Skip navigation

Parker Journal of Law and Health Pregnant Women Inmates Article 2005

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.


I. INTRODUCTION .................................................................... 260
INMATES .............................................................................. 261
A. Women Incarcerated Today......................................... 261
B. Health Care Challenges for Pregnant
Inmates......................................................................... 263
1. Medical Needs of All Women
Inmates ................................................................. 263
2. Specific Needs of Pregnant Inmates..................... 264
C. Quality of Treatment Provided to Pregnant
Inmates......................................................................... 267
DELIBERATE INDIFFERENCE ................................................. 269
A. The Deliberate Indifference Standard and
Establishing Its Violation ............................................ 271
B. Application of the Deliberate Indifference
Standard to Cases Concerning the Medical
Treatment of Women Inmates ...................................... 274
PREGNANT INMATES ............................................................ 278
A. Class Action Litigation as a Tool for
Improving Medical Treatment for
Pregnant Inmates......................................................... 279
1. Notable Settlement Agreements
Before the Prison Litigation Reform Act
Passage and Their Efficacy .................................. 280
2. The Prison Litigation Reform Act and
Implications for Litigation by Pregnant
Inmates ................................................................. 282

J.D. 2005, University of Idaho College of Law; law clerk, Fourth Judicial District, State
of Idaho, 2005-2006. I would like to thank Noelle Fearn, Ph.D., at Washington State
University for her suggestions regarding the development of this article. I also thank my
husband for his support and encouragement.



[Vol. 19:259

3. Settlement Agreements Post– Prison
Litigation Reform Act:
Laube v. Campbell .................................................. 284
B. Proactive Change: Avoiding Litigation
Through Legislative Action.......................................... 287
C. Innovative Programs for Pregnant
Inmates......................................................................... 289
1. Programs Serving Pregnant Inmates
Within Correctional Facilities .............................. 290
2. Programs Serving Pregnant Inmates
Through Alternatives to Incarceration.................. 292
V. CONCLUSION........................................................................ 293
Pregnant women incarcerated at the time of our nation’s founding faced the
prospect of giving birth in their cells alone and a considerable likelihood that their
infants would die.2 This is somewhat unsurprising. At this time infant mortality
rates were high.3 Given the pace of advances in the treatment of pregnant women
since that time, one might expect that the experience of pregnant women incarcerated
in today’s correctional facilities4 would have improved as it has for their peers on the
outside. That, however, would be an unrealistic assumption. In addition to facing
decidedly substandard environments in some facilities—inappropriate
accommodations, widespread exposure to disease and unsanitary conditions, among
other challenges—pregnant women sometimes still risk the possibility of giving birth
without assistance. Such was the case of Louwanna Yeager. Ms. Yeager, upon
going into labor in May 1987, was informed by guards that she would “have to wait”
because no medical staff members were available to help her.5 The birthing process

Nicole Hahn Rafter, Equality or Difference?, FEMALE OFFENDERS: MEETING THE NEEDS
8 (James L. Gondles, ed., 1993) [hereinafter Rafter, Equality or
Difference]. An eighteenth century physician contended that a healthy woman could give birth
without help and would unlikely face adverse consequences. LAUREN THATCHER ULRICH, A
MIDWIFE’S TALE 170 (1990) [hereinafter Ulrich]. This fact disregards that birth, while
concededly a “natural process,” is still nevertheless one that is “uncomfortable and
frightening.” New England women described by Ulrich generally feared facing childbirth
alone. Id. Whatever the case, “[h]aving medical assistance immediately preceding and during
a birth is, in today’s society, taken for granted.” Doe v. Gustavus, 294 F.Supp.2d 1003, 1008
(E.D. Wis. 2003).


In New England communities evaluated by Ulrich, stillbirth rates per 100 live births
ranged from 1.8 to 3.3. ULRICH, supra note 2, at 174.

For the purposes of this article, “correctional facilities” includes prisons and jails unless
otherwise specified. Jail inmates may be pretrial detainees or convicted individuals with
sentences of less than a year. Prisons house those individuals with longer sentences.

Ellen M. Barry, Pregnant Prisoners, 12 HARV. WOMEN’S L.J. 189, 189 (1989)
[hereinafter Barry, Pregnant Prisoners].




is not one amenable to being put on hold and, as such, Ms. Yeager gave birth three
hours later “on a thin mat outside of the door of the clinic in the jail.”6
Ms. Yeager’s horrifying experience and those of her peers at the Kern County
Jail led to a lawsuit that changed conditions for pregnant and post-partum women at
the facility.7 Pregnant women incarcerated in correctional facilities that have been
the subject of litigation have seen an improvement in the conditions they experience.
However, most of these facilities would not have made these changes without the
threat of litigation.8 Thus, those pregnant women incarcerated in facilities that have
evaded legal scrutiny may still face conditions not much improved than those
endured by Ms. Yeager and others like her.
This article illustrates the challenges faced by pregnant women incarcerated in
correctional facilities, their rights, and ways in which change for these women can be
effected as well as programs that have provided clear improvements for their care.
The treatment of pregnant inmates merits special attention—especially in the
competition for scarce correctional resources—because of the particular
complications for these women and their infants which can result from improper
A. Women Incarcerated Today
In 2000, women made up seven percent of the correctional population—86,000
women among 1.3 million total inmates.9 By 2003, both of these figures grew:
101,000 women among 1.4 million total inmates were incarcerated by state and



Id. at 199–200. The suit was Yeager v. Smith, in which plaintiffs alleged, inter alia, that
they did not receive “appropriate treatment for pregnancy-related emergencies,” and that they
were subject to poor accommodations requiring some women to sleep on floors into their third
trimesters, unsanitary conditions at the jail, and exposure to diseases such as measles and
tuberculosis. The suit eventually resulted in a settlement agreement that provided
“[c]omprehensive guidelines and standard procedures for adequate treatment of pregnant
prisoners….” Ellen M. Barry, et al., Legal Issues for Prisoners with Children, CHILDREN OF
INCARCERATED PARENTS 160 (Katherine Gabel & Denise Johnston eds., 1995) [hereinafter
Barry et al., Legal Issues].
See, e.g., Phyllis Harrison Ross & James E. Lawrence, Health Care for Women
Offenders, 60 CORRECTIONS TODAY 122, 126 (1998) (stating that “[w]hile the reflex defense
mechanisms of state and local governments when confronted with prison reform litigation
often become impediments to improved care, the courts have prodded some jurisdictions into
development and implementation of improved women’s services”) [hereinafter Ross &
Lawrence]; Barry et al., Legal Issues, supra note 7, at 149.
KARBERG]. The facilities evaluated include both “confinement institutions” as well as
“community-based institutions.” These figures can be contrasted with the total number of
women under the supervision of the criminal justice system. In 1998, more than 950,000
women were being supervised—eighty-five percent in the community and fifteen percent in
correctional facilities. LAWRENCE A. GREENFELD & TRACY L. SNELL, U.S.D.J., WOMEN
OFFENDERS 6 (1999) [hereinafter GREENFELD & SNELL].



[Vol. 19:259

federal facilities.10 Since 1995, while the average annual increase in the number of
male inmates has been 3.3 percent, the average annual growth of the population of
women inmates has been five percent.11 Because of their relatively small numbers—
but despite the pace of increase in them—fewer facilities exist to incarcerate these
women. The result, say scholars, has been “institutionalized sexism”: prisons in
isolated locations, separating women from their friends and family; a justification,
based on their small numbers, for providing inadequate “educational, vocational, and
other programs”; and low levels of specialization in treatment and failure to separate
more dangerous offenders from the general population.12
Women of color are disproportionately affected by this trend. AfricanAmericans accounted for forty-four percent of women in local jails and forty-eight
percent of women in state prisons; fifteen percent of women in jails and state prisons
were Hispanic.13 The General Accounting Office has noted an increased likelihood
of African-American women to be incarcerated than Hispanic and white women: in
1997, “black females were more than twice as likely as Hispanic females and eight
times more likely than white females to be in prison.”14
The failure to tailor treatment to the needs of women inmates is troubling, given
the increase in the numbers of women being incarcerated. It does a great disservice
to this group of inmates who are largely nonviolent offenders. Of women
incarcerated in state prisons in 1998, for example, only twenty-eight percent were
incarcerated for violent offenses—a bulk of the women were serving time for
property offenses and drug offenses.15



Id. Perhaps more startling is the increase over time in the number of women inmates in
state and federal correctional facilities: from 13,400 in 1980 to 84,400 in 1998—a 500 percent
increase during this period. U.S. GEN. ACCT. OFFICE [hereinafter G.A.O.], WOMEN IN PRISON:
2001). Rafter describes this as an “economy of scale problem” in which “smaller numbers . . .
lead[ ] to fewer resources and greater isolation of inmates.” NICOLE HAHN RAFTER, PARTIAL
JUSTICE: WOMEN, PRISONS, AND SOCIAL CONTROL 199 (2d. ed. 1990) [hereinafter RAFTER,

GREENFELD & SNELL, supra note 9, at 7. White women were thirty-six and thirty-three
percent of the total respectively. Id. Some scholars argue that given the effect of this trend not
only on women of color, but also on men, “crime has become a code word for race in the
United States. . . . [C]orrectional supervision, especially detention and imprisonment, seems
increasingly to have replaced other historic systems of racial control (slavery, Jim Crow laws,
ghettoization) as a way of keeping women and men of color in their ‘place.’” MEDA CHESNEYLIND & LISA PASKO, THE FEMALE OFFENDER: GIRLS, WOMEN, AND CRIME 175 (2d ed., 2004).
G.A.O., supra note 11, at 5. In an evaluation of the lifetime likelihood of going to prison,
African-American women had a 3.6 percent likelihood of being incarcerated—seven times
more likely than white women. THOMAS P. BONCZAR AND ALLEN J. BECK, U.S.D.J., LIFETIME

GREENFELD & SNELL, supra note 9, at 6. Fewer women incarcerated in jails had been
convicted of violent crimes—twelve percent—but considerably more of them were serving
time for so-called “public-order offenses.” Their rates of incarceration for property and drug
offenses were more comparable to women in prisons, thirty-four percent and thirty percent




B. Health Care Challenges for Pregnant Inmates
1. Medical Needs of All Women Inmates
Women entering correctional facilities are often in very poor health for a number
of reasons, including higher rates of poverty, substance abuse, and sexual/physical
abuse among this population. A study of incarcerated parents conducted by the
Bureau of Justice Statistics reveals startling figures in these areas for women.
Twenty percent of mothers in state prisons reported homelessness in the year before
being incarcerated and half had been unemployed in the month leading up to their
arrest.16 With regard to substance abuse, eighty six percent of mothers reported
having used drugs at some point in their lives, and sixty-five percent had used drugs
in the month before the offense was committed that led to their incarceration.17
Figures regarding physical and sexual abuse among women inmates is equally
sobering. Forty-three percent of women in state prisons had been physically or
sexually abused—sometimes both—at some time before their incarceration.18
Lack of consistent access to health care prior to incarceration often means that
these women bring with them untreated sexually transmitted diseases as well as
chronic conditions such as high blood pressure and diabetes.19 These women also
experience higher rates of depression.20 A study of Ohio’s prison system noted that
many women entered the state’s facilities “without having seen a physician in years,
emphasizing that the women suffer from prolonged neglect and abuse of their bodies
and minds. Health care delivery at this point is assessed against a background of
societal problems and economic hardships and not simply in terms of the delivery of
services to heal physical ailments.”21 As noted by another scholar, “health care for
women in prison is largely an effort to ‘catch up’ in that considerable effort is most

CHILDREN 9 (2000). Eighteen percent of these women had spent some time living on the street
or living in a shelter in the year before their arrests. Id. at 10. Inmates of both sexes who had
been homeless or unemployed and those who had used needles in their drug use reported
having more medical problems. LAURA M. MARUSCHAK & ALLEN J. BECK, U.S. DEP’T OF
JUSTICE, MEDICAL PROBLEMS OF INMATES, 1997 (2001). Some scholars have argued that, for
many women, prison has become “the social net of last resort, providing neither punishment
nor deterrence, but rather respite from hopelessly untenable life situations and access to health
and human service programs unavailable in their home communities.” Ross & Lawrence,
supra note 8, at 128.

