excerpted from: Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis Law Review 2191 (June, 2018) (242 Footnotes) (Full Document)
Ms. Jones was a tall African-American woman in her late thirties. She was incarcerated at the Valley State Prison for Women (“VSPW”) in rural Chowchilla, California. Her short haircut and oversized blue and white prison uniform, however, made her look much younger. Ms. Jones asked to meet with me as part of a legal visit arranged by the California Coalition for Women Prisoners and the San Francisco Lawyers' Committee for Civil Rights. According to her intake form, she was concerned about issues related to the treatment of pregnant women and custody of her newborn son. When we sat down to talk, she was quiet and pensive. “I just had a baby boy. I went through so much and I need to make sure I don't lose him,” she whispered, seemingly trying to wrest as much privacy and dignity as she could muster in the cavernous visiting room. Ms. Jones went on to describe the joys and pains of her birthing process as well as her anxieties surrounding her child's wellbeing.
Ms. Jones explained that she was four months pregnant when she was sentenced to sixteen months in prison for a property offense. Accessing prenatal care was difficult. Nevertheless, she did everything she could to make sure she had a healthy pregnancy: she fought for necessary food and nutritional supplements, exercised when she could and read stories to her yet-to-be born child. She arranged for a family to take temporary custody of her child until she was released from prison. Ms. Jones felt powerless, however, when it came to the birth of her son. Prison officials scheduled a caesarian delivery without prior notice or inquiry regarding her birthing preferences. She was shackled as she was transported to the hospital and during labor. While she was on the table and sedated, the prison physician asked her if she wished to be sterilized. Alarmed, she emphatically stated that she did not want the procedure. Despite the confusion surrounding the birth, Ms. Jones had a healthy baby boy. She was elated to witness her child take his first breath. Less than twenty-four hours later, her elation gave way to sorrow as the child was removed from her care and Child Protective Services took custody despite her prior arrangement. She was scared. She was concerned that her parental rights would be terminated. She wanted to be able to have children in the future. She sought answers to the deeply troubling questions raised by the reproductive care provided to people in women's prisons.
For over a year, I remained on the legal visiting team. I continued speaking to women about conditions at VSPW, one of the largest women's prisons in the world. I continued to hear stories of various forms of reproductive abuse ranging from failure to provide adequate prenatal care to loss of parental rights. Months later, the doctor who wanted to perform the sterilization on Ms. Jones was among several under contract with the California Department of Corrections and Rehabilitation found to have performed at least 148 questionable sterilizations on people in California women's prisons.
Ms. Jones and the other women at VSPW are not alone in their experience of reproductive harm while incarcerated. Over the last thirty years, women have become the fastest growing prison population in the United States. Between 1980 and 2014, the number of women in prison and jail rose from 26,378 to approximately 215,000, an increase of over eight hundred percent. As a result of these trends, the United States is now home to nearly one-third of the world's incarcerated women, despite representing less than five percent of the world's population. Nearly sixty-five percent of women housed in state prison and nearly eighty percent of women in jails are parents. Indeed, “[s]ince 1991, the number of children with a mother in prison has more than doubled, up 131%.” This means that tens of thousands of mothers are incarcerated in jails and prisons. Like Ms. Jones, these women are separated from their children for extended periods of time and receive inadequate reproductive care while incarcerated. Moreover, approximately eighty-five percent of women in prison are of reproductive age. These trends, while flatly troubling, reveal deeper insights about the nature of women's prisons. As this Article will contend, these trends highlight the ways in which women's incarceration functions as a means to regulate the reproductive capacity of women viewed as unfit for procreation. Through imprisonment, women who are deemed deviant are incapacitated, removed from society, separated from their children, and prevented from reproducing.
