV testing. [10]
  • Seven include advice on appropriate levels of activity and safety. [11]
  • Nineteen mention prenatal nutrition counseling or the provision of appropriate nutrition. [12] However, only ten of those require the actual provision of appropriate nutrition to pregnant inmates. [13]
  • Eight explicitly require an agreement with a specific community facility for delivery. [14]
  • Five require that institutions keep a list of all pregnancies and their outcomes. [15]
  • Sixteen explicitly provide for screening or special treatment for high-risk pregnancies. [16]
  • Eleven follow the NCCHC standard that recommends counseling for pregnant women "whether they elect to keep the child, use adoption services, or have an abortion."[17]
  • Seventeen restrict the use of restraints on pregnant women during labor and delivery as a matter of statute, and four as a matter of policy. [18]

For the Rebecca Project and National Women’s Law Center report on each state’s policies and practices regarding healthcare for pregnant women, go to www.nwlc.org/sites/default/files/pdfs/mothersbehindbars2010.pdf. To learn more about how your state measures up, use the state-by-state directory to find information and resources for each state department of corrections and its policies.

V. State-by-State Directory

You can access laws and policies referenced below either by downloading them directly from the url link provided, or by looking up the state law citation provided. For a few states, there are additional instructions on how to retrieve a policy from a linked site. This is a directory of information publicly available online or in legal databases. Because much information is not posted online, we have provided other helpful contacts and resources for each state department of corrections. The ACLU works to ensure that pregnant women in prison have access to necessary and appropriate healthcare. Resources and reports developed by ACLU affiliates are included below.

For more information, please contact the Reproductive Freedom Project at 212-549-2633.
Information provided here was last updated in July 2012.

Endnotes

  1. Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th Cir. 2009) (en banc)
  2. Women Prisoners of D.C. Dep’t of Corr. v. Dist. of Columbia, 877 F. Supp. 634 (D.D.C. 1994), modified in part on other grounds, 899 F. Supp. 659 (D.D.C.1995); Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D. Wash. 2010)
  3. Villegas v. Metro. Gov’t of Davidson Cnty., 789 F. Supp. 2d 895 (M.D. Tenn.2011)
  4. Georgia, Iowa, Kentucky, Missouri, Nebraska, South Carolina, Wisconsin, Wyoming
  5. Alaska, Arkansas, California, Colorado, Delaware, District of Columbia, Idaho, Kansas, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Washington
  6. Arizona, Connecticut, Florida, Indiana, Maine, Michigan, New Mexico, New York, North Carolina, Tennessee, Utah, Vermont, Virginia
  7. Arizona, Maine, Tennessee
  8. Illinois, Minnesota
  9. Alabama, California, Idaho, Massachusetts, Missouri, New Hampshire, New York, North Carolina, Oklahoma, Pennsylvania, South Dakota, Texas
  10. Alabama, California, Missouri, Oklahoma, Pennsylvania, Texas
  11. Alabama, Delaware, Massachusetts, Missouri, New Jersey, New York, Oklahoma, Oregon
  12. California, Connecticut, Delaware, Florida, Idaho, Kansas, Massachusetts, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Washington
  13. California, Connecticut, Florida, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, Washington
  14. Connecticut, Delaware, Idaho, Indiana, New Jersey, North Carolina, Oklahoma, Pennsylvania
  15. Alabama, District of Columbia, Delaware, Missouri, Oregon
  16. Alaska, Colorado, Delaware, District of Columbia, Florida, Idaho, Kansas, Massachusetts, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Washington
  17. California, Delaware, District of Columbia, Idaho, Illinois, Kansas, Massachusetts, New Hampshire, New Jersey, Oklahoma, Oregon
  18. By Statute- Arizona, California, Colorado, Florida, Hawaii, Illinois, Louisiana, Montana, Nevada, New Mexico, New York, Pennsylvania, Rhode Island, Texas, Vermont, Washington, West Virginia. By Policy- Delaware, North Carolina, North Dakota, South Dakota.