Did Mason County Sheriff Cole Violate a Prisoner's Rights or Just Save a Life?

[XLFD]

A Legal Look at Inmate Access to Elective Abortion

 

"A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals." – Fyodor Dostoevsky

The Mason County Press related a story concerning an inmate looking for an elective abortion: 

"Mason County Sheriff Kim Cole’s refusal to allow an inmate to have an abortion while she was housed at the Mason County Jail means that a child is alive today.

 

Cole spoke briefly during Tuesday night’s Mason County Right to Life dinner at Cornerstone Baptist Church.

“Last summer, sometime in July or August, I was sitting at my desk and the department nurse came to see me. She told me that we had another pregnant inmate — we had four at one time — at that the girl wanted an abortion.

“I said no. The taxpayers of Mason County weren’t going to pay for that. If she wanted to get an abortion she would have to get a court order.”

Cole said he consulted with Undersheriff Jody Hartley who agreed with him about the decision. The sheriff said a couple months then went by and he really hadn’t heard anymore about the issue.

“We were told that the inmate had received a court order allowing her to get an abortion. I again spoke with Undersheriff Hartley about this and we decided that we would call some folks and commit the day to prayer.

“While preparing for the procedure the young lady had a change of heart and decided she wasn’t going to have an abortion."

The Law

 

The legal analysis for the next sections are found here, complete with footnotes.  I have supplied some links to the footnotes listed therein, and have significantly edited the material so as to make it more applicable to the above situation with Sheriff Cole, briefer, and more understandable. 

 

In 1973 the Supreme Court, in deciding the landmark case Roe v. Wade, held that having access to abortion is a constitutionally protected right.  Choosing to have an abortion prior to fetal viability is a private decision between a woman and her physician that generally should be free from government constraints.  Any state regulation that creates an “undue burden” on a woman seeking an abortion is unconstitutional.  However, certain government entities have successfully evaded the law and continue to systematically hinder and even effectively prevent women from obtaining lawful abortions.

These government entities are jails and prisons, and the women are inmates. Incarceration serves important purposes in society.  Although incarceration by its nature entails limiting inmates’ fundamental rights, “no iron curtain [is] drawn between the Constitution and the prisons of this country.”  Abortion is a constitutional right that should not be revoked or limited upon entering prison.  It is especially important to protect inmates’ right to abortion as inmates tend to experience higher risk pregnancies due to inadequate prenatal care, drug and alcohol abuse, and mental illness.  The Court has held that “[t]he States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies.”   Correctional institutions, however, under the pretext of penological interests, have implicitly intimidated women into carrying fetuses to term by their prison abortion policies. This violates inmates’ constitutional rights.

 

Female inmates automatically face obstacles when seeking an abortion that other women do not. Inmates are incarcerated; they are behind bars, unable to leave on their own volition for any reason. They are at the mercy of the sheriffs, wardens and other prison personnel who determine prison policy.  Abortions may not be performed in prisons, but must be performed off-site by a third party.  Moreover, many prisons and jails refuse to fund any aspect of an elective abortion—the procedure, transportation or security—placing the financial onus on inmates who are likely to be poor.  Prison policies placing additional obstacles in the way of inmates seeking elective abortions compound their already substantial hardships.

 

One of the most common prison policies concerning inmate access to elective abortion is the court order policy.  Under this rule, an inmate who desires an elective abortion must file a motion with the court requesting either supervised release or temporary release on her own recognizance in order to obtain the abortion.

 

State officials themselves have admitted to the restrictive nature of these policies, and have even used them to effectively prevent inmates from obtaining an abortion while in jail.  For example, one staunchly pro-life sheriff in charge of operating a county jail admitted that under the court order policy, “[t]he gal may have the baby by the time it gets through the court system.”  In another instance, the Ohio Supreme Court suspended a judge for six months who, in State v. Kawaguchi, gave a pregnant defendant an unusually harsh sentence only after discovering that she intended to have an abortion.  The judge’s sentence successfully prevented the inmate from receiving an abortion, and she eventually gave birth.

 

The Supreme Court has yet to decide the constitutionality of the court order prison policy.  Several appellate courts have heard the issue, however, and there is currently a circuit split.  The Third Circuit invalidated this particular policy in Monmouth County Corr. Institutional Inmates v. Lanzaro. Alternatively, the Fifth Circuit later held in Victoria W. v. Larpenter that such a policy is indeed constitutional.

 

States may not enact abortion legislation that has the effect or purpose of “placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”  A prison’s court order policy creates an administrative burden for inmates seeking elective abortions. Once an inmate discovers she is pregnant—which in many prisons may not be for several weeks after incarceration because most prisons do not automatically administer pregnancy tests upon entry— she must inform officials of her desire to terminate her pregnancy.

