Stop Shackling and Detaining Pregnant Women Act

I 116TH CONGRESS 1ST SESSION H. R. 3563 To ensure the humane treatment of pregnant women by reinstating the presumption of release and prohibiting shackling, restraining, and other inhumane treatment of pregnant detainees, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 27, 2019 Ms. GARCIA of Texas (for herself, Mrs. CAROLYN B. MALONEY of New York, Ms. NORTON, Mr. ESPAILLAT, Mrs. KIRKPATRICK, Mr. CARSON of Indi- ana, Mr. GRIJALVA, Ms. ESCOBAR, Mr. CA´RDENAS, Mr. VARGAS, Ms. SHALALA, Ms. SCHAKOWSKY, Ms. WASSERMAN SCHULTZ, Mr. BLU- MENAUER, Ms. KAPTUR, Mrs. NAPOLITANO, Mr. JOHNSON of Georgia, Ms. MOORE, Mr. RUSH, Ms. ADAMS, Ms. TLAIB, Ms. MENG, Mr. GARCI´A of Illinois, Mr. GONZALEZ of Texas, Mr. NADLER, Mr. MCGOVERN, Ms. DEGETTE, Ms. DELAURO, Mr. HASTINGS, Ms. HAALAND, Ms. VELA´ZQUEZ, Mr. CISNEROS, Mr. POCAN, and Ms. OCASIO-CORTEZ) intro- duced the following bill; which was referred to the Committee on the Ju- diciary A BILL To ensure the humane treatment of pregnant women by reinstating the presumption of release and prohibiting shackling, restraining, and other inhumane treatment of pregnant detainees, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 2 •HR 3563 IH SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Stop Shackling and 2 Detaining Pregnant Women Act’’. 3 SEC. 2. LIMITATION ON DETENTION OF PREGNANT WOMEN 4 AND MOTHERS OF NEWBORNS. 5 (a) PRESUMPTION OF RELEASE.— 6 (1) IN GENERAL.—Except as provided in para- 7 graph (2), the Secretary— 8 (A) shall not detain a person under any 9 provision of the Immigration and Nationality 10 Act (8 U.S.C. 1101 et seq.) during pregnancy 11 or postpartum recovery, pending a decision with 12 respect to whether the person is to be removed 13 from the United States; and 14 (B) shall immediately release any detainee 15 found to be pregnant. 16 (2) EXCEPTIONS.—The Secretary may detain 17 pursuant to the Immigration and Nationality Act (8 18 U.S.C. 1101 et seq.) a person during pregnancy or 19 postpartum recovery under extraordinary circum- 20 stances in which the Secretary makes an individual- 21 ized determination that credible, reasonable grounds 22 exist to believe that the person presents an imme- 23 diate and serious threat of hurting herself or others. 24 (3) REMOVAL.—In a case in which detention is 25 the least restrictive means of effectuating the re- 26 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 3 •HR 3563 IH moval from the United States of a pregnant person 1 who is the subject of a final order of deportation or 2 removal, the Secretary may, solely for the purpose of 3 such removal, detain the pregnant person for a pe- 4 riod that is— 5 (A) the shortest possible period imme- 6 diately preceding the removal of the person 7 from the United States; and 8 (B) not more than 5 days. 9 (b) WEEKLY REVIEW REQUIRED.— 10 (1) IN GENERAL.—With respect to a detainee 11 detained under paragraph (2) of subsection (a), not 12 less frequently than once each week, the Secretary 13 shall conduct an individualized review to determine 14 whether the detainee continues to be subject to de- 15 tention under that paragraph. 16 (2) RELEASE.—In the case of a determination 17 under paragraph (1) that a pregnant detainee is not 18 subject to detention under subsection (a)(2), not 19 later than 1 day after the date on which the Sec- 20 retary makes the determination, the Secretary shall 21 release the detainee. 22 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 4 •HR 3563 IH SEC. 3. HUMANE TREATMENT OF PREGNANT WOMEN 1 WHILE IN DETENTION. 2 (a) PROHIBITION ON RESTRAINT OF PREGNANT DE- 3 TAINEES.— 4 (1) PROHIBITION.—Except as provided in para- 5 graph (2), a detention facility shall not use a re- 6 straint on a detainee— 7 (A) known to be pregnant, including dur- 8 ing— 9 (i) labor; 10 (ii) transport to a medical facility or 11 birthing center; and 12 (iii) delivery; or 13 (B) during postpartum recovery. 14 (2) USE OF RESTRAINTS FOR MEDICAL PUR- 15 POSES AND IN EXTRAORDINARY CIRCUMSTANCES.— 16 (A) IN GENERAL.