[Note: this post and the linked materials contain graphic discussion of sexual abuse, rape, and prison genital searches.]
A Michigan women’s prison that was practicing a particularly degrading type of visual body cavity search on prisoners has agreed to stop the searches.
Earlier this month, the ACLU sent a letter to the Michigan Department of Corrections demanding that they end the practice of performing spread-labia vaginal searches at the Women’s Huron Valley Correctional Facility. During such searches, women were required to sit on a chair or table and spread their own labia for inspection by prison guards. The women were sometimes forced to undergo such inspection in view of other prisoners, and if they objected, could “be forced to submit through physical force or punished with solitary confinement.”
Our Bodies Ourselves signed on to the ACLU’s letter objecting to these practices, along with several other organizations.
Despite the invasiveness of the inspections, no apparent attention was given to hygiene or to the women’s health. From the letter:
In addition, measures to assure sanitation during these invasive searches are often incomplete or ignored entirely, resulting in women being exposed to the menstrual blood or other bodily fluids of other prisoners when they sit on the chair, including those suffering from serious communicable conditions such as HIV and hepatitis. A disposable liner for use on the chair is rarely if ever provided, and women are seldom permitted to sanitize the chair or wash their hands after the search. At least one woman has suffered a vaginal infection which she believes was contracted during a spread-labia vaginal search.
These searches were not just performed on women newly entering the facility or on those suspected of hiding contraband – they occurred every time the women had visitors, even legal representation or religious workers, and after prison work shifts or receipt of medical care. No considerations were apparently made regarding the actual seriousness of the threat if there was suspected contraband, or for individual women’s physical or psychological needs. For example:
On one occasion, four kitchen workers were subjected to spread-labia vaginal searches in full view of one another because a guard believed that some chicken might have been stolen from the kitchen. No exceptions are made for women who are menstruating, pregnant, ill, or have been sexually abused, whether prior to or during their incarceration.
The ACLU received letters from more than 60 prisoners about these searches; some of their stories have been shared online. Here and elsewhere, women have described not wanting to receive any visitors (because of the search afterward); the discomfort of being forced to touch their own genitals in front of others or of having their PTSD triggered; and feeling that they are being raped when subjected to these exams.
The Michigan Department of Corrections said it had ended the practice in December, while the ACLU said it continued to get complaints about it more recently. Last week, the ACLU confirmed that the practice has now been stopped.
Such spread-labia searches are apparently *not* the norm in prisons nationwide. Even a spokesperson for the state prison stated (emphasis added):
“Corrections officers didn’t think it was necessary, prisoners felt it was an irritant, the prison psychiatric staff thought it was a stressor and, in nearly two years, it didn’t find any contraband.”
An editorial at the Detroit Free Press called the practice “demeaning and unnecessary,” and notes that follow-up is needed to ensure compliance with the halt:
Warden Warren deserves credit for taking the initiative to investigate the policy and end it, at least officially. But given the department’s history of sexual abuse, Corrections must now take additional measures to ensure the new policy is followed, as well as review its polices on strip searches in general to determine if they are necessary and conducted in the least degrading manner possible.
Kudos to the women who wrote letters to the ACLU and to the ACLU for bringing this invasive, unnecessary, and traumatizing practice to light.
I think it’s important — because I watched some of the commentary last week — to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of healthcare, the inaffordability of healthcare, their inability to get healthcare because of preexisting conditions.
The law that’s already in place has already given 2.5 million young people healthcare that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have healthcare right now because of this law. Parents don’t have to worry about their children not being able to get healthcare because they can’t be prevented from getting healthcare as a consequence of a preexisting condition. That is part of this law.
And, as of 2014, adults would also be protected. Women could no longer be denied coverage based on pre-existing conditions such as pregnancy or domestic violence. The law would also eliminate gender rating, in which women end up paying more than men for insurance coverage.
Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to the insurance companies, and are getting preventive care because of this law.
So, that’s just the part that’s already been implemented. That doesn’t speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.
And I think it’s important, I think the American people understand and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get healthcare.
We have to wait until sometime in June to find out if Obama is right, but there’s been no shortage of guess work underway to determine 1.) whether the Supreme Court will uphold the individual mandate requiring almost every American to buy health insurance; and 2.) what will become if health care reform if it does not.
