Court: State must transport prisoners for abortions

Tuesday, January 22, 2008

ST. LOUIS (AP) -- The state of Missouri must provide transportation to abortion clinics for inmates who want to undergo the procedure, a federal appeals panel ruled Tuesday.

The state in 2005 tried to end the practice of driving prisoners to clinics for elective abortions. An inmate at the prison in Vandalia, listed as Jane Roe, filed a class-action suit. A three-judge panel of the 8th U.S. Circuit Court of Appeals sided with a lower court ruling in favor of the inmate.

"The court recognized that the right to elect to have an abortion survives incarceration," said Tony Rothert, legal director of the American Civil Liberties Union's St. Louis office. "This was about providing women with the opportunity to exercise their choice even though they were incarcerated."

It wasn't clear if the state would appeal. Calls seeking comment from Attorney General Jay Nixon and Gov. Matt Blunt were not immediately returned.

The ruling came on the 35th anniversary of the Supreme Court's Roe v. Wade decision, which established a nationwide right to abortion.

The 8th Circuit panel did rule the lower court erred when it found that the Department of Corrections policy violated the Eighth Amendment right against cruel and unusual punishment, saying an elective abortion "does not constitute a serious medical need."

At a hearing in September, attorneys for the state argued security concerns and the state's limited resources outweighed a female offender's right to an abortion. Inmates are denied certain freedoms, including "the right to procreate, vote and travel," Assistant Attorney General Michael Pritchett told the panel at the time.

But the ACLU said the state exaggerated its security concerns and has shown an ability to safely transport inmates to an abortion clinic in St. Louis despite the presence of protesters.

Corrections Department spokesman Brian Hauswirth said it costs the state about $348 each time it transports an inmate to an abortion clinic.

The state provided transportation to abortion clinics until a policy change in July 2005. At the time, the Corrections Department cited a 1986 state law prohibiting the use of public funds, facilities and employees to assist an abortion when it's not necessary to save the life of the woman.

Under the revised policy, the department would only transport an inmate for an abortion if her life or health were endangered.

But later that year, U.S. District Judge Dean Whipple in Kansas City ordered the state to transport Roe to an abortion clinic, and the U.S. Supreme Court declined to intervene.

The case was certified as a class action, leading to Whipple's ruling in 2006 ordering Missouri to take any pregnant inmate who requests the procedure to an abortion clinic.

Hauswirth said that from July 2005 through the most recent count in September, seven Missouri inmates had abortions. All were elective procedures.

"We will abide by the court order, as we have been," Hauswirth said.

Most children born to offenders end up living with other family members, Hauswirth said. Missouri has no program to accommodate offenders and their children in prison, even for overnight visits, he said.

Roe is no longer incarcerated. She was serving time after her parole had been revoked. She was originally arrested on a drug-related charge, Rothert said.

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