MUMOLA, supra note 16, at 8. Mumola also reports that one in three of these women
had committed the crime in question either to get drugs or to get money for drugs. Id.
(1994). Specifically, thirty-four percent reported physical abuse and thirty-four percent
reported sexual abuse [hereinafter SNELL & MORTON].

M. Katherine Maeve, Adjudicated Health: Incarcerated Women and the Social
Construction of Health, 31 CRIM. L. & SOC. CHANGE 49, 50 (1999) [hereinafter Maeve].


Nawal H. Ammar & Edna Erez, Health Delivery Systems in Women’s Prisons: The Case
of Ohio, 64 FED. PROBATION 19, 25 (2000).



[Vol. 19:259

often necessary to raise women’s health status to legally mandated, acceptable
For women incarcerated in these facilities, the provision of care sometimes
occurs within the context of penal harm, whose proponents believe “that the
incarceration experience should inflict pain and make conditions of confinement as
harsh as possible.”23 As one woman commented, “I feel sorry for anyone who gets
sick ‘in the joint.’ . . . They don’t seem to care what happens to you. They just do
what they have to do, you know. If it’s not the right time, right day, if it’s not
convenient or whatever, you could suffer and die and it wouldn’t really matter.”24
Maeve documented similar concerns among the women inmates she studied: “It was
common for women to believe that members of the medical unit were withholding
standard medical care and/or simply ‘not caring’ at all. Because health care was
provided through the Department of Corrections, women understood that the
protection of health care they were entitled to simultaneously included the
punishment they deserved.”25
2. Specific Needs of Pregnant Inmates
Six percent of women admitted to prison were pregnant at the time of their
admission to prison in 1991.26 In a survey of correctional systems, some 1900


Maeve, supra note 19, at 51.


Michael S. Vaughn & Linda G. Smith, Practicing Penal Harm Medicine in the United
States: Prisoners’ Voices from Jail, 16 JUST. Q. 175, 176 (1999). Penal harm advocates stand
in contrast to “deprivation of liberty” proponents who believe “the sole purpose of
incarceration is to restrict the freedom of those incarcerated.”
How widespread penal harm practices are is difficult to evaluate with certainty. Studies
such as that by Vaughn and Smith focus on single facilities, making their findings hard to
generalize. (A similar problem is present in the studies cited supra by Maeve and Ammar and
Erez.) See Noelle Fearn & Kelly Parker, Health Care for Women Inmates: Issues,
Perceptions, and Policy Considerations 3 CAL. J. HEALTH PROMOTION 1 (2005) [hereinafter
Fearn & Parker, Health Care for Women Inmates].

Sue Mahan, Imposition of Despair—An Ethnography of Women in Prison, 1 JUST. Q.
357, 375 (1984).

Maeve, supra note 19, at 64.

SNELL & MORTON, supra note 18, at 10. Snell and Morton also report in this article that
more than three-quarters of women prisoners had children, many of them minors. Another
study estimates that ten percent of women are pregnant when incarcerated. Maeve, supra note
19, at 50. Other studies, looking more broadly, indicate that up to twenty-five percent of
women in correctional facilities are or have been pregnant within the last year. Barry et al.,
Legal Issues, supra note 7, at 157. The difficulties that these women face as a result of
separation from their infants and the social implications for their children is beyond the scope
of this article; however, the literature has addressed this problem at length. See, e.g.,
CHILDREN OF INCARCERATED PARENTS (Katharine Gabel & Denise Johnston, eds., 1995); Liza
Catan, Infants with Mothers in Prison, in PRISONERS’ CHILDREN (R. Shaw, ed, 1992);
Wooldredge & Masters, infra note 54.




women admitted to prison were pregnant and 1400 gave birth during 1998.27
Between July 1998 and October 1999, 429 women inmates in California prisons—so
often the subject of litigation—gave birth.28
Given the constellation of difficulties that pregnant incarcerated women face,
many of their pregnancies are considered high risk. Among the criteria for
classifying these pregnancies include a history of drug addiction and sexually
transmitted diseases or pelvic inflammatory disease.29 Accordingly, “[a] single
major medical condition, or several minor conditions, can predict a less-thanfavorable birth. Such pregnancies must be termed high-risk, and these patients
should be cared for in specially designed and staffed centers.”30
Addressing the needs of pregnant women addicted to drugs is a critical problem
cited frequently, yet one that remains overlooked despite “an increasing trend toward
sentencing pregnant, substance abusing women to prison or jail in an attempt to
protect the health of the fetus.”31 Women addicted to drugs face daunting health
problems—including “excessive weight loss, dehydration, HIV/AIDS, other sexually
transmitted diseases, hepatitis B, hypertension, cardiac and respiratory problems, and
seizures”32—that are compounded when those women are also pregnant.
Detoxifying pregnant women requires “specialized medical personnel and treatment
protocols,” largely unavailable to them in prison.33 Failure to provide appropriate
detoxification harms both the woman and her fetus: “the fetus’ brain also develops
tolerance and dependence to drugs in the same manner as the maternal brain. . . .
Pregnant addicts have been forced to go through withdrawal without consideration of
the fetus, though withdrawal symptoms are also experienced by the fetus.”34
Providing appropriate care improves conditions for the infants ultimately born and

G.A.O., supra note 11, at 41. Seven states, however, did not respond to the survey;
therefore the numbers of women who were pregnant and/or giving birth in correctional
facilities are probably greater. Id.

Id. at 60.


Anita G. Hufft et al., Care of the Pregnant Offender in FEMALE OFFENDERS: MEETING
56 (James L. Gondles, ed., 1993) [hereinafter Hufft].




Barry et al., Legal Issues, supra note 7, at 157. The horrible irony with this is that
confinement to correctional facilities is no guarantee that these women will remain drug-free:
“[D]rugs and alcohol are readily available in many prisons and jails, for a price, and if a
pregnant woman is addicted and given no opportunity to participate in an effective recovery
program, she will in all likelihood continue to use.” Id. at 163. However, for alternative views
on the overall effect of incarceration on pregnancy, see Martin, infra note 41. See also Lynn
M. Paltrow, When Becoming Pregnant Is a Crime, 9 CRIM. JUST. ETHICS 41 (1990).

Kristine Siefert and Sheryl Pimlott, Improving Pregnancy Outcome during
Imprisonment: A Model Residential Care Program, 46 SOCIAL WORK 125, 127 (2001)
[hereinafter Siefert & Pimlott].

Id. at 127.

T.A. Ryan & James Grassano, Pregnant Offenders: Profile and Special Problems in
Gondles, ed., 1993).



[Vol. 19:259

may offset the need to provide expensive neonatal care.35 Also necessary for these
women to succeed in abstaining from harmful illegal drugs is addressing the
underlying causes of that abuse: psychological difficulties related to histories of
sexual and/or physical abuse.36
Pre-natal education for these women is also lacking. Outside the incarceration
context, “[m]isguided advice about pregnancy impedes access to and use of prenatal
care for low-income women.”37 This crosses over to the prison context, where
inmates form “an ‘invented family’ for the pregnant inmate. Membership in this
subgroup is often attained through an inmate ‘mentor,’ who offers advice and makes
recommendations regarding acceptable practices during pregnancy.”38 Thus, much
of what these women understand about pregnancy—“interpretation of symptoms,
self-diagnosis, the need for clinical appointments, use of self-remedies, evaluation of
treatment, and belief in professional explanation”39—comes from individuals who
may themselves be ill-informed. To combat this, scholars suggest that education
about general health care and pregnancy specifically should be extended to all
women inmates: “Routine counseling and education by health care providers to all
inmates dispels misinformation and the stress it causes for pregnant inmates.”40
The effect incarceration has on pregnancy outcomes is unclear. Two schools of
thought exist on the matter. One, emphasizing the potential negative effects, holds
that “incarceration is harmful to well-being of pregnant women and their unborn
babies because of stresses caused by imprisonment,” including isolation from loved
ones and distress over where to place an infant following birth.41 The other school
argues that “incarceration may enhance the health of some pregnant women and may
foster healthy pregnancy outcomes.”42 Prisons and jails can offer shelter and regular
meals to those who might be homeless and hungry, as well as restricting access to
illegal drugs, “limiting physically demanding work, eliminating sexual intercourse


Siefert & Pimlott, supra note 32, at 127.

According to some scholars “clear correlations exist between girls’ and women’s
victimization and specific high-risk behaviors such as serious polydrug abuse. A fundamental
reason for this close connection is the capacity of mood-altering chemicals to temporarily dull
the psychological devastation wrought by experiences of physical and sexual violation.” Leslie
Acoca & Myrna S. Raeder, Severing Family Ties: The Plight of Nonviolent Female Offenders
and Their Children, 11 STAN. L. & POL’Y REV. 134, 137–38 (2000). This has been
substantiated by other scholars. Shearer notes, for example, studies increasingly have found
that “women with substance abuse problems frequently have a childhood trauma that may be
an important contributing factor to their addictive behavior.” Robert A. Shearer, Identifying
Special Needs of Female Offenders, 67 FED. PROBATION 46, 47 (2003).

Hufft et al., supra note 29, at 57.






Id. at 58.


Martin et al., Is Incarceration during Pregnancy Associated with Infant Birthweight?, 87
AM. J. PUB. HEALTH 1526 (1997).





with male partners, and eliminating physical/sexual abuse by their male partners.”43
Among women who served shorter terms of incarceration in one study, “[t]hirtythree percent of such women had stillbirths or infants with neonatal morbidity
compared to 9% of women serving longer prison terms.”44 Despite the stresses and
risks incarceration can pose, for those pregnant women serving time in facilities that
provide appropriate diets and some form of prenatal care, their pregnancy outcomes
may be improved.45
C. Quality of Treatment Provided to Pregnant Inmates
Pregnant inmates throughout our nation’s history have long provided correctional
officials with difficulty. Nineteenth century facilities, for example, were often not
equipped properly to accommodate any women, much less pregnant women, and this
issue was compounded by officials’ perceptions of gender roles and questions of
caring for the children born to women inmates.46 Toward the latter part of the
twentieth century, as more attention became focused on the conditions of all
prisoners in the 1970s, the needs and legal rights of pregnant women began to
receive attention as well. Basic provisions, such as diets appropriate for pregnant
women, were not available to these women, nor was specialized care for women
experiencing drug withdrawal symptoms.47 General medical care available on a
twenty-four-hour basis was often lacking and few facilities provided prenatal care for
pregnant women.48 Although many of the institutions surveyed by one scholar had
to send these women to hospitals outside the prison to give birth, many of them
neglected to begin the complex transfer process until the onset of labor itself.49
Furthermore, some pregnant inmates also faced the prospect of lengthy travel times
to delivery facilities.50 Upon their return to prison, these women sometimes faced
vaginal searches that disregarded their recent medical experience and which
increased risk “of dislodging stitches when an episiotomy ha[d] been performed or



Denise Johnston, Effects of Parental Incarceration, in CHILDREN
PARENTS 67 (Katherine Gabel & Denise Johnston eds., 1995).




Id. Pregnancy outcomes may be worse for women incarcerated in county jails, however.
A study cited by Barry found that “only 21% of the respondents had live births, with
miscarriages after the 20th week of pregnancy occurring 73% of the time.” Barry et al., Legal
Issues, supra note 7, at 158.

RAFTER, PARTIAL JUSTICE, supra note 12, at 37 (discussing challenges of dealing with infants
in both custodial and reformatory correctional facilities and prison nurseries).

Gerald Austin McHugh, Protection of the Rights of Pregnant Women in Prisons and
Detention Facilities, 6 NEW ENG. J. ON PRISON L. 231, 241–42 (1980) [hereinafter McHugh].

Id. at 244.


Id. As McHugh noted, “significant delays are caused by the red tape and security
clearance needed to transfer a prisoner, coupled with the need to have available security
personnel to effect the transfer.”

Karen Holt, Note, Nine Months to Life—The Law and the Pregnant Inmate, 20 J. FAM.
L. 523, 528 (1982).



