Should a National Standard of Care be Established for Pregnant & Postpartum Women in Federal Prisons? (H.R. 7718)

What is H.R. 7718?

(Updated November 14, 2020)

This bill, known as the Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act, would establish a national standard of care, data collection, and training and technical assistance for pregnant women in federal prisons. A breakdown of its various provisions can be found below.

Addressing Incarcerated Women’s Pregnancy and Childbirth Needs

To address pregnant women in federal prisons’ needs, this bill would:

• Establish minimum standards for healthcare for pregnant women, fetuses and newborns in federal custody;
  
• Prohibit the use of restraints on and restrictive housing for federal prisoners who are pregnant or eight or fewer weeks post-partum; and
  
• Require reporting on the use of restraints and restrictive housing on any inmate when she is pregnant, in labor, or recovering from childbirth to the Dept. of Justice (DOJ) agency director, who would be required to submit a summary of these reports to the House and Senate Judiciary Committees on an annual basis.
  

Training and Technical Assistance

To help ensure that state, local, and federal prisons comply with standards established in this bill, this legislation would:

• Require DOJ, in consultation with healthcare professionals, to develop training programs and guidelines for federal correctional officers and U.S. marshals; and
  
• Direct the DOJ, in consultation with the Secretary of Health and Human Services, to fund training and technical assistance to state and local corrections and law enforcement agencies to ensure that restraints and restrictive housing are used in accordance with state laws.
  

Incentives for States

To encourage states to adopt minimum standards of care for pregnant or postpartum inmates in their custody, this bill would:

• Provide competitive grant funding to states with laws addressing the treatment of incarcerated women that the Attorney General (AG) determines to meet or exceed federal standards established in this legislation; and
  
• Give states that have enacted or implemented services or pilot programs addressing incarcerated pregnant women’s needs preference in grant funding.
  

Data Collection

This bill would require DOJ to collect data on women’s mental and physical health in federal, state, tribal, and local corrections. This data collection would focus on pregnancy and the postpartum period.

Legal Recourse for Pregnant Inmates

Finally, this bill would allow pregnant women in federal custody to file suit in federal court for grievances concerning prison concerns without exhausting administrative remedies first.

Argument in favor

All women, including incarcerated women, deserve appropriate pregnancy and postpartum care. Unfortunately, while there have been efforts to reform pregnancy care in prisons at the federal level, these reforms are not sufficiently detailed and haven’t made their way into most penitentiaries. This legislation would enact a detailed standard of care for incarcerated pregnant women in federal prisons and incentivize states to adopt similar standards.

Argument opposed

Incarcerated pregnant women’s rights to proper care are already protected under the Eighth Amendment, so the means for ensuring proper pregnancy and postnatal care in penitentiaries already exists without this legislation. Rather than passing new legislation and adding to the complex regulations governing U.S. prison policy, it would be more effective to use Eighth Amendment protections to ensure appropriate care for incarcerated pregnant women.

Impact

Incarcerated pregnant women; pregnancy and postnatal care for incarcerated pregnant women; federal prisons; state prisons; and local jails.

Cost of H.R. 7718

The Congressional Budget Office (CBO) estimates that this bill would increase the number of suits, some of which would result in settlements paid from the Judgment Fund, that inmates file against the Bureau of Prisons. However, while the number and magnitude of those settlements is uncertain, the CBO estimates that payments from the fund will be insignificant in any year.

Additional Info

In-Depth: Sponsoring Rep. Karen Bass (D-CA) introduced this legislation to provide a national standard of care to address pregnancy-related needs of incarcerated women during pregnancy, labor, delivery and post-partum periods:

“Our prison system was not created with women in mind and as a result continually fails to provide basic necessities to tens of thousands of individuals who are incarcerated every single day. Especially amid a pandemic, it is incumbent upon Congress to ensure that we are not inadvertently matching petty crimes with death sentences. I’m proud to be introducing this bipartisan bill to make sure that we are mindful and responsible for the health and wellness of pregnant women in prison. That means an appropriate diet, it means access to appropriate medical assistance, and it certainly means stopping the shackling of pregnant inmates. Although it’s beyond the scope of this bill, it is important that we not normalize the incarceration of pregnant women. In fact, we should examine whether incarcerating pregnant women at all is the best way to address public safety.”

Lead Republican cosponsor Rep. Guy Reschenthaler (R-PA) adds:

“I’m proud to join Reps. Bass, Lesko, and Clark in introducing this bipartisan legislation to protect the health and wellness of pregnant and postpartum women in prison. By providing incarcerated women with access to pregnancy-related health care and services, we can ensure better outcomes for both mothers and babies. I look forward to advancing the Pregnant Women in Custody Act and urge my colleagues to support this commonsense legislation.”

Families Against Mandatory Minimums (FAMM) supports this legislation:

“This bill would restore dignity and respect to women prisoners during childbirth, one of the most vulnerable moments in a persons’ life, by severely limiting the use of restraints and restrictive housing on women who are pregnant, in labor, or in postpartum recovery while also improving standards of healthcare for this population.”

This legislation passed the House Judiciary Committee with the support of 35 bipartisan cosponsors, including 29 Democrats and six Republicans. 

Last Congress, Rep. Bass introduced this legislation with the support of 84 bipartisan House cosponsors, including 67 Democrats and 17 Republicans, and it didn’t receive a committee vote. Its Senate companion, sponsored by Sen. Rand Paul (R-KY) with one cosponsor, Sen. Kirsten Gillibrand (D-NY), also didn’t receive a vote.

Of Note: In a July 2019 hearing, the House Judiciary Committee on Crime held a hearing examining the unique ways in which women become trapped in the U.S. prison system, abuse faced by incarcerated women, and the challenges that women face after release.

According to the ACLU, the shackling of pregnant prisoners and over-incarceration of pregnant women are issues of major concern. The ACLU says, “Unfortunately, shackling pregnant women during active labor and childbirth is all too common in our nation’s prisons and jails.” 

In 2002, the most recent year for which data is available, the Bureau of Justice Statistics (BJS) found that 5% of women in local jails were pregnant when admitted, 4% of women in state prisons were pregnant upon admission, and 3% of women in federal prisons were pregnant upon admission. These numbers were roughly consistent with data from a 2017 study of 22 U.S. state prison systems and all U.S. federal prisons conducted by the American Journal of Public Health. That study found 470 pregnant federal prisoners, comprising 3% of women in federal prisons; 3,950 pregnant state prisoners, comprising 4% of women in state prisons; and 5,060 pregnant local prisoners, comprising 5% of women in local jails.

Although all U.S. prisons and jails are required to provide prenatal care under the Eighth Amendment, no federal standards have been set to ensure that women actually receive the care they need. The ACLU contends that incarcerated women have constitutionally protected rights to obtain appropriate medical care that is often violated when they receive inadequate (or non-existent) pregnancy or postpartum care.

Media:

• Sponsoring Rep. Karen Bass (D-CA) Press Release
  
• CBO Cost Estimate
  
• Families Against Mandatory Minimums (FAMM) (In Favor)
  
• ACLU (Context)
  
• Prison Policy Initiative (Context)