Forgotten Fundamentals: A Review of State Legislation on Nutrition for Incarcerated Pregnant and Postpartum People

Abstract

Adequate nutritional intake during pregnancy is critical to infant health and development. People with the capacity for pregnancy who are incarcerated have limited control over their diets and rely on prisons and jails to meet their nutritional needs. This study examined state and federal statutes pertaining to nutrition care for pregnant people while incarcerated. Following a systematic search and review, we identified four qualitative codes relating to access to vitamins, supplemental food, additional hydration, and prenatal nutrition education. Summaries of state and federal statutes pertaining to nutrition were developed and compared with current prenatal nutrition recommendations. Less than a third of states had nutrition-related mandates and no states had statutes that included all key nutrition recommendations. No federal statutes addressed nutrition during pregnancy. Additionally, our review found no provisions for enforcement of the limited nutritional statutes that do exist. To mitigate adverse health consequences for pregnant people and their fetuses, policymakers should enact or amend legislation to align nutrition standards in all prisons and jails with national policy recommendations and provide mechanisms to oversee compliance.

Introduction

A significant body of research has demonstrated the importance of adequate nutrition for pregnancy outcomes. This research has been used by national agencies and organizations to develop specific guidelines and recommendations for pregnant people. For example, the Dietary Guidelines for Americans (DGA) outline the need for the inclusion of fruits and vegetables, while minimizing added sugars and saturated fat during pregnancy (U.S. Department of Agriculture and U.S. Department of Health and Human Services, 2020). In addition, the Institute of Medicine (IOM) recommends that diets or supplementation contains adequate amounts of iron, folic acid, iodine, and choline, all critical to healthy fetal development (IOM, 1997, 1998, 2001).

To ensure healthy weight gain during pregnancy, the IOM recommends that pregnant people increase caloric consumption by 340 and 452 calories, respectively, during the second and third trimesters (IOM and National Research Council, 2009). However, the DGA note that pregnant people who were overweight or obese before pregnancy may have lower caloric needs in the second and third trimesters (U.S. Department of Agriculture and U.S. Department of Health and Human Services, 2020). In addition, the American College of Obstetricians and Gynecologists (ACOG; 2023) recommends that pregnant people increase daily hydration, drinking at least 64 to 96 ounces of water a day, as there is a physiological need for increased fluid intake during pregnancy (Agnew et al., 1993).

Finally, it is important for pregnant people to avoid certain foods and substances known to increase the risk of adverse health outcomes during pregnancy, including raw meat and seafood, unpasteurized dairy, and alcohol (Proctor & Campbell, 2014). Nutritional education and counseling can help pregnant people understand what to avoid as well as what to consume during pregnancy.

There are significant risks associated with inadequate nutrition during pregnancy. For example, anemia during pregnancy is associated with increased risk for preeclampsia, postpartum depression, and postpartum hemorrhage, which can lead to maternal morbidity and mortality (Faysal et al., 2023; Lao et al., 2022). In general, nutrient deficiencies can contribute to suboptimal infant birthweight and the development of birth defects (Proctor & Campbell, 2014). For example, early and sustained folic acid supplementation is protective against neural tube defects and abnormalities such as anemia in pregnant individuals (Greenberg et al., 2011).

Some studies have also linked poor nutrition during pregnancy to longer term adverse neurodevelopmental consequences in children (Gluckman et al., 2008; Halas et al., 1977; Keenan et al., 2013; Koletzko et al., 2012; Lillycrop & Burdge, 2012).

Access to adequate nutrition is of particular concern for individuals who are pregnant while incarcerated. A 12-month prospective study collecting pregnancy statistics from 22 state prison systems and the Federal Bureau of Prisons found that 3.8% of people incarcerated in women's facilities began their sentence pregnant, thus indicating the need for nutritional policies and practices that support optimal fetal development (Sufrin et al., 2019). Furthermore, individuals who are pregnant at the time of their incarceration or who have their pregnancies diagnosed while incarcerated are less likely to have had access to comprehensive prenatal care (Testa & Jackson, 2020) and are more likely to be Black or from other communities that have experienced structural racism (Carson, 2021).

These factors, in addition to incarceration, have been associated with pregnancy complications and adverse outcomes, and indicate a significant need for comprehensive pregnancy support for those incarcerated (Sufrin et al., 2019).

Additionally, with the incidence of people incarcerated in women's facilities outpacing that of men over the last several years, there is likely to be an increase in people who are pregnant while incarcerated in facilities that may be unprepared to meet the unique health care needs of people with the capacity for pregnancy (Braithwaite et al., 2008). The decision in Dobbs v. Jackson to overturn Roe v. Wade will dramatically restrict access to abortion care and may therefore contribute to an increase in the number of people who are pregnant or give birth while incarcerated. Given the importance of nutrition for individuals while pregnant, prison and jail practices have a significant impact on the health outcomes of pregnant individuals housed there.