[Vol. 19:259

[causing] a . . . severe infection.”51 McHugh attributed some of the mistreatment of
these women to hostility on the part of prison staff. Where this was so, pregnant
women often faced considerable resistance not only to their requests for medical
care, but also to their requests for work assignments appropriate to their stage of
Meaningful improvements in the quality of care provided to pregnant women in a
limited number of correctional facilities began to change during this era, with groups
such as Legal Services for Prisoners with Children (LSPC) bringing class action
lawsuits on their behalf. Some efforts by correctional facilities to help pregnant
women were offset by the nature of prison conditions themselves. For example,
efforts by the Massachusetts Correctional System to help these women at its
Framingham facility (including a provision for high-risk pregnancies and prenatal
education) were harmed by the fact that it was operating at 189 percent capacity.53
By the early 1990s, conditions had improved minimally for some pregnant inmates.
Only forty-eight percent of the facilities surveyed in a 1993 study had developed
policies specifically for the care of pregnant inmates.54 The services provided by
these facilities were very limited. Forty-eight percent provided prenatal care, but
only fifteen percent provided appropriate diets and only nine percent provided a fulltime nurse to care for pregnant inmates.55 Furthermore, “[a]lthough advancements
are being made in the types of medical services available to pregnant inmates, they
have yet to be implemented in the vast majority of state prisons housing women.”56
None of the facilities had addressed other issues vital to the well-being of pregnant
inmates, such as providing resources to address emergency matters like premature
births and miscarriages, the use of restraints during transport to hospitals, or the

McHugh, supra note 47, at 245.


Id. at 235–36. Sentiments such as those documented by McHugh persist today. Ellen M.
Barry wrote in 2001 that “[a]lthough I acknowledge that there are correctional personnel who
provide professional, high quality medical services, it’s my experience that women prisoners
are often regarded as complainers, malingerers, or drug seekers who have more psychosomatic
than actual illnesses. . . . [W]omen prisoners are assumed to have fewer ‘real’ medical
complaints than do male prisoners.” Ellen M. Barry, Bad Medicine: Health Care Inadequacies
in Women’s Prisons, 16. CRIM. JUST. 39, 39 (2001) [hereinafter Barry, Bad Medicine].

Mary Catherine McGurrin, Note, Pregnant Inmates’ Right to Health Care, 20 NEW ENG.
J. ON CRIM & CIV. CONFINEMENT 163, 185–86 (1993) (citing BETSEY SMITH, ET AL.,
problem of operating above capacity appears to be a persistent problem in other correctional
systems. For example, a 1999 evaluation of prisons in California’s correctional system that
housed women found all facilities to be operating between sixty-five and eighty-seven percent
above capacity. G.A.O., supra note 11, at 41. As Rafter has noted in writing of all
improvements in the conditions of women’s prisons, “[t]he gains of today can be eradicated by
overcrowding tomorrow.” RAFTER, PARTIAL JUSTICE, supra note 12, at 189.

John D. Wooldredge & Kimberly Masters, Confronting Problems Faced by Pregnant
Inmates in State Prisons, 39 CRIME & DELINQ. 195, 198 (1993). This study was conducted to
evaluate “the prevalence and policies being implemented voluntarily for the care and support
of pregnant inmates” Id. (emphasis added).



Id. at 199.




overall quality of living conditions.57 Although some limited improvements had
been achieved, “the majority of prison administrators have a long way to go before
they meet the needs of pregnant inmates.”58
The quality of care a pregnant woman will receive is probably dependent on
where she serves her sentence. As Barry noted, “most jail systems and many smaller
prison systems do not yet provide good quality prenatal care for the high-risk
population they serve.”59 To date the problems of adequately addressing the needs of
pregnant women in correctional facilities remain only somewhat improved. No
national standards exist for the proper treatment of these women. Although the
American College of Obstetricians and Gynecologists has the most comprehensive
standards for the treatment of pregnant women, their standards do not address the
needs of incarcerated women, according to Barry, while guidelines for their care
provided by National Commission on Correctional Health Care are vague.60
Although the needs of pregnant women have long been apparent to those who
incarcerate them, these women remain ignored in some facilities resulting in
unnecessary abuse and in harm—occasionally fatal, perhaps preventable—to their
babies. Many of the problems cited in this portion of the discussion have particular
resonance within the context of the rights of pregnant inmates under the U.S.
Constitution. For inmates serving sentences in correctional facilities, this implicates
the Eighth Amendment. The treatment of pretrial detainees is subject to evaluation
under the Due Process Clause of the Fourteenth Amendment; however, because what
is expected of this treatment is vague, the Eighth Amendment remains indirectly
pertinent to their treatment as well. The rights of these pregnant women are
discussed in the following section.
To evaluate the care that incarcerated pregnant women are entitled to, it is
important to understand the legal standards their treatment is subject to when the
quality of that care is challenged. Treatment of pregnant inmates serving time
following a criminal conviction must operate within the requirements of the Eighth
Amendment’s provision forbidding the infliction of “cruel and unusual
punishments.”61 For pregnant women who are legally confined as pretrial detainees,
the standard of treatment is less clear—the woman cannot be punished, but what the
deprivations the state can subject her to short of punishment is not explicit,62
although it seems that the conditions of their confinement would have to meet the
standards of conditions for those with Eighth Amendment rights, at a minimum.63

Id. at 200.


Id. at 199.


Barry et al., Legal Issues, supra note 7, at 163.


Id. at 160.


The Amendment reads “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend VIII.

See Bell v. Wolfish, 441 U.S. 520 (1979).


See e.g., Boswell v. Sherburne, 849 F.2d 1117 (8th Cir. 1988).



[Vol. 19:259

Constitutional standards of treatment for women who have been convicted of crimes
or who are pretrial detainees are briefly addressed below, followed by a discussion of
reported cases in which the care provided at a correctional facility fell below the
legally required standard.
The meaning of the Eighth Amendment has not been static,64 developing beyond
notions of “physically barbarous punishment.” 65 According to Chief Justice Warren,
“[t]he basic concept of the Eighth Amendment is nothing less than the dignity of
man.” 66 In essence, then “[t]he Amendment must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society.”67 In
Gregg v. Georgia, Justice Stewart wrote that the critical assessment of a given
penalty should be subject to a two-part evaluation into “excessiveness.”68
Accordingly, the punishment must not involve “the unnecessary and wanton
infliction of pain” nor may it be “grossly out of proportion to the severity of the
crime.”69 By the 1970s, the Amendment had come to “embod[y] ‘broad and
idealistic concepts of dignity, civilized standards, humanity, and decency. . . .’
against which we must evaluate penal measures.”70 Today, the Eighth Amendment
encompasses punishment in the broadest sense. As such, “[i]t is undisputed that the
treatment a prisoner receives in prison and the conditions under which he is confined
are subject to scrutiny under the Eighth Amendment.”71
Within the context of the treatment of pregnant women incarcerated in
correctional facilities, the words of Chief Justice Warren anticipate that their care
would likewise reflect contemporary notions of appropriate treatment for pregnant
women. This is unrealistic for a number of reasons. For some women it is because
their medical care occurs within the context of the penal harm approach to
incarceration—a taint which sometimes infects both the correctional personnel who
facilitate medical care as well as the medical professionals providing that care.

Initial consideration of the Eight Amendment’s meaning took the position that “the
clause prohibited certain methods of punishment.” Anthony F. Granucci, “Nor Cruel and
Unusual Punishments Inflicted:” The Original Meaning, 57 CAL. L. REV. 839, 842 (1969).
(Early Supreme Court cases considering the Amendment include Wilkerson v. Utah, 99 U.S.
130 (1879) and In re Kemmler, 136 U.S. 436 (1890).) A shift toward a broader meaning came
early in the twentieth century in Weems v. Ohio, 217 U.S. 349 (1910), in which the Court
“took the position that the clause should be expanded beyond its original reach to cover any
instance of disproportionate punishment.” Granucci at 843.
Provisions of the Eighth Amendment were extended to the states by the Warren Court in
Robinson v. California. 370 U.S. 660, 666 (1962) (holding that criminalizing drug addiction
“in the light of contemporary human knowledge. . .[is] an infliction of a cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments.”).

Estelle v. Gamble, 429 U.S. 97, 102 (1976).


Trop v. Dulles, 356 U.S. 86, 99–100 (1958).


Id. at 101.


Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion).


Id. at 173.


Estelle, 429 U.S. at 103 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)).


Helling v. McKinney, 509 U.S. 25, 31 (1993).




Because medical personnel work in a system that subordinates their
professional canons to . . . the ethical relativism of the penal harm
movement, . . . some correctional health providers sympathetic to the
custodial subculture abdicate their ethical obligations, and that results in
the ill-treatment and torture of prisoners.72
Other factors affecting their circumstances are the limited resources, financial and
otherwise, devoted to the medical care of all women prisoners; the dependence of
these women on personnel for all their medical needs, no matter how minor; and the
staggering demands women inmates place on correctional health care systems,
seeking care at higher rates than men, and the failure of officials to plan
accordingly.73 Thus, the care pregnant women receive in some facilities may bear
more resemblance to care they might have received when the Eighth Amendment
was drafted, rather than what they ought to receive in a society where standards of
incarceration “evolve” and improve.
Pretrial detainees, unlike women who have been convicted of a crime for which
they are serving time, exist in a constitutional limbo, “hav[ing] been charged with a
crime but . . . hav[ing] not yet been tried on the charge” with regard to what is
permissible during the course of that detention.74 The Supreme Court in Wolfish did
not offer a great deal of clarification: “[u]nder the Due Process Clause, a detainee
may not be punished prior to an adjudication of guilt in accordance with due process
of law. . . . [T]he government concededly may . . . subject him to the restrictions and
conditions of the detention facility so long as those conditions and restrictions do not
amount to punishment, or otherwise violate the Constitution.”75 As a result, circuit
courts were left to define the parameters of propriety. An example of one approach
to this riddle is found in Boswell v. Sherburne, a case discussed in more detail below.
The Eighth Circuit panel’s decision stated that pretrial detainees “are . . . accorded
the due process protections of the fourteenth amendment, protections ‘at least as
great’ as those the eighth amendment affords a convicted prisoner.”76 As such, the
Eighth Amendment remains meaningful in discussing the rights of pretrial detainees.
For all incarcerated women, Estelle v. Gamble was a decision critical to the way
in which their treatment was perceived and provided through its notion of deliberate
indifference. This decision and the standard it provided for the care of inmates are
examined below.
A. The Deliberate Indifference Standard and Establishing Its Violation
Medical care provided in prisons was often shockingly grim in the era preceding
Estelle v. Gamble. A challenge to the health care provided within the Alabama

Vaughn & Smith, supra note 23, at 177. Even in those facilities where penal harm may
not be an issue, “medical professionals would do well to learn and adopt a less judgmental
approach to their patients and trouble themselves less over whether offenders deserve their
skill and effort.” Ross & Lawrence, supra note 8, at 128.

Fearn & Parker, Health Care for Women Inmates, supra note 23, at 18.


Bell v. Wolfish, 441 U.S. 520, 523 (1979).


Id. at 535–37.


Boswell v. Sherburne, 849 F.2d at 1121 (8th Cir. 1988).



[Vol. 19:259

correctional system exemplifies the near-medieval conditions under which medical
treatment was provided to some prisoners—male and female—at this time.77 At one
facility, for example, “[u]nsupervised prisoners, without formal training, regularly
pull teeth, . . . dispense as well as administer medication, . . . suture, and perform
minor surgery.”78 Inmates at the prison medical center went neglected. Some—such
as a man unable to eat and another whose bedsores evolved into open wounds that
became maggot-infested—simply died after provision of grossly insufficient nominal
efforts in their last days failed to help them.79 Pregnant women incarcerated at the
Tutwiler facility endured “conditions which endanger the lives of both mother and
infant.”80 Around seven to eight infants were born each year in a facility where
“[t]he delivery table has no restraints, paint is peeling from the ceiling above it, and
large segments of the linoleum floor around the table are missing. There are no
facilities to resuscitate the newborn or otherwise provide adequate care should any
complications arise during delivery.”81 Pain management during delivery consisted
of “drip ether as an anesthetic . . . despite estimates that this method had not been
used after 1953.”82 Until the decision in Estelle, “courts were divided on how
inadequate the state’s medical care program must be in order to justify judicial
intervention.”83 Some courts required evidence of “shocking or barbarous”
treatment, while others required the provision of “reasonable” medical treatment.
Thus, Estelle was a much-needed decision to “resolve[] this conflict by sanctioning
use of the eighth amendment so long as ‘serious’ medical needs are at issue.”84
In Estelle v. Gamble, the Court reviewed basic notions of the Eighth
Amendment’s scope as set out in cases such as Trop and Gregg. These cases clearly
established, according to the Court, “the government’s obligation to provide medical
care for those whom it is punishing by incarceration.”85 Shirking this responsibility
could have grave implications for the inmate, ranging from the sort of “physical
‘torture or lingering death’” in the worst situations to “pain and suffering which no
one suggests would serve any penological purpose.”86 Accordingly, the Court held
that “deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.”87
This was true whether the indifference had its genesis in the prisoner’s treatment by

Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala. 1972), aff’d in part, 503 F.2d 1320
(5th Cir. 1974).

