June 26, 2022
BY Victoria Law
Within 30 days, abortion will become a Class C felony in the state of Tennessee. This is happening because Tennessee is one of the 13 states with a trigger law crafted to ban abortion as soon as the protections offered under Roe v. Wade were overturned. Following the United States Supreme Court’s decision on Friday to strike down Roe v. Wade, the ban is now in the process of being implemented in Tennessee.
But the ban on abortion is only the latest form of state violence that Tennessee, which already has a high maternal mortality rate and the country’s lowest rate of food assistance for families, has been deploying against its pregnant residents.
In 2014, Tennessee became the first state to directly allow women to be prosecuted for drug use during pregnancy. That bill included what’s known as a sunset clause, allowing the law to expire in 2016, but lawmakers have subsequently reintroduced similar bills targeting pregnant people and reproductive rights with permanent implementation. In fact, in early May of this year, Gov. Bill Lee signed a law criminalizing the distribution of abortion medications by mail.
Even while legal in the state, abortion access for incarcerated people has already been massively obstructed. In 2015, Maury County Sheriff Bucky Rowland refused to allow a woman to have an abortion. The woman’s attorney attempted to have a court lower her bond, which would allow her release from jail, but by the time it was lowered, she was too far along in her pregnancy to access the procedure. The woman gave birth three months after her release. In 2016, she filed federal suit against the sheriff for denying her abortion access. A federal court later dismissed her lawsuit.
Until recently, pregnant Tennesseans behind bars suffered an additional indignity — the threat of being handcuffed and chained at the belly and ankles during pregnancy, including while in labor or shortly after having their baby. It’s a practice known as shackling and, as late as 2020, 18 states, including Tennessee, had no statewide restriction on shackling pregnant people.
That last indignity was struck down in mid-May when Tennessee passed a law prohibiting jails and prisons from shackling and restraining pregnant people. Now, only 11 states lack legal protections against the practice.
In states like Tennessee, this legislative win came after years of organizing by reproductive justice advocates, including formerly incarcerated women who had experienced the humiliation and trauma of being restrained throughout pregnancy and sometimes even while in labor.
Laboring in Cuffs
In 2008, Juana Villegas was nine months pregnant when police asked for her driver’s license during a routine traffic stop. When Villegas, who was undocumented, could not produce one, police took her to Nashville’s Davidson County Jail and detained her under the 287(g) program that allowed police to detain people on federal immigration violations.
Three days later, while in jail, Villegas went into labor. Officers cuffed her hands and ankles before allowing an ambulance to take her to the hospital. Two male officers accompanied her. At the hospital, at the request of hospital staff, the officers removed the cuffs while she changed into a hospital gown but re-cuffed her after she had changed.
A third officer, who relieved the two male officers, removed the handcuffs, but kept one of Villegas’s legs cuffed to the bed. A fourth officer removed all restraints two hours before Villegas gave birth; six hours after she gave birth, officers shackled her, by her ankle, to the bed. The baby was sent home with family. Hospital staff gave her a breast pump to take back to the jail, but jail staff refused to let her keep it. Unable to pump, she developed a breast infection. Days later, she was released from the jail and able to rejoin him and her other children.
In 2009, Villegas filed a lawsuit charging the jail with deliberate indifference. In 2013, Nashville officials agreed to a $490,000 settlement. The judge also urged immigration officials to give Villegas a U-visa, usually reserved for immigrants who are crime victims, because her civil rights had been violated. The visa allowed Villegas to remain in the U.S. with her four children, including the son she gave birth to while jailed.
By the time Villegas filed suit, the Davidson County jail had changed its policy on restraining pregnant people in custody. This meant that, when Jawharrah Bahar was at the jail in 2010, she was taken to her doctor’s appointments in handcuffs but not in leg irons. But Bahar does recall that other times jail officers did shackle her feet together, making it nearly impossible to walk without stumbling.
Even when her legs remained unrestrained, she feared falling and being unable to catch herself while handcuffed. The jail-issued shoes never fit properly. “They flopped off my feet,” she told Truthout. “I always had in the back of my mind: I hope I don’t fall.”
When she went into labor, jail officials handcuffed her wrist to a bar in the ambulance. “That was ridiculous,” she said. “Where the hell am I going to go? I’m in labor.” Once she arrived at the hospital, however, she was allowed to give birth to her son unrestrained.
