Erica Anderson, Associate Member, University of Cincinnati Law Review
“I felt like a farm animal,” cried Michele Adana. For 30 hours her wrists and ankles bled due to the chains tying her down during labor.
Unfortunately, the shackling of incarcerated pregnant women remains a common practice within the U.S. criminal legal system. As stated in Nelson v. Correctional Medical Services,Shawanna Nelson, a 29-year-old non-violent offender was having labor contractions and presented herself to the prison infirmary. When Shawanna began to scream in pain as her contractions were only five to six minutes apart, infirmary nurses requested that she be transported to a hospital.
Despite medical personnel’s pleas to remove restraints and the fact that Shawanna “couldn’t walk,” she was shackled to a wheelchair when being pushed to her hospital bed, then each of her ankles were shackled to opposite sides of her bed during the final stages of birth. The doctor stated that Shawanna had arrived to the hospital too late to receive an epidural. Thus, she was “unable to move her legs or stretch ‘during the most painful and stressful’ part of [labor]” without any numbing aid. The shackling led to Shawanna needing surgery and suffering from permanent physical and mental harm.
Shawanna’s story is unfortunately not an isolated incident. Although no reliable or recent statistics exist to reflect the amount of incarcerated pregnant women, statistics show that of the 231,000 women that are currently behind bars, 75% of them are of reproductive age. Similarly, there is no record of how many pregnant women are shackled during childbirth, but a 2018 study reveals that “82.9% of the group [subjects] with experiences caring for at least one incarcerated woman during pregnancy reported that shackles were used on the women sometimes to all of the time.” An additional “12.3% reported that these women were always shackled.” These subjects also reported that the most commonly cited justification for the shackling during childbirth was “adherence to a rule or protocol.” Despite the fact that 67% of the subjects claim they advocate for shackle removal, more often than not, their pleas were denied by correctional officers.
These shackling protocols that lead to situations such as Shawanna’s raise a slew of questions. If 92% of women are not incarcerated for violence related crimes, then why are they being shackled during childbirth in the first place? Furthermore, is the shackling of incarcerated pregnant women constitutional at all?
A. The FIRST STEP Act
In December of 2018, President Donald Trump signed the First Step Act (“FSA”) which, amongst many things, prohibited restraints being placed on incarcerated pregnant women during pregnancy, labor, and postpartum recovery. Although FSA was enacted with good intentions, FSA is not applicable in many cases. First, FSA only applies to federal prisons, not state prisons. Second, FSA’s ban on the shackling of incarcerated pregnant women excludes situations in which the woman is an unreasonable flight risk or public safety threat. Thus, shackling is still permitted, and the decisions are left to prison guards, not medical experts. 
B. State laws involving the shackling of incarcerated pregnant women
Only three states, New York, Illinois, and California, have passed legislation that completely bans the shackling of incarcerated pregnant women. Twenty-four other states have passed legislation limiting the use of shackling incarcerated pregnant women, but still grant correction officials broad discretion in deciding whether to shackle or not.
C. Constitutional concerns with shackling incarcerated pregnant women
The Eighth Amendment prohibits the government from imposing “cruel and unusual punishment.” Although the drafters’ primary concern was to prohibit “torture(s)” and “‘barbarous’ methods of punishment,” courts have held that the Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’” Therefore, Eighth Amendment violations occur when punishments are incompatible with human decency and regress from the maturity of society by causing an unnecessary infliction of pain.
i. Furman v. Georgia: outlining the standard for “cruel and unusual punishment”
In Furman, three men on death row (one convicted of murder, and two convicted of rape) filed suit against the state of Georgia contending that the death penalty was “cruel and unusual punishment.” The Supreme Court held that when the death penalty is applied in a manner that disproportionately harms minorities, it is unconstitutional as a punishment.
Justice Brennan, concurring, outlined four factors to determine whether punishment is “cruel and unusual.” First, a punishment may not be “so severe” that it degrades human dignity. Second, a punishment may not be arbitrary, meaning a state may not, without reason, inflict a severe punishment on some individuals and not others. Third, a punishment may not be “unacceptable to contemporary society.” This factor is not measured by availability, but by amount of use. Finally, a punishment may not be unnecessary.
ii. The constitutional right to medical care
“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Because the Supreme Court has held that incarcerated individuals have a right to medical care, a deliberate indifference to incarcerated individuals’ medical needs is a constitutional violation. “Pain and suffering” caused by the “denial of medical care” would not “serve any penological purpose.”
iii. Hope v. Pelzer and Nelson v. Correctional Medical Services
In 1995, an incarcerated individual in an Alabama prison was handcuffed to a hitching post on two separate occasions. On one occasion, he was handcuffed above shoulder height for seven hours without bathroom breaks. The handcuffs cut into his wrists as he tried to adjust positions for better circulation and comfort.
