Access to Reproductive Health Care in New York State Jails

 
Executive Summary

Sparked by cases where women were denied access to reproductive health care while incarcerated, the NYCLU launched an investigation of policies for provision of health care specific to female inmates in county jails. The NYCLU sent Freedom of Information Law (FOIL) requests to 58 counties seeking information about access to a variety of reproductive health care services, including abortion, prenatal care, routine gynecological exams, contraception, and testing and treatment for HIV or sexually transmitted infections (STIs).

We found that although women incarcerated in New York State are legally entitled to reproductive health care, few county jails have policies ensuring comprehensive access to such care. The county jail system, which houses about 3,000 women at any given time, is governed at the local level with little state oversight. Without a uniform policy, the quality of health care a woman receives in a county jail depends on where she is incarcerated.

Not only is there no uniformity, but worse, in many facilities, policies on provision of health care were one-size fits all for all inmates, regardless of gender, ignoring the fact that women require specific health care services, such as routine gynecological examinations or pregnancy screening. For example, of the 52 counties that house female inmates, 14 counties responded that their jail facilities had no policies that dealt with any of the issues that we raised. Less than half of counties had policies specifically addressing inmates' access to abortion, and only 23 percent provided for unimpeded access to abortion services. Policies that did address women's health care often narrowly focused on pregnancy.

Many policies were uselessly vague, leaving jail officials to guess when making decisions about reproductive health care. Polices that give jail administrators and staff wide discretion in responding to women's requests for reproductive health care can lead to decisions that violate the law and harm inmates. For example, women can be denied access to abortion, HIV and sexually transmitted infections can go undiagnosed and untreated, and pregnant women can be denied prenatal care. This exposes jail officials and county governments to legal liability and jeopardizes women's health.

Jail officials are required by law to provide inmates with access to necessary medical care -- but there is also significant public health benefit to doing so. Incarcerated women suffer disproportionately from lack of access to primary care and resulting poor health outcomes. Jail administrators have a unique opportunity to provide not only necessary treatment, but also preventive health care services and screening for medical problems that often go undetected at home. Offering such services ensures that women return to their communities healthier and in less need of public health resources.

With these goals in mind, the NYCLU urges state officials and jail administrators to develop uniform set of minimum standards to ensure that incarcerated women have access to comprehensive health care. This report contains a series of recommendations that could be immediately and inexpensively implemented at any county jail.

Those recommendations include developing policies that would:

• Provide routine reproductive health care including, age-appropriate mammography, screening for STIs and pap tests.
• Ensure access prompt access to abortion, prenatal care and pregnancy testing.
• Limit the use of restraints on pregnant women.
• Provide mental health services to women following miscarriage, abortion and birth.
• Prepare for the timely transport of pregnant women to appropriate facilities for labor and delivery.
• Allow women to retain physical custody of their newborns while incarcerated.
• Ensure testing, prevention and treatment of HIV and STIs.

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I. Introduction

More than 6,000 women are incarcerated at any given time in New York State.³  Half of these women are held in more than 50 county jail facilities scattered across the state.⁴  In fact, women account for more than 25,000 admissions to county jail facilities in New York State each year,⁵  and the percentage of women being held in jails increases slightly, but steadily, each year.⁶  The vast majority of these women are serving sentences of less than a year for non-violent offenses.⁷  Most of these women are of reproductive age.⁸ 

Incarcerated women suffer disproportionately from poor health and lack of access to primary health care, and are at high risk for gender-specific health conditions that could easily be detected and treated while in jail.⁹  Incarceration offers an opportunity to improve public health by screening women for medical problems that often go undetected at home.¹⁰  Completely reliant on jail officials for all of their health care needs, these women present a tremendous challenge to county jail administrators who must both fulfill their legal obligations and address public health issues with limited resources.

The U.S. Constitution and New York State law guarantee the right to medical care in jail, including reproductive health care, but few correctional facilities have policies that ensure women's access to such care. Designed for jail populations that have historically been mostly male, health care policies and procedures are ill-equipped to deal with the increase in women inmates. As a result, jail administrators and even medical providers are often left to guess about legal requirements when a woman requests care. Too often, personal opinions and lack of understanding about women's health care combine to allow jail administrators to make the wrong decisions -- harming the women in their custody and exposing jail officials to legal liability.

This is particularly problematic with regard to access to abortion. There is no systematically collected information about access to abortion services in the more than 3,000 local jails in the U.S.; however, news stories, court cases and social science research suggest that at least some jails have policies that obstruct or prevent women from obtaining abortions, such as requiring a court order before transporting a woman for an abortion or forcing her to pay for the procedure and associated costs, such as transportation expenses and staff time.¹¹

In response to our work with the women whose stories are described above, the NYCLU's Reproductive Rights Project researched the policies and procedures in New York county jail facilities by sending Freedom of Information Law (FOIL) requests to all county jail facilities in the state.¹²  We chose to focus on jails rather than the state prison system because more women spend brief amounts of time each year in jails than they do in state prisons; because there is no uniform set of policies and procedures that jails are required to adhere to; and because the percentage of women in state jails is so small, we were concerned that health care policies would contain little guidance regarding women's health care.

Our FOIL request was not limited to access to abortion; we asked for information regarding access to a variety of other reproductive health care services. During the course of our research, we broadened our inquiry and asked selected facilities about access to an even wider array of health-related issues affecting women in custody.

Ultimately, we reviewed policies, procedures and practices related to routine gynecological care, contraception, pregnancy testing, prenatal care, mental health care following miscarriage or termination of pregnancy, the use of restraints on pregnant women, transport for labor and delivery, custody of newborns, abortion, and testing and treatment for sexually transmitted infections (STIs), including HIV.

We found that relatively few counties had policies governing access to reproductive health care, and to the extent that such policies existed, they varied widely. Most jail health care policies were "one size fits all" for both male and female inmates, and they did not recognize that women require specific health care services such as abortion and prenatal care. Many policies were so vague that it was impossible to discern how jail administrators were to respond to requests for care. And where health care issues specific to women were mentioned in a facility's policy and procedures manual, the discussion was often narrowly focused on pregnancy.

And while in practice jail officials routinely afforded inmates access to necessary care, the lack of guidance or clear policies left too much discretion to jail officials. This risks delay or denial of necessary care, which not only harms women, but can also result in legal liability for the county.

This report provides an overview of the policies and procedures affecting women's access to reproductive health care in local correctional facilities throughout New York State, and an analysis of the legal sufficiency of various policy choices -- including the absence of written policies. The report concludes with a set of recommendations that facilities can easily adopt to ensure that their legal obligations are met and that women in their custody have access to care.
 

II. Background

A.Health Care for Women in County Jail Facilities in New York

Despite the large and increasing number of women housed in county facilities,¹³  there are no uniform policies that specifically guarantee reproductive health care or provide guidance to jail officials on how to respond to requests for such care. Rather, the county jail system is governed at the local level, with little central oversight, leading to an uneven patchwork of policies.

County sheriffs are charged with the care of inmates housed in county jail facilities,¹⁴  and therefore are ultimately responsible for developing policies and procedures to provide for inmates' medical care. At least seven counties contract out this obligation to private health care companies.¹⁵  In two additional counties, public benefit and non-profit corporations provide health care services for inmates¹⁶  and are responsible both for developing policies and providing services.¹⁷ 

The legislature has granted the power to oversee county jail facilities to the State Commission of Correction (SCOC).¹⁸  The SCOC is charged with establishing minimum standards governing health care in New York's penal institutions.¹⁹  Local jail facilities are required to have policies in place for inmate health care that are consistent with SCOC minimum standards.²⁰ 

While these standards provide a general framework for policy development,²¹  they are particularly short on detail regarding women's health care. For instance, correctional facilities are required to conduct an initial health screening on all inmates.²²  The regulations do not specify, however, how soon after admission the health screening must occur²³  or what the screening must entail, other than to "identify serious or life-threatening medical conditions requiring immediate evaluation and treatment."²⁴  Nothing in the minimum standards distinguishes between health care for male inmates and female inmates, and there is nothing in the minimum standards that specifically addresses any of the areas covered in this report.

New York City has the power to promulgate its own rules and regulations for its correctional facilities.²⁵  The City Board of Correction has set minimum standards governing the health care of people jailed at Riker's Island, which houses inmates from the city's five boroughs.²⁶  City standards contain specific provisions for reproductive health care. For example, upon a woman's arrival at the correctional facility,²⁷  medical personnel must take a history that includes obstetrical and gynecological matters, administer a cervical cytology screen ("pap test") and pregnancy test,²⁸  gonorrhea and chlamydia screening,²⁹  and a syphilis test.³⁰  City rules also set minimum standards for the treatment of pregnant women: they must receive counseling, assistance and care "consistent with professional standards and legal requirements."³¹  Pregnant women are also guaranteed prenatal and postpartum care.³²  Moreover, city rules provide that women are entitled to abortion upon request.³³ 

But New York City is the exception. Most facilities outside the city do not have written policies covering these issues, and there is little guidance available to help jail officials develop policies responsive to the health care needs of women. While SCOC minimum standards establish a floor below which the standard of care cannot drop, they contain neither details nor specific requirements for health care. Moreover, they are silent on the fact that the right to an abortion is included in the minimum level of care required of jail facilities.

