Restricted Access: Permanent Sterilization and

Publically Funded Healthcare

Erin Biscone, CNM, MSN
INTRODUCTION
In the United States, permanent sterilization is a popular contraceptive method used by
women of childbearing age.1 Since 1979, women with Medicaid funding for healthcare who
desire permanent sterilization must sign a consent form no more than 180 days and no less than
30 days before the procedure can be done, with limited exceptions.2 This waiting period, which
applies only to women with Medicaid, is ethically untenable and presents an unnecessary barrier
to accessing the contraceptive method of their choice for women who already experience
healthcare disparities.1-4
HISTORICAL BACKGROUND
The history of eugenics in the United States began with the idea that some people were
unfit to reproduce and should be prevented from doing so for the benefit of society.5 Early
eugenics legislation, such as the first state eugenics law passed in 1907 in Indiana, focused on
prisoners and individuals diagnosed with mental illness.2 Virginias eugenics law, passes in 1924,
was used to mandate that a young, institutionalized mother named Carrie Buck be sterilized
against her will. 2 She appealed, and her case, Buck v. Bell, was heard by the Supreme Court in
1927.2 Oliver Wendell Holmes, Jr., wrote that the principle that allowed for mandatory
vaccination was broad enough to cover mandated sterilization of women who deemed unfit to
reproduce.6
In the 1940s, in the shadow of World War II, the moral principles of eugenics were
questioned in the United States.2 The American public had reservations about the moral and
scientific basis for eugenics as a means to enhance human genetics.1,3 However forced
sterilizations of the poor, minorities, and institutionalized women continued 1,2,7. Although
eugenics legislation started with the idea that limiting the offspring of the mentally ill would
benefit the human gene pool, the definition of who was fit to reproduce broadened as time went
on.
By the middle of the 20th century, the rationale for forced sterilization changed from one
of public health benefit, to one of a war on poverty and relieving the public of the burden of
supporting children of women on welfare.5,6 Many women who were simply poor, a member of a
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Restricted Access: Permanent Sterilization and

Publically Funded Healthcare
racial minority, or physically disabled were sterilized without their consent.4 Often, the coercion
to have permanent sterilization occurred at the time of delivery.8 In the 1960s and 1970s, as
contraception became legal and surgical technique improved, tubal ligation became more
common for women of all socio-economic backgrounds.1 However, forced sterilizations
continued. A well-known court-case demonstrating this is the Relf v. Weinburger in Alabama. In
1973, two African American sisters, aged 12 and 14, were sterilized by a physician.3 Their
mother, who could not read, signed her X on a consent form for the procedure, but was told her
was signing a consent for a Depo Provera injection.3 The court ruled in favor of the girls, noting
that 100,000 to 150,000 were sterilized annually by the federal government.3
In 1978, the problem of forced sterilization, along with an available solution and political
climate opened a policy window that allowed for the current policy to become federal law.1,7,9
Cases such as the Relf sisters gave the problem needed publicity.1 Civil rights groups concerned
with minority womens reproductive rights worked with lawmakers to propose a solution,
resulting in the current policy. Title 42 in the Code of Federal Regulations, sections 50.20350.205, which went into effect in March 1979, addressed the issue of consent and coercion of
poor women to have permanent sterilization at the time of delivery by mandating that consent
forms be signed at least 30 days before the procedure could be done.1,3
IMPACT OF WAITING PERIOD ON WOMEN
Although the intent of the law was to ensure that women undergoing sterilization fully
understood and consented to the procedure, it is unclear if that goal is being accomplished. The
consent form uses language that is complicated and not easily understandable by the average
American adult.1 Furthermore, the very women that the policy is meant to protect continue to
have misconceptions about the permanence of the procedure and mistakenly think it is easily
reversed, or will reverse itself in five years, casting doubt on the notion that informed consent is
actually achieved with the current policy.8
Additionally, the policy violates ethical principles.1-4 First, the principle of nonmaleficence is breached.2 Almost 50% of women who are not able to undergo desired permanent
sterilization will conceive again many of them within one year.1,2 Without the mandated
waiting period, a physician could have performed the wanted surgery with the womans consent,
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Restricted Access: Permanent Sterilization and