No law, however, prevented other jail and prison officials from shackling pregnant people. In Clay County, two hours northeast of Nashville, jail officials chained women, including pregnant ones, to chairs as late as 2019.
That’s what happened to Shauna Scott, who was 11 weeks pregnant when she was arrested for a probation violation. The woman next to her, Mackenzie Melton, was also pregnant and, while chained to a chair for six days, developed a blood clot. (Melton was transferred to a treatment facility after those six days.)
Advocating for Pregnant People Behind Bars
Dawn Harrington has never been pregnant behind bars. But she spent nearly a year on Rikers Island, New York City’s island-jail complex, in 2008. There, she was surrounded by mothers struggling to parent through 15-minute calls and one-hour visits, to navigate family court proceedings, and to maintain their legal parental rights.
Upon her release, she returned to her home state of Tennessee and co-founded Free Hearts, a local nonprofit by and for incarcerated and formerly incarcerated women. They provided support and services to women and children impacted by incarceration. They also fought to restore in-person visiting to local jails and helped pass the Primary Caretakers Act, which allows community-based alternatives to incarceration for people who have primary caretaking responsibilities.
Bahar joined Free Hearts in 2016. She had never engaged in advocacy before, but she recalls that, while in jail and then prison, she filed multiple grievances about abusive conditions. “I used to always be fussing about the injustices that [jail and prison officials] were doing,” she said. “I grieved everybody. I wanted to stand up for what’s right.”
With Free Hearts, she started by canvassing Rutherford County (middle Tennessee), where Civil Rights Corp had won a settlement from private probation company Providence Community Corporation (PCC) for extorting fees from people placed under its supervision. They alerted people who had been on probation under PCC that they were eligible for the settlement. Then, she shared her story about giving birth behind bars and being separated from her newborn for over three years. Bahar’s public sharing of her story helped pass the Primary Caretakers Act.
“I never thought I’d be doing no activism or helping pass laws,” Bahar recalled. But now, she is Free Hearts’s outreach director.
In 2017, Harrington attended a convening focused on efforts to end shackling during pregnancy hosted by Legal Services for Prisoners with Children, an organization which had passed anti-shackling legislation in California. There, she met formerly incarcerated organizers who had succeeded in passing laws prohibiting shackling during pregnancy in their states. She also met organizers from Oklahoma and Georgia who were still trying to pass similar protections. (They did so in 2018 and 2019 respectively.) Harrington returned home ready to fight for similar protections in Tennessee.
Free Hearts partnered with Healthy and Free Tennessee, a statewide reproductive justice network, to push a package of bills to not only prohibit shackling but also provide minimal standards of prenatal care behind bars and provide breast pumps for new mothers. The package also included a proposal to ban solitary confinement for all pregnant people, since Tennessee has no restrictions against subjecting pregnant people to this practice, which has been proven to negatively affect people’s physical and mental health. For pregnant people, isolation and the inability to walk or exercise also carry negative effects on the development of the fetus.
In 2019, these bills were introduced in both Tennessee state houses. Bahar and other Free Hearts members who had been pregnant behind bars shared their experiences with media and lawmakers. Meanwhile, Healthy and Free Tennessee rallied medical professionals, often alerting them to the practice.
“We work with nursing associations, the Tennessee Medical Association, [groups that have] traditionally not gotten involved in these types of issues,” Nina Gurak, policy director at Healthy and Free Tennessee, told Truthout.
Healthy and Free Tennessee has long worked with anti-violence advocates and organizations across the state. The bill allowed them not only to engage with them about shackling, but also, Gurak recalled, “to pivot from the carceral nature of anti-violence work and build connections. We can all agree shackling is bad.” From there, she said, they expanded their conversations to talk about the ways in which criminalization impacts abuse survivors, including their risk of being arrested when police are called for domestic violence or for physically defending themselves against abusive partners, and why both organizations centered abolition rather than increased policing and imprisonment to stop gender-based violence.
Despite their combined efforts, however, the bills were defeated in legislative subcommittee. In 2020, lawmakers reintroduced them — this time each issue had in its own bill. This time, too, organizers were broadening their strategies.