There also appears to be no way to hold jail facilities accountable for the level of care provided. While the SCOC has the power to promulgate minimum standards and assess county correctional facilities' adherence to such standards,³⁴  its authority over specific policies and operations is quite limited.³⁵  It cannot, for example, require counties to spend more money on health care.³⁶ 

Because state guidance on issues of health care for female inmates and reproductive health care is so scant,³⁷  many local correctional facilities look to external sources to guide their policies and decisions, including the New York State Sheriff's Association³⁸  and the National Commission on Correctional Health Care (NCCHC), an independent organization that provides accreditation and assists facilities in improving health care services.³⁹ 

NCCHC has set standards on both care of pregnant inmates and pregnancy counseling.⁴⁰  NCCHC's standard on "Pregnancy Counseling" states that "[p]regnant inmates are given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy, whether they elect to keep the child, use adoption services, or have an abortion."⁴¹  NCCHC recommends that facilities obtain a "formal legal opinion on the law relating to abortion . . . and based upon that opinion, [develop] written policy and defined procedures . . . for the correctional facility's jurisdiction."⁴²  NCCHC standards provide very little guidance on reproductive health care for women who are not pregnant -- breast examinations as indicated by risk factors are required as a part of inmates' health assessments,⁴³  and pelvic examinations and pap tests are recommended, but not required, in jail settings.⁴⁴ 

The lack of explicit standards, uniform policies or meaningful oversight results in a system where the level of care a women receives depends on where she is incarcerated. The lack of written policies within most facilities leaves broad discretion to jail administrators, corrections officers and medical staff as to whether and when to provide access to care. This report will discuss the legal obligations of correctional facilities to provide adequate medical care, the importance of policies geared specifically toward women inmates, and recommendations for creating a comprehensive set of policies and procedures designed to ensure adequate health care for women.
 

B. Legal Standards Governing Health Care in Correctional Facilities

1. The Right to Medical Care

Correctional facilities must ensure that inmates receive medical care. The Eighth Amendment to the U.S. Constitution, which protects prisoners from "cruel and unusual punishment," requires corrections officials to provide a "safe and humane environment."⁴⁵  As the Supreme Court recognized in Estelle v. Gamble, a landmark case governing the provision of health care in correctional facilities:

[The government has an] obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his [sic] medical needs; if the authorities fail to do so, those needs will not be met. . . . [D]enial of medical care may result in pain and suffering, which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation, codifying the common law view that "it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself."⁴⁶ 

The Estelle decision established a two-pronged standard to determine whether correctional facilities' actions in denying medical care violate the Eighth Amendment: (1) whether the incarcerated person's medical needs are serious; and (2) whether officials exhibit "deliberate indifference" to those needs.⁴⁷  "Deliberate indifference" has been found where officials "erect barriers and outright denials to medical treatment."⁴⁸  Thus, when prison or jail authorities "deny reasonable requests for medical treatment . . . and such denial exposes the inmate to 'undue suffering or the threat of tangible residual injury,'" they violate inmates' constitutional rights.⁴⁹ 

An Eighth Amendment violation occurs when jail administrators ignore the health care requirements of state law.⁵⁰  Applying these principles to reproductive health care, for example, New York State law requires jail administrators to transport an incarcerated woman who is about to give birth to an outside medical facility "a reasonable time before the anticipated birth of such child," and provide her with comfortable accommodations, maintenance and medical care[.]"⁵¹  A correctional facility that fails to do so could run afoul of the Eighth Amendment.⁵² 

The denial of care after sexual assault, including abortion if requested, could also violate an inmate's constitutional rights because such care is required by state law. For example, New York State law requires hospitals to make emergency contraception available to anyone presenting as a sexual assault victim.⁵³  Failure to provide these emergency services to inmates could therefore constitute an Eighth Amendment violation.

Denial of an inmate's request for abortion services violates the Eighth Amendment because abortion is considered a "serious medical need" under Estelle, even where the abortion is not necessary to preserve the life or health of the woman.⁵⁴  Although there is some disagreement in the courts as to whether abortion is considered a serious medical need, there is no controlling law in New York on this issue. The Third Circuit Federal Court of Appeals has provided the most persuasive reasoning on this point: "[a]n elective, nontherapeutic abortion may . . . constitute a 'serious medical need.' . . . A serious medical need exists where denial or undue delay in provision of the procedure will render the inmate's condition 'irreparable.'"⁵⁵  The court found that denial of abortion care would result in "tangible harm" to the inmate, and quoted the Supreme Court's reasoning in Roe v. Wade:

The detriment that the State would impose upon the pregnant woman by denying her this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with an unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases . . . the additional difficulties and continuing stigma of unwed motherhood may be involved.⁵⁶ 

Therefore, for a woman who has decided she does not want to continue her pregnancy, denying access to abortion poses the very types of serious and irreparable consequences that comprise the unconstitutional denial of care for a serious medical need. On these grounds, the Third Circuit held that the facility's policy of denying abortion care to those women who could not first obtain a court order violated the Eighth Amendment.

The use of restraints, such as ankle shackles and "belly chains" -- chains that secure around an inmate's midsection -- on pregnant inmates can also violate the Eighth Amendment.⁵⁷  For example, one federal court ordered a facility in the District of Columbia to halt the practice of using restraints during labor, delivery or while the woman is in recovery following delivery.⁵⁸  As a result of a 1990 federal district court case in which a class of inmates alleged an Eighth Amendment violation due to New York City's practice of shackling pregnant inmates, the City Department of Correction entered into a stipulation prohibiting the shackling of women during childbirth, and requiring corrections officers to consult a doctor before using restraints after delivery to determine if they are medically contraindicated.⁵⁹ 
 

2. The Right to Choose

The Supreme Court made clear more than 35 years ago that a woman has a fundamental right to decide whether or not to bear a child.⁶⁰  The Court has repeatedly reaffirmed that holding, most recently stating that "[b]efore viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'"⁶¹  A state, therefore, is not permitted to create an "undue burden" on this right, "which exists if a regulation's 'purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before a fetus attains viability.'"⁶² 

New York Law permits abortions for any reason up to 24 weeks from the beginning of pregnancy.⁶³  Beyond this period, abortions are permitted in three situations: (1) where the life of the woman is at risk;⁶⁴  (2) where the health of the woman is at risk;⁶⁵  and (3) where the fetus has a condition that is incompatible with life, even if the woman's health is not at risk.⁶⁶ 

It is firmly established that women do not surrender the fundamental right to abortion when they are incarcerated.⁶⁷  Although courts have determined that jail and prison administrators have discretion in setting policies for their facilities, that discretion is limited when constitutional rights are at stake. Thus a jail facility's obstruction of access to abortion -- whether through outright refusal to provide abortion care, or unreasonable procedural hurdles which result in delay -- constitutes a violation of the woman's right to privacy under the U.S. Constitution.⁶⁸ 

Courts have evaluated the constitutionality of policies limiting women's access to abortion and policies that restrict other constitutional rights, under a four-part test known as the Turner standard.⁶⁹  First, "[t]here must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it."⁷⁰  Second, the existence of "alternative means of exercising the right that remain open to prison inmates" is relevant to determining a policy's reasonableness.⁷¹  Third, courts must consider the impact accommodating the right would have on other inmates and prison resources.⁷²  And finally, the existence of ready alternatives to accommodate the asserted right at "de minimus" cost to valid penological interests could render a policy unreasonable or an "exaggerated response" to prison concerns.⁷³ 

Applying the Turner standard, courts have found that restricting incarcerated women's access to abortion services is unconstitutional.⁷⁴  A requirement that a woman obtain a court order prior to scheduling an abortion, for example, has been held to comprise a constitutionally impermissible obstacle to exercising the right to choose, particularly where inmates seeking other types of medical care (most notably, prenatal care) are not subject to the same requirement.⁷⁵ 

Courts have emphasized the importance of providing access to abortion without delay because the ability to choose an abortion is, by its nature, of limited duration. A pregnant woman who is blocked or delayed in her effort to obtain an abortion may not be able to exercise her right if too much time passes. All states sharply limit the availability of abortion after the point of fetal viability, and many counties do not have abortion providers who perform second trimester procedures.⁷⁶  In addition, while abortion is one of the safest medical procedures available, the medical risks increase as pregnancy progresses.⁷⁷  For all these reasons, correctional facilities are obliged to provide women with timely access to abortion services.
 