Publically Funded Healthcare
and prevented harm.2 The principle of autonomy is also violated.2,3 Under the current policy, an
adult woman who has decided for herself that she would like permanent sterilization can be told
by someone else that she cannot have the procedure because she does not have a valid
standardized consent form.2
The ethical principle of justice is violated both in terms of consequentialism and
deontologicalism. In healthcare justice, consequentialism means can be defined as the ethical
justification for an action based on clinical consequences.4 Because approximately 50% of
women who are denied tubal ligation due to lack of a valid consent form will experience
unwanted pregnancy, the policy is incompatible with healthcare justice from a consequentialist
dimension.4 These unplanned pregnancies result in an annual cost to the public of approximately
$215 million.1 The deontological perspective of healthcare justice judges the ethical basis of an
action based on ethical concepts of being a patient or clinician.4 Because, under current policy,
women with private insurance can decide to have permanent sterilization at the time of delivery,
but women who have Medicaid cannot, the policy fails to meet a deontological standard of the
ethical principle of justice.4 Payer source is irrelevant to the ethical concept of being a patient or
clinician.4
WOMAN-CENTERED POLICY
The policy should be revised to remove the mandatory waiting period for surgeries
funded by Medicaid. 3 A new policy, which is woman-centered and aligned with the ethical
principles of beneficence, non-maleficence, autonomy, and justice should be developed by a
coalition of womens healthcare providers, civil-rights activists, reproductive justice advocates,
legislators, and women affected by the current policy.7,10 The standardized consent form should
be replaced with a scientifically validated decision making tool.1 Alternatively, a standardized
consent form could remain in place, but the language should be revised to be easily understood
by the average woman living in the United States.1,7

CERTIFIED NURSE-MIDWIFE AND CERTIFIED MIDWIFE ROLE

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Restricted Access: Permanent Sterilization and

Publically Funded Healthcare
There are several ways that certified nurse-midwives and certified midwives
(CNMs/CMs) can help women affected by this policy achieve their reproductive goals, including
desired permanent sterilization at the time of delivery. The key to balancing consent with
autonomy is to provide women-centered care. To paraphrase Donald Berwick, M.D., the former
president and CEO of the Institute for Healthcare Improvement, every woman is the only
woman, the needs of the woman should come first, and nothing about her without her.11 If
clinicians, including CNM/CMs follow these guidelines, every woman will get the contraception
she wants, and only the contraception she wants.
Until policy is changed, CNMs/CMs must be consistent about educating women about all
their contraceptive options. Ideally, CNMs/CMs will support a woman in making a reproductive
life plan early in her reproductive life, before her first pregnancy.12 However, even if a woman is
first encountered by a CNM/CM in pregnancy, conversations about her desires around family
planning should take place early and often. CNMs/CMs should provide information, and answer
questions, while being aware of their own biases.13 If a woman is interested in permanent
sterilization and has Medicaid coverage, it is imperative that the CNM/CM make the consent
forms available mid-pregnancy.
Ultimately, the barrier created by the current policy to women receiving the care that is
right for them, regardless of healthcare coverage source, must be removed. In order to bring
about policy change that reflects the ideal of woman-centered care, CNMs/CMs have an
obligation to join the conversation about the injustice of the current policy.14 A review of the
literature using the terms permanent sterilization and consents, tubal ligation and
consents, or permanent sterilization and Medicaid finds numerous articles published in the
last 15 years on the issue in social science and medical literature, but none in the nursing and
midwifery literature published during the same time period. CNMs/CMs are natural and effective
advocates for women, and midwifery care is already woman-centered.15 Therefore, CNMs/CMs
have valuable expertise that can and should be a part of the policy solution.

REFERENCES
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Publically Funded Healthcare
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11.
12.
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14.
15.

