State Standards for Pregnancy-Related Health Care and Abortion for Women in Prison

On any given day, more than 200,000 women are living behind prison or jail walls. Thousands of these women are pregnant and depend on correctional authorities for their health care, and correctional authorities are legally obligated to meet those needs. Whether an incarcerated woman decides to continue her pregnancy to term or have an abortion, she has a constitutionally protected right to obtain appropriate medical care.

To what extent, if any, a prison's policies address pregnancy-related services is one important indicator of how that facility treats pregnant women in its custody. Presented here are the results of research to identify pregnancy-specific correctional policies posted on state department of corrections websites, or contained in databases of state laws and regulations, as well as national and federal standards. This is not an exhaustive survey of all state standards that may relate to the treatment of pregnant inmates, but a resource guide identifying such standards as are readily available online.

This resource guide includes five sections: First, it provides a short summary of minimum national standards that correctional facilities should meet as one important step for addressing the health needs of pregnant inmates. Second, it offers a short summary of the federal courts’ treatment of the use of restraints on pregnant inmates. Third, it provides an overview of the ways that federal agencies meet or fail to meet national standards. Fourth, it offers a general overview of the ways that the state policies located meet or fail to meet those national standards. Finally, it provides a state-by-state directory to help you directly retrieve online, or request by phone or mail, individual state department of corrections' policies addressing pregnancy-related care, including abortion.

Well-known sets of standards for correctional health care come from the National Commission on Correctional Health Care (NCCHC), the American Congress of Obstetricians and Gynecologists (ACOG), and the American Public Health Association (APHA). The standards specifically address the care and treatment of pregnant inmates. Along with other sources, these standards provide some guidance on minimum policies and practices correctional facilities should implement in order to meet the needs of pregnant inmates. In addition, the American Medical Association (AMA), the Association of Women’s Health, Obstetrics and Neonatal Nurses (AWHONN), and the American Correctional Association (ACA) have released statements with guidance on the use of restraints on pregnant inmates.

A. NCCHC

The NCCHC publishes Standards for Health Services as a set of best practices for the provision of health services in correctional settings and to govern its accreditation program for prisons and jails. The NCCHC standard titled "P-G-O7: Care of the Pregnant Inmate" directs that "[p]regnant inmates receive timely and appropriate prenatal care, specialized obstetrical services when indicated, and postpartum care." This standard also discusses the need for facilities to be prepared to handle the prevalence of high-risk pregnancies among incarcerated women, and sets forth specific compliance indicators for pregnancy care generally, including:

• Prenatal medical examinations
• Prenatal laboratory and diagnostic tests, including HIV testing and prophylaxis when indicated
• Advising inmates on levels of activity and safety precautions during pregnancy
• Prenatal nutritional guidance and counseling
• Maintaining a list of specialized obstetrical services
• Written agreement with a community facility for delivery
• Documented, appropriate postnatal care
• Keeping a list of all pregnancies and their outcomes
• Having a written policy and defined procedures addressing compliance with this standard

The NCCHC standard titled "P-G-09: Pregnancy Counseling," additionally recommends that a pregnant inmate receive counseling and assistance appropriate to her intentions, whether she wants to continue to term and then keep her child, place the baby for adoption, or have an abortion. Finally, in October 2010, the NCCHC published a position statement on the use of restraints, acknowledging the serious health risks involved in using restraints on pregnant inmates, and recommending that their use be avoided, if possible, and used in the least restrictive way if avoidance is not possible.