3. The Obligation to Pay for Care

New York law requires that individual counties assume the cost of providing inmates in their local correctional facilities with medical care, unless third-party health insurance covers such care.⁷⁸  This includes diagnoses, tests, care and treatment for any condition affecting an inmate's health. Therefore, costs associated with prenatal care, labor and delivery, and STI/HIV testing and treatment, and indeed all of the health care needs covered in this report, are the obligation of individual counties.

The question of whose responsibility it is to pay arises in the context of abortion more than any other type of health care.⁷⁹  Under the Eighth Amendment, and under New York law, abortion is considered needed medical care.⁸⁰  Correctional authorities "may not condition the provision of those needed medical services that it has an affirmative duty to ensure and provide upon the woman's ability and/or their willingness to pay."⁸¹  Because abortion is considered to be needed medical care, because the right of an incarcerated woman to obtain an abortion cannot be conditioned on her ability to pay, and because New York law requires correctional facilities to assume the cost of such care, county jail facilities must pay for abortion procedures.⁸² 
 

III. Findings

The following section summarizes the findings of the NYCLU's survey of policies governing the provision of various types of reproductive health care in New York's local county jail facilities,⁸³  analyzes the legal and public health implications of various policies (including the absence of written policies), and provides recommendations that will assist corrections officials in complying with legal requirements and ensuring quality medical care for the women in their custody. Appendix A describes our methodology, and the Freedom of Information Law (FOIL) request that we sent to county facilities is provided in Appendix B. Brief summaries of each county's policies, including specific language and citations to policy and procedure manuals, can be found on our web site at www.nyclu.org.
 

A. Summary

In general, we found that there is no uniform set of policies on access to reproductive health care for county jail facilities, nor is there meaningful oversight of facilities which create their own policies. The policies that we reviewed varied widely from county to county; many counties had no written policies at all, and most covered only a few aspects of women's reproductive health care. Of the 52 facilities that housed women, we found that:

• Fourteen responded that their jail facilities had no policies that dealt with any of the issues that we raised.⁸⁴  Some of the fourteen facilities simply stated that the jail complied with the state's Corrections Law.⁸⁵ 
• None had a written policy on general OB/GYN care for female inmates.⁸⁶ 
• None had any policy or procedure on how to handle the medical needs of women who go into labor.
• Forty-six percent had written policies specifically addressing inmates' access to abortion,⁸⁷  and only 23 percent provided for unimpeded access to abortion services.⁸⁸ 
• Just 57 percent had written policies addressing access to prenatal care.⁸⁹  Five counties' policies explicitly allowed pregnant women to continue receiving care from their community-based providers, if possible.⁹⁰ 
• Only three had specific written policies regarding the use of restraints on pregnant women, and only two of those policies prohibited the practice.⁹¹ 
• Only Saratoga County had a written policy on the provision of mental health care treatment for women who miscarry, although 11 indicated in their written policies that mental health assessment and treatment were generally available to any woman with such needs.⁹² 
• Only four had written policies on testing and treatment for sexually transmitted infections (STIs).⁹³ 
• Just 25 percent had written policies relating to the treatment of HIV;⁹⁴  and six additional facilities had written policies on HIV testing.⁹⁵ 
• Eight had written policies on the provision of post-exposure prophylaxis (PEP) for inmates exposed to HIV.⁹⁶ 

 

B. General Findings and Analysis on the Provision of Medical Care

County jail facilities in New York provide for inmate health care in three ways: (1) primarily on site by medical staff employed by the jail; (2) primarily in the community; or (3) on site by employees of private companies. Some jails have well-equipped and staffed medical units with examining tables, beds and laboratories. In those jails, medical care is provided primarily by medical staff employed by the jail, and inmates are sent for care outside of the facility only for services that the jail cannot provide. Most of New York's jails, however, have very small medical units staffed by a single registered nurse (RN) or licensed practical nurse (LPN), and can provide only the most basic services. In these jails, most medical care is provided by health care professionals in the community.

At least nine jail facilities employed private or public benefit health care companies⁹⁷  to provide inmate health care services.⁹⁸  We found few apparent differences between the policies in these facilities and jails that provided most health services themselves or transported inmates to providers in the community. Surprisingly, however, we found few similarities in terms of the substance of the written policies from private or public benefit health care companies -- these policies varied even among facilities utilizing the same health care company.⁹⁹ 

The perils of privatizing correctional health care -- documented extensively with regard to at least two of these companies¹⁰⁰  -- lie largely in the wide discretion given to non-governmental actors. "Contracting out" inmate health care services poses two problems. First, private companies hired to perform this essential state function are charged with the conflicting tasks of delivering care and making a profit. This provides a strong incentive to cut costs, which can result in substandard care. Second, handing over such functions to private entities raises concerns about lack of transparency and public accountability.¹⁰¹ 
 

C. Reproductive Health Care Policies

Of the 52 counties that housed women, just over half had policies that were specific to pregnant inmates or women. Logically, it would make sense to structure a policies and procedures manual with a single section covering all medical issues specific to women, such as contraception, routine gynecological care, and pregnancy and prenatal care, and several purported to do so. In practice, however, we found that policies with titles that suggested a comprehensive treatment of women's health issues were woefully incomplete in all but two cases.¹⁰² 

Analysis of most counties' purportedly comprehensive policies for women's health care showed that they were narrowly focused on pregnancy. For example, Saratoga County's one-page policy "Health Care -- Female Medical Care," led with an ambitious goal: "It is the policy of the . . . [f]acility to provide all necessary specialized medical care for female inmates that may be required, consistent with standards of contemporary community health care."¹⁰³  Yet, the policy only covered prenatal care, and what to do if a woman miscarried. It said nothing about contraception, routine gynecological care, provision of emergency contraception and post-exposure prophylaxis in the case of sexual assault, or the use of restraints on pregnant women. The only mention of abortion was a statement that: "Decisions by inmates who wish to obtain an abortion will be governed by state law."¹⁰⁴ 

This was typical of the policies we analyzed. What follows is a more detailed discussion of the policy provisions that did deal with specific substantive areas of reproductive health care for women, and an analysis of the legal and health care implications of each policy.
 

1. Routine Gynecological Care

Women's health care needs differ from those of men. Because the vast majority of those incarcerated have always been men, health care policies for correctional settings are designed for male inmates.¹⁰⁵  But the number of women being held in correctional facilities is on the rise. Nationwide, women now account for a larger percentage of the incarcerated than ever before.¹⁰⁶ 

Correctional facilities are, by necessity, starting to pay attention to women's health care needs. While we certainly found evidence of this in the policies and procedures we reviewed, for the most part, policies geared towards women too narrowly focused on pregnancy, and did not reach the routine care that women require.¹⁰⁷ 

Incarcerated women are at high risk of a number of preventable diseases that could well be addressed by jail health care services through the provision of routine gynecological care. Rates of breast and cervical cancer, pelvic inflammatory diseases, and STIs are much higher among women who have been to jail than those who have not; and women who have been incarcerated have higher rates of domestic and sexual violence.¹⁰⁸  Women who have been incarcerated also struggle with substance abuse at higher rates than those who have not.¹⁰⁹ 

No county had a written policy in place that provided for routine gynecological care for women.¹¹⁰  Several counties sent policies that included routine testing for STIs, but none mentioned routine pelvic examinations or breast examinations.

There are at least three models for policies providing for routine health care for women in correctional settings -- the Hampden County Sheriff's Association's Public Health Manual for Correctional Health Care,¹¹¹  the American College of Obstetrics and Gynecology's Health and Health Care of Incarcerated Adult and Adolescent Females,¹¹²  and the American Public Health Association's Standards for Health Services in Correctional Institutions.¹¹³  All recommend routine gynecological care for women in jail facilities. Each organization recommends that pelvic examinations, age-appropriate mammography (and instruction in self-breast examinations), screening for STIs (including chlamydia, gonorrhea, and syphilis), and pap tests be incorporated into routine physical examinations that are performed on all those entering correctional facilities.¹¹⁴  They also recommend that screening for domestic and sexual violence and substance abuse be incorporated into the routine care that all women entering county jails receive.¹¹⁵ 

As the population of women in county jail facilities increases, and there is increasing guidance on the health care needs of women, county jail facilities should adopt health care policies that take into account the distinct needs of women in their custody.
 

2. Contraception

For many women who are using hormonal contraceptives solely for pregnancy prevention, ceasing the use of contraception during a period of incarceration is not inherently harmful.¹¹⁶  The obvious consequence of interrupting hormonal contraceptives is the risk of pregnancy.

