Lawmakers and legal advocates sometimes cannot confirm how many pregnant people are in custody at any given time, and obtaining information about the care that incarcerated pregnant people receive is an overwhelming challenge. A government watchdog is now shedding light on these issues and reporting that federal law enforcement agencies fail to adhere to national guidance on pregnancy-related care.

A new report from the Government Accountability Office (GAO) found that between 2017 and 2019, U.S. Marshals Service (USMS) had 1,220 pregnant people in custody while the Bureau of Prisons (BOP) had 524. Both of these federal law enforcement agencies have their own policies for addressing the care of pregnant people, but fall significantly short of adhering to the guidance on care that should be provided to incarcerated pregnant and postpartum people set forth by professional associations like the American College of Obstetricians and Gynecologists and the American Medical Association. USMS policies only fully align on three of 16 care topics, and BOP policies fully align on eight of 16, according to the GAO report.

USMS appears particularly restrictive when it comes to care coverage, especially for vulnerable women who are in custody with high-risk pregnancies. The federal law enforcement agency can contest crucial pregnancy services at any time. According to a 2010 policy directive from the agency, testing, more than one ultrasound and stress tests are considered by USMS to be “non-routine prenatal care.” This directive appears to have been deleted from USMS’ website prior to the GAO performing audits of USMS and BOP facilities beginning in July 2019. 

Broadly, the GAO found:

• USMS policy does not recommend or require that facilities have emergency delivery kits available.

• If the hospital used by USMS does not have the capacity to care for high-risk pregnancies when available, USMS policy does not recommend or require that staff have procedures in place to ensure pregnant people with labor symptoms are evaluated quickly.

• USMS policy does not recommend or require that pregnant or postpartum people receive any form of diet modification or refrain from eating foods with listeria risk and do not recommend or require that pregnant people receive prenatal vitamins, iron, or folic acid supplementation.

• USMS does not have a mechanism for collecting data from facilities that indicate whether pregnant or postpartum people are placed in restrictive housing. 

• USMS policy dictates that in some instances, medically appropriate “non-urgent” healthcare services can be deferred until the incarcerated person is released from USMS custody.

• Without taking steps to more closely align its policies with national guidance recommendations, USMS is less equipped to protect pregnant people against health risks.

• Only three of 12 pregnant people who were incarcerated in BOP facilities reported receiving extra portions of food.

Notably, the GAO’s report indicates that USMS and BOP adhere to the 2018 First Step Act, which generally prohibits the use of restraints on pregnant or postpartum incarcerated people unless they present an immediate and credible flight risk, pose a serious and immediate harm to themselves or others, or if a healthcare professional determines that restraints are appropriate for the prisoner’s medical safety. However, the GAO found that USMS’ detention standards have not been updated to reflect the new USMS policy that restricts the use of restraints on pregnant and postpartum people.

According to the GAO report, USMS has incorporated an updated restraint policy for pregnant and postpartum people into its contracts, but it has not yet done so for the agency’s established Intergovernmental Agreements (IGAs), which are local and state governments that provide detention space for people in USMS custody. USMS updated its restraint policy in December 2019, which prohibits pregnant or postpartum people from being restrained absent an exception. However, the template the federal law enforcement agency uses to generate IGAs requires IGA facilities to follow the USMS developed Detention Standards from November 2017 that do not include prohibition on the use of restraints. 

The agency’s previous policy directive for the use of restraints, which has since been deleted from USMS’ website, states: “Restraints should not be used when compelling medical reasons dictate, including when a pregnant prisoner is in labor, is delivering her baby, or is in immediate post-delivery recuperation.” The same document explains, “If a pregnant prisoner is restrained, the restraints used must be the least restrictive necessary to ensure safety and security. Any restraints used must not physically constrict the direct area of the pregnancy. Any deviations from the utilization of full standard restraints on a pregnant prisoner (waist chain, leg irons, and handcuffs) must first be approved by a USMS Management Official.”

There is evidence to suggest that as recently as 2019, the federal law enforcement agency was shackling pregnant people. A three-part series about the treatment of pregnant migrants in USMS custody published by Rewire.News found that USMS shackled pregnant women’s hands, feet, or bellies. In 2018, an OB-GYN providing care to women in USMS custody reported that the agency attempted to shackle a pregnant woman who was in labor. In another instance, a woman who had just had a C-section almost fell because she was shackled .

Every major health organization condemns the practice of shackling pregnant people. Not only is it inhumane, but it’s extremely dangerous to the health and well-being of the pregnant person. Pregnant patients are at greater risk of developing blood clots if their movements are restricted. They also have increased risk of postpartum hemorrhage that can’t be treated effectively if they’re shackled, and shackled pregnant people are a fall risk, according to Rewire.News.  The practice also endangers lives. For example, if a pregnant person has to be transferred for an emergency C-section, doctors don’t have time to negotiate the removal of shackles. 

The GAO report’s results are not actually based on whether pregnant women in USMS custody received medically necessary care, but rather whether USMS’ policies align with national guidance recommendations. Broadly, BOP and USMS fail to adhere to even basic standards of care for the incarceration of pregnant people. Both agencies also fail to collect the appropriate data on this vulnerable population. 

Pregnant people who are incarcerated have specific medical and mental health needs, but the lack of data about this population of incarcerated people means there is little understanding of their healthcare needs. People like Dr. Carolyn Sufrin, a medical anthropologist and an OB-GYN at Johns Hopkins School of Medicine, are trying to bridge the information gaps by tracking pregnancy outcomes in U.S. prisons, but this is no easy task.

The GAO report found that while BOP requires that postpartum people receive medical services and not be placed in restraints through the postpartum period, it does not identify people in postpartum recovery at intake. USMS also does not currently have policies, procedures, techniques, or mechanisms to track and maintain data on people who have given birth in custody or are in postpartum recovery. 

“By developing and implementing a policy for identifying and tracking postpartum prisoner data—starting with intake—USMS would have greater awareness of postpartum women in its custody and would be better positioned to ensure their treatment and care,” according to the GAO’s report. 

Back in 2017, Rep. Raúl M. Grijalva and 30 members of Congress requested an investigation into the treatment of pregnant people detained by the Department of Homeland Security (DHS) and the Department of Justice (DOJ). In April 2020, the GAO published its report on DHS. Grijalva told Prism that the GAO’s recent report focused on the DOJ highlights large gaps in information.

“One of the reasons we requested this report was the original lack of data and transparency pertaining to pregnant women in custody,” Grijalva said. “The report puts this failure on full display.” 

The congressman said his office will continue tracking the progress of federal agencies to comply with standards of care for pregnant people, but he also urged President Joe Biden to immediately restore the presumption of release from immigration detention for pregnant women that the Trump administration removed, resulting in a spike in the detention rates of pregnant women. 

“The conversation we should be having, is one about getting these women into the appropriate setting instead of a conversation of what is appropriate care when they are incarcerated,” Grijalva said. “We are spending money detaining vulnerable women and in many cases traumatizing them and their babies, when we could be providing alternatives that are cheaper, more humane, and have much better outcomes as a whole.”