Nov. 30, 2006 – County officials in Arizona are appealing a 2005 court decision that struck down a policy making it difficult for inmates to obtain abortions.
The disputed Maricopa County policy forces incarcerated women to obtain a court order before prison officials will provide transportation for elective medical procedures, including abortions. Transportation for abortions considered medically necessary to protect the womanâ€™s health is allowed without a court order.
An unnamed inmate challenged the policy in court in May 2004; she said it prevented her from getting a timely abortion. The American Civil Liberties Union, which argued for the inmate, said the policy not only caused a seven-week delay in getting an abortion, but violated their clientâ€™s Eighth Amendment protection against cruel and unusual punishment by prohibiting medical care.
The plaintiff discovered she was pregnant the day before she was scheduled to go to the jail for four months on a drunk-driving charge. Though she requested a delay in order to get an abortion, the prosecutor refused to grant it, saying she could terminate her pregnancy while on work furlough.
But according to the ACLU, after beginning her incarceration, the plaintiff was "quickly transferred" to a jail that does not allow work furloughs. By the time the plaintiff obtained a court order to get an abortion, she was fourteen weeks pregnant.
The Maricopa County Superior Court deemed the policy unconstitutional in August 2005, ruling the plaintiff faced an undue obstacle to getting an abortion. The court also ruled the policy served no reasonable interest of the prison.
Maricopa County enacted the unwritten policy restricting access to elective medical procedures in 1990. Transporting inmates for abortion services, county officials argue, takes corrections officers away from securing prison facilities and increases the chances of prisoner escapes.
In its appeal, the county argues it did not infringe on the inmateâ€™s right to an abortion. "In this case, the requirement of a court order may make it more difficult to obtain an abortion, but it does not rise to the level of an undue burden so as to render the policy unconstitutional."
But the ACLU argues that rights such as access to abortion should not be compromised for "proper prison administration." Exercise of the right "implicates no security concerns because it neither promotes illegal or subversive activity among prisoners, nor prevents prison officials from combating such activity."
The ACLU argued that the policy requires an inmate to locate a clinic and schedule an appointment while in prison, as well as retain an attorney to obtain a court order. It also gives judges power over whether inmates can access an abortion.
In its ruling last year, the Maricopa County Superior Court also pointed out that inmates are transported to visit sick relatives, view deceased relatives and hear wills read without having to get a court order.