CASE NO.

11-6031 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ___________________________________________ JUANA VILLEGAS, Plaintiff/Appellee, v. METROPOLITAN GOVERNMENT OF DAVIDSON COUNTY / NASHVILLE DAVIDSON COUNTY SHERIFFS OFFICE, Defendant/Appellant __________________________________________ On Appeal from the United States District Court for the Middle District of Tennessee (No. 09-00219) __________________________________________ BRIEF OF AMICI CURIAE PROFESSORS OF CATHOLIC AND EVANGELICAL MORAL THEOLOGY IN SUPPORT OF PLAINTIFF/APPELLEE JUANA VILLEGAS URGING AFFIRMANCE __________________________________________ Eric Schnapper Maureen Howard SCHOOL OF LAW UNIVERSITY OF WASHINGTON PO Box 353020 Seattle, WA 98195 Telephone: (206) 616-3167 Facsimile: (206) 685-4469 Email: schnapp@uw.edu Rebecca S. Jones 603 Pontius Ave North Seattle, WA 98109 Telephone: (425) 830-6211 Email: rsjones2@uw.edu

Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT Sixth Circuit Rule 26.1 is inapplicable to amici because they are individuals. Dated: May 9, 2012 /s/ Eric Schnapper

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RULE 29(c)(5) STATEMENT No partys counsel authored this brief in whole or in part. No party or partys counsel contributed money that was intended to fund preparing or submitting this brief. No person, other than amici or their counsel, contributed money that was intended to fund preparing or submitting this brief. Dated: May 9, 2012 /s/ Eric Schnapper

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TABLE OF CONTENTS RULE 29(c)(5) STATEMENT...................................................... iii TABLE OF AUTHORITIES .......................................................... v STATEMENT OF INTEREST OF AMICI CURIAE.................. 1 IDENTITY OF AMICI CURIAE ................................................... 2 SUMMARY OF ARGUMENT........................................................ 4 ARGUMENT .................................................................................... 7 I. RESPECT AND PROTECTION FOR BIRTHING MOTHERS IS A CORE SOCIETAL VALUE ................................................... 7 A. Pregnancy and Childbirth Have Long Been Revered by All Human Societies ......................................................................... 7 B. Faith-Based Standards of Decency Inform the Meaning of the Cruel and Unusual Punishments Clause.......................... 12 II. ABUSE OF BIRTHING MOTHERS WHILE IN CUSTODY CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT..... 15 A. Wanton Infliction of Pain................................................... 16 B. Bodily and Spiritual Privacy ............................................. 29 C. Dignity and Humiliation.................................................... 33 III. THE SCOPE OF THE CRUEL AND UNUSUAL PUNISHMENTS FORBIDDEN BY THE EIGHTH AMENDMENT DOES NOT VARY WITH AN INDIVIDUAL'S IMMIGRATION STATUS ........................................................... 37 CONCLUSION .............................................................................. 39 CERTIFICATE OF COMPLIANCE WITH RULE 37(a)(7)(c)40 CERTIFICATE OF SERVICE .................................................... 41

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TABLE OF AUTHORITIES Cases Bell v. Wolfish, 441 U.S. 520 (1979). ........................................ 15, 38 Black v. Toys R U.S. Delaware, 2010 WL 4702344 (S.D. Tex. Nov. 10, 2010) ............................................................. 21 Blackstone, Commentaries on the Laws of England, Book 4, Ch. 31 .............................................................................. 10 Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946) ............................ 10 Brawley v. State of Washington, 712 F.Supp.2d 1208 (W.D.Wash.2010) ......................................................................... 38 Cornell v. State, 74 Tenn. 624 (1881) ............................................. 34 Cumby v. Meachum, 684 F.2d 712 (10th Cir.1982). ...................... 30 Farmer v. Brennan, 511 U.S. 825 (1994) ....................................... 17 Frazier v. Ward, 426 F.Supp. 1354 (N.D.N.Y. 1977)..................... 29 Furman v. Georgia, 408 U.S. 238 (1972)........................................ 33 Gonzales v. Carhart, 550 U.S. 124 (2007)........................................ 8 Harmelin v. Michigan, 501 U.S. 957 (1991). ................................. 11 Hope v. Pelzer, 536 U.S. 730 (2002)................................................ 35 Hudson v. McMillian, 503 U.S. 1 (1992)........................................ 27 In re Grand Jury Investigation, 918 F.2d 374 (3d. Cir. 1990) ...................................................................................... 33 Maher v. Roe, 432 U.S. 464 (1977). .............................................. 8, 9 Miller v. Albright, 523 U.S. 420 (1998) ............................................ 8 Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009) (en banc). ....................................................... 36, 38 Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) .......................... 35 State v. Feilen, 70 Wash. 65 (1912) ................................................ 18

