|Bodies in a Zone of Indistinction:
A History of the Biomedicalization of Pregnancy in Prison
Introduction to the History of Medicine
Introduction: Current Trends in Women Prisons
The United States’ prison systems house more inmates than any other country in the Global North.1 Since Nixon’s proclamation of a War on Drugs in the 1960s and Ronald Regan’s push to create stricter penalties for drug crimes in the 1980s, prisons have seen an influx of women inmates, with the rate of incarceration increasing six times after this public policy was enacted.2 To meet the demand, prison systems expanded dramatically and now quarter over 110,000 women prisoners every year—5,000 to 6,000 of whom are pregnant or become pregnant during their incarceration.3
In prison, pregnant women lack the autonomy to choose their healthcare provider, to decide the time they are taken to the prison hospital for delivery, and to raise their infant.4 Still, because federal law states that prisons must provide medical care to all inmates, pregnant prisoners can expect at least some form of regular checkups and other prenatal care throughout the duration of their pregnancy.5 In some states across the nation, pregnant prisoners may even be able to take labor and delivery classes, deliver their babies without being shackled to the hospital bed, and-- depending on their “good” behavior-- have the option to stay with their children for a short period in either prison nurseries or residency programs.6 Through these initiatives, the medical establishment’s encroachment in penitentiaries can be seen as an “advancement” that institutes policy reformations for a more “humane” approach to ushering life into prison space.
Regardless, throughout this “progress” narrative, women’s bodies remain a space for political control and domination in both the spheres of law and medicine. As both spheres fuse and become co-constitutive of each other, Giorgio Agamben writes, “The novelty of modern biopolitics lies in the fact that the biological given is as such immediately political, and the political is as such immediately the biological given.”7 Likewise, in prison, bodies of pregnant women become zones of indistinction in which both biological and political spheres coalesce and the very material effects of their engagement are made visible. To that end, analysis of selected scientific studies will illuminate the ways in which the authority of science (including medicine and psychology) is co-opted by the medical establishment to make an appeal for more extensive accommodations of pregnant prisoners. Moreover, this paper will argue that the biomedicalization of female criminality in the last three decades has created a space in which certain “liberties” are increasingly afforded to expecting mothers in prison, yet paradoxically this movement also advances the agenda to moralize, discipline, and control pregnant bodies.
Sketch of Scientific Research and Medicine in Women’s Prisons
The shifting perceptions of female criminals in the nineteenth and twentieth centuries helped to spur different conceptualizations for the way their time was spent in detention. In the 1800s, female inmates were commonly associated with feeblemindedness, irrationality, licentiousness, and moral depravity; and these stigmas slowed the fomentation of social movements towards health care reform and other practices in women’s prisons.8 However, with the rise of the Progressive Era, reformers felt prompted by new discoveries in science and medicine to make changes in the prison system through empirically-driven research. In tracing the relationship between scientific applications in the penal system, current efforts in prenatal care, the unshackling movement, and prison nurseries can be situated within a long lineage of attempts at prison reformation in the United States.
During the early 1800s, women simply committed fewer violent crimes that warranted incarceration in state prison systems than men and had little room allocated for them when they were placed in such facilities.9 Rather, according to historian L. Mara Dodge, they often endured shorter stays in “local county or city jails, workhouses, or houses of correction.”10 Still, when they were imprisoned, women were frequently housed in quarters not equipped for residence- such as attics or basements. Not only were they relegated to poor, cramped housing situations, they were also often forced to perform domestic chores for the male inmates- such as darning stockings, sewing, cooking, and cleaning.11 Then, as what happens currently in prisons throughout the United States, prison guards would often sexually assault inmates, and cases of illegitimate birth were widespread.12 Moreover, in some states like Indiana, women inmates and their prison guards engaged in elaborate underground systems of exchanging sexual favors for special privileges (as they still do today).13
Living in poor, filthy conditions in prison and becoming socialized into a harsh living environment, inmates often acquired the stigma of being labeled “fallen” women, sinfully licentious, depraved, and incapable of reforming their ways.14 Considering the influence of Victorian ideals of femininity as “piety, purity, and submissiveness” as well as a lack of sexual desire, notions of female criminality falling from that pedestal were common during the 1800s, and women found it difficult if not impossible to regain their social status once they returned from their prison sentence.15 Prison, thus, was seen as a holding facility of immorality, a place to keep women separate from “civilized” society; and as such, Bitton claims that these institutions stigmatized convicts even more heavily for their crimes against society than they do today.16
