Pregnant women inmates: evaluating their rights and identifying opportunities for improvements in their treatment.

• Author: Parker, Kelly

1. INTRODUCTION II. CIRCUMSTANCES FACED BY PREGNANT INMATES A. Women Incarcerated Today B. Health Care Challenges for Pregnant Inmates 1. Medical Needs of All Women Inmates 2. Specific Needs of Pregnant Inmates C. Quality of Treatment Provided to Pregnant Inmates III. LEGAL CONTEXT OF TREATMENT OF PREGNANT INMATES: THE EIGHTH AMENDMENT AND DELIBERATE INDIFFERENCE A. The Deliberate Indifference Standard and Establishing Its Violation B. Application of the Deliberate Indifference Standard to Cases Concerning the Medical Treatment of Women Inmates IV. EFFECTING CONSTRUCTIVE CHANGE FOR PREGNANT INMATES A. Class Action Litigation as a Tool for Improving Medical Treatment for Pregnant Inmates 1. Notable Settlement Agreements Before the Prison Litigation Reform Act Passage and Their Efficacy 2. The Prison Litigation Reform Act and Implications for Litigation by Pregnant Inmates 3. Settlement Agreements Post-Prison Litigation Reform Act: Laube v. Campbell B. Proactive Change: Avoiding Litigation Through Legislative Action C. Innovative Programs for Pregnant Inmates 1. Programs Serving Pregnant Inmates Within Correctional Facilities 2. Programs Serving Pregnant Inmates Through Alternatives to Incarceration V. CONCLUSION I. INTRODUCTION

   Pregnant women incarcerated at the time of our nation's founding faced the prospect of giving birth in their cells alone and a considerable likelihood that their infants would die. (2) This is somewhat unsurprising. At this time infant mortality rates were high. (3) Given the pace of advances in the treatment of pregnant women since that time, one might expect that the experience of pregnant women incarcerated in today' s correctional facilities (4) would have improved as it has for their peers on the outside. That, however, would be an unrealistic assumption. In addition to facing decidedly substandard environments in some facilities--inappropriate accommodations, widespread exposure to disease and unsanitary conditions, among other challenges--pregnant women sometimes still risk the possibility of giving birth without assistance. Such was the case of Louwanna Yeager. Ms. Yeager, upon going into labor in May 1987, was informed by guards that she would "have to wait" because no medical staff members were available to help her. (5) The birthing process is not one amenable to being put on hold and, as such, Ms. Yeager gave birth three hours later "on a thin mat outside of the door of the clinic in the jail." (6)

   Ms. Yeager's horrifying experience and those of her peers at the Kern County Jail led to a lawsuit that changed conditions for pregnant and post-partum women at the facility. (7) Pregnant women incarcerated in correctional facilities that have been the subject of litigation have seen an improvement in the conditions they experience. However, most of these facilities would not have made these changes without the threat of litigation. (8) Thus, those pregnant women incarcerated in facilities that have evaded legal scrutiny may still face conditions not much improved than those endured by Ms. Yeager and others like her.

   This article illustrates the challenges faced by pregnant women incarcerated in correctional facilities, their rights, and ways in which change for these women can be effected as well as programs that have provided clear improvements for their care. The treatment of pregnant inmates merits special attention--especially in the competition for scarce correctional resources--because of the particular complications for these women and their infants which can result from improper care.

2. CIRCUMSTANCES FACED BY PREGNANT INMATES

   A Women Incarcerated Today

   In 2000, women made up seven percent of the correctional population--86,000 women among 1.3 million total inmates. (9) By 2003, both of these figures grew: 101,000 women among 1.4 million total inmates were incarcerated by state and federal facilities. (10) Since 1995, while the average annual increase in the number of male inmates has been 3.3 percent, the average annual growth of the population of women inmates has been five percent. (11) Because of their relatively small numbers--but despite the pace of increase in them--fewer facilities exist to incarcerate these women. The result, say scholars, has been "institutionalized sexism": prisons in isolated locations, separating women from their friends and family; a justification, based on their small numbers, for providing inadequate "educational, vocational, and other programs"; and low levels of specialization in treatment and failure to separate more dangerous offenders from the general population. (12)

