In Search of Justice: Bail Granted for HIV+ Pregnant Woman

This blog originally appeared on RH Reality Check.

Many of you have been following the case of Ms. T, a 28 year-old HIV-positive pregnant woman from Cameroon who was recently sentenced to 238 days in prison by a judge trying to protect her unborn child from being born with HIV.  Ms. T has spent nearly six months in the Cumberland County Jail in Maine.  It is with much relief that I tell you—Ms. T was released yesterday released on bail, perhaps ironically, for the same reason that the judge originally imprisoned her

In January 2009, Ms. T was arrested for allegedly having false immigration documents.  Only shortly after her arrest, she learned that she was both HIV-positive and pregnant.  Under current federal sentencing guidelines, Ms. T’s charge should have carried a sentence of zero to six months.  So it would have been reasonable for her to expect that she would be given “time served” when she appeared before her sentencing judge on May 14th, and released to continue her care with the team at Maine’s Frannie Peabody Center she had already started working with while she was in custody.

But United States District Court Judge John Woodcock did not give Ms. T “time served.”  He instead calculated her sentence to ensure that she would remain in prison through her August 29th due date, stating that Ms. T was more likely to receive medical treatment and follow an HIV treatment regimen in federal prison than out on her own or in the custody of immigration officials.  Judge Woodcock also acknowledged that his sentence was based entirely on her decision to continue her pregnancy while being HIV-positive:  if Ms. T were pregnant but not living with HIV, he would have sentenced her to “time served.”  

For more background on Ms. T’s case, please see Margo Kaplan’s RHRC post ‘Behind Bars for Being Pregnant and HIV-Positive.’

The precedent set by Judge Woodcock’s decision is disturbing.  His sentence falls not only at a time of increased criminalization of HIV transmission, but also within a long history of government regulation of women’s reproductive health, most blatantly in the coerced sterilization of women of color, which was at its peak in the 1970s.  By mandating Ms. T to prison based solely on his concern for her unborn child, Judge Woodcock implicitly questions Ms. T’s ability, if not desire, to protect her baby and to promote her own health throughout and beyond her pregnancy.  

Since the first public news of Ms. T’s sentence, there has been a tremendous outpouring of support, uniting advocates in HIV/AIDS, detention and imprisonment, reproductive health, and racial justice movements.  With the support of this broad-based coalition of individuals and organizations, National Advocates for Pregnant Women and Center for HIV Law and Policy filed an emergency amicus (friend-of-the-court) brief challenging the imprisonment of an HIV positive pregnant woman in order to protect her “innocent” “unborn child.”  The brief was timed to reach Judge Woodcock before Ms. T’s bail hearing yesterday, providing him with a picture of the hurdles to meeting necessary care for HIV-positive women in even the best of prison health care systems.  

For a copy of the amicus brief and supporting materials, please see the National Advocates for Pregnant Women’s post, ‘Bail granted for imprisoned HIV-positive pregnant woman.’

For many people with HIV, the pervasiveness of HIV stigma in prison, which carries with it an additional onslaught of emotional harassment within an already traumatizing system, can be reason enough to not seek needed medical care or treatment.  And for those who do seek treatment, the variability of HIV care in U.S. prisons and jails can mean poor health outcomes in the short and long term.  Because of issues like cumbersome intake procedures and unpredictable lockdowns for security concerns, irregularities in HIV medication schedules can be common occurrences in prison settings nationwide, putting people at risk for developing drug resistance and HIV-related illnesses. Additional barriers for ensuring standard of care treatment arise in small or remote prisons, where specialty care is handled predominantly through outside referrals, not medical staff on-site. The expansion of for-profit prison health care systems has brought further challenges to routine and emergency medical care, as was extensively documented in a 2005 New York Times feature, ‘As Health Care in Jails Goes Private, 10 Days Can Be a Death Sentence.’

It was because of these concerns around the continuity and quality of health care, particularly while Ms. T would have been in transit from the county jail to a federal prison, that Judge Woodcock released her on bail Monday afternoon.  Ms. T is now working closely with the team at the Frannie Peabody Center, her attorney, Zachary Heiden of the MCLU, and the legal team at the Immigrant Legal Advocacy Project. 

But work to protect Ms.T’s access to in-community care and support is not over.  And the disturbing logic undergirding Judge Woodcock’s 238-day sentence remains unchanged.  

As efforts to appeal Ms. T’s sentence at the First District Court level proceed, we will continue to reach out to all of you.  And as the immediate crisis of Ms. T’s case eases, we hope that this growing coalition of organizations will be a consistent advocacy presence.  Ms. T’s case has shone a light on the issues that so many in our communities are moving through daily; her story cuts deep through the intersections of HIV/AIDS, reproductive health, immigration and racial justice that are at the heart our work together.  A dear friend of mine once said, “Half of your rights haven’t been written yet because you haven’t been here to demand them.”  If we can, in concert, find some lasting transformation to the structures that allowed Ms. T to be imprisoned in the first place, then, perhaps, we can say that justice will be done.

To receive updates about this case and other HIV and imprisonment related issues, please feel free to contact me at lmctighe@champnetwork.org.