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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 SHERIFF’S OFFICE,
Defendant/Appellant,
On Appeal from the United States District Court for the
Middle District of Tennessee
(No. 09-00219)

BRIEF OF AMICI CURIAE
IN SUPPORT OF APPELLEE AND
AFFIRMANCE OF THE DISTRICT COURT’S ORDER
Paul W. Ambrosius
TRAUGER & TUKE
222 Fourth Avenue North
Nashville, Tennessee 37219-2117
(615) 256-8585

Yasmin Z. Vafa
HUMAN RIGHTS PROJECT FOR
GIRLS
1225 Eye Street N.W., Suite 600
Washington, District of Columbia 20005
(202) 709-7451

Attorneys for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT
Each of the amici curiae herein is either an individual or a not-for-profit
organization. None has any parent corporation. None has any capital stock held by
a publicly traded corporation.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ……………………………………ii
TABLE OF AUTHORITIES ……………………………………………………....v
DESCRIPTION OF AMICI CURIAE ………………………………………….......x
INTRODUCTION …………………………………………………………………1
ARGUMENT ………………………………………………………………………2
I.

INTERNATIONAL LAW IS RELEVANT TO THE ISSUES BEFORE
THIS COURT……………………………………………………………2

II.

THE PRACTICE OF SHACKLING PREGNANT WOMEN AT ANY
TIME DURING THE BIRTHING PROCESS VIOLATES MODERN
STANDARDS OF DECENCY AND CONSTITUTES CRUEL,
INHUMAN, AND DEGRADING TREATMENT…….………………...4

A. The Shackling of Pregnant Women During the Birthing Process is a
Violation of International Law and the International Human Rights
Framework …………………………………………………………...4

B. The Practice of Shackling Pregnant Prisoners During the Birthing
Process Has Been Banned in Several States Throughout the United
States Demonstrating Contemporary and Evolving Standards of
Decency Among the States ……………………………………...10-11
CONCLUSION …………………………………………………………………..13
CERTIFICATE OF COMPLIANCE …………………………………………….14
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CERTIFICATE OF SERVICE …………………………………………………..15

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TABLE OF AUTHORITIES
CASES
Atkins v. Virginia, 536 U.S. 304 (2002) …………………………………………...8
Austin v. Hopper, 15 F. Supp. 2d 1210 (M.D. Ala. 1998) …………………………9
Crain v. Bordenkircher, 342 S.E.2d 422 (W.Va. 1986) …………………………...9
Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392 (2nd
Cir. 1975) …………………………………………………………………...8
Enmund v. Florida, 458 U.S. 782 (1982) ………………………………………….3
Estelle v. Gamble, 429 U.S. 97 (1976) …………………………………………….8
Everson v. Mich. Dep't of Corr., 222 F. Supp. 2d 864 (E.D. Mich. 2002) ………...8
Jones v. Wittenberg, 440 F. Supp. 60 (N.D. Ohio 1977) …………………………..9
Jordan v. Arnold, 408 F. Supp. 869 (M.D. Pa. 1976) …………………………......9
Kane v. Winn, 319 F. Supp. 2d 162 (D. Mass. 2004) ……………………………...9
Knight v. Florida, 528 U.S. 990 (1999) ……………………………………………3
Lareau v. Manson, 507 F. Supp. 1177 (D. Conn. 1980) …………………………..8
Lawrence v. Texas, 539 U.S. 558 (2003) ………………………………………..6-7
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) ………………2
Morgan v. LaVallee, 526 F.2d 221 (2nd Cir. 1975) ……………………………….8
Roper v. Simmons, 543 U.S. 551 (2005) ………………………………………..3, 8
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Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) ……………………………………..2
Thomas v. Baca, 514 F. Supp. 2d 1201 (C.D. Cal. 2007) ……………………….8-9
Thompson v. Oklahoma, 487 U.S. 815 (1988) …………………………………….3
Williams v. Coughlin, 875 F. Supp. 1004, 1013 (W.D.N.Y. 1995) ………………..9
Villegas v. Metropolitan Government of Davidson County, 789 F. Supp. 2d 895
(M.D. Tenn. 2011) …………………………………………………………..4
CONSTITUTIONS AND STATUTES
2012 Ariz. Sess. Laws 43 ………………………………………………………...11
Cal. Penal Code § 3423, 5007.7 (Deering 2012); Cal. Welf. & Inst. §§ 222, 1774
(Deering 2012) …………………………………………………………….11
Colo. Rev. Stat. §§ 17-1-113.7 (2011); 17-26-104.7 (2011); 19-2-924.7 (2011); 261-137 (2011); 31-15-403 (2011) ………………………………………..…..11
2012 Fla. Sess. Law. Serv. Ch. 2012-41 (West) ………………………………….11
Haw. Rev. Stat. Ann. § 353-122 (LexisNexis 2012) ……………………………..11
Idaho Code Ann. §§ 20-901, 20-902, 20-903 (2012) …………………………….11
55 Ill. Comp. Stat. Ann. 5/3-15003.6 (LexisNexis 2012); 730 Ill. Comp. Stat. Ann.
125/17.5 (LexisNexis 2012) ………………………………………………..11
N.M. Stat. Ann. § 33-1-4.2 (LexisNexis 2012) …………………………………..11
N.Y. Correction Law § 611 (LexisNexis 2012) ………………………………….11
AB 408 (2011) ……………………………………………………………………11