   Women of color are disproportionately affected by this trend. African-Americans accounted for forty-four percent of women in local jails and forty-eight percent of women in state prisons; fifteen percent of women in jails and state prisons were Hispanic. (13) The General Accounting Office has noted an increased likelihood of African-American women to be incarcerated than Hispanic and white women: in 1997, "black females were more than twice as likely as Hispanic females and eight times more likely than white females to be in prison." (14)

   The failure to tailor treatment to the needs of women inmates is troubling, given the increase in the numbers of women being incarcerated. It does a great disservice to this group of inmates who are largely nonviolent offenders. Of women incarcerated in state prisons in 1998, for example, only twenty-eight percent were incarcerated for violent offenses--a bulk of the women were serving time for property offenses and drug offenses. (15)

   2. Health Care Challenges for Pregnant Inmates

      1. Medical Needs of All Women Inmates

         Women entering correctional facilities are often in very poor health for a number of reasons, including higher rates of poverty, substance abuse, and sexual/physical abuse among this population. A study of incarcerated parents conducted by the Bureau of Justice Statistics reveals startling figures in these areas for women. Twenty percent of mothers in state prisons reported homelessness in the year before being incarcerated and half had been unemployed in the month leading up to their arrest. (16) With regard to substance abuse, eighty six percent of mothers reported having used drugs at some point in their lives, and sixty-five percent had used drugs in the month before the offense was committed that led to their incarceration. (17) Figures regarding physical and sexual abuse among women inmates is equally sobering. Forty-three percent of women in state prisons had been physically or sexually abused--sometimes both--at some time before their incarceration. (18)

         Lack of consistent access to health care prior to incarceration often means that these women bring with them untreated sexually transmitted diseases as well as chronic conditions such as high blood pressure and diabetes. (19) These women also experience higher rates of depression. (20) A study of Ohio's prison system noted that many women entered the state's facilities "without having seen a physician in years, emphasizing that the women suffer from prolonged neglect and abuse of their bodies and minds. Health care delivery at this point is assessed against a background of societal problems and economic hardships and not simply in terms of the delivery of services to heal physical ailments." (21) As noted by another scholar, "health care for women in prison is largely an effort to' catch up' in that considerable effort is most often necessary to raise women's health status to legally mandated, acceptable levels." (22)

         For women incarcerated in these facilities, the provision of care sometimes occurs within the context of penal harm, whose proponents believe "that the incarceration experience should inflict pain and make conditions of confinement as harsh as possible." (23) As one woman commented, "I feel sorry for anyone who gets sick 'in the joint.' ... They don't seem to care what happens to you. They just do what they have to do, you know. If it's not the right time, right day, if it's not convenient or whatever, you could suffer and die and it wouldn't really matter." (24) Maeve documented similar concerns among the women inmates she studied: "It was common for women to believe that members of the medical unit were withholding standard medical care and/or simply 'not caring' at all. Because health care was provided through the Department of Corrections, women understood that the protection of health care they were entitled to simultaneously included the punishment they deserved." (25)

      2. Specific Needs of Pregnant Inmates

         Six percent of women admitted to prison were pregnant at the time of their admission to prison in 1991. (26) In a survey of correctional systems, some 1900 women admitted to prison were pregnant and 1400 gave birth during 1998. (27) Between July 1998 and October 1999, 429 women inmates in California prisons--so often the subject of litigation--gave birth. (28)

         Given the constellation of difficulties that pregnant incarcerated women face, many of their pregnancies are considered high risk. Among the criteria for classifying these pregnancies include a history of drug addiction and sexually transmitted diseases or pelvic inflammatory disease. (29) Accordingly, "[a] single major medical condition, or several minor conditions, can predict a less-than-favorable birth. Such pregnancies must be termed high-risk, and these patients should be cared for in specially designed and staffed centers." (30)

         Addressing the needs of pregnant women addicted to drugs is a critical problem cited frequently, yet one that remains overlooked despite "an increasing trend toward sentencing pregnant, substance abusing women to prison or jail in an attempt to protect the health of the fetus." (31) Women addicted to drugs face daunting health problems--including "excessive weight loss, dehydration, HIV/AIDS, other sexually transmitted diseases, hepatitis B...