This section discusses some issues of special concern to women prisoners, including gynecological care, prenatal care (medical care during pregnancy), abortion, and privacy from observation and searches.
As you learned in Section C, female prisoners have the same rights as male prisoners under the U.S. Constitution. The number of women in prison is growing fast, but women have been and still are a minority in prison. That means that most cases involving prisoners have been about male prisoners and have been based on men’s needs. One example is your constitutional right to medical care. Courts agree that prisons must respond to your “serious medical needs,” but relatively few courts have considered whether pregnancy or abortion should be considered serious medical needs.
1. Medical Care
As you learned in Section F, Part 4 of this chapter, your right to medical care is guaranteed by the Eighth Amendment, which prohibits cruel and unusual punishment. To make a claim for an Eighth Amendment medical care violation, you must show a “serious medical need” and a prison official must have shown “deliberate indifference” to that need.
Despite these rights, women prisoners often do not get the medical care they need. In Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977), for example, a class of women prisoners argued that their prison’s medical system violated constitutional standards. The court applied the “deliberate indifference” test and determined that by not properly screening women’s health problems and poorly administering prison health services, the prison had denied or unreasonably delayed prisoners’ access to proper medical care in violation of the Eighth Amendment. The court ordered the prison to take specific steps to improve its medical services.
a. Proper Care for Women Prisoners
Most courts have not yet considered how to judge the level of medical care women in prison need, including pregnant women. However, State and local regulations sometimes require certain medical services, such as a physical exam, for every new prisoner. Under federal law, all federal prisoners are entitled to a medical screening, with appropriate record-keeping, that meets guidelines issued by the Bureau of Prisons. 28 CFR §§ 522.20 – 522.21.
If you are unsure about your own medical needs, or want to challenge the medical care you have received, you may want to take a look at some guidelines for women’s health published by national medical associations. The American College of Obstetricians and Gynecologists (ACOG) publishes a pamphlet called “You and Your Baby: Prenatal Care, Labor and Delivery, and Postpartum Care” that describes pregnancy and explains guidelines for prenatal care. They also publish a pamphlet called “Staying Healthy at all Ages” which includes guidelines about when to get pap smears and mammograms. They have many more pamphlets on other women’s health issues. You can request a free copy of these pamphlets by contacting the ACOG Distribution Center, PO Box 933104, Atlanta, Georgia 31193, by calling 1-800-410-2264, or by sending an email to [email protected]
The Jailhouse Lawyer’s Manual from Columbia University also provides a good summary of the medical services and tests that national guidelines recommend for women. Information on how to order the Columbia Jailhouse Lawyer’s Manual is available in Appendix J.
While a court cannot enforce these guidelines, a judge may be willing to take them into account, especially since there is not that much case law in this area.
b. Medical Needs of Pregnant Women
Women who are pregnant require special medical care, called “prenatal care,” to ensure that they deliver healthy babies. Many pregnant women experience complications during their pregnancy. With immediate and appropriate medical care, these complications can be resolved and women can go on to have healthy pregnancies and babies. When these complications are ignored, however, they can lead to miscarriages, premature or risky labor, and future reproductive health problems for the pregnant woman involved.
Challenging inadequate prenatal care in court
The two-part test for inadequate medical care under the Eighth Amendment raises some special questions in the area of prenatal care.
- Is pregnancy a serious medical need? Courts disagree whether a healthy pregnancy is a “serious medical need.” One court said that pregnancy is not a serious medical need if a doctor has not identified any special need for care and when it would not be obvious to an average person that there is a problem. Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997). In a case about a prisoner’s right to an abortion, however, another court stated that pregnancy is different from other medical issues and is a “serious medical need” even when there are no complications or abnormalities. Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987).
