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

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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.  Correctional authorities are legally obligated to meet their needs. Whether an incarcerated woman decides to continue her pregnancy to term or to seek abortion care, 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 standards and policies 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 individual state department of corrections' policies addressing pregnancy-related care, including abortion.

I. National Standards for Pregnancy-Related Health Care in Correctional Settings

Well-known standards for correctional health care come from the National Commission on Correctional Health Care (NCCHC), the American Congress of Obstetricians and Gynecologists (ACOG), and the American Public Health Association (APHA). These standards specifically address the care and treatment of pregnant inmates. Along with other sources, these standards provide some guidance on minimum policies and practices that correctional facilities should implement in order to meet the needs of pregnant inmates. In addition, the American Medical Association (AMA), the Association of Women’s Health, Obstetrics and Neonatal Nurses (AWHONN), and the American Correctional Association (ACA) have released statements with guidance on the use of restraints on pregnant inmates.

A. NCCHC

NCCHC publishes Standards for Health Services as a set of best practices for the provision of health services in correctional settings and to govern its accreditation program for prisons and jails. NCCHC standard "P-G-O7: Care of the Pregnant Inmate" directs that "[p]regnant inmates receive timely and appropriate prenatal care, specialized obstetrical services when indicated, and postpartum care." This standard also discusses the need for facilities to be prepared to handle the prevalence of high-risk pregnancies among incarcerated women and sets forth specific compliance indicators for pregnancy care generally, including:

  • Prenatal medical examinations
  • Prenatal laboratory and diagnostic tests, including HIV testing and prophylaxis when indicated
  • Advising inmates on levels of activity and safety precautions during pregnancy
  • Prenatal nutritional guidance and counseling
  • Maintaining a list of specialized obstetrical services
  • Written agreement with a community facility for delivery
  • Documented, appropriate postnatal care
  • Keeping a list of all pregnancies and their outcomes
  • Having a written policy and defined procedures addressing compliance with this standard

The NCCHC standard titled "P-G-09: Pregnancy Counseling" additionally recommends that a pregnant inmate receive counseling and assistance appropriate to her intentions, whether she wants to continue to term and then keep her child, place the baby for adoption, or have an abortion. Finally, in October 2010, NCCHC published a position statement on the use of restraints.  The statement acknowledges the serious health risks involved in using restraints on pregnant inmates and recommends that their use be avoided, if possible, or used in the least restrictive way if avoidance is not possible.

B. ACOG

ACOG is the professional organization of medical doctors who specialize in Obstetrics and Gynecology, with a membership that includes over 90% of U.S. board-certified obstetrician-gynecologists. In November 2011, ACOG published its Committee on Health Care for Underserved Women Committee Opinion, Health Care for Pregnant and Postpartum Incarcerated Women. The Opinion is targeted to OBGYN providers and focuses on the special needs of incarcerated women. Unlike the NCCHC standards, the ACOG standards specifically state, that “[t]he use of restraints on pregnant incarcerated women and adolescents may not only compromise health care but is demeaning and rarely necessary,” and explain the specific health risks associated with using restraints. The ACOG standards include:

  • Assessments for pregnancy risk at intake
  • Pregnancy counseling and abortion services
  • Perinatal care that meets ACOG’s general standards
  • Assessments and treatment for substance abuse
  • Testing and treatment for HIV and care to prevent perinatal HIV transmission
  • Mental Health screenings
  • Dietary supplements for pregnant and breastfeeding inmates
  • Delivery of services in a licensed hospital
  • Provision of postpartum contraceptive methods while incarcerated
  • Written policies on compliance, training for providers, and mechanisms for accountability

C. APHA

APHA is the oldest national organization of public health professionals, which has long worked to strengthen prisoners' access to adequate and humane medical care. APHA publishes its own comprehensive Standards for Health Services in Correctional Institutions (2003), available for purchase on their website. The standards for the care of pregnant women overlap in some respects with those set forth by NCCHC and ACOG, but also address important issues not mentioned in those standards. The APHA standards include:

  • A "sensitive and dignified" reproductive system examination as part of initial health screening
  • Prenatal screening tests
  • Prenatal health education
  • Special housing and diet when necessary
  • Identification and proper referral of high-risk pregnancies
  • Treatment to prevent perinatal transmission of HIV for HIV-positive women
  • Prohibition of shackling during labor and delivery
  • Training of health care staff in jails and prisons for labor and delivery in case of emergency
  • Standing arrangement for deliveries that allow mother and infant to spend time together after birth
  • Ongoing access to newborns after delivery
  • Access to family planning services, including abortion counseling and services

D. Organizational Statements on the Use of Restraints

The AMA, the largest association of medical doctors and students in the United States, has published a policy statement limiting its support for the use of restraints on pregnant inmates. In the 2nd or 3rd trimester of pregnancy, the AMA recommends that correctional officers use the least restrictive restraints necessary. During labor or postpartum recovery, the AMA recommends that restraints only be used if the inmate is an immediate or serious threat of harm or flight risk. AWHONN, an organization of American nurses that focuses on the health of women and newborns, goes even farther in its October 2011 position statement and condemns all shackling of pregnant inmates unless an inmate may harm herself or others or is a serious flight risk. ACA’s January 2012 Policy Resolution approved the use of restraints in the least restrictive manner possible throughout pregnancy based on an assessment of the risk posed and the medical needs of the inmate.   It states that waist and electronic restraints should not be used at all during pregnancy, with leg restraints reserved only for extreme circumstances during transport.

For more information about the above standards or to obtain their most current publications, you can visit each organization's website:

NCCHC

http://www.ncchc.org/resources/statements/womenshealth2005.html

http://www.ncchc.org/resources/statements/restraint_pregnant_inmates.html

ACOG

http://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on_Health_Care_for_Underserved_Women/Health_Care_for_Pregnant_and_Postpartum_Incarcerated_Women_and_Adolescent_Females

http://www.acog.org/About_ACOG/ACOG_Departments/Health_Care_for_Underserved_Women

APHA

http://www.apha.org/publications/bookstore/

AMA

https://ssl3.ama-assn.org/apps/ecomm/PolicyFinderForm.pl?site=www.ama-assn.org&uri=%2fresources%2fdoc%2fPolicyFinder%2fpolicyfiles%2fHnE%2fH-420.957.HTM

AWHONN

http://onlinelibrary.wiley.com/doi/10.1111/j.1552-6909.2011.01300.x/pdf

ACA

http://www.aca.org/government/policyresolution/view.asp?ID=78

II. What the Courts Say

Every court to consider the practice of shackling women during labor has found it unconstitutional. In 2009, the Eighth 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 health care 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 obstetrical and gynecological health care. The Federal Bureau of Prisons (BOP) similarly requires family planning services, pregnancy care and social services, and accommodations (but not funding) for abortion. It prohibits the use of custody control belts when escorting pregnant women for medical trips, but permits the use of other restraints. Finally, the U.S. Marshal Service (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 thirty-seven states and the District of Columbia. We could not locate relevant pregnancy or reproductive health care correctional standards for thirteen states. [4]

Of the policies or laws located:

  • Nineteen have standards that mention health care both for pregnant inmates planning to carry to term and for those who seek abortion care. [5]
  • Eighteen have standards that mention prenatal health care, but not abortion access. [6] However, two of those eighteen 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]
  • One has an administrative regulation on correctional health care that addresses abortion access, but not other pregnancy-related health care. [8]

Of the thirty-eight 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, ACOG, or APHA standards and recommendations. More often, the law or policy we found failed to specifically address most of those standards. For example, only:

  • Thirteen explicitly state that medical examinations shall be included as a component of prenatal care. [9]
  • Eleven mention HIV testing in relation to prenatal care. [10]
  • Thirteen advise pregnant inmates on appropriate levels of activity and safety or restrict the tasks inmates will be asked to perform. [11]
  • Twenty-two mention prenatal nutrition counseling. [12] However, only eleven of these require the actual provision of appropriate nutrition to pregnant inmates. [13]
  • Fourteen require arrangements to be made with a community facility for delivery. [14]
  • Seven require that institutions keep a list of all pregnancies and their outcomes. [15]
  • Eighteen explicitly provide for screening or special treatment for high-risk pregnancies. [16]
  • Thirteen 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]
  • Sixteen restrict the use of restraints on pregnant women during labor and delivery as a matter of statute, and eight 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 health care 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 below to find information and resources for each state department of corrections and its policies.