Newman, 349 F. Supp. at 283.
Id. at 285.


Id. at 282. Tutwiler was also the subject of litigation in the Laube case described infra.


Id. at 282–83.


Newman, 503 F.2d at 1323–24.


McHugh, supra note 47, at 250.




Estelle v. Gamble, 429 U.S. 97, 103 (1976).


Id. at 103 (quoting In re Kemmler, 136 U.S. 436, 447 (1890)).


Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).




medical staff or in a prison guard’s “intentionally denying or delaying access to
medical care or intentionally interfering with treatment once prescribed.”88 The
Court did, however, place clear limits on what would constitute deliberate
indifference. “Inadvertent failure to provide” sufficient care was beyond the ambit
of deliberate indifference, as was negligence and medical malpractice.89 Instead, “to
state a cognizable claim, a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.”90
Requirements for successfully challenging prison conditions have changed since
Estelle was handed down. To establish an Eighth Amendment violation, two
elements must be satisfied. First, “the deprivation alleged must be, objectively,
‘sufficiently serious.’”91 Specifically, said Justice Souter, “a prison official’s act or
omission must result in the denial of ‘the minimal civilized measure of life’s
necessities’” thus requiring a showing on the part of a prisoner “that he is
incarcerated under conditions posing a substantial risk of serious harm.”92 A second,
subjective element pertains to whether a “prison official . . . [has] a ‘sufficiently
culpable state of mind’”—in other words, deliberate indifference.93 Deliberate
indifference, however, is itself vague. “[W]e have never paused to explain the
meaning of the term. . . .” conceded Souter.94 The answer lay somewhere between
negligence and intentional acts or omissions on the part of officials for the purpose
of causing harm or which they know will likely cause harm.95 In placing deliberate
indifference on this spectrum, the Court equated it more with the standard of reckless
disregard96 and held that
a prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw
the inference.97
Following Estelle, “most correctional facilities in the United States reportedly
reformed their medical facilities to remove punitive and pain-inflicting mandates;
however the emergence of the penal harm movement has raised questions about the

Estelle, 429 U.S. at 104–05.


Id. at 105–06.


Id. at 106.


Farmer v. Brennan, 511 U.S. 825, 834 (1924) (quoting Wilson v. Seiter, 501 U.S. 294,
298 (1991)).

Farmer, 511 U.S. 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).


Farmer, 511 U.S. 834 (quoting Wilson, 501 U.S. at 302–03).


Farmer, 511 U.S. 835.




The Court confided that this term is likewise vague, both in its use in civil and criminal
law. Id. at 836.

Id. at 837.



[Vol. 19:259

use of correctional medical care for punitive purposes.”98 In light of the concerns
about the application of penal harm philosophies to medical treatment of prisoners
and continued problems in providing medical care generally, clearly, efforts to
improve the quality of care are still vital. The following section of this article
addresses situations in which the quality of care provided was found to constitute
deliberate indifference.
B. Application of the Deliberate Indifference Standard to Cases Concerning the
Medical Treatment of Women Inmates
Prison inmates seeking to improve the conditions under which they are
incarcerated often seek redress through individual and class-action lawsuits under 42
U.S.C. § 1983,99 a law that had been largely dormant until it was used in Monroe v.
Pape.100 Many of the reported cases are brought by individuals. However, cases that
have led to a systemic improvement in the treatment of pregnant women have been
class action suits that went on to be settled rather than tried. Nevertheless, the
reported cases establish a baseline of care for these women and it is important to
understand where officials have failed and what standard must be met.
Todaro v. Ward,101 although not addressing treatment of incarcerated pregnant
women specifically, helped set the stage for suits brought by pregnant inmates. The
case was a civil rights action brought by women incarcerated at the Bedford Hills
Correctional Facility pursuant to 42 U.S.C. § 1983. It was the first case to address
the medical treatment of women prisoners following the Supreme Court’s ruling in

Vaughn & Smith, supra note 23, at 180.


The provision states in pertinent part that:

[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Colombia, subjects or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and its laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1996).
Monroe v. Pape, 365 U.S. 167 (1961) (subsequently overruled by Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978)). Although issues of reproductive freedom are beyond the
scope of this article, deliberate indifference with regard to this matter is also litigated. See
Monmouth Cty. Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987)
(holding that the policy of providing abortions only in instances of medical emergency
constitutes a deliberate indifference to the serious medical needs of inmates seeking elective
abortions). But compare Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991) (holding that denial
of an elective abortion to a pretrial detainee in her twenty-fourth week of pregnancy did not
constitute deliberate indifference despite administrative delays); Gibson v. Matthews, 926
F.2d 532 (6th Cir. 1991) (holding that denial of an elective abortion to an inmate in her
twenty-fourth week of pregnancy did not constitute deliberate indifference despite
transportation delays beyond defendant’s control); Victoria W. v. Larpenter, 369 F.3d 475 (5th
Cir. 2004) (policy requiring judicial approval for all elective medical procedures, including
inmate’s abortion, did not constitute deliberate indifference when policy served legitimate
penological interests).

Todaro v. Ward, 431 F.Supp. 1129 (S.D.N.Y. 1977).




Estelle. Estelle’s holding figured largely in the establishment of legal standards
applied to the facts of the case.102 The women alleged that the provision of medical
care at Bedford Hills was “unconstitutionally defective” and thus a violation of their
Eighth and Fourteenth Amendment rights.103 Their specific charges included
inadequate screening at admission, unreasonable delay in the provision of care, and
insufficient follow-up care, among other things. Judge Ward characterized the
question at issue as “at what point do individual failures in the overall operation of a
prison medical care system add up to deliberate indifference which would render the
entire system unconstitutional?”104
Ultimately, much of the deliberate indifference at the facility was attributable to
insufficient staffing,105 faulty internal procedures, and poor communication, all
resulting in a denial or substantial delay in care for the inmates. Of these, the
“grossly inadequate” administrative and record-keeping procedures encompassed the
factor most glaringly responsible for the omissions indicating deliberate
indifference.106 Although “adequate medical care is often provided at Bedford Hills”
and was certainly better than that reported in other cases, “[t]he result[ing] . . . denial
of necessary medical care for substantial periods of time is the same. . . . If the result
is the same, the Court perceives no legal significance to the difference in cause,
except insofar as it affects the necessary remedy.”107
Following Todaro, suits specific to the circumstances of pregnant women were
brought. Archer v. Dutcher concerned a woman who was pregnant at the time she
was admitted to a county jail.108 Ms. Archer had received care from medical staff,
but she alleged “intentional efforts on the part of defendants to delay her access to
medical care at a time when she was in extreme pain.”109 Although the parties did
not agree on the plaintiff’s health status and the timing of when emergency medical
care was provided prior to her miscarriage—correctional authorities contended that
her initial complaints did not concern her pregnancy, and the parties disagreed
whether those problems commenced in early May or several days earlier—according
to the court, “[t]hese assertions, however disputed, do raise material factual issues.
After all, if the defendants did decide to delay emergency medical aid—even for


Id. at 1132.


Id. at 1131. Bedford Hills, discussed infra, today is recognized as a leading example of
correctional care for pregnant inmates.

Id. at 1133.


Judge Ward did remark that he “was not unfavorably impressed with the individual
members of the Bedford Hills medical staff. They appeared to be truly concerned with the
well-being of the inmates they served.” Id. at 1159–60.

Id. at 1160.


Id. Compare Batton v. North Carolina, 501 F.Supp. 1173 (E.D. N.C. 1980) (holding,
inter alia, that no Eighth Amendment violations existed with regard to provision of medical
care where plaintiffs were unable to demonstrate series of serious medical deprivations, rather
than select and discrete incidents).

Archer v. Dutcher, 733 F.2d 14, 15 (2d Cir. 1984).


Id. at 16.



[Vol. 19:259

‘only’ five hours—in order to make Archer suffer, surely a claim would be stated
under Estelle.”110
The circumstances of Boswell v. Sherburne present a particularly distressing
example of deliberate indifference inflicted upon a pregnant woman in custody.111
Ms. Boswell, while being admitted to the county jail informed the jailer processing
her that she was experiencing a “problem pregnancy,” which in recent days had been
marked by troubling symptoms.112 Despite having this knowledge, as well as the
telephone number of Ms. Boswell’s physician, jailers ignored glaring signs of trouble
with regard to her pregnancy. This included persistent bleeding (and the passage of
blood clots), cramping, and numerous requests for a doctor. The chief jailer at the
facility, upon being informed of the trouble Ms. Boswell was experiencing, was
apathetic to her situation. As the court noted, “[t]hey left Boswell, cramped and
bleeding, to languish in her jail cell while they waited for someone to take Boswell
off their hands.”113 Help, once provided by a local police officer who also worked as
an EMT, came too late for Ms. Boswell and her infant: “As Boswell was being
transferred by ambulance to the hospital, she began giving birth. Her baby, Joseph
Boswell, was born at the hospital, where he died thirty-four minutes later.” The
court of appeals, affirming the motion denying summary judgment by the district
court, noted that Ms. Boswell had succeeded ‘in stat[ing] with particularity the
circumstances under which [the defendants] violated Boswell’s clearly established
right to medical care.”114
Pregnant women who have suffered ill treatment continue to bring viable cases,
even after Farmer v. Brennan clarified the need to establish a defendant’s mental
state with regard to deliberate indifference. Coleman v. Rahija involved a situation
in which a woman’s history of troubled pregnancies—including premature deliveries
and “precipitous labors lasting less than an hour”—was well-known to medical staff
at the facility at which she was incarcerated.115 Despite this knowledge and the




Boswell v. Sherburne, 849 F.2d 1117 (8th Cir. 1988). The plaintiff in this case was a
pretrial detainee, incarcerated after having been arrested for driving under the influence. Id. at
1119-20. On the basis of Ms. Boswell’s status as a pretrial detainee, the defendants in the case
attempted to evade liability by arguing that “their obligation to provide medical treatment to a
pregnant pretrial detainee was not clearly established at the time this incident took place. . . .”
Id. at 1120. The Boswell court disagreed.

Id. at 1119. The facts described here are taken from the decision on pages 1119–20.


Id. at 1123. This aspect of the court’s description of the circumstances leading to Ms.
Boswell’s suit is the most alarming. In a footnote, the court records the teletype
communication between Ms. Boswell’s jailers at Sherburne and another county that also had
an outstanding warrant for her. The Sherburne officials wrote, “[s]he is 6 mo [sic] pregnant
and is starting to bleed. What would you like done about your bail. [sic]We want her out of
our facility as soon as possible. Any suggestions?” The response to this inquiry is
unapologetically callous: “If she has the bail take it—if she doesn’t, release her from our
charges, we’ll try for her later. We don’t want the medical bills either!!!!!!” Id. at 1120.

Id. at 1122.

