BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1433 Hearing Date: April 19, 2016
-----------------------------------------------------------------
|Author: |Mitchell |
|-----------+-----------------------------------------------------|
|Version: |April 7, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JRD |
| | |
-----------------------------------------------------------------
Subject: Incarcerated Persons: Contraceptive Counseling and
Services
HISTORY
Source: California Correctional Health Care Services (CCHCS)
Prior Legislation:None known
Support: American Civil Liberties Union; California Attorneys
for Criminal Justice; Planned Parenthood Northern
California Action Fund; Planned Parenthood Affiliates
of California; Planned Parenthood Advocates Pasadena
and San Gabriel Valley; Planned Parenthood Mar Monte;
Planned Parenthood of Orange and San Bernardino
Counties
Opposition:California Right to Life Committee, Inc. (CRLC);
California State Sheriffs' Association
PURPOSE
The purpose of this legislation is to provide inmates who
menstruate with improved access to birth control, as specified.
SB 1433 (Mitchell ) Page
2 of ?
Existing law requires that any female confined in any local
detention facility, upon her request, be allowed to continue to
use materials necessary for (1) personal hygiene with regard to
her menstrual cycle and reproductive system and (2) birth
control measures as prescribed by her physician. (Penal Code §
3409(a).)
Existing law requires that each and every female confined in any
local detention facility be furnished by the county with
information and education regarding the availability of family
planning services. (Penal Code § 3409(b).)
Existing law requires family planning services be offered to
each and every woman inmate at least 60 days prior to a
scheduled release date. Upon request any woman inmate shall be
furnished by the county with the services of a licensed
physician or she shall be furnished by the county or by any
other agency which contracts with the county with services
necessary to meet her family planning needs at the time of her
release. (Penal Code § 3409(c).)
Existing law requires that any woman inmate, upon her request,
be allowed to continue to use materials necessary for (1)
personal hygiene with regard to her menstrual cycle and
reproductive system and (2) birth control measures as prescribed
by her physician. (Penal Code § 4023.5(a).)
Existing law requires that each and every woman inmate shall be
furnished with information and education regarding the
availability of family planning services. (Penal Code §
4023.5(b).)
Existing law requires that family planning services be offered
to each and every woman inmate at least 60 days prior to a
scheduled release date. Upon request any woman inmate shall be
furnished by the department with the services of a licensed
physician or she shall be furnished by the department or by any
other agency which contracts with the department with services
necessary to meet her family planning needs at the time of her
release. (Penal Code § 4023.5(c).)
This bill repeals Penal Code sections 3409 and 4023.5.
SB 1433 (Mitchell ) Page
3 of ?
This bill adds the following requirements:
Any incarcerated person in state prison or a local
detention facility who menstruates shall, upon request,
have access and be allowed to use materials necessary for
personal hygiene with regard to their menstrual cycle and
reproductive system. Any incarcerated person who is capable
of becoming pregnant shall, upon request, have access and
be allowed to obtain contraceptive counseling and their
choice of birth control methods, as specified, unless
medically contraindicated.
Except as provided, all birth control methods and
emergency contraception approved by the United States Food
and Drug Administration (FDA) shall be made available to
incarcerated persons who are capable of becoming pregnant,
with the exception of sterilizing procedures prohibited by
Section 3440.
California Correctional Health Care Services or the
local detention facility shall establish a formulary
consisting of all FDA-approved birth control methods that
shall be available to persons in this legislation. If a
birth control method has more than one FDA-approved
therapeutic equivalent, only one version of that method
shall be required to be made available, unless another
version is specifically indicated by a prescribing provider
and approved by the chief medical physician at the
institution. Persons shall have access to nonprescription
birth control methods without the requirement to see a
licensed health care provider.
Any contraceptive service that requires a prescription,
or any contraceptive counseling, provided to incarcerated
persons who are capable of becoming pregnant provided,
shall be furnished by a licensed health care provider who
has been provided training in reproductive health care and
shall be nondirective, unbiased, and noncoercive. These
services shall be furnished by the facility or by any other
agency which contracts with the facility. Except as
provided, health care providers furnishing contraceptive
services shall receive training in the following areas:
o The requirements of this section.
SB 1433 (Mitchell ) Page
4 of ?
o Providing nondirective, unbiased, and
noncoercive contraceptive counseling and services.
Providers who attend an orientation program for the
Family Planning, Access, Care, and Treatment Program shall
be deemed to have met the training requirements described.
Any incarcerated person who is capable of becoming
pregnant shall be furnished by the facility with
information and education regarding the availability of
family planning services and their right to receive
nondirective, unbiased, and noncoercive contraceptive
counseling and services. Each facility shall post this
information in conspicuous places to which all incarcerated
persons who are capable of becoming pregnant have access.
Contraceptive counseling and family planning services
shall be offered and made available to all incarcerated
persons who are capable of becoming pregnant at least 60
days, but not longer than 180 days, prior to a scheduled
release date.
This bill is clear that its provisions are not to be construed
to limit an incarcerated person's access to any method of
contraception that is prescribed or recommended for any
medically indicated reason.
This bill defines a "local detention facility" as any city,
county, or regional facility used for the confinement of a
person for more than 24 hours.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
SB 1433 (Mitchell ) Page
5 of ?
