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