What was considered scientific research at the time also furthered concepts of female criminals as defective degenerates; and through the disciplines of criminology and penology, women criminals were observed, measured, and categorized by their supposed biological disposition towards immorality. In 1895, The Female Offender—the work of Italian criminologists Cesare Lombroso and William Ferrero—did much to classify this population as biologically determined atavistic throwbacks to lower forms of humans.17 Characterizing them as masculine, violent, hairy, short, libidinous, Lombroso’s view mirrored ideas among general audiences in the United States, concerned about potential for social infiltration of racial and moral degeneration associated with prison populations—most of whom tended to be African Americans or immigrants to their country.18 According to L. Mara Dodge, similar sexist research continued even in the 1950s, as Otto Pollak’s The Criminality of Women popularized ideas that women were more practiced than men at lying and masterminding criminal activities (as evidenced by their ability to hide their menstruation every month and fake orgasms).19
Although a new crop of women researchers in the social sciences and other fields challenged such unsubstantiated research, the claims made by these scientists were not easily erased in the public imagination. Accepting women into doctoral level programs in the 1890s, the University of Chicago as well as other progressive schools in the northeast fostered a number of feminist-minded criminologists, social theorists, social workers, lawyers, and physicians.20 Unlike the generation of women activists before them, they had greater access to education, and the combination of their work in advocacy and research fed into the larger Progressive Era movement to use science and medicine as a means of ordering transformation and reorganizing structures within penal institutions.21
Frances Kellor, trained in criminal sociology, conducted a number of studies on women inmates at the turn of the century. Replicating Lombroso’s studies, she detected many of his methodological flaws including a bias that could easily conflate the physical attributes of particular ethnic groups with those of criminals. Ultimately refuting many of his claims to biological determinism of female criminality, Kellor took an environmental approach, which diminished the role of biology in predicting criminality, and considered the “social, mental, and emotional determinants of crime.”22 In addition, she conducted a number of anthropometric tests, interviewed prisoners on their life histories, read institutional reports on prisoners, and talked with prison matrons to learn more about individual prisoners.23 While she was innovative for her time in acknowledging the role that socioeconomic status played in female criminality, Kellor, like many of her colleagues, still took a very individualistic approach to crime that did not fully acknowledge larger structural barriers to financial independence, educational resources, and gender equality.24
Katharine Bement Davis also furthered the study of female criminology within prisons; and as the director of Bedford Hills, the State of New York’s third reformatory, she conducted intensive research on women’s sex lives before their incarceration and encouraged other researchers to do similar psychological and anthropological studies there as well.25 With funding from John D. Rockefeller, she supervised the establishment the Bureau’s Laboratory of Social Hygiene, a psychological clinic dedicating to eliminating the “social evil” of prostitution.26 Blaming society for the multivariate causes of female criminality—including low moral standing of men, meager educational, poor sanitation, crowding in cities, low economic conditions, and few educational opportunities—she too expanded the list of environmental factors to complicate commonly-held views on the origins of crime. 27
In addition, physicians such as Dr. Edith Spaulding also focused on the etiological causes of criminality among women by serving as the resident physician at a reformatory at Framingham, Massachusetts and studying antisocial behavior among psychopathic criminals.28 Disagreeing with Lombroso’s hypothesis that criminals suffered from feeblemindedness, she concluded that mental deficiency and low intelligence not pervasive among all or even most of female prisoners and did not act as a causal factor in instigating crime.29 Rather, as historian Estelle Freedman notes Dr. Spaulding found through her research that, “Environmental factors, including poverty, parental death, incest, and either prostitution or alcoholism at home appeared in 45 percent of the cases.”30 In this manner, her work also problematized simplistic, hereditary etiologies of criminality and led to new ways of conceptualizing and treating criminality.
The effects of scientific research, social science, and law greatly altered the treatment of criminals during the early 1900s, and researchers such as Frances Kellor, Katharine Bement Davis, and Dr. Edith Spaulding helped to shift focus from biological causes to social causes of criminality. While they were not always able to identify larger structural causes of structural inequality that contributed to criminality, these women were highly cognizant of the dire socioeconomic conditions that many prisoners faced in the free world, disputed theories of criminal heritability, and detailed more nuanced accounts of environmental factors correlated with criminality. Finally, their work provided early contributions to a vast amount of research that is still conducted upon women prison populations today.
