News Law and Policy

California Legislature Votes to Ban Sterilization of Inmates

Nina Liss-Schultz

The bill was introduced early this year after the Center for Investigative Reporting found that women in California prisons were being sterilized under potentially illegal circumstances.

Legislation banning the sterilization of inmates in California state prisons is awaiting the governor’s signature after gaining overwhelming support from both the state assembly and senate this week.

The bill, SB 1135was introduced early this year after the Center for Investigative Reporting (CIR) found that women in California prisons were being sterilized under potentially illegal circumstances. Between 2006 and 2010, the state Department of Corrections and Rehabilitation gave tubal ligations to almost 150 women without required state approval, according to the CIR investigation.

California has a long history of forced sterilization, an issue covered by SisterSong Co-Founder Loretta Ross for Rewire earlier this year. During the 20th century, tens of thousands of forced sterilizations occurred and were backed mostly by a 1909 law that sanctioned the sterilization of people deemed unfit to have children—by and large they were mentally ill, poor, and incarcerated.

Forced sterilization was banned 70 years later, when new guidelines for sterilization were put in place, including a 72-hour waiting period and informed consent requirements. And in 1994, the state passed a law requiring that a committee of medical professionals review and approve each sterilization request on a case-by-case basis.

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Yet the CIR investigation a year ago found that no such requests were made to the committee. Incarcerated women also told CIR that they were repeatedly pressured by prison doctors to get tubal ligations, including when they were about to give birth.

The bill passed by the California legislature this week tightens the restrictions on the sterilization of inmates by banning the practice, with few exceptions. Sterilization procedures like tubal ligations would only be allowed if the person’s life is in danger or if the procedure is deemed “medically necessary” to treat a diagnosed condition. The bill also requires that jails and prisons publish data on instances of sterilization, broken down race, age, and medical justification, on their websites.

The text of the bill also acknowledges that the sterilization of inmates is a reproductive justice issue. “It is the intent of the Legislature … to ensure safeguards against sterilization abuse within the coercive environment of prison and jail, and to positively affirm that all people should have the right to full self-determine their reproductive lives free from coercion, violence, or threat of force,” the bill reads.

Both the senate and assembly unanimously voted in favor of its passage. California Gov. Jerry Brown (D) has up to 12 days to sign the legislation, before it takes effect by default.

News Health Systems

41,000 Doctors to Join Lawsuit Against Catholic Hospital Over Denial of Care

Nicole Knight Shine

Religious directives, written by the United States Conference of Catholic Bishops, forbid doctors at Catholic facilities from providing birth control and performing common reproductive health procedures.

California’s largest medical association will join a lawsuit against the state’s largest hospital system for using religious directives to deny basic reproductive health care to patients.

The 41,000-member California Medical Association (CMA) filed a motion Wednesday in state Superior Court to join an American Civil Liberties Union (ACLU) lawsuit against the Catholic hospital chain Dignity Health, the fifth largest health-care system in the country.

The ACLU lawsuit stems from the case of a Dignity Health patient who was denied a tubal ligation. The patient’s physician agreed to perform the procedure during her cesarean section, but the hospital refused the doctor’s request, citing religious directives written by Catholic bishops that classify sterilization as “intrinsically evil.”

The ACLU of Northern California and the law firm of Covington & Burling LLP in December filed the lawsuit on behalf of the patient, Rebecca Chamorro, and Physicians for Reproductive Health.

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The plaintiffs argue that forcing doctors to deny basic health care on the basis of religious objections creates a conflict between the medical well-being of patients and the directives of the Catholic hospital system. They also contend that withholding medical care for reasons unrelated to medicine is illegal in California.

A court hearing on CMA’s motion is set for May 25 in San Francisco.

Dignity Health operates 29 hospitals across California. Nationally, ten of the 25 largest hospital systems are Catholic sponsored, according to a statement released by the ACLU. One in nine hospital beds is in a Catholic facility.

Patient health is jeopardized when religious directives at these facilities trump medical judgment, advocates argue.

“The religious directives are bad for both patients and doctors and present a real threat to the medical judgment of these doctors,” Elizabeth Gill, senior staff attorney at the ACLU of Northern California, said in a statement.

Religious directives, written by the United States Conference of Catholic Bishops, forbid doctors at Catholic facilities from providing birth control and performing common reproductive health procedures like tubal ligation, sterilization, and abortion, even when the patient’s health is at risk.

The CMA intends to join the lawsuit because of the larger issues of patient safety represented in Chamorro’s case.

“Patients and their physicians, not hospital administrators following religious or any other non-medical directives, should be the primary decision-makers in each and every case to ensure each patients’ health care needs are met and the most appropriate, highest quality care is being provided,” Dr. Ruth Haskins, president-elect of the California Medical Association, said in a statement.

Commentary Law and Policy

The Context of Historical Racism Matters in the Birth Control Benefit Case

Kira Shepherd

Here is a brief history of the disparities in health care for women of color and why the outcome in Zubik v. Burwell is so important in this context.

A shorter version of this piece was published at Religion Dispatches and the Public Rights/Private Conscience Project Blog.

