Birth Control as a Condition of Probation or Parole

  • Martin Gunderson
Part of the Biomedical Ethics Reviews book series (BER)


On December 10, 1990 the Food and Drug Administration approved the use of Norplant® implants, a major advance in birth control technology. The implant, which is surgically placed in the upper arm of a woman, consists of several small rubber tubes that release progestin over a period of five or more years. Within a month the new device made its impact felt on the criminal justice system in California. Darlene Johnson, a mother of four, pleaded guilty to several counts of felony child abuse after being arrested for beating two of her children with a belt and an electric cord. On January 2, 1991, Howard Broadman, Superior Court Judge of Tulare County, California, sentenced Ms. Johnson to serve one year in jail and three years on probation while using the Norplant® implant. In addition, her children were placed in foster homes.1 Ms. Johnson was also ordered to undergo mental health counseling and parenting classes.2 Later, Ms. Johnson said she agreed to the terms of probation only because she was afraid she would otherwise be sentenced to serve the entire four years in jail.3 Ms. Johnson then appealed the ruling.


Birth Control Criminal Justice System Criminal Penalty Mental Health Counseling Plea Bargaining 
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Notes and References

  1. 1.
    “Woman in Abuse Case Agrees to Birth Control,” New York Times, Friday, January 4, 1991, sec. A, 12 6.Google Scholar
  2. 2.
    Michael Lev, “Judge Is Firm on Forced Contraception, but Welcomes Appeal,” New York Times, Friday, January 11, 1991, sec A, 17 1.Google Scholar
  3. 3.
    Tamara Lewin, “Implanted Birth Control Device Renews Debate Over Forced Contraception,” New York Times, January 10, 1991, sec. A, 20, 1. Google Scholar
  4. 4I.
  5. 5.
    Ibid. and Lev, op. cit. Google Scholar
  6. 6.
    US Bureau of the Census, Statistical Abstract of the United States: 1991 (111th edition) Washington, DC, 1991, Table 337, p. 194.Google Scholar
  7. 7.
    Some of these restrictions have been upheld by the United States Supreme Court. In Griffin y Wisconsin the court held that searches of probationers’ homes are allowed under circumstances that would otherwise be unconstitutional. Specifically, searches of the homes of probationers do not require a warrant or probable cause, but merely reasonable grounds to believe that there is contraband. 483 US 868, 879 (1987). In Minnesota v Murphy the court held that “a state may require a probationer to appear and discuss matters that affect his probationary status” even if there is reason to suspect that the answers will be self-incriminating. 465 US 420, 435 (1984).Google Scholar
  8. 8.
    A recent study in the New England Journal of Medicine indicated that 15% of women seeking prenatal care in Pinellas County, Florida tested positive for alcohol, cocaine, opiates, or cannabis. Ira Chasnoff, Harvey Landress, and Mark Barrett, “The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida,” The New England Journal of Medicine, Vol. 322 (April 26, 1990), 1202–1206. Another study of 36 hospitals found that 11% of pregnant women had used drugs during their pregnancy that could harm the fetus. Ira Chasnoff, “Drug Use and Women: Establishing a Standard of Care,” Annals of the New York Academy of Science, Vol. 562 (1989), 208–210, cited in Chasnoff, Landress and Barrett, p. 1205, nt. 1.Google Scholar
  9. 9.
    Robert N. Proctor, Racial Hygiene: Medicine under the Nazis, Harvard University Press, Cambridge, MA, 1988, 97.Google Scholar
  10. 10.
  11. 11.
    Proctor, op. cit., 99.Google Scholar
  12. 12.
    Proctor, op. cit., 98.Google Scholar
  13. 13.
    n general, though blacks make up less than 13% of the population of the US, they comprise approximately 47% of the inmate population in state prisons. Statistical Abstract of the United: 1991, Tables 12 and 335, pages 12 and 193.Google Scholar
  14. 14.
    Chasnoff, Landress and Barrett, 1203–1204.Google Scholar
  15. 15.
    Dorothy E. Roberts, “Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right to Privacy,” Harvard Law Review, Vol. 104 (May, 1991), 1421, nt 6, citing a memorandum prepared by the ACLU Reproductive Freedom Project.Google Scholar
  16. 16.
    As previously noted minorities make up a disproportionately large number of the prison population. See note 13.Google Scholar
  17. 17.
    Planned Parenthood of Missouri v Danforth, 428 US 52 (1976).Google Scholar
  18. 18.
    Rachael Pine, head of the Reproductive Freedom Project of the American Civil Liberties Union, for example, argues that plea bargaining in general is so inherently coercive that birth control should not be considered an appropriate matter for plea bargaining. Lewin, op. cit. Google Scholar
  19. 19.
    Federal regulations, for example, recognize the vulnerable status of prisoners and require additional safeguards before permitting the use of prisoners in medical or behavioral research. See 46 CFR 301–306.Google Scholar
  20. 20.
    Griswold v Connecticut, 381 US 479 (1965); Roe v Wade, 410 US 113 (1976).Google Scholar
  21. 21.
    Conjugal visits are still virtually nonexistent in the US.Google Scholar
  22. 22.
    John MacKenzie also makes this point in an editorial. See “Whose Choice Is It Anyway?” New York Times, January 28, 1991, sec. A, 22, 1.Google Scholar
  23. 23.
    I am indebted to David Mayo for his helpful comments and suggestions on earlier drafts of this paper.Google Scholar

Copyright information

© Springer Science+Business Media New York 1993

Authors and Affiliations

  • Martin Gunderson

There are no affiliations available

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