Chapter 5 - Health Care
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This chapter covers several areas of health care affecting women. The following information is not meant to be exhaustive, and individual questions regarding your health should be directed to your doctor or medical professional. Topics discussed in this chapter include birth control, abortion, pregnancy, sexually-transmitted diseases or STDS (including AIDS), breast cancer, and assorted other health care issues of general interest to women.
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There is a wide range of birth control devices available to women.(1) As with many medical choices, there may be risks associated with the use of certain birth control methods, so you are advised to discuss with your doctor your own needs and the risks associated with your choice of birth control. No artificial birth control device or drug is 100% effective at preventing pregnancy.
Listed below are some of the most common forms of contraception.
The Birth Control Pill
There is actually more than one kind of birth control pill. "The pill" is a drug containing some combination of the hormones estrogen and progestin, which prevent a woman from ovulating.
Caution is advised in the use of birth control pills for any woman who has had any of the following conditions: uterine or breast cancer, varicose veins, phlebitis, heart problems, stroke, sickle-cell anemia, liver problems, migraine headaches, irregular menstrual periods, or hypertension. Caution is also advised for women who are breast-feeding, who are over 40 years of age, or whose mothers used the drug DES (diethylstilbestrol) during their pregnancies.
The "morning-after pill" does not prevent contraception, but prevents a fertilized egg from attaching itself to the uterus by bringing on a women's menstrual period. The "morning after" pill contains DES, and other drugs believed to have harmful side effects to users, and is generally prescribed in emergency situations. The "pill" does not protect women against AIDS or other STDS.
Norplant implants consist of six thin rods containing a synthetic form of the female hormone progesterone. The rods are inserted under the skin of the upper arm and release the contraceptive hormone for up to five years. The rods must be implanted and removed by a physician. Side effects may include irregular periods and possible scarring and nerve damage if the rods are removed improperly. Future fertility does not appear to be affected by the prolonged use of Norplant. Norplant does not protect women from AIDS or other STDs.
Depo-Provera is a long-lasting contraceptive that uses a synthetic form of the female hormone progesterone and is administered by an injection every three months. The prescriptions and the injections must be given by a physician. Side effects may include loss of future fertility for up to 18 months after discontinuing use, and the cessation of menstrual periods during the use of Depo-Provera. Depo-Provera does not protect women from AIDS or other STDs.
A diaphragm is a rubber shield worn internally, and may be obtained through a doctor or family planning clinic. The diaphragm is most effective if used along with a spermicidal cream or jelly. It has not been found to have harmful side effects for most women users. The average failure rate for the diaphragm is 18 percent, depending on the consistent and proper use of the diaphragm. A diaphragm does not protect women from AIDS or other STDs.
The Intrauterine Device
The intrauterine device (IUD) is a device inserted into the uterus which prevents a fertilized egg from attaching itself to the uterus. Certain types of IUDs can now be left in place for up to ten years. The IUD can only be inserted by a medical professional. Use of an IUD may significantly increase your risk of getting pelvic inflammatory disease and painful periods, or it may become dislodged and cause an infection or puncture the uterus. Certain types of IUDs are no longer in use because they were found to cause serious injury to women. (In re Northern Dist. of Cal., Dalkon Shield, Etc. (9th Cir. 1982) 693 F.2d 847.) An IUD does not protect women from AIDS or other STDs.
The Cervical Cap
The cervical cap is a small, rounded cap made out of rubber or plastic that fits over a woman's cervix. The cervical cap works by keeping sperm out of the uterus. The cervical cap must be prescribed and fitted by a medical professional. It works best when used with spermicidal jelly or foam. A cervical cap does not protect women from AIDS or other STDs.
The contraceptive sponge is made of polyurethane, an artificial substance. The sponge covers the opening to the uterus, and absorbs and destroys sperm. You do not need a prescription for a contraceptive sponge. It may be purchased in many stores. It is less effective than the pill, diaphragm or IUD, but does not have the same side-effects. The sponge does not protect women from AIDS or other STDs.
A condom is usually made out of thin latex rubber. It covers the penis and prevents sperm from entering the vagina. Condoms may be purchased over-the-counter in many stores. Condoms work best when used with a spermicidal foam. Condoms, when used correctly, provide some protection from AIDS and other STDs. However, the failure rate for condom use in preventing pregnancy is considered to be between 4 and 17 percent, depending on the consistent and proper use of the condom.
The Female Condom
The female condom is a plastic sheath that fits over the cervix and is worn by a woman internally. Female condoms may be purchased without a prescription. Female condoms work best when used with a spermicidal foam. When used correctly, they provide some protection against AIDS and other STDs. However, the failure rate for the female condom in preventing pregnancy is considered to be as high as 21 percent, depending on its consistent and proper use.
Sterilization is a medical procedure that permanently prevents a woman from becoming pregnant. Voluntary sterilization is legal in California for both men and women. A woman may be sterilized by disconnecting and tying her fallopian tubes, or by removing her ovaries or uterus.
