Ethics of a Mandatory Waiting Period for Female Sterilization

Abstract

In the United States, a federal policy intended to protect against reproductive coercion and sterilization regret can prove a barrier to autonomously requested care. The waiting period for female sterilization that the policy imposes is clinically and ethically unjustifiable, and the policy does little to promote the high-quality shared decision-making that is crucial for people considering this form of contraception. The policy should be revised in light of the goals, preferences, and concerns of the people most affected by it.

Before the 1970s, nonconsensual sterilization of women was legal in the United States and was often performed on the basis of mental condition, on people of color, and on those of lower socioeconomic status, whose fertility was deemed to be less desirable to society.¹ A 1909 state law in California sanctioned over twenty thousand nonconsensual sterilizations on patients in state-run homes and hospitals, and similar laws existed throughout the country.² While the acts claimed to promote “normalcy” in mental condition, Black and Latinx populations disproportionately underwent sterilization without informed consent.³ Famously, in the 1927 Buck v. Bell case, the United States Supreme Court upheld a Virginia sterilization law after Carrie Buck was sterilized without appropriate informed consent because her mother, Emma Buck, was deemed “feebleminded” and “sexually promiscuous.” In reference to Carrie, Supreme Court Justice Oliver Wendell Holmes Jr. wrote that “[t]hree generations of imbeciles are enough.”

In 1976, primarily in response to these injustices, the Department of Health, Education, and Welfare (HEW, now the Department of Health and Human Services, or HHS) set forth a series of federal regulations controlling access to sterilization. This federal policy for patients insured via Medicaid required a specific Consent to Sterilization form⁴ and completion of a seventy-two-hour waiting period between consent and the surgical procedure. Two years later, the waiting period for sterilization changed from seventy-two hours to 30 days, but no more than 180 days between the time of written informed consent and the procedure, with exceptions to allow a waiting period of seventy-two hours for special circumstances, such as premature delivery and emergency abdominal surgery.⁵ Opponents to this proposed policy argued that, given barriers to care, the waiting period would discriminate against those of lower socioeconomic status. However, HEW continued the policy, stating that the waiting period prevented both reproductive coercion and sterilization regret.⁶ No regulations were passed for patients insured privately or with other federal insurance products.

In contemporary obstetrical practice, the Medicaid sterilization policy serves as a policy-level barrier to autonomously desired care. Up to half of women with Medicaid insurance who request sterilization as their desired method of contraception postpartum do not undergo the procedure, and almost half of these women become pregnant within the following year.⁷ While other barriers to postpartum sterilization exist at the patient, clinician, and hospital levels, many unfulfilled sterilization requests have been directly attributed to the federal Medicaid policy.⁸

Though the regulations were written for both male and female sterilization, women are predominantly affected. Vasectomy is used more often by privately insured than publicly insured people as a method of contraception within a heterosexual relationship.⁹ In addition to demographic differences in the populations using male versus female sterilization, female sterilization is approximately three times more commonly used as contraception than is male sterilization.¹⁰ Women are also subject to unique logistical and policy barriers created due to pregnancy.¹¹ Many female Medicaid recipients qualify for this support only because they are pregnant,¹² and in many states, pregnancy-related Medicaid coverage ends sixty days after delivery. Given barriers to attending outpatient postpartum visits as well as the expiration of Medicaid insurance, many women no longer have insurance coverage for sterilization once the opportunity immediately after delivery is missed.¹³

While not all people who have the potential to become pregnant or desire female sterilization identify as women, we use “women” as the term for the patient population studied in the empirical literature we cite. We wish to avoid claiming that data exists where it does not—but also wish to acknowledge the need for additional study in this unique patient population.

In addition to gender disparities, there are racial disparities in sterilization completion rates, with Black and Hispanic women with Medicaid less likely to receive their desired postpartum sterilization procedures than White women with Medicaid.¹⁴ Individual-level disparities are compounded by community factors, with patients in more disadvantaged areas (who tend to be Black) less likely to obtain desired sterilization than those in less disadvantaged areas.¹⁵ Thus, as opponents of the waiting period predicted in 1976, the regulation has significantly exacerbated some disparities.

