Victory for incarcerated pregnant women

This week, a victory from the folks at the National Advocates for Pregnant Women and the ACLU.
This case is pretty horrific. You can see more about Nelson’s story in the RH Reality Check video after the jump. More info:

On Friday, the United States Court of Appeals for the Eight Circuit (the federal level appellate court that reviews decisions from federal district courts in North Dakota, South Dakota, Iowa, Nebraska, Missouri, Minnesota, and Arkansas) issued the long-awaited decision in Nelson v. Norris. In this case, Shawanna Nelson argued that being forced to go through the final stages of labor with both legs shackled to her hospital bed was cruel and unusual punishment, in violation of the 8th Amendment to the Constitution. She argued that she should be allowed to sue the director of the prison and the guard who repeatedly re-shackled her legs to the bed. Ms. Nelson, an African-American woman, was incarcerated for non-violent offenses of credit card fraud and “hot checks.”

The idea of shackling any person during labor is abominable, but in this case the one argument for the practice is bunk. The only argument I can think of (which I definitely don’t agree with) is that an incarcerated person could be “dangerous” and therefore need to be restrained, even while giving birth. It’s ludicrous for even the most “violent” of criminals, let alone a woman like Nelson, who was incarcerated for CREDIT CARD FRAUD. Absurd.


Luckily, she won her case this week. Unfortunately, the case wasn’t even about the practice of shackling, but about her right to sue the guard. Legal craziness.

In this historic federal court decision, the Court held that the guard was not immune from (protected from) suit because it has been clearly established by the decisions of the Supreme Court and the lower federal courts that shackling pregnant women in labor violates that 8th Amendment’s prohibition on cruel and unusual punishment. The Court suggested that the corrections officers should have known that the medical risks of shackling were “obvious” and that “the shackles interfered with Nelson’s medical care, could be an obstacle in the event of a medical emergency, and caused unnecessary suffering at a time when Nelson would have likely been physically unable to flee because of the pain she was undergoing and the powerful contractions she was experiencing as her body worked to give birth.”

It’s a big win, giving both incarcerated women a vehicle through which they can fight back against these policies. But it was a struggle, which you can read more about on the NAPW release.

That this decision is “historic,” and that five of the eleven circuit court judges dissented, makes clear both how far we have come and how far we still have to go to ensure the civil and human rights of all pregnant women (the dissent in Friday’s opinion saw no “clearly established” constitutional violations in shackling Ms. Nelson during labor.)

Cross-posted at Radical Doula

Join the Conversation

  • allegra

    Glad to hear it. I find this practice un-fucking-believable.
    *wonders where all the baby-loving anti-choicers and forced-birthers are* – Oh, that’s right, they actually don’t give a shit about healthy mothers or babies, or where the baby’s birthed, or if the mother’s in fucking chains, as long as you GET THAT BABY OUT of that godforsaken evil woman’s body. Actually, if they had their way, I bet the chains would be their favorite instrument.
    And, seriously, the “but the prisoner might run away” shit kills me. So these people mean to tell me, after the millions we dump into our prison system, that they have no other more humane means besides shackling to ensure that someone doesn’t “escape” or “become violent”? Fucking nuts.

  • allegra

    Oh, wait, what?! It just says she can sue the guard (most of whom, I’m going to guess, are only doing what they’re told)? wtf?

  • allegra

    Ah. She was in a HOSPITAL. And they took them off so the nurses wouldn’t see, then put them back on again? OK. This is even more fucked.

  • anna_banana

    oh my god i cant believe they did that to her… definitely depressing news of the day. sigh.

  • stellarose

    National Advocate for Pregnant Women does such wonderful and important work, and really works hard to get results for women. I definitely recommend anyone who is interested in reproductive rights issues putting this on their list of feminist organizations to support and follow!

  • biancamarissa

    I have heard that the 8th Circuit is the most conservative Circuit in the nation. With 5 judges dissenting, I can believe this is true.

  • alixana

    Unfortunately, the case wasn’t even about the practice of shackling, but about her right to sue the guard. Legal craziness.
    Not craziness. I don’t have time to look deeper than what you excerpted, but I’m guessing that the way this went is that Nelson sued the guard in the original court case, ’cause as already pointed out in the article, the USSC has already spoken and said that shackling women in labor is cruel and unusual punishment under the 8th amendment. The lower court probably ruled something like she didn’t have standing to sue him, so she lost (or it was dismissed, or however it went). So she appealed to the next highest court arguing that the lower court erred in saying she couldn’t sue the guard. That would have been her only argument, she wouldn’t have asked the next highest court about the shackling at all when her case was lost based on the court saying she couldn’t sue the guard. The appeals court said, “You’re right, we agree with you, the lower court was wrong and you CAN sue the guard.” So it will probably now be remanded back to the lower court for Nelson to actually go about suing the guard.
    Of course, I’m probably wrong in my details about why each decision was made, but that’s how things generally go as they progress through the different levels of the courts. You don’t just submit the entire situation to the court, you have to have specific arguments, and when you go to the appeals court, you have to tell them what you think the lower court did wrong.

  • glasseyegirl

    a few years ago i read about this practice in an article (i think it was in the new york times) and that is just INHUMAN. i’m glad to see some legal progress being made here.