Women have the legal right to obtain a variety of birth control medications or devices. Women also have the right to control their reproductive lives by abstaining from sexual intercourse, if they so choose. Sexual abstinence is the safest and most effective manner to avoid an unwanted pregnancy and sexually-transmitted AIDs or any other STDs.(2)
Where to Get Birth Control
Prescription birth control devices can be obtained through your doctor, local Planned Parenthood office or county health or community clinic. Nonprescription birth control devices, such as the condom, the sponge, and spermicidal foams and jellies, may be purchased over-the-counter in many stores.
RIGHTS RELATING TO BIRTH CONTROL AND STERILIZATION
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Right to Obtain Birth Control Medication/Devices
Any woman, single or married, including a woman who is under 18 years of age, may obtain birth control medication or devices without the permission of either parent or husband. (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52.) Women may obtain birth control for free or with a small co-payment from a local Planned Parenthood office, or community free clinic, or county health center. (Fam. Code, §§ 6920, 6925.)
Right to be Sterilized
If you are under 18 years of age and not married, you do need your parents' permission before you consent to sterilization. However, even if you are under 18, you do not need your parents' consent to be sterilized if you are any of the following:
- married or divorced;
- on active duty in the United States armed forces;
- at least 15 years old, live apart from your parents or guardians, and are self-supporting or have received a declaration of emancipation pursuant to section 7210 of the Family Code; and
- able to understand the content and nature of the surgery.
You will be required to wait a minimum of 30 days after you have given informed consent before you can have the medical procedure. (Fam. Code, §§ 6920 and 6922; Cal. Code Regs., tit. 22, § 70707.1 (a) (4).)
Married women do not need their husbands' permission to consent to being sterilized. (Kritzer v. Citron (1950) 101 Cal.App.2d 33.)
Can a sterilization operation be performed on a woman without her informed consent?
No woman can be sterilized without her full knowledge and consent. (Cal. Code Regs., tit. 22, §§ 70707.3-70707.7) Medical procedures, such as an abortion, childbirth or cancer treatment, may affect your ability to have children and should be thoroughly discussed with your doctor. If you suspect that a sterilization operation has been performed on you without your knowledge or consent, you may wish to contact an attorney.
What restrictions can hospitals or clinics impose when permitting sterilizations or abortions to be performed in their facilities?
No health facility, clinic, county hospital or hospital formed by a hospital district, which permits sterilization operations for contraceptive purposes to be performed, can impose nonmedical requirements, such as age, marital status, or number of children, before they will sterilize you. However, private hospitals can refuse to perform sterilizations, as well as abortions, in their facilities. (Health & Saf. Code, §§ 1232, 1258, 1459 and 32128.10.)
Is financial help available for obtaining birth control devices or sterilization?
If you qualify for welfare assistance, you may be eligible for assistance to obtain birth control counseling and treatment through the state Family Planning Services.(3) Contact your local health department for more information. Medi-Cal is available for prescription birth control devices.
If you do not qualify for welfare assistance, you may still be able to obtain birth control information and treatment at family planning centers and clinics that operate on a sliding scale fee basis.
California Medi-Cal funding for sterilization is available only to persons 21 or older, and pursuant to the criteria set forth in California Code of Regulations, Title 22, sections 51305.1, and 70707.6.
If the sterilization is to be funded by Medi-Cal, the operation may not take place until 30 days after you have signed a consent form, except that in certain emergency situations the minimum waiting period for sterilization is 72 hours. (Cal. Code Regs., tit. 22, §§ 51305.1(a)(6) and 70707.6(a)(3).)
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A married or single woman may legally obtain an abortion in California without the permission of her parents or husband. If you have decided to have an abortion, you should protect your health by seeking medical help as soon as possible.
The U. S. Supreme Court in Webster v. Reproductive Health Services (1989) 492 U.S. 490, held that, as a federal constitutional matter, certain restrictions on abortions are permitted. Notwithstanding federal cases which limit or restrict abortions, in California a woman has the right to have an abortion. This is based on the California Constitution. (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252.)
Currently, there are no time restrictions on when during the pregnancy an abortion can be performed in California.(4) However, in general, an abortion, poses fewer health risks when performed as early in the pregnancy as possible.(5)
Abortions must be performed by a licensed physician. (6) (Health & Saf. Code, § 123405.) Free clinics, public health clinics, county hospitals, women's health centers, some private doctors and hospitals, and Planned Parenthood clinics will perform abortions. You may contact the California Abortion Rights Action League in your city or county, the Department of Health Services, or your local county health department for more information on obtaining an abortion.
In California, Medi-Cal must provide funds for abortions for women who are eligible to receive health benefits. The California Supreme Court has held that California may not restrict state funding for abortions for poor women if it pays for a woman's general medical care. (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252.) However, in l980, the U. S. Supreme Court ruled that it was not unconstitutional for the federal government to refuse to pay for abortions for financially-needy women. Therefore, the federal government no longer helps pay for elective abortions. (Harris v. McRae (1980) 448 U.S. 297.)