The Supreme Court held that the prison guards violated the incarcerated individual’s Eighth Amendment rights as the guards “knowingly subjected him to a substantial risk of physical harm, unnecessary pain . . . and particular discomfort and humiliation” despite a “clear lack of emergency.”
Although the Supreme Court has never addressed the constitutionality of shackling incarcerated pregnant women, federal courts, such as the Eighth Circuit in Nelson, have held such an act to be “cruel and unusual punishment.”
In Nelson (case facts discussed in the introduction), the Eighth Circuit held that in order to prove an Eighth Amendment violation occurred, a plaintiff must successfully prove both an objective and subjective component. First, a plaintiff must prove that a serious medical need or substantial risk to their health or safety existed. Second, a plaintiff must prove that the officer in question had knowledge of such medical need or risk to health or safety and chose disregard it.
A medical expert testified that shackling women during labor is objectively “‘inherently dangerous to both the mother and the unborn fetus’ and that it may interfere with the response required ‘to avoid potentially life-threatening emergencies for both the mother and the unborn fetus.’” Additionally, a jury could reasonably conclude that the prison guard had knowledge that the shackles interfered with the woman’s medical care because medical personnel had requested the shackles be taken off. Thus, the Eighth Circuit found that the woman’s Eighth Amendment rights had been violated.
However, the Eighth Circuit and other courts have argued that “the right to be free from shackling during labor is not unqualified.” For example, if a woman is considered to be a “flight risk,” then shackling is accepted as necessary to prevent security concerns.
A. Shackling is unconstitutional under the Eighth Amendment
When analyzing whether shackling is “cruel and unusual punishment” under Justice Brennan’s four factors in Furman, shackling is indeed “cruel and unusual punishment.” First, shackling is degrading to human dignity. In Hope, the Supreme Court found that a man chained to a pole without being given bathroom breaks was violating the “dignity of man.” Much of the degradation to human dignity was due to the humiliation from being denied toilet access. This exact form of degradation, and more is caused by shackling during childbirth. In Nelson, the shackled pregnant woman soiled herself and the hospital bed sheets because she was not unshackled to use the bathroom. In general, many women describe vaginal exams and childbirth to be humiliating. Women giving birth are naked. They soil themselves. Their genitals rip. They are in immense pain. Further degradation does not need to be added to an already humiliating experience for women.
Second, shackling is arbitrary. Nurses have claimed that shackling practices and procedures differ based on which officer is on duty. “[W]omen are left at the mercy of their guards.” If a guard determines a woman should be shackled during labor, then she is shackled. This discretion allows for, among many things, racial disproportionality. Guards are not making decisions about which women are shackled based upon prior history of violence or escape attempts, but rather, guards are making decisions about whether the women seem “aggressive” and “dangerous” in the moment. Both terms are racially biased leading to racial subjugation.
Third, shackling is unacceptable to society. The rejection of shackling incarcerated pregnant women during labor is widespread amongst the medical and legal communities. The American College of Obstetricians and Gynecologists, the American Medical Association, and the American Public Health Association publicly oppose shackling during childbirth. In fact, the American College of Obstetricians and Gynecologists has written a letter in support of efforts to pass federal legislation that would ban the shackling of incarcerated pregnant women during labor because shackling “reduces a physician’s ability to properly assess the patient and fetus and unnecessarily complicates labor and childbirth.” Additionally, several federal courts have found shackling, in many circumstances, to be “obvious cruelty.”
Finally, shackling is unnecessary for numerous reasons. National medical associations such as the American Public Health Association, have directly stated that the shackling of pregnant women is “unnecessary and dangerous.” It is primarily unnecessary because women actively in labor cannot escape past armed guards in or directly outside of the delivery room. In fact, there are no current instances of incarcerated pregnant women escaping during labor. Furthermore, the vast majority of incarcerated women were not convicted of violent crimes that make them unsafe to society to begin with. Most incarcerated women were convicted of crimes that pose a “low security risk.”
B. Shackling violates the constitutionally guaranteed level of medical care
Many federal courts that have analyzed shackling cases have focused on whether shackling is an Eighth Amendment violation. However, shackling likely also deprives incarcerated pregnant women of their constitutional right to a guaranteed level of medical care granted in Estelle.
