For complete article see: Helen Paillé, Black Female Inmates' Reproductive Rights: Cutting the Chains of Colorblind Constitutionalism, 3 William Mitchell Law Raza Journal 1 (Spring 2012) (87 Footnotes Omitted)
Consider a birdcage. If you look very closely at just one wire in the cage, you cannot see the other wires. If your conception of what is before you is determined by this myopic focus, you could look at that one wire, up and down the length of it, and be unable to see why a bird would not just fly around the wire any time it wanted to go somewhere ....There is no physical property of any one wire, nothing, that the closest scrutiny could discover, that will reveal how a bird could be inhibited or harmed by it except in the most accidental way. It is only when you step back, stop looking at the wires one by one, microscopically, and take a macroscopic view of the whole cage, that you can see why the bird does not go anywhere; and then you will see it in a moment.
Imagine a single, solitary chain link. Alone, it might feel light in your hand. But, one link is, of course, useless on its own. Now, imagine that link as one of many in a much larger chain--a chain that stretches back some 400 years. Imagine its weightiness and strength. At one end of that chain is Shawanna Nelson. At the other end--and along its length--are a million of her sisters and foremothers. Though some are enslaved and others free, all are in labor--and all are shackled.
Consider the following: although fewer Black women are imprisoned than white or Black men, significantly greater proportions of incarcerated women [are] Black, in federal and state prisons and local jails alike. In 2009, the United States population as a whole was approximately 76.9% white and 12.9% Black. In federal prisons, however, only 29% of female inmates are white, while 35% are Black. State prisons exhibit an even more extreme disparity: 33% of female inmates are white, 48% are Black. Similarly, 36% of female inmates in locals jails are white, 44% Black.
Probation statistics, however, do not reflect this pattern; 62% of women on probation are white, 27% Black. This seeming incongruence may actually be the exception that proves the rule. As Michelle S. Jacobs notes in Piercing the Prison Uniform of Invisibility for Black Female Inmates, this seeming contradiction reveals that white women are far more likely to be given probation than any other group of women in the system.
Consider, in light of these statistics, that thirty-eight states and the Federal Bureau of Prisons allow the use of restraints on pregnant women in the third trimester, and twenty-three states and the Federal Bureau of Prisons allow the use of restraints during labor. Not only, then, are Black women disproportionately represented in the prison system but many are--quite literally--born in chains.
II. CHAINS OF SLAVERY
Dey [the white folks] would dig a hole in de ground just big nuff fo her stomach, make her lie face down and whip her on de back to keep from hurtin' de child.
As Dorothy Roberts notes in Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, The brutal domination of slave women's procreation laid the foundation for centuries of reproductive regulation that continues today. Control of slave women's reproduction was essential for slavery's continued success on two levels: (1) sexual assault and rape (often resulting in pregnancy) served as a weapon of terror that reinforced whites' domination over their human property, and (2) encouraging slaves' reproduction furthered the white master's economic interest by literally multiplying his property.
A. DENIAL OF BODILY AUTONOMY
Rapes and sexual assaults were commonplace on plantations, and the law afforded slave women no protection against such attacks. In her memoir Incidents in the Life of a Slave Girl, Harriet Jacobs describes the feeling of utter helplessness that this lack of legal protection instilled in the victims of rape at the hands of their masters:
He told me I was his property; that I must be subject to his will in all things. My soul revolted against the mean tyranny. But where could I turn for protection? No matter whether the slave girl be as black as ebony or as fair as her mistress. In either case, there is no shadow of law to protect her from insult, from violence, or even from death; all these things are inflicted by fiends who bear the shape of men.
This sense that there [was] no shadow of law to protect her from insult, from violence, or even from death is absolutely correct. Roberts explains that the law fostered the sexual exploitation of slave women by allowing white men to commit these assaults without impunity ....Owners had the right to use their property as they wished, so long as the abuse did not kill the chattel. Conversely, slave women had no recognizable interest in preserving their own bodily integrity.