However, despite nutrition being a critical component of preventive health care for pregnant individuals, there is a lack of robust health regulation and protections for those who are incarcerated in general (Collins & Thompson, 2012; Shlafer et al., 2017). The Eighth Amendment guarantees “adequate” health care for incarcerated people. This has been interpreted by the courts as reasonable measures to prevent risk of serious harm, which does not have to be equivalent to care that those who are not incarcerated would receive in their community (Eber, 2009).

Health care standards for people incarcerated established by the National Commission on Correctional Health Care (NCCHC) and the American Public Health Association (APHA)—including standards specific to care for pregnant people—are not tied to mandatory accreditation and therefore do not provide an accountability mechanism for carceral facilities to meet these standards (Ferzst & Clarke, 2012). Thus, state and federal legislation is key to establishing and enforcing optimal prenatal nutrition for people incarcerated.

Although limited, the body of research that exists indicates that people have inadequate access to optimal nutrition during incarceration. A study on the nutritional content of menus at six Midwestern women's facilities found that calories, sodium, and fat were offered in excessive amounts, but values for vitamins D and E were below recommended values (Holliday & Richardson, 2021). Similarly, an analysis of the nutritional breakdown of a 28-day cycle menu in a large county jail in Georgia found that caloric intake, sodium, saturated fat, and cholesterol exceeded recommendations for the average woman when compared with the Dietary Reference Intakes (DRIs; Cook et al., 2015).

Furthermore, key vitamins and minerals met less than two thirds of MyPlate recommendations; grains were provided in excess while vegetables, fruit, and dairy did not meet recommended servings (Cook et al., 2015).

The high calorie, high fat, but low vitamin and mineral findings are consistent with other studies evaluating the nutritional content of both prison and jail menus and items available for purchase in the commissary (Collins & Thompson, 2012; Lopez et al., 2022; Mommaerts et al., 2022). When comparing the nutritional composition of meals provided in prisons and jails to the recommended servings for pregnant people specifically, Shlafer et al. (2017) found that levels of magnesium and fiber were significantly inadequate. Although some facilities provide a medical diet or “pregnancy pack” for individuals who are pregnant or postpartum, little is known about the nutritional adequacy of these provisions (Shlafer et al., 2017).

The provision of diets high in calories and low in recommended micronutrients, fruits, and vegetables is of particular concern given the high prevalence of overweight and obesity among those incarcerated in women's facilities (Clarke & Waring, 2012).

Furthermore, the increase in extreme temperatures in prisons makes access to hydration of vital importance. Access to water on demand in carceral facilities is not a given. A recent analysis of Eighth Amendment cases related to temperature inside correctional facilities found a marked increase in these cases in 2020. In cases related to excess heat, plaintiffs gave examples of indoor temperatures reaching over 150°F without access to water or other cooling measures (Skarha et al., 2020).

To ensure optimal nutritional value of meals provided to pregnant individuals while incarcerated, Shlafer et al. (2017) outlined six recommendations for prisons and jails: (a) test for pregnancy on admission; (b) provide prenatal vitamins; (c) follow nutrition recommendations of the Academy of Nutrition and Dietetics (AND), taking particular care in meeting the DRI values for folic acid, iron, calcium, zinc, and vitamin D; (d) provide additional food, monitor over time, and allow for modifications to meet pregnancy needs; (e) provide regular access to water; and (f) provide resources and education on a healthy diet, including prenatal nutrition education and counseling, access to registered dietitian/nutritionists (RDNs), and lists and labels of foods in the cafeteria and commissary deemed healthy or unsafe for pregnancy and which should be eaten in moderation.

Testing for pregnancy on admission to a carceral facility is vitally important to identify as early as possible individuals who require prenatal care including nutritional support. In the context of incarceration, where nutritional choices are constrained, food access is limited, and menus are based on the needs of nonpregnant people, the provision of additional food or diets with nutritional content aligned with Recommended Dietary Allowances for pregnant people is critical to supporting a healthy pregnancy.

Recognizing the importance of supplemental meals during pregnancy, NCCHC recommendations state that “when possible, additional food in between mealtimes should be provided as physiologic changes and nausea may create a need for more frequent meals” (2018). Commissary and cafeteria foods must be clearly labeled to promote optimal nutrition.

The combination of the limited agency of people who are incarcerated and lack of legal recourse in situations where carceral facilities do not provide adequate health care to pregnant people constrains incarcerated people's access to optimal prenatal nutrition. The objective of this article is to provide researchers and policymakers with a description of state and federal statutes that pertain to nutrition care for pregnant people while incarcerated. This article aims to contribute to the limited body of research on laws governing nutrition care for pregnant individuals who are incarcerated and drive discussion regarding the policies and enforcement needed to contribute to the long-term health and well-being of birthing people and their children while incarcerated.

