HOUSE DOCKET, NO. 2760        FILED ON: 1/19/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2371

The Commonwealth of Massachusetts

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PRESENTED BY:

Jay D. Livingstone and Kay Khan

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to provide reproductive health care to incarcerated individuals.

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PETITION OF:

HOUSE DOCKET, NO. 2760        FILED ON: 1/19/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2371

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act to provide reproductive health care to incarcerated individuals.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 127 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after section 169 the following section:-

Section 170. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Contraceptive services,” contraceptive counseling and initiation, continuation, surveillance, and discontinuation of contraceptive methods.

“Reversible birth control methods,” includes birth control methods other than sterilization, including but not limited to, intrauterine devices, the contraceptive implant, injectable medroxyprogesterone, combined oral contraceptive pills, progestin-only contraceptive pills, contraceptive patches, vaginal contraceptive rings, diaphragms, cervical caps, contraceptive sponges, internal and external condoms, and spermicides.

“Emergency contraception,” birth control methods that are used to prevent pregnancy after sexual intercourse.

“Nonprescription birth control methods,” birth control methods available without a prescription from a health care provider, including but not limited to internal and external condoms, spermicides, fertility awareness-based methods, and certain emergency contraceptive methods.

“Long-acting reversible contraception (LARC),” birth control methods that provide contraception for a prolonged period of time without user action, including intrauterine devices and the contraceptive implant.

“Undue barriers,” processes or procedures that are not in line with standards of medical care and that would cause significant expense or difficulty if carried out, including but not limited to barriers to transportation to appropriate clinical services, unreasonably delaying access to care, disclosure of personal information to correctional facility staff, and without requiring disclosure of personal information beyond what is medically necessary to safely prescribe contraceptives.

Contraceptive services shall be made available to incarcerated persons who are capable of becoming pregnant at the following times: 1) upon admission to a correctional facility, 2) within a minimum of 60 days prior to a scheduled release date, and 3) at any time upon request.

Any incarcerated person capable of pregnancy shall have access to all reversible birth control methods and emergency contraception approved by the United States Food and Drug Administration (FDA) for which they are medically eligible as determined by the United States Medical Eligibility Criteria (US MEC) for Contraceptive Use set forth by the Centers for Disease Control and Prevention. A medical or mental health diagnosis shall not be a requirement to access birth control methods. A pelvic examination shall not be required to start, continue, or stop birth control, except at the time of insertion or removal for an intrauterine device or for monitoring an intrauterine device, when medically indicated.

The department of correction shall establish a formulary that consists of all FDA-approved birth control methods and that shall be available free of charge and without undue barriers to all incarcerated persons capable of pregnancy. If a birth control method has more than one FDA-approved therapeutic equivalent, only one version of that method shall be required to be made available, unless another version is specifically indicated by a prescribing health care provider. Persons shall have access to nonprescription birth control methods without the requirement to see a licensed health care provider.

Any contraceptive service that requires a prescription, or any contraceptive counseling, provided to incarcerated persons who are capable of becoming pregnant, shall be furnished by a licensed health care provider and shall be nondirective, unbiased, and noncoercive. Correctional facilities housing persons capable of pregnancy shall ensure that at least 1 member of the correctional facility’s medical staff is trained in reproductive health care, which shall include knowledge of contraceptive services.

All incarcerated people capable of pregnancy shall have access to long-acting reversible contraception (LARC) services, including counseling, insertion, side effect management, and removal; provided, however, that they are eligible for these methods as per the US MEC for Contraceptive Use. If LARC services are not unavailable at the correctional facility, the incarcerated person shall have access to such care at a supporting medical facility with appropriate expertise without undue barriers.

Any incarcerated person capable of pregnancy shall, upon request, be allowed to continue birth control methods as prescribed by a physician, nurse practitioner, certified nurse midwife, or physician assistant prior to incarceration.

Contraceptive counseling and family planning services shall be offered and made available to all incarcerated persons who are capable of becoming pregnant at least 60 days, but not longer than 180 days, prior to a scheduled release date; provided, however, that such visits be voluntary and not mandatory.