United States v. Lanier, 520 U.S. 259 (1997)................................... 8 Weems v. United States, 217 U.S. 349 (1910) ................................ 28 Women Prisoners of D.C. Dept of Corr. v. District of Columbia, 877 F.Supp. 634 (D.D.C. 1994).................................. 37 Other Authorities Barbara Binder Kadden & Bruce Kadden, Teaching Jewish Life Cycle (1997) .............................................................. 12 Caring for Hindu Patients (Divas Thakror and Rasamandala Das, eds. 2008) ..................................................... 12 Deitra Leonard Lowdermilk & Shannon E. Perry, Maternity Nursing (2006) .....................................................passim G.J. Ebrahim, Cross-cultural aspects of pregnancy and breast-feeding, 39 PROC. NUTR. SOC. 13 (1980). .................. 32 Gwen Stern & Laurence Kruckman, Multidisciplinary perspectives on post-partum depression: An anthropological critique 17 Soc. Sci. & Med. 1027 (1983) ................................................................ 23, 26 Heidi Murkoff & Sharon Mazel, What to Expect When Youre Expecting, 382-430 (2002) .......................................... 24, 26 Judy Barrett Litoff, The Midwife Throughout History, 27 J. Nurse-Midwifery 27 (1982). ................................. 32 Kevin J. Jones, Catholics Praise Nebraska Law helping Pregnant Immigrants, Catholic News Agency (Apr. 21, 2012) ................................................................... 9 Marian F. MacDorman & T.J. Mathews (U.S. Department of Health & Human Services), Recent Trends in Infant Mortality in the United States, National Center for Health Statistics Data Brief No. 9 (Oct. 2008)........................................................................... 22 Pope John Paul II, Evangelium Vitae (1995)..................... 13, 14, 18 Pope John Paul II, Veritatis Splendor ..................................... 17, 18 R. Washbourne, The Works of the Seraphic Father St. Francis of Assisi (1882)................................................................ 30
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Russell Fuller, Exodus 21:22-23: The Miscarriage Interpretation and the Personhood of the Fetus, 37 J. EVANGELICAL THEOLOGICAL SOC. 169 (1994)........................... 10 Steven G. Gabbe et al., Obstetrics: Normal and Problem Pregnancies (4th ed. 2002)............................................ 20 USCCB, Catholic Social Teaching on Immigration and the Movement of Peoples...................................................... 38 USCCB, Ethical and Religious Directives for Catholic Health Care Services, (5th ed. 2009). .......................................... 13 USCCB, Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice (2000) ............................................................... 16 USCCB, Strangers No Longer: Together on the Journey of Hope (2003). ............................................................... 38 Voices of Islam: Voices of Life: Family, Home, and Society (Vincent J. Cornell, ed. 2007) ......................................... 12 Wash. Sen. Bill Report SB 6500 (Jan. 27, 2010) (An Act to Limit the Use of Restraints on Pregnant Women or Youth)........................................................................ 37 Scripture Exodus 21:22-23 .............................................................................. 14 John 16:21. ...................................................................................... 13 Matthew 25:35................................................................................. 38 Psalm 139:13-16 .............................................................................. 18

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STATEMENT OF INTEREST OF AMICI CURIAE Amici are Professors of Catholic Moral Theology and a Professor of Evangelical Christian Theology. As theologians,

amici are practicing members of their faiths who devote their professional lives to studying and teaching Christian ethics and to advocating for public policies that respect the human dignity of all people. Amici submit this brief because Catholic and Evangelical theology forbids the cruel and inhuman treatment of human beings, especially women during the special period of labor, childbirth, and immediately thereafter. Catholic theology prizes human life from the moment of conception, which means that pregnant women in labor must be treated with special solicitude. The birthing period is a time during which a womans human dignity, including her social and familial connections, should be especially valued and respected. In Catholic teachings mothers who bear children are heroic, brave, and essential to a culture of life. Thus, society must not allow hostile or cruel treatment of women in childbirth.

IDENTITY OF AMICI CURIAE Dr. Emily Reimer-Barry is Assistant Professor of Theology and Religious Studies at the University of San Diego.

Dr. Jana Bennett is Assistant Professor of Theological Ethics at the University of Dayton.

Dr. Charles Camosy is Assistant Professor of Christian Ethics at Fordham University and a Visiting Fellow at Oxford Universitys McDonald Centre for Theology, Religion, and Public Life.

Dr. Julie Hanlon Rubio is Associate Professor of Christian Social Ethics at Saint Louis University.

Dr. Beth Haile is Assistant Professor of Moral Theology at Carroll College, Helena, Montana.

Dr. Tisha Rajendra is Assistant Professor of Theology at Loyola University, Chicago.

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Rev. Dr. David Gushee is the Distinguished University Professor of Christian Ethics and Director of the Center for Values in Public Life at Mercer University in Atlanta.

Dr. William Joseph Buckley is Assistant Professor at Seattle University who teaches moral theology, theological ethics, and comparative religious ethics.

Dr. Tobias Winright is Associate Professor of Theological Ethics at Saint Louis University.

Dr. Nancy M. Rourke is Associate Professor of Religious Studies and Theology and Director of the Catholic Studies Program, Canisius College, Buffalo.

Dr. Kathryn Getek Soltis, S.T.L. (License in Sacred Theology) is Assistant Professor of Christian Ethics and Director of the Center for Peace and Justice Education at Villanova University, Pennsylvania.

SUMMARY OF ARGUMENT Contemporary standards of decencythe touchstone of Eighth Amendment jurisprudenceencompass special respect and compassion for birthing mothers. Pregnancy and childbirth are actions that society has honored over the centuries. Maher v. Roe, 432 U.S. 464, 479 (1977). Hundreds of state and federal laws that protect and encourage pregnancy reflect the unique importance that the nation attaches to childbearing. Those

societal concerns are at their apogee at the point of childbirth, when the mothers physical and emotional suffering is the greatest, and when the dangers to mother and child are the most serious. Religious organizations regard childbearing as a

particularly precious and sacrosanct event.