Writing in The New Yorker, Jeffrey Toobin notes that the “heavy burden” of justification for the mandate — which Justice Anthony M. Kennedy asked Donald Verrilli, the solicitor general, to address — should instead be placed on the law’s challengers.
“The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid,” writes Toobin. “The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered ‘into commerce,’ because others are likely to pay their health-care costs.”
“Acts of Congress, like the health-care law, are presumed to be constitutional,” he later adds, “and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.” Toobin then demonstrates how the justices’ questions reflected a troublesome meddling in policies set by Congress.
The Individual Mandate – A Not-So-Brief History
The individual mandate, as explained in this NPR story, has Republican roots dating back to 1989. Rachel Maddow discussed the party-line history during a recent segment, summed up as: “When Republicans proposed it — great idea, a conservative solution. When a Democrat has the idea, it’s socialism, tyranny and unconstitutional.”
Though Republicans circa 2012 would like Americans to believe the individual mandate is indeed “unprecedented,” Linda Greenhouse, who covered the Supreme Court for The New York Times for 30 years and who now writes a column on legal issues, applies the description to the politics of this debate:
What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. Republican officeholders in all 26 states joined together in the case now known as United States Department of Health and Human Services v. State of Florida. In 22 of those states, the officeholder was the attorney general. In four states with Democratic attorneys general (Nevada, Wyoming, Iowa and Mississippi), Republican governors filed in their own names. If any of them noted any irony in the fact that not so long ago, the individual mandate was an idea cooked up by conservative policy wonks to counter more fundamental reform sought by the Clinton administration, they offer no sign.
The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. Social Security, Medicare, the Employee Retirement Income Security Act (Erisa), and the Emergency Medical Treatment and Labor Act, the 1986 law passed to prevent hospitals from refusing to care for uninsured patients in acute distress, all come to mind. (From the perspective of today’s toxic politics, it’s a miracle that any of these laws actually got passed, but that’s a separate issue.) So there must be some problem with the Affordable Care Act other than “never before.”
There are other federal mandates involving health care already on the books, including the Medicare payroll tax on workers and employers, and the 1996 Newborns’ and Mothers’ Health Protection Act, which requires plans offering maternity coverage to pay for at least a 48-hour hospital stay (96 hours following a c-section).
Isn’t It Ironic (Don’t You Think)
Some Republicans who can’t help but fly into an apoplectic rage upon hearing the term “mandate” in the context of health care reform remain surprisingly calm when mandating medical procedures for women.
Yes, I’m referring to government-mandated ultrasounds. Currently, seven states — most recently Virginia — mandate that an abortion provider perform an ultrasound on a woman seeking to have an abortion. These states, along with more than a dozen others, also require the provider to ask the woman if she’d like to view the image.
The Guttmacher Institute notes: “Since routine ultrasound is not considered medically necessary as a component of first-trimester abortion, the requirements appear to be a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion. Moreover, an ultrasound can add significantly to the cost of the procedure.”
The Road Ahead
The question of whether other parts of the Affordable Care Act can proceed without the individual mandate will continue to be debated until June. If the mandate alone is struck, insurance premiums would likely increase because insurance companies won’t have the built-in benefit of a broader insurance pool.
“Republicans would blame Obama for making health insurance more expensive. Democrats would blame insurers for the higher premiums. In other words: Déjà vu and total gridlock,” writes Jennifer Haberkorn of Politico. Her story explains what’s likely to happen if the Supreme Court strikes just the mandate, or the mandate and insurance reforms, along with the political fall-out if most of the law falls or is upheld.
Josh Gerstein, also of Politico, looks at the effects beyond health care reform: “If the justices knock out key parts of the law or bring down the whole thing, the reverberations could be felt across the legal landscape for generations to come, radically reining in the scope of federal power, according to supporters of the law and others who closely track the high court. And if the justices decide the individual mandate is a constitutional overreach, these observers say, federal labor and environmental laws could be the next on the firing line.”
If you think that seems too dire a prediction, consider Dahlia Lithwick’s reaction to comments made by the court’s conservative justice’s last week: “[A]s the justices pondered whether the individual mandate—that part of the Affordable Care Act that requires most Americans to purchase health insurance or pay a penalty—is constitutional, we got a window into the freedom some of the justices long for. And it is a dark, dark place.”
Those who would welcome the disintegration of health care reform include The Cato Institute’s Michael Cannon. He told NPR that if the entire law were to go away, “we would have just dodged this whole nasty debate over religious freedom and abortion.”
