The program, which the American Civil Liberties Union blasted as unconstitutional, began back in May when Judge Sam Benningfield issued a standing order that gives inmates 30 days' credit toward jail time if they opt for a contraception procedure and two days' credit for taking a neonatal health class about the risks of having children while misusing drugs.
For women, that birth control comes in the form of a free Nexplanon implant—a small rod placed under the skin in the upper arm that can prevent pregnancy for up to four years. Men who choose to do it, however, are given a free vasectomy by the Tennessee Department of Health. Though birth control implants are easily reversed—they just have to be removed by a nurse or doctor—a vasectomy reversal is a bit more complicated and it's a costly outpatient procedure that is unlikely to be covered by insurance. Even then, there's only a 40 to 90 percent chance that a reversal will be successful, according to the Mayo Clinic. Other research suggests it's more like 75 to 93 percent, thanks, in part, to new microsurgery techniques, but it's still not a given.
Seventy inmates have chosen to take advantage of the program: 32 women have received the implant, while 38 men are currently waiting to get vasectomies.
Benningfield told the news station he hopes the program will put a stop to repeat drug offenders coming to his courtroom who can't afford child support or can't find a job. "I hope to encourage them to at some point finally take personal responsibility and to give them a chance, if [and] when they do get out, not to be burdened again with additional children. This gives them a chance to get on their feet and make something of themselves," Benningfield told News Channel 5.
He added, "I understand it won't be entirely successful but if you reach two or three people, maybe that's two or three kids not being born under the influence of drugs. I see it as a win, win."
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But District Attorney General Bryant Dunaway, who oversees prosecution cases in the county, is rightfully concerned about the program. "Those decisions are personal in nature and I think that's just something the court system should not encourage nor mandate," he told News Channel 5. Dunaway said he thinks it's illegal and he's instructed his staff not to make any arrangements related to the program. He added "it's incomprehensible that an 18-year-old gets this done, it can't get reversed and then that impacts the rest of their life."
The ACLU of Tennessee agrees and argues that the program isn't truly voluntary; it's coerced contraception. In a statement issued to News Channel 5, the group said:
Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community—overseeing individuals' childbearing capacity should not be part of that role.
Benningfield told CBS News he'd reverse the order if a higher court told him he'd done something wrong.
The program in White County is somewhat reminiscent of the mission of the non-profit organization, Project Prevention. Barbara Harris, who founded the organization, travels around the country in a van, giving cash incentives to people with addiction who agree to long-acting birth control or sterilization—for women, it's the implant, an IUD, or getting their tubes tied; for men, it's a vasectomy. Once they get the procedure done at a health clinic and send Harris confirmation, she sends them $300 in return.
VICE interviewed Harris back in 2014; at that point, in its 25 years of existence, Project Prevention—then called "C.R.A.C.K," or "Children Requiring a Caring Kommunity"—had provided incentives for long-acting contraception or sterilization in more than 4,000 people in the US and the UK.
Update 7/31/17: Judge Benningfield rescinded his potentially unconstitutional order last Wednesday, July 26, following criticism from the ACLU of Tennesee. People who signed up for a procedure will be given a 30-day credit toward their sentence whether they received it or not, provided they have also "demonstrated to the court their desire to improve their situations." Inmates can still receive two days' credit for taking a class about neonatal abstinence syndrome (NAS).
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