Shackling Pregnant Women in Louisiana Prisons: Part 1
If you can, imagine the many healthcare needs women have based purely on their biology. In our lifetime as women, we deal with menstrual cycles, many of will encounter pregnancy and birth, then later menopause, and so on. We reach stages in our lives where we are need to have gynecological check-ups, mammograms and pap smears. These are not rare or extreme situations; these are average health care experiences that come with being a woman. Moreover, these needs do not change once a woman is incarcerated. The difference is that incarcerated women depend on the state to provide them with the adequate health care and the state is not only responsible for, but is required to fulfill those needs.
Late last year, I began my work with Lift Louisiana as a legal research associate to conduct research and analyze policies related to healthcare access for incarcerated women, including the use of restraints (or shackles) on pregnant inmates.
In 2012, the Louisiana Legislature enacted what is now known as the Safe Pregnancy for Incarcerated Women Act. This Louisiana statute prohibits the use of restraints on a pregnant prisoner during labor and delivery. However, the statute limits this prohibition by allowing members of the medical staff to order therapeutic restraints for a prisoner, due to a psychiatric or medical issue, or if she creates a danger to herself or others. The statute also presents grounds for when restraints may be used such as, if the pregnant inmate is presenting a serious threat to herself and others or is a substantial flight risk. The statute does provide some discretion by the doctor, nurse, or other health professional treating the woman if he/she believes the restraints should be removed for health and safety purposes, but this is trumped when a compelling ground for the use of restraints is present. Despite the numerous limitations of the statute and a lack of clarity in how it should be implemented, it does call for a complete ban of the use of waist restraints on pregnant inmates.
As a direct result of this legislation, the Louisiana Department of Corrections (DOC) changed their previous policy on restraints to coincide with the present law. Per current DOC policy, restraints shall never be used during labor and delivery. That is the only period which the policy states that restraints are prohibited. In relation to transportation to the medical facility, there is no direct language stating whether or not restraints will be used. According to DOC policy, after labor and delivery, restraints are to be applied. What is notable is that DOC policy is rather vague and does not nearly reach the level of detail included in the Louisiana.
How is the policy different from previous policy on use of restraints?
Per previous DOC policy, the use of restraints was allowed on pregnant inmates with no relation to the manner that is “least restrictive.” For example, the previous policy stated that only handcuffs would be used on inmates that were “visibly pregnant” and if the inmate was not “visibly pregnant” waist chains could also be employed. The policy did not define the term “visibly pregnant,” leaving medical providers and corrections officers and staff to employ a completely subjective measurement. Fortunately, the “visibly pregnant” language has been stricken from the new DOC policy and replaced with “reasonably known that they are pregnant.” The current policy still allows for the restraints to be used on pregnant inmates, outside of labor and medical emergencies, in the “least restrictive manner.”
That Louisiana even has a law in place that aims to protect pregnant incarcerated women is an accomplishment for the state. Only about 23 states and the District of Columbia have laws that in some way prohibit the use of restraints on pregnant inmates.
Of course, the policy is only as good as its implementation and there are still unanswered questions about how the policy is enforced and whether women are benefiting from the protections outlined in the law.
For example, it is unclear what determines when the “pregnant inmate presents a serious threat to herself and others or a substantial flight risk...” Such arbitrary language could easily be used to restrain a woman that is in no way a threat. Further who gets to make this determination; the prison operator on hand or the medical provider present? Lift Louisiana has requested the records that would provide the more information about the when, how and why use of restraints have been employed since the law changed and policies were updated.
Correctional policies and procedures were designed to ensure safety and security for staff and inmates in a predominately male setting. Unfortunately, the female population in prisons and jails is steadily growing. In Louisiana, there are currently about 214,000 women in the state prison system. As with many other institutions, prisons require women to exist in a place that was not created with their interests in mind and is thus not meeting the needs of the female population, including the health care needs. As the conversation about prison reform grows, it is imperative that it include changes in policies and procedures ensure these facilities are meeting the needs of incarcerated women and in turn do not punish inmates. Lift is committed to increasing awareness about the experiences female inmates have in these facilities and advocating for changes in policy necessary to ensure preserve their dignity and protect their access to health care.
 La. Rev. Stat. Ann. § 15:744. (LexisNexis, Lexis Advance through 2016 Regular Session and First and Second Extraordinary Session Legislation. Changes and corrections from the Louisiana State Law Institute are in process) Therapeutic restraint does not include metal handcuffs or shackles.
 La. Rev. Stat. Ann. § 15:744.2 (LexisNexis, Lexis Advance through 2016 Regular Session and First and Second Extraordinary Session Legislation. Changes and corrections from the Louisiana State Law Institute are in process)
Torrie Thibodeaux, a native of Louisiana, is currently a third year law student at Louisiana State University’s Paul M Hebert Law Center.