Meaning: There would be no increased access to preventive health care such as contraception, breastfeeding support, and screening for breast and cervical cancers and HIV. But hey, women’s health is so darn offensive when you get down to it, better to just cast it off. Thanks, but we’ve been there.
On the other hand, maybe a defeat at the hands of the Supreme Court will open new doors, for everyone.
The Supreme Court ruled 5-4 on Tuesday that state government workers may not sue their employers for money for violating a part of the federal Family and Medical Leave Act dealing with personal sick leave.
The case was brought by Daniel Coleman, a Maryland state court employee who was fired after requesting a 10-day medical leave. The state argued that federal law could not be applied because states, as sovereigns, are generally immune from lawsuits seeking monetary damages.
The Family and Medical Leave Act of 1993 entitles eligible employees 12 weeks of job-secured leave during any 12-month period for: (A) the birth of a child and to care for the newborn child within one year of birth; (B) the adoption or foster care of a child and to care for the newly placed child within one year of placement; (C) care for a spouse, child, or parent with a serious health condition; (D) a serious health condition that makes the employee unable to perform the functions of the position.
The case hinged on whether the sick-leave provision addressed gender bias. Justice Anthony Kennedy, who wrote the majority opinion, said it did not. He was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas. Justice Antonin Scalia agreed with the judgment but did not join Kennedy’s opinion, excerpted below:
Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs. The legislative history of the self-care provision reveals a concern for the economic burdens on the employee and the employee’s family resulting from illness-related job loss and a concern for discrimination on the basis of illness, not sex. [...] It is true the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses; but as a remedy, the provision is not congruent and proportional to any identified constitutional violations.
So since they found no evidence of discrimination or sex stereotyping, the majority found no reason to lift the usual protections against suing a state.
Justice Ruth Bader Ginsburg wrote the dissenting opinion and was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. From the dissent:
The FMLA’s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee—without singling out women or pregnancy—that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.
It goes on to provide an interesting history of the development of the FMLA.
“The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determined, was not to order leaves for women only, for that would deter employers from hiring them,” said Ginsburg, who took the unusual step of summarizing the dissent from the bench, signaling a major disagreement. “Instead, Congress adopted leave polices from which all could benefit.”
Justice Ginsburg noted that “[t]he plurality pays scant attention to the overarching aim of the FMLA: to make it feasible for women to work while sustaining family life. Over the course of eight years, Congress considered the problem of workplace discrimination against women, and devised the FMLA to reduce sex-based inequalities in leave programs. The self-care provision is a key part of that endeavor, and in my view, a valid exercise of congressional power….”
Even Justice Kennedy’s opinion acknowledged that “[d]ocumented discrimination against women in the general workplace is a persistent, unfortunate reality, and, we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women.”
Today’s ruling underscores how tenuous the rights of workers are in this country, and the urgent imperative for the Senate to confirm only those justices and judges who have a demonstrated commitment to equal rights under the law and a real understanding of the impact of their rulings on women, workers and others who struggle to make ends meet.
Plus: Earlier this year, Judith Lichtman, a National Partnership for Women and Families senior advisor, presented seven specific recommendations to the U.S. Equal Employment Opportunity Commission (EEOC) on what federal agencies can do in response to discrimination based on pregnancy and caregiving. View her full testimony (pdf).
The American Civil Liberties Union has launched the “Take Back Our Genes” campaign to fight against issuing patents issued human genes. The ACLU believes that allowing one company to own the patent for a particular gene limits research on genetic health conditions and also limits patient options for genetic testing.
As the organization explains:
Myriad Genetics, which controls the patents on the genes, is able to exclude others from testing and conducting research on the patented genes. Patients who want to obtain genetic testing to determine whether they are at risk for hereditary breast and ovarian cancer have only one option for full genetic sequencing: Myriad Genetics. Myriad decides what tests are offered, which mutations are included, at what cost, and what research can be conducted without fear of patent infringement liability.
The ACLU is asking individuals to send their photos or videos explaining their opposition to gene patenting. The video below provides a great example of how gene patenting can affect patients and their access to affordable, reliable testing.
Our Bodies Ourselves is one plaintiff in the lawsuit filed by the ACLU and the Public Patent Foundation against the U.S. Patent and Trademark Office, Myriad Genetics, and the University of Utah Research Foundation to challenge the patents they hold on BRCA1 and BRCA2 genes.
