Prison watch tower.

Government Report Finds Care Deficits for Pregnant People in Federal Custody

By Elyssa Spitzer

Pregnant and postpartum people in the custody of the Bureau of Prisons (BOP) and U.S. Marshals Service receive care directed by policies that fail to meet national standards, according to a report recently issued by the Government Accountability Office (GAO). 

This, despite the fact that, incarcerated women are among the most vulnerable people, according to the American College of Obstetricians and Gynecologists. In the GAO report’s terms, incarcerated women: “often have medical and mental health conditions that make their pregnancies a high risk for adverse outcomes, which is compounded by inconsistent access to adequate, quality pregnancy care and nutrition while in custody.”

Notably, the report found that the BOP and U.S. Marshals’ policies failed to satisfy the national standards — to say nothing of the gaps that may exist between written policy and the care that is, in fact, provided.

The policy deficiencies identified by the report are sweeping. Of sixteen “care topics” identified, ranging from intake health screening and prenatal care, to use of restraints and postpartum care, the investigation found that U.S. Marshals service policies “fully align” with national guidance recommendations on only three, “partially align” on six (pregnancy testing at intake, access to abortion, provision of prenatal care, provision of labor and delivery care, provision of postpartum care, and use of restraints), and “do not align” on seven (nutrition, prenatal vitamins, special accommodations, HIV care, mental health services and counseling, substance use disorder care, and vaccinations). 

The BOP’s policies direct care that meets quality standards in more areas, but still contain distressing inadequacies. BOP policies “fully align” with recommended standards of care on eight topics, “partially align” on seven (pregnancy testing at intake, provision of prenatal care, provision of labor and delivery care, provision of postpartum care, substance use disorder care, mental health services and counseling, and use of restraints), and do not align on one (nutrition).  

This means a pregnant person detained in a BOP facility that adheres to written policies does not receive prenatal, delivery, or postpartum care that satisfies medical guidance. 

The report also released new counts of the number of people affected by these policy shortcomings. Between 2017 and 2019, at least 1,220 pregnant women were in Marshals Service custody, and 524 pregnant women were in BOP custody.  

This is tragic, inexcusable, but not altogether surprising, given the general architecture of maternal care in the United States, particularly for pregnant people of color; the deficiencies in medical care provided to people who are incarcerated; and the intersection of those populations due to racialized enforcement, among other inequities.

In fact, the most recent reproductive news about ICE, was a whistleblower’s report that hysterectomies were being performed at an unusually high rate on immigrants detained at the Irwin County Detention Center, a privately-owned facility in Georgia. ICE coordinates with the Marshals Service; some immigrants are detained through riders on Marshals Service contracts with local jails. The accusations, as the ACLU noted, “raise the concern that medical personnel are targeting vulnerable women for coerced sterilization based on their race, poverty, and immigration status.”

Based on the observed deficiencies of the BOP and the Marshals Service policies, the GAO report issued two buckets of recommendations: first, change the flawed policies to meet national standards of care; and second, collect more data, to fill in gaps in understanding. Both the Marshals Service and BOP fall under the auspices of the Department of Justice, which “concurred” in the report’s recommendations that the agencies should move to align their policies with national guidance insofar as doing so is “feasible” — a fairly weak instruction.   

Fortunately, the Black Maternal Health Momnibus Act of 2021 (titled to pun on the terming of bills that group multiple issues as “omnibus”) addresses a host of maternal health concerns, including support for incarcerated moms. The legislation consists of twelve bills. One, the Justice for Incarcerated Moms Act, incentivizes state and local carceral facilities to stop shackling pregnant people by conditioning other funding on their doing so; provides funding for programmatic support for pregnant and postpartum women in federal, state, and local carceral facilities; and commissions a study on maternal mortality and severe maternal morbidity among incarcerated people, among other measures. The Justice for Incarcerated Moms Act is led by Representative Ayanna Pressley (MA-07) and Senators Cory Booker (D-NJ), Mazie K. Hirono (D-HI), and Richard J. Durbin (D-IL). 

The legislation stalled last spring — it was initially introduced in early March 2020, effectively coinciding with the start of the COVID-19 pandemic — but was reintroduced on February 8, 2021 and has been expanded to account for pregnancy-related issues brought to the fore by the pandemic, e.g., the absence of vaccine safety information for pregnant people.  

The hill is reportedly optimistic about passage.  

Elyssa Spitzer

Elyssa Spitzer is the Senior Fellow in Law and Neuroscience with the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the Center for Law, Brain & Behavior.

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