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Banning Shackles During Birth And Menstrual Equity Behind Bars

Wednesday, March 24, 2021

Sarah Blackstock Editor-in-Chief (2021 – 2022)

America has a period poverty and maternal health problem. In a country where menstrual products frequently are not covered by assistance programs,¹one in four teens have missed school due to lack of access,² and the maternal mortality rate is approximately eighteen deaths for every 100,000 births,³ it is no surprise that these problems extend to prisons and jails too.

The number of incarcerated women has increased at twice the rate of men since 1980.⁴ As of 2019, there were approximately 230,000 women incarcerated across the country, including over 100,000 in local jails—60% of whom have not been convicted and are awaiting trial—and another 100,000 in state prisons.⁵ This increase, alongside the history of prison facilities, has inevitably left women to be incarcerated in a system organized with only men in mind. As long as we plan to keep the incarceration system intact, it is our ethical duty to ensure the basic needs of female inmates who menstruate or give birth while incarcerated are met, rather than treating them like an afterthought.

Menstruating makes monthly supplies a necessity. Lack of access to period products in jails and prisons is a serious issue. In fact, only thirteen states require access to menstrual products.⁶ Therefore, a majority of incarcerated women are succumb to humiliating, unhygienic circumstances where a lack of menstrual supplies results in these women having to wear soiled clothing until laundry day arrives.⁷ One woman testified to lawmakers that she was forced to have an emergency hysterectomy due to toxic shock syndrome caused by the makeshift tampons she used in prison.⁸ She also told stories of women missing family visits and opportunities to speak with their attorney to avoid bleeding through their clothing during visits and being stuck with nothing clean to wear for days afterward.⁹

In states where period products are not guaranteed, imprisoned people must purchase supplies. When prison job pay ranges averages $0.14 to $0.63 per hour (in states that pay anything at all) and other necessities—like toilet paper, phone calls, and doctor visits—must be purchased too, how can an incarcerated person be expected to afford menstrual products each month?¹⁰ In Colorado, for example, it takes two weeks of pay to buy a single box of tampons.¹¹

Shackles during labor and delivery are inhumane and unnecessary. When women enter prisons and jails across the country, 3-4% are pregnant.¹² In other words, means thousands of women are at risk of being shackled while giving birth.¹³ As a result, every year mothers give birth to babies while in chains for hours, resulting in pain, humiliation, and injury.¹⁴ One woman in an Illinois county jail reported having her hands cuffed and legs chained the entire time she was at the hospital giving birth.¹⁵ Another woman in a Utah prison labored for thirty hours with her legs shackled and ankles bleeding.¹⁶ Stories like these are nowhere near as rare as one would hope. Shackling is not only painful, but also dangerous—shackles prevent necessary movements during labor while also slowing down response times in an emergency.¹⁷ It appears that these policies were made with men in mind, with no thought to how dangerous and painful such measures are for mothers during childbirth.¹⁸

Change is happening, but it is slow and underreported. Fortunately for incarcerated people in some states, including Texas where laws¹⁹were passed in 2019 to improve these problems in prison²⁰ and local jails,²¹policies have started to improve. However, without any requirement for them to track gender-specific health conditions, it is difficult to determine which prisons and jails are properly complying with the requirements. Sadly, it is not impossible to find a woman who has the firsthand experience to say existing laws are not being followed consistently.²² When federal prisons enacted a policy to supply menstrual necessities several years ago, it was so vague that enforcement varied from prison to prison, thus leaving it up to individual wardens.²³ Even if one state is doing better, why should being arrested in Oklahoma—where menstrual aren’t provided—or in Mississippi—where shackling is allowed—mean a person is guaranteed to face more hardship than someone imprisoned elsewhere?

Incarceration—whether convicted or not—does not mean a loss of all rights. While many may argue that being incarcerated is not meant to be comfortable, consider this: three-fourths of women are imprisoned for non-violent offenses, and more than half of female inmates in local jails have not yet been convicted.²⁴ More specifically, a majority of female inmates are serving time for non-violent drug and property crimes,²⁵ while also having a history of significant abuse.²⁶ Fixing this issue is not simply a matter of ensuring inmates are comfortable while incarcerated. Both shackling and refusing menstrual supplies can be used as punishment with little recourse. For example, an investigation done by the Department of Justice found that prison officers regularly withheld menstrual products in exchange for sex.²⁷When a lawsuit ensued regarding the conditions of confinement at that prison, lack of access to menstrual products was deemed too trivial to be considered a violation of the Constitution, as courts often find regarding a lack of toilet paper in prisons.²⁸ However, a federal court in West Virginia²⁹ has found that a failure to provide menstrual products violates the Constitution due to it being a denial of sanitary living conditions.³⁰ Luckily, more institutions are beginning to realize the harms of shackling during labor and delivery.³¹

Shackling during childbirth and lack of access to menstrual products can be stopped. Here is how you can help fix these problems for incarcerated people:

  • Encourage local leadership to enact policies that guarantee access to menstrual products and stop shackling during labor in all nearby correctional facilities.

