Down to the felt: how Ohio's lackluster statutory scheme gambles with the lives of mothers and innocent children.

• Jurisdiction: United States
• Author: Rainone, Jim
• Date: 22 March 2016

I INTRODUCTION 127 II BACKGROUND 129 A Doctor-Recommended Prenatal Care 130 B Prenatal Care in Prisons 131 II EFFECTS OF INADEQUATE PRENATAL CARE ON THE MOTHER AND CHILD 132 A Effects of Inadequate Prenatal Care on the Child 133 B Effects of Inadequate Prenatal Care on the Mother 135 1 Educating the Mothers 135 2 Hormonal Fluctuations 137 C Psychological Issues as a Result of Pregnancy 138 1 Psychological Impacts of Losing a Child 142 2 Psychological Impacts in the Context of Jails and Prisons 143 IV STATUTORY SCHEMES 144 A Pennsylvania Statutory Scheme 144 B Ohio's Statutory Scheme 145 V ESTABLISHING MANDATORY CARE FOR INCARCERATED WOMEN IN OHIO JAILS AND PRISONS 146 A Historical Prisoner Care in American Correctional Facilities 146 B Role of Due Process Pertaining to Prisoners' Rights 148 VI IMPORTANCE OF ASSURING INCARCERATED MOTHERS' DUE PROCESS RIGHTS THE PROPOSED LEGISLATION 152 A Necessity of Mandatory Care in this Proposed Statutory Scheme 152 B Proposed Mandatory Care 153 VII PREVENTION OF ARBITRARY AND DISCRIMINATORY ENFORCEMENT OF POLICIES 154 A Notice & Fair Warning 154 B Preventing Arbitrary and Discriminatory Enforcement 155 VIII MANDATED PUNISHMENTS 156 A Basis for Punishment 156 B Extending Punishment to Correctional Facilities 157 1 Punishing Individual Actors within the Facility 157 2 Punishing the Correctional Facility 158 IX CONCLUSION 160 X PROPOSED STATUTE 161 I. INTRODUCTION

On Christmas morning, 1998, an eight-month pregnant Pamela Clifton went into labor while incarcerated in a women's correctional facility in Colorado. (1) She approached guards for help, but was told to return to her cell so the guards could complete roll call. (2) Pamela was finally able to see the facility's medical staff roughly seven hours later. (3) Pamela, however, found no solace within the walls of the medical center. Rather, the staff nurse sent Pamela back to her cell because she was having a "false alarm." (4) This was shocking to Pamela, especially after she told the nurse she needed to have her water medically broken before giving birth. Pamela returned to the nurse the next night, but was faced with horrific circumstances: the nurse could no longer detect a fetal heartbeat. (5) Pamela was transported to a community hospital, where it was determined that her fetus died. She later delivered a stillborn baby. (6)

Sadly, this brand of injustice is not specific to Pamela. (7) Women in numerous institutions have also been subjected to such mistreatment. (8) As recent as 2013, women comprised roughly seven percent of the total prison population. (9) Roughly five to six percent of those women are pregnant during their incarceration. (10) These numbers represent over 7,000 incarcerated mothers each year. (11)

Ohio, thankfully, does not have publicized examples of similar injustice... yet. (12) This provides legislators with the opportunity to take proactive steps to prevent such horrific events from happening.

Currently, Ohio's statutory regime does not explicitly provide a standard degree of care owed to pregnant inmates. (13) The American criminal justice system is gambling with both the health of the mothers and their unborn children by not providing pregnant inmates with adequate prenatal care. No established principle of punishment, including incarceration, justifies punishing a criminal's family. (14) Our society values. the health and sanctity of children, and gambling with their health wholly conflicts with those values. To preserve our values, and ultimately protect the interests and basic rights of the mothers and children, Ohio needs to implement a statutory scheme that provides mandatory care for pregnant prisoners.

This article examines three facets of the pregnant prisoner prenatal and post-birth care issue. First, it examines the injustice that pregnant prisoners are subjected to. Next, it examines other states' statutory regimes to identify adequate and inadequate features. Specifically, it will examine the Pennsylvania regime because of its relevance and reputation for being the most accommodating to these women. (15) Finally, it will propose a statutory regime for Ohio that provides mandatory care standards, means of accomplishing mandatory care, penalties for both the institution and its individual actors when care is not provided, and show how a statutory regime without these changes put mothers and their unborn children at risk for poor treatment, even death, like Pamela.

