H.R. 8690 — Pregnant Women in Custody Act

This section defines terms used throughout the Act, including a covered facility (i.e., a Bureau of Prisons facility, a U.S. Customs and Border Protection or Immigration and Customs Enforcement facility, or an Office of Refugee Resettlement shelter); an individual in custody (i.e., under the supervision of a Federal, State, Tribal, or local correctional facility or in the custody of specified immigration or refugee authorities); other pregnancy outcome (i.e., a pregnancy ending in stillbirth, miscarriage, or ectopic pregnancy); postpartum recovery (with the meaning given in section 4051(c) of title 18, United States Code, as added by this Act); restraints (i.e., any physical or mechanical device used to control movement of an in-custody pregnant woman’s body or limbs); and restrictive housing (with the meaning given in section 4322 of title 18, United States Code, as added by this Act).

This section directs the Director of the Bureau of Justice Statistics to include in the National Prisoner Statistics Program and Annual Survey of Jails, beginning not later than 1 year after enactment, statistics on the health needs of incarcerated pregnant women at the Federal, State, Tribal, and local levels. The required data cover (1) demographics including race, ethnicity, and age; (2) provision of prenatal, delivery, and postpartum care and services, including whether check-ups, support persons, pregnancy programs, and mother-infant residential programs were offered and provided, as well as lengths of hospital stays for mothers and infants; (3) proximity and travel time to the nearest hospital with a licensed obstetrician-gynecologist; (4) existence of written policies for unexpected childbirth or complications; (5) number of high-risk pregnancies; (6) total number of incarcerated pregnant women and those who became pregnant while incarcerated; (7) incidents of placement in restrictive housing during pregnancy, labor, delivery, postpartum recovery, and the 6-month period after delivery, including reasons and durations; and (8) post-delivery infant custody dispositions. This section also directs the Director of the Office of Homeland Security Statistics and the Director of the Office of Refugee Resettlement to publish comparable statistics on pregnant women in DHS or HHS custody, and prohibits collection or publication of any personally identifiable information.

This section directs the Director of the Bureau of Prisons, the Secretary of Homeland Security, and the Director of the Office of Refugee Resettlement to ensure nursery or residential services and programs for women in custody. The services include programs that enable mothers and infants to remain together after delivery, permit regular mother-infant contact periods, provide lactation support such as counseling and equipment, and guarantee a minimum bonding time of 60 minutes between a mother and newborn.

This section requires the Director of the Bureau of Prisons, the Secretary of Homeland Security, and the Director of the Office of Refugee Resettlement to ensure that covered facilities provide services and programs addressing the health and safety needs of women in custody related to pregnancy and childbirth. The section mandates access to contraception, pregnancy testing, and sexually transmitted disease testing upon request for women of reproductive age, as well as a pregnancy test at intake that the woman may decline. On confirmation of pregnancy, it requires the chief health care professional to provide a summary of safety protocols and ensure compliance, including assessments and modifications for housing, bedding, clothing, water and bathroom access, recreation and transportation, and diet. The diet must meet the Dietary Guidelines for Americans, include prenatal vitamins and additional caloric content, provide timely nutritious meals, and prohibit withholding food or serving nutraloaf as punishment. The section further requires prenatal education, counseling, and birth support services within 14 days of notification for women pregnant at intake or while in custody, covering parental rights, family preservation services, nutritional standards, health risks including postpartum depression, breastfeeding, and information on child support obligations and debt repayment risks under programs such as TANF and SNAP. Women who gave birth while in custody or in the 6-month period before intake must receive counseling from a licensed or certified provider on the same topics.

This section prohibits the use of restrictive housing, shackling, or restraints on incarcerated women in the custody of the Bureau of Prisons or the United States Marshals Service during pregnancy, labor, and postpartum recovery. The prohibition applies from the date a health care professional confirms pregnancy until at least 12 weeks after delivery, or longer if a responsible health care professional determines an extended period is necessary for the woman’s health and safety. Exceptions permit temporary restrictive housing only upon an individualized determination by the BOP Director or a senior women’s health official that such placement is required to address a serious and immediate risk of physical harm, subject to daily review, an individualized plan to return the woman to less restrictive housing, and a ban on solitary confinement during the third trimester. The section requires written reports on any exception placements within 30 days to agency directors and the responsible health care professional, as well as semiannual reports to Congress for 10 years; mandates oral and written notice to the woman of her rights within 24 hours of pregnancy confirmation; directs establishment of violation reporting processes and staff notifications of rights; prohibits retaliation for reporting violations; requires development and incorporation of education guidelines on the physical and mental health needs of pregnant women; and authorizes civil actions for injuries caused by violations.