Yesterday, the House passed HR 358, the “Protect Life Act” which would interfere with women’s ability to choose and pay for their own health insurance plans with abortion coverage. As so clearly outlined in the dissent from the House Energy and Commerce Committee:
…this bill clearly goes further than the regulation of federal funds. Its effect would be to harass and intimidate women and their families in their use of their own money. It makes the job of private insurance companies so artificially complicated and unworkable as to force them from the market. It takes anti-abortion politics far beyond where they have been for the decades of the Hyde Amendment and to put them right in the middle of private homes and workplaces and squarely in private citizens’ paychecks and premiums. Its very essence is to create an undue burden on how people can exercise their own choices with their own money, and it creates a substantial obstacle to a woman seeking abortion services.
…For those members of Congress who have regularly said that they are opposed to federal funding of abortion, this bill is absolutely unnecessary.
President Obama has vowed to veto the bill, stating, “…the legislation intrudes on women’s reproductive freedom and access to health care and unnecessarily restricts the private insurance choices that women and their families have today.”
The Rachel Maddow Show had a nice piece on this last night which called out the Republicans for focusing on an ongoing war against women’s rights instead of focusing on the current unemployment situation. It includes another impassioned speech from Jackie Speier, who spoke so strongly against the bill earlier in the year. Speier also appears as a guest on the show in this clip.
Indiana Governor Mitch Daniels (R) recently signed a bill into law that would prevent any clinics that also provide abortions from receiving Medicaid funds for non-abortion services such as family planning.
In response, the federal Department of Health and Human Services sent state officials a letter stating that “Medicaid programs may not exclude qualified health care providers from providing services that are funded under the program because of a provider’s scope of practice.” In other words, states can’t refuse to let a clinic take Medicaid money for birth control and cancer screenings just because they also provide abortions – the law is intended to give patients a free choice of providers.
There is a nice summary of the arguments in the Women’s Health Policy Report, along with a link to a Slate piece that provides additional background and criticism of this and related efforts. The case may have implications in other states where similar “defund Planned Parenthood” measures are being debated.
Last week, Vermont Governor Peter Shumlin signed into law a bill requiring that any health insurance and health benefit plans that provide maternity benefits (including Medicaid and public health care assistance plans) must provide coverage for midwifery services in hospitals, other health care facilities, and at home.
As I read the legislation, it includes coverage for both certified professional midwives and certified nurse-midwives.
The Governor remarked, “Access to midwifery care and home birth should not be limited only to those who can afford those services out of pocket. This law will ensure that all expectant mothers get the coverage and care they want and deserve.”
The legislation establishes a maternal mortality review board made up of an obstetrician, maternal-fetal medicine specialist, neonatologist, CNM, CPM, and other relevant specialists, along with a member of the public. This board will review maternal deaths in Vermont for factors associated with the deaths, and will make recommendations for systemic changes and legislation to address those factors.
Although it seems to have received less media attention, the law also includes a provision to allow transgender individuals to acquire new birth certificates reflecting their gender rather than the one assigned at birth. This will require a doctor’s note submitted to a court “stating that the individual has undergone surgical, hormonal, or other treatment appropriate for that individual for the purpose of gender transition.”
This reportedly makes Vermont the only state with a law that explicitly specifies that surgery is not required in order to obtain a new birth certificate. The law also provides that the original birth certificates will not be available for public inspection in order to protect individual privacy.
In 2008, we wrote about the treatment of Juana Viilegas, who was shackled to a hospital bed during labor and after delivery, and denied access to her newborn or a breast pump in the days immediately after the birth.
Villegas was nine months pregnant and leaving a prenatal clinic with her three children when she was stopped by police. She did not have a driver’s license or auto insurance; Tennessee has recently made it much more difficult for immigrants to obtain driver’s licenses. Because of her immigration status, although authorities had the option to simply issue a citation, Villegas was held in jail. When she went into labor, she was taken to the hospital, kept under guard with no privacy or ability to make a phone call, and shackled to the hospital bed during labor. Even requests by nursing staff that she be unshackled for personal care were denied by the guards assigned to her.
This week, a federal judge has now ruled in favor of Villegas in a civil rights case against the Metropolitan Government of Davidson County/Nashville, Davidson County Sheriff’s Office, and police officers involved in the case.