In theory at least, there should be no risk of pregnancy for incarcerated women. But women are often sexually active just prior to and immediately following incarceration, and interruption in birth control creates a risk of pregnancy in both cases. Immediately ceasing contraception just after sexual activity poses a risk of pregnancy, as does failing to resume it just prior to sexual activity. For women who are held temporarily or who are repeatedly in and out of county jails, failing to take hormonal contraceptives in a timely manner could lead to unintended pregnancy or a disrupted menstrual cycle once they are released from jail.¹¹⁷ 

Women also use hormonal contraception for a number of reasons unrelated to birth control. For example, physicians prescribe contraception for reducing the risk of ovarian cancer¹¹⁸  and controlling endometriosis.¹¹⁹  Low doses of birth control are also used for women who are perimenopausal to control symptoms like hot flashes, and prevent bone loss and osteoporosis.¹²⁰  Ceasing contraceptive medication can also cause an escalation in some women of side effects that may include nausea, vomiting and diarrhea.¹²¹ 

Finally, the assumption that incarcerated women do not need access to contraception ignores the reality that incarcerated women are at risk of sexual assault in jail facilities.¹²²  For this reason, the APHA recommends that "[w]omen should be allowed to continue hormonal contraception to maintain protection for the current menstrual cycle. They should also be allowed to begin hormonal contraception a month before their release."¹²³ 

For women who were not taking hormonal contraceptives, access to emergency contraception (EC)¹²⁴  is important if they had unprotected sexual intercourse just prior to incarceration. EC is effective up to 120 hours after unprotected sex, but is more effective the sooner it is used.¹²⁵ 

Few facilities had policies in place on access to EC -- only New York City had a comprehensive policy on contraception.¹²⁶  The policy contained guidelines for how and when to administer the medication, as well as guidance for additional testing, evaluation, and medical care that should be made available to the patient. In addition, upon admission, female inmates were asked if they were interested in family planning services, and specifically, whether they had a need for emergency contraceptives, and are provided with emergency contraception in the course of post-sexual assault treatment.

In other counties,¹²⁷  we found that women were generally not permitted to continue their birth control medication unless the medical director determined that there was a medical reason to do so,¹²⁸  and no county besides New York City had a written policy on providing EC. Several facilities indicated that women could continue taking birth control medication at the discretion of the jail health care professional, particularly in cases where the woman was only being held for a short time or serving an intermittent sentence (weekends in jail).

Onondaga County's policy on "Female Hormonal Therapy" contained a rationale for permitting women to continue birth control while in jail:

Many women are incarcerated for a short period of time or repeatedly. Disruption in hormonal therapy may cause medical complications such as amenorrhea, prolonged menstrual bleeding, mood swings, ectopic pregnancy, abdominal pain, postmenopausal symptoms, or medically contraindicated pregnancy.¹²⁹ 

Interviews with jail officials in several counties revealed that cost was the primary reason for restricting access to birth control. Jail officials also told the NYCLU that there was no chance for women to get pregnant in their facilities, and that "regulating a period" was not a serious enough medical need to justify the provision of birth control medication.

County correctional facilities should adopt policies that take into consideration: the length of incarceration, risk of pregnancy, and harm to individual women caused by ceasing contraception.
  

3. The Care and Treatment of Pregnant Women

The following section will review our findings with regard to policies governing the care and treatment of pregnant women, including testing for pregnancy, the provision of prenatal care, mental health care, the use of restraints, arrangements for labor and delivery, and the ability of women to remain with newborns following birth.
 

a. Pregnancy Testing

The U.S. Department of Justice estimates that nationally, 6 percent of jail inmates are pregnant upon admission.¹³⁰  Many of these women find out about their pregnancy through screenings conducted when they first enter the facility. Far fewer women receive prenatal care from the time of admission (approximately 3 percent),¹³¹  which may suggest that correctional facilities are not aware of the number of women who are pregnant in any given facility.

Only nine counties sent policies on when or whether to perform pregnancy tests. Four of those eight have written policies that pregnancy testing is conducted at intake on all women entering the facility,¹³²  four facilities' policies provided for a verbal screening for pregnancy, and then administration of a test if the screening indicated that a test should be performed,¹³³  and Onondaga County had a policy that simply offered testing to all entering women.¹³⁴ 

Failing to offer pregnancy testing to women upon admission may result in a delay of necessary medical care. In addition, facilities without policies that make pregnancy testing easily accessible may incur liability should pregnancy be discovered at a later stage and, because no prenatal care was provided, result in some harm to the woman or to the fetus.
 

b. Prenatal Care

Prenatal care has proven to be essential in improving maternal and infant health.¹³⁵  Failure to provide prenatal care leads to poor outcomes, including low birth weight, pregnancy complications, and maternal or infant death.¹³⁶  Prenatal care that includes provisions for routine testing, nutritional and dietary supplements, regular OB/GYN visits and recommended levels of activity meets the minimum standard of care for pregnant women.¹³⁷ 

Incarcerated women generally are at higher risk for poor pregnancy outcomes than other women. They often come from backgrounds lacking access to routine medical care and proper nutrition. They also experience a disproportionate rate of interpersonal violence.¹³⁸  Specialized attention to early and consistent prenatal care is therefore of heightened importance for incarcerated women.

Of the many areas we explored in this report, prenatal care was the one most commonly addressed in county policies -- nearly 60 percent of all counties that housed women (30 counties) had policies addressing access to prenatal care.¹³⁹  Six counties allowed pregnant women to continue receiving care from their community-based provider, if the provider was willing to continue seeing the patient, and if the medical office was not too far from the jail.¹⁴⁰ 

Several jails had exemplary policies that made some provision for continuation of care once the woman was released. In Onondaga County, for example, the jail's policy prioritized continuity of care, and appointments were arranged for the woman after her release, with records sent to the new health care provider.¹⁴¹  Other counties specified that upon release women be referred to the county's Prenatal Care Assistance Program (PCAP).¹⁴² 

Another good way to ensure that jail administrators and staff members can make informed decisions about how to provide prenatal care is to require the jail's physician to develop a "special needs treatment plan" covering the care of pregnant women.¹⁴³  Allowing a woman to continue seeing the community-based provider she was seeing for prenatal care prior to incarceration also improves health outcomes.¹⁴⁴ 

Failing to address the need for comprehensive prenatal care in written policies can result in lack of care or substandard care, which can lead to poor birth outcomes for both women and their children. Facilities with no policies on prenatal care for pregnant women, as well as facilities with policies that do not provide for the range of care and consideration described in this report, should review and revise their policies and procedures consistent with the recommendations herein.
 

c. Mental Health Care Following Miscarriage or Termination

Pregnancy is a difficult experience for many women. It is particularly stressful for incarcerated women, most of whom know they will be separated from their newborns soon after delivery.¹⁴⁵  While women generally have access to mental health care in jail, the NYCLU sought information specifically about access to care when a woman has a miscarriage or undergoes an abortion. During the course of our visits to jail facilities and interviews with experts, we expanded the scope of our inquiry to include information about access to mental health care for women following birth.

Only one facility, Saratoga County, had explicit procedures to ensure mental health care in the event a woman had a miscarriage, although 11 counties' policies indicated that mental health assessment and treatment was generally available to any woman who needed it.¹⁴⁶  Four counties (Allegany, Niagara, Putnam and Ulster) had policies that provided post-natal care and counseling (or post-partum care) for women who had given birth, and both Putnam and Ulster counties' policies provided women with counseling following an abortion. Several facilities indicated in written correspondence that women who miscarried would either have access to a mental health nurse, or be referred to an external service provider such as Planned Parenthood.¹⁴⁷ 

Correctional facility policies should take into account the mental health care needs of women who have given birth and women who miscarry, as well as women who choose to terminate their pregnancies. Aftercare referrals are important as more and more facilities are paying attention to discharge planning. The absence of language recognizing these needs may lead to policies that fail to recognize the need for mental health care treatment, resulting in a denial of essential care.
 

d. The Use of Restraints

The very purpose of restraints in correctional facilities is to restrict the movement of prisoners and prevent escape. Restricting the movement of pregnant women, however, can cause harm to the woman, and to her fetus, particularly when restraints are applied in ways that put pressure on certain areas of the woman's body. For this reason, the use of shackles during labor and delivery violates the Eighth Amendment's prohibition of cruel and unusual punishment, and also violates international human rights norms such as the U.N. Standard Minimum Rules for the Treatment of Prisoners.¹⁴⁸ 

Only three counties had specific policies regarding the use of restraints¹⁴⁹  on pregnant women.¹⁵⁰  In Erie County, the jail's policies required restraints on pregnant women, but allowed for removal if the restraints impeded medical treatment;¹⁵¹  in New York City and Ulster counties, the use of restraints was restricted on pregnant women.¹⁵²  The New York City Department of Correction's policy disallows the use of restraints on pregnant women being transported for delivery.¹⁵³  Restraints were permitted when used on pregnant women who were being transported outside of the facility for other reasons. The policy provided, however, that "[u]nder no circumstances shall a pregnant inmate be handcuffed in the rear."¹⁵⁴  This rule was repeated in another section of the policy manual, which stated additionally that "[u]nder no circumstances shall pregnant inmates be shackled by the ankles."¹⁵⁵ 

The other counties that responded to our request generally allowed some degree of discretion on the part of correctional staff in determining whether and when to use restraints on any inmate. For example, in Cattaraugus, Tioga, Rensselaer and St. Lawrence counties, the use of restraints was left entirely to the discretion of correctional staff.¹⁵⁶  Restraints were used unless medically inappropriate in Chautauqua, Fulton, Montgomery, Putnam and Westchester counties.