Method

This study draws data from a systematic review conducted to describe state and federal legislation pertaining to incarcerated pregnant and postpartum people. Researchers conducted a systematic search in WestLaw for state and federal statutes in January 2021 combining the terms “pregnant” and “postpartum” with terms for incarceration, including “prison,” “jail,” “incarceration” and its variations, “inmate,” “detainee,” and “corrections” and related terms.

Researchers then manually searched each state's legislative databases and federal legislation using the same search terms to confirm search results and to identify legislation enacted between January and December 2021 for all 50 states, the District of Columbia, and federal laws. Results presented include statutes and legislation passed into law through the end of December 2021.

Through discussion, the research team, consisting of a medical doctor, doctoral-level researchers, and professionals familiar with the carceral system, developed a deductive codebook of maternal health topics that informed the wider review. These topics were selected based on their relevance to maternal health and were informed by practice recommendations from ACOG and NCCHC (e.g., recommendations regarding pregnancy testing). Researchers developed a code description and identified relevant examples from the legislative text for each maternal and child health topic. Groups of two researchers (B.K., J.V., J.S., and R.S.) independently coded each legislative text using the deductive codebook and resolved any conflicts through team discussion.

Four codes relevant to nutrition during pregnancy or the postpartum period were identified and described by the research team. These were (a) statutes related to access to prenatal and postpartum vitamins, (b) supplemental food during pregnancy, (c) additional hydration during pregnancy, and (d) prenatal nutrition education. Statutes were coded if they contained language specific to pregnant or postpartum people who are incarcerated; language that pertained to nutrition for nonpregnant people who are incarcerated was not coded.

Researchers then extracted legislative text coded to these four codes for further textual analysis for content specific to pregnant people. A narrative description of state and federal maternal nutrition-related legislation was developed and organized into six key recommendations for prenatal nutrition based on recommendations from the DGA, IOM, NCCHC, and Shlafer et al.'s (2017) article on prenatal nutrition for incarcerated people.

In the states that had nutrition-related statutes, three additional codes were extracted. First, given recommendations from Shlafer et al. (2017) recognizing the importance of identifying pregnancy as early as possible to ensure optimal nutrition, language related to pregnancy testing was also analyzed. Furthermore, as the presence of state legislation does not necessarily guarantee implementation by correctional institutions, text with codes pertaining to the enforcement of statutes and their communication to pregnant people who are incarcerated was also extracted and, if they pertained to nutrition-related statutes, was included in the narrative description. Note, as “statute” refers to the written text of a law, this term is used interchangeably with “legislation” and “law” in the description of the results.

This study was deemed not human subjects research and was exempt from institutional review board review.

Results

The wider search identified 453 statutes, from 43 states, coded with at least one maternal and child health topic related to pregnant or postpartum people who are incarcerated. Sixteen states have statutes relevant to nutrition during pregnancy. Twelve of these states (AR, AZ, CA, CO, CT, FL, KY, MA, MD, MS, NC, NJ, SC, TN, TX, and VA) were identified in the WestLaw search and four (AZ, CO, MS, and NC) were identified through the subsequent hand search. The federal search returned 46 statutes, 6 of which were coded with at least 1 maternal and child health topic. No federal statutes were relevant to nutrition during pregnancy. See Table 1 and Figure 1, respectively, for full legislative text and a visual representation of state statutes.

Table 1.

Summary of State and Federal Statutes Addressing Incarcerated Pregnant and Postpartum People, 2021