- What counts as deliberate indifference? If you experienced major complications during your pregnancy, a court is likely to find that you had a serious medical need, but the court must still decide whether a prison official who denied you appropriate care showed deliberate indifference to your needs. In Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997), the court found that a prison nurse showed deliberate indifference when she ignored requests to transfer a pregnant prisoner in early labor to a hospital, leaving the prisoner to give birth in severe pain on the floor of her prison cell. The court held that the nurse must have known of the prisoner’s serious medical need because the signs of her pre-term labor were obvious and because the nurse had access to the prisoner’s medical records, which documented a history of multiple pregnancies, all with serious complications.
In some cases, a prison official’s supervisor can be found guilty of deliberate indifference when the official violates a prisoner’s rights, even if the supervisor was not aware of the particular incident in question. In Boswell v. Sherburne County, 849 F.2d 1117 (8th Cir. 1988), the court found a possibility of deliberate indifference among both the jailers who repeatedly ignored a pregnant pre-trial detainee’s complaints of severe vaginal bleeding and their supervisors, even though the supervisors were not directly involved. The court relied on the fact that the supervisors encouraged jailers to use their own untrained medical judgment and to reduce the jail’s medical costs even when it put pre-trial detainees’ health at risk.
You should be aware, however, that it is very difficult in general to succeed on a claim that a supervisor is liable to you for a violation of your rights. For a detailed explanation of when you may be able to bring a “supervisory liability” claim, see page 73 of this Handbook.
Is it acceptable to shackle a pregnant prisoner?
It is a sad fact that prisons sometimes shackle pregnant prisoners. At least one court has held that a prison cannot use any restraints on a woman during labor, delivery, or recovery from delivery, and cannot use any restraints while transporting a woman in her third trimester of pregnancy unless that woman has a history of escape or assault, in which case only handcuffs are allowed. Women Prisoners of the District of Columbia Dept. of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996). Another good case on this issue is Nelson v. Correction Medical Services, 583 F.3d 522 (8th Cir. 2009), in which a woman prisoner who was forced to endure the final stages of labor and delivery while shackled was allowed to continue her case against the guard who shackled her.
For a state-by-state overview of the laws regarding shackling or restraining pregnant inmates, see Amnesty International, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women, available at http://www.amnestyusa.org/violence-against-women/abuse-of-women-in-custody/page.do?id=1108288.
2. Your Right to an Abortion in Prison
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court upheld a woman’s right to choose to have an abortion under the Fourteenth Amendment, which protects certain fundamental rights to privacy. Almost twenty years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Court once again upheld the right to an abortion, but also held that the state can limit this right in certain ways, to promote childbirth. The state can require women to do certain things, as long as those limitations did not place an “undue burden” on a woman’s right to choose abortion. For example, the state can make a woman wait a certain period of time before having an abortion, or it may be able to require a parent’s permission if the woman is a minor. The court defined an “undue burden” as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” Casey, 505 U.S. at 877.
A woman in prison may challenge an official’s failure to provide her access to an abortion in one of two ways. First, she can claim a violation of her fundamental right to privacy under the Fourteenth Amendment. Second, she can claim a violation of her Eighth Amendment right to medical care, using the two-part test described above. Each of these approaches has been successful, but they can also be challenging for a number of reasons.
a. Fourteenth Amendment Claim
If the prison has a policy that limits your ability to get an abortion in any way, you can challenge that policy under the Fourteenth Amendment. In deciding if the policy is constitutional, the court will use the Turner standard, described in Section A of this Chapter.
One important case is Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). In that case, a prison policy required pregnant women to get a doctor to state that an abortion was medically necessary or get a court order before it would allow the prisoner to obtain an abortion. The Court held that this violated both the Fourteenth Amendment and Eighth Amendment. The Monmouth court applied the four-part Turner reasonableness test to the prison policy in question and determined that the women prisoners’ Fourteenth Amendment rights outweighed any claim of legitimate penological interest that might explain the policy.
The court addressed each part of the test as follows:
- Is there a valid, reasonable connection between the prison regulation and a legitimate, neutral state interest used to justify the regulation? The court found that the regulation had no valid relationship to a legitimate security interest. It pointed out that maximum- and minimum-security prisoners could receive “medically necessary” services without a court order, but that even minimum-security prisoners had to receive a court order to seek an abortion.
