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Are contraceptives essential health care? Legislators debate bill to give inmates birth control

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Lone Peak Correctional Facility, part of the Utah State Prison, in Draper is pictured on Thursday, Aug. 13, 2020.

Spenser Heaps, Deseret News

SALT LAKE CITY — A Utah legislator’s proposal to give contraceptives to jail inmates sparked a passionate debate Tuesday about whether birth control qualifies as essential health care or an elective medication.

HB102 would require jailers to provide inmates with the contraceptives they were already taking before their incarceration.

For women in the criminal justice system, 84% of their pregnancies are unintended compared to 50% of pregnancies overall, bill sponsor Rep. Jen Dailey-Provost, D-Salt Lake City, told members of the House Health and Human Services Committee.

While inmates usually don’t get pregnant while they’re in jail, the discontinuation of their birth control regimen creates risk if they have sex soon before or after as the average jail stay is 27 days — about the length of a woman’s menstrual cycle. They also face worse outcomes for themselves and their children due to their situation. They should be able to start their families when they’re in a “better place” In their lives, Dailey-Provost said.

“We also need to recognize that contraceptives are prescribed for a myriad of medical issues aside from preventing pregnancy,” Dailey-Provost said.

She noted that the Eighth Amendment of the Constitution ensures health care for inmates, and they currently receive all of their prescribed medications except for controlled substances and contraceptives, which are considered discretionary.

The bill carries a fiscal note of $88,500 in ongoing funds as the Utah Department of Health would pay for the contraceptives.

“I think that a policy like this creates better outcomes for patients and for our communities,” Dailey-Provost said, noting that a single newborn in the neonatal intensive care unit can cost the state over $100,000 for a mother on emergency Medicaid.

“So if we can prevent any number of those adverse outcomes both for patients and their children — as well as prevent the expense to the state associated with high-risk pregnancies and high-risk deliveries — then overall we have done our job as a Legislature in controlling some cost and creating a better outcome for patients and infants,” Dailey-Provost said.

Rep. Ray Ward, R-Bountiful, a family physician by trade, questioned why contraceptives have been excluded from inmates’ health care as he considers them as important as other medications.

Dailey-Provost said she believes the exclusion is a reflection of society historically viewing contraceptives as a convenience for those who can afford them.

The bill would include oral and injectable contraceptives, as well as intrauterine devices for women who are prescribed them because they face serious side effects from the other contraceptive forms. Morning-after bills, which are not considered contraceptives, would not be included.

Rep. Rosemary Lesser, D-Ogden, a retired obstetrician-gynecologist, called the exclusion of contraceptives in prisoners’ health care a “really serious oversight.”

“There are many, many (gynecological) conditions that are treated with contraceptive, either intrauterine devices or birth control pills,” Lesser said.

“If we do not do this, we are actually not serving the women who are incarcerated medically. Even if you are opposed to birth control for whatever reason, you can’t take away our ability to treat these patients for their many gynecological problems,” she added.

“Contraception is medical care, and they are one and the same.”

Rep. Merrill Nelson, R-Grantsville, said he is concerned that the bill equates contraceptive care with health care although contraceptives don’t serve the purpose of avoiding “disease or injury.”

“We’ve greatly expanded the scope of just medical care from physical disease or injury to psychologist harm, and I think that’s the first big leap,” Nelson said. “This is a whole new area. We’re providing a whole new category of services beyond medical care, separate from medical care.”

He said the risk of pregnancy while in jail custody “is really too remote” to justify the program and its expense.

Nelson acknowledged that he is unfamiliar with the issue and noted that “maybe that’s where the medical establishment is, maybe that’s where everybody is, but I’m just a dumb old lawyer ... and this is very new to me.”

“That seems too much, too fast, too far,” Nelson said.

Rep. Marsha Judkins, R-Provo, said she was put on birth control pills at age 17 for a health condition.

“And so it’s really not a new thing to be treating health conditions with birth control, so maybe you can take my experience that there are medical conditions that require birth control to be prescribed,” Judkins said.

When the meeting opened for public comment, Amelia Clement, who described herself as an OB-GYN in Salt Lake City, said “birth control, contraception is an essential part of health care, and to take away this medication from particularly vulnerable and marginalized patient population is doing them a disservice both from a contraceptive standpoint and as a standpoint from treating common gynecological conditions.”

Maryann Martindale, with the Utah Academy of Family Physicians, acknowledged that the bill makes some hesitant, but contraceptives are a “maintenance medication” that need to be maintained to work.

The bill received the committee’s favorable recommendation with a 9-3 vote, and it will move to a vote in the full House.