Arizona County Sheriff Can’t Prohibit Inmates From Having Abortions

State   |   Steven Ertelt   |   Aug 26, 2005   |   9:00AM   |   WASHINGTON, DC

Arizona County Sheriff Can’t Prohibit Inmates From Having Abortions

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by Steven Ertelt Editor
August 26, 2005

Phoenix, AZ ( — An Arizona county sheriff can’t refuse to transport pregnant inmates from prisons under his authority to abortion facilities, a state judge has ruled. Maricopa County Sheriff Joe Arpaio had required court approval to take a woman for an abortion because he said it violated policies against using taxpayer dollars for abortions.

Maricopa County Superior Court Judge Barry Schneider said the policy is illegal and an unconstitutional burden on women being able to obtain legal abortions.

Schneider challenged Arpaio’s contention that the ruling challenges a state law that prohibits the use of public funds for an abortion, saying, "This concern loses its validity as long as the inmate arranges to pay for the procedures, as occurred in this case."

He also rejected Arpaio’s argument that requiring a court order for an abortion protects the county from a lawsuit from a third party that may have an interest in the unborn child.

In October 2004, the ACLU filed a lawsuit against Arpaio, who would authorize transport for abortions only in cases when "medically necessary."

The ACLU’s lawsuit stems from an incident in May 2004 when an unnamed inmate sought an abortion while detained at Estrella Jail. She had prepaid for the abortion, but deputies refused to transport her to the clinic without a court order.

The woman was denied a court order twice within several weeks, but finally received a court order after ACLU attorney Angie Polizzi filed a temporary restraining order against the Maricopa County policy.

Then in her 14th week of pregnancy, the inmate had the abortion.

"I don’t run a taxi service from jail to an abortion clinic and back," Arpaio, who is pro-life, told the Associated Press at the time. "Where do you draw the line?"

Arpaio said fewer than three women a year request an abortion and 45 women out of the 1,000 in his prison are currently pregnant. Several other counties in Arizona and nationwide have a similar policy.

Louise Melling, an ACLU attorney, applauded the decision and said, "We are pleased that the court recognized that denying women inmates access to abortion services is dangerous, unjust and serves no legitimate purpose."

This isn’t the first time abortion advocates have fought to enable women in prison to have abortions.

A federal appeals court heard the case of a pregnant Louisiana inmate who sued the state because it denied her the ability to get an abortion. There, county officials said a law prohibited taxpayer-funding of abortions required the county to prohibit women from being transported for abortions.

Danna Schwab, an attorney for the parish government, told the court the woman’s rights had not been violated. "I don’t think you have a right to an abortion when you’re in jail," Schwab said.

Pro-life groups agree the pro-life law was applied correctly.

"Louisiana law recognizes that prisoners should be given medically necessary treatment," said Dorinda Bordlee, a pro-life attorney. "However, pregnancy is not a disease and elective abortion is not medically necessary."

The 5th Circuit Court of Appeals eventually sided with the state.