- Is there another way for prisoners to exercise the constitutional right being limited under the regulation? The court found no other way for prisoners to exercise their right to an abortion under the regulation. It argued that maximum-security prisoners would be unlikely to be released for an abortion by court order and could not get an abortion in the prison. While minimum-security prisoners might receive the release order for an abortion, the court argued that the likelihood of delay in the process was too big a risk, since women are unable to have abortions legally past a certain point in their pregnancy.
- How would eliminating the court-ordered release requirement for prisoner abortions impact prison resources, administrators, and other prisoners? The court noted that although allowing prisoners access to abortions imposed some costs on the prison, giving prisoners proper prenatal care and access to hospitals for delivery imposes equal costs, so eliminating the regulation would not be too costly for the prison. The court also noted that while a prison must help fund abortions for prisoners who cannot pay for them, it is not obligated to pay for all abortion services.
- Are there less restrictive ways for the government to promote its interests? In other words, is the regulation an exaggerated response to the government’s interests? Finally, the court ruled that the regulation was an exaggerated response to questionable financial and administrative burdens because it had nothing to do with prison security and because plaintiffs were simply asking the prison to accommodate the medical needs of all pregnant prisoners, not just those who wished to give birth.
Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008) is another very positive case. There, a class of women seeking elective abortions sued over a Missouri Department of Corrections policy that denied pregnant prisoners transport to receive elective abortions. The department defended the policy by citing a security concern: that protests and conditions at abortion clinics posed a risk to guards and inmates. The Court decided this concern was legitimate, and that, under the first Turner question, the ban on transport did rationally advance the concern. However, under Turner question two, the Court found that the transport ban entirely eliminated access to abortion, which weighed very heavily against the constitutionality of the rule. After considering the final two Turner factors, the court determined that the rule violated the Fourteenth Amendment, and must be struck down.
Not all Fourteenth Amendment claims have been successful. One bad case is Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004). That case involved an unwritten prison policy requiring pregnant women to obtain a court order allowing transport for an elective abortion. The court found that the prison’s policy of requiring inmates to seek and receive a court order before allowing them to be released for non-emergency medical services met the Turner v. Safley test for reasonableness.
b. Eighth Amendment Claim
While a Fourteenth Amendment due process claim is a more likely way to win an abortion case, prisoners have also had success with Eighth Amendment claims. However, proving both a serious medical need and deliberate indifference can be difficult.
Is abortion a serious medical need?
When an abortion is necessary to preserve your life or health, it is without question a serious medical need. The debate among courts centers on abortions that are “elective”—that is, abortions that are not medically necessary to preserve a woman’s health or save her life.
In Monmouth, the Court of Appeals determined that abortions are a serious medical need whether or not they are medically necessary to protect the health of the woman. The court rejected the argument that only a painful or serious injury counts as a serious medical need, and noted the unique nature of pregnancy. Even when an abortion is elective, the court decided, it is always a serious medical need because delaying an abortion for too long or denying one altogether is an irreversible action. Without fast medical attention, a woman who wants to exercise her right to have an abortion cannot do so.
Not all courts have agreed with the Monmouth decision, and the case law on whether an elective abortion is a serious medical need is different in different states. For example, in Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008), described above, the appellate court reversed the district court’s decision that the Missouri policy violated the Eighth Amendment. The court decided that because an elective abortion is not medically necessary, it is not a serious medical need.
When is the failure to provide access to abortion deliberate indifference?
Proving deliberate indifference can also be hard. Courts seem to disagree about the standard for deliberate indifference when it comes to abortion. Some courts find only negligence (which is not a violation of a constitutional right) even when it seems like a prison official knew of a prisoner’s request for and right to an abortion. For example, in Bryant v. Maffuci, 923 F.2d 979 (2d. Cir. 1991), the court held that prison officials had only been negligent in failing to schedule an abortion for a pregnant prisoner until it was too late for her to have one under New York law, even though, as the dissent noted, the prisoner requested an abortion upon her arrival to prison and every day thereafter, and the medical staff had measured the duration of her pregnancy so far and marked her file as an “EMERGENCY.”