Shackling an incarcerated pregnant woman to a hospital bed during childbirth constitutes a deliberate indifference to the woman’s medical needs. Not only does chaining a woman’s arms and legs during labor exacerbate the pain of childbirth, but shackling also has the potential to create serious harm to the mother and baby. In Nelson alone, shackling caused a pregnant woman to suffer from a permanent hip injury, torn stomach muscles, an umbilical hernia requiring surgery, and sciatic nerve damage. Other potential medical issues caused by shackling include life-threatening embolic complications, emergency caesarian section, blood clots, hemorrhage, hip dislocation, depression, and post-traumatic stress disorder. Shackling also “obstructs detection of pregnancy complications.” In Estelle, the Supreme Court held that even just delaying or inhibiting an incarcerated individual’s access to proper medical care is cruel and unusual punishment. Therefore, prison guards’ enforcement of shackling a woman during childbirth, preventing detection of medical problems and causing further health issues, is a violation of a woman’s constitutional right to medical care.
C. Shackling incarcerated pregnant women during birth for any reason is unconstitutional
The U.S. Equal Employment Opportunity Commission has declared pregnancy and childbirth to be serious medical conditions. And, as the Supreme Court held in Estelle, the failure to provide medical care to an incarcerated individual’s medical needs is a constitutional violation. Because shackling prevents the detection of serious medical issues and causes further medical harm, shackling violates the Eighth Amendment.
In Nelson, the Eighth Circuit validated shackling pregnant women for security interests. However, a security interest should never exist when a pregnant woman is in labor. There is simply “no competing institutional need or penological interest served by the practice” as women in labor do not present a flight risk. Many women, such as the woman in Nelson, cannot walk during labor, let alone escape from prison guards and nurses who are not in labor. Therefore, the policy reasons supporting the shackling of pregnant women during labor do not actually even exist.
Although there may be a legitimate reason to restrain a woman during labor if she is a risk to herself or the baby, such a situation is rare. If this concern remains, legislation could be passed to only permit shackling in such a case, however, the legislation should not limit shackling to incarcerated women, but rather any woman who is a risk to herself or the baby.
The act of shackling incarcerated pregnant women violated the Eighth Amendment right to be protected from “cruel and unusual punishment” and the constitutional right to a guaranteed standard of medical care. Shackling is degrading, arbitrary, unacceptable to society, and unnecessary for security interests. Additionally, shackling prevents the detection of serious labor complications and causes further harm to the mother and baby during childbirth.
Although the First Step Act made strides to protect women from shackling during childbirth, the Act only applies to federal prisons, and the Act provides for broad and vague exceptions left up to the discretion of prison guards. Such discretion leads to harmful racial biases that contribute to the maintenance of systematic racism in the criminal legal system.
 Shackling pregnant inmates is still a practice in many states, CBS News (March 13, 2019) https://www.cbsnews.com/news/shackling-pregnant-inmates-is-still-a-practice-in-many-states/.
 Nakea Barksdale, Does Shackling Incarcerated Women During Childbirth Violate the Eighth Amendment?, ABA (April 27, 2020) https://www.americanbar.org/groups/litigation/committees/civil-rights/articles/2020/does-shackling-incarcerated-women-during-childbirth-violate-the-eighth-amendment/.
 Nelson v. Correctional Medical Services, 583 F.3d 522, 525 (8th Cir. 2009).
 Id. at 526.
 Lorie S. Goshin, et. al., Perinatal Nurses’ Experiences With and Knowledge of the Care of Incarcerated Women During Pregnancy and the Postpartum Period, 48 J Obstet Gynecol Neonatal Nurs., 27, 28 (Jan. 2019).
 Words From Prison – Did You Know . . . ?, ACLU, https://www.aclu.org/other/words-prison-did-you-know (last visited Apr. 18, 2021) (stating also that most women are incarcerated due to illegal drug use ,and the root cause behind women using illegal drugs is violence against women. Statistics show that 70% of women being treated for substance abuse are survivors of violence).
 Anjana Samant, The First Step Act Is a Small Step for Incarcerated Women, ACLU (Dec. 27, 2018) https://www.aclu.org/blog/prisoners-rights/women-prison/first-step-act-small-step-incarcerated-women.
Rachel D. Cohen, Federal Legislation Seeks Ban on Shackling of Pregnant Inmates, NPR (Dec. 5, 2018) https://www.npr.org/sections/health-shots/2018/12/05/673757680/federal-legislation-seeks-ban-on-shackling-of-pregnant-inmates.
 Harvard Law Development, Barbaric Beyond Bans: How the First Step Act’s Shackling Provisions Fails to Protect Women, Harvard Civil Liberties L. Rev., (Feb. 2019) https://harvardcrcl.org/barbaric-beyond-bans-the-first-step-acts-shackling-provision-may-not-protect-women/.
 International Human’s Right Clinic, et. al., The Shackling of Incarcerated Pregnant Women: A Human Rights Violation Committed Regularly in the United States, USHRN, 229, 243 (Aug. 2013).
 Dana L. Sichel, Giving Birth in Shackles: A Constitutional and Human Rights Violation, 16 J. of Gender, Social Policy, and the Law, 223, 228 (2008).
 supra note 19 at 243.
