Welcome to the National Campaign to Restore Civil Rights Interview Series, a regular examination of the court cases that shape and affect our lives.
Tricia Perry of the National Campaign to Restore Civil Rights spoke with ACLU attorneys Elizabeth Alexander and Amy Fettig about the recent ruling in the Nelson v. Norris Supreme Court case. Listen in as Alexander and Fettig discuss the fight to end the practice of shackling imprisoned women during childbirth. Transcription upcoming.
In the October 2nd ruling on the case Nelson v. Norris, a federal court of appeals held for the first time that the U.S. Constitution protects women in prison from being shackled while giving birth. The case involved Shawanna Nelson, who had been bound to her hospital bed while in labor. Nelson had no history of violence; she was in prison for credit card fraud and using bad checks. After a drawn-out battle in the court system, in which Nelson fought to defend her dignity, a federal court of appeals held earlier this month that a chaining during labor and childbirth consisted of cruel and unusual punishment, as prohibited by the 8th Amendment. To better understand this case’s significance we spoke with Elizabeth Alexander and Amy Fettig of the ACLU National Prison Project, both attorneys on the case.
PERRY: What is the Nelson v. Norris case about?
ALEXANDER/FETTIG: It arose…from the problems that Shawanna Nelson had in the Arkansas prison system. She entered prison having been convicted for a minor, non-violent crime. She was pregnant…when she went into labor she was shackled to the hospital bed, one leg on each side of the bed, she wasn’t unshackled until she was actually taken into the delivery room, and she was immediately, after she came back, after the delivery, once again shackled to the hospital bed. She suffered tremendous pain and injuries and personal humiliation indeed. She had soiled the bed sheets because she could not even be released in time to use the bathroom after delivery. Unfortunately, this is an experience that too many women in prison have had to undergo in this country.
PERRY: How widespread is this practice of shackling women during delivery?
ALEXANDER/FETTIG: It’s extremely widespread… I think you first have to consider that there are about 200,000 women who are incarcerated at any one time in this country, and according to the Department of Justice, about 6% of those women at any one time are pregnant. So we’re talking about 12,000 women who may give birth while incarcerated in this country, and most of the jails and prisons in every state around the nation practice shackling. There are very few laws that limit this practice. As of now only 6 states actually severely limit the practice, that’s California, Illinois, Vermont, New Mexico, Texas and Texas, very much limits the practice. But other than that states are pretty much free and jurisdictions are free to shackle women while they are giving birth to their children.
PERRY: How does shackling relate to the 8th Amendment?
ALEXANDER/FETTIG: The 8th Circuit Court of Appeals in the decision in Ms. Nelson’s case applied the 8th Amendment to decide that her constitutional rights had been violated. The court relied on evidence in the record that this practice was… posed a substantial danger to her because it poses a substantial danger to all women in labor and delivery, and they also relied on evidence that the correctional officer who kept her in shackles knew of the risk to her, and that’s a classic violation of the 8th Amendment bar to cruel and unusual punishment.
PERRY: Did someone first go to the prison system or the hospital to change this policy?
ALEXANDER/FETTIG: It’s a prison policy, not a hospital policy; in fact the nurses at the hospital repeatedly expressed concern about the fact that Ms. Nelson remained shackled. Ms. Nelson, after she gave birth, attempted to get this changed for all prisoners in the system by going through the prison grievance system, all the way to the top. Unfortunately she was turned down at every step, so the only remedy that she did have was to go to court. But she has been a champion of reform for all women in this situation.
PERRY: How did the court system help Ms. Nelson remedy her situation?
ALEXANDER/FETTIG: Well, this had a complicated journey through the federal courts. The federal district court upheld her claim and said that she was entitled to go to trial on it. At that point the state undertook a special interim appeal to the 8th Circuit. Three judges from the 8th Circuit Court of Appeals reversed the district court and threw out her case. At that point she asked that the entire 8th Circuit review her case and 11 judges considered the case. We won 6-5, so there were 5 judges who thought that there was no constitutional violation in the situation she had been in.
PERRY: So why was this ruling important?
ALEXANDER/FETTIG: So first of all it is if the first Court of Appeals decision to hold that shackling a woman in labor, in a event not required by security, is an established violation of the 8th Amendment. This is a tremendous victory if the long campaign to address it. You know, as far as we can tell there’s never been a circumstance in which a women in labor or delivery actually attempted to harm someone or to escape, it just doesn’t happen. I think anyone who’s been through labor or delivery knows that that’s the last thing on somebody’s mind. But nonetheless, this practice continues and the ACLU and many other groups are absolutely dedicated to getting rid of this horrible and dangerous practice.
And I would say that this ruling is also important because there is momentum behind a broad-based coalition of advocates, medical practitioners, religious rights groups who have organized in the last two years, nationally, to pass laws and jurisdiction that severely limits this practice, as well as to bring public attention to this practice, because most people are shocked when they hear that is this something that happens on a routine basis in this country. That women are shackled to their beds and chained while they’re giving birth to their children… we think the more public scrutiny that’s placed on this practice the better. The coalition is working to bring that scrutiny and to finally outlaw the practice as it is current known around the nation.
PERRY: Great, well thank you very much for speaking with us today.
ALEXANDER/FETTIG: Thank you.
PERRY: That was Elizabeth Alexander and Amy Fettig of the ACLU National Prison Project.
The National Campaign to Restore Civil Rights is a collection of more than 100 civil right organizations and numerous individuals who came together to make sure that the courts protect and preserve justice, fairness and opportunity for everyone. The Campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities, and our rights.