—Notwithstanding para- 17 graph (1), subject to subparagraph (B), use of 18 a restraint on a detainee described in para- 19 graph (1) may be permitted only— 20 (i) for a medical purpose if the lead 21 medical staff of the detention facility who 22 is a licensed health care provider has or- 23 dered the use of the restraint for the med- 24 ical purpose; or 25 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 5 •HR 3563 IH (ii) in an extraordinary circumstance, 1 except for a medical purpose, in which the 2 facility administrator has ordered the use 3 of the restraint after making an individual- 4 ized determination that— 5 (I) credible, reasonable grounds 6 exist to believe the detainee presents 7 an immediate and serious threat of 8 hurting staff or others; or 9 (II) reasonable grounds exist to 10 believe the detainee presents an imme- 11 diate and credible risk of escape that 12 cannot be reasonably minimized 13 through any other method. 14 (B) REQUIREMENT FOR LEAST RESTRIC- 15 TIVE RESTRAINTS.—In the rare event of an ex- 16 traordinary circumstance described in subpara- 17 graph (A)(ii), only the least restrictive restraint 18 necessary shall be used, except that— 19 (i) if a doctor, nurse, or other health 20 professional treating a detainee described 21 in paragraph (1) requests that a restraint 22 not be used, the detention officer accom- 23 panying the detainee shall immediately re- 24 move any restraint; 25 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 6 •HR 3563 IH (ii) under no circumstance shall a leg, 1 waist, or four-point restraint be used; 2 (iii) under no circumstance shall a 3 wrist restraint be used to bind the hands 4 of a detainee described in paragraph (1) 5 behind her back or to another person; and 6 (iv) under no circumstance shall any 7 restraint be used on any detainee who is in 8 labor or delivery. 9 (3) RECORD OF EXTRAORDINARY CIR- 10 CUMSTANCES.— 11 (A) REQUIREMENTS.—If a restraint is 12 used on a detainee pursuant to paragraph 13 (2)(A), not later than 5 days after the date on 14 which the restraint was used, the facility ad- 15 ministrator shall— 16 (i) make a written finding that de- 17 scribes the extraordinary circumstance that 18 dictated the use of the restraint; and 19 (ii) submit the finding to the Director. 20 (B) RETENTION.— 21 (i) DETENTION FACILITY.—With re- 22 spect to a written finding under subpara- 23 graph (A)(i), the facility administrator 24 shall— 25 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 7 •HR 3563 IH (I) keep the finding on file at the 1 applicable detention facility for not 2 less than 5 years after the date on 3 which the restraint was used; and 4 (II) shall make the finding avail- 5 able for public inspection. 6 (ii) IMMIGRATION AND CUSTOMS EN- 7 FORCEMENT.—With respect to a written 8 finding submitted to the Director under 9 subparagraph (A)(ii), the Director shall 10 maintain the written finding and make the 11 finding available for public inspection. 12 (iii) PRIVACY.—With respect to a 13 written finding made available for public 14 inspection under clause (i) or (ii), the indi- 15 vidually identifying information of a de- 16 tainee shall not be made available for pub- 17 lic inspection without the prior written 18 consent of the detainee. 19 (b) PROHIBITION ON PRESENCE OF DETENTION OF- 20 FICERS.— 21 (1) IN GENERAL.—Except as provided in para- 22 graph (2), no detention officer shall be present in 23 the room during a pelvic exam, labor, delivery, or 24 treatment of any other symptom relating to a preg- 25 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 8 •HR 3563 IH nancy of a detainee, unless specifically requested by 1 medical personnel. 2 (2) EXCEPTION.—If the presence of a detention 3 officer is requested by medical personnel, the deten- 4 tion officer shall— 5 (A) be female, if practicable; and 6 (B) remain at a reasonable distance from 7 the detainee and toward her head to protect her 8 privacy. 9 (3) USE OF RESTRAINTS.—If a restraint is used 10 on a detainee pursuant to subsection (a)(2)(A), a de- 11 tention officer shall remain immediately outside the 12 room at all times so that the officer may promptly 13 remove the restraint if requested by medical per- 14 sonnel, as required by subsection (a)(2)(B)(i). 15 (c) ACCESS TO SERVICES.—A pregnant detainee shall 16 have access to health care services, including comprehen- 17 sive services relating to reproductive health care and preg- 18 nancy, including— 19 (1) routine or specialized prenatal care; 20 (2) comprehensive counseling and assistance; 21 (3) postpartum follow-up; 22 (4) lactation services; and 23 (5) abortion services. 24 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 9 •HR 3563 IH SEC. 4. REPORTING; RULEMAKING. 1 (a) REPORTS.— 2 (1) REPORTS BY FACILITY ADMINISTRATORS.