Minors do not need the consent of their parents to have an abortion in California. In 1987, the California Legislature enacted a law which prohibited minors from consenting to having an abortion in non-emergency situations, unless the minor had the consent of one parent, or had received permission from the juvenile court. (Fam. Code, § 6925; Health & Saf. Code, § 123450 (a).) However, this law was found to violate the state constitutional right to privacy in American Academy of Pediatrics v. Lungren, (1997) 16 Cal.4th 307.
Women have a right to enter a health clinic or medical facility to obtain an abortion without being harassed, threatened or otherwise intimidated. Persons who wish to demonstrate or otherwise make known their objections to abortions also have a right, within legally designated boundaries, to picket, hand out information, pray or carry on conversations with persons entering medical clinics or health facilities.
The 1994 Freedom of Access to Clinic Entrances Act (FACE) prohibits obstructing, intimidating or interfering with the right of a woman to enter a medical facility to obtain reproductive services. (18 U.S.C. § 248 et seq.) Persons violating FACE may be fined, imprisoned, and have civil penalties assessed against them. FACE has been challenged as being unconstitutional for infringing on the First Amendment speech rights of protesters. The United States Court of Appeals has held that FACE is constitutional. (Terry v. Reno (D.C. Cir. 1996) 101 F.3d 1412.)
California law makes it a crime to intentionally block a health care facility. (Penal Code, § 602.11.) It is also a crime for a person to harass a child because his or her parent works at a medical facility that performs abortions. (Pen. Code, 11414.) Civil Code section 3427 et seq, makes blocking a health facility a civil tort in which a plaintiff may seek civil damages and injunctive relief against protesters.
The First Amendment speech rights of persons to peacefully demonstrate, picket, counsel, or pray at health facilities that perform abortions is protected, within legally-designated boundaries. In Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, the U.S. Supreme Court struck down an injunction prohibiting protesters from approaching any person within 300 feet of the entrance to a clinic, but upheld the injunction with respect to a 36-foot buffer zone around that clinic.(7))
In a more recent case, Schenck v. Pro-Choice Network of Western New York (1997) U.S. , 117 S.Ct. 855, the U.S. Supreme Court upheld that portion of an injunction that established a 15 foot buffer zone around a clinic entrance and driveway. The court held that the 15-foot buffer zone burdened "no more speech [of the protesters] than was necessary to serve a significant government interest." However, the court struck down that portion of the injunction that established a 15 foot "floating" buffer zone around persons and cars.(8)
In Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995) 10 Cal.4th 1009, the California Supreme Court upheld an injunction keeping abortion protesters across the street from a clinic.
Lastly, the California Court of Appeals has held that portions of an injunction keeping protesters away from a clinic and its patients and staff, and the residence of its doctor were unconstitutional. The parts of that injunction that prohibited persons from approaching any Planned Parenthood staff or patient, once that person made it clear he or she did not wish to be approached, and that prohibited protesters from coming within 250 feet of a doctor's residence were stricken by the court. However, that part of the injunction that banned protesters from coming within 15 feet of the clinic was held to be constitutional. (Planned Parenthood Assn. v. Operation Rescue (1996) 50 Cal.App.4th 290.)
The facts of each abortion protest case are unique. The constitutionality of injunctions issued to limit the activities of protesters must necessarily be decided on a case-by-case basis.
An Alternative to Abortion - Taking the Pregnancy to Term
The Pregnancy Freedom of Choice Act
The Pregnancy Freedom of Choice Act helps unmarried, pregnant women under age 21. In order to qualify for benefits under this program, you must also live in California, and you must intend to carry your pregnancy to full term.(9) State services will pay for counseling care, as well as the services of a licensed maternity home.(10) Your parents will not have to pay for any services under the Pregnancy Freedom of Choice Act. For more information regarding terms and conditions of eligibility, contact either the California Department of Health Services or your local county health department. (Welf. & Inst. Code, § 16147.)
Women who choose to carry their pregnancies to term may choose to give up their babies for adoption. Many private adoption agencies provide pregnant women with free counseling, medical and legal assistance, and help in choosing the adoptive parents. These organizations may be found in your local telephone book. Women may also contact Children's Protective Services in their county to arrange to relinquish their parental rights to the state.
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It is beyond the scope of this handbook to discuss all of the most important aspects of pregnancy. However, for the health of mother and child, it is important for a pregnant woman to have good medical care and good nutrition while pregnant. The following is a list of organizations that provide assistance to pregnant women. Check with each organization for its particular eligibility requirements.
Mom's Clinic: (310) 925-2250.
Salvation Army Booth Memorial: (213) 724-0252.
St. Anne's Maternity Home: (213) 381-2931.
Angel's Way: (818) 346-2229.
His Nesting Place: (310) 422-2137.
New Life Beginnings: (310) 591-8119.
Salvation Army: (510) 451-4514.
Salvation Army: (916) 441-5267.
Door of Hope: (619) 279-1100.
Salvation Army: (619) 231-6000.
Care House: (619) 459-4828.
Catholic Charities: (619) 231-2828.
