2023 California Code › Penal Code - PEN › PART 3 - OF IMPRISONMENT AND THE DEATH PENALTY › TITLE 2 - IMPRISONMENT OF FEMALE PRISONERS IN STATE INSTITUTIONS › CHAPTER 3 - Prisoners › Section 3408.

3408. (a) A person incarcerated in the state prison 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 test upon intake or by request. 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. Prison staff shall not urge, force, or otherwise influence a pregnant person’s decision.
(c) 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 professional specified in subdivision (b) of Section 2253 of the Business and Professions Code.
(d) A person incarcerated in prison who is confirmed to be pregnant shall, within seven days of arriving at the prison, 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 as follows, unless otherwise indicated by the physician, nurse practitioner, certified nurse-midwife, or physician assistant:
(1) Every four weeks in the first trimester up to 24 to 28 weeks.
(2) Every two weeks thereafter up to 36 weeks gestation.
(3) Every one week thereafter until birth.
(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) (1) An eligible incarcerated pregnant person or person who gives birth after incarceration in the prison shall be provided notice of, access to, and written application for, community-based programs serving pregnant, birthing, or lactating incarcerated persons. At a minimum, the notice shall contain guidelines for qualification, the timeframe for application, and the process for appealing a denial of admittance to those programs.
(2) If a community-based program is denied access to the prison, the reason for the denial shall be provided in writing to the incarcerated person within 15 working days of receipt of the request. The written denial shall address the safety or security concerns for the incarcerated person, infant, public, or staff.
(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 prison 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 prison 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 prison’s staff designated to assist with prenatal care, labor, childbirth, lactation, and postpartum care. The approval for the support person shall be made by the administrator of the prison or that person’s designee. If an incarcerated pregnant person’s request for an elected support person is denied, reason for the denial shall be provided in writing to the incarcerated person within 15 working days of receipt of the request. The written denial shall address the safety or security concerns for the incarcerated person, infant, public, or staff. Upon receipt of a written denial, the incarcerated pregnant person may choose the approved institution staff to act as the support person.
(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 prison, 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.
(r) Prison staff shall not disclose identifying medical information related to an incarcerated person’s right to seek and obtain an abortion if the information is being requested based on either another state’s laws that interfere with a person’s rights under the Reproductive Privacy Act (Article 2.5 (commencing with Section 123460) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code) or a foreign penal civil action, as defined in Section 2029.200 of the Code of Civil Procedure.
(Amended by Stats. 2022, Ch. 628, Sec. 8. (AB 2091) Effective September 27, 2022.)