Incarceration, Pregnancy, and the Right to Quality Healthcare

Incarceration, Pregnancy, and the Right to Quality Healthcare

In the United States, the number of incarcerated women has increased drastically over the past few decades (1, 2). It is therefore critically important that correctional facilities be able to address the unique medical needs of female inmates, including prenatal and obstetric care. At a given time, approximately 6-10% of incarcerated women are pregnant (3). Data are limited and inconsistent, but overall the number of incarcerated women who are pregnant is believed to be about 12,000 (1). 

Many women first learn they are pregnant upon entry to a correctional facility, when they are offered a pregnancy test (2); often, these pregnancies are unplanned (4). If a woman chooses to continue the pregnancy, she should be provided with obstetric care, beginning in early pregnancy and continuing throughout the postpartum period. This should include 24/hour access to emergency services.Chain-link fence

Under the Eighth Amendment, incarcerated persons have the right to healthcare. Policies regarding prenatal and obstetric care vary by state, but several organizations have outlined minimum standards that should be followed in correctional settings. These organizations include the Federal Bureau of Prisons, the National Commission on Correctional Health Care, and the American College of Obstetricians and Gynecologists (ACOG) (1).

Nevertheless, ACOG notes that, “Barriers currently exist to the provision of recommended care for incarcerated pregnant women and adolescents. Thirty-eight states have failed to institute adequate policies, or any policies, requiring that incarcerated pregnant women receive adequate care. Forty-one states do not require prenatal nutrition counseling or the provision of appropriate nutrition to incarcerated pregnant women, and 48 states do not offer pregnant women HIV screening” (4). 

These inadequacies in care are especially problematic because incarcerated women are more likely to have high-risk pregnancies stemming from factors such as (1, 4):

  • Low socioeconomic status
  • Poor nutrition
  • Lack of/insufficient prenatal care prior to incarceration
  • Trauma (sexual assault, domestic violence, etc.)
  • Alcoholism
  • Drug abuse
  • Smoking
  • Mental illness
  • Chronic illness
  • Infectious disease

As with any pregnant women, those who are incarcerated should be evaluated for these and other risk factors, and any resultant pregnancy complications should be closely monitored and treated. In addition to carefully protecting the mother’s health, clinicians should also look out for signs of fetal distress (indications that the baby is in trouble). 

Obstetrics and incarceration: components of care

When it comes to obstetric care for incarcerated women, the following considerations are especially important (1):

Informed consent

As is the case when treating patients outside of the prison system, doctors must obtain informed consent for medical treatments or procedures on inmates. Informed consent is based on the patient understanding their treatment options and being able to make a free choice. This requirement helps protect patients from unwanted intervention, and ensures they are able to make decisions about their own medical care. 

HIPAA 

The Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of patients, including those who are incarcerated. Under HIPAA, off-site clinicians may be able to share information with on-site clinicians, but only if it is important to the health and safety of the inmate in question or of other inmates. Correctional officers cannot be used as a liaison between on- and off-site health care workers when it comes to communication regarding the patient’s health; these clinicians should communicate directly. Moreover, correctional officers may be asked to leave during examinations, procedures, etc. in order to protect patient privacy. Exceptions may be made if the patient is a security risk (e.g. has a history of committing violent crimes) or likely to escape. 

Efficiency of appointments

Transporting incarcerated women to off-site medical centers can be time-consuming and stressful. Inmates often have long waits to get through security (including being strip-searched on the way back) and may be embarrassed by being seen in public in uniforms (and possibly restraints, although exceptions are often made for pregnant women; more on that later). For these reasons, some women refuse outside care altogether. 

When incarcerated women travel to obstetric appointments, efforts should be made to ensure that they get as much out of the appointment as possible. For example, if they have an ultrasound and abnormal results are found, clinicians should discuss these results with them during that appointment rather than scheduling a second appointment. Prompt counseling is also important because inmates often have very restricted access to medical information; prison libraries can be quite limited, and they may lack access to the internet.

Prenatal care

Incarcerated women should receive the same prenatal care as non-incarcerated women. Due to risk factors such as poverty, malnutrition, and drug use, they may also require additional tests, screenings, and interventions. These include the following:

Routine vaccinations

Women in prison are kept in close quarters with other inmates, and are very restricted in their ability to control their own exposure to infectious diseases. Therefore, routine vaccinations are very important. 