— 3 Not later than 30 days after the end of each quarter 4 of a fiscal year, the facility administrator of each de- 5 tention facility that detained a pregnant detainee 6 during the quarter shall submit to the Secretary a 7 written report that includes, with respect to the 8 quarter, the following: 9 (A) An account of every instance of the 10 use of a restraint on a pregnant detainee, in- 11 cluding the justification for such restraint and 12 the name of the facility administrator who 13 made the individualized determination under 14 section 3(a)(2)(A)(ii). 15 (B) The number of pregnant detainees 16 held at the facility. 17 (C) The average length of detention of 18 pregnant detainees. 19 (D) The number of pregnant detainees de- 20 tained longer than 15 days. 21 (E) The number of pregnant detainees de- 22 tained longer than 30 days. 23 (2) AUDIT AND REPORTS BY SECRETARY.—Not 24 later than 90 days after the end of each fiscal year, 25 the Secretary shall— 26 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 10 •HR 3563 IH (A) complete an audit of the information 1 submitted under subparagraphs (B) through 2 (E) of paragraph (1); and 3 (B) submit to the appropriate committees 4 of Congress a report that includes all of the in- 5 formation submitted to the Secretary under 6 paragraph (1), disaggregated by facility. 7 (3) PRIVACY.—A report submitted under this 8 subsection shall not contain the individually identi- 9 fying information of any detainee. 10 (4) PUBLIC INSPECTION.— 11 (A) IN GENERAL.—Except as provided in 12 subparagraph (B), a report submitted under 13 this subsection shall be made available for pub- 14 lic inspection. 15 (B) FACILITY ADMINISTRATOR.—A report 16 submitted under this subsection that is made 17 available for public inspection shall not contain 18 the name of the facility administrator otherwise 19 included under paragraph (1)(A). 20 (b) RULEMAKING.—The Secretary and the Attorney 21 General shall adopt regulations or policies to carry out this 22 Act at every detention facility. 23 SEC. 5. DEFINITIONS. 24 In this Act: 25 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 11 •HR 3563 IH (1) APPROPRIATE COMMITTEES OF CON- 1 GRESS.—The term ‘‘appropriate committees of Con- 2 gress’’ means— 3 (A) the Committee on the Judiciary and 4 the Committee on Appropriations of the Senate; 5 and 6 (B) the Committee on the Judiciary and 7 the Committee on Appropriations of the House 8 of Representatives. 9 (2) DETAINEE.—The term ‘‘detainee’’ includes 10 any adult or juvenile person detained by any Fed- 11 eral, State, or local law enforcement agency (includ- 12 ing under contract or agreement with such agency) 13 under the Immigration and Nationality Act (8 14 U.S.C. 1101 et seq.). 15 (3) DETENTION FACILITY.—The term ‘‘deten- 16 tion facility’’ means a Federal, State, or local gov- 17 ernment facility, or a privately owned and operated 18 facility, that is used, in whole or in part, to hold in- 19 dividuals under the authority of the Director of U.S. 20 Immigration and Customs Enforcement or the Com- 21 missioner of U.S. Customs and Border Protection, 22 including a facility that— 23 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 12 •HR 3563 IH (A) holds such individuals under a contract 1 or agreement with the Director or Commis- 2 sioner; or 3 (B) is used, in whole or in part, to hold in- 4 dividuals pursuant to an immigration detainer 5 or similar request. 6 (4) DETENTION OFFICER.—The term ‘‘deten- 7 tion officer’’ means an individual who works at a de- 8 tention facility, including an individual who works at 9 a detention facility pursuant to contract or sub- 10 contract. 11 (5) DIRECTOR.—The term ‘‘Director’’ means 12 the Director of U.S. Immigration and Customs En- 13 forcement. 14 (6) FACILITY ADMINISTRATOR.—The term ‘‘fa- 15 cility administrator’’ means the official who is re- 16 sponsible for oversight of a detention facility or the 17 designee of such official. 18 (7) POSTPARTUM RECOVERY.—The term 19 ‘‘postpartum recovery’’ means the 6-week period, or 20 longer, as determined by the licensed health care 21 provider of a person, following delivery, including the 22 entire period during which the person is in a medical 23 facility, birthing center, or infirmary after birth. 24 VerDate Sep 11 2014 05:35 Jul 10, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3563.IH H3563 rfrederick on DSKBCBPHB2PROD with BILLS 13 •HR 3563 IH (8) RESTRAINT.—The term ‘‘restraint’’ means 1 any physical restraint or mechanical device used to 2 control the movement of the body or limbs of a de- 3 tainee’s body, including— 4 (A) flex cuffs; 5 (B) soft r [Text truncated for display. 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