Borrero S, Zite N, Potter JE, Trussell J. Medicaid policy on sterilization-anachronistic or still relevant? N. Engl. J. Med. 2014;370(2):102-104.
Raine SP. Federal sterilization policy: unintended consequences. Virtual
Mentor. 2012;14(2):152-157.
Brown BP, Chor J. Adding injury to injury: ethical implications of the Medicaid
sterilization consent regulations. Obstet. Gynecol. 2014;123(6):1348-1351.
Moaddab A, McCullough LB, Chervenak FA, et al. Health care justice and its
implications for current policy of a mandatory waiting period for elective tubal
sterilization. Am. J. Obstet. Gynecol. 2015;212(6):736-739.
Harris LH, Wolfe T. Stratified reproduction, family planning care and the
double edge of history. Curr. Opin. Obstet. Gynecol. 2014;26(6):539-544.
Stern AM. STERILIZED in the Name of Public Health: Race, Immigration, and
Reproductive Control in Modern California. Am. J. Public Health.
2005;95(7):1128-1138.
Reid D. Reproductive Justice Advocates: Don't Roll Back Sterilization Consent
Rules. 2014.
Shreffler KM, McQuillan J, Greil AL, Johnson DR. Surgical sterilization, regret,
and race: contemporary patterns. Soc. Sci. Res. 2015;50:31-45.
Guldbrandsson K, Fossum B. An exploration of the theoretical concepts policy
windows and policy entrepreneurs at the Swedish public health arena. Health
Promot. Int. 2009;24(4):434-444.
Clochesy JM, Gittner LS, Hickman RL, Jr., Floersch JE, Carten CL. WAIT, WON'T!
WANT: BARRIERS TO HEALTH CARE AS PERCEIVED BY MEDICALLY AND
SOCIALLY DISENFRANCHISED COMMUNITIES. J. Health Hum. Serv. Adm.
2015;38(2):174-214.
Berwick DM. What 'patient-centered' should mean: confessions of an
extremist. Health Aff. (Millwood). 2009;28(4):w555-565.
Files JA, Frey KA, David PS, Hunt KS, Noble BN, Mayer AP. Developing a
reproductive life plan. J Midwifery Womens Health. 2011;56(5):468-474.
Gomez AM, Fuentes L, Allina A. Women or LARC first? Reproductive autonomy
and the promotion of long-acting reversible contraceptive methods. Perspect
Sex Reprod Health. 2014;46(3):171-175.
Osborne K. Engaging in Health Policy: There's No Time Like the Present.
Journal of Midwifery & Women's Health. 2015;60(5):477-478 472p.
Renfrew MJ, McFadden A, Bastos MH, et al. Midwifery and quality care:
findings from a new evidence-informed framework for maternal and newborn
care. The Lancet.384(9948):1129-1145.

Restricted Access: Permanent Sterilization and

Publically Funded Healthcare
APPENDIX
Journal of Midwifery & Womens Health
This guide is intended to supplement the Journal of Midwifery & Womens Health (JMWH)
Instructions for Authors and the AMA Manual of Style, which JMWH has adopted for general
questions of grammar, punctuation, and style. Refer to Dorlands Medical Dictionary for spelling
of medical terms
MANUSCRIPT PREPARATION - General Guidelines
1. Use 12-point font, 1.5 line spacing, and uniform margins of 1 at the top, bottom, and sides of
each page.
2. Number pages consecutively.
3. Headings: Use bold uppercase for first-level headings, bold title case for second-level
headings, italicized title case for third-level headings, and normal (no bold or italics) title case
for fourth-level headings (ie, FIRST LEVEL, Second Level, Third Level, Fourth Level).
4. Unless CNMs and CMs are being referred to in a specific context that does not include both
CNMs and CMs (eg, in literature reviews or studies that are specific to nurse-midwifery), the use
of CNM should always be accompanied by CM (CNM/CM). Similarly, the word midwifery
(rather than nurse-midwifery) should be used
Brief Reports. Brief reports may include, but are not limited to, short reports of original research
or quality improvement projects; professional aff airs updates; historical perspectives; and
instructional techniques, technologies, and programs of interest for midwifery educators. Length
limit is 2500 words, 25 references.
Commentary. Controversial points of view cogently presented in the form of position papers or
editorials may be submitted. This section provides a forum for authors to express varied points of
view, propose new ideas, or generate relevant debate on controversial topics. Length limit is
2000 words, 20 references.