BILL ANALYSIS Ó
SB 1135
Page 1
Date of Hearing: June 17, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1135 (Jackson) - As Amended: March 24, 2014
SUMMARY : Prohibits sterilization, with limited exceptions, of
an individual under the control of the California Department of
Corrections and Rehabilitation (CDCR) or a county correctional
facility, as specified. Specifically, this bill :
1)Prohibits sterilization, for the purpose of birth control, of
any person who is involuntarily confined or detained under a
civil or criminal statute, including inmates in state prison,
reentry facilities, community correctional facilities and
county jails.
2)States that sterilization of an individual under the control
of CDCR or a county and imprisoned in a state prison, prison
or a reentry facility, community correctional facility, county
jail, or any other institution in which an individual is
involuntarily confined or detained under a civil or criminal
statute, through tubal ligation, hysterectomy, oophorectomy,
or any other means rendering an individual permanently
incapable of reproducing, is prohibited except in either of
the following circumstances:
a) The procedure is required for the immediate preservation
of the individual's life in an emergency medical situation;
or,
b) The procedure is required for the necessary treatment of
a physical medical condition, excluding birth control, and
only if all of the following requirements are satisfied:
i) Less drastic measures to address the medical need
are nonexistent, are refused by the individual, or are
first attempted and deemed unsuccessful;
ii) A second physician independent of, and not employed
by, but authorized to provide services to individuals in
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the custody of, and to receive payment for those services
from, CDCR or county department overseeing the
confinement of the individual conducts an in-person
consultation and confirms the need for a medical
intervention resulting in sterilization to address the
medical need; and,
iii) Patient consent is obtained after the individual is
made aware of the full and permanent impact the procedure
will have on his or her reproductive capacity, that
future medical treatment while under the control of the
department or county will not be withheld should the
individual refuse consent to the procedure, and the side
effects of the procedure.
3)Requires that any inmate who undergoes sterilization be
provided with a presterilization and poststerilization
psychological consultation and medical follow-up, including
providing relevant hormone therapy to address surgical
menopause, made available to the individual sterilized while
under the control of CDCR or the county.
4)States that CDCR and all county jails or other institutions of
confinement shall do the following:
a) Publish an annual report of sterilizations performed,
disaggregated by race, age, medical justification, and
method of sterilization, including, but not limited to,
hysterectomy and oophorectomy; and,
b) Provide notification to all individuals under their
custody and to all employees who are involved in providing
health care services of their rights and responsibilities
under the provisions of this bill.
5)Entitles an employee of CDCR or of a county jail or other
institution of confinement who reports the sterilization of an
individual performed in violation of these provisions to the
protection available under existing law related to retaliation
and whistleblower protections.
EXISTING LAW :
1)States that the person of a prisoner sentenced to imprisonment
in the state prison or to imprisonment in county jail, as
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provided, is under the protection of the law, and any injury
to his person, not authorized by law, is punishable in the
same manner as if he were not convicted or sentenced. (Pen.
Code, § 2650.)
2)Makes it unlawful to use in the prisons, any cruel, corporal
or unusual punishment or to inflict any treatment or allow any
lack of care whatever which would injure or impair the health
of the prisoner, inmate or person confined; and punishment by
the use of the strait-jacket, gag, thumb-screw, shower-bath or
the tricing up of prisoners, inmates or persons confined is
prohibited. (Pen. Code, § 2652.)
3)Requires CDCR to only provide medical services for inmates
which are based on medical necessity and supported by outcome
data as effective medical care. (Cal. Code Regs., tit. 15, §
3350, subd. (a).)
4)Defines "medically necessary," for purposes of medical care
provided to incarcerated persons, as health care services that
are determined by the attending physician to be reasonable and
necessary to protect life, prevent significant illness or
disability, or alleviate severe pain, and are supported by
health outcome data as being effective medical care. (Cal.
Code Regs., tit. 15, § 3350, subd. (b)(1).)
5)Defines "significant illness or disability," for purposes of
medical care provided to incarcerated persons, as any medical
condition that causes or may cause, if left untreated, a
severe limitation of function or ability to perform the daily
activities of life or that may cause premature death. (Cal.
Code Regs., tit. 15, § 3350, subd. (b)(5).)
6)Excludes certain medical treatment for incarcerated persons,
including surgery that is not medically necessary, which
specifically includes, but is not limited to, vasectomy and
tubal ligation. (Cal. Code Regs., tit. 15, § 3350 .1, subds.
(a)-(c).)
7)Allows treatment for excluded conditions in cases where all of
the following criteria are met (Cal. Code Regs., tit. 15, §
3350 .1, subd. (d)):
a) The inmate's attending physician or dentist prescribed
the treatment as clinically necessary; and,
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b) The service is approved by the appropriate Utilization
Management Committee. The committee's decision shall be
based on:
i) Available health and dental care outcome data
supporting the effectiveness of the services as medical
or dental treatment; and,
ii) Other factors, such as: coexisting medical or
dental problems; acuity; length of inmate's sentence;
availability of the service; and, cost.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Center for
Investigative Reporting, based on information gained through
working with Justice Now, broke a story in 2013 that
documented cases of coerced tubal ligations as late as 2010.