The United States

Conference of Catholic Bishops, for example, has admonished Catholic hospitals to take care of women and their children during and after pregnancy. Church teachings urge support for brave mothers who . . . suffer in giving birth to their children. Such faith-based standards of decency are part of the mosaic of values that constitutes the nations accepted standards of decency. When a woman in government custody gives birth, the government must exercise particular restraint in order to avoid the type of mistreatment that would be contrary to the universally accepted standard of decency regarding childbirth. The birth of a child is fundamentally different, physically and spiritually, from a routine medical procedure such as an appendectomy. Thus, Government intrusion during the period of

childbirth is highly likely to result in an Eighth Amendment violation. First, government intrusion will often result in the

wanton infliction of increased physical or emotional pain for the mother, who will already be enduring pain as a result of the rigors and dangers of childbirth. In this case, for example, shackling the plaintiff during much of the period of labor caused just such

constitutionally impermissible physical suffering. After delivering the baby, the plaintiff was chained to her bed, unable to comfort her newborn son when he cried in his nearby crib. Second, such intrusion will frequently entail the type of gross invasion of privacy that would violate the Constitution. Here, for five critical days, from the outset of labor to the forced removal of her infant, including the uniquely private hours of delivery, the plaintiff was surrounded only by strangers, including male guards, while wholly cut off from any contact with her husband or family. Third, the exceptionally vulnerable position of a birthing mother renders particularly objectionable government action that injures the dignity of an individual. Federal decisions have repeatedly recognized that the use of shackles is so humiliating and degrading that it must be limited to situations in which no other method would be sufficient to address a real danger of violence or flight. A birthing mother is physically unable to flee, and the only danger posed in this case was that created by the defendant itself for the mother and child. Shackling the plaintiff was as

gratuitously offensive as shackling a paraplegic inmate in a wheelchair. ARGUMENT I. RESPECT AND PROTECTION FOR BIRTHING MOTHERS IS A CORE SOCIETAL VALUE A. Pregnancy and Childbirth Have Long Been Revered by All Human Societies The abusive actions in this case strike at the very heart of the Constitutions prohibition against cruel and unusual

punishment. Ordinarily the resolution of cruel and unusual claims requires the court to apply evolving standards of decency. See Roper v. Simmons, 543 U.S. 551, 560 (2005). Under that analysis, the punishments and conditions of confinement that might have been tolerable in centuries or decades past may be deemed inconsistent with the values of the nation today. On

infrequent occasion, however, the courts are faced with a form of abusive behavior that has no precedent, and whose harshness would have been regarded as intolerable at any point in the

nation's history.1 Those uncommon but extreme situations easily fall within the constitutional prohibition against punishments that are both unusual and cruel. This is such a case. The law has long recognized the entirely unique importance of childbirth. State officials must respect, not pervert . . . the process by which life comes into the world. Gonzales v. Carhart, 550 U.S. 124, 160 (2007). Pregnancy and childbirth are not valueneutral or disfavored activities, but are actions society has honored over the centuries. Maher v. Roe, 432 U.S. 464, 479 (1977). Since a woman must carry [a] pregnancy to term[and] must then actually give birth to the child, our laws and policies seek to reward[] that labor. Miller v. Albright, 523 U.S. 420, 433-34 (1998). Hundreds of state and federal statutes that protect and encourage pregnancy reflect the unique value and importance that the nation attaches to childbearing.2

See United States v. Lanier, 520 U.S. 259, 271 (1997) (the easiest cases [on impermissible conduct] never even arise). 2 Tennessee alone has no less than 60 state statutes providing special rights, privileges, and protections for pregnant women. . The federal government, inter alia, protects pregnant women with the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), 42 U.S.C. 1395dd (1986); WIC (1966); 42 U.S.C.
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Childbirth is also a time of special concern because of the pain and dangers involved; burdens which command the compassion and respect of society at large. Labor and childbirth are extremely painful, both physically and emotionally. Giving birth can cause serious injuries, disability, and even death. Since every person alive owes his or her life to someone else having endured pregnancy and childbirth, society feels called to help, not hurt, pregnant women. Respecting and helping women in the period of childbirth is not some new fad or transient idea; it assuredly enjoyed near universal acceptance, among the religious and non-religious alike, when the Eighth Amendment was framed some 220 years ago. Ancient societies imposed heightened punishments on those who 1786; FMLA, 29 U.S.C. 2612(a)(1)(A); PDA (1978), 42 U.S.C. 2000e. Many state laws promote breastfeeding, inter alia Montana Code 39-2-215; District of Columbia Code 2-1402.81. Nebraskas state Medicaid program provides prenatal care to undocumented immigrants. It is supported by the Nebraska Catholic Conference as a strong pro-life policy. Kevin J. Jones, Catholics Praise Nebraska Law helping Pregnant Immigrants, Catholic News Agency (Apr. 21, 2012), http://www.catholicnewsagency.com/news/catholics-praisenebraska-law-helping-pregnant-immigrants/.
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would hurt pregnant women.3 Our modern society does the same.4 To the knowledge of amici, neither the Congress nor any state legislature has ever adopted laws directing or even expressly permitting the physical or psychological abuse of a woman during childbirth. In Blackstones England and ancient Rome, convicted pregnant women were not punished at all until after delivery. Blackstone, Commentaries on the Laws of England, Book 4, Ch. 31. Only within the last decade or two have there been reported incidents in which a woman during childbirth was shackled to a bed or gurney or forced to endure the presence of male police officers or guards in the delivery room. The very rarity of this callous innovation is compelling evidence of the degree to which it

Hurting a pregnant woman and causing her to miscarry was prohibited in the Old Testament (Exodus 21:22); the Code of Hammurabi, 1772 B.C.; Sumerian law, 3rd century B.C. Russell Fuller, Exodus 21:22-23: The Miscarriage Interpretation and the Personhood of the Fetus, 37 J. Evangelical Theological Soc. 169, 174 (1994). 4 Persons who hurt a pregnant woman may be held liable in tort or criminal law for injury to both the woman and the infant. See Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946); Unborn Victims of Violence Act, 18 U.S.C. 1841(B). Thirty-five states have similar criminal laws.
3

