BILL ANALYSIS Ó
SB 1135
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Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
SB 1135 (Jackson) - As Amended: June 18, 2014
SENATE VOTE : 36-0
SUBJECT : Inmates: sterilization.
SUMMARY : Prohibits sterilization for the purpose of birth
control, including, but not limited to, during labor and
delivery, of an individual under control of the Department of
Corrections and Rehabilitation (CDCR), a reentry facility,
community correctional facility, or county jail, or any other
institution in which an individual is involuntarily confined or
detained under a civil or criminal statute. Specifically, this
bill :
1)Prohibits sterilization of an incarcerated individual through
tubal ligation, hysterectomy, oophorectomy (surgical removal
of the ovaries), or any other means rendering an individual
permanently incapable of reproducing, 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 sterilizing procedure is medically necessary,
excluding for the purpose of birth control, as determined
by contemporary standards of evidence-based medicine, to
treat a diagnosed condition and all of the following
requirements are satisfied:
i) Less invasive measures to address the medical need
are nonexistent, are refused by the individual, or are
first attempted and deemed unsuccessful by the individual
in consultations with his or her medical provider;
ii) A second physician independent of the 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,
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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, and the
side effects of the procedure.
2)Requires, if a sterilization procedure is performed, that the
individual receive pre- and post-sterilization psychological
consultation and appropriate medical follow-up.
3)Requires all facilities overseeing an incarcerated individual
to publish an annual report of sterilizations performed,
disaggregated by race, age, medical justification, and method
of sterilization, and to provide notification to all
individuals under their custody and to all employees involved
in providing health services of their rights and
responsibilities related to the provisions of this bill.
4)Specifies that an employee of a facility overseeing
incarcerated individuals who reports the sterilization of an
individual performed in violation of these provisions is
entitled to protection under the California Whistleblower
Protection Act.
EXISTING LAW :
1)Prohibits the use in prisons of any cruel, corporal, or
unusual punishment or to inflict any treatment or allow any
lack of care that would injure or impair the health of the
prisoner, inmate or person confined.
2)Prohibits an order for a particular medical treatment by a
physician employed by CDCR from being modified or canceled by
any employee of CDCR without the approval of the chief medical
officer of the institution or the physician in attendance,
except to protect the safety and security of the institution,
as specified.
3)Specifies that any woman inmate will, upon her request, be
allowed to continue to use materials necessary for personal
hygiene with regard to her menstrual cycle and reproductive
system and birth control measures as prescribed by her
physician.
EXISTING REGULATIONS :
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1)Limit the provision of medical services for inmates of CDCR to
only those services that are medically necessary.
2)Define "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.
3)Define "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.
4)Exclude 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.
5)Permit treatment of excluded conditions in cases where the
incarcerated person's attending physician prescribes the
treatment, and the service is approved by the medical
authorization review committee.
6)Require the decision of the medical authorization review
committee, when determining whether to allow treatment of an
excluded condition, to base the decision on:
a) Available health and dental care outcome data supporting
the effectiveness of the services; and,
b) Other factors, including, but not limited to,
co-existing medical problems, acuity, length of the
incarcerated person's sentence, availability of the
service, and cost.
FISCAL EFFECT : According to the Senate Appropriations
Committee, minor ongoing General Fund (GF) costs to CDCR to
provide psychological consultations, as CDCR has indicated the
provisions of this bill are consistent with current policy.
Potentially significant state-reimbursable costs (GF) incurred
by local agencies statewide for mandated medical professional
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activities including second opinion in-person consultations,
psychological counseling, and medical follow up to the extent
sterilization of an individual is considered or performed under
limited circumstances in county facilities. Minor to
significant state-reimbursable costs (GF) to local agencies to
provide notification to all applicable employees and persons in
custody of the rights and responsibilities specified in this
measure, as well as prepare and publish an annual report on
sterilizations performed. Costs would be dependent on the volume
and method in which notification is provided, which is not
currently specified.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, despite
current regulations which prohibit sterilizations of
incarcerated people, medical providers were illegally
authorizing tubal ligations on prisoners in Central California
Women's Facility and Valley State Prison for Women. The
author states that in 1999, for unknown reasons, a memo was
circulated revising the medical standards for inmates and as
part of the revision postpartum tubal ligations would be
included in obstetric care. The author notes that this memo
was in direct conflict with regulations as being "medically
unnecessary," but the procedures were being performed anyway.
The author contends that this bill is needed because women
were robbed of their reproductive choice by these coerced
procedures.
