Academic journal article Missouri Law Review

Incarcerated Childbirth and Broader "Birth Control": Autonomy, Regulation, and the State

Academic journal article Missouri Law Review

Incarcerated Childbirth and Broader "Birth Control": Autonomy, Regulation, and the State

Article excerpt

ABSTRACT

In recent years, the scholarly literature, the journalistic press, and even pop culture have begun to grapple with the many ways in which prison life works to degrade and dehumanize female prisoners, particularly pregnant women and new mothers. These voices are drawn--quite understandably--to the worst abuses, to practices (such as the shackling of laboring women) that underscore the dichotomy between the brutality of prison life and the allegedly autonomous norms governing pregnancy and parenting in the outside world. This Article supplements--and in crucial places challenges--the narrative implicit in those depictions by, first, placing practices such as shackling in the context of the many less dramatic ways in which prison policies and norms strip autonomy from pregnant and laboring women, and, then, by exploring the substantial overlap between the restrictions placed upon incarcerated pregnant women and those faced by non-incarcerated women. The Article concludes that the constraints and indignities imposed on pregnant prisoners are an outgrowth not only of patterns of social control of prisoners but also of patterns of social control of pregnant women more generally. Like our criminal sanctions regime, these pregnancy-specific patterns of control reflect and reinforce complicated ideas about race, class, and gender, and offer important insights into our culture's values and preoccupations. Critically reading the experiences of women who are pregnant or laboring behind bars requires appreciation that their treatment stems from two distinct, though often overlapping, matrices of social control.

TABLE OF CONTENTS

INTRODUCTION
  I. INCARCERATED PREGNANCY AND IMPRISONED CHILDBIRTH
     A. The Scope of the Affected Population
     B. Prison-Based Pregnancy and Birthing Issues
        1. Establishing Pregnancy
        2. Accessing Appropriate Prenatal Care
        3. Dealing with Complications and Emergent Deliveries
        4. Autonomy and Safety During Labor
           a. The Timing and Method of Delivery
           b. Pain Relief
           c. Access to the Delivery Room
        5. The Experience After Birth
     C. The Medical and Legal Context
 II. PREGNANCY AND BIRTHING CONSTRAINTS ON NON-INCARCERATED
     WOMEN
     A. The Uneven Resort to Legal Constraint
     B. Legal Constraints on Pregnant Women Writ Large
     C. Sub-Legal Coercion: On the Limits of Autonomy in Ordinary
        Pregnancies
III. CONSTRAINT AND COERCION IN MULTIPLE CONTEXTS:
     OBSERVATIONS TOWARDS A FULLER ACCOUNT OF INCARCERATED
     CHILDBIRTH
CONCLUSION

INTRODUCTION

Criminal justice has been dominated by male defendants. The majority of persons prosecuted for crime historically have been men, and the overwhelming majority of persons jailed and incarcerated following criminal convictions have been men as well. (1) Those figures are in flux: over the past several decades, as the population of persons convicted and imprisoned has ballooned, the growth in the incarceration rate for women has outpaced that for men, (2) in part because the War on Drugs led to prosecution and incarceration for low-level drug offenders. (3) A common critique of criminal courts and prisons is that, based on these historical populations, the distinct and particular needs of women have been elided or ignored. (4) Parenting issues are one locus for such critique; while both men and women who are incarcerated are likely to be parents, (5) women are more likely to be the primary caregivers for minor children and are therefore more likely to be affected by prison policies that impact parenting. (6)

Pregnancy and childbirth are specific aspects of parenting only experienced by women. In the past decade, there have been a number of academic articles and interest-group reports that document the problems that women who are pregnant and birthing face while incarcerated, and those articles and reports have focused in particular on the practice of shackling women who are pregnant during transportation, court appearances, and, most sympathetically, labor. …

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