Yet a need for protection from coerced sterilization persists.¹⁶ As recently as 2006 to 2010, 150 incarcerated Latina women in the California penal system reportedly underwent coerced sterilization.¹⁷ In 2017, a judge in Tennessee offered people in both men’s and women’s prisons shorter sentences if they received sterilization or long-acting reversible contraception.¹⁸ An ethical and just sterilization policy would protect a vulnerable population from coercion without creating a barrier to care that is truly autonomously desired by the patient. It is not clear that the current Medicaid sterilization policy with a thirty-day waiting period strikes this balance in desired goals.

In this article, we review the clinical and ethical implications of the Medicaid waiting period in terms of the two goals at tension. We then discuss the utility and impact of waiting periods for surgical procedures, exploring the psychology of requiring time for decision-making and the scientific understanding of regret. We argue that the current Medicaid waiting period is clinically and ethically unjustifiable. Although the need for protection against coercion remains, the mandated waiting period does little to enforce the high-quality shared decision-making that is needed for sterilization counseling. Simply removing the waiting period is a solution, but historically, the patient groups most impacted have not advocated for this. We therefore reject this solution as not fulfilling the principles of reproductive justice. Instead, we call for dialogue and consensus building around a more clinically optimal and ethical solution that is respectful of the goals of the communities and patients most affected. Expanding Medicaid access from sixty days postpartum to twelve months postpartum is a policy solution that can be implemented by individual states to alleviate the negative effects of the current artificial deadline on postpartum contraceptive decision-making.

Ethical Implications

The term “stratified reproduction” has been used to describe the long history of unequal and unjust treatment in regard to fertility and childbearing throughout U.S. history, ranging from gynecological experimentation on Black women during slavery to the lack of access to infertility treatments that populations of women of color experience despite having higher infertility rates than White women.¹⁹ The Medicaid sterilization policy contributes to the maintenance of stratified reproduction by establishing tiers of fulfillment for desired sterilization. Privately insured women are almost twice as likely to receive desired postpartum sterilization as those with Medicaid, and White women with Medicaid are more likely than women of color to receive desired postpartum sterilization.²⁰ In addition, differential counseling by clinicians toward or against sterilization based on race or ethnicity has been reported.²¹

Though the Medicaid policy was implemented to protect a person’s right to informed consent, whether this objective has been accomplished is not clear. Certainly, a federal form written well above the recommended reading level for patient education materials and provided only in English and Spanish is not appropriate for ensuring informed consent. In a study asking women who had already signed the federally mandated form whether sterilization was permanent, was reversible, and prevented future childbearing (all of which is covered in the patient section of the form), only one-third of women were able to answer correctly.²² Therefore, at a minimum, the form needs to be revised to serve the goal of promoting informed consent.

Moreover, it is impossible to ignore the sex-based divide in this issue: male vasectomies cost less to perform, are medically safer to perform, and are more easily reversible. Yet they are performed at one-third the frequency of female sterilization.²³ Traditionally, the burden of contraception has been placed on the woman in a heterosexual relationship, regardless of what may be the safest and most effective option. Additionally, males who qualify for Medicaid often qualify for socioeconomic reasons alone, whereas, as noted above, many women with Medicaid insurance have qualified only on account of being pregnant,²⁴ and, in many states, they will lose the coverage sixty days after delivering.²⁵ Given the time-limited aspect of this insurance coverage, women are disproportionately impacted, as they may no longer be covered by insurance if the sterilization consent form was not signed sufficiently in advance of delivery or sterilization was not provided inpatient very soon after delivery. Thus, governmental restrictions on a woman’s right to not have a child should be minimized to ensure reproductive autonomy and uphold procreative liberty.²⁶

Creating barriers for women is an issue that extends further than limiting individual agency; it affects family structures, public health, and health care costs. Unwanted pregnancies put a strain on the entire family’s resources. Sonya Borrero and colleagues, using a theoretical model that projected the impact of the Medicaid sterilization policy on public health and health care costs in 2010, have shown that the current policy is associated with the inability to perform an estimated 62,135 postpartum sterilizations annually. Removal of this obstacle would lead to ten thousand fewer abortions and nineteen thousand fewer unintended births annually. The authors concluded that the yearly economic public cost savings under a revised policy would be $215 million.²⁷ Given the layering of barriers based on sex, race, and insurance status, it is clear that the current policy and waiting period deserve scrutiny.