 U.S. Const. amend. VIII.
 Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citing
 Id. at 102-3.
 Furman v. Georgia, 408 U.S. 238, 239 (1972).
 Id. at 249-50.
 Id. at
 Id. at 271.
 Id. at 274.
 Id. at 277.
 Id. at 279.
 Turner v. Safley, 482 U.S. 78, 84 (1987).
 Estelle, 429 U.S. 97 at 104.
 Id. at 103-4.
 Hope v. Pelzer, 536 U.S. 730, 730 (2002).
 Id. at 731.
 See Nelson, 583 F.3d 522 (8th Cir. 2009); Women Prisoners of D.C. Department of Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994); Villegas v. Metropolitan Government of Nashville, 709 F.3d 563 (6th Cir. 2013).
 Nelson, 583 F.3dat 522.
 Id. at 529.
 Villegas, 709 F.3d at 574.
 Nelson, 583 F.3d at 534.
 Hope, 536 U.S. at 738.
 Id. (citing Austin v. Hopper, 15 F.Supp.2d 1210, 1246 (1998)).
 Betsy Swan, It’s Time to Stop the Horror of Shackled Births, Daily Beast (Apr. 14, 2017) https://www.thedailybeast.com/its-time-to-stop-the-horror-of-shackled-births.
 Sara Cohen Shabot, Why ‘normal’ feels so bad: violence and vaginal examinations during labour – a (feminist) phenomenology, Sage, 1, 14 (Apr. 28, 2020).
 Natalia Price, A third or fourth-degree tear during childbirth, Oxford University Hospitals (June 2015) https://www.ouh.nhs.uk/patient-guide/leaflets/files/12101Ptear.pdf.
 Tonya M. Williams, SPARK Reproductive Justice NOW, Giving Birth Behind Bars: A Guide to Achieving Reproductive Justice for Incarcerated Women, 1, 2 (2011).
 Negar Mortazavi, An Illegal and Inhuman Practice: We Must Stop Shackling of Pregnant Incarcerated Women, Huff Post. (Mar. 14, 2014) https://www.huffpost.com/entry/an-illegal-and-inhuman-pr_b_4957996.
 Clarissa Hamlin, Why Battle To End Shackling Of Pregnant Women In Prison Should Take Center Stage, News One (May 11, 2018) https://newsone.com/3798404/shackling-pregnant-women-prison-explainer/.
 Priscilla A. Ocen, Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners, 100 California L. Rev., 1239, 1282 (2012).
 Id. at 1310.
 Leonie Stoute, Break Every Chain: Bringing an End to the Unconstitutional Shackling of Pregnant Inmates, 60 Howard L. J., 749, 771 (2017).
 Restrictions on Shackling Pregnant People in Correctional Facilities, Planned Parenthood, https://www.plannedparenthoodaction.org/uploads/filer_public/1d/e5/1de5ee36-304a-4c79-a245-31db30e4f9bd/sb_803__hb_1627_fact_sheet_-_shackling_pregnant_people_in_correctional_facilities.pdf (last visited Apr. 7, 2021).
 Ginette Ferszt, PhD, RN, PMHCNS-BC, Giving Birth in Shackles, 110 Am. J. of Nursing, 11, 11 (Feb. 2010).
 Nelson, 583 F.3d at 534.
 Stoute, supra note 48 at 771.
 Id. at 772.
 Claire Louise Griggs, Birthing Barbarism: The Unconstitutionality of Shackling Pregnant Prisoners, 20 American University Journal of Gender Social Policy and Law, 247, 257 (2011).
 Nelson, 583 F.3d at 526.
 Danielle Dallaire, PhD, et. al., Shackling Pregnant Women Poses Risks to Mother and Fetus, Psychology Benefits Society (Dec. 29, 2015) https://psychologybenefits.org/2015/12/29/shackling-pregnant-women-poses-risks-to-mother-and-fetus/; Priya Vedula, Shackling: The Story of Incarcerated Pregnant Women, Loma Linda University Health (June 18, 2018) https://ihpl.llu.edu/blog/shackling-story-pregnant-incarcerated-women.
 Safe Pregnancy for Incarcerated Women, Lift Louisiana, https://liftlouisiana.org/content/safe-pregnancy-incarcerated-women (last visited Apr. 7, 2021).
 See U.S. Equal Emp’t Opportunity Comm’n., Fact Sheet: The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (July 6, 2000) http://www.eeoc.gov/policy/docs/fmlaada.html.
 Estelle, 429 U.S. 97 at 104.
 Nelson, 583 F.3d at 530-31.
 Claire Louise Griggs, Birthing Barbarism: The Unconstitutionality of Shackling Pregnant Prisoners, 20 American University Journal of Gender Social Policy and Law, 247, 259 (2011).