Incarcerated childbirth and broader 'birth control': autonomy, regulation, and the state.

• Author: Ahrens, Deborah
• Position: Introduction through I. Incarcerated Pregnancy and Imprisoned Childbirth B. Prison-Based Pregnancy and Birthing Issues 3. Dealing with Complications and Emergent Deliveries, p. 1-25

ABSTRACT

In recent years, the scholarly literature, the journalistic press, and even pop culture have begun to grapple with the many ways in which prison life works to degrade and dehumanize female prisoners, particularly pregnant women and new mothers. These voices are drawn--quite understandably--to the worst abuses, to practices (such as the shackling of laboring women) that underscore the dichotomy between the brutality of prison life and the allegedly autonomous norms governing pregnancy and parenting in the outside world. This Article supplements--and in crucial places challenges--the narrative implicit in those depictions by, first, placing practices such as shackling in the context of the many less dramatic ways in which prison policies and norms strip autonomy from pregnant and laboring women, and, then, by exploring the substantial overlap between the restrictions placed upon incarcerated pregnant women and those faced by non-incarcerated women. The Article concludes that the constraints and indignities imposed on pregnant prisoners are an outgrowth not only of patterns of social control of prisoners but also of patterns of social control of pregnant women more generally. Like our criminal sanctions regime, these pregnancy-specific patterns of control reflect and reinforce complicated ideas about race, class, and gender, and offer important insights into our culture's values and preoccupations. Critically reading the experiences of women who are pregnant or laboring behind bars requires appreciation that their treatment stems from two distinct, though often overlapping, matrices of social control.

TABLE OF CONTENTS INTRODUCTION I. INCARCERATED PREGNANCY AND IMPRISONED CHILDBIRTH A. The Scope of the Affected Population B. Prison-Based Pregnancy and Birthing Issues 1. Establishing Pregnancy 2. Accessing Appropriate Prenatal Care 3. Dealing with Complications and Emergent Deliveries 4. Autonomy and Safety During Labor a. The Timing and Method of Delivery b. Pain Relief c. Access to the Delivery Room 5. The Experience After Birth C. The Medical and Legal Context II. PREGNANCY AND BIRTHING CONSTRAINTS ON NON-INCARCERATED WOMEN A. The Uneven Resort to Legal Constraint B. Legal Constraints on Pregnant Women Writ Large C. Sub-Legal Coercion: On the Limits of Autonomy in Ordinary Pregnancies III. CONSTRAINT AND COERCION IN MULTIPLE CONTEXTS: OBSERVATIONS TOWARDS A FULLER ACCOUNT OF INCARCERATED CHILDBIRTH CONCLUSION INTRODUCTION

Criminal justice has been dominated by male defendants. The majority of persons prosecuted for crime historically have been men, and the overwhelming majority of persons jailed and incarcerated following criminal convictions have been men as well. (1) Those figures are in flux: over the past several decades, as the population of persons convicted and imprisoned has ballooned, the growth in the incarceration rate for women has outpaced that for men, (2) in part because the War on Drugs led to prosecution and incarceration for low-level drug offenders. (3) A common critique of criminal courts and prisons is that, based on these historical populations, the distinct and particular needs of women have been elided or ignored. (4) Parenting issues are one locus for such critique; while both men and women who are incarcerated are likely to be parents, (5) women are more likely to be the primary caregivers for minor children and are therefore more likely to be affected by prison policies that impact parenting. (6)

Pregnancy and childbirth are specific aspects of parenting only experienced by women. In the past decade, there have been a number of academic articles and interest-group reports that document the problems that women who are pregnant and birthing face while incarcerated, and those articles and reports have focused in particular on the practice of shackling women who are pregnant during transportation, court appearances, and, most sympathetically, labor. (7) This spotlight on the practice of shackling women during labor has been important and productive. In addition to focusing attention on particularly troubling practices, this focus on shackling has helped underscore the degree to which practices that are theoretically gender-neutral--women are shackled based on non-gender-specific prison administrative regulations that require restraints during transportation and medical procedures for all prisoners--can impose gender-specific indignities on female prisoners. (8) In large part because of the attention that has been drawn to the problems posed by restraining pregnant prisoners, a number of jurisdictions now have legislation or administrative regulations that limit the practice of shackling pregnant women during transportation and labor, (9) and a number of courts have begun to take seriously constitutional challenges to the indiscriminate shackling of pregnant and birthing mothers. (10)

While this focus on shackling has been useful and has prompted helpful policy changes, it has not--thus far--translated into a broader appreciation for the challenges and constraints encountered by incarcerated pregnant women and birthing mothers." Those challenges and constraints are considerable. Court cases, advocacy reports, and news accounts paint a troubling--albeit necessarily anecdotal--portrait of a prison-industrial complex that is ill-equipped to deal with the complicated logistical, medical, and emotional consequences of incarcerating increasing numbers of pregnant women. As this Article demonstrates, incarcerated pregnant women face challenges that range from convincing prison officials that they are pregnant or are in labor to obtaining sufficient nutrition or necessary prenatal care. Once birth approaches, they often face a series of constraints and indignities ranging from loss of control over the timing and method of delivery to the prohibition of ordinarily-available pain medication and the micro-managing of who may be present in the delivery room.

Bringing these constraints to the forefront in the academic discussion helps to flesh out a complete picture of the degree to which the prison industry disempowers, stigmatizes, and generally fails pregnant women. Understanding the issues faced by pregnant prisoners is a worthy goal in itself. Highlighting these issues, however, also helps to draw out an important connection obscured by the literature's focus on shackling, namely the similarities --in kind, if not always in degree--between the constraints faced by incarcerated and non-incarcerated women when making decisions about their pregnancies and birthing experiences. While...