Oftentimes she is required to meet with a prison doctor or nurse, which may not take place for several days.  Then, the inmate must contact her lawyer and ask him to file a motion to request a court ordered release.  Once the attorney actually files the motion and a hearing is scheduled, additional time inevitably passes.  Furthermore, depending on the judge’s docket, even more time may elapse before the judge is able to schedule the hearing.

 

Monmouth Court

In Monmouth, Jane Doe was forced to wait for almost a month while prison staff ignored her request for an abortion, effectively preventing her from obtaining the elective abortion she desired in a timely manner. Therefore, a month long administrative delay clearly constitutes an “undue burden” under a test developed in the case Planned Parenthood of PA. v. Casey dealing with similar issues.

 

The Monmouth court found that restricting Constitutional rights based on the lone interest of limiting prison costs would counter prior precedent and violate the spirit of the Constitution. Courts are hesitant to consider prison costs as a determinative factor in deciding cases involving constitutional challenges to prison regulations because prisons could use the cost argument to justify denying inmates such basic provisions as food, medical care and humane living conditions.  The court further held that the prison’s court order policy “effectively deprives maximum security inmates who seek [elective] abortions of any opportunity to exercise their option of choosing to abort their pregnancies.”

 

The Monmouth court found that the prison’s arguments as to the third factor—the effect that accommodating the prisoner’s constitutional right would have on guards, other inmates and the allocation of prison resources—were without merit.  The impact on the greater inmate population from allowing prisoners to obtain elective abortions without a court order would be minimal, if not nonexistent.  Since the prison has an obligation to pay for necessary medical care, including all prenatal care, the prison would actually expend fewer resources on providing elective abortions than it would if the inmate chose to carry the fetus to term (see 'Costs' below).

 

Victoria Court

 

Similarly, in Victoria W. v. Larpenter, the prison’s court order policy placed an “undue burden” on an inmate seeking an elective abortion. Courts have held that “delays of a week or more do indeed increase the risk of abortion to a statistically significant degree.”  The prison court order policy creates inevitable delays of at least a week, and as Victoria and Monmouth show, often longer. Delays that increase the risks associated with abortion to a statistically significant degree create an undue burden under Casey. Consequently, a prison court order policy places an undue burden on inmates seeking an abortion in violation of their Fourteenth Amendment right to reproductive privacy under Casey.

 

The defendants in Victoria were more successful at showing a reasonable relationship, however, because they stated different penological interests. The Victoria court held that the state’s interests in limiting their security and liability risks by requiring court orders for elective medical procedures were legitimate.

Cost Concerns

Many of the Victoria findings on penological interests do not seem very well-founded.  Even if prisons were to pay for abortion services, a single abortion costs less than nine months of prenatal care and delivery. On average, the cost of a surgical abortion performed at a nonhospital facility is $523 at 10 weeks gestation and $1,339 at 20 weeks gestation.  The average cost of an early medical abortion performed before the seventh week of gestation is $490.

 

Conversely, an uncomplicated pregnancy’s average cost for prenatal care and hospital delivery is $7,600.  As a group, inmates suffer from higher instances of substance abuse; therefore, the chances of inmates suffering from complications during pregnancy are also higher.  Higher risk pregnancies can translate to increased costs.

Furthermore, the cost of paying prison guards to escort the inmate to the abortion clinic would be lower for one, or at most two visits, versus several prenatal doctor appointments plus a hospital stay for childbirth. 

 

The security interest argument can be discarded by the same logic. Allowing an inmate to leave prison for one abortion procedure creates less of a security risk than for multiple prenatal doctor visits plus a hospital stay. Therefore, if prisons were to provide elective abortions upon request, the new policy would not significantly affect the allocation of prison resources, other prisoners or prison staff. On the contrary, the prison would undoubtedly expend fewer resources.

 

 

 

The Alternate Standard:  The Eighth Amendment

 

According to the Court in Estelle v. Gamble, the Eighth Amendment has created an obligation for the government to provide medical care for incarcerated individuals.  In order to succeed on an Eighth Amendment cruel and unusual punishment claim, an inmate must meet both prongs of the test articulated in Estelle v. Gamble: 1) the inmate experienced an objectively serious medical need and 2) the prison officials actually knew about the serious medical need and were deliberately indifferent to it.

Various courts have found that elective abortion constitutes a serious medical need.  The Court’s reasoning in Roe v. Wade indirectly supports the contention that elective abortion is a serious medical need for the women who chose it.  Prenatal care and childbirth are considered serious medical needs. Abortion is simply an alternate course of action a woman may pursue during pregnancy; therefore, both reproductive options should be treated the same way and both should be characterized as a serious medical need. 

