An innovative New York study sheds new light on the little-known world of health care policy in jails, and confirms a major concern of prisoners, their loved ones, and their advocates – that access to health care depends entirely on where someone happens to be arrested and jailed, even within a single state.

The report, issued March 4 by the New York Civil Liberties Union (NYCLU), documents jail policies governing women's access to reproductive health care throughout the state, and finds wide discrepancies between counties as well as a disturbing lack of regulation to protect women's health.

The report has also done something else – spurred a state agency to issue a new memorandum on reproductive health care, encouraging a shift from the "ad hoc" model of service delivery to written policies and procedures, informed by advocates' recommendations.

Local Discretion

In New York, 52 of 58 counties have jail facilities for women. Women account for 25,000 "admissions" each year, with more than 3,000 in jail on any given day, and, as prisoners, each one has a constitutional right to medical care.

Under New York state law, counties are responsible for the costs of medical care for people in their custody, unless an individual in jail has third-party insurance that will cover the costs. The State Commission of Correction has the authority to issue minimum standards relating to medical care and to evaluate county jails' conformance with those standards, but it has little in the way of enforcement power when it identifies shortcomings. Until now, the Commission's minimum standards were almost entirely gender-neutral, reflecting what study author Corinne Carey calls a "one-size fits all" approach to medical care.

To investigate policies affecting women, NYCLU sent Freedom of Information requests to every county and interviewed jail personnel from a subset of counties. As the specific findings outlined below show, a recurring theme is the utter lack of written health care policies. Fourteen of the 52 counties (27%) had no written policies on any of the critical health care matters investigated. New York City is the major exception to this general trend. It is not entirely surprising that New York City would have developed more comprehensive policies than a small, rural jail; after all, Rikers Island, the New York City jail complex, confines 14,000 people, almost as many people as all the other jails in the state combined. New York City also has its own Board of Corrections, as well as an extensive network of dedicated advocacy and legal organizations that press for adequate medical care.

Why is having some sort of uniform written policy across county jails important – or any written policy, for that matter? While NYCLU staff were satisfied that some jails were providing women with adequate care despite the lack of written protocols, they also knew of cases where women had encountered problems. Policies spell out expectations, put public officials on notice, and communicate to women what their rights are. By minimizing uncertainty, they can protect people from missing out on needed care while jail officials seek guidance from the county attorney or a state sheriffs association.

Consider a free world comparison. The fight for contraceptive equity, for example, seeks to ensure that all women whose insurance plans cover prescription drugs have coverage for contraception – because access to contraception is a basic standard of care that women shouldn't have to shop around for or be denied because of their employer's choices. When someone is in jail, there is not even a pretense of consumer choice, making minimum standards all the more important.

Policy Vacuums on Critical Needs

One of the most striking findings of "Access to Reproductive Health Care in New York State Jails" is this: not a single county produced a written policy explaining when to take a woman in labor to the hospital. This may seem like such an obvious matter that no policy is needed, but the real-life experiences of incarcerated women suggest otherwise.

And recent evidence suggests that this problem is not confined to New York. In the summer of 2007, a young woman gave birth alone in the Lackawanna County Prison in Pennsylvania. Although she had repeatedly informed jail personnel that she was in labor and needed to go to the hospital, and had even been placed in an "observation cell," she wound up giving birth all alone, on the floor. In the controversy that ensued, Dr. Edward Zaloga, co-owner of the private company that runs the jail's medical services, told the local paper, "You cannot write a policy for each and every medical condition. It's literally impossible." But neighboring Luzerne County said it had a policy on labor and childbirth, as did the Pennsylvania Department of Corrections.

Given the risks for women of giving birth in jail without adequate medical attention, and the limited medical staff that smaller jails may have on duty during nights and weekends, it would make sense that jails do everything in their power to prevent this situation – including having clear policies instructing that a woman in labor should be taken to a hospital.

Where facilitating healthy childbirth would seem to be noncontroversial, a major area of contention has been whether jails respect women's right to abortion. Indeed, it was the NYCLU's involvement with two cases where women were denied timely access to abortion that led to its investigation and report in the first place. Almost half of the counties had some sort of written policy addressing abortion; however, only thirteen clearly provided unimpeded access to abortion. Potential problem areas identified include: the lack of referral procedures to abortion providers, the lack of specific time frames within which to schedule an appointment, language that appears to give jail officials discretion over the decision, and the requirement that women put up the money before the jail will even schedule an appointment.

Other key findings that demonstrate the need for regulation to ensure appropriate levels of care:

• No county had a written policy on general OB/GYN care.
• Only one county had a written policy on emergency contraception.
• Only four counties had written policies on testing and treatment for sexually transmitted infections, including one archaic policy limited to "prostitutes."
• Only 13 counties (25%) had written policies on the treatment of HIV, even though women in jail are much more likely than women in the general population to have HIV, and interruptions in antiretroviral medication can pose dire threats to health.
• Only two counties had written policies prohibiting the use of restraints on pregnant women; only one additional county had a policy on their use.
• 30 counties (57%) had written policies on access to prenatal care; even this unusually high number leaves almost half without written guidance.

The report addresses additional policy areas, including access to non-emergency contraception, treatment for sexual assault, and custody of newborns.

The Power of Information

Jails in many states operate with limited oversight from the state, and yet fundamental needs and rights are too important to be left to local discretion. In this case, the New York State Commission of Correction agreed. Its new memorandum incorporates many of the recommendations proposed by NYCLU, replacing its previous silence on abortion, for instance, with a clear statement that jails are required to provide access to abortion and to assume the costs. Because other areas of women's health are not "as well defined by law," the rest of the Commission's recommendations are "best practices."

In fact, the Commission welcomed the research results, because it did not have details about the state of women's health care in jail. Although certainly governments should provide their oversight agencies with the resources to collect the information they need, the promulgation of new recommendations shows that research can have a positive impact, and that administrative agencies, as well as courts and legislatures, are important arenas for advocacy.

Because the Commission does not have enforcement powers, continued monitoring and advocacy may be needed to ensure that county jails respond to the memorandum. Some jail administrators may readily incorporate them, having operated an ad hoc system because of financial concerns and because that's how things have always been done; others may resist for the same reasons. The report provides a model that organizations in other states may find valuable in their own efforts to secure better care for women in jail.