If the plaintiffs in Zubik v. Burwell win, women of color who work at religious nonprofits could be stripped of their right to obtain birth control coverage at no additional cost. That’s what is at stake in the latest Supreme Court case challenging the Affordable Care Act’s contraceptive requirement, which instructs certain employer-sponsored health insurance plans to cover contraception with no co-pay.

Even though women of all backgrounds work for the plaintiffs in Zubik, women of color in particular will be disproportionately affected by the outcome: Even as unintended pregnancy rates have declined in recent years, racial and economic disparities have persisted. Moreover, historical racism in the health-care system has contributed to higher rates of maternal mortality among women of color compared to white women, which combined with other poor health outcomes have had an impact on the psychological, economic, and social vitality of these communities. If the plaintiffs in Zubik are successful, it could open up the door for many other nonprofit entities and for-profit businesses to opt out of providing contraceptive insurance coverage on which women of color depend.

Here is a brief history of the disparities in health care for women of color and why the outcome in Zubik is so important in this context.

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Women of Color Have Been Denied Reproductive Liberty Throughout History

From the forced breeding of slave women to a campaign to sterilize incarcerated women who are disproportionately women of color, the institutional denial of women of color’s reproductive freedom has been marked throughout history. Slave women were egregiously deprived of any reproductive rights in the 18th and 19th centuries in their white owners’ efforts to increase the slave population. Not too long after that eugenicists popularized the idea of birth control by highlighting how it could reduce the birth rate of the most undesirable, including mentally ill and Black people in the 1920s. A few decades later, the Nixon administration pushed sterilization on low-income women, most of whom were women of color who were often coerced into the procedure. During this same time, Native American women were asked to undergo sterilizations by Indian Health Services. And more recently, prison officials were authorized to sterilize incarcerated women, the majority of them women of color. These are just a few examples of the ways women of color have been deprived of their reproductive liberty in the United States, leaving many women of color mistrustful of medical institutions and the government’s attempts to interfere with their reproductive health. The birth control benefit, however, empowers women of color to control their reproductive lives on their own terms.

The Egregious Reproductive Health Disparities Faced by Women of Color Are Rooted in Discrimination and Biases

The legacies of America’s troubling past can be seen in the egregious reproductive health disparities still prevalent in communities of color today. In 2003 the Institute of Medicine, the same institution that recommended to the Obama administration contraceptive care be offered with no additional co-pay under the Affordable Care Act, produced a study about the root causes of racial health disparities in America. The report found that many of the health disparities faced by communities of color are rooted in historic and current racial inequalities. These disparities are the result of socio-economic conditions, as well as of implicit biases held within the medical community about communities of color that lead to subpar treatment for routine medical procedures—treatment unequal to the treatment received by white patients. While just one small part of a health-care system that needs to be reformed, the contraceptive requirement provides women of color with similar access to contraceptive care as their white counterparts.

Women of Color Face Higher Rates of Unintended Pregnancies, Abortion, and Maternal Mortality

Women of color have higher unintended pregnancy and abortion rates than their white counterparts. More than half (55 percent) of all abortions in the United States are performed on women of color. These women are facing increased ramifications as abortion clinics across the country close under strict clinic shutdown laws. Such closings are making it harder for many low-income women and women of color to have an abortion, since these populations often cannot afford to cover the costs associated with traveling long distances to reach an abortion clinic. Some women have resorted to self-inducing an abortion, which can have legal consequences, as Rewire has reported.

Moreover, some of these unintended pregnancies can cost women of color their lives. The United States is now one of only eight countries—including Afghanistan and South Sudan—where the maternal mortality is increasing. These numbers become even bleaker for women of color in the United States, where Black women are four times more likely than white women to die in childbirth.

The Affordable Care Act’s Contraceptive Mandate Helps to Eliminate Some of the Reproductive Health Disparities Seen in Communities of Color

Eliminating disparities in reproductive health care, including high rates of abortion and unintended pregnancies, involves increasing access to contraception and family planning resources. Access to contraception allows women of color to plan when they will have a child, which research has shown provides them with greater financial stability and freedom. Many women of color, who on average earn significantly less than white women, cannot afford to pay for quality contraception. For example, the IUD is considered the most effective contraception available on the market today and costs between $500 and $1,000 without insurance. Because of its high cost, among other factors, only 6 percent of Black women have used IUDs compared with 78 percent who have used birth control pills, which have higher user failure rates. Continuing to provide women of color with access to contraceptive coverage at no additional cost will greatly reduce the reproductive health disparities that we see in communities of color. This is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.

It should not come as a surprise that when the U.S. Department of Health and Human Services asked the Institute of Medicine to come up with a list of women’s health services that should qualify as preventive care and require no co-pay under the Affordable Care Act in 2007, the institute included contraceptive care and counseling in its recommendations. Contraception and counseling can help right some of the wrongs done to women of color in the area of reproductive justice and liberty. The Affordable Care Act contraceptive mandate takes us one step closer to such justice. It would be a grave injustice for the Supreme Court to allow the plaintiffs in the Zubik case—and others who might follow in their wake—to take us one step back.