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61 Pa. Cons. Stat. Ann. §§ 5905, 1758 (LexisNexis 2012) ………………………11
R.I. Gen. Laws § 42-56.3-1 (2012) ……………………………………………….11
Second Chance Act of 2008, Pub. L. No. 110-199, 122 Stat. 657 (2008) ………..12
Tex. Gov’t Code Ann. § 501.066 (LexisNexis 2012); Tex. Hum. Res. Code §
244.0075 (LexisNexis 2012); Tex. Loc. Gov’t Code Ann. § 361.082
(LexisNexis 2012) ………………………………………………………….11
United States Constitution art. VI ………………………………………………….5
Vt. Stat. Ann. tit. 28, § 801a (2012) ……………………………………………...11
Wash. Rev. Code Ann. § 72.09.651 (LexisNexis 2012) …………………………11
W. Va. Code Ann. § 25-1-16 (LexisNexis 2011), W. Va. Code Ann. § 31-20-30a
(LexisNexis 2011), W. Va. Code Ann. § 49-5E-6 (LexisNexis 2011) ……..11
INTERNATIONAL LEGAL AUTHORITIES
Avci and Others v. Turkey, App. No. 77191/01 (ECHR Apr. 16, 2007) …………..8
Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 46, 39, U.M. GAOR Supp. (No. 51), U.N. Doc. 10
A/39/51 (1984) ………………………………………………………….4, 10
Convention on the Elimination of All Forms of Discrimination Against Women
art. 12(2), Mar. 1, 1980, 1249 U.N.T.S. 13 …………………………………9
European Convention for the Protection of Human Rights and Freedoms, Nov. 4,
1950, 213 U.N.T.S. 221 ………………………………………………...7, 10
Henaf v. France, App. 65436/01 (ECHR Feb. 27, 2004) ………………………….8
International Covenant on Civil and Political Rights, art. 7, GA res. 2200A (XXI),
21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) ……5-6, 10
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International Covenant on Economic, Social and Cultural Rights, art. 10(2), Dec.
16, 1966, U.N.T.S. 3 ………………………………………………………..9
Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 25(2), U.N.
Doc. A/810 (1948) ………………………………………………………..3, 9
United Nations Committee Against Torture, Conclusions and Recommendations:
United States of America, ¶ 33 U.N. Doc. CAT/C/USA/CO/2 (2006) …..5-6
United Nations High Commissioner for Human Rights, Status of Ratifications of
the Principal International Human Rights Treaties 12, available at
http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?OpenFrameSet ……………...4
United Nations Human Rights Committee, Concluding Observations: United States
of America, 87th Sess., ¶ 33, U.N. Doc. CCPR/C/USA/CO/3/Rev. 1 (2006)
……………………………………………………………………………….6
United Nations Standard Minimum Rules for the Treatment of Prisoners, U.N.
Doc. A/CONF/1 Annex 1, E.S.C. res. 663C, U.N. ESCOR, 24th Sess., Supp.
No. 1, U.N. Doc. E/3048…………………………………………………8-10
Vienna Convention on the Law of Treaties art. 19, Jan. 27, 1980, 1155 U.N.T.S.
331 ……...…………………………………………………………………...5

OTHER AUTHORITIES
Amnesty International USA Report, Abuse of Women in Custody: Sexual
Misconduct and Shackling of Pregnant Women (2008) …………………...12
Arkansas Department of Corrections Administrative Directive 04-08 (2004) …...12
Oklahoma Department of Corrections, “Security Standards for Transportation of
Offenders,” Operation Policy No. 040111 ………………………………...12
Oregon Department of Corrections, Policy No. 40.1.1 (H)(1)(d), available at
http://www.oregon.gov/DOC/PUBSER/rules_policies/docs/40.1.1.pdf …..12

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Martha F. Davis, International Human Rights and United States Law: Predictions
of a Courtwatcher, 64 Alb. L. Rev. 417 (2000) …………………………….3
Press Release, New York University, European Court Members and Four U.S.
Supreme Court Justices to Discuss Current European and U.S.
Constitutional Issues, at 2 (Mar. 27, 2000), available at
www.nyu.edu/publicaffairs/newsreleases/b_EUROP.shtml ..........................7
Ruth Bader Ginsburg & Deborah Jones Merritt, Fifty-First Cardozo Memorial
Lecture – Affirmative Action: An International Human Rights Dialogue, 21
Cardozo L. Rev. 253 (1999) ………………………………………………...3
Sandra Day O’Connor, Broadening Our Horizons: Why American Lawyers Must
Learn About Foreign Law, 45 Fed. Lawyer 20 (1998) …………………...3-4
Sandra Day O’Connor, Federalism of Free Nations, reprinted in International Law
Decisions in National Courts 13, 15-16 (Thomas M. Franck & Gregory H.
Fox eds., 1996) ……………………………………………………………...2
U.S. Dep’t of Justice, Federal Bureau of Prisons, Program Statement: Escorted
Trips, at § 11 (Oct. 6, 2008) ……………………………………………….12
William Rehnquist, Constitutional Courts –Comparative Remarks (1989),
reprinted in Germany and its Basic Law: Past, Present and Future –A
German-American Symposium 411 (Paul Kirchhof & Donald P. Kommers
eds., 1993) ………………………………………………………………......7