Ms. Jones and incarcerated women like her experience what this Article refers to as the “incapacitation of motherhood.” Although incapacitation has long been understood as a justification for punishment, this Article examines how it has been utilized as a means of reproductive control and gender subordination. Indeed, while ostensibly imprisoned for criminal offenses, incarcerated women are placed on the path to imprisonment as a result of poverty, racial inequality, mental illness, and homelessness. As members of these devalued populations, they are seen as propagators of disorder and social depravity. Due to their ability to procreate, such women are viewed as dangers to society. For example, the prison physician who recommended a tubal ligation for Ms. Jones later justified the use of state funds for such sterilizations by suggesting that the costs of such procedures were minimal “compared to what you save in welfare paying for these unwanted children--as they procreated more.” His comment reflects the ways in which incarcerated women's reproduction is seen as a threat to state coffers and the broader social order. For these women, imprisonment functions to manage the social problems associated with them and the communities from which they emerge. Moreover, the sterilizations undertaken by this doctor shed light on how prison operates as a site where reproductive autonomy is incapacitated and the right to procreate is under assault.
The incapacitation of motherhood is accomplished through a variety of methods. First, motherhood is incapacitated largely through the removal of women from the ability to procreate or parent via incarceration and the conditions of confinement they confront while serving their custodial sentences. For example, pregnant prisoners are exposed to humiliating, degrading, or negligent treatment, including the use of shackles during labor and delivery. These humiliating practices punish women for procreating and discourage further childbearing. Second, the procreative capacities of women who are of reproductive age are circumscribed by practices and policies like lengthy sentences, coerced sterilizations, and accelerated timelines for the termination of parental rights. Taken together, the individual and collective acts of incapacitation in prison result in women's temporary or permanent inability to procreate or parent their children.
The incapacitation of motherhood is premised on the notion that incarcerated women forfeit their right to procreate or parent by virtue of their lawbreaking and imprisonment. At base, this view suggests that a criminal conviction necessarily means that an individual is presumptively unfit to parent, that they lack any value in the lives of their children. This view ties the notion of deservingness to reproduction in a manner that harkens back to the eugenics era, a notion that the Supreme Court firmly rejected in Skinner v. Oklahoma. Indeed, given the disparities inherent in the criminal justice system, such notions of fitness and deservingness would target individuals for reproductive forfeiture based on race, gender, class, and disability. Furthermore, suggesting that women forfeit the right to parent inflicts punishment that is wildly disproportionate and disconnected to crimes committed by incarcerated women.
In particular, the incapacitation of motherhood functionally circumscribes the exercise of the fundamental human right to procreate and parent. It separates women from their children and stigmatizes the reproductive capacities of women who wish to have children. It undermines the bodily integrity and basic dignity of women subject to practices such as sterilization and shackling. Moreover, the incapacitation of motherhood undermines the life chances of children who are left behind, often consigned to overburdened foster care systems.
Despite the important human rights at stake, the concept of the incapacitation of motherhood and the stories of women like Ms. Jones do not, however, fit neatly into existing frameworks regarding mass incarceration or reproductive autonomy. Indeed, mass incarceration has been theorized as a system of racialized control that primarily targets Black men. Much of the scholarship and advocacy on mass incarceration posit that the surveillance, criminalization, and incarceration of Black men assist in the maintenance of the prevailing racial order. Accordingly, the use of the incarceration and incapacitation as an instrument of racial power experienced by communities of color is framed in gender exclusive terms.
Moreover, the experiences of women like Ms. Jones do not square with traditional theorizing and advocacy regarding reproductive rights. While this literature has thoroughly interrogated the scope of constitutional guarantees of privacy, dignity, and liberty, it has done so largely through the prism of issues related to abortion and contraception. “Choice” is often informed by the experiences of white, middle-class, heterosexual cis-gendered women who have material resources which allow them to make the kinds of choices regarding reproduction and childrearing that are largely unavailable to incarcerated women. Within this framing of reproductive autonomy, the right not to be a parent is often presented as the primary reproductive harm confronted by women. Most significantly, advocates or theorists seldom center incarcerated women such as Ms. Jones to link mass incarceration and reproductive abuses as part of a comprehensive system of gendered racialized social control.