If you are experiencing a high-risk pregnancy, you may be able to get help from the state for specialized treatment. (Health & Saf. Code, § 123475 et seq.)
The programs that may be available to you include:
- Consultation and education about your particular high-risk situation.
- A high-risk infant follow-up program. (Health & Saf. Code, § 123565.)
These programs are available to high-risk pregnant women on a sliding scale fee system. This means that you will be charged only what you can afford to pay. (Health & Saf. Code, § 123555.) If you would like more information about these programs, please call your local office of the California Department of Health Services.
Pregnancy Hospital Stays and Other Insurance Issues
A 48-hour hospital stay must be provided by insurers for normal deliveries. Insurance companies are now required by recent changes in federal law to provide coverage for at least a 48-hour hospital stay following the normal delivery of a baby. In September 1996, President Clinton signed into law the "Health Insurance Portability and Accountability Act" (HIPAA, Pub. L. No. 104-191, 110 Stat. 1936 (1996).) In addition to other changes in laws governing insurance providers, the Act requires that insurance companies cover a 48-hour hospital stay for normal deliveries and a 72-hour hospital stay for a caesarean section delivery.(11)
Insurance companies must provide for primary care providers who are obstetricians and gynecologists. Women may choose to see a gynecologist or obstetrician as their primary care provider without requesting special permission from their insurance company. (Health & Saf. Code, 1367.69; Ins. Code, § 11512.295.)
Under California law, group disability insurance policies must offer coverage for the treatment of infertility, except in vitro fertilization. (Ins. Code, § 10119.6.)
A surgeon or physician is prohibited from removing sperm or ova from a patient for the purpose of reimplantation in another patient without the written consent of the donor patient. (Bus. & Prof. Code, § 2260.)
Supplemental Food Program for Women, Infants and Children
Good nutrition is very important during critical times of growth and development of a baby. You may be eligible for the Special Supplemental Food Program for Women, Infants, and Children (WIC), which provides nutritious food supplements and nutrition counseling to pregnant and nursing women, and to infants and young children.(12)
For more information about WIC programs in your area, you may contact the following:
WIC Supplemental Food Section
Department of Health Services
3901 Lennane Drive
Sacramento, California 95834
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Acquired Immune Deficiency Syndrome (AIDS)
Women do get AIDS.(13) It is estimated that AIDS-related illnesses are the third leading cause of death in women world-wide. HIV or human immune-deficiency virus, the AIDS virus, is a virus that attacks the body's immune system and makes it difficult to fight off other types of illnesses.
You may be infected with the AIDS virus by coming into contact with contaminated blood or bodily fluids. This exchange may occur through sexual activity, blood transfusions, sharing a contaminated needle, or being born or breast-fed by an infected mother.
You cannot become infected by casual contact with an infected person if you do not exchange blood or bodily fluids. You cannot be infected by donating blood at a licensed blood bank.
Precautions To Take Against Getting or Spreading AIDS
- Do not allow the blood, semen, vaginal secretions or urine of your sex partner to enter your body unless you know that he/she is not infected.
- Use condoms for vaginal, oral and anal sex. A properly used, unbroken condom reduces the risk of coming into contact with the AIDS virus. The receptive partner (the one whose anus is being penetrated) is the one most at risk of contracting AIDS through anal sex.
- In addition to a condom, use a contraceptive foam, cream or jelly; they contain the spermicide Nonoxynol 9 that kills the AIDS virus on contact.
- Use rubber dams or other oral barriers for oral vaginal sex.
- Do not share intravenous needles, including tattoo needles.
- Do not have sex with an intravenous drug user who you know, or suspect, uses unsterilized needles.
AIDS and Pregnancy
If you are infected with the AIDS virus, you can infect your child. If you have the AIDS virus, there is a 50% chance that you will give birth to a child who will be infected with AIDS. A child can get AIDS from an infected mother during pregnancy, childbirth, or breast feedings.
Health & Safety Code, section 121050 et seq., and Penal Code, section 1524.1 permit a victim of a violent crime in which bodily fluids are exchanged to ask the court to order a defendant who has been charged with the crime to undergo an AIDS antibody test, if the crime could have resulted in transmission of the virus. If you are the victim of such a crime, consult the district attorney who is handling your case about these laws. The results of a blood test pursuant to Penal Code section 1524.1 cannot be used in any criminal proceeding as evidence of either guilt or innocence. (See further discussion of this topic in the Violent Crimes Chapter of the handbook.)
AIDS and the Law
AIDS is a relatively new disease. The legal rights of people with AIDS and their families are currently being dealt with by legislatures and the courts. The law, as it relates to AIDS patients and their families, will continue developing over the next few years. Listed below are some of the basic rights of persons with AIDS in California.
Generally, it is illegal for someone to test you for the AIDS antibody without your knowledge and informed consent to such a test. (Health & Saf. Code, § 120990.)
Generally, it is illegal for your doctor to give the results of your AIDS antibody test to someone else without your written authorization unless that person is reasonably believed to be your spouse, sexual partner or believed to have shared the use of a hypodermic needle. (Health & Saf. Code, §§ 120980; 121015.)