Tests for sexually transmitted infections

These include:

  • Syphilis
  • Hepatitis B
  • Hepatitis C
  • Human immunodeficiency virus (HIV)
  • Chlamydia
  • Neisseria gonorrhoeae
  • Trichomonas vaginalis
  • If a patient has not recently had cervical cytology and HPV testing, then that should also be performed

Screening for psychiatric illnesses 

Inmates should receive screenings for mental health problems such as depression, both during and after pregnancy. Those who have psychiatric issues should be evaluated by a mental health specialist and receive treatment (when it comes to medication use, clinicians should balance the risks and benefits to both the mother and fetus).

  • Note: Incarcerated people who report having mental health issues are twice as likely to have been injured in a fight while incarcerated. It is also of the utmost importance that correctional facilities prevent inmate violence. 
  • In general, incarcerated women are also very likely to have experienced physical and sexual trauma, either prior to or during incarceration. Therefore, it is important to take a trauma-informed approach to care.

Smoking cessation programs

Some prisons are also becoming entirely smoke-free.

Screening and treatment for alcoholism and substance abuse

Pregnant women and fetuses generally benefit from getting off of addictive substances, but acute opiate withdrawal can have adverse effects on the developing baby (it may lead to premature birth and fetal distress [4]). For this reason, women with opioid addiction are often encouraged to take methadone or buprenorphine as they transition off of opiates. This may necessitate daily transportation to an off-site methadone clinic. Upon release, women with substance abuse issues may also need follow-up at outpatient treatment centers and additional medication.

Specialized diets

Unfortunately, many states do not require correctional facilities to provide necessary diet accommodations for pregnant women. Pregnant women should have a diet that excludes cold cuts, unpasteurized foods, and raw/undercooked meat. They should also receive folic acid supplements, and may need additional prenatal vitamins/supplements such as iron. Some will require bland diets in order to reduce pregnancy-associated nausea.  

In addition to making alterations to meals for pregnant women, correctional facilities should also consider that inmates need to snack more frequently during pregnancy. They should provide healthy snack options, including those that are high in protein. 

Bottom bunks

In order to prevent falls and possible abdominal trauma, pregnant women in correctional facilities should be given bottom bunks.

Adjustment of work load

During pregnancy, inmates should be given lighter tasks; i.e. they should not be required to do types of manual labor that may pose a risk to their health or the health of their babies. 

Childbirth classes

Incarcerated women are often unable to deliver with support from their partner, family, or friends. Therefore, it is extremely important that they be as prepared as possible, in order to minimize anxiety before and during the birthing process. In correctional facilities, childbirth education programs may include doula visits, group discussions, etc. 

Shackling during pregnancy: safety and ethical issuesHandcuffs

The United Nations Bangkok Rules assert that the use of shackles/restraints in pregnant inmates should be avoided, and that they should never be used during labor and delivery (1). However, laws in the U.S. are more ambiguous. 

Congress has prohibited the use of shackles on pregnant inmates in federal prisons and in the custody of the U.S. Marshals Service. Other states have also passed legislation limiting the use of shackles during pregnancy. Most make exceptions if the mother may be a risk to herself or others or is likely to attempt an escape (5). There are often grey areas concerning the use of shackles while in transit or at off-site hospitals, health care centers, and court appearances. Additionally, some ban shackles during pregnancy and the post-partum period, while others only apply to labor and delivery (1, 5).

The rationale behind anti-shackling laws is that shackles may pose the following risks during pregnancy, birth, and the postpartum period (1):

  • Shackles increase the risk of falls
  • Shackles may prevent a woman from breaking a fall with her hands. This can cause abdominal trauma, which may lead to placental abruption, preterm labor, and other dangerous complications.
  • Shackles discourage walking/movement, which is important to the health of pregnant/postpartum women and developing babies

In addition to the physical risks, many have argued that shackling is inhumane, stressful, and strips women of their dignity in an already vulnerable situation (4, 5).

Moreover, as ACOG notes, The apparent purpose of shackling is to keep incarcerated women from escaping or harming themselves or others. There are no data to support this rationale because most incarcerated women are nonviolent offenders. In addition, no escape attempts have been reported among pregnant incarcerated women who were not shackled during childbirth” (4).

The New York Times recently reported on a legal case involving a laboring woman who arrived at a New York Hospital in handcuffs and shackles, and in great danger of losing her baby. The state of New York bans shackling during labor and delivery, but the police did not follow this law because their Patrol Guide dictated that inmates should be restrained. 

The patient had to go through labor in shackles, and delivered her baby with an arm handcuffed to her hospital bed. The woman, who was filed in Manhattan federal court under “Jane Doe,” won a settlement of $610,000. The New York Police Department is also updating its rules to conform with state law. 

Michele Goodwin, a chancellor’s professor of law at the University of California, Irvine, told the Times that anti-shackling laws are often poorly enforced. “For the most part, states that have banned the shackling of pregnant women haven’t bothered to go back and form commissions to see whether or not they are doing so,” she said.