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), rev’d on other grounds and remanded, Villegas v. Metro. Gov’t of Nashville, --- F.3d --- (6th Cir. 2013) (holding that grant of summary judgment was improper because of material factual disputes).

4. Georgia, Iowa, Hawaii (restricts the use of restraints), Kentucky, Louisiana (restricts the use of restraints), Mississippi, Montana (restricts the use of restraints), Nebraska (Nebraska’s policy on pregnant inmates is not available online; however, the Rebecca Project report indicates that Nebraska has policies addressing high-risk pregnancies and nutrition), Rhode Island (restricts the use of restraints), South Carolina, West Virginia (restricts the use of restraints), Wisconsin, and Wyoming.

5. Alaska, Arkansas, California, Colorado, Delaware, District of Columbia, Idaho, Kansas, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, and Washington.

6. Alabama, Arizona, Connecticut, Florida, Indiana, Maine, Michigan, Missouri, Nevada, New Mexico, New York, North Carolina, North Dakota, South Dakota, Tennessee, Utah, Vermont, and Virginia.

7. Arizona and Maine.

8. Illinois (Illinois also restricts the use of restraints).

9. The following states explicitly state that medical examinations shall be included as a component of prenatal care: Alabama, California, Connecticut, Delaware, Massachusetts, Missouri, New Hampshire, New York, North Carolina, Oklahoma, Pennsylvania, South Dakota, and Texas.  Other states generally refer to the provision of obstetrical care: Arkansas, Idaho, Maryland, North Dakota, North Carolina, Ohio, Oklahoma, and Oregon.

10. The following states mention HIV testing in relation to prenatal care: Alabama, California, Missouri, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, and Washington.  Other facilities generally provide HIV testing, but do not have a public policy of testing pregnant women to prevent the prenatal transmission of HIV.  For example: Alabama, Arkansas, Connecticut, District of Columbia, Idaho, Nevada, Oklahoma, and Vermont.

11. Alabama, Delaware, Florida, Idaho, Kansas, Massachusetts, Missouri, New Jersey, New York, North Dakota, South Dakota, Oklahoma, and Oregon.

12. California, Colorado, Connecticut, Delaware, Florida, Idaho, Kansas, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, and Washington.

13. California, Colorado, Connecticut, Florida, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, and Washington.

14. Alabama, Alaska (deliveries are generally performed in an outside facility), Connecticut, Colorado, Delaware, Idaho, Indiana, Missouri, New Jersey, North Dakota, North Carolina, Ohio, Oklahoma, and Pennsylvania.

15. Alabama, California, Delaware, District of Columbia, Idaho, Missouri, and Oregon.

16. Alaska, California, Colorado, Delaware, District of Columbia, Florida, Idaho, Kansas, Massachusetts, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, and Washington.

17. California, Delaware, District of Columbia, Idaho, Illinois, Kansas, Massachusetts, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, and Texas.

18. By Statute: Arizona (2012 Ariz. Legis. Serv. Ch. 43 (S.B. 1184)), California (Cal. Penal Code § 3423), Colorado (Colo. Rev. Stat. § 17-1-113.7), Florida (2012 Fla. Sess. Law Serv. Ch. 2012-41 (S.B. 524)), Hawaii (Haw. Rev. Stat. § 353-122), Idaho (Idaho Code § 20-902), Illinois (55 Ill. Comp. Stat. 5/3-15003.6), Louisiana (2012 La. Sess. Law Serv. Act 761 (S.B. 256)),  Nevada (Nev. Rev. Stat. §209.376), New Mexico (N.M. Stat. § 33-1-4.2), New York (N.Y. Correct. Law § 611), Pennsylvania (61 Pa. Const. Stat. § 5905), Rhode Island (R.I. Gen. Laws. § 42-56.3-3), Texas (Tex. Gov’t Code. Ann. § 501.066), Vermont (Vt. Stat. tit. 28, § 801a), Washington (Wash. Rev. Code § 72.09.651), and West Virginia (W. Va. Code § 31-20-30a). By Policy: Delaware, District of Columbia, Minnesota, New Hampshire, North Carolina, North Dakota, Oregon, and South Dakota.

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