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DESCRIPTION OF AMICI CURIAE
Amici curiae submit this brief because they are deeply concerned about the
practice of shackling pregnant women in jails, prisons, and detention centers. They
believe that the shackling of pregnant women at any point during the birthing
process is a degrading and inhumane practice that endangers the health and safety
of mothers and their children and constitutes a violation of U.S. evolving standards
of decency and international human rights law. The following individuals and
organizations join this brief as amici curiae:
Amicus Curiae National Women’s Law Center (“NWLC”) is a
Washington, D.C. based nonprofit organization with a longstanding commitment
to equality on the basis of sex, and the constitutionally protected freedoms of
liberty, privacy and bodily integrity. NWLC advances and supports both state and
federal policies that promote public health, and opposes policies that hinder access
to health care, including prenatal, childbirth and postpartum care. As a result,
NWLC has a long history of promoting and defending women’s reproductive
rights by filing amicus curiae briefs in major cases at the federal and state levels.
Amicus Curiae The National Immigration Law Center (“NILC”) is a
nonprofit national legal advocacy organization whose mission is to defend and
promote the rights and opportunities of low-income immigrants and their family
members. NILC has earned a national leadership reputation for its expertise in the
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due process rights of immigrants, including the rights of detained noncitizens and
in protecting access to health care for immigrants. Ensuring immigrants are treated
fairly, have a right to due process, that they receive humane treatment while in
detention, and are able to access health care are priorities for the organization.
Because the outcome of this case may affect the ability of low-income immigrant
women to obtain humane treatment and access to health care during immigration
detention by local law enforcement, NILC has a fundamental interest in this case.
Amicus Curiae The National Crittenton Foundation (“NCF”) and its
family of agencies support girls, young women, and their families living at the
margin of the American dream overcome major obstacles rooted in circumstances
not of their own making. NCF and the 26 members of the Crittenton family of
agencies use a social justice approach to support young girls and women at the
margin to thrive, build skills, break destructive cycles and become powerful agents
of personal and social change. At the core of NCF’s work is the mandate to address
the profound impact of root causes, such as sexism, racism, poverty and violence
in the lives of girls and young women.
Amicus Curiae The Yale Law School Allard K. Lowenstein International
Human Rights Law Clinic (“IHRLC”) is a legal clinic that undertakes a wide
variety of projects on behalf of human rights organizations and individual victims
of human rights abuse. The goals of the clinic are to provide students with
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practical experience that reflects the range of activities in which lawyers engage to
promote respect for human rights, to help students build the basic knowledge and
skills necessary to be effective human rights lawyers and advocates, and to
contribute to efforts to protect human rights through valuable, high-quality
assistance to appropriate organizations and individual clients. We support the
Human Rights Project for Girls’ Villegas amicus brief and believe that shackling
pregnant women during labor and delivery constitutes a violation of international
human rights.
Amicus Curiae The University of California, Hastings College of the Law
Center for Gender & Refugee Studies (“CGRS”) protects the fundamental
human rights of refugee women, children, LGBT individuals and others who flee
persecution in their home countries. CGRS was founded in 1999 by Professor
Karen Musalo, who has litigated several of the most significant women’s refugee
cases of the last 15 years. Through its scholarship, expert consultations, and
litigation, CGRS has played a central role in the development of United States
immigration law and policy related to the protection of women, including detained
asylum seekers. CGRS has a direct interest in the worldwide protection of women
and girls from human rights violations, in accordance with international law.
Amicus Curiae Human Rights Advocates (“HRA”) is a human rights
organization based in Berkeley, California. They are dedicated to promoting and
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protecting international human rights in the United States and abroad. HRA
participates actively in the work of various United Nations human rights bodies,
particularly, the United Nations Council on Human Rights, the Commission on the
Status of Women, the Commission on Sustainable Development, and several treaty
bodies, including the Human Rights Committee and the Committee on the
Elimination of all Forms of Racial Discrimination. HRA addresses the panoply of
human rights issues, including minority and bodies on the human rights aspects of
such issues as: minority and peoples’ rights; the rights of the child; juvenile
criminal sentencing; trafficking in women and children; migrant worker rights; the
right to housing; the right to food; affirmative action; corporate accountability; and
human rights and the environment.
Amicus Curiae The National Association of Women Lawyers (“NAWL”),
founded in 1899, is the nation’s oldest women’s bar association and the only
national women’s bar association. NAWL is devoted to the interests of women
lawyers as well as all women. Through its members, committees and the
Women’s Law Journal, it provides a collective voice in the bar, courts, Congress
and the workplace. NAWL stands committed to ensuring equality and fairness for
women. Through its legislative and amicus work, NAWL has been a strong and
clear voice for the protection of women from abuse. By signing on to this amicus
brief, NAWL voices its opposition to the shackling of female prisoners during
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labor and delivery and the deprivation of necessary treatments and devices to
ensure a safe and healthy recovery from the birthing process.
Amicus Curiae Law Students for Reproductive Justice (“LSRJ”) trains
and mobilizes law students and new lawyers across the country to foster legal
expertise and support for the realization of reproductive justice. We believe that
reproductive justice will exist when all people can exercise the rights and access
the resources they need to thrive and to decide whether, when, and how to have
and parent children with dignity, free from discrimination, coercion, or violence.
As such, we believe that shackling imprisoned pregnant women at any point during
the labor process is a degrading and inhumane practice that endangers the health
and safety of mothers and their children and constitutes a violation of evolving
standards of decency in the U.S. and international human rights laws.
Amicus Curiae Justice Now (“JN”) is an innovative legal and human rights
organization representing people in California’s prisons. The majority of JN’s