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departs from the nations longstanding and widely accepted values.5 These societal norms were sharply illustrated in the instant case by the reactions of the medical staff who witnessed how Mrs. Villegas was treated by Metro officials. The nursing and medical professionals who saw what the officials were doing to Mrs. Villegas objected to that conduct. Appellees Br. 34 35. They repeatedly insisted that guards remove the shackles, and they pleaded with the guards to allow Mrs. Villegas to have a breast pump. Id. The hospitals medical and nursing staff likely came from diverse backgrounds and ascribe to different faith-based or secular values. The fact that so many of them spontaneously and insistently objected to Metros treatment of Mrs. Villegas is compelling evidence that such mistreatment is inconsistent with contemporary standards of decency.
5

Cases rejecting Eighth Amendment challenges to certain punishments usually rely on the fact that the punishment has been duly enacted by a state legislature. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Shackling birthing mothers has never been imposed by democratically-adopted legislation. Every state legislature to have taken up the issue of shackling of birthing mothers sixteen to date has banned the practice. See Brief of Amicus Curiae ACLU at 31.
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B. B. Faith-Based Standards of Decency Inform the Meaning of the Cruel and Unusual Punishments Clause In a society that includes hundreds of millions of individuals of faith,6 standards of decency that are rooted in religious beliefs are an important part of the mosaic of values that constitutes the nations accepted standards of decency. All the religions of the world, divergent though they may be in other ways, enjoin the faithful to exhibit a special respect and reverence for the time when a woman gives birth.7 Amici will primarily discuss the Catholic position,8 but this faith-based standard of decency is

Amici do not propose that Catholic or Christian principles should be more relevant than the values of other religious groups or of non-believers; but seek merely to explain the Catholic position on reverence for childbirth insofar as it aligns with and can give context to the secular and mainstream consensus.

For example, childbirth has spiritual and sacred meaning in Judaism, Islam, and Hinduism, as well as in all denominations of Christianity. See Barbara Binder Kadden & Bruce Kadden, Teaching Jewish Life Cycle 166 (1997); Voices of Islam: Voices of life: family, home, and society 107 (Vincent J. Cornell, ed. 2007); Caring for Hindu Patients 55 (Divas Thakror and Rasamandala Das, eds. 2008). 8 Amicus Curiae Rev. Dr. David Gushee is an Evangelical, not Catholic, theologian. While this brief will primarily discuss Catholic values; Dr. Gushees faith-based standards similarly
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wholly consistent with the values of those who may have no religious affiliation or beliefs, and is part of a national and indeed human consensus. The United States Conference of Catholic Bishops (USCCB) has admonished Catholic hospitals to take care of women and their children during and after pregnancy, which care must be delivered with compassion, to embrace[] the physical,

psychological, social, and spiritual dimensions of the human person. USCCB, Ethical and Religious Directives for Catholic

Health Care Services, 14, 23 (5th ed. 2009). The New Testament recognizes the unique importance and complexity of childbirth: A woman, when she is in labor, has sorrow because her hour has come; but as soon as she has given birth, she no longer remembers the anguish, for joy that a child has been born into the world. John 16:21. In Catholic teaching mothers who bear children are heroic and essential to a culture of life. Pope John Paul II, Evangelium Vitae at 99.

reject Metros treatment of Mrs. Villegas and for similar reasons as those of the Catholic tradition.
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The Catholic Church teaches that from the moment of conception, and including during labor and delivery, human life must be guaranteed that unconditional respect which is morally due to the human being. Id. at 59 (1995). The Catholic prolife position requires that pregnant women and newborn infants be given special solicitude. Catholics must support the brave mothers who suffer in giving birth to their children. Id. at 86. Hurting women during pregnancy is antithetical to this command: [I]f men strive, and hurt a woman with childhe shall surely be punished. Exodus 21:22-23. Mistreatment of a birthing mother has special resonance for all Christians, because it evokes the story of Mary, who was turned away at the inn in Bethlehem and forced to give birth in a stable. The re-telling of that story every Christmas reminds Christians of the vulnerability of motherhood, and moves Christians to regard pregnant and birthing mothers with special compassion.

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II. ABUSE OF BIRTHING MOTHERS WHILE IN CUSTODY CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

The Cruel and Unusual Punishments clause of the Eighth Amendment protects the basic dignity of people taken into the states custody, even those who have committed the most serious crimes. Roper, 543 U.S. at 576, 560. Individuals who have not yet been convicted of any crime at all, but who are merely pretrial detainees, are subject to a higher standard of constitutional protection, because, under the Fourteenth Amendments Due Process clause, they cannot be subject to any actions that constitute punishment. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Government action toward such a detainee, even if taken for a non-punitive purpose such as assuring security or preventing flight, is impermissible if the means taken are harsh and unreasonable. Id. at 599. Catholic teaching, like constitutional law, affirms this basic right to dignity even of individuals who are incarcerated. The U.S. Catholic Bishops hold that any system of penal justice mustenable inmates to live in dignity [and provide for]

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personal

safety

[and]

timely and

medical

care. A

USCCB, Catholic

Responsibility,

Rehabilitation,

Restoration:

Perspective on Crime and Criminal Justice (2000). The varieties of harsh treatment to which Mrs. Villegas was subjected in this case implicate three distinct lines of Eighth Amendment precedent and violate the constitutional prohibitions against: wanton inflictions of pain, intrusions into intimate privacy, and humiliating affronts to dignity. C. Wanton Infliction of Pain The Cruel and Unusual Punishments clause prohibits states from inflicting acute pain and suffering on prisoners. ONeil v. State of Vermont, 144 U.S. 323, 339 (1892). Treatment or conditions of confinement that amount to an unnecessary and wanton infliction of pain are unconstitutional. Hudson v. McMillian, 503 U.S. 1, 5 (1992). This prohibition on the infliction of pain extends to emotional pain; state officials may not subject detainees to treatment that is devastating to the human spirit, that causes [s]hame, depressiona shattering loss of selfesteem[and] perpetual terror. Farmer v. Brennan, 511 U.S.

