Monday, May 11, 2015

Article Summary: Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State

Seattle University Associate Professor of Law Deborah Ahrens’ article Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State,  explores the incidence of pregnant mothers in the penal system and how the intersection of ingrained societal prejudices and the nature of the American penal system work together to perpetuate and exacerbate existing extra-penal constraints on pregnant women; thereby magnifying pregnancy-specific patterns of control in our society that reflect and reinforce societal norms regarding race, class, and gender.  Specifically, Ahrens argues that the unique “constraints imposed on pregnant and laboring prisoners differ in degree rather than in kind from those imposed on non-incarcerated women,” and that the treatment of pregnant mothers in the penal system is simply the most severe extremity of a spectrum of coercion and control imposed upon pregnant women from all sectors of modern American society by the legal and medical communities.[i]  In fact, Ahrens’ animating theme for her article’s methodological approach is that the treatment of incarcerated mothers should not be viewed as an aberration specific to the unique circumstances found in the penal context, but rather, that its place on the coercion spectrum serves an instructive role in highlighting extra-penal abuses, and that the analysis becomes clouded when one analyzes the treatment of pregnant women in the penal context as separate from the treatment of pregnant women outside of the penal context. 

In attempting to illustrate this proposed spectrum of coercion, Professor Ahrens’ article is essentially broken down into three parts: (I) prison-based pregnancy and birthing issues; (II) pregnancy and birthing constraints on non-incarcerated women; and (III) a conclusion which utilizes the finding in (I) and (II) to highlight the interconnected and overlapping nature of the intra- and extra-penal societal controls imposed on pregnant women in making choices regarding their pregnancies.  Additionally, Part (I) is broken down into three parts, (A) a description of the affected population, (B) a five-part analysis of the specific difficulties faced by incarcerated women who are pregnant, and (C) a brief discussion of genesis of correctional indifference to officially promulgated medical guidelines governing pregnant women, and Part (II) is also broken down into three parts, (A) discussing the uneven race and class based resort to legal constraints, (B) discussing the legal constraints on women generally, and (C) a three-part analysis detailing various methods of sub-legal coercion utilized by society to undermine pregnant women’s freedom in choosing their birthing options. 

Professor Ahrens begins Part I by pointing out that over 2,000 babies are born in prison every year and that pregnant mothers represent the fastest growing prison demographic in America.  She then goes on to illustrate the specific issues encountered by pregnant mothers in the penal context, looking first to issues encountered in (1) establishing pregnancy, and then turning to issues related to (2) accessing appropriate prenatal care, (3) dealing with complications and emergent deliveries, (4) establishing autonomy and safety during labor (specifically in the context of (a) the timing and method of delivery, (b) choosing pain relief options, and (c) the limitations placed on the incarcerated woman’s ability to choose who will and will not be in the delivery room), and (5) common difficulties encountered by women who have recently delivered babies while incarcerated.  This portion of her analysis is highlighted by the anecdotal accounts of pregnant prisoners reporting the various difficulties encountered in everything from persuading prison staff that they are pregnant, to persuading correctional staff that they need proper nutritional items or that they may in fact be giving birth.  Here, Ahrens’ authority is, of necessity, often sparse and heavily anecdotal, however, Ahrens points to some of the more severe abuses to ask the reader what these may reveal about the more hidden, less severe, but more common abuses occurring on a daily basis.  Finally, Ahrens concludes Part I by asserting that these endemic failures are not a function of a lack of officially published guidelines on these matters, but rather these failures represent indifference, or potentially ignorance, on the part of correctional bureaucracies regarding officially published guidelines by organization such as the American Public Health Association. 

Professor Ahrens begins Part II of her analysis be reiterating her belief that while the nature of their incarcerated status means that “[m]any of the constraints that incarcerated women face in childbirth are less peculiar . . ., [w]omen who are not incarcerated also experience limits on pregnancy and birthing choices and behaviors,” both through legal and extra-legal coercion.[ii] In supporting this assertion, and her underlying thesis that the treatment of pregnant women in the penal context is simply the manifestation of the most severe uses of societal coercion on a spectrum of control, Ahrens first points to the uneven resort to legal constraint on pregnant women in the extra-penal context.  Specifically Ahrens points out that “[a]ttempts to impose formal legal constraints upon the medical and life-style choices of pregnant women are much more likely to fall on those who live in poverty, belong to marginalized racial groups, or otherwise mark themselves as outside of the mainstream,” and that this focus is demonstrative of the overlap of the extra- and intra-penal societal tools utilized to control these demographic groups.[iii]  Next, Ahrens points to the actual legal constraints imposed on non-incarcerated women, from all walks of life, to illustrate that “the drive to regulate and constrain the pregnancy choices of expectant mother transcends issues of race and class.”[iv]  Here, Ahrens points to a study conducted by the National Advocates for Pregnant Women, that found that there have been 413 documented cases of legal intervention in the medical decisions of pregnant women regarding delivery choices between 1973 and 2005, to emphasize her point regarding the use of legal penalties as a coercive tool outside of the penal context on pregnant women from all demographic groups.  Finally, Ahrens concludes Part II by arguing that more subtle, “sub-legal” coercive techniques are utilized by the American medical and legal communities to motivate almost all women to make certain birth-related decisions, specifically in the context of C-sections and inductions, out of concern not for the wellbeing of the mother, but rather for  either (a) the bottom line or convenience of hospitals, doctors, or medical administrators, or (b) the avoidance of potential medical-malpractice liability by hospital administrators and their legal representatives.  Ahrens’ critique becomes somewhat vitriolic at his point, as she argues that the perverse incentives animating the legal and medical power centers in this relationship and chronic misinformation and under-information regarding pregnancy choices, cabin the ability of large numbers of pregnant American women to make truly enlightened fully informed birth-related decisions.

Professor Ahrens concludes by reiterating her underlying thesis regarding the spectrum of coercion, and the methodological utility of placing the treatment of pregnant inmates on that spectrum as opposed to relegating them to a separate analytical framework; thus, she asserts, enabling future researches to more clearly understand the coercive societal forces working both inside and outside of the penal context to limit the choices available to and the decision making ability of pregnant women in the days and weeks leading to childbirth. 

-          David Ferguson

[i] Deborah Ahrens, Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation and the State 60 (May 2013) (unpublished manuscript) (on file with the Missouri Law Review).
[ii] Id. at 40-41.
[iii] Id. at 42.
[iv] Id. at 44.