Yet, during at least the last two periods open for public comment on the HHS sterilization policy (the most recent being in 2022), written responses to the HHS from reproductive justice-oriented organizations that represent the very communities most impacted by this problematic policy advocated for continued protection through the waiting period. Qualitative data from patients with Medicaid insurance demonstrate that patients reject the notion of altogether removing the waiting period on account of persistent coercive sterilization practices.²⁸ Though we acknowledge that the current policy was and remains ineffective at preventing the abusive practices described above, we reject the notion of altogether eliminating the waiting period, as, to our knowledge, the communities most impacted are opposed to this change. While the current policy represents a paternalistic barrier to care, advocating for the waiting period’s complete elimination without the approval of the affected communities would also be paternalistic and would violate the principles of reproductive justice. Revision to the Medicaid policy must therefore be based on the goal of ensuring equity in sterilization access and fulfillment while being mindful of the goals and desires of the patients who would be affected by policy revision.

Utility and Impact of Surgical Waiting Periods

Legally mandated waiting periods prior to treatment are rarely found in medicine outside of the contexts of women’s health procedures and end-of-life care. As we discuss below, the implication that women are less able to make decisions regarding their bodies and more susceptible to regret is ethically problematic and clinically unfounded.

Perhaps the most discussed legally mandated surgical waiting period is the one surrounding abortion. Some U.S. states have laws that enforce a waiting period between requesting and receiving abortion services.²⁹ Such laws are created under the guise of enhancing decision-making and preventing regret. However, studies have consistently shown that women are certain of their desire to terminate a pregnancy and that a waiting period does not alter this decision.³⁰ Further, such waiting periods serve as barriers to care, as they necessitate additional medical visits, thus resulting in a decrease in access to abortion care. In one study examining multiple states with mandatory delay statutes, 11 to 13 percent of women who desired an abortion were unable to obtain one due to the legislative barrier.³¹ Such delays and barriers also lead women to obtain termination later in pregnancy, increasing morbidity. A Mississippi statute requiring a twenty-four-hour delay resulted in a 10 percent overall decline in abortion rates and a higher proportion of terminations performed in the second trimester.³² Such barriers disproportionately impact women who rely more heavily on public resources, compounding further disparities for women of color.³³ In fact, Black women in Tennessee had the highest rate of second-trimester abortions after the mandatory waiting period was implemented.³⁴

Outside of state-based abortion policy, surgical wait times are commonly caused by logistical issues (as the demand for a service or procedure may exceed the supply), insurance policies that require preoperative counseling, or failed medical management.³⁵ Generally, the elapsed time between a patient’s request for surgery and their receipt is influenced by a myriad of factors outside of a patient’s or surgeon’s control. The harms caused by a waiting period cannot be justified when the delay is intentionally and unnecessarily imposed. Such waiting times are consistently described as stressful and anxiety provoking.³⁶ Patient tolerance for waiting is linked to the impact of the planned surgery on the patient’s quality of life, and a greater aversion for waiting is consistently demonstrated among patients with a functional impairment, with a lower quality of life, or who perceive that surgery will have a greater impact on their lives.³⁷ Given the importance of sterilization on reproductive life planning, those denied sterilization because of the mandated waiting period report feeling angry, helpless, and frustrated with the medical system.³⁸