State	Pregnancy test on intake	Provide a prenatal diet following federal dietary guidelines	Provide supplemental food appropriate to the trimester of pregnancy and prepregnancy weight	Prescribe prenatal vitamins	Provide access to water	Provide prenatal nutrition education and counseling
Arkansas	—	Ark. Code Ann. §12-32-103: “Necessary prenatal vitamins and nutrition for pregnant inmates and detainees”	—	Ark. Code Ann. §12-32-103: “Necessary prenatal vitamins and nutrition for pregnant inmates and detainees”	—	—
Arizona	—	AZ 31-601: “When ordered by the attending medical staff or a nutritionist a correctional institution shall ensure that a pregnant prisoner or detainee is provided sufficient food and dietary supplements that meet generally accepted prenatal nutritional guidelines for pregnant women.”	—	AZ 31-601: “When ordered by the attending medical staff or a nutritionist a correctional institution shall ensure that a pregnant prisoner or detainee is provided sufficient food and dietary supplements that meet generally accepted prenatal nutritional guidelines for pregnant women.”	—	—
California	Cal. Penal Code §3406a: “(a) Any incarcerated person shall have the right to summon and receive the services of any physician, nurse practitioner, certified nurse midwife, or physician assistant of their choice in order to determine whether they are pregnant. The warden may adopt reasonable rules and regulations with regard to the conduct of examinations to effectuate this determination.” Cal. Penal Code §4023.8a,b: “A person incarcerated in a county jail who is identified as possibly pregnant or capable of becoming pregnant during an intake health examination or at any time during incarceration shall be offered a pregnancy test upon intake or by request, within seventy-two hours of arrival at the jail. Pregnancy tests shall be voluntary and not mandatory, and may only be administered by medical or nursing personnel. An incarcerated person who declines a pregnancy test shall be asked to sign an “Informed Refusal of Pregnancy Test” form that shall become part of their medical file.” Cal. Penal Code §4023.6a: “Any incarcerated person in any local detention facility shall have the right to summon and receive the services of any physician, nurse practitioner, certified nurse midwife, or physician assistant of their choice in order to determine whether they are pregnant. The superintendent of the facility may adopt reasonable rules and regulations with regard to the conduct of examinations to effectuate the determination.” Cal. Wel. Code §222a: “A female in the custody of a local juvenile facility shall have the right to summon and receive the services of a physician and surgeon of her choice in order to determine whether she is pregnant. If she is found to be pregnant, she is entitled to a determination of the extent of the medical services needed by her and to the receipt of those services from the physician and surgeon of her choice. Expenses occasioned by the services of a physician and surgeon whose services are not provided by the facility shall be borne by the female.” Cal. Penal Code §3408a,b: “A person incarcerated in the state prison who is identified as possibly pregnant or capable of becoming pregnant during an intake health examination or at any time during incarceration shall be offered a test upon intake or by request. Pregnancy tests shall be voluntary and not mandatory, and may only be administered by medical or nursing personnel. An incarcerated person who declines a pregnancy test shall be asked to sign an “Informed Refusal of Pregnancy Test” form that shall become part of their medical file.” Cal. Wel. Code §1774a: “A female who has been committed to the Division of Juvenile Facilities shall have the right to summon and receive the services of a physician and surgeon of her choice in order to determine whether she is pregnant. The director may adopt reasonable rules and regulations with regard to the conduct of examinations to effectuate that determination.”	Cal. Penal Code §3424: “A woman who is pregnant during her incarceration and who is not eligible for the program described in this chapter shall have access to complete prenatal health care. The department shall establish minimum standards for pregnant inmates in its custody who are not placed in a community treatment program including all of the following: (a) A balanced, nutritious diet approved by a doctor.” Cal. Penal Code §6030a: “The standards shall require that inmates who are received by the facility while they are pregnant be notified, orally or in writing, of and provided all of the following: (1) A balanced, nutritious diet approved by a doctor.”	—	Cal. Penal Code §3424: “The department shall establish minimum standards for pregnant inmates in its custody who are not placed in a community treatment program including all of the following…Prenatal and postpartum information and health care, including, but not limited to, access to necessary vitamins as recommended by a doctor.” Cal. Penal Code §4023.8a: “Prenatal vitamins, to be taken on a daily basis, in accordance with medical standards of care.” Cal. Penal Code §3408a: “Incarcerated pregnant persons shall be provided access to both of the following: (1) Prenatal vitamins, to be taken on a daily basis, in accordance with medical standards of care.” Cal. Wel. Code §1774a: “…A ward who gives birth while under the jurisdiction of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, or a community treatment program has the right to the following services…Access to prenatal vitamins.” Cal. Penal Code §3419a: “…Any community treatment program, in which an inmate who gives birth after her receipt by the Department of Corrections and Rehabilitation participates, shall include, but is not limited to, the following…Access to prenatal vitamins.” Cal. Penal Code §6030a: “…The standards shall require that inmates who are received by the facility while they are pregnant be notified, orally or in writing, of and provided all of the following… Prenatal and post partum information and health care, including, but not limited to, access to necessary vitamins as recommended by a doctor”	—	—
Colorado	—	C.R.S. 17-26-104.4: “Healthy foods and information on nutrition, recommended activity levels, safety measures, and supplies, including menstrual products as required in section 17-26-104.3, and breast pumps approved by the sheriff or the sheriff's designee;” CO Code § 17-1-114.5: “Healthy foods and information on nutrition, recommended activity levels, safety measures, and supplies, including menstrual products as required in section 17-1-113.6, and breast pumps approved by the executive director or the executive director's designee…”	—	—	—	—
