Why are Alameda County Jails Forcing Women to Take Pregnancy Tests?

by Susie Cagle, RH Reality Check

For pregnant women in Alameda County, California jails in the 1980s, the daily realities of life included shackled limbs, denial of prescribed medication, and, in the case of full-term miscarriage, at least one health-care worker who insisted a woman and her baby would be “better off” if the child died. During that time, rates of female incarceration spiked, and a troubled prison system attempted to make do. Women at the jail faced rates of miscarriage 50 times higher than the California average.

In 1986, advocates sued for a litany of offenses. And in 1989, they won. Policies changed. But their attempts at reforming women’s health unexpectedly opened the door for another form of abuse.

For at least several years, Alameda County sheriffs and medical personnel have routinely conducted pregnancy tests on thousands of prisoners, old and young, fertile and sterile, willing or not. It’s a practice that isn’t shared by any other jails in California. No one can say for exactly how long Alameda County jails have been forcing arrested women to take pregnancy tests, and no one can really explain why.

“It’s ironic that they’ve stood the [1989] agreement on its head and are using it as a reason to do something coercive and punitive,” attorney Ellen Barry, who litigated the case and wrote the settlement agreement, told RH Reality Check recently.

One 26-year-old woman was arrested for a misdemeanor in December 2011 in Oakland while she was menstruating. “Deputies at the Glenn Dyer jail wouldn’t give me a pad, but still made me take a pregnancy test,” she told RH Reality Check.

These unique abuses came to light over the past four years, as large political demonstrations in Oakland saw the mass arrest and detention of protesters and journalists privileged enough to not have experienced Alameda County jails before. In June 2014, the American Civil Liberties Union filed a lawsuit against the county for violating women’s Fourth Amendment rights against unreasonable searches.

“This is not a suit that we thought we should have to bring,” said ACLU attorney Elizabeth Gill. “In our view it’s very clearly both unconstitutional and illegal what the sheriff’s office is doing. Mandatory pregnancy testing is a clear invasion of a women’s right to privacy.”

In short, the practice is “crazy,” she said.

Women and the Prison System

The story of Alameda’s mandatory pregnancy tests is really the story of how U.S. prisons have grappled with an influx of young women over the past four decades: with supreme incompetence and intermittent malice.

As the incarcerated population exploded due to mandatory minimum sentencing and the drug war, jails and prisons were suddenly grappling with an influx of women, and an influx of health issues particular to those women. Between 1980 and 2011, the female prison population grew nearly 600 percent.

Still, women remained a relatively small portion of the prison population, making their needs by volume intrinsically less urgent – in 2000, women constituted only 7 percent of the total number of prisoners in the United States. In everything from health care and nutrition to labor and housing facilities, women’s care traditionally took a back seat to that of male prisoners, even though they faced unique problems inside.

“Women entering correctional facilities are often in very poor health for a number of reasons, including higher rates of poverty, substance abuse, and sexual/physical abuse among this population,” writes Kelly Parker in the Journal of Law and Health.

At any given time, around 2 to 3 percent of all women are pregnant in the United States, but according to Legal Services for Prisoners with Children, an estimated 8 to 10 percent of women who enter prison are pregnant. In Alameda County, more than twice as many pregnant women were admitted into county jails in the 1980s as in previous decades.

These women are not a comparatively large population, but they are a particularly vulnerable one. In some cases, pregnant women who are addicted to drugs have been given longer prison sentences only to ostensibly protect their unborn children.

But prisons did not know what to do with their pregnant women. In 1987, the California Department of Health Services commissioned a study of three of the state’s largest facilities for incarcerated women: the California Rehabilitation Center in San Bernardino County, the California Institution for Women in Riverside County and the Santa Rita “mega-jail” in Alameda, the fifth-largest county jail in the United States. The study found that “in all three facilities, early identification of pregnancy did not routinely occur, health care plans and case management systems for perinatal care did not exist, and prisoners’ prenatal medical records were generally not available at outside contracting hospitals when two women delivered their babies.”

It took a series of lawsuits across the country to effect changes. In 1983, in West v. Manson, women incarcerated and detained at a Connecticut state prison sued over poor treatment and conditions, and won.

So too did incarcerated women in California, in Harris v. McCarthy (1987) and Yeager v. Smith (1987).

In 1986, Vernita Jones, Darlene Mc­Keever and Patricia Ailsworth – along with unnamed other pregnant women as a part of a class – filed suit against Alameda County and its jail system.