B. DENIAL OF REPRODUCTIVE CONTROL
The law also fostered the white slave owner's control of the Black slave women's reproduction by granting slave owners a devisable in futuro interest in their slaves' potential children. This legally-protected property interest in the unborn gave slave owners a financial incentive to protect the fetus even while inflicting violence upon the mother. Roberts describes one shocking yet common practice that exemplifies the consequences of legal recognition of the slave-owners' property interest in unborn slaves:
The conflict between mother and child was most dramatically expressed in the method of whipping pregnant slaves that was used throughout the South. Slaveholders forced women to lie face down in a depression in the ground while they were whipped ....This was a procedure that enabled the master to protect the fetus while abusing the mother.
As both the acceptance of rape and slave owners' in futuro property interest in their slaves' offspring make clear, the legal structures that ensured white slave owners to control their slaves' reproduction meant that Black women's childbearing in bondage was largely a product of oppression rather than an expression of self-definition and personhood ....The essence of Black women's experience during slavery was the brutal denial of autonomy over reproduction. Sadly, Roberts' assertion that Black women's childbearing in bondage was largely a product of oppression rather than an expression of self-definition and personhood continues to be the case today among Black female inmates.
Historically, the denial of Black women's reproductive autonomy has not been confined to the institution of slavery. Dorothy Roberts points out that persistent stereotypes about the inferiority of Black mothers and the resulting tendency of law, social policies, and medical practices to treat a pregnant woman's interests in opposition to those of her fetus are also to blame. Roberts argues that such positioning of the mother's interests in opposition to those of her fetus encourages government to restrict pregnant women's autonomy.
Consider, for example, former U.S. Senator Daniel Patrick Moynihan's report for the U.S. Department of Labor: The Negro Family: The Case for National Action. The Moynihan Report, as it is often called, essentially depicted the Black mother as the emasculating Sapphire whose domineering ways were to blame for the decline of the Black nuclear family and the rise in single, Black motherhood:
Consider the fact that relief investigators or caseworkers are normally women and deal with the housewife. Already suffering a loss in prestige and authority in the family because of his failure to be the chief breadwinner, the male head of the family feels deeply this obvious transfer of planning for the family's well being to two women, one of them an outsider. His role is reduced to that of errand boy to and from the relief office.
Roberts asserts that one response to this demeaning of Black motherhood in the U.S. social consciousness and political sphere is to reframe Black motherhood as an empowering denial of the dominant [white] society's denigration of their humanity:
Bearing and nurturing Black children ensure the life of the Black community. Bearing and nurturing Black children counteract a racist society's power to kill Black children through poverty, malnutrition, inadequate health care, and unsafe housing. Bearing and nurturing Black children defy the dehumanizing message that Black people do not deserve to procreate.
Thus, the shackling of Black inmates in labor can be understood not only as a modern incarnation of the wrongs of slavery but also as a forceful undermining of radical motherhood to which the woman is powerless and without legal remedy.
III. CHAINS OF STEEL
When the nurses came in, the guards would remove the chains--but as soon as the nurses would leave out of the room, the guard would shackle me back.
A. SHAWANNA NELSON'S STORY
When Shawanna Nelson gave birth to her second child, her ankles were shackled to either side of her bed. She was unable to move her legs or stretch during the most painful and stressful part of [labor] . The chains caused Shawanna more than mere discomfort. Shawanna suffered extreme mental anguish and pain, permanent hip injury, torn stomach muscles, and an umbilical hernia requiring surgical repair ... [T] he shackling injured and deformed her hips, preventing them from going back into the place where they need to be. She also alleged damage to her sciatic nerve--the largest nerve in the human body. Not only will Shawanna's injuries cause her lifelong pain, but she can no longer enjoy ordinary activities' such as playing with her children or participating in athletics. She is unable to sleep or bear weight on her left side or to sit or stand for extended periods. Nelson's physicians have also warned her against having any more children because of the many injuries that resulted from her traumatic labor.
Shawanna Nelson was not a slave woman giving birth on a plantation. She was an inmate at the McPherson Unit of the Arkansas Department of Corrections giving birth in an Arkansas hospital in 2003. Shawanna was convicted of the nonviolent offenses of credit card fraud and writing bad checks. At the time of her conviction, she was six-months pregnant.
