Earlier this week, the Eighth Circuit Court of Appeals heard oral arguments on a case out of Missouri about the right of pregnant women who are incarcerated to be transported to secure an abortion.  Here’s some background on the case, via Rachel Roth at RH Reality Check:

The case arose when a young woman beginning a four-year sentence in Missouri was told she could not have an abortion. This represented a change in policy for the prison; in the past, women who could come up with the money were taken to a clinic for abortion care. Then in 2005, with a new anti-choice governor in office, the prison administration and the Department of Corrections reversed course, adopting a policy that categorically denies women access to abortion.

After weeks of being rebuffed by prison officials, “Jane Roe” wrote to the ACLU and eventually sued the prison. The court’s decision in her favor was straightforward, because the Supreme Court has been very clear that while states can enact policies to make getting an abortion more difficult, they cannot ban abortion altogether, as the Missouri prison had done. The Supreme Court has also made it clear that people do not automatically lose all of their constitutional rights when they cross the prison threshold. Jails and prisons must have a legitimate, prison-related reason for restricting such rights, and forcing women to bear children does not further any legitimate goal related to prison administration or crime control. Calling the decision an offense to its values, the Missouri government has asked the court of appeals to reinstate its unconstitutional policy.

It’s a funny thing when a state argues that a woman should lose her constitutionally protected right to abortion when she is incarcerated. While it’s true that people who are in jail in the U.S. do lose many rights that are ancillary to liberty, they retain the rights guaranteed them by the Constitution. This is clear in the realms of the First Amendment and the Eighth Amendment, for example (though the Supreme Court yesterday declined t0 hear a case about the censorship of outgoing inmate mail). While there are sometimes legit penological considerations that allow the government to restrict a constitutional right more than might be possible for the general public, that logic doesn’t fly here:  the state prison system regularly transports women over three hours away for a cosmetology exam.  This case is not about making the prison system run more smoothly; it’s about picking on the most vulnerable women in society in an attempt to further restrict the abortion rights of all.  Let’s hope the Eighth Circuit upholds the lower court’s decision and reminds the states that people who are incarcerated retain all of the constitutional rights they had before entering prison, including those related to their reproductive health.

This entry was posted on Wednesday, September 26th, 2007 at 1:52 pm and is filed under criminal justice, abortion, law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.