Vernita Jones’ baby had died after she was not allowed to have the methadone that had been prescribed to her by a doctor. “She had entered drug treatment before she was incarcerated and then was precipitously terminated from methadone, detoxed without treatment, and lost the baby at full term,” said Barry.

In 1989, the plaintiffs won, and Barry wrote a long settlement agreement that mandated a new multimillion-dollar women’s health-care facility, and a long list of new rules and guidelines for sheriffs and health-care workers to follow in their treatment of pregnant prisoners. “In the years immediately following the settlement, I believe there was good faith compliance,” she said.

In some ways, Alameda County women were lucky. “Pregnant women incarcerated in correctional facilities that have been the subject of litigation have seen an improvement in the conditions they experience,” Parker wrote. “However, most of these facilities would not have made these changes without the threat of litigation. Thus, those pregnant women incarcerated in facilities that have evaded legal scrutiny may still face conditions not much improved than those endured by Ms. Yeager and others like her.”

The Jones v. Dyer decision and resulting consent decree was a local game-changer, a turning point. It also had consequences that no one could have seen coming.

Whose Policy is This?

Alameda County sheriffs point to the 1989 settlement agreement in Jones v. Dyer as proof that they’re not only complying with the now long-expired binding consent decree, but that they’re also going above and beyond for women’s health. The agreement, which expired in 1993, delineates a long list of procedures and guidelines meant to protect pregnant women and their fetuses, including specifications as to how pregnancy tests should be made available to all detainees so that pregnant women can access special health care, food, and other rights and services in jail.

“There were no provisions in the settlement agreement that coerced women into having mandatory pregnancy tests – this would have been against the letter and the spirit of the settlement agreement,” said Barry.

Indeed, the agreement also clearly states that those tests are voluntary for all prisoners, and that detainees can choose to opt out: “A prisoner may choose not to have this pregnancy test,” it states.

In 2011, I was arrested while reporting in Oakland, and forced to take one of these pregnancy tests, peeing into a plastic cup in an open cell in front of milling sheriffs who tried to avoid eye contact. I asked them and the health-care worker who took the cup why I had to do this. I got no response.

In an interview several months later, Alameda County sheriffs assured me that this was not their policy. “That’s Corizon’s policy,” they told me, referring to the private health-care company that oversees all medical needs in Alameda County jails. “That’s not us. You should talk to them.”

However, in a 2010 letter sent to the ACLU, Alameda County head sheriff Gregory Ahern wrote that “every female prisoner is required to submit to a pregnancy test through urinalysis.”

As prison populations have exploded over the past few decades, so has the prison industry. While private prison facilities have proliferated across many parts of the country, California’s jails have, with some exceptions, remained under public control. But some municipalities have contracted out for specific jail services, including health care.

As attorneys were still hashing out Jones v. Dyer, Alameda County contracted with Prison Health Services in 1988.

“The concern about private health care is that these institutions are basically saying we can do this cheaper, which usually means we can do this at a less quality level,” said Barry. “This issue was highlighted fairly shortly after the settlement was written, and we did have to remind the county a number of times that though they’d privatized, it doesn’t take away their duty to provide constitutionally sufficient medical care.”

Prison Health Services repeatedly violated the settlement by not providing women with prescribed methadone.

“For months and months after they did not get their act together. It was very disruptive and very difficult” to get the company to comply, said Barry.

In 2011, Prison Health Services merged with its largest competitor, Correctional Medical Services, to become the largest company of its kind in the country. Corizon boasts operations in the jails and prisons of at least 29 states, including in three other California counties. The company bills itself as a cost-cutting measure for cash-strapped municipalities that have seen their prison populations skyrocket.

“This has been a very long and a very successful partnership,” said Ahern, the county sheriff, on the occasion of the county’s renewal of Corizon’s contract in February 2013. “Corizon has provided excellent service to our inmate population while saving the County millions of dollars over the length of the contract.”

“Even My Own Bodily Fluids
were Not My Own”

One after another, women held at Alameda County jails told me similar tales of coercion and confusion, regardless of their alleged crime or their personal medical history. (The women all asked to remain anonymous.)

“They made me take one even though I’m infertile, told them so, and even though that could have easily been verified with one phone call. They had a woman cop watch me pee, I think because I had indicated I didn’t want to take a pregnancy test,” one woman told me in a written message.

“They told me it was because ‘Glen Dyer can’t hold women, so all women being held at Glen Dyer need to take a pregnancy test,’ which didn’t make any sense,” wrote another.