Several jails stated in correspondence to the NYCLU that restraints were used on pregnant women only in certain circumstances. For example, in Washington County, women were shackled and cuffed during transport, but not while they were receiving medical treatment.¹⁵⁷ 

Correctional facilities should weigh the purpose of restraints -- to address a real security risk -- and the relative risk posed by a pregnant woman, particularly one in the late stages of her pregnancy. Policies calibrated to that risk are most likely to survive legal scrutiny. Policies that require the blanket use of restraints irrespective of risk -- both during transport to an outside facility and during the course of medical treatment -- would run afoul of the Eighth Amendment as applied to some pregnant prisoners. And certainly, policies that authorize or result in any use of restraints that compromises the health of a woman could result in legal liability for the facility.
 

e. Labor and Delivery

County jails, even those equipped with well-resourced medical facilities, are not appropriate places for women to deliver their babies. State law recognizes this, and requires that an incarcerated woman be transported to an appropriate outside medical facility "a reasonable time before the anticipated birth,"¹⁵⁸  for labor and delivery. While the "reasonable time" standard may seem vague, the reality is that there is no set schedule for women to begin labor, nor is there any way to tell how long a woman will be in labor before she gives birth.¹⁵⁹  Waiting until a woman goes into labor before arranging transport may result in the baby being born in the facility or in the vehicle on the way to the hospital; on the other hand, transporting a woman before her due date may result in an unnecessarily long hospital stay.

There was no guidance on the appropriate timing for transport in any of the policies reviewed, nor in any of the standards promulgated by the NCCHC or the APHA. The only guidance to local facilities on this issue was a memorandum from SCOC legal counsel regarding the care of pregnant women and newborn children that echoed state law:

If an inmate committed to a county jail is pregnant and about to give birth to a child, the officer in charge of such institution, a reasonable time before the anticipated birth of such child, shall cause such woman to be removed from such institution and provided with comfortable accommodations, maintenance and medical care elsewhere, under such supervision and safeguards to prevent her escape from custody as he may determine, and subject to her return to such institution as soon after the birth of her child as the state of her health will permit.¹⁶⁰ 

Not a single policy we reviewed contained any language or procedures on how to meet the medical needs of women who go into labor. Most notably, no policies had language instructing how -- or when -- to transport a woman to an appropriate medical facility for delivery.

Jail staff are unlikely to look to state law or a memo that exists outside of their policies and procedures manual to determine how best to respond to a woman who goes into labor. Jail facilities, therefore, should include this state law directive in their policies and procedures, and train staff to recognize when a woman is in labor to ensure that she is transported to a medical facility without delay for labor and delivery.
 

f. Custody of Infants

Allowing women to remain with their newborns for some time after birth is important for both the mother and her baby. Maternal and infant medical experts argue that critical bonding between a mother and her child takes place within the first hours, days and weeks following delivery.¹⁶¹  Extended or permanent separation during this time, particularly where the mother will be the primary caretaker of her child following her incarceration, can cause irreversible harm.¹⁶²  Fostering the bond between mothers and their newborns in the jail setting is particularly important where nearly all of the women serving time in county jail facilities are released within a year of the birth of their children.¹⁶³ 

There are, however, other benefits to keeping mothers and their infants together during periods of incarceration. Allowing women to begin parenting while incarcerated provides an opportunity to teach parenting skills to young mothers in a supervised setting.¹⁶⁴  Studies have also shown that women are less likely to commit future crimes and are more successful in rehabilitation when they are able to form important relationships with their families.¹⁶⁵ 

New York law allows women who give birth while incarcerated to retain physical custody of their infants for up to 18 months after birth, except in extraordinary circumstances.¹⁶⁶  The NYCLU's initial FOIL request did not specifically request information about whether jails adhere to this provision of the law in practice. Only three correctional facilities responded to our FOIL request with any policies relating to infant custody,¹⁶⁷  and our interviews with experts and jail administrators indicated that few women housed in county jails were able to actually retain custody of their infants while incarcerated.

Although the State Commission of Correction has advised jail facilities of their obligations under the Corrections Law,¹⁶⁸  few facilities actually allow women to bring newborns back into the facility with them after they have given birth.

Jail officials interviewed for this report suggested that space and security constraints prevented them from allowing women to bring newborns back to the facility. Most jails do not have nursery facilities; Rikers Island jail in New York City did not have one until litigation was brought in the early 1980s.¹⁶   Even when jails do have nursery facilities where women and their infants can stay together, women are routinely denied the ability to keep their newborns with them, ostensibly based on a determination that such a decision is in the "best interest of the child." However, the factors to be considered in determining the child's best interest are essentially left to the unbridled discretion of jail administrators.¹⁷⁰ 

We recognize that allowing mothers to retain custody of their infants while in jail may require facilities to allocate additional resources to create space appropriate for women with their newborns (for example, cribs and single cells with access to running water). Ultimately, however, accommodating women's rights under this provision of the Corrections Law is in the best interests of the infants, and provides long-term benefits for both mother and child.¹⁷¹  It may also serve to decrease the chances that women will re-offend upon release.¹⁷² 
 

4. Abortion Services

a. Access to Abortion

Interviews with jail administrators on the subject of scheduling abortions revealed that for the most part, they saw facilitating referrals and transportation to abortion providers as just "part of the job," as it is for other medical procedures that are not available on site. However, less than half of the facilities that housed women had policies specifically addressing women's access to abortion.¹⁷³  Only 13 counties had policies that appeared to allow timely access to abortion services,¹⁷⁴  with only six counties including specific referral procedures, such as the name of an agency or a phone number.¹⁷⁵ 

Six counties simply stated that the jail would follow "state law" in determining whether or not to grant the woman's request.¹⁷⁶ 

Oswego County required that jail officials approve the procedure prior to scheduling an appointment.¹⁷⁷  The county's policy provided that a woman requesting an abortion must notify the facility's medical staff; the jail physician would then evaluate the request and briefs the sheriff and the jail administrator, who in turn, are advised to contact the district attorney or the county attorney for guidance.¹⁷⁸ 

Several facilities sent the NYCLU policies that dealt with "elective" procedures. In some cases, it was clear that abortion was not considered under the protocol for "elective" procedure because the subject was dealt with elsewhere in the policies and procedures manuals. But in others, abortion was likely considered to fall under the policy on "elective" procedures. Indeed, some jail administrators suggested during interviews that abortions not sought to protect the health of the woman could be considered "elective" procedures. They said requests for those abortions would be evaluated accordingly by medical staff and likely denied.

Counties that have policies on elective procedures but not on abortion specifically are particularly problematic because abortion is generally characterized as being either "medically necessary" -- performed to preserve the life or health of the woman -- or "elective," which simply means that the woman has chosen to terminate her pregnancy. Abortion should be distinguished from other elective procedures such as capping teeth or breast reduction surgery -- both procedures that jail officials said would be routinely denied, unless the underlying conditions were life threatening. Without a written policy on abortion, confusion in terminology likely could lead a jail official to mischaracterize an abortion that is not needed to save the life or the health of the woman as an "elective" medical procedure, and deny it. Confusion over the meaning of "elective" also could lead to prison officials demanding that women pay for their abortions, which would deny many incarcerated women access to the procedure.

Finally, none of the polices, even the most comprehensive, contained timeframes to provide guidance to jail administrators or health care professionals regarding when to respond to requests for abortion, although a nurse at one facility acknowledged that "[a]bortion has a time limit . . . you want to do it quicker."¹⁷⁹ 

The lack of written policies to guide the actions of jail administrators and health care staff could lead to delay or denial of medical care to address abortion. A woman could be denied her right to choose to terminate her pregnancy, be forced to continue her pregnancy, or be exposed to riskier abortion procedures. Any of these consequences could lead to violations of women's rights to abortion under the Eighth and Fourteenth Amendments.¹⁸⁰ 

Policies that require or suggest that a legal opinion be sought each time a woman requests an abortion could also cause an undue delay in ensuring women access to abortion as it could take several weeks -- or longer -- to obtain a legal opinion.