Connecticut	Conn. Gen. Stat. Ann. §18-69ca: “Upon admission to the York Correctional Institution, each inmate shall be assessed for pregnancy by a licensed healthcare provider. The licensed health care provider shall inform the inmate of any necessary medical tests associated with the pregnancy assessment prior to the administration of such tests.”	Conn. Gen. Stat. Ann. §18-69ca: “The York Correctional Institution shall provide each inmate who is pregnant with:… a diet containing the nutrients necessary to maintain a healthy pregnancy, as determined by a licensed health care provider trained in prenatal care.”	—	Conn. Gen. Stat. Ann. §18-69ca: “The York Correctional Institution shall provide each inmate who is pregnant with… medical care at the correctional institution, which shall include, but not be limited to…prenatal vitamins or supplements, as deemed necessary by a licensed health care provider”	—	Conn. Gen. Stat. Ann. §18-69ca: “…The York Correctional Institution shall provide each inmate who is pregnant with: (1) Counseling and written material, in a form that may be reasonably understood, concerning…(B) prenatal nutrition, (C) maintaining a healthy pregnancy…”
Florida	—	—	Fla. Stat. Ann. §951.175: “the county shall ensure that a pregnant inmate receives supplemental food and clothing and is excused from inappropriate work assignments.” Fla. Stat. Ann. §944.24: “The department shall ensure that a pregnant inmate receives supplemental food and clothing and is excused from inappropriate work assignments.”	—	—	—
Kentucky	—	Ky. Rev. Stat. Ann. §441.055: “All minimum standards promulgated by the department applying to jails shall include requirements for adequate nutrition for pregnant prisoners”	—	—	—	—
Maryland	Md. Code Ann., Corr. Law §9-601: “…procedures for providing pregnancy testing to all female inmates, including on intake…”	Md. Code Ann., Corr. Law §9-601: “nutritional needs and counseling…”	—	—	—	Md. Code Ann., Corr. Law §9-601: “nutritional needs and counseling…”
Massachusetts	Mass. Gen. Laws Ann. ch. 127, §118a: “Upon admission to a correctional facility, while awaiting trial or after sentencing, a female inmate shall be screened and assessed for pregnancy by a licensed health care professional; provided, however, that the inmate shall be informed of any necessary medical tests connected with the pregnancy screening prior to the administration of such tests.”	Mass. Gen. Laws Ann. ch. 127, §118: “A pregnant and postpartum inmate shall be provided regular prenatal and postpartum medical care at the correctional facility in which she is housed, including:… a diet containing the nutrients necessary to maintain a healthy pregnancy…”	—	Mass. Gen. Laws Ann. ch. 127, §118: “A pregnant and postpartum inmate shall be provided regular prenatal and postpartum medical care at the correctional facility in which she is housed, including… a diet containing the nutrients necessary to maintain a healthy pregnancy, including prenatal vitamins and supplements..”	—	Mass. Gen. Laws Ann. ch. 127, §118: “A pregnant and postpartum inmate shall be provided regular prenatal and postpartum medical care at the correctional facility in which she is housed, including:…written information regarding prenatal nutrition, maintaining a healthy pregnancy and childbirth.”
Mississippi	—	HB 196: “The Department of Corrections shall ensure that pregnant inmates be provided sufficient food and dietary supplements as ordered by a physician, physician staff member, or a facility nutritionist to meet general accepted prenatal nutritional guidelines for pregnant women.”	—	—	—	—
New Jersey	—	N.J.A.C. 10A §16-6.1: “The Department of Corrections shall provide a pregnant inmate with medical and social services, which shall include: … Nutritional supplements and diet as prescribed by the physician”	—	N.J.A.C. 10A §16-6.1: “The Department of Corrections shall provide a pregnant inmate with medical and social services, which shall include…. Nutritional supplements and diet as prescribed by the physician…”	—	—
North Carolina	—	HB 608b: “The Department of Public Safety and the administrator of the correctional facility shall ensure that pregnant female incarcerated persons are provided sufficient food and dietary supplements and are provided access to food at appropriate times of day, as ordered by a physician, a physician staff member, or a correctional facility nutritionist to meet generally accepted prenatal nutritional guidelines for pregnant female incarcerated persons. While in the hospital, pregnant female incarcerated persons and female incarcerated persons in the postpartum recovery period shall have access to the full range of meal options provided by the hospital to ensure that each meal meets the female incarcerated person's nutritional needs.”	—	—	—	—
South Carolina	—	S.C. Code Ann. §24-13-35: “Correctional facilities, local detention facilities, and prison or work camps must ensure known pregnant inmates are provided sufficient food and dietary supplements as ordered by a physician, physician staff member, or a facility nutritionist to meet generally accepted prenatal nutritional guidelines.”	—	S.C. Code Ann. §24-13-35: “Correctional facilities, local detention facilities, and prison or work camps must ensure known pregnant inmates are provided sufficient food and dietary supplements as ordered by a physician, physician staff member, or a facility nutritionist to meet generally accepted prenatal nutritional guidelines.”	—	—
Tennessee	—	Tenn. Code Ann. §41-21-241: “A correctional institution shall provide a pregnant prisoner or detainee with nutritionally appropriate meals and appropriate supplemental provisions between meals.”	Tenn. Code Ann. §41-21-241: “A correctional institution shall provide a pregnant prisoner or detainee with nutritionally appropriate meals and appropriate supplemental provisions between meals…”	—	—	—
Texas	Tex. Govt. Code Ann. §501.059: “(b)The screening program established under Subsection (a) must:… include an objective screening tool to be used by department employees administering the screening program; and (3) occur during the diagnostic process or at another time determined by the department.” Tex. Govt. Code Ann. §511.009: “…adopt reasonable rules and procedures establishing minimum requirements for a county jail to: (A) determine if a prisoner is pregnant…” Tex. Govt. Code Ann. §507.028: “The department shall establish and use a screening program in state jail felony facilities that is substantially similar to the program established and used by the department under Section 501.059.”	Tex. Govt. Code Ann. §501.0666: “The department shall ensure that pregnant inmates are provided sufficient food and dietary supplements, including prenatal vitamins, as ordered by an appropriate medical professional.” Tex. Govt. Code Ann. §511.009: “…adopt reasonable rules and procedures establishing minimum requirements for a county jail to:… ensure that the jail's health services plan addresses medical care, including obstetrical and gynecological care, mental health care, nutritional requirements…”	—	Tex. Govt. Code Ann. §501.0666: “The department shall ensure that pregnant inmates are provided sufficient food and dietary supplements, including prenatal vitamins, as ordered by an appropriate medical professional.”	—	—
Virginia	—	Va. Code Ann. §53.1-40.12: “…the Department shall ensure that prisoners known to be pregnant are provided sufficient food and dietary supplements as ordered by a licensed physician or physician staff member to meet generally accepted prenatal nutritional guidelines for pregnant women.”	—	Va. Code Ann. §53.1-40.12: “The Department shall ensure that prisoners known to be pregnant are provided sufficient food and dietary supplements as ordered by a licensed physician or physician staff member to meet generally accepted prenatal nutritional guidelines for pregnant women.”	—	—

