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Conditions of Confinement and Pregnancy Rights

Pregnant incarcerated women represent a vulnerable and invisible population with unique reproductive and health care needs. The COVID-19 pandemic has drawn attention to systemic health inequities in health care delivery. The incarceration rate among women has risen since 1980 along with disproportionate incarceration rates for nonviolent offenses; “more than 60% of women in state prisons have a child under the age of 18” (The Sentencing Project, 2020). These rates of incarceration are linked with the disproportionate criminalization of mental health, substance use and trauma.

Despite organizational suggestions of health care prison standards from The American Correctional Association and the National Commission on Correctional Health Care, there remains no enforcement or mandatory implementation of health care standards within prisons and jails (Bronson & Sufrin, 2019). As a result, reproductive health care is limited, including inaccessibility of prenatal care, abortion care, or mental health care.

Correctional facilities serve as an additional form of punishment by providing inadequate care to vulnerable populations. This includes the usage of solitary confinement, infirmaries, and mental health units as substitutions for providing care and social support to incarcerated women. Insufficient reproductive health care services available is interconnected with the rise of mass incarceration; “the United States has 4% of the world’s female population but 30% of its female incarcerated population” (Sufrin et al., 2019, p.799). Social justice approaches to health care delivery for pregnant incarcerated women emphasize issues pertaining to health care access, reproductive justice and gaps in health care outcomes.

Reproductive Justice Inside: Maryland Legislative Efforts

The State of Maryland has prioritized legislation supporting pregnant incarcerated women in recent years. In 2014, Maryland passed HB0027 “Healthy Births for Incarcerated Women Act” which prohibits the use of shackling on inmates during labor (MGA, 2014). There have been more successes through lobbying efforts of the Reproductive Justice Inside (RJI) Coalition.  In 2018, Maryland successfully passed HB787/SB629 “Correctional Facilities – Pregnant Inmates – Medical Care” which “requires all correctional facilities to develop written policies regarding medical care for pregnant inmates. This law also requires facilities to provide every inmate with a positive pregnancy test result a copy of their policies”. In 2019, Maryland passed additional legislation supporting pregnant inmates through SHB0745/SB0809: “Correctional Facilities-Restrictive Housing-Pregnant Inmates” which “prohibits the use of forced restrictive housing or medical isolation (“solitary confinement”) for pregnant individuals as well as those in the post-pregnancy recovery period for any type of correctional or detention center in the state for adults and juveniles”.

2020 was on track to be another impactful legislative year with the introduction of 10 bills supporting pregnant incarcerated individuals. However, with the COVID-19 pandemic, the Maryland General Assembly adjourned early. (RJI) drafted and led efforts on a major bill during the 2020 legislative session, (with plans for reintroduction in 2021), SB0255/HB0524-Correctional Services-Pregnant Incarcerated Individuals, which  ”requires correctional systems to offer pregnant individuals timely healthcare assessments to identify factors that may contribute to high-risk pregnancies-such as mental health and substance use and provide case management to coordinate continued health care and supports upon release in order to promote positive perinatal and infant health”.

Future Directions

Mass incarceration and the disproportionate criminalization of pregnant women with mental illness and substance use disorders infringe on the tenets of reproductive justice.  To best support incarcerated pregnant women, we must continue to take holistic approaches to advocacy that center structural approaches to change. This includes continued policy efforts supporting decriminalization, increased public health approaches, mental health advocacy and social services support, increased doula presence, and implicit bias training within substance use testing.

References:

Bronson, J., & Sufrin, C. (2019). Pregnant women in prison and jail Don’t count: Data gaps on maternal health and incarceration. Public Health Reports, 134(1), 57S-62S. doi:http://dx.doi.org/10.1177/0033354918812088

Grant, R. (2017, March 16). Abortion behind bars: terminating a pregnancy in prison can be next to impossible. Vice. https://news.vice.com/en_us/article/3kp9b5/abortion-behind-bars-terminating-a-pregnancy-in-prison-can-be-next-to-impossible

Maryland General Assembly. (2014). Legislation HB0027. http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0027?ys=2014RS&search=True

McCammon, S. (2019, June 16). Pregnant, locked up, and alone. NPR. https://www.npr.org/2019/06/16/732109546/pregnant-locked-up-and-alone

NPCM. (2020, June). Legislative Agenda 2020 Maryland General Assembly. [PDF FILE]. https://maryland.prochoiceamericaaffiliates.org/wp-content/uploads/sites/11/2020/06/2020-Current-Legislative-Agenda-022120.pdf

NPCM. (2018, June). Maryland 2018 Pro-Choice Legislative Agenda. [PDF FILE]. https://maryland.prochoiceamericaaffiliates.org/wp-content/uploads/sites/11/2020/06/2018-Legislative-Agenda-Handout.pdf

NPCM. (2019, April). 2019 Legislative Wrap-Up. [PDF FILE]. https://maryland.prochoiceamericaaffiliates.org/wp-content/uploads/sites/11/2019/04/2019-Legislative-Wrap-Up-Webinar.pdf

Reproductive Justice Inside. (2020). https://www.rjinside.org/

Sufrin, C., Beal, L., Clarke, J., Jones, R., & Mosher, W. D. (2019). Pregnancy Outcomes in US Prisons, 2016–2017. American Journal of Public Health, 109(5), 799–805. https://doi-org.proxy-um.researchport.umd.edu/10.2105/AJPH.2019.305006

The Sentencing Project. (2020, November 24). Incarcerated Women and Girls. https://www.sentencingproject.org/publications/incarcerated-women-and-girls/

Marian Geiger, Policy Research Intern, 2020

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