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825, 853 (1994). Metros actions in this case violated the constitutional prohibition against infliction of physical pain and psychological torment. This baseline understanding that state officials may not inflict pain on those who are at their mercy is a value shared by Catholics and many people of faith. Catholic teachings forbid inflicting pain on others, and instead urge the faithful to offer help, pain relief, and compassion to the sick and the suffering. Mother Teresa said that the sick, suffering, and wounded are Jesus in disguise, and taught that we must extend to them our greatest compassion. Although there may be unusual

circumstances in Catholic thought in which the affirmative duty to help others might not apply, there are no exceptions to the related duty to refrain from actively hurting others. Pope John Paul II, Veritatis Splendor 52. Moreover, Catholic teachings hold that physical and mental torture are among the most intrinsically immoral acts, and we must avoid inflicting pain on others regardless of the cost. Id.

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When both childbirth and unborn life are at stake, Catholic teachings hold that we must take special care so as to avoid causing harm to the two vulnerable human lives at issue. Threats to human dignity are especially pernicious where life is weak and defenseless. Evangelium Vitae at 3. To callously cause a woman to fear for her unborn child is gravely evil, an offense to unborn life, and even an offense to God, who is believed to be present in a communion with the mother and the life developing in her womb. Evangelium Vitae at 77. See also Psalm 139:13-16 (For you created my inmost being; you knit me together in my mothers womb) Acts that ignore the sanctity of childbirth are antithetical to core Catholic values. Veritatis Splendor at 52. D. Metros abusive treatment of Juana Villegas inflicted severe pain and suffering. Labor, childbirth, and their aftermath often inflict great amounts of pain, stress, and emotional suffering on the birthing mother. The Eighth Amendment prohibits treatment that unnecessarily augments pain. State v. Feilen, 70 Wash. 65, 71 (1912). If government officials interfere with a birthing mother and with the health care professionals trying to help her, their
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actions will almost invariably increase the mothers physical pain and emotional anguish. Officials interfering with a birthing

mothers labor also violate the Eighth Amendments related requirement that officials help a prisoner who faces serious threatened pain but is unable to fend for [her]self. Farmer v. Brennan, 511 U.S. 825, 853 (1992). 1. Physical pain of labor and childbirth A woman in labor already feels extreme physical pain: it is a degree of pain that may be matched by no other experience in life, and a level of pain that most men may be unlikely ever to know. Labor is an involuntary process in which enormous muscular contractions overtake the body in an effort to expel the baby, whose head is at least ten times wider than a womans vaginal opening. Deitra L. Lowdermilk & Shannon E. Perry, Maternity Nursing, 324-325 (2006). These contractions are extremely painful, and get worse. As labor advances, the fetuss head descends into the pelvic floor, putting pressure on the vagina, rectum, and urethra, which causes further pain. Steven G. Gabbe et al., Obstetrics: Normal and Problem Pregnancies 77 (4th ed.

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2002). As the pelvic ligaments stretch, it can create the painful and frightening sensation that the bones are snapping. Id. at 81. Women can ameliorate their pain by walking around, stretching, and adopting different positions, including squatting, standing, bending forward, and lying on their side. Lowdermilk & Perry at 326, 328, 338. Being immersed in water, being massaged, acupressure, and acupuncture are all methods recommended to relieve some of the pain of labor. Id. at 346-347. When government officials, by the use of heavy shackles or other constraints, limit the movement of a birthing mother, those constraints inevitably reduce her ability to find relief from the pain of labor because they limit her ability to walk, stretch, and change position. She certainly cannot take a bath. Being unable to walk during labor is particularly serious because a woman cannot respond in the most effective manner to the enormous muscular contractions that overtake her body, and to the pain caused as her organs are stretched and distended by the fetuss descent. Lowdermilk & Perry at 338.

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In response to Mrs. Villegass onset of labor, Davidson County officials shackled her legs together with leg irons, and shackled her wrists together. Appellees Br. 16. She remained shackled until two hours before her son was born. Appellees Br. 18. Those actions exacerbated Mrs. Villegass pain and seriously interfered with her ability to lessen her own suffering. 2. Emotional suffering during labor and childbirth Labor and delivery are not only painful, they are also emotionally fraught and distressing for many women, even those who are overjoyed to be having the baby. When a womans water breaks and labor starts, she is likely to be afraid for the survival of her baby, of the pain she expects will strike during and after childbirth, and of risks to her own life and health. For a laboring mother, emotional distress is quite serious, because it can also harm her fetus. See Black v. Toys R U.S. Delaware, 2010 WL 4702344 (S.D. Tex. Nov. 10, 2010). Feeling that the fetus is

threatened can create a vicious cycle, in which a womans concern for her fetus exacerbates her emotional distress, which then further jeopardizes the fetus.

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Since the physical pain of labor and childbirth is already accompanied by emotional and psychological distress, intrusions by prison guards or other hostile state actors into the delivery room and into the process of childbirth unnecessarily add to her emotional suffering. In this case, while Mrs. Villegass uterine muscles were involuntarily contracting in an effort to push the baby out of her body, Metro shackled her legs together. She became overwhelmed with fear that since she could not open her legs, the baby would die inside her.9 Appellees Br. 21, 28. Even when, as here, the child ultimately survives, that is immaterial: the trauma is something from which a woman might never recover. In Mrs. Villegass case, this fear caused post-traumatic stress disorder, lasting phobia, and depression. Appellees Br. 28-29. Because giving birth is so difficult, all-consuming, and frequently so frightening, it is a time when many women rely on

Fear that the baby will die or be stillborn is not unreasonable: in the United States even today, more than 28,000 infants die before their first birthday. U.S. Department of Health & Human Services, Recent Trends in Infant Mortality in the United States, NCHS Data Brief No. 9 (Oct. 2008).
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their husbands or other intimate partners for essential support and aid during the hours of painful labor. The presence of this loving partner is vital for many womens to cope with the childbirth experience. Women who must give birth in a hostile environment are more likely to experience post-partum depression and to have difficulty bonding with their child. Gwen Stern & Laurence Kruckman, Multi-disciplinary perspectives on postpartum depression: An anthropological critique 17 Soc. Sci. & Med. 1027 (1983). Metro refused to allow Mrs. Villegas to even call her husband, so she was unable to give birth with him, or any family members or friends, present. Appellees Br. 7. Throughout the birthing process, from the onset of contractions until several days after the birth of her child, Mrs. Villegas was surrounded only by total strangers, one of whom, at all times, was a uniformed guard. The hostile environment that Metro created for Mrs. Villegas intensified her suffering.