 

Because the risk of complications from abortion increases as the pregnancy prog..., once prison officials are aware of an inmate’s desire to terminate her pregnancy, they should act with all deliberate speed to facilitate the procedure.  Slow communication between prison officials and outside clinics should not serve as an excuse for nonperformance. Some courts have found that when prison officials refuse to provide transportation to an inmate seeking an abortion, or otherwise delay or deny her request absent a court order, their actions automatically constitute deliberate indifference.

The Conclusion

Admittedly, Sheriff Kim Cole delayed the abortion request for at least a couple of months by requiring the court order, which the woman had received.   By either Monmouth or Victoria, the delay was an "undue burden".   There has been no claim that the delay and the roadblocks had any sort of penological interest to the Mason County Jail, other than that Cole mentioned he didn't want the taxpayers to pay for it, and yet the prenatal care expenses would have presumably overshadowed the abortion cost. 

 

Using the sheriff's time estimates, the woman was in the first trimester of her pregnancy when she asked for an abortion which would have cost about $500.   The delay would have cost the taxpayers nearly three times more (and be less safe for her health) if she didn't recant on the abortion and risk her health more, but it appears she was incarcerated late into her pregnancy, but before her child's birth, likely costing a couple of thousand in prenatal care while in the jail, and thousands more (likely billed to the state) when she got out. 

 

The two months that Sheriff Cole and Undersheriff Hartley were indifferent to the woman's request show a deliberation to deny her a timely, serious medical need. 

One can totally be against current US abortion policy and the act itself, like I am, while still noting the unfairness shown to this inmate and her lawfully given right to have an abortion, when compared to a non-incarcerated woman.  She had wanted an abortion early on, took over two months to get the court's permission to assert that right, then had a mysterious change of heart.  Coupled with special treatment by the sheriff, and an engineered open adoption there seems to have been several interests in play.

 

Sheriff Kim Cole did effectively play a strong role in the preservation of her baby's life, which is commendable on a humanitarian level, but in the process he denied the woman her rights under the established law, and under the Eighth Amendment in my opinion.  But it did make him a celebrity darling among a lot of websites devoted to fighting the ills of abortion:

Life Site News

Les Femmes, The Truth

LifeNews

Right to Life of Michigan Blog, etc. 

[Willy]

Here's my problem with the Court and abortions regarding inmates. Most inmates are incarcerated because they broke the law. The Sheriff is obligated, by law, to imprison these people and baby sit them at the expense of the taxpayers. The taxpayers didn't ask inmates to commit crimes which would land them in jail. The taxpayers didn't assist women inmates to get pregnant. I'm assuming the woman we are discussing was in jail because she broke the law. Because this woman led a lifestyle which included unlawful activity and promiscuous behavior why should tax payers pay for her abortion. Just because some liberal judges say so? Her decisions, not mine the taxpayers or the public at large, put her in this situation and I for one am tired of footing the bill for someone else's bad behavior. I don't think the framers of the Constitution would have agreed with the way modern judges are twisting it's intent. Because of her actions that put her behind bars, she in effect put the responsibility  of getting an abortion on the taxpayers shoulders and in no way do I agree with that. By the way X, another excellent job of researching and reporting.

[XLFD]

Thanks.  I would agree with you.  I think the fees for something like an elective abortion should be a debt repaid by the inmate (or her parents if she is a minor, and they approve) when she gets out.  The pro-choice crowd might think that is unfair because it would lead to more poor pregnant inmates electing to keep their babies, but I don't see much merit in it.  It's a lot fairer than the delays in needing a court order from a judge for each case. 

[Willy]

Yes it does matter. Her behavior put her in jail and of course she is entitled to medical care while in custody. She's entitled to medical care for her and the baby to assure each of them proper health, not medical care to kill her baby. It would be the same as if she requested medical assistance to kill herself instead of medical assistance to better her health. I don't want my tax dollars paying for her "right" to kill her child. It's bad enough that she has the right to do it.

[XLFD]

Unfortunately, there is a lot of truth in what you say.  I know of another case back from 2009 where a very reserved woman was raped by an underage boy, got impregnated, and was then forced by the boy rapist and the local justice system under threat of statutory rape charges on her, to give the baby up to a very religious but childless local couple.   She was victimized twice by our often misogynistic local system.

[Willy]

john.

What she did was put herself in a position to let other people make decisions as to how her daily life would play out. Don't go to jail if you want an abortion. Leave everyone else out of your life's decisions. She caused it, she lives with it. Again, the poor criminal is the victim here, right?. So let's not have criminals take responsibility for their actions because It's societies fault, not theirs. I don't agree with the Sheriff getting involved with the girl but he did not break any laws when he did. 

