Arizona Appeals Court Sharply Questions No Inmate Abortion Policy

State   |   Steven Ertelt   |   Nov 29, 2006   |   9:00AM   |   WASHINGTON, DC

Arizona Appeals Court Sharply Questions No Inmate Abortion Policy Email this article
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by Steven Ertelt Editor
November 29
, 2006

Phoenix, AZ ( — A state court of appeals sharply questioned a county attorney on Tuesday about a Maricopa County prohibiting the taking of pregnant women to have abortions. The policy is in place because County Sheriff Joe Arpaio says he doesn’t want to involve taxpayer funds in the transportation process.

However the strong questions from the three judge panel make it appear the court will side with the ACLU, the pro-abortion law firm that took the policy to court.

Because of the policy, women seeking abortions must submit a request to a judge to get it approved before Arpaio will allow taxpayer-funded employees and vehicles to take the inmate for an abortion.

As a result, just five female inmates have sought abortions over the last several years, and all of them use their own money to pay for the actual abortion.

The Arizona Republic reported that the judges questioned county attorney Daryl Manhart and one judge wondered if the policy blocked women from exercising the so-called right to have an abortion.

"Your policy is just ‘no,’ " Judge Patrick Irvine told Manhart. " ‘The jail will comply . . . if you get someone to force us, otherwise the answer is no."

But Manhart disagreed and said it’s common for inmates to get court orders for medical procedures that aren’t medically necessary. He pointed to other courts that have ruled government resources shouldn’t be used in abortions.

"If she were outside of the jail, she could execute the decision without our resources," Manhart said, according to the Republic. "The state is not obligated to provide resources for that decision."

Manhart also said that Correctional Health Services, the medical staff for the prison, doesn’t think abortions are medically necessary.

"Who hires CHS?" Judge Irvine shot back, the Republic reported.

Current Arizona law prohibits paying for the abortion directly but says nothing about using taxpayer money to pay for helping a woman obtain an abortion.

In May 2004, Arpaio’s staff prohibited an unnamed inmate from obtaining an abortion and cited a county policy preventing them from taking her for one unless the abortion was medically necessary. Arpaio’s office says the staff time involved in transporting a mother for an abortion could cost as much as $1,000.

After two unsuccessful attempts, the woman received permission from a judge for the abortion.

The American Civil Liberties Union in October 2004 challenged the policy and Maricopa County Superior Court Judge Barry Schneider ruled this August that the policy placed an undue burden on a woman’s "right" to an abortion.

Arpaio appealed the decision.

ACLU attorney Brigette Amiri argued for the pro-abortion law firm in the appeals court and said Judge Schneider was right that abortion access is improperly denied.

The judges appeared to support the decision as well and asked Amiri numerous questions about it.

Judge Susan Ehrlich asked whether inmates had to reimburse the county for the transportation costs for the abortions and Amiri said no.

Arpaio told the Phoenix newspaper that he will appeal the decision to the Arizona Supreme Court if the appeals court ruled against the policy.

"I am not going to give up on this important issue," he said.

In October 2005, the U.S. Supreme Court let stand a federal judge’s and appeals court decision allowing a Missouri inmate facing the same situation to have an abortion.

In 2004, 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.

Pro-life groups there agreed 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 with the Bioethics Defense Fund. "However, pregnancy is not a disease and elective abortion is not medically necessary."

The 5th Circuit Court of Appeals eventually sided with the state against the inmate’s request for the abortion.