According to the local newspaper, The Tennessean:
In his decision Wednesday, Haynes wrote that Villegas was “neither a risk of flight nor a danger to anyone,” citing medical testimony. The judge concluded that shackling Villegas during the final stages of her labor and her post-partum recovery violated her civil rights.
One reference in the judge’s decision is an ACOG statement that “The practice of shackling an incarcerated woman in labor may not only compromise her health care but is demeaning and unnecessary.” Some states have banned the practice of shackling during labor, and following the Villegas incident the Sheriff of Davidson County announced that inmates at any stage of pregnancy, labor or delivery would no longer will be restrained except in rare circumstances when there is a credible threat of escape.
For much more background information and detail from the time of the 2008 incident, see our previous post. Colorlines has also covered the updated story.
The full decision is a fascinating and complex read, but is not freely available online; if you have access to a resource like Lexis-Nexis, see Juana Villegas, Plaintiff, v. Metropolitan Government of Davidson County/Nashville Davidson County Sheriff’s Office, et al., Defendants. If we have any law student or lawyer readers, I’d love to hear your take on the full decision in the comments.
They also report: “At least 20 states have passed laws that require doctors either to offer women ultrasounds or to perform one. Seven others are now considering bills that would mandate the ultrasound.”
I noticed a couple of additional proposals beyond those mentioned in the NPR piece, such as Idaho’s ban on abortions after 20 weeks, a move that hardly seems necessary. The recent 2007 CDC abortion surveillance data indicates a tiny number of Idaho abortions (only between 1 and 4 of them) took place after 20 weeks. Other bills in various states, however, may have a broader impact on women’s ability to access abortion procedures.
Meanwhile, I just stumbled across the 2011 model legislation from Americans United for Life. I’m not going to link to it, but it provides pre-written anti-choice legislation language ready for state legislators to insert the names of their states and file. I’m not aware of anything similar from the pro-choice, pro-reproductive justice camp, but we should have a tool like this. Anybody aware of one?
Last month, the U.S. Department of Justice announced the formation of the Violence Against Women Federal and Tribal Prosecution Task Force to address the staggering rates of violence against American Indian women. The Justice Department estimates that 1 in 3 American Indian women will be raped in her lifetime, and most victims who do report their assaults describe their attackers as non-Native.
The task force is composed of six assistant U.S. Attorneys and six tribal attorneys, along with other DOJ, health care and law enforcement officials. Within a year of convening, the task force is expected to:
[...] produce a trial practice manual on the federal prosecution of violence against women offenses in Indian Country. In the short term, the Task Force will explore current issues raised by professionals in the field, and recommend “best practices” in prosecution strategies involving domestic violence, sexual assault and stalking.
While this issue certainly deserves attention, I can’t help but be cautious about a Justice Department-led approach. The U.S. government doesn’t have a good track record when it comes to violence and Native Americans. Part of the problem stems from issues of jurisdiction. In 2007, Amnesty International released a report (more here) that outlined the various barriers to justice that these women face, noting: “The United States government has created a complex maze of tribal, state and federal jurisdictions that often allows perpetrators to rape with impunity — and in some cases effectively creates jurisdictional vacuums that encourage assaults.”
INCITE! provides this toolkit, Police Violence Against Native Women and Native Trans & Two Spirit People, which outlines history and current problems of law enforcement and military violence against American Indian women. As the organization makes clear, decreasing and preventing violence against American Indian women is not simply a matter of increasing law enforcement:
Native women and Native Two Spirit, transgender, and gender nonconforming people are subjected to gender-specific forms of law enforcement violence, such as racial profiling, physical abuse, sexual harassment and abuse, and failure to respond or abusive responses to reports of violence.
We hope the DOJ effort will represent, as one task force member suggested, “the Obama administration’s willingness to take seriously the crimes of rape and domestic violence against Native American women,” and that genuine safety improvements for American Indian women take place.
This issue has been in the Canadian news recently as well. According to the Abbostford News, a British Columbia newspaper, “The Native Women’s Association of Canada reports that 582 indigenous women and girls have disappeared or were murdered over the last five years.” The Canadian government has recently provided $2 million to the NWAC for an initiative to “help communities understand, prevent and respond to violence against aboriginal women and girls.”
See resources linked from our previousposts for additional background reading on this topic.
The news today was celebratory, but the battle over Proposition 8 is far from over. From The New York Times:
Saying that it discriminates against gay men and women, a federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions at least a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.
