Maine could soon become the first state in 2015 to limit the shackling of pregnant women in prison. The bill against shackling is a priority for the Maine Alliance for Reproductive Freedom and an integral part of the ACLU of Maine‘s focus on criminal justice reform. Twenty-one other states and the District of Columbia currently have laws to limit the dangerous and inhumane practice.

If enacted, LD 1013, “An Act to Prevent the Shackling of Pregnant Prisoners,” would provide broad protection of pregnant women’s health and rights. The bill would prohibit the use of restraints on women “known to be pregnant” unless there is an “extraordinary circumstance” such as a substantial risk that a woman will try to escape or harm herself or others. Even in such extraordinary circumstances, corrections officers may not restrain a woman during labor or childbirth, may not use leg or waist restraints, and must immediately remove handcuffs at the request of medical professionals treating the pregnant woman.

The bill safeguards women’s privacy by posting officers outside the labor and delivery room and promotes women’s rights by requiring prisons to notify them about the law. It applies to all pregnant women and teenagers in prison, jail, or youth confinement.

Making the case

Courtney Fortin spent more than three months in jail in 2014, starting at 6-8 weeks of pregnancy. Each time she was taken out for medical care or to go to court, officers applied handcuffs and leg irons and then expected Fortin, whose balance was already thrown off, to climb in and out of a van or SUV without tripping. “If I had fallen in handcuffs I would not have been able to catch myself,” Fortin explained in her written testimony. “The shackles hurt my swollen ankles. It was hard to walk.”

Fortin also described the impact on her medical care: Except when an officer removed the handcuffs long enough for someone to draw her blood, she remained shackled at all of her prenatal appointments, even when a nurse asked if it was necessary to restrain her. Because an officer was always in the room, Fortin had no privacy or confidentiality.

Dr. Danielle Salhany echoed Fortin’s concerns about the hazards of shackling. Testifying on behalf of the state chapter of ACOG (American Congress of Obstetricians and Gynecologists), Salhany described the many ways that restraining pregnant women interferes with doctors’ and nurses’ ability to care for their patients, whether helping them through labor or responding to emergencies. Moreover, shackling interferes with the critical task of establishing trust and rapport. Salhany explained how uncomfortable it is for women to have gynecological exams, especially when they have been abused – as so many women in prison have been. She asked the committee to imagine the horror a woman is feeling, “in pain and chained to the bed.”

A wide range of supporters testified in favor of the bill, from women’s health and social service organizations to the Christian Civic League. In fact, the only public opposition came from criminal law and corrections officials. Gary LaPlante of the Department of Corrections said that the Department agrees that pregnant women “in labor, delivery or postpartum recovery after giving birth should not be shackled,” and contradicted advocates by saying that “this has never been an issue in Maine.” He went on to argue that the Department is in the best position to evaluate security risks and should retain discretion over the use of restraints and the supervision of women giving birth in a hospital.

To address the dispute over whether women are being shackled, the bill requires corrections officials to document each time they shackle a pregnant women, putting in writing their reasons for using restraints, and making such reports available for public inspection, without information to identify any individual woman. LaPlante resisted this requirement, saying that there are so few pregnant prisoners in the state that people would be able to figure out who they are, “an obvious invasion” of their privacy. He did not express privacy concerns about having officers in the room when women are being examined, discussing sensitive medical matters, and giving birth.

Some policymakers initially thought that the level of restraint should depend on the charges brought against women, but as Oamshri Amarasingham of the ACLU of Maine told MomsRising, “health risks aren’t different if you’re charged with a felony or a misdemeanor.” Those health risks range from injuries from tripping and falling to blood clots.

While Maine has one of the lowest incarceration rates in the United States and the number of women in prison and jail is relatively small, that number has been growing steadily for the past 15 years, in part because of a law that makes possession of any amount of an opiate  – even half of a pain tablet if not prescribed – a felony punishable by up to five years in prison. No matter how many women spend their pregnancies behind prison walls, each one should be treated safely.

The political process

After the hearing, the Committee on Criminal Justice and Public Safety voted 8-5 to approve it. While committee members agreed that pregnant women should not be shackled, they did not agree on the best approach, according to Amarasingham of the ACLU of Maine, with some members favoring administrative change within the state Department of Corrections and county correctional agencies rather than the adoption of a new statute.

This debate is certainly not unique to Maine; it has been a sticking point in Iowa and come up in other states. Advocates of the statutory approach point out that legislatures need to take action because prisons and jails have already failed to establish appropriate policies and practices; furthermore, administrative policies are often withheld from the public and can be changed without any debate or notice to the public, denying women the greater protection that legislation offers.

The compelling case for legislative involvement carried the day and the bill is now on Governor LePage’s desk. Because the governor has vetoed bill after bill this session, it is likely that he will do the same with this one. The legislature can override a veto if two-thirds of the members vote to do so.