Although the inculcation of norms of proper femininity remained central components in prison life, Samuel Pillsbury explains how the medical model became critical to further Progressive Era ideology and rehabilitation programs for criminals:
Crime was described as a disease suffered by the offender; what followed
conviction should be its cure. The offender was not a sinner but a sick person,
a patient in the care of the physician state. In its strongest form, idealist
ideology of the period rejected the notion of criminal responsibility, arguing
that the crime was an act beyond the control of the criminal and that the attempt
to apportion punishment according to its severity was not only hopeless, but a
throwback to the primitive retributivism of earlier times.31
This method thus called for a more individualized treatment of the prison, in which not only the judge would help to determine one’s sentence, but parole officers and social scientists would also determine the manner in which a sentence would be enforced.32 Although this method was never fully realized during the early 1900s, such idealistic policy formed according to the best recommendations of social science and medicine was highly indicative of the Progressives’ sense of optimism and their deep faith in science.33
Moreover, the emerging research from social sciences as well as from other fields, strengthened the idea that it was possible to “civilize” women inmates. Detailing this shift, L. Mara Dodge explains:
This emerging medical model embodied a faith in scientific classification,
psychiatric diagnosis, intelligence testing, and eugenics doctrines.
Progressive Era reformatory administrators represented a new generation
of college-educated, professional women, who viewed their charges not so
much as “sisters,” but as difficult clients in need of segregation, medical
and psychiatric treatment, educational and vocational training, and, at
times, sterilization and permanent institutionalization.34
As the first wave of feminists gathered in strength, and the Progressive Era (roughly 1900-1920) swept the nation, new research shifted perceptions of female criminality as well. Instead of seeing criminals as irreversibly “defective degenerates,” some women reformers began to view these women criminals as “poor unfortunates,” capable of receiving moralizing lessons to teach them middle-class (Christian) values of domesticity; and they retained the hope that these deficient women could be trained to engage with society as “proper” ladies.35 With the gradual establishment of separate women’s prison from approximately 1870 to 1900, new spaces to practice such ideals emerged.36
In her well-known book on the history of women’s prison reform, Their Sisters’ Keepers, Freedman provides the following summary of the moralizing component of prison reform:
The term “prison reform” has come to refer to efforts to improve prison
conditions, but it has a more basic meaning as well: the use of prisons to
re-form, rather than merely to detain, criminals. Advocates of prison
reform in the early nineteenth century favored the establishment of prison
which, through their influence on prisoners’ behavior, would encourage
repentance. The penitentiary, they believed, best combined the goals of
punishing criminals and re-forming their characters so that they would not
break the law again.37
Responding to the call to transform their prison systems, some penitentiaries in the 1930s through the mid 1950s were built on the feminizing ideal of cottages, in which women could practices domestic chores such as cooking, cleaning, farming, and sewing in the comfort of home-like settings.38 Allocated a small room, each inmate was expected to perform certain household duties under the supervision of the cottage warden.39 However, this system also provided an opportunity for unprecedented surveillance, and as the cottage model became further systematized, inmates were cited for a number of petty occurrences such as failure to drink coffee and eat toast at breakfast or sneaking extra pieces of cake, as well as major infractions such as fighting and possessing contraband items.40
Despite their initial success, the reformatory models eventually became more prison-like in nature. Filled to capacity, efforts to educate women in middle-class values and Protestant work ethics became more challenging as more women were sentenced to re-formation.41 As state budgets tightened, correctional models became prevalent as they offered more affordable methods to house larger populations, without the costly goal of character reformation. Moreover, the perceptions of women inmates had again shifted towards one of hardened criminals, incapable of reformation after all.42 Still, as Dana Britton notes, reformatory ideology “continues to occupy an ingrained, if ambivalent, space in our thinking about women prisons.”43
Although scientific research has continued throughout prisons in the United States, approaches in social science to understanding the etiology of crime have fallen out of vogue as a means to reform prison systems. According to Samuel Pillsbury, in 1964 the Supreme Court “abandoned the deference to social science expertise which it had displayed earlier and undertook a careful review of penal decisionmaking.”44 The previously-used rehabilitation model sought to rehabilitate prisoners from their fallen state and allowed some discretion on the part of prison administrators for determining prison sentences. However, since many advocates believed that such determinations were highly subjective and biased, this model was eventually replaced by determinate sentencing, which provided more strict guidelines for lengths of incarceration.45
Still, among several other changes during the 1970s and 1980s, since Estelle v. Gamble in 1976, lawsuits filed under the violation of the Eighth and Fourteenth Amendments have brought about additional health care protocol for all prisoners requiring medical interventions, including women.46 Now, in correctional institutions operated by the Federal Bureau of Prisons, women are able to access health care services such as immunizations, STI testing, pap smears, and pregnancy tests, according to certain guidelines established by the American College of Obstetrics and Gynecology.47 In state prisons, however, access to health care remains varied and ambiguous.48 According to Jenni Vainik, many women are still “routinely denied the support necessary to achieve healthy pregnancies and maintain relationships with their children in prison,” and research indicates, “inmates often are unable to access care, available services are inadequate, and providers are insensitive to female inmates’ emotional needs.”49 Moreover, despite limited developments, women’s health care still lags behind services provided to men in prison, and women often lack the legal representation necessary to demand greater access to care.50
In this brief sketch, it becomes clear that the ways in which science and medicine interacted with the United States’ penal system were highly contingent on cultural views of the time towards criminality. While scientific efforts during the Progressive Era brought hope that fallen women could be restored to society, the moralizing campaigns of biological determinism and the eugenics movement cannot be forgotten as well. Moreover, while women social scientists gained traction in challenging past ideas of hereditarianism, they often ignored the systematic barriers of racism, sexism, and classism that many women inmates experienced during this time. While science did much to effect prison reform during the Progressive Era, its decline in the 1960s is also indicative of shifting perceptions of criminality, and current views towards criminality seem to indicate a much more conservative stance on the ability of institutions to reform prisoners. However, as scientific research, social work, and medical initiatives continue in the prison, the rehabilitative model still holds some sway among medical practitioners and political activists interested in the health and wellbeing of female prisoners.