Insurance companies also impose artificial delays in desired care by requiring preoperative counseling by a mental health professional or evidence of failed medical management. The ethics of insurance-based waiting periods for other surgeries is outside the scope of this manuscript, but it’s worth noting that there is no medical alternative to sterilization. Long-acting reversible contraception is similarly effective in pregnancy prevention, but it is not equivalent, as it is reversible and temporary. Adequate preoperative counseling is imperative for any surgery, of course; however, ensuring that it happens is the professional duty and obligation of the surgeon—and not appropriate for the insurance company that’s functioning as a gatekeeper through medical record review. Simply requiring evidence of a counseling visit (often with a mental health professional) does not guarantee that high-quality decision-making has occurred. A renewed commitment to shared decision-making is imperative to fulfill the ethical obligation of adequate preoperative counseling for all surgeries, including sterilization.

In addition to the goal of minimizing reproductive coercion, the waiting period was instituted to reduce the potential for regret by ensuring that people would have enough time to decide whether they truly desire sterilization.³⁹ However, data demonstrating that a formal waiting period assists in this regard is not available. One study examined the impact of a hypothetically mandated waiting period on the decision-making of patients undergoing arthroscopic shoulder surgery. In this study, the waiting period did not enhance the ability of patients to make deliberative decisions and did little to enhance the quality of patient-physician decision-making. The majority of patients in this study rejected the concept of a waiting period and did not want a mandatory waiting period imposed by the law.⁴⁰

Time Period for Optimal Decision-Making

There is also an absence of data to guide the justification of the specific length of the waiting period. The current policy mandates a thirty-day waiting period but permits a shorter period of seventy-two hours in the case of early delivery and emergency abdominal surgery. The justification for the shorter waiting period rests not on a hypothetical improved ability of patients to provide informed consent during these two stressful events but, rather, on a pragmatic understanding that waiting thirty days may not be possible prior to early delivery or emergency surgery. For other situations, it is not clear why a longer waiting period would be necessary if a shorter one is deemed sufficient in situations where decision-making may be more affected by time constraints.

Naturally, the amount of information processing required to make a decision influences the time taken to make it, but the norm in contemporary culture is to make decisions as soon as they can be made.⁴¹ To accomplish this, people adopt strategies that abbreviate information processing. An example of this is the satisficing heuristic, a cognitive process in which people stop searching for a solution once they find one that meets their minimum requirements.⁴²

Yet there is such a thing as having too little time to make well-informed decisions. Decisions made under considerate time pressure are often associated with rigid behavior, or with failing to adapt a behavior to a new situation.⁴³ Rigidity results because less information is processed in total and the information is processed in a simpler way. It also results when someone experiences a constriction in their control system that leads to habituated, well-learned behavior. In dual-process psychological theory, this is the result of “system 1” thinking, which is more involuntary, relying on intuition and unconscious reasoning.⁴⁴ Stress inhibits “system 2” thinking, which is more analytic and deliberative. People consistently make less advantageous choices in decision-making tasks while under stress.⁴⁵ High levels of heart rate have been associated with riskier choices, and stress may have a deleterious effect on adaptive decision-making.⁴⁶ Therefore, making the decision to undergo sterilization under time pressure may lead women to choose a well-learned behavior—such as adherence to a societal norm on childrearing or acquiescence to a power figure like a physician—over a more desired decision-making strategy.⁴⁷

However, setting too long a waiting period is also problematic. Being able to consider alternatives to sterilization is imperative for providing adequate informed consent, but there are clinical risks, including unintended pregnancy, associated with delaying decision-making if another form of contraception is not being used. Further, with the lack of postpartum support and paid maternity leave in America, many women return to work soon after delivery.⁴⁸ Thus, there are obstacles to returning to postpartum care by undergoing a delayed postpartum sterilization. These external barriers contribute to the risk that an individual’s sterilization request will never be fulfilled if they do not undergo the procedure during immediate postpartum hospitalization. Additionally, given delay discounting—the psychological process of devaluing rewards or risks in the far future compared to those in the near future—people who have just given birth may deprioritize delayed surgery compared to more pressing needs, such as caring for a newborn and returning to work for financial security.⁴⁹

By contrast, moderate time pressure can enhance informational processing and lead to more effective decision-making strategies.⁵⁰ To some extent, time pressure can reduce framing biases and lead patients to screen their alternatives better when they face an enormous choice set.⁵¹ Under moderate time pressure, participants in one study accelerated their processing and tried to work faster, but without changing their pattern of processing.⁵² They adopted attribute-based processing, through which they quickly eliminated alternatives that did not fulfill key attributes. These findings suggest that a careful balance is desirable between allowing potential surgical patients the time needed for optimal decision-making and not creating undue barriers to care.