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3. Physical pain in the post-partum period Women in the post-partum period experience many forms of serious pain. When, during childbirth, the woman pushes the babys head out of her vagina, the perineum (the tissue between her vagina and anus) can rip, or an obstetrician may make an incision called an episiotomy so that the babys head can come out. Lowdermilk & Perry at 338. In either case, the woman frequently requires perineal stitches after giving birth. Those stitches, and her genital area in general, are exceedingly sensitive and painful after birth. There is likely to be substantial vaginal bleeding. Women after giving birth are urged to walk around so as to avoid painful blood clots, which can be the size of grapes or even golf balls. Heidi Murkoff & Sharon Mazel, What to Expect When Youre Expecting, 382-430 (2002). Meanwhile, the uterus is contracting, causing painful cramping and spasms. Id. There is frequently so much pain in the groin area that it is painful to sit down, walk, or use the bathroom. Id. Women may contract painful hemorrhoids, which make having a bowel movement even more painful. Id. Hernias are common, and are also painful. Id. Showering and

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washing the genital area after childbirth is important so as to avoid painful infections. Thus, state actions interfering with a woman during this period are exceedingly likely to exacerbate pain and suffering. In this case, after Mrs. Villegas gave birth to her child, she was re-shackled and chained to the bed for two days. Her legs were shackled together while she used the bathroom and while she took a shower. Appellees Br. 18. Since walking after birth is already so painful given the trauma to the body, to shackle a woman with leg irons exacerbates that pain quite significantly. Shackles increase the pain of using the bathroom, which is already painful after giving birth. Moreover, the shackles impeded Mrs. Villegass ability to properly wash herself after giving birth, thus increasing her risk of painful infections. Appellees Br. 21. 4. Emotional pain in the post-partum period Holding the baby is an extremely important physiological and psychological need for many women who have just given birth. Lowdermilk & Perry, at 497. Mothers are encouraged to breastfeed, because breastfeeding causes the release of oxytocin,

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which in turn triggers the maternal-child bonding impulse and promotes uterine recovery. Lowdermilk & Perry, 455. At the same time, women after childbirth are emotionally exhausted and can experience depression or at least, feelings of inadequacy. Murkoff & Mazel at 382-430. The likelihood of post-partum depression is greatly increased if the woman is separated from her newborn and lacks family support after giving birth. Stern & Kruckman at 1027. Government actions that create obstacles for a woman who has just given birth to connect with her baby are likely to aggravate her distress during this already emotionally difficult period. The shackles prevented Mrs. Villegas from being able to adequately care for and bond with her baby. She needed to hold him and carry him around the room when he cried, but the shackles prevented her from being able to do so. She could neither rock him in his cradle nor change his diaper. Appellees Br. 21. Being unable to comfort her baby tormented her she tried not to move while she slept, so as to avoid waking him up, since she knew that if he cried she wouldnt be able to give him the comfort he needed. Id. The

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use of shackles to physically restrain a new mother from comforting her crying infant is exceptionally cruel. It also caused lasting emotional harm. Mrs. Villegas now suffers from posttraumatic stress disorder, major depression, and phobia.

Appellees Br. 21. Being shackled while trying to care for her son is a memory that impedes Mrs. Villegass ability to bond with and interact with her son, and it is especially severe on his birthday. Id. After two days of recovery in the hospital while shackled, Metro made Mrs. Villegas return to jail. She was not allowed to take her newborn infant with her. Appellees Br. 20. She did not know if and when her husband was able to pick him up at the hospital; and she did not know if and when she would ever be released from jail and reunited with her newborn. Taking away a womans baby right after birth is emotionally painful, especially given the increased risk of post-partum depression. See Stern & Kruckman. To take away a womans baby and not tell her if or when she will ever see him again is an unnecessary and wanton infliction of pain. Hudson, 503 U.S. at 5.

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5. Refusing to allow a postpartum woman to have a breast pump needlessly inflicts severe pain After a woman gives birth, her breasts fill with milk. If a woman is not nursing and has no way to express her breast milk, the breasts are likely to become rock hard and infected, which is exceedingly painful. See Appellees Br. 43. When government actors prohibit lactating women from having any way to express their breast milk, that causes severe, lingering, and acute pain, as this case illustrates. After Metro separated Mrs. Villegas from her newborn baby, it refused to allow her to take a breast pump back to jail from the hospital. Appellees Br. 20. Metro officials did this even though the breast pump was issued by the hospital and the hospital staff pleaded with Metro to let her have it. Id. Without a breast pump, Mrs. Villegas was unable to express her breast milk, which caused her to develop excruciatingly painful mastitis. Id. Denying a postpartum woman a breast pump is guaranteed to lead to serious suffering for days and weeks. That creates the kind of lingering pain that has long been unconstitutional to impose on prisoners. Weems v. United States, 217 U.S. 349, 373, 367 (1910). Moreover,

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being denied a breast pump caused her such excruciating pain that Mrs. Villegas had to ask another inmate to help express her milk. Appellees Br. 20. Reducing a woman to have to do such a thing is dehumanizing. Finally, Metros behavior in withholding a breast pump advanced no purpose. There is no possible set of facts that could make withholding a hospital-issued breast pump from a

postpartum mother reasonable. A breast pump, which is made of soft, bendable, clear plastic, is obviously not a weapon, and having a breast pump does not have anything to do with a detainees ability to flee. E. Bodily and Spiritual Privacy Egregious invasions of privacy are also forbidden by the Eighth Amendment. The constitution does not allow state actors to insist that detainees show them their genitals, absent an emergency. Frazier v. Ward, 426 F.Supp. 1354, 1365 (N.D.N.Y. 1977). The constitution forbids guards from watching prisoners of the opposite sex engaged in personal activities, such as undressing, using toilet facilities, or showering. Cumby v.

