HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, July 1, 2014

Guest Blogger Associate Dean and Professor Alicia Ouellette- Sterilization in the California Prisons and the Medicaid Rules: Under and Over Protecting Women

OuelletteA report issued last week by the California State Auditor confirms that unlawful sterilizations of women are not a historical relic.  Eleane Howle found that at least 39 of the 144 bilateral tubal ligations performed during an 8 year period on inmates in California’s women’s prisons were done without lawful consent, and in all but one of the 144 cases, prison medical staff failed to obtain necessary committee approvals required by state regulations.  The audit also noted that the actual number of illegal procedures might be higher than reported as auditors found seven cases at one hospital for which health records were lost.  The audit was conducted following publication of a story by the Center for Investigative Reporting, which reported that California doctors had sterilized 148 women without their consent and in violation of law, and had put significant pressure on inmates to agree tubal ligation.

The audit adds another unfortunate chapter to this country’s troubled history with illegal sterilization of vulnerable women.  Historically, low income women, women with disabilities, and women from minority racial and ethnic groups have all been disproportionately subject to involuntary sterilization.  In the California prisons, the auditor found that more than half of the women who were sterilized were minorities:  Fifty of the women were white; 53 were Latino; 35 were black; and six women classified as “other.”   Most of the women tested at less than a high school level of reading proficiency, and about one-third tested below the sixth-grade level.

How to best protect women, especially those who are vulnerable because of class, race, disability, or other status, remains a perpetual problem.  In response to the California prison scandals, the California Senate unanimously passed a bill  that would forbid sterilization of inmates for purposes of birth control.  The bill is awaiting action in the Assembly.


The move in California to further limit access to sterilization comes at the same time that pressure is mounting to ease Medicaid regulations designed to protect low income women and women from minority racial and ethnic groups from unwanted sterilization procedures.  Medicaid regulations require women to sign a consent form 30 days prior to all sterilization procedures. If the form is not signed, filled out incorrectly, or not with a woman at the time of her procedure, her request will be denied.  The Medicaid consent policy was established in 1979 by the U.S. Department of Health, Education, and Welfare in response to evidence that doctors were forcing sterilizations on low income and minority women, and that many Medicaid patients were persuaded that they would lose their benefits unless they underwent surgical sterilization.[1] 

Recent reports suggest that the mandated 30 day waiting period, together with a rule prohibiting laboring women from providing consent, deters hundreds of women annually from obtaining strongly desired, effective, permanent contraception.  The result, unsurprisingly, is more unplanned pregnancies.  Women with unmet requests for postpartum sterilization have a high rate of repeat pregnancy (approaching 50%) within the following year, in contrast with women with private insurance, who do not face such cumbersome consent requirements.[2]   Unplanned pregnancies are associated with poor health outcomes such as low birth weight infants, infant mortality, and maternal morbidity and mortality.  This evidence has persuaded the American Congress of Obstetricians and Gynecologist and others that the Medicaid consent rules place unfair barriers on poor and minority women compared to women with private health insurance, that the barriers come at a cost to women’s reproductive health, and that the regulations violate fundamental principles of bioethics.  In effect, the Medicaid regulations create “a two-tiered system of access, in which low-income women may not be able to exercise the same degree of reproductive autonomy as their wealthier counterparts.”[3]  The arguments that the Medicaid rules should be lifted are powerful.

The contemporaneous calls for bans on the sterilization of incarcerated women in California and the lifting of barriers to tubal ligation for Medicaid recipients reflect in part the push and pull of politics around reproductive freedom for low income and minority women.  Ideally, all women should have voluntary, informed access to surgical sterilization absent burdensome systematic barriers, and no woman should ever experience forced or coerced sterilization.  Striking the right balance remains a significant challenge.

-Associate Dean and Professor Alicia Ouellette

[1] See,

[2] Thurman AR, Janecek T. One-year follow-up of women with unfulfilled postpartum sterilization requests. Obstet Gynecol 2010;116:1071–7.

[3] Sonya Borreno, et al, Medicaid Policy on Sterilization – Anachronistic or Still Relevant, 370 N. Eng. J. Med. 102-104 (2014)

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