^a Specifies the communication of statute to incarcerated pregnant and postpartum people.

^b Specifies the oversight and enforcement of statute.

Fig. 1.

Map of state-level legislation on prenatal nutrition for incarcerated people.

Pregnancy Test on Intake

Of the 16 states that have passed legislation regarding nutrition for pregnant people who are incarcerated, 5 (CA, CT, MA, MD, and TX) have laws that require prisons to assess people who are incarcerated for pregnancy on intake. California, Texas, and Massachusetts' statutes explicitly mention people incarcerated in jails, and California's statutes include those incarcerated in detention facilities. No federal statutes mandate prenatal testing on intake.

Provide a Prenatal Diet Following Federal Dietary Guidelines

Fifteen states (AR, AZ, CA, CO, CT, KY, MA, MD, MS, NC, NJ, SC, TN, TX, and VA) have statutes related to providing an adequate diet to pregnant people who are incarcerated. These statutes, however, typically lack detailed information about the type of food, frequency of meals, or any other description of the diet required for this population; thus, it is unknown whether these diets meet all of the guidelines set forth by the DGA and the IOM for pregnant people. For example, Kentucky and Maryland specify only that pregnant people be given access to “adequate nutrition” and have “nutritional needs” met. Colorado requires only that pregnant people be provided with “healthy foods.”

Arizona, Connecticut, North Carolina, South Carolina, and Virginia are the only states that stipulate that a medically approved diet meet prenatal standards, although what these prenatal standards are is not specified. Arizona, California, Connecticut, Mississippi, New Jersey, North Carolina, South Carolina, Texas, and Virginia require that diets provided to pregnant people be approved by a medical professional, although the type of medical professional differs by state.

For example, statutes in California and New Jersey state that a diet be prescribed by a physician; South Carolina specifies a physician, physician staff member, or facility nutritionist; Virginia stipulates a licensed physician or physician staff member; Texas specifies an appropriate medical professional; and Connecticut specifies a licensed health care provider trained in prenatal care.

Eleven states include language that mentions those incarcerated in county jails, while Connecticut, Maryland, New Jersey, and Virginia do not explicitly mention jails. Of note, North Carolina is the only state with a statute that mentions nutrition immediately after birth. The law mandates that during recovery in the birthing hospital, incarcerated people have access to “the full range of meal options provided by the hospital.”

California, Connecticut, and North Carolina are the only states that have statutes requiring their content be communicated to pregnant people who are incarcerated. No state statutes have content outlining enforcement mechanisms for the provision of an adequate prenatal diet in carceral facilities. No federal statutes cover prenatal diets for incarcerated people.