Wednesday’s decision is just the latest chapter in what is expected to be a long battle over the ban — Proposition 8, which was passed in 2008 with 52 percent of the vote. Indeed, while striking down Proposition 8, the decision will not immediately lead to any new same-sex marriages being performed in California. Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, immediately stayed his own decision, pending appeals by proponents of Proposition 8, who seem confident that higher courts would be less accommodating than Judge Walker.
But on Wednesday the winds seemed to be at the back of those who feel that marriage is not, as the voters of California and many other states have said, solely the province of a man and a woman.
“Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” wrote Judge Walker. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.
Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
* NYT editorial: “The decision [...] is a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults.
“As the case heads toward appeals at the circuit level and probably the Supreme Court, Judge Walker’s opinion will provide a firm legal foundation that will be difficult for appellate judges to assail.”
The image of pregnant women heading to the delivery room with handcuffs, leg shackles and belly chains is almost inconceivable. Yet as we have documented here before, it has been common practice in the United States prison system for decades and is still legal (and commonly practiced) in all but 10 states.
Efforts against shackling, led by a coalition that includes the ACLU and The Rebecca Project, have gained significant ground recently. Colorado, West Virginia, Washington state and Pennsylvania passed laws in 2010 banning the practice.
And the American Medical Association (AMA) voted in June to develop model legislation states can use to pass their own anti-shackling laws. The AMA resolution condemned the practice, calling it “barbaric” and “medically hazardous.”
In fact, more than 20 lawsuits have been filed by women against the Cook County sheriff’s office since 2008, even though Illinois became the first state to ban the practice in 1999. The lawsuits were granted class-action status last month; attorneys told Hsu that there ultimately could be up to 150 women included in the case.
From the Tribune:
Latiana Walton went through most of her labor at Stroger Hospital with an arm and leg chained to her bed, she remembers.
As contractions surged through her body, she could not move or change position to relieve the pain. A Cook County correctional officer repeatedly refused to remove the restraints, she said, even when a doctor objected, saying that he was unable to administer an epidural.
“I actually said to the guard, ‘Where am I going?’ I’m crying. I’m in pain,” recalled Walton, 26. “‘I’m not going to get up and run out of the hospital.’”
On Aug. 27, 2008, Walton, who had been arrested after she missed a court date on a retail theft charge, became one of an estimated 50 women who give birth every year while in the custody of the Cook County Jail. [...]
In Walton’s case, she did not get an epidural and the guard agreed to remove the leg shackle only 10 minutes before she gave birth to her son, Darrion, she said. The handcuff remained on through the delivery, and the leg shackle was replaced immediately after the birth, she said.
“I couldn’t push the placenta out because I couldn’t position my legs,” Walton said. “It is not fair to treat a person like this. I did a crime … but I’m not willing to be treated like a dog. I was treated like I wasn’t human.”
Almost all of the women are low-level, non-violent offenders — their crimes include drug possession and forged checks. Yet the Cook County Sheriff’s office believes it is following the law in these cases:
A pregnant woman can be restrained, according to the policy, until a medical official confirms that she is, in fact, in labor. “When does ‘labor’ begin? Our officers aren’t trained to know, the state law doesn’t say, so we rely on medical personnel to advise us,” Steve Patterson, a spokesman for the sheriff’s office, wrote in an e-mail. “Once a medical person advises us someone is in labor, restraints of whatever sort are removed.”
But the plaintiffs’ attorney argues that restraints were, in his clients’ cases, removed too late or not at all. He contends that sheriff’s officials interpret “labor” as the moments immediately before birth, and that guards sometimes deny requests by doctors and nurses to remove the handcuffs and shackles. “When you talk to these women, they say, ‘Yeah, when I’m delivering and I’m pushing, that’s what they consider labor,’” said plaintiffs’ attorney Thomas G. Morrissey. “They remain in shackles and handcuffs until the baby is about to be delivered.”
The ignorance and stupidity on the part of the sheriff’s department is mind-boggling. Besides the harm and humiliation of the shackles, some women also had to put up with a stranger’s presence at one of the most intense and intimate moments:
Melissa Hall, 32, held on a drug possession charge, said that not only did she give birth in shackles in 2007 but, all through her labor, the guard sat next to her bed watching the NBA Finals, cheering and yelling at the television despite her repeated pleas that he leave.
