The Failure to Protect Pregnant Pretrial Detainees The Possibility of Constitutional Relief in The Second Circuit Under a Fourteenth Amendment Analysis

Abstract

           Pregnant individuals face substantial risks of serious harm when detained while awaiting trial.  Women and girls make up the fastest-growing population of incarcerated people in the United States. Disproportionately of color, many of these women and girls are confined pretrial simply because they cannot afford cash bail.

            In 2015, the Supreme Court held in Kingsley v. Hendrickson that a pretrial detainee’s failure to protect claim should be governed by an objective deliberate indifference standard rather than the subjective standard applied to convicted prisoners asserting Eighth Amendment violations. In Darnell v. Pineiro, the Second Circuit extended the objective deliberate indifference standard for pretrial detainee failure to protect claims beyond Kingsley’s context of excessive force.

            This Note considers how the Second Circuit’s holding in Darnell v. Pineiro may provide a relief framework for pregnant pretrial detainees suffering Fourteenth Amendment violations. It is impossible for pregnant detainees to be protected from substantial risks of serious harm while detained. Applying an objective deliberate indifference standard should result in successful failure to protect claims brought by pregnant pretrial detainees in the Second Circuit.