The prison health care provider shall refer any individual using contraceptives to a medical provider who can manage the method at the time of release and provide refills of the medication through 12-months, as indicated.

The department of correction shall, in consultation with the department of public health and the Massachusetts Sheriffs Association, Inc., develop appropriate standards of care and written policies for contraceptive care, which shall include, at a minimum, the standards for health services set forth by the National Commission on Correctional Health Care. If LARC services are available on site at a correctional facility, written policies addressing noncoercive care and informed consent prior to LARC procedures are required.

Any incarcerated person who is capable of becoming pregnant shall be furnished by the facility with information and education regarding the availability of family planning services and their right to receive nondirective, unbiased, and noncoercive contraceptive services. Each facility shall post this information in conspicuous places to which all incarcerated persons who are capable of becoming pregnant have access. The document shall state the following in, at minimum, English and Spanish, (1) “You have the right to start, continue, or stop birth control methods; (2) The prison may not delay or prevent you from accessing reproductive health care and family planning services. If the medical provider at the prison is not able to prescribe the birth control method you want, they must refer you to a medical provider who can; (3) You have access to the following methods, as long as you don’t have a medical condition that would make a method unsafe: intrauterine devices, the contraceptive implant, injectable medroxyprogesterone (“Depo” or “the shot”), birth control pills (combined and progestin-only pills), contraceptive patches, vaginal contraceptive rings, diaphragms, cervical caps, contraceptive sponges, internal and external condoms, and spermicide; (4) You have access to emergency contraception (methods that you can use after having sex to prevent a pregnancy); (5) You should have access to non-prescription family planning methods without seeing a medical professional, such as internal and external condoms, spermicides, fertility awareness-based methods, and certain emergency contraceptive methods; (6) You should never feel pressured or forced to start or keep using a birth control method.”

This section does not limit an incarcerated person’s access to any method of contraception that is prescribed or recommended for any medically indicated reason.

The Department of Correction shall implement this section no later than 1 year after its passage.

SECTION 2. Section 118 of chapter 127 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following subsection:-

(d) Incarcerated persons found to be pregnant requesting an abortion, shall be permitted to determine their eligibility for an abortion pursuant to state and federal law, and if determined to be eligible, shall be permitted to obtain an abortion after giving informed consent. A prison shall not confer authority or discretion to nonmedical prison staff to decide if a pregnant person is eligible for an abortion. If a pregnant person decides to have an abortion, that person shall be offered, but not forced to accept, all due medical care and accommodations until they are no longer pregnant. A pregnant person who decides to have an abortion shall be referred to a licensed medical professional. Additional conditions or restrictions beyond those mandated by state or federal law are not permissible. Impermissible restrictions include, but are not limited to, imposing gestational limits inconsistent with state law, unreasonably delaying access to the procedure, or requiring court-ordered transportation.

The department of correction shall, in consultation with the department of public health and the Massachusetts Sheriffs Association, Inc., develop appropriate standards of care and written policies for abortion.

The rights provided for incarcerated persons capable of pregnancy by this subsection shall be posted in at least one conspicuous place to which all incarcerated persons have access. The document shall state the following in, at minimum, English and Spanish, “(1) If you are pregnant or become pregnant you have the right to pregnancy care and abortion; (2) The prison may not delay or prevent you from accessing care; (3) You should never feel forced or pressured to continue a pregnancy or have an abortion; (4) All state and federal laws will apply to your ability to access abortion.”

SECTION 3. Subsection (a) of section 118 of chapter 127 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting, in line 2, after the word “sentencing” the following words:- “or upon request at any time during incarceration” and by inserting, in line 6, after the word “tests;” the following words:- “provided, however, that pregnancy tests be voluntary and not mandatory.”

SECTION 4. Subsection (a) of section 118 of chapter 127 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting, in line 7, after the word “material” the following words:- “that includes unbiased information about prenatal health care, adoption, and abortion from a licensed health care professional” and inserting, in line 9, after the word “inmates;” the following words:- provided, however, that prison staff shall not urge, force, or otherwise influence a pregnant person’s decision”.