With certain exceptions, before you are given a blood transfusion, all donated blood must be tested for AIDS antibodies. (Health & Saf. Code, § 1603.1.)
Many cities have passed local ordinances prohibiting discrimination against people with AIDS or HIV infection. Los Angeles, San Francisco, Oakland, Berkeley, and West Hollywood are among the cities in California that have passed such laws. You should contact your local city attorney or district attorney to see if such ordinances exist in your area.
Discrimination against people with AIDS or with HIV infection by public accommodations and in the provision of business services is illegal under the Unruh Civil Rights Act. (Civ. Code, § 51 et seq.)(14)
The ADA makes it unlawful for places of public accommodation, such as medical and dental providers, to discriminate against persons with AIDS. (42 U.S.C. § 12182 (a); Abbott v. Bragdon (1st Cir. 1997) 107 F.3d 934, petition for cert. filed July 21, 1997.)
The ADA also provides protection for persons with AIDS from discrimination in government services. (T.E.P. & K.J.C. v. Leavitt (C.D. Utah 1993) 840 F.Supp. 110, where the court invalidated a Utah law that voided a marriage if one or more of the spouses contracted AIDs, and prohibited persons with AIDs from marrying in Utah, because the law violated the ADA.)
Discrimination in employment opportunities against people with AIDS is illegal under the Americans with Disabilities Act (ADA). It is illegal for a private employer to discharge a qualified individual because of his/her disability. (42 U.S.C. § 12112; Doe v. ariality of Maryland Medical System Corp. (4th Cir. 1995) 50 F.3d 1261.) A person who is HIV-positive has a physical impairment as defined under the ADA, and may request reasonable accommodations from his/her employer.(15) (28 C.F.R. § 36.104; Gates v. Rowland, (9th Cir. 1994) 39 F.3d 1439.) Employers who receive federal funds are also prohibited from such discrimination. (29 U.S.C. § 794; Jenkins v. Skinner (E.D. Va. 1991) 771 F.Supp. 133; Chalk v. U.S. Dist. Court, Cent. Dist. of California (9th Cir. 1988) 840 F.2d 701.)
Discrimination in employment against people with AIDS is illegal under state law, where there is no likelihood of transmission of the virus in the workplace. (Gov. Code, §§ 12940(a) and 12926(h); Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242.)
Where to Go For Help
If you believe you may have come into contact with AIDS-contaminated blood or bodily fluids, you should seek medical attention from a health care professional familiar with the virus.(16)
For more information about women and AIDS, you can contact:
San Francisco Women's AIDS Network
San Francisco AIDS Foundation
3543 18th Street
San Francisco, CA 94110
Sacramento AIDS Project
(800) 367-2437 (24 hour information line)
Progressive Health Services
8240 Santa Monica Boulevard
West Hollywood, CA 90046
Or you may call your local county health department or AIDS hotline:
The San Francisco AIDS Foundation hotline:
In San Francisco (415) 863-AIDS
from (Northern California (800) FOR-AIDS
Southern California AIDS hotline:
In Los Angeles (213) 876-AIDS
from Southern California (800) 922-AIDS
There is a wide variety of treatable STDs. STDs range from herpes to vaginitis. Most, but not all, STDs can be treated with the use of antibiotics. One of the most common forms of STD which affects women is chlamydia. Chlamydia and other STDs can cause sterility. If you suspect that you might have an STD, you should consult your doctor, local health clinic, or Planned Parenthood without delay.
Use of a condom may help prevent the spread of most STDs, if used correctly and consistently.
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Facts About Breast Cancer
Approximately one woman out of eight in the United States will develop breast cancer during her lifetime. In 1996, breast cancer killed 44,000 women in the United States. The vast majority of these deaths occurred in women over the age of 50.
Breast cancer can be detected in a number of different ways. Most breast cancers are detected by women themselves during breast self-examination. Mammography, a low dose breast x-ray, can detect breast cancer much earlier than a physical examination, although its effectiveness is considerably reduced in women under 50 whose breasts are denser than those of older women. Medical authorities are not in agreement as to when, or how often women under 50 should receive mammograms. Your medical history and lifestyle will factor into the appropriate time for you to begin receiving regular mammograms.
Recently approved by the FDA is the "scintimammogram," a test that uses a nuclear probe to detect breast cancer. This test appears to be more accurate for younger women than the traditional mammogram. In addition, the "CEA-Scan," a test formerly used to detect colorectal cancer, is now also being used to detect breast cancer. You should consult with your doctor to determine which of the different tests would be most appropriate for you.
Health providers may not refuse to provide experimental or investigational therapies for terminal patients. (Health & Saf. Code, § 1370.4.) Patients with a life expectancy of two years may request an independent review of experimental or investigational therapies that their doctors believe may be more beneficial than available standard therapies. If the independent review recommends that the patient receive the experimental or investigational therapy, the health provider will be bound by the recommendation.
