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

A judge puts an HIV-positive pregnant woman in prison based solely on his concern for her unborn child, implicitly questioning her ability to protect her and her baby's health.

Many Rewire readers 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 that Ms. T has now been released on bail,
perhaps ironically, for the same reason that the judge originally imprisoned

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 14
and released to continue her care with the team at Maine’s Frannie
Peabody Center, with whom she had already started working while she was in

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 29 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 Rewire 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, the Center for HIV Law and Policy and attorneys Elizabeth
Frankel and Valerie Wright of the Maine firm Verrill Dana, LLP,
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 Maine Civil Liberties Union, and the legal team at the Immigrant Legal Advocacy Project.

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 Rewire readers.  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
[email protected].