It can be especially difficult to prove deliberate indifference when the actions of many officials are involved. In Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991), a federal judge sentenced a pregnant woman to prison and, based on the prisoner’s repeated requests for an abortion, requested that she be provided with an abortion as soon as possible. After several days of travel, Ms. Gibson reached her assigned facility and learned that no abortions were performed there. When she finally arrived at a facility that did perform abortions, she was told that it was too late in her pregnancy to arrange an abortion. The court held that the denial of Ms. Gibson’s abortion could not be attributed to any particular official, and was only negligence, not deliberate indifference.
3. Observations and Searches by Male Guards
Many women in prison feel uncomfortable or anxious when they are observed or searched by male guards. The Constitution provides you with some protection from these searches: the Fourth Amendment protects your right to privacy from unreasonable searches, while the Eighth Amendment protects your right to be free from cruel and unusual punishment. However, as with other constitutional rights, your Fourth and Eighth Amendment rights must be weighed against the prison’s interests in security and efficiency. It is also important to understand that since the federal government prohibits employment discrimination based on gender, courts are reluctant to prevent men from doing a certain type of work in prisons simply because they are men.
Title VII of the United States Code, a federal law, forbids employment discrimination against someone because of his or her gender. This means that in general, an employer cannot refuse to hire someone for a certain job or give someone a promotion because of his or her gender. The only exception to this rule is when there is a strong reason, not based on stereotypes about gender, to believe that a person of one gender could not perform the job or would undermine the goal of the work. In the language of the statute, it must be “reasonably necessary” to have an employee of a specific gender; if this is the case, gender is considered a “bona fide occupational qualification” or a “BFOQ.”
Many courts have weighed prisoners’ privacy interests against the need to prevent discrimination in our society and decided that preventing discrimination is a more serious concern. For example, in Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), a case about women guards in men’s prisons, the court expressed concern that women would get stuck with office jobs and decided that gender is not a BFOQ. In Torres v. Wisconsin Department of Health and Human Services, 859 F.2d 1523 (7th Cir. 1988), however, the same court found it acceptable that a women’s maximum security prison did not allow men to work as security guards because the administrators of the women’s prison had determined that male guards might harm the women prisoners’ rehabilitation. According to the court, Johnson and Torres are not inconsistent, even though they reached different conclusions about a similar question, because in each case the court deferred to the expertise of prison administrators.
There was a similar result in Everson v. Michigan Department of Corrections, 391 F.3d 737 (6th Cir. 2004). There, the court considered a decision by the Michigan Department of Corrections to ban men from certain positions at female prisons in reaction to wide-spread sexual abuse of female prisoners. Male guards sued the prison unsuccessfully. The Court deferred to prison officials, and found that gender was a BFOQ.
Although many courts have recognized that strip searches and pat-downs by guards of the opposite sex can be uncomfortable and even humiliating, courts do not usually consider these searches cruel and unusual punishment. In one important case, however, a court found that pat-down searches of female prisoners by male guards did violate the Eighth Amendment because the searches led the women to experience severe emotional harm and suffering. The court based its argument on statistics showing that 85% of women in that particular prison had been abused by men during their lives. Since the superintendent knew these statistics and had been warned that pat-downs could lead to psychological trauma in women who had been abused, and since the superintendent could not show that the searches were necessary for security reasons, the court called the search policy “wanton and unnecessary” and held it unconstitutional. Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).
Courts are more likely to uphold invasions of your privacy by male prison guards when there is an emergency situation. For example, the Jordan court did not prohibit all cross-gender searches of prisoners, despite the women’s histories of abuse; it only found “random” and “suspicionless” searches by male guards unconstitutional. In contrast, another court approved of a visual body cavity search performed on a male prisoner in front of female correctional officers because the officer performing the search believed the situation to be an emergency, even though it was not. Cookish v. Powell. 945 F.2d 441 (1st Cir. 1991).