2)BACKGROUND .
a) Medical Receivership. On June 30, 2005, in a class
action lawsuit filed four years earlier, the United States
District Court for the Northern District of California
established a Receivership to take control of the delivery
of medical services to all California state prisoners
confined by CDCR. The court order establishing the
Receivership provides that the Receivership "shall cease as
soon as the Court is satisfied, and so finds in
consultation with the Receiver, that Defendants have the
will, capacity, and leadership to maintain a system of
providing constitutionally adequate medical health care
services to class members." The judge in the case issued
an order in January of 2012 stating that because of the
progress to date, "the end of the Receivership appears to
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be in sight, and the Court seeks to get the parties' and
the Receiver's views on when the Receivership should be
terminated and how this case should progress after the
Receivership has ended." On September 5, 2012, after
considering the views of all parties involved in the case,
the Court issued an order that outlined the process for
Receivership transition of medical care back to CDCR,
stating that "?To provide Defendants with an opportunity to
demonstrate their ability to maintain a constitutionally
adequate system of inmate medical care?the ultimate
transfer of power back to the State (from the Receivership)
will be transitional." Since that time, a few functions
previously managed by the Receivership
(guarding/transportation of inmates for medical purposes
and construction/activation of facilities) has been
returned to CDCR control.
b) Center for Investigative Reporting articles. Stories
published in July 2013 and February 2014 by the Center for
Investigative Reporting (CIR) are cited by the author as
background information for the problem this bill is
attempting to solve. According to the CIR reports, between
2006 and 2010, at least 148 women received tubal ligations
in violation of prison rules at two state prisons: the
California Institution for Women in Corona and the Valley
State Prison for Women in Chowchilla. According to the
2013 story, 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,
approval from top CDCR staff has been required on a
case-by-case basis. Despite there being records of tubal
ligations being performed at these two facilities, a review
conducted by the Receiver's office found no requests to the
health care committee responsible for approving such
restricted surgeries. In an interview with CIR, the Valley
State Prison medical manager said that she and her staff
had discovered the procedure was restricted and
subsequently began to look for ways around that
restriction, believing the rules were unfair to women. The
prison's OB-GYN said that he offered tubal ligations only
to pregnant inmates with a history of at least three
C-sections, stating that additional pregnancies would be
dangerous for these women because scar tissue inside the
uterus could tear, resulting in massive blood loss and
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possible death. However, the reporter spoke to a number of
previously incarcerated women who had less than three
C-sections and had been repeatedly asked to agree to be
sterilized.
c) Bureau of State Audits Report. On Thursday, June 19,
2014 the California State Auditor released report 2013-120:
"Sterilization of Female Inmates: Some Inmates Were
Sterilized Unlawfully, and Safeguards Designed to Limit
Occurrences of the Procedure Failed." The review includes
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.
d) Audit Results. The CDCR oversees the inmate population
of the State's 33 adult prisons. During the eight-year
audit period-which was defined as fiscal years 2005-06
through 2012-13-four of these prisons housed substantially
all of the female inmates: California Institution for
Women, Central California Women's Facility, Folsom Women's
Facility, and Valley State Prison for Women. For much of
the audit period, CDCR's role in providing inmates with
medical care was not significant; the more substantial role
was played by California Correctional Health Care Services
(Receiver's Office) under the direction of a federal
court-appointed receiver. A receiver took control of
prison medical care in 2006 and will retain control until
the court finds that Corrections can maintain a
constitutionally adequate prison medical care system.
From fiscal years 2005-06 through 2012-13, 144 female inmates
were sterilized by a procedure known as a bilateral tubal
ligation. The last of these female inmate sterilizations
occurred in 2011. Although various surgical procedures may
result in a female's sterilization, bilateral tubal
ligations are generally surgical procedures that are
performed for the sole purpose of sterilization, and state
regulations impose certain requirements that must be met
before such a procedure is performed. However, the state
entities responsible for providing medical care to these
inmates, CDCR and the Receiver's Office - sometimes failed
to ensure that inmates' consent for sterilization was
lawfully obtained.
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Overall, the audit notes that 39 inmates were sterilized
following deficiencies in the informed consent process.
The audit found two types of deficiencies. First, it found
no evidence that the inmate's physician, the individual who
would perform the procedure in a hospital or an alternate
physician, signed the consent form as required by state
regulations. Second, it noted potential violations of the
required waiting period between when the inmate consented
to the procedure and when the sterilization surgery
actually took place. Some inmates were sterilized
following violations of both of these requirements.
Although neither CDCR nor employees of the Receiver's
Office actually performed the sterilization procedures, the
audit concluded that they had a responsibility to ensure
the informed consent requirements were followed in those
instances when their employees obtained inmates' consent,
which was the case for at least 19 of the 39 inmates.
Either the remaining 20 inmates signed their consent to be
sterilized at a physical location other than a prison or
the Receiver's Office had difficulty determining whether
the individual who obtained consent was an employee. For
example, the physician or an alternate physician must sign
the consent form just before performing the surgery, and a
waiting period is required after the patient signs the
consent form. The audit states that the missing
physicians' signatures on some of the inmates' consent
forms are especially concerning because of what the
physician signature certifies: that the required waiting
period has been satisfied and that the patient appears
mentally competent and understands the lasting effects of
sterilization. The physician is the last check in the
informed consent process and provides the patient with the
final opportunity to change her mind.
The Audit also found that Receiver's Office failed to
ensure that the prison medical staff under its direction
followed state regulations requiring specific approvals for
bilateral tubal ligation procedures, including approvals by
two committees made up of high-ranking prison medical staff
and medical executives from the Receiver's Office and that
the failure to obtain the necessary approvals was systemic;
all but one of the 144 bilateral tubal ligation procedures
lacked the necessary approvals.
