Arizona County Sherriff Must Take Inmates for Abortion, Court Rules

State   |   Steven Ertelt   |   Jan 24, 2007   |   9:00AM   |   WASHINGTON, DC

Arizona County Sherriff Must Take Inmates for Abortion, Court Rules Email this article
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by Steven Ertelt Editor
January 24
, 2007

Phoenix, AZ ( — A state court of appeals unanimously ruled that Maricopa County must take pregnant inmates for abortions if they request one. County Sheriff Joe Arpaio had previously instituted a policy prohibiting the taking of prisoners for abortions because taxpayer funds would be involved in the transportation and staff time needed.

Arpaio had said the abortions would violate state laws against public funding of abortions but the appeals court ruled unanimously against his policy.

The ruling said Arpaio instituted an "exaggerated response" to the abortion funding statute and that his policy violates the privacy rights of the inmates.

The three judge Court of Appeals panel upheld the ruling of a lower district court that sided with the pro-abortion ACLU in its lawsuit seeking to overturn the abortion policy. It said that while taxpayer funds would be used to take the woman for an abortion no funds would be spent on the abortion itself, meaning the jail would still be following state law.

According to the Tucson Citizen newspaper, Judge Patrick Irvine ruled that Arpaio can’t discriminate against women having abortions when he takes other women to hospitals and health centers for legitimate medical procedures.

"While we recognize that the county might decline to transport an inmate who presents a particular security or liability concern, an indiscriminate ban on all transportation for nontherapeutic abortions does not allow inmates sufficient alternative means to exercise their right to choose to have an abortion," Irvine wrote.

Arpaio previously said he would appeal the court’s decision if necessary and told the Tucson newspaper he’ll take the case to the Arizona Supreme Court.

"This is an important ruling," Arpaio said. "Of course, I want to appeal it."

Just five female inmates have sought abortions over the last several years, and all of them used their own money to pay for the actual abortion.

During the appeals court hearing, county attorney Daryl Manhart 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.

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.

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.

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.