Health providers may not enter into contracts with their service physicians that interfere with the physicians' ethical responsibility to discuss with their patients all relevant information concerning their treatment options, alternative plans or other coverage arrangements. (Bus. & Prof. Code, 2056.1.) It is the intent of the Legislature that communication between patients and their physicians be free from interference from a health plan provider.
There are a number of different methods of treating breast cancer. The options include radiation therapy, drug therapy, and assorted forms of surgeries, including mastectomies, lumpectomies and experimental treatments. If you are diagnosed with breast cancer, you should consider obtaining more than one medical opinion before determining a course of action.
Breast Cancer and the Law
Under California law, the codes of professional medical conduct require that your doctor advise you of all surgical and other alternatives to treatment of breast cancer. You have the right to choose surgical procedures less extreme than a radical mastectomy. (Health & Saf. Code, § 109275.)
Medi-Cal and most insurance companies are required to cover the cost of mammograms if they provide health service plan contracts, policies of disability insurance, self-insured employee welfare benefit plans or nonprofit hospital service contracts that provide coverage for mastectomies. (Health & Saf. Code, § 1367.65; Ins. Code, §§ 10123.81; and Welf. & Inst. Code, § 14132.16.)
Pending federal guidelines for insurance, if implemented, will require a minimum 48-hour hospital stay for women recovering from mastectomies. In early 1997, President Clinton formed an advisory group called the "Advisory Commission on Consumer Protection and Quality in the Health Care Industry." The advisory group will help establish federal guidelines for the minimum hospital stay insurance companies should be required to provide for women recovering from mastectomies. The current proposal suggests a minimum 48-hour hospital stay.(17)
A recently enacted bill, Assembly Bill No. 833 (1997-1998 Reg. Sess.), effective January 1, 1998, requires medical care providers to provide a standardized summary of the symptoms and diagnoses of gynecological cancers to their patients who come to them for a gynecological exam. (Health & Saf. Code, §§ 138.4 and 109278.)
Other Commonly Asked Health Questions of Concern to Women
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What is known about DES?
According to the Planned Parenthood Federation of America, DES was given to some pregnant women between 1948 and 1960 to prevent miscarriages. DES was later discovered to be linked to genital abnormalities in children, and to cancer in women who were given the drug during pregnancy.
If you were given drugs between 1948 and 1960 to prevent a miscarriage , or if you are a child of a woman who was given drugs while she was pregnant with you, it is important that you see a doctor and undergo a series of medical examinations to detect and treat any abnormalities that resulted from DES.
DES may be currently prescribed as a "morning after" birth control pill to terminate an early pregnancy. If you are in an emergency situation, and are advised to use a "morning after" pill, you may wish to ask your doctor if he or she can prescribe a drug compound which does not contain DES.(18)
What should I know about drug prescriptions?
California law allows pharmacists to substitute a generic drug for a name-brand drug that has been prescribed for you. The substituted drug must have the same active chemical ingredients, strength, quantity, and dosage, and must be of the same generic type (as accepted by the FDA) as the prescribed drug. This law was enacted to save California consumers money since the same drug under one trade name may cost more than the drug sold under another name in the same generic form. Doctors often prescribe the better known and advertised trade name drugs. You may ask the pharmacists to substitute the generic type drug. A pharmacist may not substitute unless the drug product selected costs you less than the prescribed drug. A pharmacist may not substitute if the doctor indicated orally or in writing that he or she does not want any substitution for a prescribed drug. When a substitution is made, the pharmacist must tell you that the substitution was made and place the name of the dispensed drug product on the label. (Bus. & Prof. Code, § 4073.)
California law also requires a pharmacist or pharmacist's employee, upon any request by telephone or in person, to give the retail price of any drug sold at that pharmacy and to post a notice in the pharmacy of the consumer's right to this information. (Cal. Code Regs., tit. 16, § 1707.2.)
Are breast enlargement operations legal?
Breast enlargement operations are legal. However, certain methods are not. The injection of liquid silicone into breast tissue is a crime in California, and is highly dangerous to the woman who receives the injection. If a doctor suggests this method of breast enlargement, report him or her to your local district attorney's office. (Pen. Code, § 382.7.)(19)
If you are considering a breast enlargement procedure, you should choose your doctor carefully from those doctors who are certified by a nationally recognized board of plastic surgery. You may contact the Board of Medical Quality Assurance to find out if your doctor is board-certified, and if he or she has been the subject of a disciplinary proceeding. Public records are also available to investigate a doctor's licensing history, lawsuits filed against the doctor, and lawsuits that resulted in verdicts against the doctor.
Can an operation be performed on me without my consent and knowledge?
It is illegal for a doctor to perform an operation on you without your voluntary and informed consent. Before you are operated on, your doctor must describe the risks of the operation to you. (Berkey v. Anderson (1969) 1 Cal.App.3d 790, 805.) You have a right to know about the medical care you are receiving. If there is something you do not understand or that you want your doctor to explain more fully, just ask. It is generally a good idea to get a second medical opinion before undergoing any form of major surgery.