This section prohibits the use of restrictive housing, shackling, or restraints on women in the custody of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, or the Office of Refugee Resettlement from the date pregnancy is confirmed by a health care professional until at least 12 weeks after delivery (or longer if determined by the responsible health care professional). The prohibition does not apply to restrictive housing if an official overseeing women’s health makes an individualized determination that it is required as a temporary response to behavior posing a serious and immediate risk of physical harm, subject to daily review, development of a plan to return the woman to less restrictive housing, and a ban on solitary confinement during the third trimester. The section requires written reports to the responsible health care professional within 30 days of any such placement and biannual reports to the House and Senate Judiciary Committees for 10 years; mandates oral and written notice to the woman within 24 hours of pregnancy confirmation; directs the Secretaries of Homeland Security and Health and Human Services to establish violation reporting processes within 180 days and education guidelines within 90 days; prohibits retaliation; and authorizes civil actions for compensatory and injunctive relief. Restrictive housing is defined to include any detention involving removal from the general population.

This section establishes requirements for the treatment of incarcerated pregnant women with high-risk pregnancies. It directs the Director of the Bureau of Prisons to evaluate each such woman to determine whether the pregnancy is high-risk and, if so, to provide appropriate obstetrical and gynecological care during pregnancy and the postpartum recovery period (defined as the 3-month period after birth, or longer if determined by a health care professional). The section further requires the Director to transfer any woman with a high-risk pregnancy to a Residential Reentry Center with adequate health care, if she agrees, prioritizing locations near her family members, and to use transportation determined safe by a health care professional; any time served at the center counts toward the woman’s sentence. It also authorizes civil actions in U.S. district court for compensatory damages and injunctive relief against the Director for violations.

This section directs the Director of the Bureau of Prisons to publish annually on the Federal Bureau of Prisons website data on administrative remedy requests and appeals filed by pregnant inmates, including the total numbers of informal requests, institution-level requests, and appeals; the number unresolved before birth or mooted by the end of pregnancy; average resolution times for each category; and the shortest and longest resolution times among resolved matters in each category.

This section directs the Director of the National Institute of Corrections to provide education and technical assistance, in conjunction with appropriate public agencies, to State and local correctional facilities that house women and to facilities where incarcerated women go into labor and give birth, in order to educate facility employees, including health personnel, on the dangers and potential mental health consequences of using restrictive housing and restraints on incarcerated women during pregnancy, labor, and postpartum recovery, and on alternatives to such practices. This section also directs the Secretary of Homeland Security and the Secretary of Health and Human Services to provide the same education and technical assistance to relevant facilities housing women in the custody of U.S. Customs and Border Protection or detained or sheltered by U.S. Immigration and Customs Enforcement or the Office of Refugee Resettlement.

This section requires the Director of the Bureau of Prisons to provide training on the treatment of incarcerated women during pregnancy, labor, and postpartum recovery to all correctional officers at facilities housing women, including initial training within 180 days after enactment and subsequent training twice each year thereafter, with new hires trained within 30 days of appointment. It directs the Director of the United States Marshals Service to ensure equivalent training for Deputy U.S. Marshals on and after the date that is 180 days after enactment, with new hires trained within 30 days. The section further requires the Bureau of Prisons, United States Marshals Service, Secretary of Homeland Security, and Secretary of Health and Human Services to develop and incorporate guidelines covering the transportation, housing, and nutritional requirements of pregnant women in custody, as well as the right of a health care professional to request that restraints not be used, and mandates equivalent training for employees at covered detention facilities housing women.

This section directs the Comptroller General of the United States to conduct a study of services and protections provided for pregnant incarcerated women in covered facilities and State and local correctional settings. The study must examine policies on obstetrical and gynecological care, education on nutritional issues and health and safety risks associated with pregnancy, mental health and substance use treatment, access to prenatal and post-delivery support services and programs, and the use of restraints and restrictive housing, as well as the extent to which the intent of such policies is fulfilled.

This section directs that the budgetary effects of this Act, for purposes of complying with the Statutory Pay-As-You-Go Act of 2010, be determined by reference to the latest statement titled “Budgetary Effects of PAYGO Legislation” for this Act submitted for printing in the Congressional Record by the Chairman of the House Budget Committee prior to the vote on passage.