Contrary to this trend, the work of legal scholars such as Dorothy Roberts, Michele Goodwin, and Kaaryn Gustafson have made such significant linkages between reproductive harm and criminalization. In particular, their work examines the ways in which mass incarceration burdens the procreative and parental rights of poor women of color. This Article extends the important insights of this work into the prison itself, a space that is often left underexamined by a focus on criminalization (i.e., the front end of mass incarceration). In prisons, women are alienated from their children, denied the possibility of having children during long sentences, and humiliated during pregnancy and postpartum recovery. As such, women have little control over their own bodies, their access to “privacy” is limited, and their ability to “choose” is constrained. Examination of these and other facets of incarcerated women's experiences reveal the ways in which imprisonment and reproductive subordination are overlapping and mutually reinforcing phenomena.
Moreover, the broader framing embedded within the concept of the incapacitation of motherhood demonstrates the ways in which the reproductive harms experienced by incarcerated women are facilitated rather than limited by constitutional doctrine that often enables reproductive abuses by deferring to prison officials. Given the limitations of constitutional doctrine as a vehicle for protecting the reproductive capacities of incarcerated women, this Article suggests that scholars and advocates must look beyond formal doctrine to resist the incapacitation of motherhood specifically and the use of incarceration to manage social problems generally associated with poor women. Indeed, alternative frameworks, such as reproductive justice, that deploy law in concert with social movements may serve as a schema that can move beyond the incapacitation of motherhood to liberate it.
This Article will proceed as follows: In Part I, I will discuss incapacitation as a theory of social control that justifies the physical removal of individuals who are deemed dangers to public order. Traditionally used as a means of punishment, this Part will note how incapacitation was used in the context of early women's prisons to regulate normative constructs of femininity, reproduction, and motherhood. In Part II, I argue that mass incarceration has come to supplant these early mechanisms of reproductive control. In particular, I highlight the ways in which women's prisons and jails operate to target women who are deemed incompetent or unfit mothers through criminalization, custodial sentences, and conditions of confinement. Policies such as the sterilization of individuals in state prisons are the clearest example of the continuity from earlier eras of reproductive suppression and the incapacitation of motherhood. These examples, however, are part of a broader dynamic in which incarceration functions to incapacitate motherhood.
In Part III, I assert that formal constitutional doctrine has been inadequate to the task of protecting the reproductive capacities of individuals incapacitated in women's prisons.
Part IV will argue for the adoption of a reproductive justice framework that places affirmative obligations on the state to provide the necessary resources and support to liberate motherhood. Liberation of motherhood entails resources, such as housing, employment, education, childcare, and healthcare, that will enable marginalized women to provide for themselves and their families and to parent with dignity. Such an approach would fundamentally contest the punitive approach that all too often lands marginalized women in prison where their ability to parent or procreate is incapacitated. Instead, women and mothers who are in crises, who struggle with poverty, homelessness, mental illness, domestic violence, or drug addiction, can access non-punitive state interventions that would place them on the pathway to productivity and dignity rather than incarceration and incapacitation. Understood in this way, reproductive justice can function not only as a means of protecting the reproductive autonomy of the most marginalized women, but also as a means of resisting and dismantling mass incarceration.
. . .
We are volcanoes. When we women offer our experience as our truth, as human truth, all the maps change. There are new mountains.
I think about Ms. Jones quite a bit in the years since I last saw her. I think about the ways in which imprisonment restricted her ability to have a healthy pregnancy, to control her birthing process, to maintain custody of her son and threatened her ability to have children in the future. By virtue of her imprisonment, Ms. Jones joined tens of thousands of women whose identities as mothers were incapacitated by mass incarceration. I think about how prevailing legal frameworks failed to protect her and how courageous she was to speak out against the reproductive oppression she experienced. In speaking out, she joined hundreds of thousands of marginalized women who were calling for reproductive justice that would enable women to have control over their reproductive destinies. Through reproductive justice, incarcerated women like Ms. Jones can offer their truths to demand fundamental reform to the operation of women's prisons that liberate rather than incapacitate motherhood.
Associate Professor of Law, Loyola Law School