legal clientele is imprisoned in California’s women’s prisons. Annually, JN
provides legal assistance, advice, and referrals to over 2,000 people imprisoned in
California’s women’s prisons in an array of legal areas, including healthcare
access, sentence recall and reconsideration, and defense of parental rights. In 2003,
JN launched their Human Rights Documentation Program, a legal project that
partners with people in women’s prisons to educate the public on how prisons
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damage communities of color, and to challenge policies harming people in prison
and their families. JN provides information on human rights law and
documentation to people in women’s prisons and collaborates with them to
document human rights abuses in prison under international law, and to produce
and publicize reports on prison conditions. JN is currently focusing this work on
abuses impacting reproductive health and the right to family. JN supports both the
legal arguments contained in this brief and an end to the shackling of people who
are pregnant and in prison.
Amicus Curiae National Latina Institute for Reproductive Health
(“NLIRH”) is a reproductive justice and human rights organization based in New
York City, with a policy office in Washington, D.C. and grassroots Latina
Advocacy Networks (LANs) in five states. NLIRH is the only national
organization working on behalf of the reproductive health and justice of the 20
million Latinas, their families, and communities in the United States through
public education, community mobilization, and policy advocacy. The Latina
Institute recognizes the use of shackles before, during, and after delivery as a
dehumanizing attack on women that is felt particularly acutely by women of color.
As such, NLIRH has been active in efforts to bring health, dignity, and justice to
women who are in detention—these efforts have included work on the 2012
Performance-Based National Detention Standards, which address the use of
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restraints on female immigration detainees during pregnancy, labor, delivery, and
post-delivery and which NLIRH hopes will prevent another woman from suffering
the pain and degradation experienced by Ms. Villegas.
Amicus Curiae Legal Voice (“LV,” formerly known as the Northwest
Women’s Law Center) is a regional nonprofit public interest organization that
works to advance the legal rights of all women through litigation, legislation,
education, and the provision of legal information and referral services. Since its
founding in 1978, LV has been involved in both litigation and legislation to ensure
equal treatment and equal protection for women under the law, including women’s
equitable access to health care. Toward that end, LV has participated as counsel
and as amicus curiae in cases throughout the Northwest and the country involving
the rights of incarcerated women, and has been a regional leader in ending the
practice of shackling pregnant incarcerated women through both litigation and
successful efforts to pass a law restricting the practice of shackling incarcerated
women in all correctional institutions in Washington State. LV believes the
shackling of pregnant women during the process of childbirth is a barbaric practice
that not only risks women’s health, safety and dignity, but also violates both U.S.
and international human rights laws. LV continues to serve as a regional expert
and leading advocate in litigation and in legislative efforts on a variety of genderrelated issues.
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Amicus Curiae The Human Rights Defense Center (“HRDC”) is a
Washington State nonprofit, charitable corporation headquartered in Vermont that
publishes a nationally distributed monthly journal called Prison Legal News
(PLN). Since 1990, PLN has reported on news, judicial decisions, and other
developments relating to the civil and human rights of prisoners in the United
States and abroad. Approximately sixty-five percent of PLN subscribers are state
and federal prisoners and the remainder are attorneys, judges, advocates,
journalists, academics and concerned citizens. In addition to publishing PLN and
non-fiction reference books, HRDC regularly litigates First Amendment issues in
federal courts nationwide, challenging prison and jail officials who censor PLN,
seeking public records from government agencies and also providing
representation in select prisoner cases. The core of HRDC’s mission is public
education, advocacy and outreach on behalf of prisoners and in furtherance of their
basic human rights. HRDC is particularly concerned about the violation of the
human rights of pregnant prisoners when they are shackled during labor and
delivery.
Amicus Curiae The Woodhull Sexual Freedom Alliance (“WSFA”) has a
mission to affirm sexual freedom as a fundamental human right. WSFA works to
eliminate shackling of incarcerated women in labor – most recently in Florida –
believing that not only have the courts ruled that shackling is a violation of the
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United States Constitution, but that shackling is also a violation of International
Human Rights Treaties and Conventions to which the United States is committed.
Amicus Curiae Women on the Rise Telling HerStory (“WORTH”) is an
advocacy/consultant group comprised of currently and formerly incarcerated
women, who have the expertise and understanding to engage, navigate and
challenge policy and perceptions concerning incarcerated women. WORTH is a
visible and powerful voice for women of this population in public conversations
and policy debates. WORTH members are confident and effective communicators.
We are sought after as experts who speak on issues of critical importance to
incarcerated women and their families. WORTH transforms the lives of women
affected by incarceration and changes public perception and policy.
Amicus Curiae Healthy Teen Network (“HTN”) has been making a
difference in the lives of teens and young families since its founding in 1979.
HTN is the only national membership network that serves as a leader, a national
voice, and a comprehensive educational resource to professionals working in the
area of adolescent reproductive health - specifically teen pregnancy prevention,
teen pregnancy, teen parenting and related issues. HTN is uniquely able to have an
impact on a large number of teens and young families because of its
comprehensive approach and its direct and immediate links to a grassroots network
of reproductive health care professionals throughout our nation's
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communities. HTN is interested in this case because of the high rate of pregnant
and parenting teens in the juvenile system. HTN believes all young people should
be treated with dignity and respect - especially pregnant and parenting teens. The
use of shackles and restraints during the delivery process is both morally
objectionable and cruel as well as completely nonsensical given the nature of a
woman during birth makes it unlikely for risk of flight or harm to correctional
officers.
Individual Amici Curiae: Margaret B. Drew, Visiting Prof. of Clinical
Instruction, Acting Director, Domestic Violence Clinic, University of Alabama
School of Law.

