Eliminate the waiting period for sterilization covered by Medicaid

It’s time to acknowledge when a law intended to right an egregious wrong has become harmful — and change it. That’s the case for a law that requires people covered by Medicaid to wait at least 30 days after signing a consent to sterilization form to actually undergo the procedure. But there’s no waiting period for people covered by private insurance.

The rule that people seeking publicly funded sterilization must wait a month after signing consent forms for the procedure was made in response to the practice of coercive and nonconsensual sterilizations and purposeful unethical mistreatment of minoritized people. A eugenics law in California, for example, permitted providers to sterilize people they deemed unfit to reproduce. From 1919 to 1952, more than 20,000 nonconsensual sterilizations took place in that state; the law was not repealed until 1979 in state hospitals and, frighteningly, was still in effect in state prisons until 2010.

Enforced sterilization wasn’t limited to California. Black women across the country were unknowingly having complete hysterectomies without their knowledge or consent. This practice was so commonplace in the south that it was dubbed the “Mississippi appendectomy.”

The unethical and tragic Tuskegee Study of Untreated Syphilis in the Negro Male, which ran from 1932 until it was brought to light by a news story by the Associated Press in 1972, highlighted a lack of informed consent by the participants. Medicine was not provided to nearly 400 Black men with syphilis, a treatable disease. The Nuremberg Trials after World War II highlighted the mistreatment of and experimentation on people in concentration camps by German physicians. Out of those trials arose the Nuremberg Code, which contains the foundational ethical principles for informed consent and human subjects research that researchers are supposed to abide by in the present day.

To protect people against forced or nonconsensual sterilization, a federal regulation went into effect in 1978 mandating waiting periods for sterilization for individuals with public health insurance. Given this regulation, which sits under Title 42, anyone seeking publicly funded sterilization must complete the “Consent to Sterilization” section of the Medicaid Title 19 form at least 30 days, and not more than 180 days, before undergoing a sterilization procedure. The exceptions to the 30-day wait are for individuals needing emergency abdominal surgery and premature delivery, but at least 72 hours must have passed since undergoing informed consent and signing the form.

While the law had an admirable aim — protecting marginalized and low-income individuals from coerced sterilization — it has become a barrier to access to permanent fertility control for these individuals. Current data show that many people desire sterilization, as it is the most used method of all forms of contraception for people with female reproductive organs.

Here’s an example of how this works against people: You are a low-income individual covered by Medicaid having your third baby, and you don’t want to have any more children after that. A few weeks shy of your due date, you signed a consent form to have tubal ligation, a form of sterilization, if you needed to have a C-section. But you go into labor early. When you arrive at the hospital, your baby’s heart tracings are worrisome, so the doctors recommend a C-section. You agree to this procedure, but are told that, since your consent form was signed only a few days ago, the tubal ligation can’t be performed after the C-section, and can only be done six weeks after giving birth. That means two separate surgeries instead of one, and opens the door to another pregnancy if other forms of birth control hadn’t worked well for you in the past.

If you had been covered by private insurance, though, you could have had the tubal ligation in tandem with the C-section.

Although the law requiring a waiting period began as something protective, it prohibits equitable access to, and is at odds with, reproductive justice. It isn’t fair and it doesn’t make sense in any equitable public health framework, to have a waiting period for people covered by Medicaid and no mandatory waiting period for those with private health insurance.

The waiting period for people covered by Medicaid needs to be eliminated so the same rules apply to those carrying public or private health insurance. Medicaid covers an estimated 42% of all births in the U.S. and, with its recent expansions to cover 12 months of postpartum care, there are now even more pregnant people on public insurance subject to the wait period. This worsens the existing inequity between those who can afford private insurance and those who can’t.

Male sterilization — vasectomy — is subject to the same waiting period for those on Medicaid. This is less of an issue though as vasectomies are more often used by those with private insurance. They are also less expensive, reversible, less complex to perform, and aren’t tied to another procedure like a C-section.

Eliminating the waiting period for both female and male sterilization will increase equitable access to birth control and potentially shift the burden of birth control — which has historically been predominantly carried by females — by reducing the waiting period for male sterilization as well. This is now more important than ever. Unintended pregnancies are anticipated to be on the rise since Roe v. Wade was overturned, leading to increasing restrictions against abortion. Expanding access to all forms of birth control, including sterilization, should be a priority.

Although the waiting period regulation was meant to establish informed consent for sterilization, the wording of the consent form has introduced confusion rather than empowering people to make informed decisions. Currently a standard consent form and a low-literacy consent form are available. Several studies have compared sterilization-related knowledge after reading the standard consent form versus the low-literacy consent form in both English and Spanish. Those who read the standard consent form are less likely to understand the permanence of sterilization and the requirement for the waiting period between signing the consent form and having the procedure than those who read the low-literacy form. While the default solution may be to make the low-literacy form the standard, eliminating the wait period would remove that section from the consent form and allow those reading it to focus on the specifics of the procedure.

Informed consent and bodily autonomy are pillars of delivering high-quality patient care. As medical care evolves and improves, so should the rules and regulations that guide patient care. This rule for protecting people is now impinging on their autonomy.

We call on the Department of Health and Human Services to eliminate the waiting period for sterilization, or at least reduce it to 24 hours. If the wait period is to remain, at least the low-literacy consent form should become the standard consent for everyone. To be sure, solving this problem will require policy change, and that takes time. Until then, health care providers should prioritize discussing family planning options and birth spacing throughout pregnancy and the postpartum period. As the laws continue to destabilize access to reproductive health care and limit patient autonomy, we must challenge current practices that pose barriers to health access.

Amanda Masse is a third-year medical student and master of public health student at Tufts University School of Medicine in Portland, Maine. Nadi Nina Kaonga is an OB-GYN and an assistant professor of obstetrics and gynecology at Emory University School of Medicine in Atlanta.