Punished for Pregnancy: When Medical Neglect in Local Jails Becomes Cruel and Unusual Punishment

by Mofe Koya, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

While the prison reform movement has reduced the total number of people in state prisons since 2009, the vast amount of the decrease has been solely among men.¹ In contrast, “[w]omen have become the fastest-growing segment of the incarcerated population.”² Despite this, there is little data collected on how incarceration affects women and their health, including pregnancy.³ In 2025, Bloomberg Law analyzed the experience of 54 pregnant women who filed federal lawsuits alleging severe mistreatment or medical neglect in county jails between 2017 and 2024.⁴ These women, often jailed for petty or nonviolent crimes, gave birth in “excruciating pain into cell toilets and onto filthy jail floors.”⁵ Because there is no nationwide requirement that jails track when incarcerated people are pregnant or the outcome of those pregnancies, the realities of being pregnant in prison are often hidden from public view.⁶ As recent litigation continues to expose these failures and federal legislative efforts remain stalled, the treatment of pregnant women in custody raises urgent constitutional questions about the adequacy of care, punishment, and dignity under the Eighth Amendment.

This Article will argue that the treatment of pregnant women in jail reflects systemic medical neglect that raises Eighth Amendment concerns. Part II provides background on the incarceration of pregnant women in local jails, including gendered incarceration patterns, pregnancy outcomes in custody, and recent legislative responses to litigation exposing these failures. Part III examines the constitutional implications of these conditions, arguing that pregnancy constitutes a serious medical need and that structural indifference in jail medical systems amounts to deliberate indifference. Part IV concludes by contending that the absence of uniform federal protections allows pregnancy to function as an additional form of punishment and by urging a reconceptualization of the government’s constitutional duty to mitigate foreseeable pregnancy‑related harms in custody.

II. Background

A. Overrepresentation of Women in Local Jails

Of the total incarcerated population, state prison systems hold twice as many people as are held in jails.⁷ However, this pattern does not hold for incarcerated women, who are nearly evenly split between state prisons and local jails.⁸ While incarceration data has traditionally centered on men, it nonetheless reveals that women are disproportionately overrepresented in local jails relative to their male counterparts.⁹ In a 2017 report, the Prison Policy Initiative reported that 60% of women in jail have not yet been convicted of a crime or gone to trial.¹⁰

Pretrial incarceration is particularly common among women, largely because the offenses for which women are jailed are often closely tied to poverty and survival-based decision-making, including efforts to support families and children.¹¹ Moreover, some studies indicate that the increase in numbers of incarcerated women is the result of the government’s “war on drugs” because women are more likely to be arrested for low-level drug related crimes.¹² Once charged, women—who on average have lower incomes than their male counterparts—are less able to afford cash bail.¹³ One study found that women unable to make bail had a median income of $11,071, representing just 20 percent of the income of a white, non‑incarcerated man, while typical bail amounts hover around $10,000.¹⁴

B. Pregnancy Outcomes and Medical Care in State Jails

Even for women who have been convicted, the criminal justice system funnels women into jails.¹⁵ About 32% of convicted incarcerated women are held in local jails, compared to about 13% of all incarcerated individuals with a conviction.¹⁶ While jail stays are generally shorter than stays in prison, they present specific undue hardships for women. In 2023, the Bureau of Justice reported that more than seven hundred pregnancies ended while the mother was in custody.¹⁷ Of those, 91.5% were live births while 6.5% ended in miscarriage and 2.1% ended in abortion.¹⁸

Although most pregnancies in custody result in live births, these aggregate figures obscure the extreme harms revealed in litigation challenging jail medical practices. In a Bloomberg Law report, only twenty-one of the fifty-four cases reviewed ended with children who survived.¹⁹ There, twelve babies suffered infections, diseases, or birth defects that could have been prevented, six women delivered babies who were born alive but died within days, six endured stillbirths, sixteen had miscarriages, four survived potentially fatal ectopic pregnancies, and two women died.²⁰

Although there is no way to know for certain whether these pregnancy complications occurred because of the woman’s time behind bars, it is known that “unsanitary conditions and limited access to prenatal care, medical providers, and critical medications are factors that can affect a healthy birth or contribute to preterm labor.”²¹ The Bureau of Justice Statistics report found that “prison systems universally reported furnishing at least two accommodations for pregnant people: lower bunk placement and prenatal vitamins.”²² However, other basic—yet necessary—accommodations such as special postpartum diet, doula support, extra pillows during pregnancy, and breast pumps are less commonly provided.²³ These basic accommodations are associated with fewer postpartum depression symptoms, better infant health, shorter labor times, less pain and discomfort during labor, lower cesarean rates, and other adverse outcomes.²⁴

