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October 23, 2009

NAPW Writing Contest Winners Selected

After much deliberation by our esteemed panel of expert judges, the winners of NAPW’s first law student writing contest have been selected. Co-sponsored by 19 organizations and individuals, this contest was designed to advance feminist legal scholarship on the subject of pregnant women’s civil and human rights. Specifically, it asked law students to address the statutory, constitutional, and/or human rights arguments that can be made to challenge the trend of banning pregnant women from having a vaginal birth after a caesarean section (VBAC). The subject of the contest is particularly timely. Recently, the story of Joy Szabo, an Arizona mother forced to travel over 300 miles from home in an effort to avoid unnecessary surgery, has been the subject of both local and national media attention. Even CNN covered the story —raising unprecedented awareness of the fact that VBAC is unattainable at nearly half of all U.S. hospitals due to either explicit policies or lack of willing providers.

NAPW and co-sponsors hoped this contest would encourage a new generation of legal scholars to address birthing issues as proper subjects of academic research and legal action. We are proud to announce the winners of this cutting-edge contest:

First Prize: Krista Stone-Manista, Northwestern University Law School, “In the Manner Prescribed By the State”: Potential Challenges to State-Enforced Hospital Limitations on Childbirth Options (Under consideration for publication through special arrangement with the Cardozo Journal of Law and Gender)

Second Prize: Elizabeth Kukura, New York University School of Law, Choice in Birth: Preserving Access to VBAC (Pending publication, Penn State Law Review Winter 2009 Issue.)

Third Prize: Paul Christopher Torio, Santa Clara University School of Law Nature Versus Suture: Why VBAC Should Still Be in Vogue

Honorable Mention: L. Indra Lusero, University of Denver, Sturm College of Law Challenging Hospital VBAC Bans Through Tort Liability: Reasonableness and the Limits of Informed Consent

We were very pleased by the quality of the responses that we received, particularly considering that this is likely to be the first time that many law students have considered birthing issues as civil and human rights issues.

We have the rare pleasure of knowing that the Contest is already having the desired influence on feminist jurisprudence and advocacy in the field. In addition to the publication of at least two of the papers, UDC Clarke School of Law student Lisa Pratt recently presented a paper inspired by the contest at Perinatal, symposium on birth practices and reproductive rights. Her paper, which proposes civil rights legislation protecting pregnant women’s informed consent and decision-making in childbirth, was an inspiring call to action for the birth activists and legal experts assembled.

Because we believe that the issue of women’s rights during labor is critical to the study of gender and the law, we are sponsoring another contest this year on birthing rights. This will continue our outreach to law students and our efforts to encourage emerging legal scholars to push for the inclusion of birthing issues in the discussion of feminist jurisprudence.

Congratulations to the contest winners, and good luck to the 2009-2010 contestants!

October 5, 2009

Victory: Shackling Pregnant Prisoners in Labor Found to be Cruel!

On Friday, the United States Court of Appeals for the Eight Circuit (the federal level appellate court that reviews decisions from federal district courts in North Dakota, South Dakota, Iowa, Nebraska, Missouri, Minnesota, and Arkansas) issued the long-awaited decision in Nelson v. Norris. In this case, Shawanna Nelson argued that being forced to go through the final stages of labor with both legs shackled to her hospital bed was cruel and unusual punishment, in violation of the 8th Amendment to the Constitution. She argued that she should be allowed to sue the director of the prison and the guard who repeatedly re-shackled her legs to the bed. Ms. Nelson, an African-American woman, was incarcerated for non-violent offenses of credit card fraud and "hot checks."

In this historic federal court decision, the Court held that the guard was not immune from (protected from) suit because it has been clearly established by the decisions of the Supreme Court and the lower federal courts that shackling pregnant women in labor violates that 8th Amendment's prohibition on cruel and unusual punishment. The Court suggested that the corrections officers should have known that the medical risks of shackling were "obvious" and that "the shackles interfered with Nelson's medical care, could be an obstacle in the event of a medical emergency, and caused unnecessary suffering at a time when Nelson would have likely been physically unable to flee because of the pain she was undergoing and the powerful contractions she was experiencing as her body worked to give birth."

Ms. Nelson originally filed this case in 2004. As the case progressed through the courts, she seemed to be losing. In 2008, three judges on the 8th Circuit Court of Appeals concluded that she had no right to sue. Recognizing the harm this decision would do, her counsel reached out to national advocacy groups for help in an effort to petition the court for re-hearing. The ACLU Prison Project became counsel in the case and NAPW was asked to write an amicus – friend of the court brief. Although NAPW does not specialize in prison issues, we are recognized for our commitment to pregnant women and our extraordinary ability to mobilize leading public health and advocacy groups. With allies at the Rebecca Project for Human Rights and the National Economic and Social Rights Initiative (NESRI), we were able to identify more than 35 organizations (see full list below) that wanted to be represented as amicus in this case. (Several additional groups wanted to join but were unable to respond in the very short time frame for filing.)

In a brief filed with the Kester Law Firm in Arkansas, amici articulated both constitutional and international human rights arguments in support of the re-hearing and against the degrading and cruel practice of keeping pregnant women in labor in shackles. We did all this in less than a week.

This effort succeeded, garnering a decision by the court to re-hear the case en banc (with full court review). In any year, fewer than 100 cases in the entire federal system are granted rehearing with en banc review. This was a strong initial indication that our brief had made a difference. Not only that, but at oral argument one of the judges specifically referred to our brief, asking: "Based on the amicus submission filed in support of the petition for rehearing, wasn't Arkansas an outlier in the world's community in terms of treatment of pregnant prisoners?" Our answer is yes, and the Court of Appeals decision this Friday agreed.

That this decision is "historic," and that five of the eleven circuit court judges dissented, makes clear both how far we have come and how far we still have to go to ensure the civil and human rights of all pregnant women (the dissent in Friday's opinion saw no "clearly established" constitutional violations in shackling Ms. Nelson during labor.)

Congratulations to Ms. Nelson, her counsel, and all of the groups who sought reproductive justice and won in this case!

This victory makes clear that with persistence we can win. Please consider donating so that NAPW can continue our creative and successful advocacy efforts.

Amici on behalf of Shawanna Nelson:
National Perinatal Association
American College of Nurse Midwives
American Medical Women's Association
Citizens for Midwifery
Birthnet Inc.
The Bronx Health Link Inc.
California National Organization for Women
Center for Reproductive Rights
Chicago Legal Advocacy for Incarcerated Mothers
The D.C. Prisoners' Project of the Washington Lawyers' Committee for Civil Rights and Urban Affairs
Florida Institutional Legal Services Inc.
Justice Now
Law Students for Reproductive Justice
Legal Momentum
Legal Services for Prisoners with Children
Lutheran Services of Illinois Connections Program
Maternal and Child Health Access
The Ms. Foundation for Women
National Juvenile Justice Network
National Women's Health Network
National Women's Law Center
National Women's Prison Project
The New Mexico Women's Justice Project
The Northwest Women's Law Center
The National Organization for Women Foundation
Penal Reform International
Prison Legal News
Prisoners' Legal Services of New York
The Rebecca Project for Human Rights
SisterSong Women of Color Reproductive Health Collective
Southwest Women's Law Center
Texas Jail Project
The Uptown People's Law Center
WORTH(Women on the Rise Telling Her Story)