By: Emily Werth, Senior Staff Attorney

Losing 67 pounds during pregnancy because you are not getting enough nutritious food.  Not being permitted to visit an OBGYN until you are 30 weeks pregnant.  Having a restraint chain around your pregnant belly every time you go to an appointment.  Being handcuffed while you are having an ultrasound.  Being threatened with solitary confinement as punishment for trying to get medical attention.  Asking for information about abortion and getting only a frowny face as a response.  These are just some of the experiences shared by women who have recently been pregnant while detained in county jails all around the state of Illinois in the new report Expecting Justice: The Status of Pregnancy and Reproductive Health Care Policies in Illinois County Jails.

This report is the culmination of a collaboration between the ACLU of Illinois and the Women’s Justice Institute (WJI).  Both organizations saw the need for a deeper evaluation of the often-overlooked conditions for those who are pregnant or postpartum, and others needing reproductive health care, in county jails across the state.  In addition to sharing the stories of impacted women, the report also surveys each county’s written policies related to provision of reproductive health care and the treatment of pregnant and postpartum individuals in local jails that were provided in response to Freedom of Information Act (FOIA) requests.

Unfortunately, we found that most counties lack the written policies that are a necessary first step to ensuring the health, well-being and dignity of people in jail custody.  The report looks at nine categories of policies related to reproductive health care and pregnancy, and out of 102 counties in Illinois, not a single county provided written policies related to all nine categories.  Only 11 counties provided written policies or other information related to at least seven of the nine categories.

County Map

The stories shared by impacted women in this report show how the lack of written polices is ultimately contributing to sub-standard and even illegal treatment at the end of the day.  Ultimately, critical action is needed to address these issues and ensure that people incarcerated in Illinois jails are receiving appropriate and humane care. 

The report urges all jails to develop written policies to ensure that they are complying with their legal obligations and meeting best practices.  It also encourages the Illinois Department of Corrections to make sure it has the necessary regulations and protocols in place to review jail compliance with relevant laws through its Jail and Detention Standards Unit.

The report also recommends that the Illinois General Assembly enact measures to address current harms and determine solutions to ongoing issues by:

  • Banning the unnecessary use of restraints on pregnant and postpartum individuals in all jails and prisons statewide; and
  • Creating a Task Force to hear from stakeholders, collect additional data from county jails statewide, and develop recommendations for further policy change.

In recent years Illinois has made strides to become a safe haven for reproductive rights and autonomy around reproductive decision-making.  But too often safeguarding such rights and ensuring true autonomy in practice for vulnerable groups like those who are incarcerated has been an afterthought.  With Expecting Justice, the ACLU of Illinois and the WJI are striving to shed light on this issue and spark attention and action that will result in meaningful, lasting improvements for people in county jails all across the state.

Expecting Justice builds on work that the ACLU of Illinois has been doing around this issue for the last several years. For example, in 2022 we represented Angel Luster-Hoskins, who was detained at Vermillion County Jail during her pregnancy. Luster-Hoskins objected when jail officials attempted to coerce her into inducing her labor, instead of letting her make her own decisions about childbirth, leading to a local Danville judge appointing a guardian-at-litem for her unborn fetus – a clear violation of Illinois law.

If you are pregnant or postpartum and incarcerated in Illinois, you do have rights when it comes to your decision-making and bodily autonomy. We will keep working to make sure that those rights are actualized.

Date

Wednesday, March 27, 2024 - 11:30am

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On Tuesday, March 26 the Supreme Court of the United States heard a case involving the broad availability of mifepristone, the safest and most widely used medication for abortion care. A group of Texas doctors brought the lawsuit originally challenging the Food and Drug Administration’s initial approval of the medication more than two decades ago. The Fifth Circuit Court of Appeals rejected the challenge to the FDA’s original approval, but ruled to reverse a series of recent FDA measures that made the medication more widely available. A ruling from the Supreme Court is expected before the end of summer. 