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INTRODUCTION
The use of shackles to restrain a pregnant woman during the birthing process
is a degrading and inhumane practice that inflicts both extreme pain and
degradation on the mother. Moreover, the use of these restraints poses severe risks
to the health and safety of mothers and children during the birthing process as well
as postpartum. This barbaric practice is condemned not only by the entire medical
community, but by leading public health associations, federal and state law, a
multitude of state correctional departments, as well as international treaties and
conventions.
In this case, Juana Villegas was stopped in her car and charged with driving
without a license, whereby she was transferred to a local Detention Center. After
two days in the Detention Center, Ms. Villegas’s water broke and she went into
active labor. Ms. Villegas, a pre-trial detainee being held for a non-violent traffic
offense, was thereafter shackled and handcuffed, with her wrists restrained to each
other and her ankles restrained to each other. This level of restraint took place
while Ms. Villegas was placed on a stretcher, as she was transported to the hospital
in the ambulance, and while she was brought to a hospital bed, all during the
course of her labor. Moreover, leg irons were used on Ms. Villegas including
when she attempted to use the restroom or shower. Leg irons were used even after

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the birth of her son. Ms. Villegas was unable to walk around to loosen her muscles,
protect against blood clots, or maintain necessary post-childbirth hygiene without
her restraints.
Because the practice of shackling a pregnant detainee during labor and
childbirth is clearly a violation of international law, lies in stark contrast to the
laws of a growing number of states who have banned the practice, and is contrary
to acceptable international human rights norms, this Court should affirm the
District Court’s order granting partial summary judgment.
ARGUMENT
I.

International Law is Relevant to the Issues Before This Court
The U.S. Supreme Court has long recognized that whenever possible, the

laws of the United States should be construed in accordance with international law.
See e.g. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)
(noting that “an act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains”); Talbot v. Seeman, 5 U.S. (1
Cranch) 1, 43 (1801) (arguing that “the laws of the United States ought not, if it be
avoidable, so to be construed as to infract the common principles and usages of
nations”).1 Moreover, the Supreme Court has often looked to international law and
the laws of other nations in determining contemporary standards of decency with
1

See generally Sandra Day O’Connor, Federalism of Free Nations, reprinted in International Law Decisions in
National Courts 13, 15-16 (Thomas M. Franck & Gregory H. Fox eds., 1996)

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respect to matters of human rights. See Roper v. Simmons, 543 U.S. 551, 554
(2005) (reasoning that it “does not lessen fidelity to the Constitution . . . to
acknowledge that the express affirmation of certain fundamental rights by other
nations and peoples underscores the centrality of those same rights within our own
heritage of freedom”).2
Justice Ginsburg has specifically addressed the relevance of international
law in deciphering human rights matters by stating “comparative analysis
emphatically is relevant to the task of interpreting constitutions and enforcing
human rights. We are the losers if we neglect what others can tell us about
endeavors to eradicate bias against women, minorities, and other disadvantaged
groups.” Ruth Bader Ginsburg & Deborah Jones Merritt, Fifty-First Cardozo
Memorial Lecture – Affirmative Action: An International Human Rights Dialogue,
21 Cardozo L. Rev. 253, 282 (1999).3 And as Justice O’Connor has noted, there is
great value in looking to international law as a source of interpretation for domestic
legal issues as that community has often “struggled with the same basic
constitutional questions as we have: equal protection, due process, the rule of law

2

See also Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (considering international standards with respect to
execution of persons under sixteen years of age); Enmund v. Florida, 458 U.S. 782, 796-97 n.22 (1982) (noting the
relevance of “the climate of international opinion concerning the acceptability of a particular punishment”); Knight
v. Florida, 528 U.S. 990, 995-96 (1999) (Breyer, J. dissenting from denial of certiorari) (citing Universal
Declaration of Human Rights and case law from several nations to support the view that long delays in
administering the death penalty may be unusually and impermissibly cruel).
3
See also Martha F. Davis, International Human Rights and United States Law: Predictions of a Courtwatcher, 64
Alb. L. Rev. 417, 421-28 (2000) (arguing that in the twenty-first century, judicial legitimacy requires courts to
address their decisions in an international context).

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in constitutional democracies.” Sandra Day O’Connor, Broadening Our Horizons:
Why American Lawyers Must Learn About Foreign Law, 45 Fed. Lawyer 20
(1998). Therefore the use of international law to help construe domestic legal
issues is justified in this case.
II.

The Practice of Shackling Pregnant Women At Any Time During the
Birthing Process Violates Modern Standards of Decency and
Constitutes Cruel, Inhuman, and Degrading Treatment.
A. The Shackling of Pregnant Women During the Birthing Process is
a Violation of International Law and the International Human
Rights Framework
Based on ample authority, the District Court properly held that “the United

States’s [sic] ratification of international conventions and standards are persuasive
of the contemporary standards on shackling pregnant women.” Villegas v.
Metropolitan Government of Davidson County, 789 F. Supp. 2d 895, 919 (M.D.
Tenn. 2011). Significantly, two major international human rights treaties denounce
the practice of shackling pregnant prisoners as cruel, inhuman or degrading
treatment and a departure from common standards of decency. The first of these
treaties is the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“Torture Convention”), which has been ratified by 136
nations and was ratified by the United States Senate in 1994.4 G.A. Res. 46, 39
U.N. GAOR Supp. (No. 51), U.N. Doc. A/39/51 (1984). The second treaty which
4

See Office of the United Nations High Comm’r for Human Rights, Status of Ratifications of the Principal
International Human Rights Treaties 12, available at http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?OpenFrameSet

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denounces the practice of shackling for pregnant prisoners is the International
Covenant on Civil and Political Rights (“ICCPR”), which has been ratified by 152
nations and was ratified by the United States Senate in 1992.5 GA res. 2200A
(XXI), 21 U.N. GAOR Supp (No. 16) at art. 7, U.N.Doc. A/6316 (1966). By
ratifying both treaties, the United States has committed itself to upholding the
principles they enshrine. Moreover, pursuant to the Supremacy Clause of the
United States Constitution, these treaties shall be deemed the “supreme Law of the
Land.” See U.S. Constitution art VI. By ratifying these treaties, the Senate thereby
acknowledged that the implementation of their principles is a responsibility of state
and local government.6 Therefore, both the ICCPR and the Torture Convention
provide relevant and legitimate guidance to this Court for evaluating the issues of
this case.
Additionally, the Committee Against Torture, the body who oversees state
compliance with the Torture Convention, issued observations to the United States
in 2006 expressing grave concerns that the U.S. was not fulfilling its treaty
obligations because the practice of shackling pregnant inmates during the
5