“My legs were open, and my baby’s head was crowning,” she recalled. “And that’s when he walks out of the room.”
State law requires that a correctional officer be posted outside the delivery room. The policy of the sheriff’s office, according to Patterson, states that “an officer (preferably female) must provide security for the subject and be posted discreetly near the head of subject’s bed.” He contends that this policy does not violate the law because the law “does not say anywhere that an officer cannot be in the room.”
While the focus is on Illinois because of the class action lawsuit, it is equally disturbing that the policies of other states, including the 40 that do not ban shackling, are not widely known.
NPR interviewed Ginette Ferszt, associate professor and psychiatric clinical nurse specialist at the University of Rhode Island College of Nursing, who sent questionnaires to wardens in all 50 states about how they treat pregnant inmates. She received 19 replies.
Ferszt says she was quite surprised to find that two facilities continue to use leg irons, belly chains and handcuffs during transport to prenatal visits.
She also learned that among the 19 prisons that responded, six of them cuff either a woman’s hands or her ankle when labor begins. During the delivery of the baby, one prison says that handcuffs stay on, and four reported back that an ankle shackle remains on.
While disturbed by the findings, Ferszt did find hope in conversations with two wardens, when she realized their shackling policies weren’t something they’d thought much about.
“For many rules and policies whether for women or men, they’ve existed for them a long time,” Ferszt says. “It hadn’t really occurred to these two wardens that this could potentially be a health problem, a health issue.”
She says the two wardens have since said they’ll sit down and make changes.
Despite the arrogant rationalizations and depressing ignorance of the responses from the powers-that-be, one inspiring story comes from some of the first inmates who spoke out about the abuse. Their age-old strategy: female solidarity. Again from the Trib:
In Illinois, the first movement against shackling came in 1999, after a former inmate named Warnice Robinson testified before a group of female legislators, explaining how, while pregnant and imprisoned for shoplifting, she had been shackled to a hospital bed through seven hours of labor. “The women legislators kind of expressed disbelief because it was so horrifying,” recalled Gail Smith, director of Chicago Legal Advocacy for Incarcerated Mothers, who had helped organize the day’s testimony. “There was a minor disruption, because the women who had been formerly incarcerated started shouting, ‘Believe her!’”
Washington state Gov. Chris Gregoire last week signed into law a bill [PDF] that forbids the routine shackling of pregnant women in and after labor, making it one of a handful of states that ban the practice.
The law, which takes effect June 10, states that no restraints of any kind may be used on a pregnant woman during transporation to and from medical visits or court proceedings during the third trimester of pregnancy or during postpartum recovery. It also stipulates that “no restraints of any kinds may be used” during labor or childbirth.
Exceptions of “extraordinary circumstances” during transportation are permitted; these exceptions are defined as necessary to prevent the woman from escaping, or from injuring herself or others, and for hospital use of medical restraints for patient/provider safety. In these cases, restraints are required to be the least restrictive available, and leg irons or waist chains are not allowed under any circumstances.
The law also forbids correctional personnel from being present in the room during labor and birth and places the power to remove restraints in the hands of doctors, nurses and other healthcare personnel over that of the correctional officers.
According to the Seattle Times, the state’s Department of Corrections and prisons already had policies banning restraint during labor and delivery, but the legislation adds restrictions regarding restraining women post-delivery. The Times also describes a court case involving a complaint about the 2007 shackling of a woman during labor and for three days following delivery. Legal Voice provides additional detail on that case.
Amnesty International provides further information about the status of shackling policies and laws throughout the United States. One update to the AI report: In 2009, New York Gov. David Paterson signed into law a bill banning the shackling of incarcerated women before and after they give birth while in custody.
Democratic leaders say a bill will pass this week. House Minority Leader John A. Boehner (R-Ohio) pledges obstruction, saying Republicans will do “everything we can to make it difficult for them, if not impossible, to pass the bill.”
Too Many Tests, Too Much Treatment: “A spate of recent reports suggests that many Americans are being overtreated. Maybe even President Barack Obama, champion of an overhaul and cost-cutting of the health care system,” reports Lindsey Tanner of the Associated Press.
“More care is not necessarily better care,” wrote cardiologist Dr. Rita Redberg, editor of Archives of Internal Medicine, commenting on Obama’srecent physical, which included prostate cancer screening and a virtual colonoscopy. The PSA isn’t recommended at any age and a colonoscopyisn’t recommended under age 50.
