Like many women, Monique Hidalgo, 33, simply wanted to breastfeed her 5-week-old baby, Isabella. Not as simply, Hidalgo is an inmate at a state prison in New Mexico. Hidalgo, who had breastfed her previous children, desired to breastfeed when the baby’s father brought her to the prison for weekend visits. But the guards would not allow it. Nor would they allow her access to an electric breast pump and outlet to provide breastmilk to her baby in-between visits. So Hidalgo filed a lawsuit against the Department of Corrections, its officials and two guards seeking an injunction against the policy banning incarcerated mothers in New Mexico state prisons from breastfeeding their infants.
She won.
A Santa Fe judge submitted the written order last month, ruling that the Corrections Department policy was unconstitutional. In fact, the judge said all mothers incarcerated in state prisons—like all New Mexico mothers- have a fundamental and protected right to breastfeed their infants and a Corrections Department policy banning breastfeeding was in violation of the state constitution. The Judge also ordered the Corrections Department to allow access to an electric pump, another practice the agency had prohibited.
The ruling is significant for future generations of incarcerated mothers and their babies in New Mexico but also holds nationwide ramifications for the growing number of incarcerated mothers in the U.S. prison system. The number of women incarcerated in the U.S. rose more than 700% between 1980 and 2014, according to The Sentencing Project. Yet, most prisons have no stated breastfeeding policy.
“While there have been many cases, both in federal and state court, affirming a woman’s right to breastfeed in a public place or at work, incarcerated women have largely been left out of this conversation,” said Amber Fayerberg, Ms. Hidalgo’s lead counsel, at Freedman Boyd Hollander Goldberg Urias & Ward, whose firm is working the case pro-bono. “This case acknowledges that incarcerated women are not just “inmates,” but women and, often, mothers,” Fayerberg said in an email interview.
But is society ready to accept breastfeeding as a basic right that should not be lost due to criminal activity? In a country where women struggle to breastfeed, being able to breastfeed feels more akin to a privilege. When something is viewed as a privilege then subjective lines are drawn about who deserves to breastfeed. A privilege must be earned or it is given to only select people. Dangerous stereotypes about who actually cares about giving the best infant nutrition for their child also show up. Mothers in prison have long suffered under a social stigma— a shortsighted view that any mother who is incarcerated is by definition a “bad mother” who should not be afforded the same rights of law abiding citizens.
Those flash judgments don’t take into account how women typically end up in prison, nor does it consider the role of racism and poverty play in access to drugs and recovery programs. America’s prescription drug problem, including opioids, as Ms. Hidalgo was suffering from, are hitting women hard, while support services decrease. About two thirds of women serve time for non-violent offenses, according to data from John Jay’s Prisoner Reentry Institute, and more than 60% are mothers of children under age 18. About 6% of women are pregnant at the time of arrest, according to the Institute.
“Unfortunately, society is pretty punitive even with non-violent offenders, with little knowledge of circumstances people find themselves in and the most common pathways to prison for women,” says Gail Smith, director of the Women in Prison Project at The Correctional Association of New York, a non-profit that monitors women’s prison facilities.
“In general, reproductive justice stops at the prison door,” says Amy Fettig, Deputy Director, ACLU National Prison Project, in a recent phone interview, noting that most reproductive rights and breastfeeding advocates have been slow moving in raising voices for incarcerated women.
Recently, another a bright spot: The Dignity for Incarcerated Women’s Act was introduced in the Senate by Corey Booker (D-NJ), with support from Senators Elizabeth Warren and other Democrats. The bill would require federal prisons to supply women with free tampons and pads, would prevent pregnant women from being shackled or placed in solitary confinement, and would extend inmates’ visiting hours with their children, among other improvements.
The federal bill and recent ruling are early steps to address an overdue sentiment that incarceration does not mean you should be denied basic human dignity. And in the case, of the New Mexico ruling an even bigger consideration: In our culture’s earnestness to punish mothers, we are actually also punishing innocent children. Newborn infants, are being denied, through no fault of their own, the many preventative health benefits that breastmilk provides. Should infants who are already being deprived of their mother also be sentenced to not receiving the benefits of breastfeeding and some connection to their mothers?
And researchers are increasingly learning that the bonding of breastfeeding is also preventive medicine for the mother too. Skin-to-skin contact cements the mother-baby connection in the critical earliest months of life, and even the chance to pump and provide milk can promote maternal attachment. Experts agree that for prisoners, who already have been cut off from their communities in such an adverse way, the mother-baby bond could be a key path to reconnection, increasing their chances of avoiding re-offense and recidivism.
“At some point you have to ask yourself, is your first priority to punish people and ruin their lives or would you like them to come out better able to parent their children, better able to re-enter the community?” Smith says.
Even more so, mounting evidence proves that what opioid-dependent babies need most is what has been taken away: a mother. Recent studies show that separating newborns in withdrawal can slow the infants’ recovery. When mothers are able to remain with their babies, infants in withdrawal require less medication and fewer costly days in intensive care.
“Mom is a powerful treatment,” said Dr. Matthew Grossman, a pediatric hospitalist at Yale-New Haven Children’s Hospital who has studied the care of opioid-dependent babies, in a recent article in the New York Times.
If we know from scientific evidence that the early months of a baby’s life are so critical to future development and that a strong maternal connection plays an important part in that development, then minimizing separation of incarcerated mothers and their babies should be a societal goal. It is not something to be fought and debated on the grounds of constitutional legality, but should be socially determined as an inalienable right of every helpless infant who deserves to have the best start in life. We’re not improving child development outcomes or our communities by depriving infants of bonding and the preventative health benefits of breastmilk. We are simply convicting innocent and already-disadvantaged infants, further crippling them just hours after they leave the womb.