Criminalizing Motherhood

Guest Post by Victoria Law

On July 1^st, the nation’s first law incarcerating pregnant women who use drugs will go into effect.

On April 29, Tennessee passed SB1391, allowing the prosecution of pregnant women if her fetus or newborn is considered harmed from illegal drug use. Miscarriage, stillbirths and infants born with birth defects could be grounds for criminal assault charges. The woman may be able to avoid criminal charges if she completes a state treatment program.

However, only two of Tennessee’s 177 addiction treatment facilities provide on-site prenatal care and allow older children to stay with their mothers while they are undergoing treatment. Only nineteen offer treatment specifically oriented towards pregnant women. In addition, Tennessee refused Medicaid expansion, excluding many from access to basic medical or prenatal care, let alone drug treatment. Approximately twenty-six percent of people ages nineteen to thirty-nine are uninsured in Tennessee. Even before SB1391 was introduced, the Tennessee Department of Health noted that approximately twenty-three percent of live births in the state received no prenatal care. With SB1391 now law, doctors and medical professionals fear that even more women may avoid seeking prenatal care.

The new Tennessee law made headlines, outraging reproductive rights advocates nationwide. SB1391 is the first law punishing women for their pregnancy outcomes, placing responsibility for a safe and healthy pregnancy solely on the pregnant woman. But SB1391 neither addresses nor punishes the ways in which the legal system endangers mothers, babies and fetuses. When a pregnant woman goes into labor behind bars in Tennessee, she does so while shackled by her wrists and ankles.

Shackling hampers a laboring woman’s ability to move to alleviate the pain of her contractions. The inability to move increases stress on the woman’s body and may decrease the flow of oxygen to her fetus. Medical professionals, including the American Medical Association, the American College of Nurse-Midwives and the American College of Obstetricians and Gynecologists, believe that shackling incarcerated pregnant women during labor and delivery is unsafe and dangerous to the health and lives of the mother and the baby. But, while supporters of SB1391 have defended the law as necessary for the protection of fetuses and babies, they have, by and large, remained silent about the continued use of shackling.

Six years ago, Tennessee made headlines after police arrested Juana Villegas for driving without a license in 2008. Villegas was nine months pregnant. She was also undocumented.

Instead of giving her a citation, the police arrested her under the federal immigration enforcement known as 287g. While in jail Villegas went into labor. Her legs were shackled together as she was transported to the hospital. One of her feet was cuffed to the bed and a guard remained in her room the entire time. Villegas was also barred from seeing or speaking with her husband.

Villegas was separated from her newborn, given a breast pump and returned to the jail where the breast pump was confiscated. She was released two days later with a breast infection. Her infant, in the meantime, had developed jaundice.

Villegas sued the county. In 2011 a federal judge ruled in Ms. Villegas’s favor, finding that jail officers had shown “deliberate indifference” to her medical needs by cuffing her ankle to her hospital bed through most of her labor and during recovery.In 2013, a federal judge ruled that shackling during labor & again after giving birth amounted to unconstitutional interference with her medical care as well as subjected both her and her fetus to medical risks. The county agreed to settle with her for nearly half a million dollars. The judge also recommended that Villegas be given a visa that is usually reserved for victims of crime.

As a result of the ensuing publicity, the sheriff of Davidson County adopted a default policy against shackling pregnant women unless a supervisor approves it for specific reasons. If restraints are approved, they can only be soft restraints (or soft, padded cuffs like the ones used in hospitals). The county also opted not to renew its 287g agreement with immigration officials.

The policy limiting shackling applies only to Davidson County. Tennessee, as a state, has not taken action to protect pregnant women from shackling, as Charity Flerl learned last year.

In June 2013, Charity Flerl was arrested in Hamilton County after falling behind on her child support payments. She was six months pregnant. Because the Hamilton County Jail only holds men, she was sent to the Silverdale Correctional Facility in Chattanooga run by private prison corporation Corrections Corporation of America. In September, Flerl went into labor. Guards shackled her hands, feet and wrists before taking her to the hospital. At the hospital, even though two armed guards remained in the room at all times, she was shackled to the bed. “When she had to actually give birth, they unshackled the legs from each other, but then they shackled them to the bed and same with her arms,” Flerl’s attorney Chris Clem told WTVC News Channel 9. Flerl spent her two days of postpartum recovery with an arm and a leg shackled at all times.

This past March, Flerl filed a federal lawsuit against Corrections Corporation of America, the Hamilton County sheriff Jim Hammond and guards for the Silverdale Correctional Facility. Her suit demands that the Hamilton County Jail (and the privately-run facilities that it contracts with) change its policy of shackling all non-violent prisoners during labor, delivery and postpartum.

SB1391 and the treatment of pregnant women behind bars should not be viewed as two separate issues. They are part of the same spectrum of ways in which mothers—particularly low-income, undocumented and/or women of color—are criminalized and stripped of their rights to their own bodies.

Victoria Law is a freelance writer and editor. She has worked with incarcerated women across the nation for more than a decade. Her writings on gender, incarceration and resistance have also appeared in Bitchmedia, The Nation, Salon, Solitary Watch and Truthout. She is the editor/publisher of Tenacious: Art and Writings by Women in Prison and the author of Resistance Behind Bars: The Struggles of Incarcerated Women. She is also the co-editor of Don’t Leave Your Friends Behind: Concrete Ways to Support Families in Social Justice Movements and Communities and can be found making a ruckus when events refuse to provide childcare.