The United States ratified the ICCPR with certain reservations. U.S. Reservations, Understandings, Declarations,
and Proviso, ICCPR, 138. Cong. Rec. S4781-01 (daily ed. April 2, 1992). However, any reservations made by the
United States that are “incompatible with the object and purpose” of the treaty, are deemed void. See Vienna
Convention on the Law of Treaties art. 19, Jan. 27, 1980, 1155 U.N.T.S. 331
6
The U.S. Senate ratified the ICCPR with the express understanding that it “shall be implemented by the Federal
Government to the extent that it exercises legislative and judicial jurisdiction of the matters contained therein, and
otherwise by the state and local governments,” and further, that “the Federal Government shall take measures
appropriate to the Federal system to the end that competent authorities of the state or local governments may take
appropriate measures for the fulfillment of the Covenant.” U.S. Reservations, Understandings, Declarations, and
Proviso, ICCPR, 138. Cong. Rec. S4781-01 (daily ed. April 2, 1992).

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childbirth process was still allowable in some of its jurisdictions. See U.N. Comm.
Against Torture, Conclusions and Recommendations of the Committee Against
Torture: United States of America ¶ 33 U.N. Doc. CAT/C/USA/CO/2 (2006). The
Committee specifically voiced concern over the United States’ “treatment of
detained women . . . including gender-based humiliation and incidents of shackling
of women detainees during childbirth.” See id. at ¶ 36. Much like the Committee
Against Torture, the U.N. Human Rights Committee, the body of experts who
monitor implementation of the ICCPR, has also expressed serious concern over the
fact that certain jurisdictions within the United States have yet to abolish the
practice of shackling. See Concluding Observations of the Human Rights
Committee: United States of America, 87th Sess., ¶ 33, U.N. Doc.
CCPR/C/USA/CO/3/Rev. 1 (2006). The Human Rights Committee even
recommended that the U.S. “prohibit the shackling of detained women during
childbirth” so as to comply with its treaty obligations under the ICCPR. Id. As a
state party to the ICCPR, the United States is bound to take the “necessary steps”
to implement the rights guaranteed by the treaty. ICCPR, art. 2(2), 999 U.N.T.S. at
173.
The U.S Supreme Court has deemed decisions by the European Court of
Human Rights and other international courts as persuasive authorities in
interpreting protections afforded by U.S. laws. Lawrence v. Texas, 539 U.S. 558,
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573 (2003). Indeed, Justice Rehnquist called on U.S. courts to evaluate
international precedents when deciphering domestic law: “it is time that the United
States courts begin looking to the decisions of other constitutional courts to aid in
their own deliberative process.” William Rehnquist, Constitutional Courts –
Comparative Remarks (1989), reprinted in Germany and its Basic Law: Past,
Present and Future –A German-American Symposium 411-12 (Paul Kirchhof &
Donald P. Kommers eds., 1993). And with regard to the European Court
specifically, after meeting with members of the European Court of Justice, Justice
O’Connor noted that “[i]n the next century, we are going to want to draw upon
judgments from other jurisdictions,” including those of the European Court. Press
Release, New York University, European Court Members and Four U.S. Supreme
Court Justices to Discuss Current European and U.S. Constitutional Issues, at 2
(Mar. 27, 2000), available at www.nyu.edu/publicaffairs/newsreleases/b
_EUROP.shtml. Therefore, the decisions of the European Court are relevant to
interpreting issues in the instant case.
The European Convention for the Protection of Human Rights and Freedoms
prohibits the use of torture and other inhuman or degrading treatment or
punishment in Article 3. European Convention for the Protection of Human Rights
and Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221. The European Court of Human
Rights has interpreted Article 3 to ban the use of shackles during the
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hospitalization of prisoners except in cases where the prisoner poses a serious
security threat. See Henaf v. France, App. No. 65436/01 (ECHR Feb. 27, 2004);
Avci and Others v. Turkey, App. No. 77191/01 (ECHR Apr. 16. 2007). Moreover,
the Council of Europe’s Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment referred to the practice of shackling pregnant
prisoners as “completely unacceptable.” CPT/Inf (2000), 13, 10th General Report, ¶
27.
Other international bodies have similarly denounced the practice of
shackling pregnant women during the course of childbirth and labor. One source
that is frequently cited by U.S. courts in cases relating to conditions and treatment
of prisoners is the U.N. Standard Minimum Rules for the Treatment of Prisoners
(the “Rules”). See e.g., Roper, 543 U.S. at 554; Estelle v. Gamble, 429 U.S. 97,
103-10 (1976) (considering the Rules as evidence of “contemporary standards of
decency” in case involving denial of medical services to inmates); Atkins v.
Virginia, 536 U.S. 304, 335 (2002) (weighing opinions of the “world community”
in an Eighth Amendment analysis); Everson v. Mich. Dep't of Corr., 222 F. Supp.
2d 864, 885 (E.D. Mich. 2002) (citing the Rules as source for delineating rights for
female inmates).7 The Rules prohibit the use of shackles on prisoners with

7

See also, Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392, 396 (2nd Cir. 1975) (citing
provision of the Rules in due process challenge to conditions of confinement); Morgan v. LaVallee, 526 F.2d 221,
226 (2nd Cir. 1975) (citing the Rules in examining prison health conditions); Lareau v. Manson, 507 F. Supp. 1177,
1187-89 (D. Conn. 1980) (relying on the Rules to define meaning of “adequate shelter”); Thomas v. Baca, 514 F.