Policies that simply refer jail administrators to state law presumably mean that pregnant women have access to abortion services so long as the abortion is legal in the state. However, such policies give no further guidance on how a woman can request an abortion or how such services will be delivered to her -- nor do they provide guidance to jail officials who may not be aware of the legal status of abortion in New York. Under such policies, health care professionals are left guessing as to the appropriate response.
 

b. Counseling Requirements

Eighteen counties required that a woman requesting an abortion receive counseling prior to scheduling an appointment for the procedure (in 15 of those counties, counseling is provided by health care staff in the facility itself; the remaining three required that a community-based practitioner provide counseling).¹⁸¹  Some facilities specified that counseling must "not be slanted towards one viewpoint,"¹⁸²  and some policies contained a proviso that "staff will support the pregnant inmate in whatever choice she makes regarding her wishes for the outcome of the pregnancy."¹⁸³ 

Policies that require counseling of a woman who requests abortion services are problematic when they pose an undue delay or create a barrier to care. Obtaining informed consent from a pregnant woman prior to an abortion, which entails providing her with accurate information about the risks and benefits of the procedure, is standard practice for any medical treatment and is the responsibility of the abortion provider.¹⁸⁴  Counseling differs from informed consent and requires a discussion with the woman about her feelings and concerns about the pregnancy and her decision. Abortion providers routinely offer both information about the procedure and counseling around the woman's choice.

As with all medical care, counseling must be timely and conducted by trained professionals. Counseling offered by health care staff from an OB/GYN or a state-licensed facility that routinely counsels women on abortion procedures would not be particularly problematic because staff at such a facility would be trained in counseling. But policies that rely solely on jail staff to conduct counseling are inappropriate. Counseling by jail personnel, who may not be trained in this area, runs the risk of being biased -- either for or against abortion. Moreover, this sort of "counseling" could amount to a waiting period, as the staff member providing counseling may be personally opposed to abortion and attempt to block or delay access to care. A nurse in a rural county facility told the NYCLU: "If they are saying they want an abortion the same day they are sentenced, for example, I usually tell them to think about it and I'll follow up with them in a few days. They have to request it from me."¹⁸⁵ 
 

c. Costs

Unless a woman has third-party insurance, counties bear the cost of an inmate's medical care, except for some types of care that are deemed "elective."¹⁸⁶  Perhaps because many jail officials believe that the law is very clear on the counties' obligation to fund needed medical care, only seven counties had specific policies regarding the cost of abortion services.¹⁸⁷  Three counties specified that the cost for the procedure be borne exclusively by either the facility (Albany) or the county (Cattaraugus and Franklin).

However, several facilities' policies were clearly not consistent with the law. Chenango County's policy stated that the woman or her relatives were primarily responsible for paying for the procedure, but if they were unable to pay, the county would bear the cost. Policies in Monroe and Orange counties specifically indicated that the cost for abortion services be borne exclusively by the woman or her relatives. Both counties' policies stated that the woman or her relatives must provide the funding for the procedure before scheduling an appointment.

Some administrators and even some health care providers in the jails expressed a private sentiment that they were conflicted about assisting women in obtaining abortions by providing funding, and that they believed that the cost should not be borne by taxpayers.

One administrator candidly told the NYCLU:

Just thinking not as a jail administrator or someone that has to oversee a policy, but as a taxpayer, I don't know if I really appreciate someone coming in here and the taxpayers paying for this. But that's just a personal feeling. But I know that it is shared with a number of people. If the inmate comes in and has to have procedures, then by all means we have to take care of them. If they are elective, should the taxpayers pay for this? It's a question I guess more philosophical than anything else. If the law says we have to do it, we have to do it.¹⁸⁸ 

* * *

In sum, the absence of clear policy guidelines leaves too much discretion to local jail administrators and health care staff who may have strong opinions about abortion, particularly on the issue of whether government money should pay for such procedures. Even administrators who are not opposed to abortion may misconstrue their legal obligations to meet a woman's need for an abortion that they consider to be "elective." In addition, even in facilities that provide women with access to abortion services, the lack of written policies leaves women vulnerable to potential shifts in practice should the administration of the facility change.
 

5. Testing and Treatment for Sexually Transmitted Infections (STIs), including HIV

Incarcerated women are disproportionately affected by STIs, including HIV.¹⁸⁹  Often women do not become aware that they have an STI until they are incarcerated and tested during a routine health screen. However, routine testing in jails for these infections is rare; a national study showed that only 12 to 47 percent of jails offered routine testing for syphilis, gonorrhea, or chlamydia, and most offered testing only to symptomatic individuals or those who requested it.¹⁹⁰ 

Because testing for STIs and HIV is not routine, statistics on the number of women who have various STIs is scant. Experts estimate that among women in correctional facilities nationally, 35 percent test positive for syphilis, 27 percent for chlamydia and 8 percent for gonorrhea.¹⁹¹  Given their high rates of infection, incarcerated women may also be at higher risk for cervical cancer, but the risk and prevalence have not been systematically evaluated nationally or locally.¹⁹² 

Rates of HIV infection among women in jail in New York City, however, are estimated to be as high as 18 percent.¹⁹³  In fact, New York City holds nearly 30 percent of all jail inmates known to be HIV positive in the 50 largest jails nationwide,¹⁹⁴  and rates of HIV are "two to three times higher among women than men in almost all correctional systems in the U.S."¹⁹⁵ 

Only four counties had written policies on testing and treatment for sexually transmitted infections (STIs).¹⁹⁶  Thirteen counties had written policies relating to the treatment of HIV;¹⁹⁷  and six additional counties had written policies on HIV testing.¹⁹⁸  Only eight counties had policies in place on access to non-occupational post-exposure prophylaxis (nPEP) for inmates exposed to HIV.¹⁹⁹  Seven counties had policies that did not mention nPEP specifically, but that required post-sexual assault treatment either in-house or in a local emergency room, for inmates who were sexually assaulted.²⁰⁰  The standard of care in those facilities would include discussion of whether nPEP was appropriate. Four additional counties had policies on the provision of nPEP for occupational exposure, meaning that staff members who are exposed to HIV on the job were provided with nPEP.²⁰¹  Unlike most other areas of women's health care, there is significant guidance on testing, treating and preventing STIs and HIV among those in correctional settings. The APHA and NCCHC both recommend that inmates routinely be screened for STIs.²⁰²  Because of constant changes in treatment protocols for STIs and HIV, both organizations recommend that correctional facilities treat inmates with STIs consistent with CDC's Sexually Transmitted Diseases Treatment Guidelines,²⁰³  and HIV consistent with either CDC Guidelines²⁰⁴  or guidelines periodically issued by the U.S. Department of Health and Human Services (DHHS).²⁰⁵ 

Two issues unique to treatment of inmates who are HIV positive in jail facilities that NCCHC and APHA standards do not deal with, however, are the importance of continuity of treatment for those receiving antiretroviral treatment (ARVs),²⁰⁶  and the need for nPEP²⁰⁷  for inmates exposed to HIV just prior to or during incarceration.

In general, any prescription drugs that inmates have prior to incarceration are taken from them at the time of arrest and they are not permitted to take prescription medication until they are evaluated by a physician.²⁰⁸  Unfortunately, in many jail facilities, particularly in rural areas, inmates are not able to see health care providers who have the ability to prescribe medication for several days. Ensuring prompt attention from jail physicians is particularly important for those inmates who are HIV positive and already taking a regimen of HIV medication. For those who are taking ARVs, uninterrupted treatment is crucial, as resistance to the medication can develop after just a few days.²⁰⁹ 

While nPEP is highly effective in preventing HIV infection if the course of therapy is initiated within 72 hours after exposure to the virus, there are significant side effects from the medication that women should discuss with a physician. In light of the seriousness of HIV infection and the likelihood of intense side effects from nPEP, jail officials should make counseling with a health care professional available to all women who have been exposed to HIV and would potentially benefit from nPEP.²¹⁰  Such health care professionals should follow guidelines for the use of nPEP from the New York State Department of Health.²¹¹ 

The Monmouth County Correctional Institution in New Jersey (MCCI) has served as a model for the care and treatment of HIV positive inmates in jail facilities.²¹²  MCCI's policy focuses on five areas: medical treatment, education, counseling, prevention and continuity of care. Women who enter MCCI with HIV are maintained on their current drug regimen, and the facility attempts to obtain the woman's medical records from her current treatment provider. Newly diagnosed inmates are sent for laboratory tests and medical evaluations, and they are started on a course of treatment that may include the initiation of antiretroviral therapy.²¹³  Education regarding HIV transmission and prevention is offered to both HIV positive and negative inmates. Jail staff are trained in how to conduct three one-hour workshops on preventing transmission of the disease. Finally, when inmates are released, they are given a copy of their most recent laboratory and other tests, a summary of their medical history, and a referral to a local clinic. If possible, jail staff schedule an appointment for them in the community. Inmates are also given a limited supply of medication upon release.

Jail facilities that implement written policies and procedures that reflect the MCCI model, as well as the recommendations from NCCHC and the APHA, will ensure that women have access to the standard of care that is both constitutionally adequate and designed to promote optimal health outcomes. Jail physicians providing HIV- and STI-related primary care should provide that care in accordance with CDC guidelines that reflect the accepted standard of care.
 