Coleman v. Rahija, 114 F.3d 778, 781 (8th Cir. 1997). Facts described here are taken
from the decision on pages 782–83.




difficulties Ms. Coleman experienced in the days prior to giving birth, on the evening
when she went into labor, she was largely dismissed by the nurse on duty. The nurse
failed to examine Ms. Coleman’s initial concerns with any particularity, although she
noted the possibility of Ms. Coleman being in early labor. Approximately four hours
after seeking help from the nurse, arrangements were finally made to transport Ms.
Coleman to the delivery facility. She was transported at 11:45 p.m. and after
arriving at the hospital, she delivered a son at 12:20 a.m. Critical in finding that the
nurse had exhibited deliberate indifference toward Ms. Coleman’s “serious medical
need” was knowledge concerning her obstetrical history, the nurse’s notation
concerning a possible early labor, and Ms. Coleman’s unequivocal manifestation of
symptoms of a preterm labor: “[f]rom this evidence, a trier of fact could have found
that [the nurse] had actual knowledge of the risk of pre-term labor.”116 As such, the
court held that the nurse’s delay in providing transport to Ms. Coleman constituted
deliberate indifference.
The circumstances of Doe v. Gustavus117 bear some resemblance to those of
Louwanna Yeager, described in the Introduction of this article. Like Ms. Yeager,
Ms. Doe gave birth alone. Ms. Doe’s troubles began when she initially refused to
have her labor induced. Once another appointment had been set, Ms. Doe was
placed in “segregated confinement.”118 A day later, Ms. Doe began to experience
labor symptoms which were disregarded as evidence of “false labor.” She received
little care and only improper examination of her condition.119 Scarcely more than
twenty-four hours after her difficulties began, Ms. Doe, upon feeling “some
movement between her legs,” delivered her child. Only then was she taken to a
hospital. After her return, she was accused of “push[ing] that baby out on purpose,
just to get out of segregation” and placed in a maximum security portion of the
correctional facility, where the provision of items necessary to her recovery was long
Two things become clear in evaluating these cases. First, the distress pregnant
women experienced, in addition to the anticipated rigors of pregnancy and childbirth,
was unnecessary. Had personnel provided the attention and appropriate level of
concern to these women, their crises may have been averted. Second, these cases
demonstrate that courts have been and continue to be willing to enforce the rights of
women, pregnant or otherwise, to adequate medical care.120 This is true even in

Id. at 786.


Doe v. Gustavus, 294 F.Supp. 2d 1003 (2003). Facts described here are taken from the
case on pages 1006–07.
Id. at 1006. The justification for this was that “knowledge of an off-site appointment
could pose a security risk.” The court later noted that “putting a late term pregnant woman in
seg[regation]” was something a jury could find to be deliberate indifference, “particularly
when it is alleged, as here, that the defendants based their decisions on an animus against the
plaintiff.” Id. at 1010.

Id. at 1009. Owing to her segregated confinement, she was “only examined . . . through
the small tray slot in the cell door.”
Compare, e.g., Pohlman v. Stokes, 687 F.Supp. 1179 (S.D. Ohio 1987) (holding that
damage sustained to inmate’s reproductive organs and rendering her unable to have children
while performing surgery to address ectopic pregnancy did not constitute deliberate
indifference); Whiting v. Marathon Cty Sheriff’s Dept, 382 F.3d 700 (7th Cir. 2004) (finding



[Vol. 19:259

those cases, such as Todaro and Archer, where care is provided, but not in a manner
sufficient to satisfy the requirements established by Estelle. This presents two
distinct avenues for improving the quality of care for incarcerated pregnant women,
as addressed below: attacking their treatment through continued litigation on behalf
of pregnant women harmed by the deliberate indifference of correctional facility
officials as well as proactively addressing the needs of these women by encouraging
change at the legislative level.
Since the 1980s, conditions have improved in some facilities that house
incarcerated pregnant women. This change has come about in a variety of ways,
most notably through litigation and legislation. This section reviews the use of 42
U.S.C. § 1983 in class action suits and provisions enacted by state legislatures that
have improved conditions for pregnant women. It also provides examples of
programs that have been implemented to help these women, both in correctional
settings and as alternatives to incarceration.
Despite the change effected to date, many pregnant women are still incarcerated
under conditions that constitute deliberate indifference to their medical needs.121 No

that jail officials’ inadvertent permission of an encounter with the object of a no-contact order
resulting in extreme stress and which may have led to inmate’s premature delivery did not
constitute deliberate indifference to an objectively serious risk of harm).
Although most of the discussion here has focused on women challenging their treatment
under the Eighth Amendment or the Fourteenth Amendment’s Due Process Clause, the rights
of women inmates has also been challenged under the Equal Protection Clause. See Holt,
supra note 50, at 533. These cases have addressed a variety of shortcomings in the programs
and services provided to women inmates as compared to those provided to men, including
health care ((see, e.g., Batton v. North Carolina, 501 F.Supp. 1173 (E.D. N.C. 1980) (holding
that contracting out medical services for women inmates, rather than providing hospital care as
for men, did not result in a substantial disparity in provision of medical services)).

Invoking equality arguments should be done cautiously, however, when the result may be
so-called gender neutrality, which often entails simply providing programming designed for
men equally to both men and women instead of providing programming tailored to the unique
experiences of women inmates. “Outwardly even-handed treatment produces inferior
treatment for incarcerated women because the norm is still set by male administrators,
working with male needs uppermost in mind,” says Rafter. Rafter, Equality or Difference,
supra note 2, at 10. Others note that the “emphasis on equality may in some cases push
women’s punishment even more toward the traditional incarceration model, rather than
advancing the use of alternatives to incarceration for women (and men) for whom these
alternatives are appropriate.” Developments in the Law—Alternative Sanctions for Female
Offenders, 111 HARV. L. REV. 1921, 1942 (1998) [hereinafter Alternative Sanctions].
In the context of medical treatment for women prisoners, gender-neutral policies “allow[]
women’s medical needs to go grossly unaddressed.” Kendra Weatherhead, Note, Cruel but not
Unusual Punishment: The Failure to Provide Adequate Medical Treatment to Female
Prisoners in the United States, 13 HEALTH MATRIX 429, 454 (2003). In California, for
example, the State Department of Corrections “continue[s] to employ medical protocols and
allocate health care resources using a healthy, young male as its model prisoner” despite
increases in the number of women inmates in its system. Amy Petre Hill, Death through
Administrative Indifference: The PLRA Allows Women to Die in California's Substandard
Prison Health Care System, 13 HASTINGS WOMEN’S L. J. 223, 232 (2002). California has,




one strategy can work as a complete solution. Rather, broader strategies for
achieving constructive change for these women may need to consider the use of
litigation, legislation, and creative programs. Litigation can be an effective “stick”
when the “carrot” of legislation fails to work or, where achieving change through
litigation is unlikely: “litigation . . . is particularly effective at generating publicity
and forcing correctional facilities to the bargaining table.”122 By examining
strategies that have worked to help similar women, one hopes that such examples
might encourage additional constructive change.
A. Class Action Litigation as a Tool for Improving Medical Treatment for Pregnant
Litigation under § 1983 has long been—and remains following the passage of the
Prison Litigation Reform Act (PLRA) in 1996, discussed below—an important tool
for seeking improvement in the quality of medical care provided to all women
inmates.123 “[L]itigation is often necessary to pressure officials to reform a prison or
jail system that has been historically unresponsive, or under-responsive[,] to the
needs of pregnant and postpartum prisoners,” says Barry.124 These suits are often
settled rather than being taken to trial, which can be time consuming, expensive, and
a drain on scarce judicial resources. These factors were noted by the judge
approving a settlement agreement in Laube v. Campbell, a class action brought on
behalf of women prisoners in Alabama.125 To resolve complex and multiple issues
related to prison conditions through trial often requires “an extensive and
prolonged—not to mention contentious—trial to resolve them.”126 In Laube, the
judge estimated that a trial would have caused litigation costs to double and delayed
an improvement in the conditions at the facilities concerned. Furthermore, he wrote
that “the court cannot overlook the millions in tax dollars that will be saved by
avoiding litigation—money that can, of course, now be spent directly on redressing

however, developed some innovative programs for pregnant and parenting women as
described infra.
Stefanie Fleischer Seldin, A Strategy for Advocacy on Behalf of Women Offenders, 5
COLUM. J. GENDER & L. 1, 21, 31 (1995). Seldin focused on litigation related to the
Fourteenth Amendment. Additionally, Seldin focuses on use of community programs;
however, because alternatives to incarceration may not be appropriate to all pregnant inmates
and is not applicable to the situations of pretrial detainees, this article also addresses programs
developed for those pregnant women who are incarcerated.
See Holt, supra note 50, at 530. Although this portion of my article focuses on class
action suits, it should be reiterated that individuals often use § 1983 actions to seek redress for
injuries they suffer while incarcerated or in pretrial detention, as was true in the reported cases
discussed supra to illustrate deliberate indifference.

Barry, Pregnant Prisoners, supra note 5, at 201.

Laube v. Campbell, 333 F.Supp.2d 1234, 1246 (M.D. Ala. 2004). The settlement
reached is addressed in greater detail infra.

Id. For a comparison, however, see Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal.
1995), a case that illustrates the bullet dodged in Laube. The bench trial in Madrid took
approximately two months and involved fifty-seven lay witnesses, ten expert witnesses, and
more than six thousand exhibits. Id. at 1156–57.



[Vol. 19:259

state prison conditions to the extent needed.”127 Furthermore, settlements can be
more effective than seeing such matters through the trial process because of the
potential for “creative remedies” and relatively more expedient resolution.128
“Although successful litigation of these cases through the trial phase would establish
valuable precedents of eighth amendment violations in the pregnant prisoner
context,” Barry concedes, doing so might not “lead to as many specific
improvements in prison conditions. . .”129 Agreements, ultimately, result in “giv[ing]
the plaintiffs more control in determining which improvements in prison conditions
are most necessary.”130
Actions brought have focused sometimes on the needs of all inmates and
sometimes on the needs of pregnant inmates specifically; both can have the effect of
prompting constructive change. Although some attorneys might resort to bringing
“kitchen sink complaints” that seek to remedy myriad conditions in correctional
facilities, this strategy is more appropriate for those ready to face “litigation that may
continue for many years.”131 More rapid relief is usually obtained by bringing
“numerous but narrowly defined and highly compelling class action suits.”132
Although the long-term benefits of litigation must always be qualified—as discussed
below, some settlement agreements that result from litigation are not fully
implemented, for example—in many instances, they have made a constructive
difference for pregnant women in affected correctional facilities.
1. Notable Settlement Agreements Before the Prison Litigation Reform Act Passage
and Their Efficacy
Litigation has been a primary means of attempting to improve conditions for
pregnant women in correctional facilities. A California organization, Legal Services
for Prisoners with Children, has been particularly skilled at bringing suits against
correctional facilities that have resulted in settlement agreements. Inspired by an
agreement achieved in a Connecticut suit brought on behalf of pregnant inmates,133
LSPC brought a series of class action suits in the 1980s against California
correctional facilities for both pregnant and postpartum prisoners.134 The first suit,
Harris v. McCarthy, achieved a comprehensive agreement that required, among
other things, the hiring of an OB/GYN to provide treatment and supervise the care of
pregnant prisoners, the adoption of policies for handling high-risk pregnancies and

Id. at 1247.


Barry, Pregnant Prisoners, supra note 5, at 202.


Id. at 202–03.


Id. at 203.


Id. at 202. Such suits, she remarks, also “require large attorney teams and budgets.”


Id. Barry continues that “[u]nder this approach, the plaintiff class consists of prisoners
with well-defined grievances within a single facility.” This approach was used by Legal
Services for Prisoners with Children, discussed infra.
This suit, West v. Manson, challenged a number of practices with regard to pregnant
women including the use of shackles on pregnant women and inadequate provision of
nutrition and prenatal care. McGurrin, supra note 53, at 166.

Barry, Pregnant Prisoners, supra note 5, at 194.




emergencies occurring in pregnancy, and establish a specialized unit for pregnant
women.135 The agreement also called for overall increases in the number of medical
staff and improvements in record keeping. Agreements to settle subsequent lawsuits
sought improved access to prenatal care, care specific to the needs of women with
substance abuse problems, guideline development for the care of pregnant prisoners,
and so forth.136
Of course, the effectiveness of settlement agreements or court supervision of
facilities is sometimes dubious. The facility featured in Vaughn and Smith’s study
of penal harm is stark evidence of this. In addition to being accredited by the
National Commission on Correctional Health Care, the facility had been operating
under a consent decree for nearly twenty years at the time of their study—during
which time “medical facilities were never in full compliance with the consent
decree’s mandates.”137 Among the incidents identified and substantiated by the
researchers were those in which medical care had been used to “humiliate” prisoners
or in which medical care had simply been withheld.138 The implications for pregnant
women at the facility were grave. For example, one woman with a history of
troubled pregnancies and who, during her incarceration, was experiencing
considerable difficulties, pleaded to see a physician only to be told by the jail’s
medical staff that “they did not treat pregnant prisoners.”139 Another woman, whose
pregnancy was compounded by the existence of an undiagnosed gynecological
illness, was also denied treatment (despite being seen by an OB-GYN) although she
experienced persistent pain and abundant malodorous vaginal discharge.140 As the
reports of these women demonstrate, supervision may not guarantee that the quality
of medical care will improve for pregnant inmates.
In addition to concerns about the efficacy of litigation and resulting settlements,
some observers caution against immediate resort to litigation when other avenues for
achieving change for pregnant inmates are available. “Advocates should realize that
lobbying and creating community programs are options worth trying in addition to,
or even instead of litigation,” says Seldin.141 None of this is to suggest that litigation

Barry et al., Legal Issues, supra note 7, at 159.