Provide Supplemental Food Appropriate to the Trimester of Pregnancy and Pre-Pregnancy Weight

Florida and Tennessee are the only states with statutes pertaining to access to supplemental food during pregnancy. Both statutes cover prisons and jails. However, such statutes contain vague language (e.g., “supplemental provisions between meals”) with no details about the nutritional content or additional daily caloric intake, if appropriate. Neither Florida nor Tennessee has laws describing the enforcement or required communication of this statute to pregnant people who are incarcerated. No federal statutes exist detailing the provision of supplemental food during pregnancy.

Prescribe Prenatal Vitamins

Eleven states (AR, AZ, CA, CT, MA, MS, NC, NJ, SC, TX, and VA) have statutes regarding access to prenatal vitamins/dietary supplements. Seven of these states (AZ, CA, CT, NJ, SC, TX, and VA) specify that the prenatal vitamins be recommended by a health care provider, although the type of health care provider required differs across states. Of note, California has two statutes specifying access to prenatal vitamins for pregnant people in juvenile facilities and community treatment programs, but these laws do not apply state prisons or county jails. California is the only state with statutes specifying that supplements be provided daily. Arkansas, California, Massachusetts, and South Carolina are the only states with statutes that explicitly mention those incarcerated in jails.

No state has a statute that describes the required or suggested dietary supplements' contents, ingredients, or amount. In addition, no states have statutes that require carceral facilities to report prenatal vitamin access compliance to an outside organization. No federal statutes include information on the provision of prenatal vitamins.

Provide Access to Water

No states have statutes related to additional hydration or expanded access to water during pregnancy. There are no federal statutes pertaining to access to water.

Provide Prenatal Nutrition Education and Counseling

Maryland, Massachusetts, Colorado, and Connecticut have statutes related to nutrition counseling or access to written information on prenatal nutrition during pregnancy. Massachusetts is the only state with a statute that mentions those incarcerated in county jails. Again, the language used in these statutes is brief and lacks detailed descriptions about the type or content of this education or counseling. For example, Massachusetts states that pregnant people who are incarcerated be given “written information regarding prenatal nutrition.” Maryland's law requires only that pregnant individuals be provided with “nutritional needs and counseling.”

Of note, Connecticut requires such information be in a form that is “reasonably understood.” None of these states mention the enforcement or communication of their respective statutes to pregnant people. There are no federal statutes related to prenatal nutrition education and counseling.

Discussion

Our analysis found that nutrition, despite being of great importance to the health of pregnant people and their fetuses, is not typically protected by state or federal law. No federal statutes exist that cover prenatal nutrition for incarcerated people, although H.R. 6878, the Pregnant Women in Custody Act, which includes nutritional content, has passed the House and been referred to the Senate at the time of writing. Furthermore, fewer than one third of U.S. states have passed legislation mandating health-promoting nutritional policies for pregnant people who are incarcerated.

Of the 16 states that have passed legislation pertaining to nutrition for this population, none cover the full breadth of current recommendations for prenatal diet as outlined by the DGAs, the IOM, and, specific to incarcerated pregnant people, NCCHC's and Shlafer et al.'s (2017) recommendations, to ensure proper nutrition. Statutes ensuring proper hydration and nutrition education are especially lacking—no state has legislation mandating access to proper hydration and only four states (CO, CT, MA, and MD) have statutes mandating access to nutrition education.

Many of these statutes lack detailed language to define “adequate nutrition” and do not provide enough detail for carceral facilities to successfully implement the health-promoting intention of these policies. For example, while nine states have passed laws stating that diets for pregnant people who are incarcerated be approved by a medical professional, only five further require that the diet meet national nutritional standards specific to pregnancy. Of the state statutes that do specify that pregnant people be provided with a “diet prescribed by a physician,” the language, though potentially providing prisons and jails with administrative flexibility in who can write dietary orders, typically does not ensure that the prescribing physician is trained in or has sufficient knowledge of nutritional needs during pregnancy.

Furthermore, statutes more frequently apply explicitly to pregnant people incarcerated in prisons, and do not explicitly cover those in jails or other short-term detention centers. This is of particular concern, as admissions of pregnant people to jails occur more frequently than admissions to prisons (Sufrin et al., 2020).

Although state laws for access to optimal nutrition for this population are an important step, it is not sufficient to guarantee that carceral institutions will implement these policies. Although NCCHC offers accreditation to carceral facilities and has provided recommendations to facilities regarding optimal nutrition for pregnant people, accreditation is not required (NCCHC, 2023). Furthermore, the United States has no independent oversight agency that ensures prisons and jails comply with state and federal law (Fathi, 2010).