"In addition to coerced tubal ligations, Justice Now also found
an alarming number of incarcerated women who have lost their
reproductive capacity through the overly aggressive use of
hysterectomies. Too often, hysterectomies in prison appear to
be the first option for medical problems, such as fibroids,
that may have more effective and less drastic cures. Many
women have had partial and full hysterectomies while
incarcerated that were later deemed unnecessary.
"Women were robbed of their reproductive choice by these coerced
procedures. Sterilizations that occurred under the watch of
California's corrections department smack of eugenics. These
acts are unconscionable. It is well past time we put an end
to them and make sure situations like this never happen
again."
2)Background : On July 7, 2013, the Center for Investigative
Reporting reported that nearly 150 female inmates, housed at
either the California Institution for Women in Corona or
Valley State Prison for Women in Chowchilla, were sterilized
from 2006 to 2010 without required state approvals.
(Subsequent report indicates the actual number of women
inmates who underwent the procedure was 132, which was
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determined by documentation provided under the state Public
Records Act.
.)
The former inmates and prisoner advocates maintain that prison
medical staff coerced the women, targeting those deemed likely
to return to prison in the future.
According to the report, "Federal and state laws ban inmate
sterilizations if federal funds are used, reflecting concerns
that prisoners might feel pressured to comply. California
used state funds instead, but since 1994, the procedure has
required approval from top medical officials in Sacramento on
a case-by-case basis.
"Yet no tubal ligation requests have come before the health
care committee responsible for approving such restricted
surgeries, said Dr. Ricki Barnett, who tracks medical services
and costs for the California Prison Health Care Receivership
Corp. Barnett, 65, has led the Health Care Review Committee
since joining the prison receiver's office in 2008.
"'When we heard about the tubal ligations, it made us all feel
slightly queasy,' Barnett said. 'It wasn't so much that
people were conspiratorial or coercive or sloppy. It concerns
me that people never took a step back to project what they
would feel if they were in the inmate's shoes and what the
inmate's future might hold should they do this.'
"Jeffrey Callison, spokesman for the state corrections
department, said the department couldn't comment because it no
longer has access to inmate medical files.
"'All medical care for inmates, and all medical files, past
and present, are under the control of the Receiver's Office,'
Callison wrote in an email.
"The receiver has overseen medical care in all 33 of the
state's prisons since 2006, when U.S. District Judge Thelton
Henderson of the Northern District of California ruled that
the system's health care was so poor that it violated the
constitutional ban on cruel and unusual punishment.
"The receiver's office was aware that sterilizations were
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happening, records show.
"In September 2008, the prisoner rights group Justice Now
received a written response to questions about the treatment
of pregnant inmates from Tim Rougeux, then the receiver's
chief operating officer. The letter acknowledged that the two
prisons offered sterilization surgery to women.
"But nothing changed until 2010, after the Oakland-based
organization filed a public records request and complained to
the office of state Sen. Carol Liu, D-Glendale. Liu was the
chairwoman of the Select Committee on Women and Children in
the Criminal Justice System.
"Prompted by a phone call from Liu's staff, Barnett said the
receiver's top medical officer asked her to research the
matter. After analyzing medical and cost records, Barnett met
in 2010 with officials at both women's prisons and contract
health professionals affiliated with nearby hospitals.
"During those meetings, Barnett told them to halt inmate
sterilizations. In response, she said, she got an earful.
"The 16-year-old restriction on tubal ligations seemed to be
news to prison health administrators, doctors, nurses and the
contracting physicians, Barnett recalled. And, she said, none
of the doctors thought they needed permission to perform the
surgery on inmates." (For full report, see <
http://cironline.org/reports/female-inmates-sterilized-californ
ia-prisons-without-approval-4917> (as of June 9, 2014).)
The California State Auditor is currently in the process of
examining the roles, responsibilities, policies and past
practices of the state prison system and its federal
receivership. The review will include an examination of each
sterilization case from the last eight years to determine the
demographics of each inmate, including economic status,
ethnicity, race, number of prison terms, number of pregnancies
and number of births. The probe will also try to determine
whether each inmate consented to the sterilization and, if so,
how that consent was obtained. The audit is expected to be
completed by June 19, 2014.
3)Medically Indicated Procedures : Medical groups that oppose
this bill in its current form are requesting that "medically
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indicated" sterilizations be allowed as one of the exceptions
to the prohibition on sterilizations. According to the
opposition, there are circumstances that warrant sterilization
although it may not rise to the level of a medical emergency.