C. Legislative Efforts and the Pregnant Women in Custody Act

Most correctional facilities in the United States do not have on-site obstetric care; as a result, pregnant women are typically transported to community-based providers for prenatal care while women in labor are transferred to medical facilities for delivery.²⁵ Policies regarding transport, labor, delivery, and post-delivery vary by jurisdiction, but most women are frequently shackled with handcuffs, leg irons, and/or waist chains.²⁶ Community advocacy, however, has led to legislation being passed in ten states prohibiting the use of restraints on pregnant women and women in labor.²⁷ Additionally, the Federal Bureau of Prisons and the Department of Corrections in thirteen additional states have passed legislation prohibiting such policies.²⁸ However, investigations from the American Civil Liberties Union (“ACLU”) and Amnesty International show that such prohibiting polices are not strictly enforced.²⁹ For the remaining twenty-seven states, pregnant women are regularly restrained “during transport to and from medical facilities and chained to hospital beds by the ankle, wrist, or both during labor and delivery.”³⁰

Following the Bloomberg Law investigation, some members of Congress proposed measures intended to address poor pregnancy and birth outcomes among women in jail.³¹ The Pregnant Women in Custody Act (“PWCA”) was introduced in February 2023.³² The bill, aimed at improving healthcare outcomes for babies born to incarcerated women, would require “the Bureau of Prisons (“BOP”) to provide appropriate services and programs to address the health and safety needs related to pregnancy and childbirth, as well as appropriate health care to a woman with a high-risk pregnancy.”³³

Similar legislative efforts have begun in several states, including a bill introduced by Pennsylvania Senator Amanda Cappalletti that would allow pregnant women accused of nonviolent offenses to remain out of jail while awaiting trial.³⁴ Proposals have been introduced in Georgia, Virginia, and Texas aimed at mandatory data collection on pregnancy in custody, options for pretrial release or alternative sentencing for pregnant detainees, and higher standards of prenatal care.³⁵ These proposals reflect growing bipartisan concern and advocacy momentum in response to the treatment of pregnant women in jails.³⁶ While some of these proposals have resulted in enacted reforms at the state level, comprehensive federal protections for pregnant women in custody remain stalled.³⁷

III. Discussion

A. Pregnancy as a Serious Medical Need Under the Eighth Amendment

In Estelle v. Gamble, the Supreme Court held that incarcerated individuals have a constitutional right to receive adequate medical care, ruling that deliberate indifference to serious medical needs constitutes the “unnecessary and wanton infliction of pain” prohibited by the Eighth Amendment.³⁸ This framework governs courts’ assessment of medical neglect claims brought by incarcerated people, including those arising from pregnancy-related care.

Shackling pregnant women and women in labor is a remnant of protocols designed for male institutions to prevent escape attempts and protect correctional officers and other personnel.³⁹ However, during the stress of labor and delivery the risk of an escape attempt is not only unlikely but the use of restraints can be medically unsafe and emotionally traumatizing for both the mother and the fetus.⁴⁰ While shackled, pregnant women are at increased risk of falling and sustaining injury to themselves and their fetuses.⁴¹ During labor and delivery, shackling interferes with a woman’s ability to assume various positions and prevents her immediate transport to the operating room, if necessary.⁴² These concerns have been recognized by the American College of Obstetricians and Gynecologists (“ACOG”) in a committee opinion concluding that:

Physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of the women and unborn children at risk.⁴³

The continued use of shackles and other restraints on pregnant women, coupled with the absence of national safeguards prohibiting such practices, constitutes the “unnecessary and wanton infliction of pain” barred by the Eighth Amendment.⁴⁴ Moreover, the lack of uniform, mandatory accommodations for pregnant detainees—and the failure to require systematic tracking of pregnancy outcomes in local jails—independently violates the Amendment’s prohibition on cruel and unusual punishment.⁴⁵ By declining to enact federal laws that meaningfully protect and improve the conditions of pregnancy in incarceration, the government allows pregnancy itself to operate as an additional form of punishment, layered onto an individual’s underlying detention. Incarceration inevitably restricts liberty, but it does not constitutionally permit the state to expose detainees to predictable, preventable physical and psychological harm simply because they are pregnant.

Where the government affirmatively assumes custody over a pregnant person, it also assumes a heightened duty to mitigate the foreseeable risks that custody creates or exacerbates. The absence of national standards governing prenatal care, labor and delivery, postpartum support, and alternatives to detention ensures that pregnancy transforms confinement into a uniquely harmful experience marked by unnecessary pain, increased medical risk, and the loss of dignity. When those harms result from legislative inaction and institutional neglect, they constitute punishment beyond what the criminal justice system is authorized to impose. Thus, in this context, it is important to remember that the Eighth Amendment prohibits not only malicious acts, but also “deliberate indifference” exacerbated by systemic failures that permit suffering to persist where reasonable safeguards are readily available.⁴⁶ Here, federal inaction is not neutral, it contributes to a system in which pregnancy magnifies punishment, rather than triggering the protections the Constitution demands.

