Women of color created and defined the concept of reproductive justice, which is firmly rooted in a human rights framework that supports the ability of all women to make and direct their own reproductive decisions. These decisions could include obtaining contraception, abortion, sterilization, and/or maternity care. Accompanying that right is the obligation of the government and larger society to create laws, policies, and systems conducive to supporting those decisions.
For many underserved women, however, obtaining true reproductive justice has remained an elusive goal. From the 1920s to the 1970s, the ultimate level of denial of reproductive freedom occurred when women of color, low-income individuals, and immigrant women were subjected to routine government-sponsored sterilization without their knowledge or consent.
Underserved women in the United States continue to experience disparities that harm their reproductive health. Compounding this problem is the nation’s track record of interference with the reproductive lives of women in these communities. Infamous legal cases also arose due to the harm caused to women across the country, such as in Buck v. Bell (low-income white women in Virginia), Relf v. Weinberger (young African-American women in Alabama), and Madrigal v. Quilligan (Latinas of Mexican origin in California). All of these cases focused on laws and policies authorizing sterilizations of certain individuals without their knowledge or consent for the “benefit” of society.
Abusive sterilization practices became another type of intrusion. Some sterilizations occurred without women’s knowledge or consent while they were under anesthesia or during labor. Providers misinformed some women about the permanent nature of sterilization or failed to counsel them about other reversible methods of contraception. If immigrant and low-income women did not consent to sterilization, some authorities threatened them with deportation or the withholding of public benefits or health treatment.
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More reports allege that from 2006 to 2010, prison officials and providers authorized sterilizations of incarcerated women in California without their prior knowledge and consent. Many of these women were women of color. In 2010, Latinas and Black women made up 59 percent of California’s prison population. This indicates that incarcerated women of color may still experience the denial of their own bodily autonomy when receiving state-provided health care.
Women of color advocates and their supporters fought to end the practice of unconsented sterilizations in the 1970s. One important result occurred in 1979. It was the creation of a Medicaid regulation establishing a minimum 30-day waiting period to get individuals’ written informed consent prior to sterilization.
The Medicaid sterilization consent requirement remains in effect today. A few researchers and health providers have questioned the continued need for the regulation’s 30-day waiting period. Their concerns include the regulation’s barrier to timely post-partum tubal ligations; the consent form, which does not reflect the needs of low literacy and limited English proficient readers; and the logistical barriers the waiting period presents for health providers.
Given the historic context and lingering reproductive inequalities involving underserved women, the undersigned organizations believe an informed dialogue between stakeholders is a critical first step in any re-evaluation of the Medicaid sterilization consent requirement. This dialogue should address the following questions:
- What data and/or complaints support the continued need for the minimum 30-day waiting period?
- What data support the need to revise the waiting period?
- What groups of underserved women have experienced sterilization without their informed consent? What data and/or complaints are available to document this?
Issues with informed consent:
- How does the 30-day window pose barriers to sterilization?
- How could these barriers be addressed? Would incorporating sterilization counseling into routine family planning, well-woman, or pre-natal visits be effective or sufficient?
- What other policies or practices are designed to prevent sterilization without informed consent? Who is responsible for their oversight? How effective are these regulations and policies?
- What improvements to the Medicaid sterilization consent form would reflect the needs of women with disabilities, limited English proficiency, and low literacy levels, who want sterilization?
- How and when do providers inform women of the full range of their contraceptive options that include long acting contraception (LARCs) and other methods?
- What gaps in access to the full range of contraceptive options continue to exist for women of color, low-income women, and immigrant women? How are these barriers being addressed?
- How will health-care reform and rulings related to contraceptive access affect women’s ability to access their full range of contraceptive options? How will the current political climate affect women’s need for sterilization and providers’ thinking around it?
A meaningful dialogue among reproductive justice advocates, women’s health advocates, health-care providers, state and federal officials, and other stakeholders that addresses these issues and related concerns can only serve to advance reproductive autonomy and justice for all women.
Asian & Pacific Islander American Health Forum
Black Women for Wellness
Black Women’s Health Imperative
California Latinas for Reproductive Justice
Jacobs Institute of Women’s Health – The George Washington University
National Asian Pacific American Women’s Forum
National Health Law Program
National Latina Institute for Reproductive Health
National Women’s Health Network
National Women’s Law Center