2020 California Code
Penal Code - PEN
PART 3 - OF IMPRISONMENT AND THE DEATH PENALTY
TITLE 4 - COUNTY JAILS, FARMS AND CAMPS
CHAPTER 1 - County Jails
Section 4023.8.
(a) A person incarcerated in a county jail who is identified as possibly pregnant or capable of becoming pregnant during an intake health examination or at any time during incarceration shall be offered a pregnancy test upon intake or by request, within seventy-two hours of arrival at the jail. Pregnancy tests shall be voluntary and not mandatory, and may only be administered by medical or nursing personnel. An incarcerated person who declines a pregnancy test shall be asked to sign an “Informed Refusal of Pregnancy Test” form that shall become part of their medical file.
(b) An incarcerated person with a positive pregnancy test result shall be offered comprehensive and unbiased options counseling that includes information about prenatal health care, adoption, and abortion. This counseling shall be furnished by a licensed health care provider or counselor who has been provided with training in reproductive health care and shall be nondirective, unbiased, and noncoercive. Jail staff shall not urge, force, or otherwise influence a pregnant person’s decision.
(c) A jail shall not confer authority or discretion to nonmedical jail 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 professional specified in subdivision (b) of Section 2253 of Business and Professions Code.
(d) A person incarcerated in a county jail who is confirmed to be pregnant shall, within seven days of arriving at the jail, be scheduled for a pregnancy examination with a physician, nurse practitioner, certified nurse midwife, or physician assistant. The examination shall include all of the following:
(1) A determination of the gestational age of the pregnancy and the estimated due date.
(2) A plan of care, including referrals for specialty and other services to evaluate for the presence of chronic medical conditions or infectious diseases, and to use health and social status of the incarcerated person to improve quality of care, isolation practices, level of activities, and bed assignments, and to inform appropriate specialists in relationship to gestational age and social and clinical needs, and to guide use of personal protective equipment and additional counseling for prevention and control of infectious diseases, if needed.
(3) The ordering of prenatal labs and diagnostic studies, as needed based on gestational age or existing or newly diagnosed health conditions.
(e) Incarcerated pregnant persons shall be scheduled for prenatal care visits in accordance with medical standards outlined in the most current edition of Guidelines for Perinatal Care developed by the American Academy of Pediatrics (AAP) and the American College of Obstetricians and Gynecologists (ACOG) Committee on Obstetric Practice, unless more frequent visits are indicated by the physician, nurse practitioner, certified nurse midwife, or physician assistant.
(f) Incarcerated pregnant persons shall be provided access to both of the following:
(1) Prenatal vitamins, to be taken on a daily basis, in accordance with medical standards of care.
(2) Newborn care that includes access to appropriate assessment, diagnosis, care, and treatment for infectious diseases that may be transmitted from a birthing person to the birthing person’s infant, such as HIV or syphilis.
(g) Incarcerated pregnant persons housed in a multitier housing unit shall be assigned lower bunk and lower tier housing.
(h) Incarcerated pregnant persons shall not be tased, pepper sprayed, or exposed to other chemical weapons.
(i) Incarcerated pregnant persons who have used opioids prior to incarceration, either by admission or written documentation by a probation officer, or who are currently receiving methadone treatment, shall be offered medication assisted treatment with methadone or buprenorphine, pursuant to Section 11222 of the Health and Safety Code, and shall be provided information on the risks of withdrawal.
(j) An eligible incarcerated pregnant person or person who gives birth after incarceration in the jail shall be provided notice of, access to, and written application for, community-based programs serving pregnant, birthing, or lactating incarcerated persons.
(k) Each incarcerated pregnant person shall be referred to a social worker who shall do all of the following:
(1) Discuss with the incarcerated person the options available for feeding, placement, and care of the child after birth, including the benefits of lactation.
(2) Assist the incarcerated pregnant person with access to a phone in order to contact relatives regarding newborn placement.
(3) Oversee the placement of the newborn child.
(l) An incarcerated pregnant person shall be temporarily taken to a hospital outside the jail for the purpose of giving childbirth and shall be transported in the least restrictive way possible and in accordance with Section 3407. An incarcerated pregnant person shall not be shackled to anyone else during transport. An incarcerated pregnant person in labor or presumed to be in labor shall be treated as an emergency and shall be transported to the outside facility, accompanied by jail staff.
(m) An incarcerated pregnant person may elect to have a support person present during labor, childbirth, and during postpartum recovery while hospitalized. The support person may be an approved visitor or the jail’s staff designated to assist with prenatal care, labor, childbirth, lactation, and postpartum care.
(n) All pregnant and postpartum incarcerated persons shall receive appropriate, timely, culturally responsive, and medically accurate and comprehensive care, evaluation, and treatment of existing or newly diagnosed chronic conditions, including mental health disorders and infectious diseases.
(o) An incarcerated pregnant person in labor and delivery shall be given the maximum level of privacy possible during the labor and delivery process. If a guard is present, they shall be stationed outside the room rather than in the room absent extraordinary circumstances. If a guard must be present in the room, the guard shall stand in a place that grants as much privacy as possible during labor and delivery. A guard shall be removed from the room if a professional who is currently responsible for the medical care of a pregnant incarcerated person during a medical emergency, labor, delivery, or recovery after delivery determines that the removal of the guard is medically necessary.
(p) Upon return to jail, the physician, nurse practitioner, certified nurse midwife, or physician assistant shall provide a postpartum examination within one week from childbirth and as needed for up to 12 weeks postpartum, and shall determine whether the incarcerated person may be cleared for full duty or if medical restrictions are warranted. Postpartum individuals shall be given at least 12 weeks of recovery after any childbirth before they are required to resume normal activity.
(q) The rights provided for incarcerated persons by this section shall be posted in at least one conspicuous place to which all incarcerated persons have access.
(Added by Stats. 2020, Ch. 321, Sec. 7. (AB 732) Effective January 1, 2021.)