“It struck me for the first time when I was forced to pee in the cup, that I really could be coerced to do things that I didn’t want to do, and that it didn’t take much either. I was pretty furious that even my own bodily fluids were not my own,” a third woman wrote in her prison diary, which she shared with me.

When they arrive at the jail, prisoners have a very brief consult with a health-care worker who asks a few basic medical questions. Then they are given the pregnancy test – before they are technically booked into the jail, but are in sheriffs’ custody.

While Alameda County sheriffs claim these tests are meant to protect women’s health, during this limbo period in holding – which can last for more than two days – it is jail policy that detainees are not given access to doctors, nurses or any other medical care, including their prescribed medications for conditions as serious as diabetes, multiple sclerosis and HIV.

Alameda County and Corizon both declined to answer questions about their specific reproductive health-care policies and pregnancy test practices due to the ACLU’s pending lawsuit.

“Women are provided with a wide range of services, including contraception, as well as obstetrical care if they are pregnant while incarcerated,” Corizon spokesperson Susan Morganstern wrote in an email. “Corizon’s policies are consistent with the American Congress of Obstetricians and Gynecologists, and the entire program is closely monitored by a board-certified obstetrician/gynecologist.”

Though sheriffs previously said that mandatory pregnancy testing was Corizon’s policy, they have changed their story following the ACLU’s suit.

“They are saying different things in different contexts,” said the ACLU’s Gill. “They’ve variously said they’re required to do it or that their health-care contract requires it, which may be the case but is irrelevant.”

Since the suit was filed, sheriffs have repeatedly stated that the policy was a result of a consent decree, though they’ve declined to provide details.

“In the past we’ve gotten sued for not doing pregnancy tests, so it’s one of those,” Alameda County Sergeant Ray Kelly said, sighing.

Of Alameda County’s two jails, only the suburban Santa Rita “mega-jail” is approved to incarcerate female prisoners of any kind, including misdemeanor arrestees who are only held for a few hours.

“Glen Dyer Detention Facility [in Oakland] does not have the facility or space to dedicate to women’s reproductive health,” said Alameda County Captain Colby Staysa. “The decision to not allow female inmates at Glen Dyer Jail included many factors and was not based solely on reproductive health.”

If the policy originated with the county, it clearly violates the Jones v. Dyer settlement agreement, along with prisoners’ constitutional rights. If it originated with Corizon, it’s even more peculiar.

“There’s a strange notion that if these agencies go with privatization, that lessens the culpability of the government entity in situations where there are unconstitutional violations,” said Barry.

“It’s the sheriffs’ contract, and they are responsible for the healthcare of women in their jails. It’s not like the health-care provider could come in and do whatever they want,” said Gill.

It’s not clear why Corizon would facilitate costly, unwanted medical procedures on unwilling women, but the company has good reason to try to protect itself from potential liabilities. In its short history, the company has fought and settled several hundred lawsuits, with allegations ranging from neglect that resulted in a broken finger to abuse that resulted in wrongful death.

But when I asked Sergeant Ray Kelly about the county’s contract with Corizon, he was confident: “Inmates get the same level of care that you or I would, probably better in some cases.”

The ACLU’s case is set to go to trial this fall in state court. The suit seeks to maintain pregnancy testing in the jails, but on a voluntary, not mandatory, basis, with a clear opportunity for women to opt out if they choose. The suit also seeks to have a court declare that the mandatory pregnancy testing clearly violates the Fourth Amendment, which protects against unreasonable searches.

“The fix to this is very simple: You don’t force a pregnancy test on every women who’s arrested,” said Gill.

But as long as pregnant women are incarcerated, Alameda County and other jails will attempt to strike a balance between delivering minimally acceptable care while protecting themselves from possible liability.

“Basically what we would like to see is not really any pregnant women in Santa Rita or any other jail,” said Carol Strickman, staff attorney at Legal Services for Prisoners with Children. “I don’t think jails and prisons are very good at providing adequate medical care, and it’s a vulnerable time for people. The bottom line is resources.”

But there’s one quick and simple way that Alameda County could cut its health-care budget right now: Stop forcing women to pee in those cups.

This article was originally published by RH Reality Check (www.rhrealitycheck.org) on September 4, 2014; it is reprinted with permission, with minor edits. The ACLU’s lawsuit filed against Alameda County was removed to federal court, and a settlement agreement was reached in October 2015 that includes policy changes, nominal damages and attorneys’ fees. The settlement has not been finalized and the case remains pending. See: Harman v. Ahern, U.S.D.C. (N.D. Cal.), Case No. 3:14-cv-03051-MEJ-KAW.

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