The physicians who cared for the “Jane Doe” patient testified about their outrage regarding the way the police were treating her, and have since used the case to teach residents how to better advocate for patients. 

The woman behind the case told the Times she was glad her lawsuit would prevent others from experiencing such treatment, saying that “No woman should ever have to go through the traumatic experience that I went through” (5).

Postpartum issues and continuity of care for incarcerated women

Pregnant women often give birth while still incarcerated, but many are released prior to delivery. If this is the case, the correctional facility and healthcare providers should work to ensure that she continues to receive medical care on schedule. This includes the following:

  • Helping to reactivate insurance
  • Sharing follow-up appointment dates shortly before release (for security reasons, inmates may not be informed of medical appointment dates far in advance)
  • Providing medication or a prescription to last until the next appointment
  • Contacting a clinic for released patients who require withdrawal assistance drugs such as methadone.
  • Counseling patients on contraception options and offering to provide placement of long-acting contraception

Women who are still incarcerated at the time of delivery will usually spend a few days recovering in the hospital before returning to a correctional facility (after that, they should receive continued healthcare and monitoring for postpartum complications). 

While in the hospital, they are often permitted to hold their infants and breastfeed if they wish, but they are usually separated upon discharge. Infants may be placed with family, friends, in a foster home, or adopted, depending on the circumstances. Many mothers are traumatized by this separation; this, combined with a higher prevalence of underlying mental health disorders, makes them at higher risk for postpartum depression (1). 

Some correctional facilities have introduced nursery programs, in which infants can live with their mothers in supervised wings, and the mothers will receive parenting support. Research has shown that such programs increase mother-infant bonding, improve inmate well-being, prevent foster care placements, and reduce rates of recidivism (repeat criminal offenses) after release. (1, 4).  

Conclusion

Data on pregnancies and births in incarcerated women are limited, but we do know that many inmates require prenatal and obstetrical care. While in correctional facilities, women maintain basic rights such as the right to receive quality healthcare, the right to make informed decisions regarding their own health and bodies, the right to patient privacy, and the right to a safe delivery for both mother and baby. If these or other rights are violated, they may look into the possibility of pursuing a lawsuit.

About ABC Law Centers

ABC Law Centers was established to focus exclusively on birth injury cases. A “birth injury” is any type of harm to a baby that occurs just before, during, or after birth. This includes issues such as oxygen deprivation, infection, and trauma. While some children with birth injuries make a complete recovery, others develop disabilities such as cerebral palsy and epilepsy.

If a birth injury/subsequent disability could have been prevented with proper care, then it constitutes medical malpractice. Settlements from birth injury cases can cover the costs of lifelong treatment, care, and other crucial resources. 

If you believe you may have a birth injury case for your child, please contact us today to learn more. We are happy to talk to you free of any obligation or charge. In fact, clients pay nothing throughout the entire legal process unless we win. 

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Other recent blog posts

  1. Episiotomies: uses, guidelines, and recent findings
  2. Clinical trial of cannabidiol (CBD) in newborns with hypoxic-ischemic encephalopathy
  3. Recent study links migraines during pregnancy to maternal and fetal complications
  4. The ‘Feres doctrine’ prohibits military personnel from pursuing medical malpractice lawsuits against government practitioners. A proposed amendment could change that.
  5. Texas children’s hospital creates ICU specifically for maternal-fetal medicine

Sources

  1. Bell, S., & Iverson, R. E., Jr. (n.d.). Prenatal care for incarcerated women. Retrieved July 18, 2019, from https://www.uptodate.com/contents/prenatal-care-for-incarcerated-women 
  2. Women’s Health Care in Correctional Settings. (n.d.). Retrieved July 18, 2019, from https://www.ncchc.org/womens-health-care 
  3. Clarke, J. G., Hebert, M. R., Rosengard, C., Rose, J. S., DaSilva, K. M., & Stein, M. D. (2006). Reproductive health care and family planning needs among incarcerated women. American Journal of Public Health, 96(5), 834-839. 
  4. Women’s Health Care Physicians. (n.d.). Retrieved July 18, 2019, from https://www.acog.org/Clinical-Guidance-and-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/Health-Care-for-Pregnant-and-Postpartum-Incarcerated-Women-and-Adolescent-Females 
  5. Southall, A. (2019, July 03). She Was Forced to Give Birth in Handcuffs. Now Her Case Is Changing Police Rules. Retrieved July 18, 2019, from https://www.nytimes.com/2019/07/03/nyregion/nypd-pregnant-women-handcuffs.html 

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