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Since January 2010, when the Receiver's Office asserts it
became aware of the sterilization procedures-following
allegations by a legal advocacy group-its medical claims
data show that the number of female inmates who have
undergone bilateral tubal
ligations and other medical procedures that result in
sterilization has greatly decreased. In addition, since
that time the audit found that the Receiver's Office has
better adhered to its processes for reviewing medical
services for necessity and for obtaining required
approvals for medical services. Nevertheless, because the
function of approving a medical procedure has been and
remains separate from the process for scheduling the
procedure at a general acute care hospital or other
community medical facility, the opportunity still exists
for inmates to receive medical services that are not
authorized.
Audit Recommendations. The Auditor recommends numerous
measures that the Receiver's office should implement
including, but not limited to:
To ensure that the necessary education and disciplinary
action can be taken, the Receiver's Office should report to
the California Department of Public Health, which licenses
general acute care hospitals, and the Medical Board of
California, which licenses physicians, the names of all
hospitals and physicians associated with inmates' bilateral
tubal ligations during fiscal years 2005-06 through 2012-13
for which consent was unlawfully obtained.
The Audit recommends that the Receiver's Office should
develop a plan by August 2014 to implement a process by
December 2014 that provide additional training to prison
medical staff regarding requirements for obtaining informed
consent for sterilization procedures. The audit also
recommends that until such time as the Receiver's Office
implements a process for obtaining inmate consent for
sterilization that complies with all aspects of the
regulations, it should discontinue its practice of
facilitating an inmate's consent for sterilization in the
prison and allow the general acute care hospital to obtain
an inmate's consent.
In its response to the audit, the Receiver's Office
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generally agreed with the report's factual findings, but
noted that it reached conclusions about its duty to ensure
compliance with the sterilization and consent procedures in
regulation that differ from the report. Nevertheless, the
Receiver's Office pledged to implement all of the
recommendations.
3)SUPPORT . Justice Now is the sponsor of this bill and writes
that in 1929 California legalized mandatory sterilizations and
an estimated third of sterilizations nationwide were performed
in California during the 20th century. Justice Now states
that despite federal prohibitions and California legislative
intent to guard against eugenics, their organization
documented that between 2006 and 2010, at least 116 people
imprisoned in women's prisons under the control of the CDCR
were sterilized by tubal ligation for the purpose of birth
control during labor and delivery. Justice Now argues that
this bill 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.
California Correctional Health Care Services writes that they
put a halt to these procedures in 2010 when it was discovered
that female inmates were being offered tubal ligations while
in state prison as far back as 1999, despite a regulation in
place at that time prohibiting this procedure except in
extreme cases where the health of the inmate was at stake.
California Correctional Health Care Services concludes that
this bill will also place these requirements on county jail
systems and with the implementation of public safety
realignment and the corresponding increase in the number of
females who will be housed for longer periods of time in
county jails, it is important that this bill apply to local
jails.
Planned Parenthood Affiliates of California writes that while
all women should be able to make autonomous decisions about
their reproductive future, the coercive nature of the prison
system raises the question of whether true consent can ever be
achieved.
4)OPPOSITION . The American Congress of Obstetricians and
Gynecologists, District IX California and the California
Medical Association have an oppose unless amended position
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because the bill does not recognize that there are medically
indicated sterilizations for the purpose of birth control.
Both organizations argue that there are some women whose
medical history is so concerning that a subsequent pregnancy
has a high likelihood of death or severe complication, so that
a tubal ligation at the time of delivery of the current
pregnancy is medically indicated and request that the bill be
amended to allow for tubal ligation in those instances.
5)PREVIOUS LEGISLATION . SB 1079 (Rubio) of 2012 would have
codified existing regulations limiting medical services for
CDCR inmates to only those services which are medically
necessary, excluding treatment for sexual dysfunction or
infertility, gender reassignment surgery, and weight reduction
surgery. SB 1079 failed passage in the Senate Public Safety
Committee.
6)DOUBLE REFERRAL . This bill is double referred. It passed out
of the Assembly Committee on Public Safety on June 17, 2014
with a vote of 7-0.
REGISTERED SUPPORT / OPPOSITION :
Support
Justice Now (sponsor)
All of Us or None
American Civil Liberties Union of California
Black and Pink, San Diego
California Attorneys for Criminal Justice
California Catholic Conference, Inc.
California Coalition for Women Prisoners
California Correctional Health Care Services
California CURE
California Legislative Women's Caucus
California Partnership to End Domestic Violence
Californians United for a Responsible Budget
Critical Resistance
Friends Committee on Legislation of California
National Asian Pacific American Women's Forum
Nevada County Citizens for Choice
Planned Parenthood Affiliates of California
Sister Song, Women of Color Reproductive Justice Collective
The Center on Reproductive Rights and Justice at UC Berkeley
School of Law
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The Women's Foundation
Women with a Vision
Women's Fightback Network, New York City Chapter
Women's Health Specialists
Opposition
American Congress of Obstetricians and Gynecologists, District
IX California (unless amended)
California Medical Association (unless amended)
Analysis Prepared by : Lara Flynn / HEALTH / (916) 319-2097