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Durable Power of Attorney for Health Care
Any person may authorize another person to make health care decisions for him or her. (Prob. Code, § 4650 et seq.) A document must be signed and witnessed by two adults personally known to you, or acknowledged before a notary public. The person given your power of attorney to make health care decisions for you may consent to your doctor not giving treatment or stopping treatment necessary to keep you alive, although he or she may not authorize anything illegal, contrary to your known desires or, where your desires are not known, anything clearly contrary to your best interest. Unless you indicate otherwise, the person may also authorize an autopsy, donate your body or parts of it for transplant or educational purposes, and direct the disposition of your remains. Without such a power of attorney, medical and other decisions can be made by your spouse or next of kin.
A durable power of attorney executed after January 1, 1992, for health care decisions may include the date on which you want the power of attorney to expire, or on which it must be renewed. If you do not specify a date of expiration or renewal, the power of attorney will not expire unless one of the following conditions apply:
- The power of attorney was executed after January 1, 1984, but before January 1, 1992; or
- The power of attorney was executed after January 1, 1992, and contains a warning statement that refers to a seven-year limit of its duration.
If one of the above conditions applies, the power of attorney will expire within seven years of execution, unless a shorter time is stated in the document itself, or the person granting the power of attorney becomes incapable of making health care decisions. (Prob. Code, § 4654.)
Powers of attorney may be useful for people who are living together but unmarried, particularly same gender partners, to give the partners the same legal ability to make health care decisions as married people.
Natural Death Act
The Natural Death Act (Health & Saf. Code, § 7186 et seq.) recognizes the right of an adult to make a written directive to his or her doctor instructing the doctor to withhold or withdraw life-sustaining procedures in the event the person becomes incurably ill.
Right to Refuse Medical Treatment
California courts have recognized that a competent adult patient with a serious illness has the right, over the objection of his or her physicians and the hospital, to have life-support equipment disconnected, despite the fact that withdrawal of those devices will hasten his or her death, as long as he or she is advised of treatment options. There is no legal requirement that prior judicial approval be secured. (Bartling v. Superior Court (1984) 163 Cal.App.3d 186; Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127.) This right to refuse medical treatment may be exercised by the patient's conservator on his or her behalf if he or she is incompetent to act for himself or herself, even if the patient has not signed a power of attorney explicitly authorizing such action. (Conservatorship of Drabick (1988) 200 Cal.App.3d 185.)
Right to Die
The United States Supreme Court recently decided two cases challenging statutes that make it a crime for physicians to assist their patients in committing suicide. In Washington v. Glucksberg, the court held that there is no fundamental right to physician assistance in committing suicide. (Washington v. Glucksberg, (1997) U.S. ___, 117 S.Ct. 2258.) In Vacco v. Quill, the court held that a New York state law making it a crime for a physician to assist a suicide did not violate the Equal Protection Clause. (Vacco v. Quill (1997) U.S. , 117 S.Ct. 2293.)
If you, as a married person, enter a long-term care facility, such as a nursing home, only half of your community property, including income, is taken into account in determining your eligibility for Medi-Cal benefits to pay for the nursing home care. You will be required to spend down your half of the nonexempt community property and all of your nonexempt separate property before being eligible for Medi-Cal benefits. You may transfer all of your interest in the home you own with your at-home spouse without affecting Medi-Cal eligibility. (Welf. & Inst. Code, § 14005.16, et seq.)
Health Care Responsibility
Relatives, other than spouses, are generally not held to be financially responsible for the cost of health care paid for under Medi-Cal program and received by an adult. (Welf. & Inst. Code, § 14008.)
- For additional information on general health questions of interest to women you may wish to see the latest edition of Our Bodies, Ourselves (Boston Women's Collective, Inc., March 1996) or other medical handbooks on women's health. Back to link 1
- In 1996, Congress passed a series of welfare reforms, which include distribution of $50 million per year for five years to help states establish educational programs promoting the social, economic and physical benefits of abstinence for unmarried persons. Public schools in California are also mandated to promote teen sexual abstinence in sex and family life educational programs. Back to link 2
- Recently enacted changes in federal welfare laws and the passage of California Proposition 187 will have a considerable impact on the eligibility criteria and conditions in federal and state public assistance programs. These changes in state and federal laws have not yet been fully implemented and both Proposition 187 and the federal welfare reform legislation are being challenged in the courts. For example, the 1997 federal budget bill bars the use of federal funds for abortion in programs providing health insurance to uninsured children and allows managed-care plans in Medicare and Medicaid to decline to counsel or refer for reproductive health care in general if the organization objects to the provision of such service on moral or religious grounds. See chapter on Economic Independence for further discussion of how the recent changes in public assistance programs may affect you. Back to link 3
- The U.S. Congress recently passed a bill, (H.R. No. 1122, 105th Cong., 1st Sess. (1997)) to ban the use of intact dilation and extraction abortions, known commonly as "partial birth" abortions. This type of abortion procedure would be banned for use on fetuses after the fourth month. Although it was vetoed by President Clinton, an override attempt is expected to be made in 1998. The California Legislature did not pass a similar bill to restrict this type of abortion procedure in 1997, but a new bill to accomplish this will probably be introduced in January of 1998. At this time, there are no state or federal restrictions on abortions performed before the third trimester. Back to link 4
- See footnote 93, for discussion regarding the abortion pill, RU 487. Back to link 5
- The United States Supreme Court recently held that it was constitutional for states to require that all abortions be performed by a licensed physician. (Mazurek v. Armstrong (1997) U.S., 117 S.Ct. 1865.) Back to link 6
- Generally, the courts do not recognize a person's right to be left alone in public. As the Court stated in Madsen, "`...in public debate our citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.'" (Madsen v. Women's Health Center, Inc., supra, 512 U.S. at 774, citing Boos v. Barry (1988) 485 U.S. 312, 322.) Back to link 7
- The Ninth Circuit recently struck down a Phoenix ordinance requiring an eight-foot floating buffer zone between a person utilizing a health care facility and a person participating in a demonstration activity at that facility, citing Schenck in so doing. (Sabelko v. City of Phoenix (9th Cir. 1997) 120 F.3d 161.) Back to link 8
- See discussion on adoption in chapter on Domestic Relations. Back to link 9
- See footnote 78, supra, for additional information concerning public assistance programs. Back to link 10
- A bill recently was passed by the California Legislature that added Health & Safety Code section 1367.62 and Insurance Code section 10123.87. These sections require insurance companies, as of January 1, 1998, to provide coverage for a minimum hospital stay of 48 hours for a normal delivery and a 96-hour hospital stay for a caesarean section delivery. (Assem. Bill No. 38 (1996-1997 Reg. Sess.).) Back to link 11
- The WIC program is specifically exempted from the eligibility restrictions contained in the newly-enacted federal welfare reform laws. In California, the WIC program has no eligibility restrictions for residency or immigration status. Proposition 187, even if held to be valid, will not impact the WIC program because it is a wholly federally-funded assistance program. It is not anticipated at this time that the California Legislature will pass legislation restricting the eligibility for women needing WIC benefits. Back to link 12
- Additional information regarding women and AIDS and pregnancy and AIDS may be provided by your local county health department, or the AIDS support groups listed in this section. Back to link 13
- For additional information regarding your rights as a person with AIDS, you may wish to consult the Attorney General's handbook entitled, "Legal Rights of Persons with Disabilities" (March 1997). Back to link 14
- A woman with AIDS, whether or not she is symptomatic, is considered disabled for purposes of the ADA because AIDS substantially impairs her ability to have children. The ability to reproduce is a "major life activity" under the ADA. (Abbott v. Bragdon, supra, 107 F.3d 934.) Back to link 15
- You may wish to ask your physician about the "morning after" medication used by some physicians to treat persons who believe they may have come into contact with the HIV virus before the virus may be tested. Back to link 16
- There is currently a bill pending before Congress to stop so-called "drive-by mastectomies." (H.R. No. 135, 105th Cong., 1st Sess. (1997).) This bill, if passed, will require a minimum 48-hour hospital stay for a woman recovering from a mastectomy. The California Legislature recently passed a bill to add Insurance Code section 10123.86, relating to insurance coverage for mastectomies and lymph node dissections for treatment of breast cancer. Insurance companies must allow the length of hospital stay to be determined by the attending physician and surgeon in consultation with the patient. (Sen. Bill No. 70 (1996-1997 Reg. Sess.).) However, the bill was vetoed by Governor Wilson. Back to link 17
- Higher than normal doses of an estrogen-based birth control pill may also be used as a "morning after" pill if taken within 72 hours of unprotected sex. Consult your doctor for additional information or a prescription. The French abortion pill, RU 486, also induces an abortion in the early stages of pregnancy (less than nine weeks). RU 486 has been submitted to the FDA for testing and approval under the name Mifepristone. The efficacy and safety of RU 486 is being debated by medical authorities. Currently, only women involved in the testing of the pill have access to RU 486 in the United States. Back to link 18
- A large class-action lawsuit was filed in Louisiana against the Dow Chemical Co., alleging that the silicone in breast implants that Dow manufactured have leaked and caused various illnesses, including lupus and rheumatoid arthritis. In August 1997, a jury agreed with plaintiffs that Dow plotted to hide health dangers of silicone. Although the trial court decertified the class of 1800 women in December 1997, leaving damages to be assessed for only the eight original plaintiffs, the remaining plaintiffs will not have to prove Dow's negligence. By early 1996, 30,000 lawsuits had been filed against Dow Corning. With the exception of the Louisiana case, all other Dow Chemical cases have been moved to the bankruptcy court in Michigan, which is handling Dow Corning's bankruptcy. (Dow Chemical owns 50% of Dow Corning.) In late August 1997, the company put forward a reorganization plan that included a $2.4 billion fund to be parceled out to the 200,000 women with claims against the company. Meanwhile, Bristol-Meyers Squibb, Baxter International, and 3M have set up a claims process that pays out between $10,000 and $250,000 to well over two-thirds of the women who brought claims against them and chose to settle. Back to link 19