B. ACOG

ACOG is professional organization of medical doctors who specialize in Obstetrics and Gynecology, with a membership that includes over 90% of U.S. board-certified obstetrician-gynecologists. In November 2011, ACOG published its Committee on Health Care for Underserved Women Committee Opinion, Health Care for Pregnant and Postpartum Incarcerated Women. The Opinion is targeted to OBGYN providers specifically, and focuses on the special needs of incarcerated women. Unlike the NCCHC, the ACOG standards specifically state “The use of restraints on pregnant incarcerated women and adolescents may not only compromise health care but is demeaning and rarely necessary,” and explain the specific health risks associated with using restraints. The ACOG standards include:

• Assessments for pregnancy risk at intake
• Pregnancy counseling and abortion services
• Perinatal care that meets ACOG’s general standards
• Assessments and treatment for substance abuse
• Testing and treatment for HIV, and care to prevent perinatal HIV transmission
• Mental Health screenings
• Dietary supplements for pregnant and breastfeeding inmates
• Delivery of services in a licensed hospital
• Provision of postpartum contraceptive methods while incarcerated
• Written policies on compliance, training for providers, and mechanisms for accountability

C. APHA

The APHA is the oldest national organization of public health professionals, which has long worked to strengthen prisoners' access to adequate and humane medical care. The APHA publishes its own comprehensive Standards for Health Services in Correctional Institutions (2003), available for purchase on their website. The standards for the care of pregnant women overlap in some respects with those set forth by NCCHC and the ACOG, but also address important issues not mentioned in those standards. The APHA standards include:

• A "sensitive and dignified" reproductive system examination as part of initial health screening
• Prenatal screening tests
• Prenatal health education
• Special housing and diet when necessary
• Identification and proper referral of high-risk pregnancies
• Treatment to prevent perinatal transmission of HIV for HIV-positive women
• Prohibition of shackling during labor and delivery
• Training of health care staff in jails and prisons for labor and delivery in case of emergency
• Standing arrangement for deliveries that allow mother and infant to spend time together after birth
• Ongoing access to newborns after delivery
• Access to family planning services, including abortion counseling and services

D. Organizational Statements on the Use of Restraints

The AMA, the largest association of medical doctors and students in the United States, has published a policy statement limiting its support for the use of restraints on pregnant inmates to the least restrictive restraints necessary in the 2nd or 3rd trimester of pregnancy and, the use of restraints for inmates in labor or recovering from labor only if the inmate is an immediate or serious threat of harm or flight risk. The AWHONN, an organization of American nurses that focuses on the health of women and newborns, goes even farther in its October 2011 position statement, condemning all shackling of pregnant inmates unless an inmate may harm herself or others or is a serious flight risk. The ACA’s January 2012 Policy Resolution approved the use of restraints in the least restrictive means possible throughout pregnancy, based on an assessment of the risk posed and medical needs of the inmate, and states that waist and electronic restraints should not be used at all during pregnancy, with leg restraints reserved only for extreme circumstances during transport.

For more information about the above standards, or to obtain their most current publications, you can visit each organization's website:

NCCHC
http://www.ncchc.org/resources/statements/womenshealth2005.html
http://www.ncchc.org/resources/statements/restraint_pregnant_inmates.html

ACOG
http://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on_Health_Care_for_Underserved_Women/Health_Care_for_Pregnant_and_Postpartum_Incarcerated_Women_and_Adolescent_Females
http://www.acog.org/About_ACOG/ACOG_Departments/Health_Care_for_Underserved_Women

APHA
http://www.apha.org/publications/bookstore/

AMA
https://ssl3.ama-assn.org/apps/ecomm/PolicyFinderForm.pl?site=www.ama-assn.org&uri=%2fresources%2fdoc%2fPolicyFinder%2fpolicyfiles%2fHnE%2fH-420.957.HTM

AWHONN
http://onlinelibrary.wiley.com/doi/10.1111/j.1552-6909.2011.01300.x/pdf

ACA

http://www.aca.org/government/policyresolution/view.asp?ID=78

Every court to consider the practice of shackling women during labor has found it unconstitutional. In 2009, the 8th Circuit Court of Appeals ruled that there is a clearly established right not to be shackled during labor. [1] This decision confirmed the consensus expressed in earlier district court opinions. [2] In 2011, the Middle District of Tennessee relied on Nelson to hold that women should not be shackled during labor or post-partum recovery and that correctional facilities must provide women with medically necessary devices, such as breast pumps, when prescribed by their doctors. [3]