2. BACKGROUND

   As of 2013, over 111,000 women were incarcerated within the American federal and state prison systems. (16) This comprises roughly seven percent of the overall prison population. (17) Over the past twenty years the female prison population has increased more than six-fold--a significantly greater rate than the male population. (18) As a result, every year more than 7,000 women are pregnant during their incarceration. (19) These statistics show the American prison system is gambling with the lives of thousands of innocent children. (20)

   1. Doctor-Recommended Prenatal Care

      Prenatal care, visits, and consultations provide various benefits to both expecting mothers and their children. Prenatal care is "the attention given to the expectant mother and her developing baby." (21) Doctors recommend, on average, roughly seventeen (22) prenatal checkups throughout the typical 40-week gestational period. (23) Number and necessity of appointments increase if the pregnancy is high-risk. (24) Highrisk factors include age, weight, issues arising from previous pregnancies, prior health conditions, and pregnancies involving twins or other multiples. (25)

      During the first visit, the doctor runs tests to check for issues such as anemia, infections, sexually transmitted infections and diseases, and immunity to rubella and chicken pox. (26) After the initial visit, general checkups will include checking the mother's blood pressure and weight, checking the baby's heart rate, and measuring the baby's growth. (27) These appointments and visits are not only necessary to monitor the mother and child's health, but to educate the mother on proper lifestyle choices that will improve her baby's health. (28) These changes include dietary allowances, abstaining from consumption of alcohol and caffeine, staying active, and many other things. (29) The educational aspect of the visits is key. General tenets, such as not consuming alcohol during the pregnancy, are well known, but other minute factors are not common knowledge. (30) Educating the mother provides immense benefits to both her and her child. (31)

   2. Prenatal Care in Prisons

      The availability of prenatal care for women in prison is a microcosm of the struggle these women face to obtain any form of adequate health care. Women's prisons receive little attention because female offenders comprise a small portion of the overall prison population. (32) This is partly attributable to the demonization of female offenders. (33) The American prison system's outdated patriarchal perceptions forcefully compare women to the "ideal woman," and those who do not comply with the image are chastised. (34) Female offenders are regarded as "doubly deviant"--they have not only broken the law, but they have also violated social norms and mores that "mark womanhood." (35)

      Generally, pregnant prisoners are transported to outside medical facilities to give birth because the prisons are not medically equipped for the procedures. (36) The care that is available to women in the correctional facility is limited and mediocre; and prison medical professionals are often under skilled. (37) As a result, the necessity for transportation to a separate facility is increased. However, the transportation process presents issues of its own. The security precautions put added stress on the mother and increase the risk for injury. (38) This process increases the likelihood that complications will result during the pregnancy. (39)

      Finally, the mothers are subjected to not only the physical traumas of childbirth, but are also forced to abandon the custody of their child, causing emotional trauma. (40)

      This trauma has severe emotional and psychological impacts on the mothers. (41) Resulting trauma and stress leads to women distancing themselves psychologically from their fetuses. (42) This ultimately leads to long-term negative effects on the children. (43)

      II.EFFECTS OF INADEQUATE PRENATAL CARE ON THE MOTHER AND CHILD

      Failing to obtain adequate prenatal care has negative effects for both the expectant mother and her child. Mothers who receive late or no prenatal care are more likely to give birth to children with health problems. (44) Women who receive no care are three times more likely to give birth to a low-weight baby. (45) Further, the infants of women who receive no prenatal care are five times more likely to die. (46) This is a consequence of lower birth weight. (47) Lack of prenatal care is associated with a 40% increase in the risk of neonatal death overall and a doubling of the risk among women delivering at or after 36 weeks gestation. (48)

      A.Effects of Inadequate Prenatal Care on the Child

      Inadequate prenatal care is also associated with premature birth. (49) Premature birth can lead to long-term physical and intellectual development issues for children. (50) Premature birth takes place when the mother gives birth, or is forced to give birth, before 37 weeks of gestation. (51) These children emerge from the womb suffering from immediate health issues. Many prematurely birthed children suffer from lung and breathing problems, such as asthma and bronchopulmonary dysplasia, (52) because the lungs have not developed yet. (53)

      Prematurely birthed children are also at risk to suffer from long-term issues, including behavioral problems, such as ADHD, neurological disorders, such as cerebral palsy, or conditions such as autism, that affect the child's speech, social skills, and behavior. (54) Premature birth can...