Prisoners do not lose much more than their privacy and liberty interests upon incarceration.  As such, incarcerated women, incarcerated pregnant women, and incarcerated mothers keep their biological identities: women, pregnant women, and mothers.  Through the legislature and continued advocacy, Maryland has carved out reproductive health protections for incarcerated women. Most notably, the law now requires correctional facilities to establish policies for concerns surrounding pregnancy and, furthermore, such facilities must provide ample access to menstrual hygiene products for inmates.  Of course, this is only the first step in protecting inmates, who cannot control their own biological processes that are inherent to their existence.

On October 1, 2018, § 9-601 and § 9-616 of Maryland’s code for correctional services were amended and added, respectively.  Entitled “Pregnant inmates”,[1]§ 9-601 requires each local correctional facility in the state to have a written policy in place concerning inmate prenatal care, treatment of high-risk pregnancies, and labor and delivery procedures.[2]But, what is most noteworthy is that the law does not dictate what these policies must look like or what the mandatory minimum must be for the policies to comply. Rather, due to the legislative vagueness,[3]it appears as though correctional facilities need only a policy, either providing or not providing, the above-mentioned healthcare services to their female inmates.

In response to the legislative change, the supervising attorneys and student attorneys whom work in the University of Baltimore’s Bronfein Family Law Clinic,[4]the same group that help to advocate for the law, in partnership with Reproductive Justice Inside (“RJI”) Coalition,[5]have crafted a model policy to help inform local institutions on how to provide adequate feminine and reproductive care to its inmates. More importantly, though is that the model also states what the policy shouldlook like.[6]  A student attorney, Makeda Curbeam, with the clinic has worked tirelessly on the model policy, continuing the work of students before her, looking toward sources that come from the leading organizations in female reproductive health, like the Merck Manual.[7]

Entitled “Menstrual hygiene products for inmates”,[8]§ 9-601 requires each correctional facility to provide menstrual hygiene products at no-cost to inmates on a regular basis, available upon request, and the facility must ensure to have an adequate amount of such products to meet their female inmate population’s demand.[9]  Additionally, the law requires that the facility establish health standards and practices to ensure the proper disposal of menstrual hygiene products.[10]

According to testimony from incarcerated women of Maryland, quick thinking was required not only for their own reproductive health, but for their dignity.[11]  When the sub-standard products that were provided to inmates in low quantities ran out, inmates are forced to think on their feet: socks, fabrics torn to pieces, toilet paper, and shop rags used to create a DIY tampon or sanitary napkin.[12]  In order for incarcerated women to enjoy the privilege of visitation, they must submit to a search afterwards to ensure that nothing is being brought in to the facility. When a woman is on her period, she is forced to remove and dispose of any feminine hygiene products and walk back to her cell, and may bleed through her clothes.[13]

I am not unaware of the biological process that takes place in a woman’s body, approximately once per month, that is the entire basis of life on this planet. But I am entirely ignorant to experience of the biological process that takes place.  I also tend to believe people’s experiences when they are incomparable to my own.  I also know that it’s not just tennis players and gymnasts who use pads and tampons and that menstruation does not involve a blue liquid, like in the commercials that seem to be the extent of some’s knowledge of the female reproductive organs. Women still get their periods while they are behind bars, and they do not suddenly stop being pregnant upon incarceration.  Because of these truths, the duty should fall upon the state, as responsible for charging, convicting, sentencing, and now housing women of Maryland, to ensure that these women not only serve out their sentence, but in a way that does not destroy their sense of self as a human, as a woman, or as a mother.

Harry Snoots is a third-year law student at the University of Baltimore School of Law.  He serves as a Staff Editor with University of Baltimore Law Forum, Treasurer with the University of Baltimore Chapter of the American Constitution Society, and is a Student Attorney with the University of Baltimore Bronfein Family Law Clinic.  Before coming to law school, he attended Salisbury University and graduated in 2015 with a Bachelor’s Degree in Psychology and Philosophy.   During summer sessions, he works with Mid-Shore Pro Bono, a regional legal non-profit, as an intern and volunteer in Easton, MD. His interests include family law and emerging topics of law for families and parents, including surrogacy, IVF, and parental rights for LGBTQ+ families and the associated rights.

His LinkedIn profile can be found here: www.linkedin.com/in/harry-snoots.

[1]Md. Code Ann., Corr. Servs., § 9-601 (West 2018).

[2]Md. Code Ann., Corr. Servs., § 9-601(j)(1)-(3) (West 2018). The law also addresses the procedures for pregnancy testing of all female inmates, Miscarriage management, access to abortion care, access to child placement resources, postpartum recovery care, the eligibility and access to behavioral health counseling and social services during the prenatal and postpartum recovery periods, the use of restraints during pregnancy, transportation, procedures for postpartum recovery care, and that all policies be provided to women upon a positive pregnancy test.

[3]Md. Code Ann., Corr. Servs., § 9-601(j)(2) (West 2018). The wording is: “Each correctional facility shall have a written policy in place regarding the medical care of pregnant inmates that addresses… [emphasis added].”

[4]University of Baltimore Bronfein Family Law Clinic, http://law.ubalt.edu/clinics/familylaw/index.cfm.

[5]Reproductive Justice Inside, https://www.rjinside.org.

[6]Makeda Curbeam, Model Policy Regarding Medical Care of Pregnant Inmates and Accessibility to Menstrual Hygiene Products, University of Baltimore Bronfein Family Law Clinic(forthcoming 2018-2019) (on file with Bronfein Family Law Clinic).

[7]See, e.g., Makeda Curbeam, Model Policy Regarding Medical Care of Pregnant Inmates and Accessibility to Menstrual Hygiene Products, University of Baltimore Bronfein Family Law Clinic(forthcoming 2018-2019) (on file with Bronfein Family Law Clinic). Footnote n. 21 cites to Michigan’s Department of Corrections Service Policy to make a recommendation about having a follow-up pregnancy test after a negative result.

[8]Md. Code Ann., Corr. Servs., § 9-616 (West 2018).

[9]Md. Code Ann., Corr. Servs., § 9-616(c) (West 2018).

[10]Md. Code Ann., Corr. Servs., § 9-616(d) (West 2018).

[11]Judicial Proceedings Meeting, Maryland General Assembly (February 15, 2018), http://mgahouse.maryland.gov/mga/play/25330e79-dc6c-4a84-b8e6-65cd4ba622e8/?catalog/03e481c7-8a42-4438-a7da-93ff74bdaa4c&playfrom=9605000.

[12]Id.

[13]Id.