IV. Conclusion

The availability and quality of reproductive health care for women in New York State's county jails varies widely from county to county. It appears that there has never been an attempt to ensure that all jail facilities have uniform policies -- or, for that matter, any policies at all -- in place to guide the decisions jail administrators and their staff make regarding health care decisions unique to women. For the most part, facilities lack comprehensive policies and where they do have policies that specifically address health care for women, such policies are narrowly focused on prenatal care.

In practice, it appears that even in the absence of written policies, many jail facilities respond to requests from women for health care, including abortion, appropriately and in a timely manner. Too often, however, such requests are granted purely at the discretion of local jail officials. Without clear, written policies to guide their decisions, jail facilities run the risk of individual staff members declining requests for or delaying legally mandated health care. This is particularly true of the facility's legal obligation to ensure access to abortion: Jail administrators are apt to wrongly consider a request for abortion that is not necessary to preserve the health or life of the woman as "elective," and thus deny access, as they routinely do with regard to other "elective" procedures. Staff may not recognize the practical and constitutional implications of denying or delaying access to abortions. Moreover, the lack of uniformity means that the quality and type of care women receive is entirely dependent on where they are incarcerated.

There are, however, a number of exemplary policy provisions throughout the state that may be used as models. In interviews with the NYCLU, the State Commission on Correction, jail administrators and health care practitioners have expressed a willingness to work towards a uniform set of model policies on reproductive health care for women.

Jail administrators are under tremendous pressure to run jails safely and efficiently with limited resources. Inmates, particularly women, have greater health care needs than other members of the general public.²¹⁴  Since most do not have health insurance, the counties shoulder the cost for their health care. But jail administrators also have a unique opportunity to provide preventive health care services that benefit not only individual women, but public health. Women who are properly screened and treated for preventable conditions while they are incarcerated return to the community healthier and pose less of a burden on community health care resources.

By adopting uniform policies and procedures for providing reproductive health care, and ensuring that staff is well-trained to handle requests for such care, jail administrators can ensure that the needs of women are met, provide preventive care that could reduce the burden on county health care resources, and insulate themselves from potential liability for denial of care.

The recommendations set forth here were developed by using selected policies and procedures from a number of different facilities across the state. We believe that the majority of these recommendations could be immediately implemented in any jail facility with minimal cost. We invite both state and local officials to join us in a dialogue about how to incorporate our recommendations into a uniform set of minimum standards to ensure that women in jail facilities have access to comprehensive care, regardless of where they serve their sentence.
 

V. Recommendations

Routine Reproductive Health Care

Sensitive and dignified pelvic examinations, age-appropriate mammography (and instruction in self-breast examinations), screening for STIs (including chlamydia, gonorrhea and syphilis), and cervical cytology screens (pap tests) should be offered as part of the routine physical examinations performed on all women upon admission. Screening for domestic and sexual violence and substance abuse should also be incorporated into the routine care that women receive.

Access to Contraception

Emergency contraception should be made available on site to women who enter the facility having experienced a sexual assault (or unprotected sex) up to 120 hours prior to incarceration, or those who experience sexual assault in the facility within the effective time period. It is important that this medication be available on site because of the limited time period of effectiveness. Women should be permitted to continue taking previously prescribed hormonal contraception or hormonal replacement therapy during incarceration or following release. County correctional facilities should have policies and procedures in place that allow women to continue taking hormonal contraception immediately following admission and through their first menstrual cycle to prevent unintended pregnancy due to sexual activity just prior to incarceration. Such policies and procedures should also ensure an individual assessment of each woman's need to continue contraception on a longer-term basis. This assessment should include whether hormonal contraception is used for any condition other than preventing pregnancy, the length of the woman's stay at the jail, and an evaluation of potential side effects should birth control be halted. Such policies and procedures should also provide for commencement of contraception just prior to release.

Pregnancy Testing

Health care staff should assess all entering women for the likelihood of pregnancy, and offer pregnancy testing to any woman who requests it at any time. Before being offered a test, women should be advised by a health care professional of the range of options available to them while they are incarcerated. Those options should include prenatal care and assistance for those who choose to carry their pregnancies to term, as well as abortion or assistance with adoption.

Prenatal Care

Correctional facilities should have policies in place that ensure that medical staff assess the needs of the woman and recommend a treatment plan that corresponds to community standards of care including transportation to regular prenatal care appointments, special nutrition needs, dietary supplements, recommended activity levels and housing assignments, safety concerns, and regularly scheduled medical examinations and testing. Continuation of care with the woman's existing prenatal care provider should be arranged if possible and if the woman so wishes. If this is not possible due to geographic constraints or the unwillingness of the provider, health care staff should attempt, with the consent of the woman, to obtain the woman's treatment records. In addition, best practices suggest that policies address continuation of care following release by, among other things, arranging for appointments, transferring records, and assisting with enrollment in public health insurance programs such as PCAP.

Mental Health Care Following Miscarriage, Abortion and Birth

Mental health assessments and services should be available to women after they give birth in order to identify and treat post-partum depression. The same services should be made available to women who miscarry or who terminate their pregnancies while incarcerated.

Use of Restraints

County jail facilities should have clear policies forbidding the use of belly chains and ankle shackles on pregnant women, regardless of their stage of pregnancy. Jail officials should use the least restrictive type of restraints when transporting pregnant women for care, and ensure that a woman's hands are secured in front of her body, not behind her back, when she is pregnant and being transported for any reason. Pregnant women should not be restrained during the provision of medical care unless there is some demonstrable security risk. Restraints never should be used on a woman who is giving birth. Following delivery, restraints should be used only if there is a demonstrable security risk.

Timely Transport for Labor and Delivery

Correctional facilities should have written policies in place that advise jail staff of the state law requiring timely transfer of women to appropriate facilities for labor and delivery. They should ensure that correctional officers and health care staff are trained to recognize the signs that a woman is in labor and arrange for timely transportation to an appropriate medical facility.

Infant Custody

Correctional facilities should have written policies and procedures in place in accordance with the Corrections Law, allowing women to retain physical custody of their newborns at the facility.

Access to Abortion

First and foremost, county correctional facilities should have written policies stating that women have the right to have an abortion. Such policies must provide guidance to jail officials about how to handle a woman's request for abortion services. Such policies must also provide that as soon as a woman says she wishes to terminate her pregnancy, jail officials are to schedule the first available appointment with a licensed qualified provider or a community-based health center to terminate the pregnancy as authorized by law. Counseling should be provided by clinic staff employed by an abortion provider or a state-licensed health care facility upon request of the woman. It should never be provided by jail personnel who do not have sufficient training in this area, or by any other unlicensed facility. Transportation should be provided by the facility, and all costs for the procedure should be covered by the facility or the county, unless the woman has third-party health coverage that applies.

Testing, Treatment, and Prevention of STIs, including HIV

A comprehensive policy on the management of STIs and HIV in a county correctional facility would include seven components: (1) Testing. Confidential testing for STIs, Hepatitis C and HIV should be made available to all women at admission and anytime during incarceration. (2) Access to medication. Women entering the facility who are already being treated for STIs and HIV must be permitted to continue taking currently prescribed medication immediately upon incarceration to avoid interruption of treatment. (3) Treatment. Women should have access to primary care and referrals to specialists treating STIs and HIV. Women testing positive while incarcerated should be seen as soon as possible by a health care provider specializing in the treatment and care of patients with STIs or HIV for a baseline assessment and development of a treatment plan. Women with STIs should have access to treatment consistent with CDC Clinical Guidelines. Women with HIV/AIDS should have access to treatment consistent with CDC and U.S. Department of Health and Human Services guidelines. (4) Nutrition. Women with HIV should have access to nutritional supplements as per guidelines. (5) Confidentiality. The facility should have a policy in place to inform jail personnel about laws and regulations protecting the confidentiality of information relating to a woman's health status. (6) Prevention. For inmates exposed to HIV while they are incarcerated or just prior to incarceration, non-occupational post-exposure prophylaxis (nPEP) should be offered within 72 hours of exposure. During incarceration, women should be offered information about the prevention of STI and HIV transmission. (7) Discharge Planning. At a minimum, women should be provided with information about how to access medication, ongoing medical care, and social services upon release. Best practices suggest that policies provide for arranging follow-up appointments with community-based providers, transfer of medical records (upon consent) to those providers, and assistance with obtaining public health insurance.
 

Acknowledgements

The report was written by Corinne Carey and edited by Galen Sherwin and Michael Cummings. Ariel Samach, the program assistant for the Reproductive Rights Project, provided invaluable substantive and technical assistance from start to finish. Jennie Woltz, who worked with RRP as a fellow from the law firm of Milbank, Tweed, Hadley & McCloy, also edited and cite-checked the report with the assistance of Joyce Chang and Brian Garzione.