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exceptions to be made only in rare and limited circumstances. Standard Minimum
Rules for the Treatment of Prisoners, U.N. Doc. A/CONF/1 Annex 1, E.S.C. res
663C, U.N. ESCOR, 24th Sess., Supp., No. 1, U.N. Doc. E/3048, Rule 33(c).
Moreover, the Rules even require “special accommodations” be provided to
pregnant prisoners. Id. at art. 23(1).
Other international conventions and declarations impose similar obligations
on states to protect women during pregnancy and childbirth. For instance, the
International Covenant on Economic, Social and Cultural Rights (“ICESCR”)
mandates that mothers be given special protection before and after the birthing
process. ICESCR, art 10(2), Dec. 16, 1966, 993 U.N.T.S. 3. Furthermore, the
Universal Declaration of Human Rights declares that motherhood is “entitled to
special care and assistance.” G.A. Res. 217A (III), art. 25(2), U.N. Doc. A/810
(Dec. 10, 1948). The Convention on the Elimination of All Forms of
Discrimination Against Women (“CEDAW”) also requires that states “ensure
women appropriate services in connection with pregnancy, confinement, and the
post-natal period.” CEDAW, art. 12(2), Mar. 1, 1980, 1249 U.N.T.S. 13. In this

Supp. 2d 1201, 1217 (C.D. Cal. 2007) (citing the Rules as guidelines and finding that floor-sleeping was
unconstitutional); Kane v. Winn, 319 F. Supp. 2d 162, 198-99 (D. Mass. 2004) (examining the incorporation of the
Rules in 1962 Model Penal Code and influence on other penal laws); Crain v. Bordenkircher, 342 S.E.2d 422, 446
(W.Va. 1986) (discussing one person per cell policy under the Rules); Jones v. Wittenberg, 440 F. Supp. 60, 149
(N.D. Ohio 1977) (using the Rules as guidance in examining prison conditions); Austin v. Hopper, 15 F. Supp. 2d
1210, 1260 (M.D. Ala. 1998) (using the Rules as guidance and finding use of hitching post unconstitutional); Jordan
v. Arnold, 408 F. Supp. 869, (M.D. Pa. 1976) (citing the Rules provision that prisoners should have at least one hour
of exercise per day); Williams v. Coughlin, 875 F. Supp. 1004, 1013 (W.D.N.Y. 1995) (citing the Rules in Eighth
Amendment analysis).

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case, Ms. Villegas was not only shackled during the birthing process, but she was
also prohibited from bringing a breast pump back with her into the Detention
Center from the hospital, which caused her extraordinary and unnecessary
discomfort as well as risk of painful breast infection. This refusal was contrary to
international conventions and human rights standards that require special attention
be provided to women in connection with their pregnancies and deliveries in
general and particularly while in confinement.
International legal standards dictate the importance of protecting pregnant
women’s health. The Convention Against Torture, the ICCPR, (both binding
treaties to which the United States is a party), the U.N. Standard Minimum Rules
for the Treatment of Prisoners, the European Convention for the Protection of
Human Rights and Freedoms, and the Council of Europe’s Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment all
denounce the practice of shackling pregnant women during the process of
childbirth as counter to international human rights standards and norms. The U.S.
should fulfill its international treaty obligations and denounce this barbaric practice
as contrary to contemporary standards of decency.
B. The Practice of Shackling Pregnant Prisoners During the Birthing
Process Has Been Banned in Several States Throughout the

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United States Demonstrating Contemporary and Evolving
Standards of Decency Among the States
Many states have upheld the rights and dignity of pregnant women and have
banned the practice of shackling during the birthing process by enacting laws and
regulations that forbid the practice. In fact, since 2010, there has been a growing
movement of states working to adopt laws restricting the use of shackles on
pregnant women. Currently, there are 16 states nationwide that ban the practice of
restraining pregnant prisoners, including Arizona, California, Colorado, Florida,
Hawaii, Idaho, Illinois, Nevada, New Mexico, New York, Pennsylvania, Rhode
Island, Texas, Vermont, Washington and West Virginia, with several other states
working to get such legislation passed.8 Moreover, a growing number of state
correctional facilities have recognized the need for special attention to be paid to
pregnant prisoners. Departments of Corrections in the following 14 states have
enacted policies that restrict the use of shackles on prisoners during childbirth:
Arkansas, Connecticut, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts,

8

See 2012 Ariz. Sess. Laws 43; Cal. Penal Code § 3423, 5007.7 (Deering 2012); Cal. Welf. & Inst. §§ 222, 1774
(Deering 2012); Colo. Rev. Stat. §§ 17-1-113.7 (2011); 17-26-104.7 (2011); 19-2-924.7 (2011); 26-1-137 (2011);
31-15-403 (2011); 2012 Fla. Sess. Law. Serv. Ch. 2012-41 (West); Haw. Rev. Stat. Ann. § 353-122 (LexisNexis
2012); Idaho Code Ann. §§ 20-901, 20-902, 20-903 (2012); 55 Ill. Comp. Stat. Ann. 5/3-15003.6 (LexisNexis
2012); 730 Ill. Comp. Stat. Ann. 125/17.5 (LexisNexis 2012); N.M. Stat. Ann. § 33-1-4.2 (LexisNexis 2012); N.Y.
Correction Law § 611 (LexisNexis 2012); AB 408 (2011); 61 Pa. Cons. Stat. Ann. §§ 5905, 1758 (LexisNexis
2012); R.I. Gen. Laws § 42-56.3-1 (2012); Tex. Gov’t Code Ann. § 501.066 (LexisNexis 2012); Tex. Hum. Res.
Code § 244.0075 (LexisNexis 2012); Tex. Loc. Gov’t Code Ann. § 361.082 (LexisNexis 2012); Vt. Stat. Ann. tit.
28, § 801a (2012); Wash. Rev. Code Ann. § 72.09.651 (LexisNexis 2012); W. Va. Code Ann. § 25-1-16
(LexisNexis 2011), W. Va. Code Ann. § 31-20-30a (LexisNexis 2011), W. Va. Code Ann. § 49-5E-6 (LexisNexis
2011).