These instances would be "medically indicated" because a
person's medical history would create a high likelihood of
death or severe complication if the person were to have a
subsequent pregnancy. In those situations, a tubal ligation at
the time of delivery of the current pregnancy may be medically
indicated.
4)Argument in Support : According to Justice Now , the sponsor of
this bill, "Since 2004, Justice Now has also worked to
document and expose multiple cases of predominantly Black,
Latina, and indigent women and transgender individuals
experiencing hysterectomy and oophorectomy due to false
medical diagnosis (e.g. cervical cancer found to have never
existed) and/or without an imprisoned individual's knowledge
or fully informed consent.
"By law, people in California prisons are not allowed access to
non-permanent, non-surgical alternatives to contraceptive
sterilization. Moreover, people in prison do not have free
choice of medical providers. While confined by the State,
people in prison may only request consultation with a
physician of their choice if they pay for all medical and
security costs associated with the consultation. Access to
secondary medical advice is effectively barred due to cost.
Sterilization of an individual for birth control purposes in
this environment mimics the long-since discredited coercive
sterilization patterns of women of color and women living in
poverty, e.g., the sterilization of hundreds of
Mexican-American women as USC-Los Angeles, mass sterilization
of women in Puerto Rico, Black women in the U.S. South, and
Native women during the 20th century.
"SB 1135 is absolutely necessary to make sure that sterilization
is not performed in the coercive prison environment for the
purpose of permanently ending an individual's future chance of
pregnancy, is only used to address a health concern if other
less invasive, less permanent remedies are tried first or the
patient is fully informed and refuses them, the patient gets
access to a second medical opinion from a physician who is not
an employee of the confining institution and confirms the need
for sterilization to address and health condition, and
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receives proper medical and psychological follow-up care. In
addition, requiring annual reporting of sterilizations
performed disaggregated by race, age, method and medical
justification will allow governing bodies and advocates to
more easily identify and address potential patterns of concern
should they arise in the future."
5)Argument in Opposition : According to the American Congress of
Obstetricians and Gynecologists , "[T]his bill . . . completely
prohibits the option of sterilization for the purposes of
birth control, when the most medically appropriate time for
tubal ligation is during a cesarean section. To deny a woman
whom desires sterilization the opportunity for this procedure,
means that she must go through a second procedure at a later
time. Tubal ligation performed at the time of cesarean
enables the patient to be under regional anesthesia (epidural
or spinal) and for the procedure to be done via the same
incision. If performed remote from delivery, the procedure is
most commonly done by laparoscopy which necessitates general
anesthesia with intubation in order to obtain good
visualization of the abdominal and pelvic organs. This not
only adds an additional surgery for the woman, it increases
her anesthetic risks, medical costs of additional
hospitalization and puts her at risk of another conception
prior to obtaining the sterilization. Furthermore, additional
pregnancies may put her at additional risk due for health or
surgical reasons.
"A particular challenge in all legislation is crafting a
solution to fit every circumstance. This bill is no
exception. For instance, as women in almost all circumstances
enter the penal system already pregnant, it is possible that
some of these women would have signed a consent for
sterilization prior to being incarcerated. Under the current
version of SB 1135, this consent prior to entering
incarceration would be invalidated. The reasons for banning
sterilization for the purposes of birth control should not be
applicable in this instance."
6)Prior Legislation : SB 1079 (Rubio), of the 2011-2012
Legislative Session, would have codified existing regulations
limiting medical services to CDCR inmates to only those
services which are medically necessary, and would have
included treatment for sexual dysfunction, fertility, or
infertility, and surgery for gender reassignment or weight
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reduction, in the class of surgery not medically necessary and
therefore not to be provided to inmates. SB 1079 failed
passage in the Senate Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
Justice Now (Sponsor)
All of Us or None
American Civil Liberties Union
A New Way of Life Reentry Project
Black and Pink, San Diego
Black Women for Wellness
California Attorneys for Criminal Justice
California Catholic Conference of Bishops
California Coalition for Women Prisoners
California Communities Urban Institute
California Correctional Health Care Services
California CURE
California Partnership to End Domestic Violence
Californians United for a Responsible Budget
Center on Reproductive Rights and Justice at U.C. Berkeley
School of Law
Critical Resistance
Cynthia Chandler, Adjunct Professor of Law, Golden Gate
University
Dorothy E. Roberts, Professor of Law and Society, University of
Pennsylvania
Dr. Carolyn Sufrin, Assistant Professor, University of
California, San Francisco
Friends Committee on Legislation of California
Life Support Alliance
National Asian Pacific American Women's Forum
National Association of Social Workers, California Chapter
Planned Parenthood Affiliates of California
Sister Song Women of Color Reproductive Justice Collective
Women with a Vision, Inc.
Women's Fightback Network
Women's Foundation of California
28 private individuals
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Opposition
American Congress of Obstetricians and Gynecologists
California Medical Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744