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Meachum, 684 F.2d 712, 714 (10th Cir.1982). If undressing, using the toilet, and showering are protected personal activities, then certainly giving birth to a baby is. Catholic teaching condemns unwanted intrusion into the birthing experience not only for the reasons discussed in section II(A), but also because Catholics, Evangelicals, and many other religious people prize modesty and privacy related to sexual organs and reproduction. Women are instructed not to expose their sexual organs to men outside the marital bed. Men are instructed to refrain from even looking at womens sexual body parts by a doctrine called custody of the eyes. R. Washbourne, The Works of the Seraphic Father St. Francis of Assisi, 254-255 (1882). Forcing a woman to expose her body to an unrelated man, especially during private and emotional moments, is forbidden by many religions, and is similarly offensive to common sense secular standards of decency. The birthing period is a time when this protection of intimate privacy is especially important. Women in the birthing period are undergoing an allconsuming experience during which their most private body parts

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 the vagina, pubic hair, the anus, and the breasts are exposed, and are quite literally out of the womans control. Women may scream, cry, grunt, and lose control of their bowels and urinary tract. Moreover, childbirth is fraught with meaning and

importance for the woman, making her privacy concern more significant than the (also legitimate, but less extreme) privacy concern of a person undergoing an ordinary medical procedure. Thus, only the woman giving birth has the privilege to decide who, other than medical professionals, may be present during this intimate, spiritual, sometimes embarrassing, sometimes

frightening time. Once labor begins, the birthing woman is powerless to stop the process. Lowdermilk & Perry at 326. Thus, when strangers refuse to leave the delivery room, the birthing woman has no ability to keep them from seeing her vagina and anus, from seeing her possibly lose control of her bowels, and from hearing her scream and cry. Women cannot choose to put on pants while having a baby. If prison officials refuse to leave, she is powerless

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to avoid being totally exposed. That exposure is particularly dehumanizing. A woman giving birth also needs respect for her emotional privacy. Birth is an intimate experience. The fathers presence is highly valued by some women, but many still prefer to give birth surrounded only with female relatives or female midwives. G.J. Ebrahim, Cross-cultural aspects of pregnancy and breast-feeding, 39 PROC. NUTR. SOC. 13 (1980). To have to give birth without any loved family members, but instead in the presence only of strangers, including hostile guards, can be deeply violating. To have to give birth in the presence of strange male guards is even more unusual, because for most of human history, men, including fathers, were not allowed to be present at births at all. Judy Barrett Litoff, The Midwife Throughout History, 27 J. NurseMidwifery 27, 5 (1982). Contemporary standards of decency do not permit third parties to be in the delivery room other than medical professionals and those to whose presence the woman has consented.

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Giving birth, for people of faith, also implicates ones relationship with God. Our society, including non-believers, does not permit unwanted third parties to intrude into moments of spiritual communion or family intimacy. See In re Grand Jury Investigation, 918 F.2d 374 (3d. Cir. 1990) (on clergy-communicant privilege and marital privilege). Third parties may not intrude into the confessional, nor should they intrude when a woman is giving life. Notwithstanding these universal standards of decency, strange and usually male law enforcement officers were present while Juana Villegas labored and gave birth. While they turned their backs while she initially changed clothes, this was purely at their whim. She could not keep herself from going through this personal, anguished, and exposed experience without unknown uniformed men there to see and hear everything. F. Dignity and Humiliation Underlying the [E]ighth [A]mendment is a fundamental premise that prisoners are not to be treated as less than human beings. Furman v. Georgia, 408 U.S. 238, 271-73 (1972). Thus, treatment that degrades and humiliates has long been prohibited.

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In 1881, corporal punishment was impugned by the State of Tennessee not just for being painful, but because it tended to degrade the individual and destroy the sense of personal honor. Cornell v. State, 74 Tenn. 624, 629-30 (1881). Catholic doctrine also affirms this basic right to dignity for all humans, including the incarcerated. Catholic teachings insist that even the incarcerated must be ensured the right to live in dignity. USCCB, Responsibility, Rehabilitation. Dehumanizing treatment of women during childbirth is thus highly offensive to the Catholic conception of innate human dignity. Because Catholic teachings view our identities as mothers, children, and fathers as primary, Catholic hospitals do not engage in practices that undermine the biological, psychological, and moral bonds between mothers and their children or between husbands and wives. USCCB, Ethical and Religious Directives for Catholic Health Care Services at 23. In the Catholic view, perverting the experience of childbirth by making a birthing mother feel like an animal or like a slave is gravely evil, poisons her family relationships, and insults the essence of our humanity.

