Pregnant inmates get healthcare help from Calif. Attorney General

REUTERS/Lucy Nicholson
  • Stoetling settlement
  • Complaint for damages
  • Settlement
  • 2021 law review article
  • Nelson v. Correctional Medical Services

(Reuters) - Reports of medical tragedies and archaic practices inside jails have persisted for several decades amid the growing number of women incarcerated in America, including horror stories about women forced to give birth in jail or while handcuffed and shackled.

Last year, Orange County, California, approved a $1.5 million settlement in a lawsuit by a woman who alleged jail employees ignored her as she gave birth while sitting on the toilet in her cell, according to court documents and a report by the Orange County Register in April 2021. The baby died shortly afterward, according to the complaint.

Alameda County, California, settled for $250,000 a claim alleging another woman in November 2021 was forced to give birth in a jail cell. The child survived.

That same month, the ACLU Foundation of Northern California sent a demand letter to Tulare County Sheriff-Coroner Mike Boudreaux alleging county jails were violating their constitutional obligation to provide adequate prenatal care.

Boudreaux told me he "vehemently" denies the allegations of former inmates who reported their experiences to the ACLU and said the group is trying to establish a false narrative about his office.

"I insist on strict oversight" regarding the "health of all inmates, including those who are pregnant," Boudreaux said. "The Tulare County Sheriff’s Office has always not only complied but exceeded compliance requirements when it comes to the constitutional rights of inmates."

Similar reports about neglect of women’s healthcare led California to enact the Reproductive Dignity for Incarcerated People Act in August 2020. Among other measures, the bill requires county jails to offer incarcerated and pregnant women more appropriate delivery conditions; menstrual products, obstetrics exams and prenatal care; lower bunk-bed assignments; and limitations on shackling pregnant inmates.

Now, Attorney General Rob Bonta – who wrote the bill while he was a state lawmaker – is taking steps to ensure that local sheriffs and their jails are in compliance with the new law and other legal standards for incarceration.

Bonta sent California sheriffs a letter on Feb. 11 detailing the requirements of the new law. The attorney general also requested their private healthcare contracts and other documents showing that the sheriffs have actually implemented new policies reflecting the strengthened rights of pregnant women in jail.

Although it’s just an initial step in the enforcement process, Bonta’s letter serves as important notice of legal obligations of care to law enforcement officials who often escape public scrutiny or formal oversight.

For example, back in 2005, California became the second state to ban the shackling of pregnant women in labor or in transport to deliver a child, according to a 2021 law review article by Madeline Martin, now a Contra Costa County public defender. But the practice remains common there and in other states that have banned it, often based on the mercy of the guard who happens to be with the woman, Martin wrote.

Representatives of the California State Sheriffs' Association did not respond to my questions for this column.

Bonta also didn't respond to a request for comment.

Carolyn Sufrin, a professor in gynecology and obstetrics at Johns Hopkins University School of Medicine, said Bonta’s approach has the potential to produce improvements. Sufrin has worked as a physician in San Francisco County jails and led a first-of-its-kind study in 2019 that tracked pregnancies and outcomes from 22 state systems and all federal prisons over the course of a year. It found nearly 1,400 admissions of pregnant people, 753 live births, 46 miscarriage and 11 abortions.

“It’s all about accountability and oversight, and what are the consequences” if officials refuse to comply with new reforms, she said. “The most powerful, realistic system of accountability is if they get sued.”

It’s a tall task for potential plaintiffs to file a lawsuit against government officials, and, even then, those cases are retrospective – they come after the harm, sometimes a person’s death, has already occurred.

Of course, those limitations don’t necessarily apply to an attorney general’s office. And, there’s reason to think that evidence to support lawsuits could eventually be uncovered.

“An initial review of county jail policies indicated that many are not in compliance with state and federal laws,” Bonta’s offices said in the Feb. 11 statement about the inquiry letter.

There are no nationwide standards that jails must meet for the care of pregnant women, according to a special report by Reuters in December 2020. Many jails and prisons do not track or report pregnancy outcomes among inmates.

Besides state laws, the U.S. Supreme Court held in 1976 in Estelle v. Gamble that “deliberate indifference” to serious medical needs of prisoners and pretrial detainees is a violation of their constitutional rights. The court hasn’t clarified the standard much over the years, but it’s not difficult to find examples that would seem to run afoul of that minimum level of care.

A number of jurisdictions have held that shackling during labor and delivery is unconstitutional or otherwise unlawful, including the 8th Circuit in a case called Nelson v. Correctional Medical Services.

Still, across the country, there are stories of women going from jails or prisons to hospitals, where they are in labor and sometimes delivering while shackled, all amid the growing number of women in jail. A special report by Reuters in 2020 found that the number of women in jails had risen more than 20% over the previous decade, to an average of 115,000 inmates a day.

Of those women, 3% to 5% are estimated to be pregnant when they arrive. Reuters identified at least 65 cases from 2010 to 2019 “in which female inmates suffered serious pregnancy-related complications, including miscarriages, ectopic pregnancies, placental abruptions, stillbirth, and newborn or maternal deaths.”

The national evidence that exists and the more recent lawsuits in California suggest that these problems persist largely because oversight and accountability measures are lacking -- or are simply not enforced. Bonta’s follow-through thus far on enforcement of the reform measures is a good example for other attorneys general.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com