Over-testing may be due to a combination of what is known as “defensive medicine” — doctors ordering tests and procedures because they’re trying protect themselves against lawsuits (or because they’ll be compensated by a fee-for-service system) — and patients insisting on tests and treatments that they’ve heard about or know is commonly prescribed. But the thinking around more care = better care may be shifting.
“This week alone,” writes Tanner, “a New England Journal of Medicine study suggested that too many patients are getting angiograms – invasive imaging tests for heart disease — who don’t really need them; and specialists convened by the National Institutes of Health said doctors are too often demanding repeat cesarean deliveries for pregnant women after a first C-section.”
First, colleges can eliminate the “miscommunication” excuse that many rapists use by creating an on-campus standard that requires any party to a sexual interaction to make sure their partner is actively enthusiastic about what’s happening — not just not objecting. They can create judicial boards equipped to seriously investigate rape accusations, instead of throwing their hands up at the first sign that the accused’s testimony contradicts the accuser’s. They can defend the safety of the entire campus by permanently expelling those found guilty of sexual assault. And they can be transparent about every step of the process.
Plus: Rachel previously noted that the National Library of Medicine is featuring an exhibition on African American midwives. ”Nothing To Work With But Cleanliness: African American ‘Grannies,’ Midwives & Health Reform” tells the story of “granny” midwives and the state and local training programs that educated them and succeeding generations of midwives. View a wonderful set of photos from the exhibition on Flickr.
Utah’s Controversial Law Charges Women and Girls With Murder for Miscarriages: Writing at AlterNet, Rose Aguilar breaks down the problems with Utah’s new law that makes it a criminal offense for having miscarriages caused by “intentional or knowing” acts.
“What happens to women who are in abusive relationships?” asks Planned Parenthood’s Melissa Bird. “What happens if a woman threatens to leave the abuser, falls down the stairs and loses the baby? What if the abuser beats the woman and causes a miscarriage? Could he turn her in? Who would the prosecutor believe? What happens if a drug addict who’s trying to get clean loses her baby? Will she be brought up on murder charges?”
Some critics point out the legislators erred in not considering the lack of access that young people have to comprehensive sex education, and the overall lack of contraception and health services, especially in remote parts of the state.
The Girls Who Kicked in Rock’s Door: Not exactly health related (unless you’re like me and consider loud music essential for well-being), but I am completely intrigued by the “The Runaways,” the new film about the 1970s all-girl rock band, starring Dakota Fanning and Kristen Stewart. Sia Michel writes about the story behind the film and its director, Floria Sigismondi.
“I did what I thought was needed to be done to protect the children,” said Roeder. “I shot him.”
Roeder said he was not remorseful. After the killing, which took place in Tiller’s church, Roeder said he felt “a sense of relief.”
Roeder was also found guilty of two counts of aggravated assault. Sentencing is set for March 9. District Attorney Nola Foulston said she would be requesting the “Hard 50,” meaning Roeder would not be eligible for parole for 50 years.
Jeanne Tiller, George Tiller’s widow, and the Tiller family, released this statement:
“The family of Dr. George Tiller would like to thank the jury, District Attorney Nola Foulston and her office and law enforcement for their service in this difficult matter. Once again, a Sedgwick County jury has reached a just verdict. We also want to thank George’s countless friends and supporters in Wichita and around the country who have offered their comfort.
“At this time we hope that George can be remembered for his legacy of service to women, the help he provided for those who needed it and the love and happiness he provided us as a husband, father and grandfather.”
Nancy Keenan, president of NARAL Pro-Choice America, issued the following statement in response to the conviction:
“The jury examined the facts of this case and rightfully convicted Scott Roeder for the brutal murder of Dr. George Tiller inside his church in Kansas. Our thoughts are with Dr. Tiller’s family and friends. Even though this conviction brings a murderer to justice, it won’t replace the husband, father, and grandfather they lost last May. Dr. Tiller was a tireless advocate for reproductive health who called on us to ‘trust women’ to make the personal, private decisions that are best for them and their families. We will continue to honor his legacy of compassion and resolve.
“We also call on opponents of a woman’s right to choose to end the practice of inflammatory rhetoric and tactics that inspire this kind of violent action from the most extreme factions of the anti-choice movement. No other abortion provider’s family should have to endure the tragedy of seeing their loved one killed for providing an essential and legal health service to women.”