The anti-shackling bill passed last year abolished the barbaric practice of putting restraints on incarcerated women who are pregnant and sought to create a minimum level of care for pregnant women in correctional facilities. When the bill was signed into law, Marianne Bullock of the Prison Birth Project said the next challenge would be to ensure the law is enforced. That challenge still needs to be met.
The law requires that women prisoners in labor may not be placed in restraints, including while being transported from and to the correctional facility. Also, restraints may not be used postpartum, except in extraordinary circumstances, and even then without leg or waist restraints.
The notion that a woman needs to be restrained during labor is — as any woman who has given birth would say — simply absurd. Worse, it is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishment, according to the holding of at least one appellate court over five years ago. It inflicts unnecessary suffering and exposes a woman to substantial medical risks. During labor and delivery she needs to be able to easily change her position as the pain mounts. It is an assault on her dignity and degrading.
According to Prisoners’ Legal Services, the statewide legal services program for incarcerated individuals, the law is being ignored by some officials. The program tells this story about a pregnant woman at the Bristol County Correctional Facility, who was reportedly handcuffed en route to the hospital while in labor. With every contraction, the metal of the handcuffs would dig into her hand. She couldn’t hold her stomach or push herself up to change position as the pain accelerated. When she got to the emergency room, she was handcuffed again, this time to the bed in which she was to give birth; the cuffs were not removed until an emergency room doctor insisted they come off.
After her son was born and she showered, the officers ordered that the restraints be restored, this time shackling her to the bed by her left ankle, without justification, much less the “extraordinary circumstances” the law required. And when she was returned to the jail, two days after her delivery, the law was again ignored; she was placed in handcuffs and waist chains. In subsequent trips to court, while she was still recuperating from the delivery, the brutal pattern continued. Her experience, she said, was dehumanizing, heaping extra punishment on her at a time that she felt especially scared and uniquely vulnerable. It was as if the 2014 law had not been passed.
In Middlesex County, according to Prisoners’ Legal Services, a woman transported by county officials reported that one week after she delivered a child by Caesarean section, she was transported in the back of van in restraints rather than a simple seat belt. Another woman in Essex County reported that she had been restrained for days after birth, the officers claiming that it was department policy, when it is not.
While the statute requires the various county institutions to promulgate regulations, some have not done so at all, or have weighed in with rules that are inconsistent with the statute, according to Prisoners Legal Services. When the policy is unclear, the pregnant woman is at the mercy of whomever is in charge, and the inhumanity of the past can continue. The situation has improved somewhat but “somewhat” isn’t remotely good enough when dealing with a practice that is at once barbaric and unnecessary. Happy Mother’s Day? Hardly.
Nancy Gertner is a retired federal judge and a professor at Harvard Law School.