Nelson went into labor at 5:00 a.m. on September 20, 2003. After laboring in her cell for twelve hours, she was finally admitted to the infirmary at 3:00 p.m. By that time, her contractions were so powerful that she could barely walk without gasping for breath and leaning on the wall. The infirmary nurses ordered her to be immediately transported to a contracting civilian hospital to deliver her child. In fact, the guard who accompanied Nelson to the hospital, Officer Turensky, states that she was instructed to RUSH [Nelson] to the hospital [and] to NOT to [sic] take time for cuffs.
Upon her arrival at the hospital, Nelson's prison jumpsuit was dripping wet with amniotic fluid. Officer Turensky shackled Nelson's legs to a wheelchair and took her to the maternity ward. There, Nelson changed into a hospital gown and Turensky shackled both of her ankles to opposite sides of her hospital bed. By that time, Nelson was already dilated to seven centimeters--in the final stages of labor. Nelson requested an epidural for her pain, but the nurses told her they needed Dr. Hergenroeder's approval before administering any anesthesia. By the time Dr. Hergenroeder arrived at the hospital, Nelson was already dilated to between eight and nine centimeters--too late for an epidural. Therefore, Nelson received only two Tylenols for her pain. According to Nelson's testimony, this pain was magnified by the shackles that kept her from moving her legs, stretching, or changing positions.
Not only did the shackles cause Nelson pain, but they also interfered with her medical care. The shackles impeded the nurses who had to ask Officer Turensky to remove the shackles each time they needed to measure Nelson's dilation and check her vital signs. A nurse even told Officer Turensky that [s] he wished that they wouldn't have to put those restraints on [Nelson] . Although the nurses repeatedly requested that Turensky remove the shackles, Nelson testified that Turensky hooked [her] right back up after each cervical measurement. The shackles were finally removed at Dr. Hergenroeder's request when Nelson was brought to the delivery room at 6:15 p.m. Nelson's son was born only eight minutes later, at 6:23 p.m. He weighed 9 lbs, 7 3/4 oz.
B. CONSEQUENCES OF SHACKLING: MEDICAL & SOCIAL
1. Medical Consequences
The wrongs of shackling women in labor go far beyond discomfort. Shackling has documented, harmful medical consequences on women at all stages of labor. These consequences include the woman's increased risk of falling and being unable to break such a fall while traveling to the hospital and being unable to move, stretch, or change positions while delivering. This restricted movement, which Nelson described in her testimony, is not only painful for the woman, but the resulting stress on the woman's body may decrease the flow of oxygen to the fetus, causing irreparable damage.
Restraints also hinder the physicians' ability to care for the woman, who must wait for such restrains to be removed before they can check dilation (as in Nelson's case) or perform a caesarean section. Even a five-minute delay in cesarean procedure can cause irreparable brain damage to the baby.
After delivery, shackles can prevent the mother from breastfeeding her child or from walking--an activity recommended by doctors to recover after a birth.
2. Social Consequences
Adding insult to injury is the indignity of bearing a child in chains. As Vainik so aptly puts it, [b] eing shackled while giving birth sends a message to the inmate that her body--and her baby--are undeserving of the joy that normally accompanies pregnancy. Rather, both mother and baby are forcefully made aware that they are subjects of social contempt. This understanding of the shackling of pregnant inmates as ultimately a message of disregard for the woman's well-being echoes Robert's description of Black women's childbearing in slavery as largely a product of oppression rather than an expression of self-definition and personhood.
C. QUESTIONABLE JUSTIFICATIONS
The precarious foundation upon which the practice of shackling inmates in labor teeters is the idea that if they were left unrestrained they might take the opportunity to escape. This explanation not only seems to defy all logic and reality, but it is simply not supported by any facts--there have been no known escape attempts by inmates in labor (which will probably come as no surprise to anyone who has ever actually had a baby).
