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Capitol Media Services
Tucson, Arizona | Published: 11.29.2006
PHOENIX — A lawyer for Maricopa County Sheriff Joe Arpaio says a woman's constitutional right to an abortion doesn't include being taken there from jail.
Attorney Daryl Manhart told the Arizona Court of Appeals on Tuesday that it should let Arpaio reinstate his policy that says inmates are not entitled to be escorted from jail for elective medical procedures. Manhart said that includes cosmetic surgery, routine dental work — and abortions.
But Brigitte Amiri, an American Civil Liberties Union attorney, said that amounts to a denial of constitutional rights. And she told the judges that these rights are not lost simply because a woman is locked up.
The woman whose case brought the legal challenge eventually had her abortion after getting a court order.
Maricopa County Superior Court Judge Barry Schneider subsequently declared the policy illegal, rejecting Arpaio's contention that it had legitimate purposes. In fact, Schneider said the policy is really designed to protect the sheriff from "politically unpopular decisions."
Arpaio, however, has refused to drop the issue, saying he will fight all the way to the U.S. Supreme Court if necessary.
Central to the argument is the constitutional right of a woman to terminate her pregnancy, particularly early in gestation.
"The right to choose an abortion survives incarceration," Amiri said. She said requiring women to seek a court order each time is not a realistic option, as delays in the procedure make it riskier and even create the possibility that a decision will come too late, forcing the woman to carry the unwanted child.
Manhart framed the issue in different terms.
He said the U.S. Supreme Court rulings on abortion have said that while government cannot impose undue restrictions on a woman's decision to abort, is not required to finance it.
"This policy is a resource case, not a decision case," he said.
"What you have here is an inmate who's incarcerated," Manhart said. "The obstacle (to the abortion) is her incarceration."
Amiri said the woman offered to pay the costs of her transportation and being guarded. That never happened, though, as the court blocked the county from charging her.
Manhart acknowledged that the Sheriff's Department does provide cost-free transportation and guarding for "compassionate" reasons, like attending a funeral or visiting a dying relative. But he said that does not mean it must provide similar arrangements for abortions that are not medically necessary.
Arpaio has acknowledged he is personally opposed to legal abortion but said that has not influenced his decision to implement the policy.
The appellate judges did not say when they will rule.
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