Id. at 160.


Vaughn & Smith, supra note 23, at 185–86. The accreditation had not been revoked
despite this. See also Nelson v. Prison Health Services, 991 F.Supp. 1452 (M.D. Fla. 1997).
This case concerns the facility studied by Vaughn and Smith, which had been operating under
court supervision since 1975 but continued to experience persistent problems in its delivery of
treatment and a disparity in care provided to women inmates. See also Hill, supra note 121, at
225–26 (describing failure of a settlement agreement to achieve improvements in two
California correctional facilities for women).

Vaughn & Smith, supra note 23, at 192. The authors concede however, that despite
corroborating the allegations of mistreatment at the facility, “potential for fabrication by
prisoners render[ed] our conclusions tentative.” Id. at 219. They ultimately cast their findings
of abuse as being “snapshots” of conditions at the facility, partial accounts indicating a
“persistent pattern of medical ill-treatment . . . over the entire five-year period.” Id.

Id. at 199.




Seldin, supra note 122, at 31.



[Vol. 19:259

and subsequent settlement agreements should be abandoned as a strategy for
effecting change. To the contrary, “[w]ithout external supervision of correctional
medical care, . . . ill-treatment . . . would be a far greater problem.”142 The point is
rather that the agreements achieved through litigation must be regarded with cautious
2. The Prison Litigation Reform Act and Implications for Litigation by Pregnant
Fewer correctional facilities today are operating under some variety of court
supervision. In 2000, fifty-nine facilities were being monitored for the “totality of
conditions,” down from 149 in 1995; those facilities being monitored for the quality
of their medical facilities specifically is also down to seventy-five in 2000 from
139.143 Because the quality of conditions in correctional facilities has not
experienced a revolutionary improvement, the decline in the number of facilities
operating under court supervision is likely the result of the Prison Litigation Reform
Act of 1996, which contributed to a reduction in the number of suits brought by
prison inmates seeking to challenge the conditions of their incarceration.144
Exemplifying this trend is the facility evaluated by Vaughn and Smith in their
discussion of penal harm: the consent decree under which it operated “was
terminated pursuant to the 1996 Prison Litigation Reform Act” despite the fact that
this jail had never been in compliance with the decree and its inmates continued to
experience dubious medical care.145 In a study examining prisoner petitions filed in
2000, the PLRA appears to have been successful in reducing caseloads: “Between
1995 . . . and 2000, the number of civil rights petitions decreased from 41,679 to
25,504.”146 The number of civil rights petitions filed per thousand inmates went
from thirty-seven to nineteen.147 While the problems of prisoner litigation—such as
large numbers of usually unsuccessful cases which the PLRA sought, in part, to
address—were evident, they have to be examined in the context in which most
prisoners were litigating: as pro se litigants faced with a high persuasion burden.148
As noted by Schlanger, “[a]ny reform effort . . . faced a very difficult challenge: how
to limit the number of bad cases . . . while protecting and even strengthening both

Vaughn & Smith, supra note 23, at 218.


STEPHAN & KARBERG, supra note 9, at 9.


For a discussion of a better crafted congressional effort to curb prisoner litigation with
the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA), see Susan H. Herman,
Slashing and Burning Prisoners’ Rights: Congress and the Supreme Court in Dialogue, 77
OR. L. REV. 1229, 1270–72 (1998). By comparison to the consideration that went into its
predecessor legislation, Herman notes that “[t]he legislative process leading to the passage of
the PLRA was characterized by haste and lack of any real debate.” Id. at 1276.

Vaughn & Smith, supra note 23, at 184 fn15.


DISTRICT COURT, 2000, WITH TRENDS 1980–2000 1 (2002).



Id. The tastelessly titled Antiterrorism and Effective Death Penalty Act, a companion of
the PLRA, has been less successful in achieving its goal of habeas reform. As noted in the
same study, the rate of habeas petitions filed has increased from nineteen to twenty-three.

Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1692 (2003).




litigation’s already compromised compensation function and the positive effects of
the litigation system on correctional practice.”149
The broader goals of the PLRA were reducing the cost of litigation and the
“flood” of litigation,150 especially of the frivolous sort.151 In 1995, prior to the
passage of the PLRA “civil rights” petitions from inmates—a category that often
includes suits challenging prison conditions—constituted thirteen percent of the civil
cases in federal district courts.152 Although many of these cases are dismissed as
frivolous, Judge Newman warned that among them were “a small number of serious
matters that pose substantial issues.”153 Additionally, while the claims may be
numerous, “prison cases do not consume nearly a proportionate share of the federal
courts’ time. . . . [P]risoner petitions rarely go to trial or even to hearings, and are
generally screened and summarily dismissed at early stages of the proceedings.”154
The legislation creates several disincentives for bringing suits, as described by
Herman’s analysis of the PLRA, including paying filing fees and creating barriers to
in forma pauperis filing. As noted by Ellen Barry, since the passage of PLRA “it has
become substantially more difficult for women prisoners and their advocates to bring
class action litigation.”155 Among the provisions that work a particular hardship
against recently pregnant inmates is the requirement that inmates exhaust their
administrative remedies before bringing suit. This is problematic where those

Id. at 1694.


Notions of a “flood of litigation” are somewhat misleading, when one accounts for the
concurrent growth of inmate populations: “Between 1980 and 1995, the rate at which State
inmates filed civil rights petitions was stable, averaging forty petitions per 1,000 inmates. The
State prison population, by contrast, increased more than threefold from 305,458 during 1980
to 1,025,624 during 1995.” SCALIA, supra note 146, at 3. In this context, the increased
number of suits makes rational sense.

“Frivolity,” notes Herman, “is a self-fulfilling category. As the Supreme Court narrows
the definition of rights and raises procedural hurdles for relief, prisoners are bound to lose
more cases. . . . This result does not necessarily mean that the claims are unworthy, but only
that they are unsuccessful.” Id. at 1295–96. Interestingly, in a study of § 1983 litigation
conducted in 1992, frivolousness as a rationale for dismissal was found only in nineteen
20 (1994). At any rate, the suits brought by pregnant women as individuals or in class actions,
are improperly lumped in any category called “frivolous” given the gravity of the conditions
they challenge.
Jon O. Newman, Pro Se: Looking for Needles in Haystacks, 62 BROOK. L. REV. 519,
519 (1996). Judge Newman’s article exposes the true circumstances behind some of the
infamous prisoner suits—such as the “chunky peanut butter” case—that inspired the PLRA.
See also Herman, supra note 144, at 1296. Many of the cases brought by inmates are
disregarded as being meaningless or trifling, particularly because when they settle, the
settlements are for small amounts of money.



Herman, supra note 144, at 1295.


Barry, Bad Medicine, supra note 52, at 43. Certainly, if any matter were to encourage
courts to review the “‘haystacks’ of prisoner lawsuits for the ‘needles’ of meritorious claims”
it would be the circumstances of pregnant inmates. Newman, supra note 152, at 527.



[Vol. 19:259

procedures require a claim be filed within a short period time after the incident has
occurred for women who have experienced a miscarriage, stillbirth, or the like; “[i]t
seems particularly inhumane to expect a woman who has just lost a child to focus on
something as mundane as filing an administrative appeal. . . .”156 Furthermore,
grievance procedures can be used in a calculating manner by corrections officials
seeking to evade the scrutiny of federal courts. In California, for example,
[p]rison officials can keep . . . women inmates out of federal court
indefinitely simply by choosing not to resolve appeals [brought pursuant
to the state’s administrative relief process]. With seeming disregard for
due process, the PLRA has inadvertently granted the California
Department of Corrections the power to sentence non-violent female
offenders to death by keeping their pleas for medical aid tied up in red
tape until they die.157
Another portion of the PLRA—18 U.S.C. § 3626—is pertinent to the relief
potentially sought by inmates who are able to pass the other PLRA hurdles and
“prevail[] despite the rigors of . . . federal law.”158 Prospective relief under the act
“must be narrowly drawn, extend no further than necessary to correct the violation of
the Federal right, and [be] the least intrusive means necessary to correct the violation
of the federal right.”159
3. Settlement Agreements Post–Prison Litigation Reform Act: Laube v. Campbell
The settlement agreements reached in Laube v. Campbell were the result of a
2001 investigation into conditions at women’s prisons in Alabama and subsequent
litigation which commenced in 2002.160 Their initial claim in the § 1983 class action
suit alleged that the state’s facilities for women prisoners were unsafe, had failed to
provide for the basic needs of inmates, and that officials had been deliberately
indifferent to these circumstances.161 After hearing evidence regarding a preliminary
injunction and visiting two of the facilities himself, the judge observed that at one
facility “unsafe conditions . . . are so severe and widespread today that they are
essentially a timebomb ready to explode facility-wide at any unexpected moment in
the near future.”162 The court rejected the initial attempt of officials to craft a plan

Barry, Bad Medicine, supra note 52, at 43. Barry recommends that the PLRA be
amended to accommodate the experiences of pregnant prisoners, “waiv[ing] strict adherence
to the administrative appeals provision of the Act in instances where a women prisoner has
suffered a miscarriage, the death of a child, serious complications during pregnancy. . . .” Id.

Hill, supra note 121, at 227.


Herman, supra note 144, at 1286.


18 U.S.C. § 3626(a)(1)(A). The provision for preliminary injunctive relief under
§ 3626(2)—discussed at length in the Laube litigation infra—is very similar.

Laube v. Haley, 333 F.Supp.2d 1234, 1246 (M.D. Ala. 2004).


Laube v. Haley, 234 F.Supp2d 1227, 1230 (M.D. Ala. 2002) (granting preliminary
injunction at Tutwiler facility with regard to overcrowding and understaffing, but denying
injunction for Mitchell and Birmingham facilities).

Id. at 1252.




for rectifying circumstances at the facilities.163 While a subsequent plan was drafted,
submitted, and evaluated through late February and early March, the preliminary
injunction issued on December 2, 2002, expired per the requirements of § 3626(a)(2)
of the PLRA.164 This apparently caught all concerned by surprise, as action on the
matter had proceeded without concern for or apparent knowledge of the March 2,
2003 expiration—plaintiffs responded to the defendants’ plan on March 3 and a
hearing occurred on March 6.165 It was only after the hearing that the court
determined it needed to “research[] the limits” that the PLRA created for such
injunctions.166 Judge Thompson conceded in his ruling that “both the court and the
parties will have to be more attentive to the PLRA’s requirements.”167
All was not lost however. During a conference among the parties and the judge,
the defendants “assured the court that they intended to go forward with their initial
and supplemental remedial plans, regardless of the status of the preliminary
injunction.”168 In 2004, the parties met to discuss settlement and then commenced
mediation (overseen by a federal magistrate judge).169 In addition to adhering to the
normal review requirements mandated by federal civil procedure rules, Judge
Thompson was careful to ensure that aspects of the PLRA did not go ignored. He
stated, “[a]lthough ‘private settlement agreements’ are not subject to the statute’s
limitations, . . . the agreements in this case are subject to judicial enforcement and
are thus within the scope of the statute.”170 All parties acknowledged that the
agreement “satisfi[es] the statute’s three-part ‘need-narrowness-intrusiveness’
requirements.”171 Judge Thompson also clarified that the healthcare monitor
provision of the Medical Settlement Agreement did not implicate the PLRA’s
provisions regarding Special Masters.172 After reviewing the agreements for fairness,
adequacy, and reasonableness, Judge Thompson approved them, stating that they
would “not make the Alabama Department of Corrections’ women[s’] facilities

Laube v. Haley, 242 F.Supp.2d 1150 (M.D. Ala. 2003). The proposed plan was rejected
because: (1) in requesting the court to restrain or prohibit the transfer of inmates to one of the
facilities, the defendants sought something in violation of both a state-court order and the
PLRA’s provisions limiting the power of single-judge courts; and (2) defendants’ admission
that their proposed plan was hindered by insufficient funding. Id. at 1152.