Mifepristone remains available while the case is pending. While Illinois has worked to ensure that abortion remains legal after the Dobbs’ ruling, access to mifepristone could be impacted here based on the Court’s decision.


What is mifepristone?

Mifepristone is one of two drugs commonly used in abortion and miscarriage care. It was first approved by the FDA in 2000 and has been used safely by more than five million people in the United States for more than two decades.

Mifepristone is currently used for over half of all abortions in the U.S. Studies show that mifepristone is exceedingly safe and effective – in fact, when it comes to serious medical complications, mifepristone is safer than Tylenol or Viagra. Mifepristone has been especially critical in expanding reproductive care access in low-income, underserved, and rural communities where the burden and cost of obtaining a procedural abortion are much higher.


What is the lawsuit about?

A group of anti-abortion doctors filed a lawsuit challenging the FDA’s initial decision to approve mifepristone.  The court of appeals held that these plaintiff did not have standing to challenge this approval because too much time has passed since mifepristone’s approval 23 years ago.  The Supreme Court has not taken up this part of the case.

The plaintiffs also challenged more recent FDA decisions that permitted mifepristone to be dispensed by mail and allowed pharmacies to fill mifepristone prescriptions, among other things. These anti-abortion doctors argue that FDA allegedly  didn’t adequately consider the drug’s safety record and that its actions  purportedly violate a 150-year-old law called the Comstock Act that banned sending “immoral” things through the mail.

A key issue in this case will be the plaintiffs’ ability to bring this case.  To file a lawsuit, a plaintiff must have what’s called “standing”––meaning  they have been injured and a court’s decision in their favor will redress that harm. Here, the plaintiffs do not prescribe mifepristone. Instead, they speculate that someday they might have to provide care for a patient suffering adverse consequences from taking mifepristone. That’s usually too hypothetical to support a lawsuit.

There are also serious problems with the merits of the plaintiffs’ claims. The FDA has compiled a voluminous, decades-long body of data demonstrating mifepristone’s safety. And since the early 20th century, courts have agreed that the Comstock Act does not prohibit mailing items designed to produce abortions where the sender does not intend them to be used unlawfully.


What is the lawsuit’s status?

It’s important to be clear that currently, the lawsuit has not changed mifepristone’s availability.  Although the trial court judge, a Trump appointee in Texas, and the Fifth Circuit Court of Appeals issued rulings that would have restricted mifepristone’s availability, these orders are not currently in effect while the case plays out before the United States Supreme Court.

Illinois has also joined a separate lawsuit to preserve mifepristone access, and the court in that case has ordered the FDA not to take any steps to alter mifepristone’s availability in Illinois. That case is still pending.  

Date

Thursday, March 21, 2024 - 2:30pm

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County jails in Illinois have a number of legal obligations when it comes to providing reproductive health care for the people in their custody and how they treat pregnant and postpartum people.  However, with 102 counties across the state of Illinois, it is difficult to determine whether and how jails are meeting these legal obligations, and whether existing laws are even sufficient to provide appropriate, supportive, and humane care for people incarcerated in Illinois jails.

Recognizing the urgent need to evaluate of the often overlooked conditions for those who are pregnant or postpartum, and others needing reproductive health care, in jails across the state, the ACLU of Illinois has collaborated with the Women’s Justice Institute to produce a report on the status of pregnancy and reproductive health care policies in Illinois county jails.

This report summarizes the responses received to requests made under the Illinois Freedom of Information Act to all 102 counties in the state seeking policies and other information about the provision of reproductive health care and treatment of pregnant and postpartum people in the custody of county jails.  It also includes the stories of a number of individuals who shared their experiences about being pregnant while detained in county jails in recent years.  The report documents that current policies and practices in many counties are inadequate to meet the reproductive health needs of individuals in their custody consistent with legal standards and best practices.

Date

Tuesday, March 26, 2024 - 10:30am

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