B. Structural Indifference as Deliberate Indifference

The Eighth Amendment’s prohibition on cruel and unusual punishment does not rely solely on the presence of overt malice or individualized cruelty. Under Estelle v. Gamble and its progeny, constitutional liability attaches where the state is deliberately indifferent to serious medical needs.⁴⁷ In Nelson v. Correctional Medical Services, the Eighth Circuit articulated the relevant inquiry as “(1) whether [the plaintiff] had a serious medical need or whether a substantial risk to her health or safety existed, and (2) whether the officer had knowledge of such serious medical need or substantial risk … but nevertheless disregarded it.”⁴⁸ Applying that framework, the court emphasized that an incarcerated woman in active labor presents an obvious and substantial risk of serious harm absent any “competing penological interest in shackling her.”⁴⁹ Nonetheless, pregnancy-related harms in jail often escape Eighth Amendment scrutiny because they are produced not by a single cruel act, but by several institutional decisions that predictably expose pregnant detainees to serious risk. When such risks are known, foreseeable, and left unaddressed, structural indifference should be understood as deliberate indifference in constitutional terms.

Local jails operate under conditions that make adequate prenatal and pregnancy care uniquely difficult: short and unpredictable lengths of stay, limited on-site medical capacity, heavy reliance on outside hospitals, and the widespread use of correctional officers—rather than medical professionals—as care providers.⁵⁰ Pregnancy, on the other hand, requires continuity, anticipation, and timely intervention. When a system is designed in a way that makes serious harm foreseeable, and when officials persist in maintaining that system without adopting reasonable safeguards, the resulting indifference is no less deliberate simply because it is systemic rather than the result of individual decision-making.

Courts have recognized in other contexts that systemic failures may rise to the level of constitutional violations where they create an ongoing risk of serious harm.⁵¹ Overcrowding, understaffing, and inadequate medical infrastructure have all been deemed capable of sustaining Eighth Amendment claims when they result in preventable suffering.⁵² Pregnancy-related neglect is also an Eighth Amendment violation under this rationale. The absence of national minimal standards for prenatal and obstetric care in jails results in an environment in which harm is not just possible, but likely.

Treating such structural failures as anything less than deliberate indifference wrongly narrows the scope of the Eighth Amendment. The Constitution does not require detainees to wait for a catastrophe before its protections attach. That much was decided in Helling v. McKinney, where the Supreme Court held that the “Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering.”⁵³ Thus, where the state detains pregnant individuals and knows that its custodial conditions are incompatible with basic medical standards, continued inaction reflects a choice. That choice to maintain systems that predictably fail pregnant detainees is itself deliberate. Without this recognition, the harms associated with being pregnant while incarcerated become a constitutional blind spot.

IV. Conclusion

As litigation continues to reveal patterns of neglect and proposed reforms stall, pregnant women remain stuck in correctional institutions structurally incapable of meeting their medical needs. Treating these failures as isolated incidents ignores the deeper reality that pregnancy‑related harm is both foreseeable and preventable—and that allowing it to persist reflects deliberate indifference in constitutional terms. When the state exercises control over a pregnant person’s body, it assumes an obligation to mitigate, not magnify, the risks of pregnancy. Absent uniform federal protections, pregnancy itself becomes an additional and unconstitutional form of punishment. Treating structural indifference as deliberate indifference is therefore not an improper expansion of Eighth Amendment doctrine, but rather a necessary application of its core principle to prohibit the government’s use of cruel and unusual punishment against citizens in its care.

Cover Photo by Toa Heftiba on Unsplash

Mofetoluwa Koya

References

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Wendy Saywer, The Gender Divide, Prison Policy Initiative (Jan. 9, 2018), https://www.prisonpolicy.org/reports/women_overtime.html#localjails [https://perma.cc/AM49-NY4H].
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3
Emily Widra & Emmett Sanders, New data on pregnancy prevalence, outcomes, and programs in prisons are welcome additions, but raise new questions, Prison Policy Initiative (May 7, 2025), https://www.prisonpolicy.org/blog/2025/05/07/2023_pregnancy_prison/[https://perma.cc/XB7K-XHD3] (Statement of Prison Policy Initiative) (“[W]e acknowledge that people of many different gender identities can become pregnant. Unfortunately, the data published by the Bureau of Justice Statistics is not broken down by gender identity. Instead, it relies on administrative data, which is primarily reliant on the binary sex variables of male and female. The report presents data exclusively about women in the custody of state and federal correctional authorities and female admissions, ostensibly conflating “women” with administratively-identified “female” people.”)
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