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New York, Oklahoma, Oregon, Rhode Island, Washington, Wyoming, and the
District of Columbia.9
Furthermore, the Second Chance Act, which was passed by Congress in
2008, characterizes the practice of shackling pregnant prisoners as generally
unacceptable on the federal level. Second Chance Act of 2008, Pub. L. No. 110199, 122 Stat. 657 (2008). The Act requires that if and when federal correctional
facilities use restraints on pregnant women during childbirth, that they justify the
use of such restraints with documented security concerns. Id. Soon after the
adoption of the Second Chance Act, the Federal Bureau of Prisons and the U.S.
Marshals Service changed their policies to ban the use of restraints on pregnant
women during the birthing process, unless it is believed that they pose an
immediate threat to the safety of themselves or others. U.S. Dep’t of Justice,
Federal Bureau of Prisons, Program Statement: Escorted Trips, at § 11 (Oct. 6,
2008). Therefore, the practice of shackling a pregnant detainee arbitrarily and
without any thought or consideration to the individual circumstances of the case, is
clearly denounced at the federal level.

9

See Amnesty Int’l USA, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women
(2008); Ark. Dep’t of Corrections Admin. Dir. 04-08 (2008); Letter from Denise V. Lord, Assoc, Comm’r, Me.
Dep’t of Corrections (Feb. 20, 2007); Letter from Michelle A. Donaher, Dir. of Female Offender Services, Mass.
Dep’t of Corrections (Nov. 30, 2007); Okla. Dep’t of Corrections, “Security Standards for Transportation of
Offenders,” Operation Policy No. 040111; Ore. Dep’t of Corrections, Policy No. 40.1.1(H)(1)(d), available at
http://www.oregon.gov/DOC/PUBSER/rules_policies/docs/40.1.1.pdf

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CONCLUSION
The body of international human rights law strongly emphasizes the need to
treat pregnant women with the care that their circumstances require. Moreover, the
growing trend among American states and correctional facilities makes clear that
the practice of shackling pregnant women during the process of childbirth runs
completely counter to contemporary standards of decency. The use of restraints on
such vulnerable women contravenes human rights norms worldwide and places
both mother and child at unnecessary and grave risk of harm. Therefore, in order to
abide by contemporary standards of human decency and fulfill its international
treaty obligations, this Court should affirm the District Court’s order granting
partial summary judgment.

Respectfully submitted,
s/ Paul W. Ambrosius_______

s/ Yasmin Z. Vafa_______

Paul W. Ambrosius
TRAUGER & TUKE
222 Fourth Avenue North
Nashville, Tennessee 37219-2117
(615) 256-8585

Yasmin Z. Vafa
HUMAN RIGHTS PROJECT FOR
GIRLS
1225 Eye Street N.W., Suite 600
Washington, District of Columbia 20005
(202) 709-7451

Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C)
1. This Amicus Curiae Brief complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B) as it contain 3,408 words, excluding the parts
of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
2. This Amicus Curiae 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 this brief has been prepared in a proportionallyspaced typeface using Microsoft Word 2007 in 14 point Times New
Roman.

Dated: May 9, 2012

s/ Paul W. Ambrosius_______

s/ Yasmin Z. Vafa_______

Paul W. Ambrosius
TRAUGER & TUKE
222 Fourth Avenue North
Nashville, Tennessee 37219-2117
(615) 256-8585

Yasmin Z. Vafa
HUMAN RIGHTS PROJECT FOR
GIRLS
1225 Eye Street N.W., Suite 600
Washington, District of Columbia 20005
(202) 709-7451

Counsel for Amici Curiae
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CERTIFICATE OF SERVICE
Counsel hereby certifies that on May 9, 2012, a copy of this brief was
delivered via the CM/ECF system to:
Kevin C. Klein
Allison L. Bussell
METROPOLITAN DEPARTMENT OF LAW
P.O. Box 196300
Nashville, Tennessee 37219
Kevin.klein@nashville.gov
Alison.bussell@nashville.gov
and
William L. Harbison
Phillip F. Cramer
John L. Farringer IV
SHERRARD & ROE, PLC
150 3rd Avenue South
Suite 1100
Nashville, Tennessee 37201
(615) 742-4200
bharbison@sherrardroe.com
pcramer@sherrardroe.com
jfarringer@sherrardroe.com

s/ Paul W. Ambrosius_______

s/ Yasmin Z. Vafa_______

Paul W. Ambrosius
TRAUGER & TUKE
222 Fourth Avenue North
Nashville, Tennessee 37219-2117
(615) 256-8585

Yasmin Z. Vafa
HUMAN RIGHTS PROJECT FOR
GIRLS
1225 Eye Street N.W., Suite 600
Washington, District of Columbia 20005
(202) 709-7451
Counsel for Amici Curiae

15