Laube v. Campbell, 255 F.Supp.2d 1301, 1303 (M.D. Ala. 2003).






Id. at 1304.


Id. at 1303.


Laube v. Haley, 333 F.Supp.2d 1234, 1237 (M.D. Ala. 2004).


Id. at 1238.




Id. at 1239–40. To accomplish this, Judge Thompson analogized the role of the
healthcare monitor to that of a similar function in a Second Circuit case where the monitoring
function was held to be dissimilar from that of a special master. Id.



[Vol. 19:259

comfortable or pleasant places, but . . . [would] afford class members the basic
necessities mandated by the United States Constitution.”173
The agreements reached—one addressing general conditions at the facilities174
and one addressing provisions of medical care175—were intended to improve the
circumstances of all women incarcerated within the Alabama correctional system.
However, the Medical Settlement Agreement made specific provision for the care of
pregnant women. At intake, women would be screened for pregnancy and an
obstetrical history would be taken.176 This initial step ensures that pregnant women
will be provided appropriate care immediately upon being received into the facility.
Furthermore, as illustrated by Coleman v. Rahija, knowledge of a woman’s
obstetrical history can be an indication that a current pregnancy may need to be
monitored more closely.177 The Agreement also makes a clear provision for the level
of care pregnant inmates shall receive, appropriate diet, and how to address high-risk
Pregnant prisoners shall be monitored regularly by a medical doctor or
physician assistant with obstetric specialty, in accordance with American
College of Obstetrics and Gynecology (“ACOG”) guidelines for prenatal
care. Pregnant women shall be provided an appropriate diet and
supplemental vitamins, and given the opportunity to request and receive
educational information regarding pregnancy. Gestational diabetics shall
be treated according to ACOG guidelines. All high-risk pregnancies, as
well as women near term, shall be closely monitored and treated. Upon
return from the hospital post-delivery, women prisoners will be allowed
appropriate bed rest and time for recovery.178
Other provisions in both agreements will make distinct improvements for the care
of pregnant women as well. The Medical Settlement Agreement requires counseling
to be available to women “to address depression and to resolve issues associated with
the victimization from sexual and physical abuse”179 and the Conditions Settlement
Agreement mandates “adequate and appropriate drug treatment programs.”180 Both
these aspects of the agreement address long-standing issues faced by women
inmates. Furthermore, the Medical Services Agreement requires that help be
provided to women who will need medical care after leaving prison, including


Id. at 1246.


Id. at 1248.


Id. at 1253.


Id. at 1255.

Coleman v. Rahija, 114 F.3d 778, 785 (1997) (in which plaintiff “presented evidence of
her previous rapid labors and premature deliveries to establish a substantial risk of pre-term

Laube, 333 F. Supp.2d at 1258.


Id. at 1260.


Id. at 1250.




referral for further medical services and assistance in applying for Social Security
benefits for eligible women.181
The agreements reached and approved in Laube demonstrate that litigation after
the passage of the PLRA remains a viable option for pregnant women incarcerated
under substandard conditions. It provides a blueprint for succeeding in a climate
more hostile to prisoner litigation, including how to elude problematic aspects of the
legislation. How this affects the actual conditions of women in the Alabama system,
of course, remains to be seen; nevertheless, Laube sends a clear message that the
needs of this population will not be ignored once the considerable hurdles of the
PLRA’s other modifications are cleared.
B. Proactive Change: Avoiding Litigation Through Legislative Action
The potential for the action of state legislatures to change conditions for pregnant
women in any meaningful way is somewhat limited by the exigencies of election
politics in an atmosphere that favors a “get tough on crime” philosophy. However,
given that litigation is no guarantee for improvement and that the PLRA limits its
use, clearly legislative action can only help these women. Furthermore, legislation
can create an atmosphere for encouraging correctional facilities—by providing
funding, indicating concern through hearings, and so forth—to take proactive steps
to improve conditions for pregnant women.182 That is, corrections officials with
limited resources and unlimited demands on those resources may respond favorably
to signals from state legislators indicating support for improved care of pregnant
inmates.183 Action by state legislatures would probably save money drawn from state
coffers to wage costly litigation battles by directly addressing problems that some
corrections officials seem to favor managing in court. “[P]rison conditions cases
sometimes border on collusion,” notes one observer.184 She continues
The prison-warden defendants would certainly prefer to run institutions
that are not overcrowded, that have adequate ventilation, adequate
nutrition, and enough security to prevent inmates from attacking one
another. . . but they often lack adequate funding to do so, and so are
delighted if a court requires the legislature to increase their budgets. . . .
In the type of systemic challenge Congress addressed in [§ 3626 of the


Id. at 1255.


See Barry, Bad Medicine, supra note 52, at 42 (discussing the effect of legislators in

Id. at 43. These officials are often caught in the unenviable position between the Scylla
of limited funding and the Charybdis of prisoner civil rights litigation. While proactive
development of programs might deter some litigation, some officials “have no idea how to
remedy practices.” Nicole Hahn Rafter, Even in Prison, Women Are Second-Class Citizens,
14 HUM. RTS. 28, 31 (1987) [hereinafter Rafter, Second-Class Citizens]. Doing so under the
auspices of legislative approval might relieve some officials of the Catch-22 burden that these
situations present.

Herman, supra note 144, at 1287.



[Vol. 19:259

PLRA], however, the defendants generally would be pleased to address
prisoners’ requests.185
The efforts of the warden at the Tutwiler facility in the Laube legislation is an
example of what the defendant Herman describes: “Warden Deese has made yearly
budget requests, asking for more staff, more holding cells, and additional facilities;
but her requests for more funds have been rejected. . .”186 Finally, if legislatures,
aware of the challenges faced by officials such as Deese, were more realistic about
the requirements under which they are required to imprison people in the process of
waging their “get tough on crime” campaigns—specifically that costs will include
more than simply building more correctional facilities—they might head off some
litigation or perhaps reconsider the wisdom of their policies.187
In charting the direction of improving conditions for pregnant inmates, state
legislatures can attack this problem indirectly, such as through adjustments to
mandatory minimum sentencing legislation or approving funding for more programs
that provide alternatives to incarceration, or directly through mandating appropriate
treatment of pregnant inmates and pretrial detainees.188 California’s Family
Foundations Program (FFP), for example, was established through legislation
specifically for pregnant women and pregnant and parenting women who have
histories of substance abuse.189 This program is a sentencing alternative that
provides substance abuse treatment as well as parenting programs.

Id. As far back as 1981, corrections officials quoted in a Supreme Court concurrence
conceded that “judicial intervention has helped them to obtain support for needed reform.”
Rhodes v. Chapman, 452 U.S. 337, 360 (1981) (Brennan, J., concurring).

Laube v. Haley, 234 F.Supp.2d 1227, 1240 (M.D. Ala. 2002).


Fearn & Parker, Health Care for Women Inmates, supra note 23, at 18.


See Seldin, supra note 122, at 22–27. Seldin, however, in her advocacy proposal for
women offenders, makes the suggestion that in promoting increasing respect for the rights of
these women, their advocates should “promot[e] the ‘woman as victim’ stereotype,” Id. at 4.
Doing so, she argues, garners sympathy for these women which they would not otherwise
receive and this image will contrast the other stereotype of these offenders as “vicious and
subhuman.” Seldin rationalizes this approach as the best means to achieve the end of bettering
conditions for these women. “Reinforcing the gender stereotype is troubling,” she concedes.
“Yet, to empower offenders by portraying them as victims is a worthwhile tradeoff.” Id.
However, this suggestion is faulty, in part because “uncritical acceptance of victim rhetoric
can derail political efforts to challenge oppression.” Martha Minow, Surviving Victim Talk, 40
U.C.L.A. L. REV. 1411, 1413 (1993). Furthermore, a history of sexual and/or physical abuse
has also condemned these women to disabling passivity, especially when such experiences can
sometimes inspire women to take proactive steps to change their circumstances. Id.

CAL. PENAL CODE § 1174–1174.9 (Deering 2006). California’s legislature also
established a program for inmate mothers called the Community Prisoner Mother Program.
CAL. PENAL CODE §§ 3410–24. The latter program is intended for parenting women who have
already been sentenced to prison, but pregnant women may be eligible for participation. The
programs have only limited availability—around seventy-one beds for the CPMP and seventy
for the FFP—despite high demand for the services provided. For greater detail about each of
these programs, see Kelly Parker & Noelle Fearn, Mothers behind Bars: Challenges and
Mark Tomita, eds.) (forthcoming).




States developing legislation to address the situations of pregnant inmates
specifically have a variety of options to consider, including standards promulgated
by groups such as ACOG and the American Correctional Association or standards
required by corrections organizations that provide accreditation to correctional health
care systems, such as the NCHCC.190 Settlement agreements that have addressed the
needs of pregnant women—either exclusively or within the context of larger
agreements addressing health care for women inmates, as was the case in Laube—
are also instructive, particularly for those legislatures seeking to avoid litigation.
Legislators can also look to the work of their peers in other states. Provisions for
the care of pregnant inmates provide a spectrum of examples, from the somewhat
minimalist approach of Indiana191 to the more detailed legislation of Florida.192 New
York legislation makes ample provision for birth arrangements and care for the
infant after its birth—which may be permitted within the facility itself for up to one
year of age and sometimes up to eighteen months—or its placement.193 Tennessee
allows some pregnant inmates a furlough of up to six months “to permit the giving of
birth and the ‘bonding’ between mother and child.”194
C. Innovative Programs for Pregnant Inmates
Examples of successful programs for pregnant women involved in the criminal
justice system are notable. These programs have helped women in correctional
facilities themselves as well as those in programs in the community corrections
setting.195 In developing programs for these women, it is important to explore


Nebraska, in its Correctional Health Care Services Act, mandated both that protocols be
developed for its correctional facilities that were in keeping with “a community standard of
health care” and that its state correctional department to seek accreditation by the American
Correctional Association for its medical program. NEB. REV. STAT. § 83-4, 160, 165
(LexisNexis 2006).
IND. CODE § 11-10-3-3 (2004). The Indiana statute merely provides for “necessary
prenatal and postnatal care” and allows for delivery outside the correctional facility “when
possible.” Although its language is sparse and somewhat vague, some specific provision for
the care of pregnant inmates is better than no specific provision.

FLA. STAT. ANN. § 944.24 (West 2006). In addition to providing the inmate with
prenatal care, the Florida statute requires appropriate diet, clothing, and work assignments and
transfer outside the facility to a hospital for pregnancies “beyond the scope and capabilities of
the prison’s medical facilities.”

N.Y. CORRECT. LAW § 611 (McKinney 2006).


TENN. CODE ANN. § 41-21-227(h)(1) (West 2006). In turn, this lets the state off the
hook with regard to payment for the delivery, as the corrections department “shall not be
responsible for any expenses, medical or otherwise, incurred by the inmate while on

Facilities housing such programs “provide a much more child-friendly setting and
provide intense supervision for women. . . . [T]hese community corrections facilities harbor
great potential as laboratories for innovation in the punishment and rehabilitation of female
offenders.” Alternative Sanctions, supra note 121, at 1932.



[Vol. 19:259

alternatives to incarceration more fully with regard to pregnant women inmates, who
are less likely to be violent.196
In developing programs for pregnant women in either setting, some needs are
universal, including improving prenatal education that includes explanations of the
birthing process197 and providing classes that teach parenting skills.198 Furthermore,
whether examining programs within correctional facilities or in community settings,
it is also important to consider the larger challenges faced by pregnant women—
particularly the difficulties they will face as mothers after being re-integrated into
society. Thus, addressing the situations of pregnant women must also give
consideration to housing needs as well as the necessity for education and vocational
1. Programs Serving Pregnant Inmates Within Correctional Facilities
Generally, for conditions for pregnant women to improve in correctional facilities
the ideal would be the creation of national standards for their care.200 Short of that,
increased numbers of facilities seeking accreditation would also facilitate
constructive change.201 Given that there is no shortage of standards to draw from,
correctional facilities have the tools to develop internal policies of their own.202
Officials ideally can exhibit an awareness of the needs of this population through
policies that seek “to reduce stress, to decrease environmental restrictions, to
promote a healthy lifestyle, and to develop decision-making and coping skills for
resolving infant placement problems and assuming a maternal role after birth.”203
Specific provisions might include efforts to ameliorate the “physical problems” of
pregnant inmates by providing a full-time doctor or nurse, providing special diets
and appropriate work assignments, and providing “less crowded”


This recommendation is raised by many legal and social science scholars. See, e.g.,
Acoca & Raeder, supra note 36; Alternative Sanctions, supra note 121, at 1921; Ross &
Lawrence, supra note 8, at 128; McHugh, supra note 47, at 259. Access for women to
programs that provide alternatives to incarceration have sometimes been quite limited,
especially in the area of drug treatment programs. Alternative Sanctions, supra note 121, at
1939. For drug-addicted pregnant women, these barriers are particularly daunting—some
programs refuse to admit pregnant women. Id. at 1939–40.

