Appeals court hears Mo. case on inmate abortions

ST. LOUIS (AP) -- Security concerns and the state's limited resources outweigh female offenders' right to abortion, the state argued Monday in defense of a policy against transporting them to an abortion clinic outside of prison.

Missouri's two-year-old policy, since declared unconstitutional by a federal district judge in Kansas City, is reasonable and constitutional, Assistant Attorney General Michael Pritchett told a federal appeals court panel here.

Incarceration by definition means inmates are denied certain freedoms, including "the right to procreate, vote, and travel," he said.

The American Civil Liberties Union disagreed, arguing that the state has exaggerated its security concerns and in fact, has shown it can transport offenders without incident to an abortion clinic in St. Louis despite the presence of protesters.

ACLU attorney Diana Kasdan said the state devotes more resources and security measures to accommodate the far larger number of female offenders who carry their pregnancies full term.

Women, no matter what, have a constitutional right to abortion, she said, noting that a handful of courts considering the question have ruled in favor of incarcerated women seeking abortion.

Pritchett argued that an accomplice could take advantage of frequent protests at the St. Louis abortion clinic to free an offender seeking an abortion. But Kasdan said the protesters are relatively few and aren't allowed onto the clinic's parking lot. The clinic provides a separate entrance and waiting room for offenders, and a correctional officer is permitted in the procedure room, she said.

Judge William Riley asked who pays for the care of female offenders who carry their pregnancies to term. "Does that make a difference?" he asked.

Pritchett said the state pays a flat contractual rate to a private vendor to provide health care to inmates, including obstetrics care.

The state used to pay to transport an inmate for an abortion, though not the procedure itself, but the policy was reversed in July 2005.

The state Department of Corrections cited costs, security concerns and 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.

U.S. District Court Judge Dean Whipple ordered the state to transport a pregnant inmate -- referred to in court as Jane Roe -- to receive an abortion in October 2005, and the U.S. Supreme Court declined to intervene.

The case was certified as a class action, leading to Whipple's ruling last year ordering Missouri to take pregnant inmates to abortion clinics when they request the procedure.

A three-judge panel of the Eighth U.S. Circuit Court of Appeals heard arguments in the case Monday on appeal from Attorney General Jay Nixon.

Since September 2006, the state has transported three offenders to obtain an abortion. The state has transported a total of seven to abortion clinics since June 2005, the Department of Corrections said.

By contrast, from July 2006 to this past July, 52 female offenders -- all at the women's prison in Vandalia -- delivered babies at area hospitals.

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