  • Contact your congressperson and senators to express support for the bills pending in the U.S. Senate³² and House.³³

  • If your state has existing legislation,³⁴ support local organizations working to hold them accountable. If you know someone who is currently incarcerated, look into the policies at her facility and work to improve them.

  • Support laws that advance menstrual equity and improve maternity care across the board.

The more that is achieved in other arenas—such as removing sales tax from period products, guaranteeing maternity leave, and fighting to reduce maternal mortality—the more likely incarcerated women are to see improvements too.



¹ Linda Carroll, Even in the U.S., poor women often can't afford tampons, pads, Reuters (Jan. 10, 2019, 4:37 PM), ² Nadya Okamoto & Maria Molland, The cost of tampons is hurting low-income girls. Let’s fix that, CNN: Business Perspectives (October 21, 2019), ³ National Vital Statistics Report, Volume 69, Number 2: Maternal Mortality in the United States: Changes in Coding, Publication, and Data Release, Centers for Disease Control and Prevention (Jan. 30, 2020), Trends in U.S. Corrections, The Sentencing Project (Aug. 25, 2020), ⁵ Aleks Kajstura, Women’s Mass Incarceration: The Whole Pie 2019, Prison Policy Initiative (Oct. 29, 2019), The Unequal Price of Periods: Menstrual Equity in the United States, ACLU, Id. ⁸ Kimberly Haven, Why I'm Fighting for Menstrual Equity in Prison, ACLU (Nov. 8, 2019), Id. ¹⁰ Wendy Sawyer, How much do incarcerated people earn in each state, Prison Policy Initiative (Apr. 10, 2017), ¹¹ Id. ¹² Roxanne Daniel, Prisons neglect pregnant women in their healthcare policies, Prison Policy Initiative (Dec. 5, 2019), ¹³ Id. ¹⁴ Pamela Winn Fights the Shackling of Pregnant People, ACLU (Jan. 7, 2021), ¹⁵ Andrea Hsu, Difficult Births: Laboring And Delivering in Shackles, NPR (Jul. 16, 2010), ¹⁶ Lindsay Whitehurst, States weigh bans on shackling jailed moms during childbirth, ACLU (Mar. 13, 2019), ¹⁷ Id. ¹⁸ Lauren Kuhlik, Congress Just Took a Big Step Toward Ending the Shackling of Pregnant Prisoners, (Dec. 20, 2018), ¹⁹ Tex. Gov’t Code Ann. § 493.03. ²⁰ Tex. Gov't Code Ann. § 501.0675. ²¹ 37 Tex. Admin. Code § 277.11. ²² Kathryn Gisi, Changes Coming to Prison Conditions for Women Inmates in Texas, Spectrum News 1 San Antonio (Jun. 12, 2019, 8:24 AM), ²³ Shelby McNabb, The Enforcement Gap: How Period Protection Laws Fail Incarcerated Women, Ms. Magazine (Jun. 23, 2016), ²⁴ Aleks Kajstura, Women’s Mass Incarceration: The Whole Pie 2019, Prison Policy Initiative (Oct. 29, 2019), ²⁵ Id. ²⁶ Trends in U.S. Corrections, The Sentencing Project (Aug. 25, 2020), ²⁷ Letter from Jocelyn Samuels, Acting Assistant Attorney General, to Robert Bentley, Alabama Governor, U.S. Department of Justice (Jan. 17, 2014), ²⁸ The Unequal Price of Periods: Menstrual Equity in the United States, ACLU, ²⁹ Dawson v. Kendrick, 527 F. Supp. 1252 (S.D.W. Va. 1981). ³⁰ Id. ³¹ Id. ³² Dignity Act, S. 992, 116th Cong. (2019). ³³ Dignity Act, H.R. 2034, 116th Cong. (2019). ³⁴ The Unequal Price of Periods: Menstrual Equity in the United States, ACLU,



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