Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, October 16, 2005

Will Supreme Court Review Prison Abortion Order Requirement?

The United States Supreme Court late Friday temporarily blocked a federal judge's ruling that ordered Missouri prison officials to drive the woman to a clinic on Saturday for an abortion. Justice Clarence Thomas, acting alone, granted the temporary stay pending a further decision by himself or the full court. Missouri state law forbids spending tax dollars to facilitate an abortion. On Thursday, Federal District court Judge Dean Whipple had ruled that the prison system was blocking the woman from exercising her right to an abortion and ordered that the woman be taken to the clinic Saturday. Judge Whipple also refused to delay his order until the Eighth Circuit Court of Appeals could hear the state's appeal of his original ruling. Having issued the temporary order, Justice Thomas now has two options: he can review the case himself or refer it to the full Supreme Court. There is no time limit on the decision. The action by Justice Thomas raises the question of whether the full Court will review the law regarding the right of prison officials to require that a female prisoner seek a court order before seeking an abortion. It is an important, unsettled issue for American courts. Please click here for additional news (last visited October 16, 2005, reo).

Just two months ago, an Arizona Superior court judge in Doe v. Arpaio, ruled that officials of Maricopa County could not deny inmates access to abortion services without first obtaining a court order. The judge observed that the Maricopa County jail already transported inmates without a court order for medical needs other than abortion, including prenatal care and childbirth.  In the ruling, the judge relied on a 1987 decision from the Third Circuit Court of Appeals, Monmouth County Correctional Institutional Inmates v. Lanzaro.  In that case, the Third Circuit ruled that the requirement that New Jersey inmates secure court ordered releases to obtain abortion was unconstitutional. It also ruled that to the extent that the regulation required inmates to obtain their own financing for abortion impinged upon an inmate's right to make abortion choice, the regulation was unconstitutional.

In a 2004 ruling, the Fifth Circuit Court of Appeals in Victoria W. v. Larpenter, rejected a civil rights suit that challenged a Louisiana prison regulation requiring a obtain court order in order to receive elective abortion. It said that in determining whether a prison regulation impinges on an inmates' constitutional rights and is "reasonably related to legitimate penological interest" it would weigh the following: (1) whether regulation has valid, rational connection to legitimate government interest; (2) whether alternative means are open to inmates to exercise asserted right; (3) what impact accommodation of right would have on guards and inmates and prison resources; and (4) whether there are ready alternatives to regulation. It found that the legitimate government interests that supported the issuance of a court order included: (a) the transfers placed the prisoner in a less-secure environment and increased the chance of escape. (b) The transfers required prison officials to escort the prisoner to the medical facility, some of which are an hour away in New Orleans, reducing prison resources and decreasing internal security. (c) Under Louisiana law, the Parish is exposed to liability claims arising from the acts of escaped prisoners. The Circuit found that the risks posed by non-emergency off-site transfers, there is nothing unreasonable in the Parish's insistence upon judicial approval. According to this Circuit Court ruling, the policy places an unbiased judge between the prison officials and inmates seeking off-site transport for purely elective procedures.

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