[AQUAMAN]

Insightful comments again Willy, I agree with most. Then we have to again find a way to connect the streeter dots of the puzzle, I'm not going to even try. After listening to all the fog and smoke debate, I want to take this opportunity to praise the acts of Sheriff Cole in this particular instance. I think he made a valued judgement, may have bent the law a tiny bit, but in the end, accomplished a noble goal. He saved an infant life, and also procured a new baby to a loving couple for adoption. The means to an end may not be perfect, but, it's better than the alternative. Kim Cole showed he's a humanitarian at heart imho.

[wes]

I posted my opinion on here about this but it was deleted......why do you ask?....because the people in charge of ludington talks don't allow people to exercise their 1st amendment rights. They don't believe in the constitution!!! I mean....the whole idea that the citizens of ludington can come on here and voice thier opinion is a LIE!!! They can only voice their opinion if their opinion matches those in charge of ludington works.....in other words....it's really just a page for a few special people that all have the same opinion!!! 

[XLFD]

We don't delete opinions here unless they egregiously violate the terms of service located in the link at the bottom right of each page.  I have had no reports from other administrators deleting any opinion on this page, and I know I haven't, so it was likely a technical problem, and since it would have been your first post, I would have to assume you may have missed a step in posting it.

Feel free to repost the opinion, because this is not Ludington Talks (or Ludington Works?), a now-defunct site ran by the City of Ludington Daily News (COLDNews) which gets its material and direction from our so-called community leaders. 

If you can't tell by the thread's topic itself, this is a networking site that critically looks at the actions of those in charge, we welcome all opinions even if contrary to ours, but don't expect a controversial opinion to go unchallenged.

[Willy]

I think I know what happened to wes's post because this has happened to me. When you're busy typing your post and spell checking and possibly trying to add links, sometimes clicking on the "Add Reply" when finished is overlooked. Believe X when he says that posts are not deleted by the Administrators unless they are extremely inflammatory. So wes, repost your "opinions". I'm curious as to what your concerns are. I'm now going to click on the "Add Reply" tab.

[Willy]

Wait a minute wes. How did your post that I am replying to get on the forum if somebody is deleting your posts. It seems to me that accusing X of censoring your thoughts is a huge negative but yet there it is plastered on this site. That alone should tell you something. Did you ever consider that? Is this for real or are you just messing around?

[wes]

My post basicly said that if the sheriff was really concerned about the children he would go and arrest the sicko that is filming little kids in a bathroom with 14 different cameras and 14 different angles. But he won't because that sicko is the local police chief! A man that puts his religion (Catholic) before his duty to the people of ludington. Now I know they had a problem with that bathroom and I agree that there should be a couple of cameras in there to protect the children of ludington. I'm all for that! but....14 cameras....hidden in really weird places. There is something more than just security going on!!! It seems that everytime that someone dares to ask the city council about who has access to the cameras and who decides who watchs the children of ludington pee??? I feel that these are very legit questions that the city council and the ludington police department and yes...even our beloved county sheriff should be answering but instead, they refuse to say anything about it!!! Since they cannot be honest with the people of this town, it makes me believe that they are up to no good! I just think that the idea that the sheriff cares about the kids might be alittle off the mark. Of course we have the big blue wall to deal with and there is no way that a cop is ever going to arrest another cop in this town!!! No matter what crime they committed while wearing a badge!!! I have a right to know if the police chief is handing over footage of little kids peeing to the catholic church! I know that sounds absurd but when you take their silence on the issue then maybe ....just maybe there is something to it. I sure hope not, I hope I'm wrong but something is going on!!! And it seems to me that everyone in this town is against child porn untill it's the police chief that MIGHT be doing it. and with the history of the catholic church....these are legitimate questions!!! And the only reason I'm on here ranting about it is because the city council and the police departments refuse to address the issue!!! Now I could be wrong and if I am, please educate me. from what I understand. 2 perverts have already been put in prison where they belong because of those cameras, so I'm all for the cameras in there.....it is needed! But the silence I get from this community is scaring me.......because their silence means they condone it!!!!

[AQUAMAN]

Wes, if you search our archives of threads you will see a huge posting to this whole issue in 2012 I believe. It was called something like "They see you poo in public". It was criticized by many, including the LDN, but also approved by even more people that were totally shocked at the episode. The camera idea is old around Ludington, and the public didn't even know about all this until we at the TORCH revealed it to thousands of people. Some here have declared the Chief to be a pervert, and many other names. I don't endorse those ideas, but at the same time, I don't want ANY cameras looking at me in public restrooms either, for ANY DAMN REASON! The city attorney and city manager of course also endorse cameras, and so-called venting devices, and all say it's legal. You can educate yourself in our archives anytime you want to, and believe me, after over 4 years, there is quite a bit of dirt in the Ludington City laundry to both be ashamed of, and angry about. Good luck, and welcome aboard.