Hufft et al., supra note 29, at 58.


Barry, Bad Medicine, supra note 52, at 43. An additional consideration for women
inmates is an abolition of the use of restraints when transporting pregnant women to hospitals
to give birth.

Shearer, supra note 36, at 47.


See, e.g., Barry et al., Legal Issues, supra note 7, at 160 (arguing that “widespread
change within the correctional system remains hampered by the lack of national standards
specific to the needs of pregnant prisoners”).
However, as noted by the study by Vaughn and Smith, accreditation is not fail-safe
itself. See Vaughn & Smith, supra note 23.

See, e.g., McHugh, supra note 47, at 247–48 (citing standards developed in 1870 and


Hufft et al., supra note 29, at 56.




accommodations.204 Additionally, in facilities where women are not permitted to
keep their infants with them, some provision should be made for these women “to
stay with their newborns for a minimum of seventy-two hours.”205 The Federal
Bureau of Prisons (BOP) has developed a strategy for dealing with pregnant inmates
in its Health Services Manual and through other policies.206 At intake, women are
tested for pregnancy and those identified as pregnant are to be referred to a physician
within fourteen days.207 Ideally, then, inmates are to receive appropriate “medical
and social services related to . . . pregnancy, child placement, and abortion”208 and,
once the birth approaches, medical officials arrange for the birth to take place “at a
hospital outside the institution.”209
Developments at the Santa Rita County Jail in Alameda County, California,
following the settlement of Jones v. Dyer, provide an example of the medical care
that can be provided to incarcerated pregnant women.210 The jail has a facility
geared toward providing “comprehensive OB/GYN and prenatal services” for
inmates in which staff are provided through a contractual arrangement.211 The
OB/GYN services are provided “by a multidisciplinary medical team composed of a
perinatal case manager, a nurse practitioner, a physician and a nursing staff.” Care
for substance abuse is also provided. Women at the jail receive appropriate diets,
prenatal care, and social services that “include information and assistance on
adoption, resources and coping skills for single-parent mothers, options and skills for
child care, and family planning.”212


Wooldredge & Masters, supra note 54, at 196–97. Separate living facilities for
pregnant women is their specific recommendation; however, this seems improbable.

Barry, Bad Medicine, supra note 52, at 43.


policies and procedures must be read with a note of caution, as their practices may not reflect
these written norms.

Id. at XI-1–2.


Bureau of Prisons, Policy Statement 6070.05, Birth Control, Pregnancy, Child
Placement, and Abortion (1996).
28 C.F.R. § 551.22(c) (2003). This rule became effective in 1999. 64 Fed. Reg. 9429
(Feb. 25, 1999).

Other notable programs within correctional facilities are those that incorporate
nurseries, including the Children’s Center at New York’s Bedford Hills Correctional Facility
and the Residential Parenting Program at the Washington Corrections Center for Women. See
Washington State’s Residential Parenting Program: An Integrated Public Health, Education,
and Social Service Resource for Pregnant Inmates and Prison Mothers, 2 CAL. J. OF HEALTH
PROMOTION 34 (2004). Maryland has also implemented a number of innovative programs that
focus on the needs of all women inmates. See LaMont W. Flanagan, Meeting the Special
Needs of Females in Custody: Maryland’s Unique Approach, 59 FED. PROBATION 49 (1995).

Ross & Lawrence, supra note 8, at 126.


Id. at 128.



[Vol. 19:259

To make similar programs and policies more affordable to more facilities—
especially important considering that few facilities are as large as that in Alameda
County—Nicole Hahn Rafter recommends that “local, state, and federal prison
systems . . . pool resources for dealing with women. . . . [C]ooperative measures
would enable women’s institutions to specialize, providing prisoners with a greater
range of programs.”213
2. Programs Serving Pregnant Inmates Through Alternatives to Incarceration
Incarceration for certain women—particularly nonviolent offenders—has been
deemed by some to be “unnecessary and counterproductive.”214 In addition to not
serving “relevant penological goals” for these offenders, incarceration is often “not
cost-effective [and] . . . harmful to her children.”215 Probation is one option to
consider for these women.216 However, programs that might be most effective for
these women “are those sanctions that are adapted to their characteristic
circumstances: nonviolent offenses, parenthood, drug use, and domestic violence.”217
These alternatives address the “[o]vercrowding and overuse of women’s prisons . . .
by planning creatively for reduced reliance on imprisonment for women.”218
A Michigan program developed by social workers and corrections officials, the
Women and Infants at Risk (WIAR) program, is illustrative of how such programs
can help pregnant women offenders in a community corrections context. Admission
to the program was limited to women who had histories of substance abuse and who
had sentences of less than two years.219 Once admitted to the program, women began
receiving prenatal care and were given assistance in gaining access to social services,
among other things.220 Women in the program gave birth at a local hospital where
they could be assisted by a nurse midwife and a labor coach.221 Other critical services


Rafter, Second-Class Citizens, supra note 183, at 31.


Alternative Sanctions, supra note 121, at 1929.



It should be noted that race plays an important role in determining how this sanction is
meted out, one which appears inequitable. Whereas sixty-two percent of women afforded the
privilege of probation were white in 1998, only thirty-eight percent of these were women of
color. GREENFELD & SNELL, supra note 9, at 6.

Alternative Sanctions, supra note 121, at 1930. See also Seldin, supra note 122, at 23.


CHESNEY-LIND & PASKO, supra note 13, at 166. The authors also raise the possibility of
a “moratorium” on the building of prisons for women, instead funneling those monies toward
“services that would prevent women from resorting to crime.” Id.
Siefert & Pimlott, supra note 32, at 130. Other criteria for admission included no
history of escape from correctional facilities, nonviolent offenses, no history of “criminal
sexual misconduct,” pregnancies prior to the thirty-second week if no prenatal care had been
provided (thirty-six weeks with prior care). Id.

Id. at 131.

Id. Birth outcomes for women in the WIAR program were better than those
documented in other studies. Id. at 132. However, the authors cautioned that the success was
due to more than merely the program itself: “The selection criteria used for entry into the
program may have favorably influenced birth outcomes among participants, although in




provided to WIAR participants included individual counseling, “didactic sessions for
substance abuse” and Narcotics Anonymous meetings, and family and couples
counseling.222 Many of the services provided to the women in the program were
coordinated through partnerships with local community service providers. Once
women moved into the final phase of the program, they were assisted in making
arrangements for life in the community, including “housing, aftercare services,
medical care, and appropriate day care.”223
Pregnant women living in correctional facilities against which litigation has been
successful have seen improvement in the conditions under which they live.
However, successes seem to occur only within specific facilities and achieving
change on a larger scale, such as through creation of national standards, remains
elusive. Therefore, the progress of efforts to improve the conditions of pregnant
women incarcerated in our nation’s jails and prisons can only be described as
Sisyphean because the challenges which have long been complained of persist
despite consistent efforts to improve them and where improved policies are
developed, problems such as overcrowding roll back any positive developments.
This remains true even in California, where despite litigation, seeking improvements
for these inmates remains critical. In 1997, a woman incarcerated at the California
Institute for Women224 faced labor largely alone, due to the refusal of the nurse—the
sole medical staff member available that day—to assist her in the process, aside from
strapping the inmate to a gurney and restraining her arms.225 Her infant was born
unable to breathe. The nurse, handy with restraints but not with a breathing
apparatus to help the infant, called paramedics, who transported him to a nearby
hospital where he was declared brain dead.226 In addition to experiences such as this,
several other challenges described by McHugh in 1980 are as-yet unaddressed in
many facilities housing pregnant inmates. And as recently as 2004, an incarcerated
woman could face a fate similar to that of Kimberly Grey, a former jail inmate who

practice a number of the participants who were screened initially and accepted into the
program subsequently were found to fall into one or more high-risk categories.”





This facility has been subject to considerable legal scrutiny. It was the object of a suit
in 1985—Harris v. McCarthy—which led to a settlement agreement that specified several
specific measures for caring for pregnant inmates. See Barry et al., Legal Issues, supra note 7,
at 159. Another class-action lawsuit was brought against the facility in 1995 alleging poor
medical care. As noted by Ellen Barry, despite achieving another settlement agreement in the
1995 litigation, any improvements achieved because of the agreement “were difficult and
many problems remained at the close of the monitoring period.” By 2000, efforts to achieve
anything further were abandoned. Barry, Bad Medicine, supra note 52, at 43 One possible
explanation for the subsequent suit may be that the prison was required to report progress to
attorneys only for eighteen months regarding actions taken to effectuate the settlement,
reached in 1987. Barry, Pregnant Prisoners, supra note 5, at 197 (1989).

Barry, Bad Medicine, supra note 52, at 40.





[Vol. 19:259

brought suit “over the death of her baby, born over a cell toilet even though she
complained of labor pains for nearly twelve hours.”227
Although litigation remains the primary means by which conditions are improved
for these women, more attention should be devoted to creating legislative change and
developing innovative pgrogarming. Many of the changes recommended for women
inmates focus on alternatives that emphasize “address[ing] the problems of women
on the economic and political margins rather than expensive and counterproductive
penal policies.”228 The most significant agent responsible for this sort of policy shift
comes from legislators who may not be up to the task: “the response to women’s
offenses addresses human needs rather than short-sighted objectives of lawmakers
who often cannot see beyond the next sound bite or election.”229 Persuaded by wellspoken advocates of these women, however, legislators might consider looking
beyond their own self-interest to focus on women who society has largely left
behind. Reforms must address both alternatives to incarceration as well as
conditions in correctional facilities—this ensures that pretrial detainees and women
for whom such alternatives are not appropriate are not forgotten. Federal change
seems unlikely, in our current political climate, and thus state-by-state lobbying in
legislatures bears the most possibility for change. With regard to programming,
many examples exist which corrections officials can use as a starting point to craft
solutions, both for pregnant jail and prison inmates.
The treatment of pregnant inmates deserves special attention because of the
devastating—and sometimes fatal—outcomes that sometimes result from improper
or insufficient care. For any woman, incarcerated or not, pregnancy is a difficult
physical experience. For pregnant inmates these difficulties are aggravated by a
number of factors that make their pregnancies high risk. The wellbeing of a
woman’s baby is also contingent on the quality of care the mother receives and some
of the problems experienced by these babies could be mitigated through proper
treatment of the mother during her pregnancy. What is necessary for the proper care
of these inmates is clear, encompassing not only appropriate prenatal diet and
medical care, but also vigilance on the part of correctional personnel who are well
aware of the fact that many of these pregnancies are high risk.
Notions about the Eighth Amendment standing for what Chief Justice Warren
described as “evolving standards of decency that make the progress of a maturing
society” have little meaning when pregnant women incarcerated in our nation’s
prisons and jails still endure conditions similar to women prisoners in the eighteenth
century. Those high aspirations remain unfulfilled for many women in these
facilities. Neglecting these women hurts them, their infants, and the larger society.
However, examples of change through litigation, legislation, and programs do help
these women. These strategies can transform the promise of the Eighth Amendment
and the Due Process Clause into a consideration for the “dignity of man” that


Inmate Sues over Death of Her Baby, CHI. TRIB., Section 1 p.25 (Dec. 12, 2004).
According to this news report, “Grey was leaking amniotic fluid, running a fever and had
asked repeatedly to be taken to a hospital before the March 5 birth.” Id. The incident took
place in Tampa, Florida.

CHESNEY-LIND & PASKO, supra note 13, at 168.






includes pregnant women rather than sacrificing them to unnecessarily harsh and
inhumane conditions.