Attorneys for the American Civil Liberties Union argued before the Arizona Court of Appeals to uphold a lower court ruling that forbids Maricopa County Sheriff Joe Arpaio from requiring a court order before allowing pregnant prisoners access to abortions.
Last year, the ACLU successfully sued the sheriff in Maricopa County Superior Court on behalf of Jane Doe, an anonymous 19-year-old DUI offender, who was prevented from being transported from jail to receive an abortion.
That decision was appealed by Mr. Arpaio, acting in his capacity of sheriff. His attorney, Daryl Manhart, told the three-member appeals court the rule exists for safety, liability, and budget concerns.
“This seems to be a non-controversial policy for everything except abortions,” said Mr. Manhart, noting the policy also affects the transporting of prisoners for elective medical procedures or the participation in civil proceedings, including divorce.
But the difference between the procedures is immense and the effect of requiring court approval unlawfully places a woman’s right to choose with the courts, said national ACLU attorney Brigitte Adrienne Amiri.
“Abortion is a constitutionally protected medical procedure, unlike cosmetic dental work or a nose job,” she said.
Currently Correctional Health Services (CHS) provides 9,200 inmates housed in Maricopa County jails with non-elective mental and physical health care. Each facility provides a range of services and inmates can be referred to outside providers for more serious medical complications such as kidney failure or chemotherapy, according to the CHS.
Mr. Manhart attacked the notion that all burdens regarding abortion services are not unconstitutional. He raised previous U.S. Supreme Court decisions that have upheld 24-hour waiting periods before abortions and the parental notification requirements for minors seeking to terminate pregnancies.
And access to abortion services for prisoners is impeded by an inmate’s incarceration, not the policy. Inmates have no constitutional right to use public resources to assist in acquiring abortion services, he said.
ACLU: Delay jeopardizes health of inmates
Alessandra Soler Meetze, executive director of the Arizona Civil Liberties Union, said after the hearing that the delay caused by the court order requirement jeopardizes the health of female prisoners.
“It’s irrational and it’s dangerous,” she said. “It places unnecessary obstacles in the path for women to obtain abortions.”
She said that she recognizes law enforcement has legitimate concerns for moving prisoners, ranging from security to the availability of transportation, and that law enforcement officials are better suited to weigh these factors than the courts.
The appeal against Jane Doe’s victory is faulty, she said, because it doesn’t give judges any sort of idea what factors to examine if asked to issue court orders for abortion-seeking inmates.
Ms. Soler Meetze would like to see the Maricopa County Sheriff’s Office implement the same rules it uses to consider if an inmate should be allowed “compassionate visits”— a term widely used for the transporting of prisoners to see seriously ill family members or to attend funeral services for relatives.
Judge Patrick Irvine of the Court of Appeals asked Mr. Manhart exactly what are the criteria for making the determination to allow compassionate visits.
The requirements are not well established, said the attorney, but officials with the sheriff’s office usually pick the time of transportation and take other steps to minimize public safety risks.
About five to six compassionate visits are granted each month and are typically affected by availability of resources, said Jack MacIntyre, a spokesman with the sheriff’s office.
Ms. Doe received the requested abortion seven weeks after giving notice of her intentions. She paid for the procedure and offered to compensate the state for transportation costs, said Ms. Amiri.
The occurrence of inmates requesting transportation for abortion is rare. Ms. Doe’s case is the first time in “recent years,” but the issue could come again soon, said Mr. Arpaio, an admitted opponent of terminating pregnancies.
But his position and the politics on the matter are not relevant, he said. Logistics and liability come first, and contrary to rumor, compassionate visits are limited to private viewings of deceased family members in funeral homes.
“I’m in charge of her and the people in the jail no matter where I am, 24 hours a day,” he said. “If something goes wrong, who do you think they’re going to come after? Me.”
The Arizona Court of Appeals gave no indication when a decision would be reached, but if the lower court ruling is upheld Mr. Arpaio has pledged to fight the original Superior Court decision until he reaches the U.S. Supreme Court.