Pregnancy in Prison: The Justice for Incarcerated Moms Act & The Need for Comprehensive Reentry Assistance
By: Freedom Gobel
Much of First Shift’s mission revolves around pregnancy and caregiving rights for working families, but while our work assumes this employment-based scope, we acknowledge the important realities, regulations, and remedies that impact pregnant people and caregivers in a myriad of circumstances. Among the populations most overlooked are incarcerated pregnant people and new caregivers recently returning from prison.
The facts tell a clear story, and demonstrate an obvious need for legislation in protection of incarcerated pregnant people and caregivers. Around five percent of people in female correctional facilities are pregnant, and over 80 percent are mothers. Nearly 75 percent are of childbearing age, and despite separation of sexes within correctional facilities, people in female facilities are not immune from sexual abuse that can lead to pregnancy. The healthcare needs of incarcerated people are inadequately met, and this problem is worse for pregnant people. They are denied adequate access to prenatal care, are not provided necessary nutrition, are shackled to their birthing bed while in labor, and are often denied the opportunity to bond with their newborn following childbirth.
Something needs to be done, and newly proposed legislation presents a unique opportunity to make a positive impact:
In May 2023, U.S. Representative Ayanna Pressley introduced the Justice for Incarcerated Moms Act in the House, and in March of this year, Senator Cory Booker (and others) reintroduced the Act on the Senate side. This Act seeks to make four major changes in regard to the treatment of incarcerated mothers: (1) to end the practice of shackling pregnant inmates during childbirth; (2) to create assistance programs for prenatal and postnatal care, including reentry assistance; (3) to establish funding for diversion programs, and (4) to create the first comprehensive study on maternal health for incarcerated people.
The focus of the Act is for the support of those currently incarcerated, but there may be a significant connection between reentry assistance and the employment-based work done by First Shift. Reentry assistance often centers around securing employment for those recently returning, but securing new employment is particularly challenging for pregnant people or new parents, despite federal protections against employment discrimination under Title VII. Moreover, even if employment is secured, most of these workers would not be eligible for leave under the Family and Medical Leave Act or wage replacement benefits from paid family leave programs, since they would not have worked a duration sufficient to unlock these rights or may not work in a city that offers wage replacement benefits.
While there are few options, there are options nonetheless. In D.C., an employee can take leave if it's approved by their employer (but it wouldn’t be job-protected under FMLA) and can obtain paid family leave benefits if they have three months of reported wages. For returning citizens who were just released, however, paid benefits would not be an option. An employee may be able to take leave as a reasonable accommodation, which would be job-protected for the duration agreed upon with their employer. A last resort, based on the current legislation in D.C., would be to continue working while a qualifying family member takes leave on their behalf, either to care for a new child or care for a child with a serious health condition. In any circumstance, protections and programs for incarcerated people or returning citizens dealing with pregnancy or caregiving are lacking. Hopefully, the mission for increasing reentry assistance takes these factors into consideration.
In recognizing the gap in protections serving incarcerated populations, particularly pregnant people, we will watch and will the Justice for Incarcerated Moms Act to prevail, and in the meantime, can attempt to offer legal support to newly employed and newly returning caregivers and pregnant people who are experiencing issues in the workplace as a result of their pregnant or caregiving status, or require leave to care for themselves or a family member.
Sources:
Ayana Pressley, Pressley Builds on Advocacy for Incarcerated Pregnant People, (May 15, 2023), https://pressley.house.gov/2023/05/15/pressley-builds-on-advocacy-for-incarcerated-pregnant-people/.
Cory Booker, Booker, Durbin, Hirono Reintroduce Legislation to Address Maternal Health Crisis Among Incarcerated People (March 22, 2024), https://www.booker.senate.gov/news/press/booker-durbin-hirono-reintroduce-legislation-to-address-maternal-health-crisis-among-incarcerated-people.
The Justice for Incarcerated Moms Act, H.R. 3344, 118th Cong. (2023).
The Justice for Incarcerated Moms Act, S. 4060, 118th Cong. (2024).