There is evidence from several states that despite state laws mandating carceral facilities follow certain policies pertaining to the care and treatment of pregnant people (such as prohibiting the use of restraints), implementation of these laws is not consistent (Kuhlik, 2017; Tapia & Vaughn, 2010), pointing to the need for robust enforcement of state statutes. Our policy scan found no provisions for enforcement of existing nutritional statutes at the state level. This lack of enforcement mechanisms and oversight seriously jeopardizes access to adequate nutrition and hydration for pregnant people who are incarcerated, even in the few states in which prenatal nutrition-related statutes have been passed.

In light of this lack of oversight, the primary mechanism for recourse when the rights of people incarcerated have been violated is by bringing legal action in state or federal courts. However, the passage of the federal Prison Litigation Reform Act (PLRA) in 1996 significantly curtailed the ability of people incarcerated or their advocates to sue corrections officials for violations of state law. The PLRA requires that before a suit can be filed in a federal court, the person must have exhausted the correctional institution's internal complaint process and prove that physical harm resulted as a direct result of failure to comply with policy, and cannot recoup legal fees if the suit is successful.

The PLRA has had a marked chilling effect on both the ability of people incarcerated to file suits against correctional bodies and federal prison oversight in general (Fathi, 2010). In the context of state statutes containing content on nutrition, the ability of incarcerated people to prove that poor diet offered by the institution was the direct cause of harm may be particularly low, making enforcement mechanisms of these statutes of utmost importance.

Limitations

This study was limited in two key ways. First, while we conducted a postreview hand search of state-level statutes to ensure that we had identified all relevant statutes, we were not able to conduct a review of how our WestLaw search performed. Second, this review does not include prisons' or jails' internal policies, which may include language pertinent to nutrition and pregnancy even in the absence of state or federal statutes.

Conclusion

Maternal morbidity and mortality in the United States have increased in the past several years (Hoyert, 2023). Pregnant people who are incarcerated experience multiple forms of marginalization and have generally poor access to optimal prenatal care before incarceration and are at high risk of adverse health outcomes (Sufrin et al., 2019). Poor nutrition during pregnancy leads to adverse health consequences for both the pregnant person and the fetus.

From a public health perspective, ensuring that pregnant people who are incarcerated receive optimal nutrition is an opportunity to address the ongoing maternal health crisis and improve health for two highly marginalized populations: pregnant people and their children born during their birthing parent's incarceration. States and the federal government can and should seize this opportunity by passing or amending legislation so that it comprehensively aligns with current nutritional guidelines for pregnant people.

Any legislation must also encode mechanisms to assess and enforce compliance with the law. To increase the public and state lawmakers' awareness of this issue, professional health organizations such as AND, ACOG, and APHA should release position statements calling for adequate nutrition and hydration for incarcerated pregnant people.

Future research should focus on (a) current facility-level nutritional policies, (b) which enforcement mechanisms can ensure that state and federal legislation is followed by carceral institutions, and (c) other nonlegislative strategies to encourage carceral institutions to adopt health-promoting policies related to nutrition and the broader care and treatment of pregnant people. Researchers should also investigate whether carceral institutions that have adopted these policies are implementing them in practice and whether there is less access to health-promoting policies for people marginalized because of their race, ethnicity, or sexual orientation.

Authors' Note

This study resulted from an ongoing policy documentation project undertaken by the Cross-Center Collaboration on the Health of Justice Involved Women and Children, a network of Centers of Excellence in Maternal and Child Health.

Authors' Contributions

J.V.: data curation (supporting), formal analysis (equal), project administration (equal), visualization (equal), and writing of the original draft (equal); T.S.: data curation (supporting), formal analysis (supporting), project administration (equal), and writing of the original draft (equal); J.B.S.: conceptualization (equal), data curation (lead), formal analysis (equal), investigation (equal), methodology (equal), project administration (lead), resources (equal), and review and editing of the article (supporting); and E.M.: conceptualization (equal), formal analysis (equal), investigation (equal), methodology (equal), and review and editing of the article (supporting).

J.S.: review and editing of the article (supporting); R.S.: conceptualization (equal), formal analysis (equal), investigation (equal), methodology (equal), software (lead), project administration (supporting), resources (equal), supervision (equal), and review and editing of the article (supporting); B.K.: conceptualization (equal), formal analysis (equal), investigation (equal), methodology (equal), supervision (equal), validation (lead), visualization (equal), writing of the original draft (equal), and review and editing of the article (lead).

Author Disclosure Statement

The authors disclosed no conflicts of interest with respect to the research, authorship, or publication of this article.

Funding Information

This work was funded by the HRSA Centers of Excellence in Maternal and Child Health, grant T03MC07648-12-06. B.K.'s work on this project was funded by the Reproductive, Perinatal, and Pediatric Epidemiology fellowship, T32 CA 009001.