More States, Including Virginia, Weigh New Rules for Pregnant, Postpartum Women in Custody

A growing number of states are reexamining how the criminal justice system treats pregnant and postpartum women behind bars.

This year, legislators in at least five states, including Kentucky, Ohio, South Carolina, Utah, and Virginia, have considered legislation that would reshape how pregnant people are treated in jails and prisons. The measures vary, but some seek to expand eligibility for alternatives to incarceration during pregnancy, restrict or prohibit restraints during labor and delivery, and strengthen data and reporting requirements.

An incarcerated woman holds her infant daughter while seated in a rocking chair inside a shared room in the nursery unit at the Women’s Eastern Reception, Diagnostic and Correctional Center in Vandalia, Mo. This year, legislators in at least five states have considered legislation that would reshape how pregnant people are treated in jails and prisons. (Photo by Amanda Watford/Stateline)

The Utah and Virginia bills were signed into law in March and April, respectively. In Utah, the new law restricts the shackling of pregnant and postpartum women and requires state prisons and jails to track the number of pregnant people in their custody, as well as incarcerated mothers of children under 18.

In Virginia, one of the new laws requires correctional facilities to adopt lactation policies for pregnant and postpartum incarcerated people by December 2028. A separate new law allows courts to consider home or electronic incarceration programs for pregnant or postpartum women, with certain exceptions.

The Kentucky legislature adjourned for the year without passing a similar measure there, but the bills in Ohio and South Carolina are still under consideration. Ohio’s legislative session runs through the end of the year, while South Carolina’s continues until mid-May.

The latest legislative activity comes amid growing scrutiny of conditions faced by pregnant people in prisons and jails, as well as increased interest in nursery and community-based programs for mothers.

At least nine states have prison nursery programs, and about a handful of others are considering or developing similar programs.

In Wisconsin, the state Department of Corrections said in early April that the agency is still working to develop a program for incarcerated mothers and their newborns, but has faced challenges due to funding and facility capacity limits.

The Justice-Involved Women and Children Collaborative at the University of Minnesota, this spring, launched what the group describes as the first comprehensive national database tracking state policies affecting pregnant people in custody.

The interactive tool documents more than 460 active policies across the country, including statutes on the use of restraints, access to abortion and access to menstrual products.

The database fills a longstanding gap in information about how state systems regulate pregnancy in correctional settings. Policies vary widely not only from state to state, but sometimes among facilities within the same state. Federal data is also limited. The most recent national statistics on pregnant incarcerated people, which were released last year, reflect prison populations from 2023.

Stateline reporter Amanda Watford can be reached at awatford@stateline.org.

by Amanda Watford, Virginia Mercury

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