Considerable assistance was provided by NYCLU interns Grace Pickering, Emilie Adams and Lindsey Zwicker who did preliminary research, reviewed documents and made innumerable phone calls to encourage jail officials to respond to our Freedom of Information Law request. NYCLU interns Andrea Gittleman and Olivia Lieber provided additional research assistance during the editing process.

A number of outside experts contributed to the report as well, by providing valuable insights and reviewing initial drafts. These experts were: Rachel Roth, Ph.D., independent scholar and Soros Justice Fellow; Jeanne Flavin, Ph.D, associate professor of sociology, Fordham University; Megan McLemore, researcher, HIV/AIDS and Human Rights Program, Human Rights Watch; Tamar Kraft-Stolar, director of the Women in Prison Project of the Correctional Association of New York; and from the Legal Aid Society's Prisoners' Rights Project, Dori A. Lewis, senior supervising attorney, and Lisa Freeman, staff attorney. Diana Kasdan, staff attorney from the ACLU Reproductive Freedom Project, and Jackie Walker and Amy Fettig from the ACLU's National Prison Project provided critical feedback at various stages of the project.

The project was funded through a generous grant from the ACLU Reproductive Freedom Project.
 

 

 

 

 

Endnotes

1 John Sullivan, Judge Temporarily Bars County Inmate from Having Abortion, N.Y. Times, Mar. 4, 2000, at B2.

2 Gina Turner is a pseudonym; her real name is not revealed in this report because she is currently facing re-sentencing on these charges.

3 State Commission of Correction, County Jail Population Statistics -- October 1, 2007 (on file with NYCLU) (SCOC 2007 Population Statistics) (1,910 women in all county jail facilities excluding Rikers Island in New York City out of a total 16,873 inmates); The Correctional Association of New York, Prisoner Profile 1 (2006), available at http://www.correctionalassociation.org/PVP/publications/prisoner_profile_2006.pdf (Of a total of 2,800 in state prison, 4.5% were women; of a total of 14,000 people in custody in New York City's Rikers Island jail, approximately 8.5% were women, for a total of 1,190); Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2006 6, Tbl. 11 (2007) (BJS Statistics 2006), available at http://www.ojp.usdoj.gov/bjs/abstract/pjim06.htm (Of a total 63,295 state and federal prisoners in New York, approximately 3,798 were women).

4 New York Correction Law defines a local correctional facility as any place operated by a county or the city of New York as a place for the confinement of persons duly committed to secure their attendance as witnesses in any criminal case, charged with crime and committed for trial or examination, awaiting the availability of a court, duly committed for any contempt or upon civil process, convicted of any offense and sentenced to imprisonment therein or awaiting transportation under sentence to imprisonment in a correctional facility, or pursuant to any other applicable provisions of law. N.Y. Correct. Law §§ 2(16), 40(2) (McKinney 2007).

5 State Commission of Correction, Local Correctional Facilities in New York State -- 2005, County Admissions Received From Courts Within Their County (on file with NYCLU) (SCOC 2005 County Admissions). This figure does not reflect the precise number of women incarcerated in county jail facilities each year because the state does not account for women who may be admitted more than once within a year. Telephone interview with Mike Donegan, Counsel, State Comm'n of Corr. (Feb. 11, 2008). In fact, women account for over 25,000 admissions to county jail facilities in New York State each year. As of June 2007, county correctional facilities held 16,406 inmates; an additional 14,120 were housed in the New York City jail facility at Riker's Island. New York State Commission on Corrections, Inmate Population Statistics, http://www.scoc.state.ny.us/pop.htm (last visited Sept. 7, 2007). Close to 17% of the state's jail population are women, SCOC 2005 County Admissions, and the percentage of women being held in jails has been increasing slightly, but steadily, each year. BJS Statistics 2006, supra note 2.

Local correctional facilities are established pursuant to the New York Constitution, as exercised and codified in the New York Correction and County Laws. See N.Y. Const. art. XVII, § 5; N.Y. Correct. Law §§ 2(16), 40(2); N.Y. County Law § 217 (McKinney 2004) ("Each county shall continue to maintain a county jail as prescribed by law."). Counties do not have to operate one facility on their own but instead may, in the interests of efficiency and economy, join forces with another county in order to house their inmates. N.Y. Gen. Mun. Law § 431 (McKinney 2007).

6 BJS Statistics 2006, supra note 3 at 6, Tbl. 11.

7 See Lawrence A. Greenfeld & Tracy L. Snell, Women Offenders, Bureau of Justice Statistics Special Report 6, Tbl. 15 (Dec. 1999), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/wo.pdf (last visited Jan. 19. 2008). County jail facilities also house people awaiting trial and those awaiting transfer to prison following a conviction, N.Y. Correct. Law § 500-a (McKinney 2007); those who are serving state sentences where state jail facilities are unable to accommodate them (prisoners serving state sentences in city or
county jail facilities are referred to as "Coram nobis" prisoners, see id. § 601(b) (McKinney 2007)); state prisoners who are brought to the city for court proceedings, including family court hearings, id. § 500-a(1)(c); and
witnesses requiring security before testifying in criminal court. Id. § 500-a(1)(a)-(b).

8 American College of Obstetricians and Gynecologists (ACOG), Health and Health Care of Incarcerated Adult and Adolescent Females, in Special Issues in Women's Health 89 (2005) (ACOG Special Issues).

9 ACOG, Guidelines for Perinatal Care 87 (6th ed. 2007) (ACOG Guidelines); Jeanne Flavin, Our Bodies, Our Crimes: Justice and Reproductive Rights in America (working title) (NYU Press ed.) (forthcoming) (on file with NYCLU). Indeed, incarcerated women may even suffer from more medical problems than their male counterparts. In a survey done by the U.S. Department of Justice's Bureau of Justice Statistics on medical problems of jail inmates, "[m]ore than half (53%) of female jail inmates reported having a current medical problem, compared to about a third (35%) of male inmates." Laura M. Maruschak, Bureau of Justice Statistics Special Report: Medical Problems of Jail Inmates 1 (2006), available at http://www.ojp.gov/bjs/pub/pdf/mpji.pdf.

10 Hampden County Sheriff's Department, A Public Health Manual for Correctional Health Care 1 (2002) (Public Health Manual), available at http://www.mphaweb.org/documents/PHModelforCorrectional Health.pdf. The Hampden County Sheriff's Department in Ludlow, Massachusetts serves as a national model for correctional health care. The Public Health Manual was developed with a grant from the Ford Foundation, and in consultation with the National Commission on Correctional Health Care (NCCHC) and the Massachusetts Public Health Association (MPHA). In addition to providing a model of health care in jail settings, the Manual also points to cost-savings and reductions in recidivism that the Sheriff's Department attributes in part to the increased quality of inmate health care. Id. at 8-9.

11 Rachel Roth, Searching for the State: Who Governs Prisoners' Reproductive Rights?, 11(3) Social Politics 421-22(2004), and Rachel Roth, Do Prisoners Have Abortion Rights?, 30(2) Feminist Studies 358-360 (2004); Flavin, supra note 9.

12 New York State has 62 counties, but because the jail facility in New York City houses inmates from five counties, we sent FOIL requests to 57 counties and the City of New York. A copy of the original FOIL request sent to each county correctional facility can be found in Appendix B.

13 See supra notes 3-7.

14 See N.Y. Correct. Law § 500-c(1) (McKinney 2007) ("Whenever the term 'sheriff' is used in this chapter, such term shall be deemed to include the warden, superintendent, or other person in charge of a local correctional facility."). In New York City, the Commissioner of Correction has responsibility for the management, care and custody of the inmate. N.Y. Correct. Law § 500-c(2). See also N.Y.C. Charter § 623(2) (2007).

15 Correctional Medical Services (CMS) provides for inmate health care in Albany, Monroe, and Orange counties; Correctional Health Services (CHS) provides for inmate health care in Westchester county; Prison Health Services, Inc. provides health care for inmates in Dutchess County and at Riker's Island, which houses inmates from New York City's five boroughs; and Correctional Medical Care, Inc. provides services in Tompkins County. AmeriCor, Inc. provides services in Putnam County (documents on file with NYCLU).

16 Schenectady Family Health Services provides health care in Schenectady County; Nassau Health Care Corporation provides health care in Nassau County. The Nassau Health Care Corporation is a public benefit corporation. NHCC: Our History, http://www.numc.edu/htms/ourhistory.htm (last visited Oct. 10, 2007). Schenectady Family Health Services, which does business as the Hometown Health Foundation, is a private nonprofit community based health center. Hometown Health Centers, Who We Are, http://www.hometownhealthcenters.org/who_we_are.html (last visited Oct. 10, 2007).

17 The sole exception is in New York City, where policies are developed by the City's Department of Health