To better understand the inroads that medicine has made upon the prison system, it is important to first trace the ways in which medicine and law legitimate each other. Charting trajectories of power in the twentieth century, Michel Foucault describes how the judicial arm of the State becomes normalized into society through medicine:
I do not mean to say that the law fades into the background or that the
institutions of justice tend to disappear, but rather that the law operates
more and more as a norm, and that the judicial institution is increasingly
incorporated into a continuum of apparatuses (medical, administrative,
and so on) whose functions are for the most part regulatory.51
As law becomes hidden through medical imperatives, Foucault also argues that medicine augments its authority through law. This exchange allows both spheres of influence to validate each other’s existence and grow in power and prestige, and together their presence within prison systems makes it difficult to separate out the imperatives of the state and of medicine.
The medicalization of certain biological processes, such as pregnancy, has been used as a means of social control. Defining this process in terms of medical ideology, collaboration, and technology, Peter Conrad writes, “Simply stated, medical ideology imposes a medical model primarily because of accrued social and ideological benefits; in medical collaboration doctors assist (usually in an organization context) as information providers, gatekeepers, institutional agents, and technicians; medical technology suggests the use for social control of medical technological means…”52 Applying these overlapping categories to the medicalization of childbirth in prison, the combination of the pervasive ideology that medicine as advantageous to expecting mothers and the growth of medical technology in obstetrics lend themselves to supporting health care professionals as institutional agents for prisons. As institutional agents, health care professionals are placed at times in a difficult position to balance and uphold both medical imperatives to regiment health and healing and the imperatives of the prison to discipline and punish.
More recently, biomedicalization has become the new language through which scholars discuss a societal transformation occurring “…from the inside out through old and new social arrangements that implement biomedical, computer, and information sciences and technologies to intervene in health, illness, healing, the organization of medical care, and how we think about and live ‘life itself.’”53 To provide a few examples of this trend, in more recent years, the modes of risk and surveillance during the pregnancy process have expanded from basic Leopold’s Maneuvers to encompass imaging technologies of MRIs, intravaginal ultrasound, 3D/4D ultrasound, and telemedicine. Explaining this phenomenon, Ian Whitmarsh and David Jones write: “The state increasingly defines citizens by their biology, through prenatal testing, newborn screening, and government use of biometrics to determine medical access. Governance here is a mix of commerce and civic institutions acting on an individual subject.”54 Through these methods, Whitmarsh and Jones argue that recent applications of technology and knowledge allow women’s bodies to be seen more closely; and through such techniques of surveillance, public policies can be manifested upon the body.
Likewise, within the prison system, the authority of the medical establishment has gained traction in implementing their specialized knowledge upon women’s bodies. To this end, Elizabeth Grosz describes the power of such knowledge and how it shapes systems of governance:
… knowledge is one of the conduits by which power is able to seize
hold of bodies, to entwine itself into desires and practices: knowledge
devises methods for the extraction of information from individuals
which is capable of being codified, refined, reformulated in terms of
and according to criteria relevant to the assessment of knowledge. As
legitimized and sanctioned knowledge, discourse are then able to feed
back into the regimes of power which made them possible and to enable
power to operate in more subtle or systematic, more economical or
Medicine, as legitimized and sanctioned knowledge, forms a conduit of power through which to shape the prison system. Similarly, Agamben states, “…the biopolitical horizon that characterizes modernity, the physician and the scientist move in the no-man’s land into which at one point the sovereign alone could penetrate.”56 In the no-man’s land of prison, the pregnant inmate remains a zone of indistinction in which the physician and the scientist have begun to tread. The recent movements in medicine to advocate for prenatal care in penitentiaries, a ban on shackling practices, and prison nursery/residency facilities not only increase this zone of indistinction but also reflect larger societal trends in adopting and projecting the biomedicalization of pregnancy upon prison systems (the Sovereign).