Federal Appeals Court Panel Hears Arguments Over Inmate Abortions
Part Two of Two

If preliminary news accounts are accurate, a federal appeals court panel looked skeptically yesterday on a 2005 change in policy by the Missouri state Department of Corrections that prohibits the use of taxpayer money to transport prisoners to get an abortion except if her life or health were endangered.

A three-judge panel of the Eighth U.S. Circuit Court of Appeals heard oral arguments Monday in St. Louis. The Associated Press (AP) reported that Assistant Attorney General Michael Pritchard argued “that prison officials' primary concern is with the safety of prisoners, guards and the public.”

Judge Roger L. Wollman countered, "In terms of risk, there's not much empirical support for a statement that security ranks high on the list of reasons,” the AP reported. “Historically, there have not been any problems." To which Pritchard responded, "The department doesn't need to wait until a tragedy occurs."

A decision “could take months,” according to the AP.

The policy change came to a head when the ACLU filed a suit on behalf of an inmate after Missouri officials refused to transport her for an abortion. On October 13, 2005, U.S. District Court Judge Dean Whipple ordered Missouri to transport “Jane Doe” to receive an abortion at a Planned Parenthood clinic in St. Louis.

"The law is now well established that federal courts have declared that a woman has a constitutional right to choose to terminate a pregnancy rather than carry the pregnancy to term," Whipple wrote. "It is also clearly established that these rights of the woman survive incarceration."

The state took the case to the U.S. Supreme Court, and Justice Clarence Thomas issued a stay on Whipple's ruling the following day so the entire court could consider the case. Missouri asked the justices to give "heavy consideration" to the state's policy of "discourag[ing] abortions and encourag[ing] childbirth," the Washington Post reported.

However, the full Court issued an unsigned, two-sentence order October 17 denying the temporary stay and allowing Whipple's original decision to stand. That night, Whipple ordered officials to take the inmate for an abortion before Friday, October 21, according to the St. Louis Post-Dispatch. On October 20, she aborted her 16- to 17-week-old unborn baby, the Post-Dispatch reported.

Subsequently, according to the AP, “The case was certified as a class action, leading to Whipple's ruling last year [which upheld his original decision] that would allow any Missouri inmate seeking an abortion to have access to one.”

At any one point 30-50 inmates are pregnant. Missouri has transported three inmates to obtain an abortion since September 2006, the AP reported.

Please send your comments to Dave Andrusko at daveandrusko@hotmail.com.

Part One