Changing One’s Mind and Regret

For medical decision-making about important choices, the possibility of regret is another ethical consideration. Yet while sterilization regret is commonly cited as a justification for the Medicaid waiting period,⁵³ in the clinical context, the phenomenon of regret is not limited to sterilization. It has been documented for other medical procedures and surgeries as well.⁵⁴ The informed consent process is designed to minimize this risk, but there are no external regulations in place to safeguard people against regret in these other procedures. This concern is largely gendered. Denial of sterilization on the grounds of a possibility of regret is prevalent only with women’s sterilization; it is not cited as a reason to deny men sterilization through vasectomy.⁵⁵ In one study of heterosexual couples, most women did not express regret after their husband’s vasectomy, and the probability of regret was similar when it was the woman who had undergone sterilization.⁵⁶

More importantly, there is little evidence that women change their minds about sterilization. Studies have shown, in fact, that sterilization regret is rare. In one study, 2 percent of women who underwent sterilization regretted it one year after the procedure, and 2.7 percent did so after two years.⁵⁷ Only 1 percent of women who have been sterilized undergo surgical reversal of their sterilization.⁵⁸ However, regret in these studies is not well defined, and the definition of “regret” varies across the literature, leading to strong variability among the rates of regret reported.⁵⁹ Because of the waiting period, some providers have their patients sign the consent form even if the women are not planning to undergo sterilization, in case they want the procedure later.⁶⁰ This practice would artificially inflate study statistics suggesting the potential for regret based on the difference between the numbers of those who requested sterilization and those who went through with the procedure.

Most women generally do not make the autonomous decision to undergo sterilization under artificial time pressure. In one study, the majority of patient decision-making experiences regarding sterilization began either years prior to the most recent pregnancy or shortly after the women found out they were pregnant. The point at which they became certain that they wanted sterilization was in either the second or third trimester of their last pregnancy. This timeline for decision-making was similar among women with private insurance and those with Medicaid.⁶¹ Qualitative data from interviews of patients impacted by the Medicaid sterilization policy demonstrate frustration that it serves as a barrier once their decision has been made.⁶² Of the two theoretical reasons that the Medicaid sterilization policy was instituted—protection from coercion and minimization of regret—patients support continuation of a waiting period out of concern that others could be coerced but do not feel that they need it to prevent regret in themselves.

A More Equitable Way Forward

It is clear that the federal Medicaid sterilization policy cannot be justified and should be revised. It results in a layering of unjust barriers that disproportionately affect low-income women and women of color. Moreover, the imposition of an artificial waiting period does not support effective decision-making or reduce the occurrence of regret. It is unclear, however, what the policy revisions should entail, as removing the federal Medicaid sterilization policy altogether would ignore the historical and ongoing structural racism and implicit bias that devalues reproduction by women of color.⁶³ It would also mean that the desires and lived experiences of the communities most impacted would be supplanted by policy-makers’ perspectives.

The current policy was intended to protect against the paternalistic model of the patient-physician relationship by essentially mandating an informative model⁶⁴ in which clinicians are required to inform patients of the risks and alternatives to sterilization, obtain written consent, and then allow for ongoing patient deliberation for thirty days before providing the requested sterilization. Yet the policy has failed to protect patients from paternalism. In addition to the paternalism we have focused on above, clinicians have been reported to serve as gatekeepers and to deny autonomously desired procedures by imposing their own thresholds for sterilization based on patient age and parity, among other factors.⁶⁵ Furthermore, given the reading level of and comprehension challenges with the current Medicaid sterilization consent form, the informative model is also not being used optimally.⁶⁶ Therefore, until a needed revision of the federal policy is available, we recommend, at a minimum, that evidence-based, revised sterilization consent forms written at a more appropriate reading level be used in conjunction with the current federally mandated form.⁶⁷ We urge that the sterilization consent form be revised to ensure that the principles of high-quality informed consent are being upheld.