Casting further doubt upon the reality or sincerity of the escape justification is the fact that most women, like Nelson, are incarcerated for non-violent crimes, such as identity theft, writing bad checks, or peripheral involvement in drug-related offenses. In most states, neither the woman's crime nor consideration of whether or not she has made prior escape attempts has any bearing on whether or not she may be shackled. Finally, the presence of armed guards at the birth, and the fact that most American hospitals already have their own security systems in place calls into question the necessity of such restraints even if a woman did try to escape.
1. A Widespread Practice
Despite its plainly shaky logic and the condemnations of the American Medical Association, the practice of shackling inmates in labor remains widespread, and few states have taken affirmative steps to end or even mitigate it. According to a recent report by Amnesty International, thirty-eight state departments of corrections and the Federal Bureau of Prisons may use restraints on pregnant women in the third trimester, and twenty-three allow shackling during labor itself. Eight state departments of correction have no written policy governing the use of restraints on pregnant women, and only Illinois, Pennsylvania, New York, and Washington State have legislation regulating the use of restraints on pregnant women.
In fact, California Governor Arnold Schwarzenegger recently vetoed a bill proposing to prohibit inmates and wards of these facilities who are known to be pregnant from being shackled by the wrists, ankles, or both during any transport, during labor, during delivery, and while in recovery after giving birth, unless deemed necessary for the safety and security of the inmate or ward, the staff, and the public. Governor Schwarzenegger explained his veto by saying that [Correction Standards Authority's] mission is to regulate and develop standards for correctional facilities, not establish policies on transportation issues to and from other locations.
2. Permitted Restraints
Permitted restraints vary by state. During transportation to the hospital to deliver, Kansas and North Carolina allow the use of belly chains and leg irons. Ohio reportedly uses belly chains and leg irons until the third trimester, after which handcuffs are used instead of leg irons. Idaho, Nebraska, and Oklahoma use either belly chains or belts and handcuffs. Women in Louisiana may be restrained with leg irons, while in Nevada, normally only wrist restraints are used. In Alabama, restraints depend on the security class of the woman, but typically two extremities are restrained. In Arkansas, women with lesser disciplinary records will have one arm and one leg restrained with nylon soft restraints. In New Hampshire, one foot may be shackled to the bed during labor depending on the security class of the woman in labor.
IV. COLORBLIND CONSTITUTIONALISM: THE FINAL LINK
So how can we break this chain of reproductive oppression that binds Black, female inmates? The first step lies in acknowledging of the failures of colorblind constitutionalism--the idea that [o] ur constitution is color-blind, particularly in the context of the Fourteenth Amendment's equal protection clause.
A. EQUAL PROTECTION CLAIMS GENERALLY
1. Explicitly Discriminatory Laws: Strict Scrutiny
For a federal or state law that makes classifications based explicitly on race, color, or national origin to be valid under the Fourteenth Amendment, it must withstand strict scrutiny review. Under a strict scrutiny review, the state must prove two elements: (1) that the law furthers a compelling interest, and (2) that the law is as narrowly tailored as possible, so that there are no less restrictive means available to effectuate the desired end.
2. Facially Neutral Laws: Rational Basis
Facially neutral laws, on the other hand, must pass a much lower hurdle to be upheld--the rational basis test. Under the rational basis test, the state must show only that the law rationally furthers the purpose identified by the state. Only if the petitioner can show that the state had a discriminatory purpose or motive in enacting the challenged law will strict scrutiny be applied to a facially neutral law.
Although the U.S. Supreme Court has held that showing a racially disproportionate effect of official action is an important starting point in determining whether the law has a discriminatory intent or motive, the existence of a disproportionate impact alone--even a negative disproportionate impact on a suspect class--is not enough to invoke strict scrutiny. In fact, in Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), the court maintained that [a] lthough negative attitudes' and fear often accompany irrational biases, their presence alone does not a constitutional violation make.
B. RACISM UNDERCOVER
The greatest danger of applying strict scrutiny to explicitly discriminatory laws but rational basis to facially neutral laws, even when a disproportionate impact on suspect classes is shown, is that it obscures many modern manifestations of racism.
In I'm Not a Racist But ... Lawrence Blum describes three major categories of racism: Personal, social or socio-cultural, and institutional. Personal racism, as the name suggests, exists at the level of the individual. It is defined as racist acts, beliefs, attitudes, and behavior on the part of individual persons.