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Shackling has long been known to be an especially humiliating affront to human dignity. See Hope v. Pelzer, 536 U.S. 730 (2002). Restraints may be allowed only if an exceptional security or penological reason exists; for example, a prison may be allowed to shackle non-pregnant, male inmates during visitations if they are convicted murderers who have also recently killed other inmates and prison guards. Spain v. Procunier, 600 F.2d 189, 197 (9th Cir. 1979) (Kennedy, J.). The inapplicability of that kind of rationale to the situation of a birthing mother is utterly obvious. Birthing women do not pose threats to anyone. A woman in labor is completely overwhelmed with pain, and is preoccupied with the impending childbirth, with fear, and with concern for her baby. She is entirely physically constrained by the labor. In the midst of labor she usually has difficulty walking any distance, let alone moving with any speed. A woman in labor could not conceivably elude a healthy adult corrections officer who is not in labor, and she knows that both she and the baby could be in danger if she left the hospital.

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After she has delivered her baby, a postpartum woman similarly poses no risk of flight. After giving birth the woman is totally exhausted and has difficulty walking due to the trauma, pain, bleeding, and swelling in her abdominal, back, and vulvar tissue. She will have sore muscles on her entire body and will likely have stitches on her perineum. Because even walking is painful during this time, running is out of the question. Any security concern could be addressed with one simple step: locking the door. Given the obvious harms posed by shackling and the extremely limited mobility of a birthing mother, no competing penological purpose is likely to exist in a case like this. See Nelson, 583 F.3d at 530 n.5. Shackling a woman in the throes of childbirth for security purposes is as unreasonable as shackling a person confined to a wheelchair. Every court to consider the issue of shackling birthing mothers has noted its degrading character. Id. Women who have been forced to labor while in shackles described the experience as making them feel like an animal. See Wash. Sen. Bill Report SB 6500 (Jan. 27, 2010) (An Act to Limit the Use of Restraints on

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Pregnant Women or Youth).

Subjecting male prisoners to

mandatory rectal exams has been held unconstitutional for that very reason: the treatment is reminiscent of that of livestock. Frazier v. Ward, 426 F. Supp. 1354, 1365 (N.D.N.Y. 1977). Shackling a woman during childbirth is qualitatively even more disturbing, though, because childbirth is already a process that can make the woman feel as though her body is out of her control. III. THE SCOPE OF THE CRUEL AND UNUSUAL PUNISHMENTS FORBIDDEN BY THE EIGHTH AMENDMENT DOES NOT VARY WITH AN INDIVIDUAL'S IMMIGRATION STATUS

The Eighth Amendments prohibition on cruel treatment of detainees and prisoners applies to everyone within the jurisdiction of the United States. There could be no double standard of cruelty depending on race, color, or religion: similarly, there can be no double standard of cruelty depending on citizenship status. Shackling of laboring women has been held unconstitutional when applied to convicted criminals.10 It is thus obviously harsh and

10

See Women Prisoners of D.C. Dept of Corr. v. District of Columbia, 877 F.Supp. 634, 668-69 (D.D.C. 1994); Nelson v.
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unreasonable, Bell, 441 U.S. at 599, when applied to a woman who has not been tried and convicted of any crime, and whose worst offense may have been lacking proper immigration documents. The Immigration and Nationality Act emphatically does not contain any provision requiring that pregnant women with irregular status be arrested and made to give birth in chains. Catholic teachings are exceedingly concerned with

mistreatment of immigrants and the politically unpopular, and reject the idea that prosperous nations would treat immigrants from poor countries with cruelty. See USCCB, Catholic Social Teaching on Immigration and the Movement of Peoples. These views are based in part on Jesuss story (I [Jesus] too was a stranger and you welcomed me, Matthew 25:35), which Catholics interpret as a command to be kind to immigrants. Regardless of their legal status, immigrants, like all persons, possess inherent human dignity that should be respected. USCCB, Strangers No Longer: Together on the Journey of Hope (2003).

Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009) (en banc); Brawley v. State of Washington, 712 F.Supp.2d 1208 (W.D.Wash.2010).
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Metros abuse of Mrs. Villegas violated a number of rights recognized both by the law and by faith-based standards of decency: the right to respect for vulnerable infant life, the right to respect for childbirth, the right to respect for families and motherhood, and the right to humane treatment for all, with no exceptions. CONCLUSION The judgment of the District Court should be affirmed. Respectfully submitted, /s/ Eric Schnapper Dated: May 9, 2012 Eric Schnapper Maureen Howard SCHOOL OF LAW UNIVERSITY OF WASHINGTON PO Box 353020 Seattle, WA 98195 Telephone: (206) 616-3167 Facsimile: (206) 685-4469 Email: schnapp@uw.edu

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Rebecca S. Jones 603 Pontius Ave North Seattle, WA 98109 Telephone: (425) 830-6211 Email: rsjones2@uw.edu

Attorneys for Amici Curiae

CERTIFICATE OF COMPLIANCE WITH RULE 37(a)(7)(c) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(d), which requires an amicus brief to be no longer than the length of the principal brief, because Rule 32(a)(7)(B) allows a principal brief in proportional typeface to contain up to 14,000 words. This brief contains 6,832 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally-spaced typeface using Word 2007 in 14 point Century Schoolbook. Dated: May 9, 2012
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/s/ Eric Schnapper

CERTIFICATE OF SERVICE I certify that this document has been served via the CM/ECF system upon the following this 10th day of May, 2012: Kevin C. Klein Allison L. Bussell METROPOLITAN DEPARTMENT OF LAW P.O. Box 196300 Nashville, Tennessee kevin.klein@nashville.gov allison.bussell@nashville.gov Phillip F. Cramer John L. Farringer IV William L. Harbison Ryan T. Holt SHERRARD & ROE, PLC 150 3rd Ave. South, Suite 1100 Nashville, Tennessee 37201 pcramer@sherrardroe.com jfarringer@sherrardroe.com bharbison@sherrardroe.com rholt@sherrardroe.com Elliott Ozment 1214 Murfreesboro Pike Nashville, Tennessee elliott@ozmentlaw.com /s/ Eric Schnapper

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