Ideally, revision of the sterilization policy would move decision-making to the more preferable shared decision-making model.⁶⁸ The decision to undergo sterilization involves many factors, often individual to the patient, including effectiveness, permanence, the perceived hassle of short-acting contraception, and a lack of hormones, among others.⁶⁹ When counseling women and other patients about sterilization, clinicians should explore the social and psychological factors influencing the request (including who may be influencing a patient’s decision-making) and make sure patients understand the permanence of the procedure; the risk of complications, including failure; the potential psychological consequences of permanently ending childbearing capacity, including regret; and the availability of other, long-acting, reversible methods.⁷⁰ In one study, commons reasons for not obtaining postpartum sterilization (other than the federal Medicaid policy) included the permanence of sterilization, fear of the surgery or of anesthesia, provider influence, and individual medical complications.⁷¹ These factors should be incorporated into counseling. Emotional barriers to decision-making should also be considered. A woman who is experiencing conflict in her sexual relationship or is subjected to intimate-partner violence might be seeking reproductive control in light of her situation.⁷²

Sterilization counseling and decision-making should ideally be longitudinal rather than a static, one-time occurrence.⁷³ A mandated waiting period of universal length will inevitably be too long to promote effective decision-making for some women and too short for others. Deploying narrative methods during sterilization counseling can result in insight into a given woman’s life and help her work with her clinician toward an individualized solution.⁷⁴ For example, the process of aiming for narrative reflective equilibrium,⁷⁵ which involves weighing different values and beliefs through storytelling or talking through scenarios, can be used to analyze how a woman constructs her reproductive life and why she is choosing a permanent form of contraception. Developing a narrative is a method for including factors external to medicine into the decision and requires mutual communication from the patient and provider.

Ethically, the goals for counseling a patient during their decision-making and for the informed consent process are clear—the patient must be enabled to provide informed consent free from coercion and provider biases. The process by which this ethical mandate should be fulfilled in contemporary clinical practice is nevertheless uncertain. Developing and testing a decision-making tool to aide in high-quality shared decision-making is an active area of study. An effective decision-making tool would help to ensure that appropriate information is being conveyed so that risks and benefits are fully discussed, would assist in clarifying values and preferences surrounding contraception, and would minimize clinician bias in counseling. Yet such a tool would not address the ongoing need for protection from structural racism and coercion. We therefore also recommend deliberation and consensus building of stakeholders surrounding the waiting period and policy in order to strike an appropriate balance between preventing coercion and avoiding the creation of a barrier to autonomously desired care.⁷⁶ The stakeholders must include diverse representations of patients, patient advocacy groups from those communities most impacted, clinicians, and state and federal Medicaid officials. The goals, preferences, and concerns of patients most affected by this policy must be considered in any revision of the Medicaid sterilization waiting period.

Furthermore, extension of Medicaid coverage from sixty days to twelve months postpartum would alleviate the artificial time pressure in sterilization decision-making due to the looming loss of insurance coverage postpartum.⁷⁷ While the American Rescue Plan Act, signed into law on March 11, 2021, provides a pathway for states to extend Medicaid coverage for postpartum people, primarily to impact the rates of and disparities in maternal morbidity and mortality, it also has the benefit of potentially removing inappropriate time pressures for sterilization decision-making. Since Medicaid insurance coverage for many patients remains linked to pregnancy, such policy represents an important step toward allowing for decision-making about surgical sterilization on a patient’s time frame, rather than an external one. To date, only nineteen states have implemented this extension in Medicaid, though an additional sixteen are in the process. We urge the remaining states to apply and the federal administration to process the applications in an expedited fashion.⁷⁸