By then, Free Hearts was launching its Tennessee Regional Organizing Fellowship to develop leadership and organizing skills of formerly incarcerated women throughout the state, particularly in areas where Free Hearts previously had no presence. “We’re from Nashville, we’re mostly Black women,” Harrington told Truthout. “We can’t be the ones to go into some of these communities and organize. The majority of our state is rural, so it has to be people in those communities.” The fellowship enabled them to reach formerly incarcerated women in rural areas, bringing them into the organizing.
Healthy and Free Tennessee reached out to groups tackling intersecting issues. For the prenatal care bill, which includes HIV screening among its minimal standards, the coalition joined with the Tennessee AIDS Action Network to lobby at the capitol. Then the pandemic hit the U.S., shuttering legislative offices and moving advocacy and policy-making online.
As a statewide coalition, Healthy and Free Tennessee was already used to convening online with its partner organizations and advocates in various parts of the state. Members quickly pivoted online, participating in Zoom video conferences not only about these bills but also reaching out to advocates focused on other reproductive and health justice issues, such as abortion access and expanding Medicaid.
Free Hearts, however, was not accustomed to online organizing. Some members struggled with learning the technology while others lived in rural areas without internet or solid phone reception, preventing them from even phoning into Zoom meetings.
Both organizations rejoiced when lawmakers passed the prenatal care bill in June. Although the other bills failed to pass, they vowed to keep pushing until those too became law.
In 2021, the anti-shackling and anti-solitary bills were introduced again alongside a the new Senate Bill 1423, to prohibit staff from conducting body cavity searches on pregnant or postpartum people without authorization from higher-ranking jail or prison officials. All three failed to pass.
“We’re Just Going to Keep Fighting”
Free Hearts embarked on a text message campaign, first asking recipients to sign a petition supporting the anti-shackling bill, then asking them to contact their legislators about supporting the bill. The third text asked if they would come to Nashville for the annual lobby day.
“From those, we identified thousands of people that supported this legislation,” Harrington recalled. “Being able to identify over 3,000 people in the heart of rural Tennessee, in very conservative counties, through a text campaign is invaluable. That’s also something we can translate to in-person [organizing].”
This year, they were able to convene at the state capitol again for in-person lobbying. Among them were formerly incarcerated women who had recently been pregnant and in jail. Harrington recalled one woman, who had recently been part of Free Hearts’s jail program and was nearly ready to give birth, sharing her experiences with legislators. She had never been involved in organizing before and the experience, she said, felt powerful. “It’s so important to get a taste of our own power so that we can come together and actually change things,” Harrington said.
The bill was opposed by the Tennessee Sheriffs’ Association. At a corrections subcommittee hearing, Jeff Bledsoe, the association’s executive director, testified against the bill. He asserted that jailers sometimes find it necessary to shackle a pregnant woman, giving the example of a 14-bed jail that lacked female cells. When a pregnant woman entered, she was shackled to a chair in the hallway. The woman, he added, had been jailed repeatedly for violating probation by using drugs. “They’re not only putting themselves at harm, but [also] their unborn child,” he told lawmakers.
His logic, noted Gurak, is part of the larger surveillance and policing of pregnant people, ranging from physically restraining pregnant people to jailing them for the supposed safety of the fetus to criminalizing abortion.
Despite the sheriffs’ opposition, lawmakers voted to pass the anti-shackling bill from the committee onto the floor for a vote. This time, it passed and, on May 25, the governor signed it into law. It goes into effect on July 1.
“It’s a reminder that everything that we do has taken multiple years. Every legislation we’ve been able to pass, it’s never been a one-year thing,” Harrington said.
What’s more, she added, it showed formerly incarcerated women, many of whom had never been involved in organizing or activism before, that, “If we could do this, we could do anything. Organizing to build power works and we’re just going to keep fighting until all the things that hold us back are taken down.”
Harrington’s words are worth reflecting on as people across the U.S. now contend with the reality of limited and scattered abortion access. The far right’s slashing of reproductive rights took place over years, and reversing their victories won’t be a “one-year thing.” But mass organizing to build power, particularly by those who are most impacted and have long been marginalized, has proven, again and again, that it is possible to challenge and change reproductive (and other) injustices.
As Gurak stated in a press release minutes after the Supreme Court decision, “While we are heartbroken, we have also been preparing for this possibility, and will continue to center abolition in the fight for reproductive justice for all Tennesseans. We will always oppose laws that punish people for pregnancy outcomes and will always work to provide accurate resources and information, fight for increased resources for pregnant people and families, and advocate for the rights of pregnant people in Tennessee.”