BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1135
AUTHOR: Jackson
AMENDED: March 24, 2014
HEARING DATE: April 2, 2014
CONSULTANT: Moreno
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 the control of the California
Department of Corrections and Rehabilitation or a county and
imprisoned in the state 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.
Existing statutory 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 the California Department of Corrections
and Rehabilitation (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.
Existing regulations:
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
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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.
This bill:
1.Prohibits sterilization for the purpose of birth control,
including, but not limited to, during labor and delivery, of
an individual under the control of CDCR or a county and
imprisoned in the state 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.
2.Prohibits sterilization of an individual under the control of
the department or a county and imprisoned in the state 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, except if:
a. The procedure is required for the immediate preservation
of the individual's life in an emergency medical situation;
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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 non-existent, 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 the custody of, and to
receive payment for those services from, the
department 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, if a sterilization procedure is performed pursuant
to a) or b) above, pre-sterilization and post-sterilization
psychological consultation and medical follow up, including
providing relevant hormone therapy to address surgical
menopause, to be made available to the individual sterilized
while under the control of CDCR or the county.
4.Requires CDCR and all county jails or other institutions of
confinement to 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.
5.Requires CDCR to 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 this bill.
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6.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 this bill to the
protection available under existing law related to retaliation
and whistleblower protections.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. According to the author, the Center for
Investigative Reporting (CIR), 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.Medical Receivership for CDCR. 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 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,
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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.
3.CIR articles. Stories published in July 2013 and February
2014 by the 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 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.
4.Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate
Committee on Public Safety.
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5.Prior 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.Support. Justice Now, the sponsor of this bill, states that
sterilization of an individual for birth control purposes in
the prison 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 at USC-Los Angeles, mass sterilization
of women in Puerto Rico, Black women in the U.S. South, and
Native women during the 20th century. According to Justice
Now, the time for California to actively address its shameful
eugenic legacy is long overdue. All Of Us Or None and Legal
Services for Prisoners with Children write that these medical
practices are unethical, and advising unnecessary surgeries
using misinformation, asking for women's consent during labor,
childbirth, or during a C-section, and pushing women to have
surgeries they expressly opposed is a complete breach of the
legal right to informed consent. Planned Parenthood
Affiliates of California states 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. The
ACLU of California writes that California, a state with
enlightened reproductive health policies, has simply failed to
establish procedures that allow women to obtain reproductive
health care while protecting their rights in the coercive
prison environment and this bill takes an important step to
prevent further sterilization abuse.
7.Oppose unless amended. The American Congress of Obstetricians
and Gynecologists, District IX (California) (ACOG) writes that
women in almost all circumstances enter the penal system
already pregnant and it is possible that some of these women
would have signed consent for sterilization prior to being
incarcerated. Under this bill, this consent would be
invalidated, although the reasons for banning sterilization
for the purposes of birth control should not be applicable in
this instance. ACOG states that given the inherently coercive
environment of incarceration, an adequate process for
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permitting procedures such as tubal ligation may be difficult
if not impossible to design, but they would like the
opportunity to try.
SUPPORT AND OPPOSITION :
Support: Justice Now (sponsor)
ACLU of California
All Of Us Or None
California Catholic Conference of Bishops
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Planned Parenthood Affiliates of California
Women's Foundation
2 individuals
Oppose: None received
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