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
SB 1433 (Mitchell ) Page
6 of ?
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Legislation
According to the author:
Penal Code (PC) Section 3409, which was added to law
in 1972 and has not been updated since 1975, provided
that incarcerated females would be allowed to continue
to use birth control, among other provisions. Although
existing law allows female inmates to have access to
continued use of birth control, it does not specify
that women who are not using birth control can have
access to it upon request or can switch to a different
contraception that suits their needs. Additionally,
the California Department of Corrections and
Rehabilitation (CDCR) allows conjugal visiting for
eligible inmates. Therefore, it is important that the
law be made clear that incarcerated females have
access to birth control and family planning services
upon request.
Recently, the California Correctional Health Care
Services (CCHCS) established a Women's Health Care
Initiative that is responsible for ensuring that the
health care needs of incarcerated females meet
community standards. Among other findings, it was
determined that family planning services at the
California Institution for Women, the Central
California Women's Facility and the newly established
Folsom Women's Facility must be improved, and that the
laws addressing health care needs of incarcerated
females needed to be updated.
SB 1433 will require the California Department of
Corrections and Rehabilitation (CDCR) and the
California Correctional Health Care Services (CCHCS)
SB 1433 (Mitchell ) Page
7 of ?
to provide family planning services upon request, as
well as provide that these services shall be offered
between 180 to 60 days prior to an individual's parole
release date.
2.Effect of This Legislation
The American Civil Liberties Union of California recently issued
a report relating to incarcerated women's ability to access
contraception.
Jails must allow women to continue taking any prescribed
birth control methods, so that those methods are not
interrupted during incarceration. Most policies we reviewed
include language to this effect. Indeed, four of the five
counties in our PRA sample had specific contraception
continuation policies, whereas one county did not but had a
general policy on continuation of prescription drugs and an
intake screening process that required questions about
whether the woman was taking any birth control medications.
California also requires jails to educate women about
contraception and the availability of family planning
services. Two of the five counties in our in PRA sample
had policies that clearly complied with this requirement.
One county simply did not address the issue. Another county
said contraception counseling would be provided, but only
if an incarcerated woman requested the information, thereby
putting the onus on the incarcerated person not the jail.
The final county addressed family planning education but
only in its pregnancy policy, making it unclear whether
only pregnant people get the counseling or all women do.
Jails must offer women contraceptive services within two
months of release, according to the California Penal Code.
At the time of release, if a woman requests family
planning services, she is entitled to get those services.
ACOG [American College of Obstetricians and Gynecologists]
recommends that women should be allowed to initiate a new
form of birth control at any point during their
incarceration. Only two of the counties in our PRA sample
clearly addressed the requirement of offering and providing
SB 1433 (Mitchell ) Page
8 of ?
contraceptives prior to release or initiating new birth
control methods earlier than two months prior to release.
While, on paper, jails may be addressing their obligations
with respect to contraception generally, their policies are
insufficiently clear regarding a person's need for
emergency contraception or providing emergency
contraception in a timely manner.
(Reproductive Health Behind Bars, Melissa Goodman, Ruth
Dawson, and Phyllida Burlingame, American Civil Liberties
Union of California, January 2016. [Footnotes Ommitted.])
This bill is intended to bring consistency and clarity to the
Penal Code provisions relating to a female inmate's access to
contraception. Specifically, this bill ensures that
incarcerated females have access to birth control and family
planning services upon request. Given that this legislation
provides that state prison inmates "shall have access to
non-prescription birth control methods without the requirement
to see a licensed health care provider," it is not clear if this
legislation is intended to ensure access to condoms. To the
extent that is it, members may wish to consider how this
legislation will interact with the law, which was added to the
penal code in 2015, relating to providing condoms in state
prisons:
Based on the recommendations contained in the "Evaluation
of a Prisoner Condom Access Pilot Program Conducted in One
California State Prison Facility" report, and in light of
the successful pilot project conducted at California State
Prison, Solano, the Department of Corrections and
Rehabilitation shall develop a five-year plan to
expand the availability of condoms in all California
prisons. (Penal Code § 6500.)
3.Argument in Opposition
According to the CRLC:
CRLC perceives that this bill is intended to provide
Planned Parenthood access to a captive audience of
inmates who are confined to detention facilities, the
purpose being to expand their client base and pad
SB 1433 (Mitchell ) Page
9 of ?
their net profit. This has little to do with
providing aid, or positive health care services to
these women.
Further, CRLC believes that the basic intended cohort
of detainees to whom they wish unrestrained access are
juveniles detained in Juvenile detention facilities in
order to encourage these adolescent boys and girls to
always chose [sic] Planned Parenthood and its services
before considering other medical agencies.
Planned Parenthood not only promotes itself as a major
contraceptive distributing agency, but also desires to
have the public think of it as a preferred and
exclusive medical care provider to women and children,
according to several websites.
The costs to the taxpayer of providing detention
services and the basic needs of health care for
prisoners should not be expanded merely to accommodate
family planning entities. Many inmates of both
juvenile and adult detention centers are there for
brief periods of time. Their time should be directed
to more beneficial activities that will help them
return to society and independence.
Detention facilities are not maintained for the
benefit of outside agencies, nor should its employees
be considered to be agents for family planning sales
and services.
-- END -