Arizona High Court Gives Go Ahead to
Transporting Inmates for Abortions

Although Arizona law forbids state tax dollars from being used to pay for abortions, yesterday the state Supreme Court let stand an appellate court decision that rejected a Maricopa County jail policy that prohibited deputies from transporting inmates for abortions unless the abortion was medically necessary. The court let the ruling stand without comment in Doe v. Arpaio.

It is the second case involving female inmates seeking abortions in the last three days. (See "Federal Judge Temporarily Enjoins New Missouri Abortion Law,"  www.nrlc.org/News_and_Views/September07/nv092507part1.html.)

A disappointed Maricopa County Sheriff Joe Arpaio told the East Valley Tribune, "I did the right thing and I would do it over again."  Arpaio also suggested he might ask state legislators to change the law to make the policy he had adopted legal.

The question came to a head in May 2004 when deputies, following the policy established by the jail in 1990, refused to bring an unnamed inmate to an abortion clinic without a court order. After having been denied two court orders, "Jane Doe" was granted a temporary restraining order against the policy and had the abortion.

In October 2004 the ACLU challenged the policy. In August 2005 Maricopa County Superior Court Judge Barry Schneider concluded that Sheriff Arpaio's policy was unconstitutional, a ruling upheld unanimously in January 2007 by a three-judge panel of the Arizona Court of Appeals, and upheld by the Arizona Supreme Court on Monday.

During oral arguments in front of the panel, Judge Patrick Irvine told the county attorney, Daryl Manhart, "Your policy is just 'no,' " adding,  'The jail will comply . . . if you get someone to force us, otherwise the answer is 'no.'"

Manhart, disagreed, the Arizona Republic reported, saying "that it's common to require a court order for non-medically necessary procedures" and that "Other courts have ruled that government resources do not have to be used for abortions."

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

The Republic paraphrased Manhart as saying, "The real underlying issue is that Correctional Health Services, the jail's medical staff, doesn't believe that abortions are medically necessary.

"The Sheriff's Office considers medically necessary operations to be for anything that is life-threatening."

Writing for the appeals court panel last January, Irvine observed,  "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."

He added that the county's policy is an "exaggerated response" to the necessities of running a prison, "given that inmates are routinely transported to other facilities for medical services or for other purposes," the Associated Press reported.

Irvine wrote that both the state and Pima County voluntarily transport inmates for abortion and that "only" five or six inmates have obtained court orders for transportation for abortions since the county policy was implemented in 1990.

Arpaio opposes abortion, the Republic reported, "but says that his decision is based on security concerns and taxpayer dollars rather than his on beliefs."

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