Access to health care for people who are incarcerated is constitutionally guaranteed. But in practice, reproductive care is highly variable in U.S. prisons and jails. Despite the majority of women in the carceral system being of reproductive age, most are unable to continue using their contraception while incarcerated.
Even if a person is in possession of their oral contraception when entering jail, they are typically not allowed to take the pills with them into custody, Dr. Jessica Sanders, assistant professor at the University of Utah in the division of family planning, told Rewire News Group.
As a result of this disruption to contraception access, recently incarcerated people are at high risk of becoming pregnant after being released. (The rate of prior unintended pregnancy is as high as 83 percent among incarcerated women, in contrast to the national rate of 45 percent.) People also use hormonal contraception for a spectrum of medical conditions, from endometriosis to painful periods, which means a pause in access can adversely affect day-to-day health.
The lack of access to medically prescribed contraception marks a significant gap in the reproductive rights and health of incarcerated people.
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Now, a new law in Utah is turning the page by guaranteeing what many argue should never have been taken away in the first place: continuous access to contraception in jails.
HB 102, which was signed in March and went into effect in July, requires Utah jails to provide incarcerated people with “the option of continuing certain medically prescribed methods of contraception.” The “certain” methods include oral and injectable contraceptives, and intrauterine devices—although the latter is only available if the oral or injectable contraceptives result in “serious and persistent adverse effects.”
There are 2,700 women currently in jail in Utah who are now eligible to continue to access their contraception. According to Planned Parenthood, HB 102 could prevent 540 unintended pregnancies among the current population in Utah jails.
The legislation has a one-year sunset date. “That was my compromise” in order to get it passed, state Rep. Jennifer Dailey-Provost, the bill’s sponsor, told Rewire News Group. Dailey-Provost said she has another bill planned for 2022 that would remove the sunset date and make the legislation permanent in Utah.
Research shows the consistent desire for contraception access among women in jail. A 2015 study found that most women “report having the goals of preventing pregnancy” and “resuming sexual activity upon release from jail.”
Yet “few have plans in place to effectively prevent pregnancy” because obtaining contraceptives does not sit high on post-release priorities. “Women immediately face multiple and competing needs to generate income, find housing, and reunify with families and partners” after their release from jail, the study found.
Compared to offering to connect an incarcerated person to a contraceptive service in their community after their release—when they face these competing demands—the introduction of contraceptive services in the facility itself led to a significant increase in birth control initiation, a 2006 study at a Rhode Island correctional facility found.
“A jail setting is where you need to have contraceptive continuity the most because jail stays are so short”—on average, people leave jail within 72 hours, and if they have a longer stay, “they are typically out within 30 days,” said Kyl Myers, a sociologist and educator whose research has focused on the contraceptive preferences and attitudes of people in jail.
Medical evaluations typically take place one to two weeks after a person enters a correctional facility, at which point the question of contraceptive need may arise. But because jail stays tend to be relatively short, a disruption to contraception use while in custody—even if the disruption lasts only 72 hours—can reduce the medication’s effectiveness, which can take up to a week to return to normal levels.
A national study in 2009 found that only 38 percent of health-care providers in correctional facilities provide any methods of contraception, and 70 percent of facilities lacked a policy on contraceptive care.
This disruption leads to higher levels of unintended or mistimed pregnancies, and it marks a significant blow to the reproductive justice of people who are incarcerated. As Dr. Andrea Knittel, an OB-GYN and researcher at the University of North Carolina, told Rewire News Group, “women should be able to decide if and when they conceive, and should also have the right to build their families in safety and with support.”
The new law in Utah is a start, but its selective inclusion of contraceptive methods and its exclusive focus on the continuation of access expose some of its limitations.
Access to contraception in the carceral system can be viewed through the prisms of continuation and initiation. HB 102 focuses specifically on the former; the person in jail has to have been using the contraception prior to their entry in order to continue to use it.
But initiation, or the ability to begin using contraception or switch to a new method, is also important. In other words, access does not just relate to continuity of care, but also the ability to begin care—and discontinue it, too.
“If I had a magic wand,” Dailey-Provost said, “I would make [the bill] so that every individual in the criminal justice system could continue a prescription for contraceptives and initiate a prescription for contraceptives.”
The bill only applies to people held in Utah county jails, not state prisons, and it also does not cover the full range of contraceptive methods. The birth control patch, for instance, is not included in the bill.
“I think that a model bill has to have every FDA-approved method of contraception that a person may be using or want,” Myers said.
In prisons and jails generally, “there is no question that pre-incarceration medication, especially medication that has been prescribed by a health-care provider” should be continued—so “why should contraceptives be treated any differently?” said Dr. Carolyn Sufrin, OB-GYN and researcher at John Hopkins School of Medicine and author of Jailcare: Finding the Safety Net for Women Behind Bars.
Put simply, “women’s gender-specific health needs are often marginalized and devalued and not considered important in the way other medications are,” she told Rewire News Group.
The passage of HB 102 signals an incremental undoing of the interruption to continuous reproductive health care in jail. While the legislation may not be as comprehensive as both legislators and researchers would like, it marks, as Sanders told Rewire News Group, “the beginning of a conversation.”