Social or socio-cultural racism comprises racist beliefs, attitudes, and stereotypes widely shared within a given population and expressed in cultural and social modes such as religion, popular entertainment, advertisements, and other media.
Finally, institutional racism refers to racial inferiorizing or antipathy perpetuated by specific social institutions such as schools, corporations, hospitals, or the criminal justice system as a totality. Institutional racism can be broken down further into two manifestations: intentionally racist institutional policies or practices, or, if the institution has no official or intentional policy of racism or racial discrimination ... the actual functioning of the institution involves racism or racial discrimination.
This second manifestation of institutional racism--racism that is not vocalized but exists in the institution's actual functioning--is precisely the type that escapes scrutiny under the ideology of colorblind constitutionalism and its unskeptical treatment of facially neutral laws.
C. THE EQUAL PROTECTION PROBLEMS OF SHACKLING
Constitutional colorblindness, while often touted a liberal ideal, is unrealistic and unworkable given America's continuing history of racial oppression. Colorblindness, far from a progressive goal, freezes existing social, economic, and political inequities that result from racism ....[and] preserves status quo racial inequity. Only whites benefit from such an approach to equality.
Colorblind constitutionalism is based, in part, on what Cedric M. Powel calls rhetorical neutrality ... the narrative structure of the Court's colorblind jurisprudence. Powell explains that rhetorical neutrality perpetuates socio-cultural and institutional racism by perverting the Fourteenth Amendment's intended goals, narrowing the definition of discrimination, and privileging individualism over anti-racism:
The Court's colorblind constitutionalism is advanced through three central narrative techniques: (i) historically, the mandate of the Reconstruction Amendments is erased and replaced by a literal anti-differentiation principle;(ii) definitionally, discrimination is defined so narrowly that it is virtually impossible to advance a constitutionally cognizable claim of racial discrimination (unless, of course, it is a reverse discrimination claim based on colorblindness); and (iii) rhetorically, a series of colorblind myths are employed to reject the anti-subordination and anti-caste principles of the Fourteenth Amendment thereby preserving liberal individualism as a normative constitutional principle.
When considering the plight of incarcerated Black women shackled in labor, this last element of rhetorical neutrality--a series of colorblind myths ... employed to ... preserve liberal individualism as a normative constitutional principle--is especially important. Powell notes that [i] n the context of individual claims, history is irrelevant. Thus, a central feature of the Court's colorblind race jurisprudence is that it is a historical. The vast implication is that Black women simply cannot be fully grasped in a historical vacuum.
Because of the history of American slavery and the systematic white, male denial of Black women's reproductive autonomy that the law protected, the shackling of Black female inmates in labor poses myriad problems that the shackling of their white counterparts does not. Because colorblind constitutionalism privileges individualism over the substantive claims of historically oppressed groups, and because [i] n the context of individual claims, history is irrelevant, the historical denial of Black women's reproductive autonomy goes unacknowledged, unaddressed, and the victims of shackling are left without an equal protection remedy.
The shackling of Black inmates in labor commits two wrongs against Black women that it does not commit against their white counterparts. First, it evokes the wrongs of slavery and the denial of Black women's reproductive autonomy within that institution, and second, in doing so, it undermines the possibility of reframing motherhood as a radical political act. At the very least, it transforms birth from an experience of joy to one of fear and pain.
As Tucker Culbertson writes in Another Genealogy of Equality: Further Arguments Against the Moral Politics of Colorblind Constitutionalism,Through its insistence upon a conception of racial caste and equality as a matter of purging racial difference from governance as an absolute moral evil, the colorblind courts have directly impinged the possibility for people of color to bring claims of discrimination.
A colorblind interpretation of the equal protection clause allows our most deep-seated, closely held racisms--those that are so deeply ingrained that they no longer vocalized--to stand unchallenged. As a result, the law continues to fail to protect Black women from attacks on their reproductive autonomy. The fact that Black women have been giving birth in chains for some 400 years makes it no less appalling. On the contrary--it is nothing short of shameful that such an injustice has been permitted to exist for so long.