Several federal agencies have policies in place that regulate the provision of healthcare to pregnant inmates and the use of restraints. These standards vary. Immigration and Customs Enforcement’s (ICE) regulations on medical care for female inmates contain the most comprehensive requirements regarding the provision of obstetrics and gynecological healthcare. The Federal Bureau of Prisons (BOP) similarly requires family planning, pregnancy care and social services, and accommodations (but not funding) for abortion and prohibits the use of custody control belts when escorting pregnant women for medical trips, it permits the use of other restraints. Finally, the U.S. Marshal Services (USMS) does not allow the use of restraints on women during labor or recovery, and requires correctional officers to use the least restrictive means to restrain pregnant women at other times. For more information about the above agencies, you can visit each agency’s website:

ICE
www.ice.gov/doclib/detention-standards/2011/medical_care_women.pdf

USMS
www.usmarshals.gov/foia/Directives-Policy/prisoner_ops/restraining_devices.pdf

BOP
http://www.bop.gov/policy/progstat/5538_005.pdf
www.bop.gov/policy/progstat/6070_005.pdf

We found pregnancy-specific laws or correctional policies for over half of the states and the District of Columbia. We could not locate relevant pregnancy or reproductive health care correctional standards for eight states. [4] Of the policies or laws located for forty-one states plus the District of Columbia:

• Twenty-one have standards that mention both health care for pregnant inmates planning to carry to term and for those who seek an abortion; [5]
• Twelve have standards that mention prenatal health care, but not abortion access. [6] However, three of those fourteen merely note that inmates do not have to pay for pregnancy testing and/or pregnancy care, without any further details regarding what that care entails; [7]
• Two have an administrative regulation on correctional health care that addresses abortion access, but not other pregnancy-related health care; [8]

Of the forty-two jurisdictions for which we found some type of law or policy regarding treatment of pregnant inmates, very few included standards that closely tracked the NCCHC or APHA standards and recommendations. More often, the law or policy we found failed to specifically address most of those standards. For example, out of these forty-two jurisdictions, only:

• Twelve explicitly state that medical examinations shall be included as a component of prenatal care. [9]
• Six mention HIV testing. [10]
• Seven include advice on appropriate levels of activity and safety. [11]
• Nineteen mention prenatal nutrition counseling or the provision of appropriate nutrition. [12] However, only ten of those require the actual provision of appropriate nutrition to pregnant inmates. [13]
• Eight explicitly require an agreement with a specific community facility for delivery. [14]
• Five require that institutions keep a list of all pregnancies and their outcomes. [15]
• Sixteen explicitly provide for screening or special treatment for high-risk pregnancies. [16]
• Eleven follow the NCCHC standard that recommends counseling for pregnant women "whether they elect to keep the child, use adoption services, or have an abortion."[17]
• Seventeen restrict the use of restraints on pregnant women during labor and delivery as a matter of statute, and four as a matter of policy. [18]

For the Rebecca Project and National Women’s Law Center report on each state’s policies and practices regarding healthcare for pregnant women, go to www.nwlc.org/sites/default/files/pdfs/mothersbehindbars2010.pdf. To learn more about how your state measures up, use the state-by-state directory to find information and resources for each state department of corrections and its policies.

You can access laws and policies referenced below either by downloading them directly from the url link provided, or by looking up the state law citation provided. For a few states, there are additional instructions on how to retrieve a policy from a linked site. This is a directory of information publicly available online or in legal databases. Because much information is not posted online, we have provided other helpful contacts and resources for each state department of corrections. The ACLU works to ensure that pregnant women in prison have access to necessary and appropriate healthcare. Resources and reports developed by ACLU affiliates are included below.

For more information, please contact the Reproductive Freedom Project at 212-549-2633.
Information provided here was last updated in July 2012.