Local and regional jails have not made available the data on the number of pregnant inmates who have been restrained, using what type of restraints, and under what circumstance. The proposed regulations implement reporting of the use of restraints on pregnant inmates, an important provision that ensures compliance and accountability when currently there is neither. Further, the reporting provisions of the proposed regulations ensure accountability that is protective of correctional officers by documenting that any use of restraints was in compliance with these proposed regulations. Policies on the use of restraints on pregnant inmates now vary across locality. It is crucial that a uniform standard is adopted for local and regional jails in order to ensure the safety and dignity of women and their pregnancies.

In 2011, the American Civil Liberties Union of Virginia sent Freedom of Information Act requests to several local and regional jails in the state to assess their restraint policies. A review of the policies provided by 6 facilities provided illustrative examples: As one example, one facility’s policy does not allow for the use of restraints during labor and delivery, but restraints are allowed when authorized by the Captain of Security. That policy did not indicate what types of incidents prompt the Captain of Security to authorize the use of restraints, and it is thus unclear if there is a protocol or standard used for determining when restraints can be used. That policy showcases the need for a uniform standard for the exceptions in which restraints are allowed, as these regulations propose. Also, that policy did not address the types of restraints used during transport on pregnant inmates and states that leg irons will be used during post partum recovery. As a second example, another facility’s policy states that any inmate escorted outside of the detention center will be restrained by handcuffs, a waist chain and leg shackles, with no mention of an exception for pregnant inmates whose health and safety are at risk when those types of restraints are allowed.

Restricting the use of restraints on pregnant women inmates will not jeopardize the safety of correctional or medical staff, the inmate, or the public.  The proposed regulations create a broad exception allowing for the use of restraints when an inmate poses a danger to herself or others. Further, the proposed regulations allow for the use of soft handcuffs during transport. The vast majority of female inmates in Virginia are non-violent offenders who pose a low security risk, particularly during labor and postpartum recovery. Among the states that have restricted shackling of pregnant inmates none have documented instances of women in labor or delivery escaping or causing harm to themselves, the public, security guards, or medical staff.

Preventing the shackling of pregnant women is sound public health policy.  Restraining a woman who is pregnant can pose unique health risks to the woman and her pregnancy.  Inmates who are restrained face an increased potential for physical harm from an accidental trip or fall, which can endanger the health of the woman and her pregnancy. Restraints can prevent a pregnant woman from breaking a fall if she trips or loses her balance and impede her ability to protect her stomach if she is jostled around in a prison van driving quickly to the hospital. Belly or waist restraints can bruise a pregnant woman’s abdomen and pose a risk to fetal health.

Unrestrained movement is especially critical during labor, delivery, and postpartum recovery.  Women often need to move around during labor and recovery, including moving their legs as part of the birthing process. Because shackling limits the ability of a woman to move during labor she is left unable to adequately shift positions in order to manage the extreme pains of labor and childbirth. Given the nature of childbirth, shackling women during labor can lead to bruising as a result of leg and abdomen restraints. Leg restraints also cause severe cuts on women’s ankles because of the strains associated with childbirth.

Restraining a pregnant woman can interfere with the medical staff’s ability to appropriately assist in childbirth. When restraints are used during labor, doctors are limited in how they can manipulate a mother for the safety of the fetus. The absence of physical restraints is essential so that medical staff can easily conduct any necessary emergency procedures. During the final stages of labor it is important for the physician to act quickly in order to avoid potentially life-threatening emergencies for both the mother and the fetus. Shackles severely limit this and as such pose a threat to the survival of the fetus. In instances necessitating an emergency C-section, a delay of as little as five minutes is enough to cause permanent brain damage to the child.

Following birth, it is critical for a woman to remain unshackled to prevent postpartum hemorrhage.  Freedom from shackles after delivery also fosters postpartum bonding between a mother and her newborn, which is essential to the healthy development of the child.

Major national correctional and medical associations oppose the shackling of pregnant women.  The Federal Bureau of Prisons, the U.S. Marshal Service, the American Correctional Association, the American College of Obstetricians and Gynecologists, the American Medical Association, and the American Public Health Association have all recognized that shackling women during labor, delivery, and postpartum recovery is unnecessary and dangerous to a woman’s health and well being.

The nation’s leading experts in maternal, fetal and child health care, the American College of Obstetricians and Gynecologists (ACOG), have clearly stated their opposition to the practice of shackling.  According to ACOG, shackling interferes with the ability of physicians to safely practice medicine and is “demeaning and unnecessary.”

The American Medical Association (AMA) adopted a resolution supporting restrictions on the use of restraints of any kind on a woman in labor, delivering her baby or recuperating from delivery unless the woman is an immediate and serious threat to herself or others or a substantial flight risk.  The AMA’s resolution also supports restrictions on the shackling of pregnant women and girl prisoners in the 2^nd and 3^rd trimester of pregnancy.

The American Public Health Association recommends that, “[w]omen must never be shackled during labor and delivery.”

The Federal Bureau of Prisons, the U.S. Marshals Service, and the American Correctional Association have all adopted policies to limit the use of shackles on pregnant women prisoners.

Virginia’s own Department of Corrections (DOC) limits the use of restraints on pregnant inmates. The DOC policy states that pregnant inmates will only be restrained during transport outside the prison perimeter by handcuffs alone.

Preventing shackling is a sound legal policy for Virginia.  It is cruel and unusual punishment—in violation of the Virginia and federal constitutions—to shackle a pregnant woman during labor and delivery.  Applying such restraints demonstrates a deliberate indifference to a prisoner’s serious medical needs, and runs counter to long-established Supreme Court precedent protecting prisoners’ 8th Amendments rights.

The Supreme Court held thirty years ago that prison officials violate the Eighth Amendment when they act with deliberate indifference to prisoner’s serious medical needs.  Estelle v. Gamble, 429 U.S. 97, 104 (1976).  Moreover, federal courts have expressly condemned the practice of shackling pregnant women in labor as a violation of the Eighth Amendment.  Nelson v. Correctional Medical Services, 583 F.3d 522, 533 (8th Cir. 2009) (denying summary judgment for officer because shackling pregnant prisoner during labor clearly established as a violation of the Eighth Amendment); Women Prisoners of D.C. v. District of Columbia, 93 F.3d 910, 918, 936 (D.C. Cir.  1996) (Recognizing that correctional authorities cannot use “restraints on any woman in labor, during delivery, or in recovery immediately after delivery” and noting prison did not challenge district court’s finding that “use of physical restraints on pregnant women . . . violate[s] the Eighth Amendment”); and Brawley v. State of Washington, 712 F.Supp.2d 1208, 1221 (W.D. Wash 2010) (denying summary judgment because shackling a prisoner in labor clearly established as a violation of the Eighth Amendment).

Until regulatory change is made in an effort to protect the health and dignity of the incarcerated mother and her fetus, pregnant prisoners will face the possibility of unnecessary and dangerous health risks, degrading treatment, and little accountability will be placed on correctional institutions.

The stories gathered from women who have been restrained while pregnant and incarcerated can be found here: