Birth Control or Jail

And that was just the beginning. During the following years, more than a dozen states tried to pass laws giving women convicted of child abuse or drug use during pregnancy a choice between using Norplant or serving time in jail.

"[As recently as] 1994, eleven states had at least one bill, sometimes two or more," said Estelle Rogers, policy director for the ACLU's Reproductive Freedom Project. In some states like Colorado, laws were proposed to reduce jail terms for woman who agreed to have Norplant capsules inserted.

While all those "Norplant-or-jail" bills died after the ACLU and others fought them in court, politicians still are trying to use contraceptives in coercive ways. The latest effort falls not on women, but on male sex offenders. Both Florida and Minnesota tried and failed to pass laws requiring these men to accept "chemical castration" through Depo Provera, and one such bill is currently under consideration in California.

In Florida, Rogers says, women on welfare are given a $200 grant for accepting Norplant, followed by $400 as continued incentives. Kansas proposed a one-time $500 grant, followed by $50 a year for each year she kept it. A Mississippi bill wanted mothers of four or more children to get Norplant before she would qualify for assistance.

Is offering money to poor women a type of coercion? Before considering this, compare these efforts to the "Dollar-A-Day" program, sponsored by a Denver Planned Parenthood clinic, whose goal is to reduce repeat teenage pregnancies. This successful program requires girls to come to one meeting a week, for which they are paid $7 (in one dollar bills, symbolically), and participants have to quit the group if they became pregnant a second time. Colorado has supposedly saved more than a quarter million dollars in welfare and Medicaid expenditures.

Is that type of program coercive? No, thinks Bonnie Steinbock, a medical ethics professor at the State University of New York at Albany. The financial incentive is too small, and while there may be benefit to the state, the primary benefit is to the program's participants. Furthermore, she says, the word coercion is used far too often.

"(We) shouldn't use the word 'coercion' when something is bad. Something can be bad for other reasons." It is not wrong for a judge to mandate Norplant because it is coercive, says Steinbock. But it is wrong because Norplant should be medically prescribed, and "we don't want judges to be doctors."

Dollar-a-Day programs are more like incentive programs for at-risk teens that encourage them to stay in school. But that's a big difference from welfare incentives; women on assistance are not free to refuse the money, and it is intrinsically wrong to ask them -- or demand -- they curb their fertility. To attach it to welfare is "mean-spirited," says Steinbock. "You can be a good parent and be poor."

Rebecca Dressler, a law and ethics professor at Case Western University, asks if such sentencing is an appropriate, or ethical, use of the drug.

"When Norplant is included in a sentence many women won't challenge it because they think they will have to spend that much more time in jail. If she doesn't challenge it, no one else is going to. In the few cases where it has been challenged, the ruling has been struck down." Some women do want it, Dressler says, and others don't care.

Although would be easy to assume that Norplant is imposed simply as punishment and possibly with racial motivations, Bonnie Steinbock feels that most of the judges who do this kind of sentencing are "good-hearted," and that it is less restrictive to try and help a woman with children than to lock her up. For instance, in a child abuse case where the mother has been abusing drugs, she needs drug treatment, parenting classes -- and perhaps to not to have the additional stress of another child while she is trying to get her life together.

Many women in this position are only too happy to accept help, but Steinbock notes that they don't want to be "treated as if they are incapable of making decisions."

But Steinbock does not believe that just because reproductive rights exist that they should be absolute. To have a woman use birth control as part of her rehabilitation means that, in the opinion of the court, this is not an appropriate time to have more children.

These ethical dilemmas have only arisen because long-lasting drugs like Norplant exist -- contraceptives under the control of medical workers, and which remove the convicted woman's choice. Steinbock asks, "If the judge gives the woman a choice, and she chooses to use condoms and gets pregnant, what does she do? Does she go to jail?"

While Norplant may undoubtedly help some women break free of a troubled life, the issue of informed consent is magnified. If the choice is between jail tomorrow and possible health risks years away, can a woman fairly consider both options?

"There are people that would be willing to cut off a finger to get out of prison," says Ann Brick, an ACLU attorney who has stopped courts from mandating Norplant. "We would be concerned if it was a condition of parole -- that without the drug, they wouldn't be released. We feel that is coercion."

"There was a bill in Florida last year that particularly targeted rapists," says Dr. Walter Meyer of the University of Texas, one of the leading researchers on the subject. "I was concerned because rape is a crime of violence -- it often doesn't have anything to do with sex."

California now has a "three strikes" bill in the State Assembly (AB 3339) for repeat child molesters. "I hope they realize they might reduce the reoffense rate, but they're not going to eliminate it," says Meyer. "About 18 - 20 percent reoffend, even while taking [the drug]." Still, without Depo, about 60 percent of child molesters commit new crimes.

Depo reduces a man's testosterone to feminine levels, which presumably also lowers his sex drive. First used on pedophiles in 1966, it requires injections of massive doses, up to 800 mg per week, for six months -- more than 3,400 percent higher than the amounts used by women for birth control.

"There are significant side effects," Meyer says. "About 10 percent develop gallstones -- and these are usually younger men [than normally develop gallstones]." Other side effects include weight gain, migranes, hypertension, severe gastrointestinal pain, and diabetes.

Although these serious medical risks have been well documented, there is absolutely no research using a control group, and very little research that follows the sex offenders over a long term.

If these risks are so great, then why do sex criminals agree to use Depo? "Offenders say they'd rather have the side effects," Meyer notes. "Anything is better than being in the slammer."