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]

wes, I have to agree with your assessment that the silence of  those in charge of public safety only fosters suspicion about their activity and motives. People need to know what is going on but they cannot get a straight answer from any of them. Ask X, he was banned from City Hall under the threat of imprisonment just because he questioned procedures, policies and shady dealings of the City Council and certain prominent individuals. Then there's the Ludington Daily News which is the City Council's Bi_ch. This so called "news" agency cannot seem to report the entire truth of what is going on and when they do report, the articles are inaccurate, incomplete and misleading. The best source for information about serious issues is This forum thanks to X who has posted informative, concise, fact filled articles. Something that is sorely missing from Mason County's main stream media.

[AQUAMAN]

Well said again WIlly, and all too accurate. Seems like when you stand up for your own rights around this country/state/city anymore, ask any questions that they don't want answered, you are pointed at and ridiculed as an outcast. If we had more people waking up to what is going on all around us and doing the legwork like X does relentlessly and unselfishly, we wouldn't be in all the messes we have now.

[XLFD]

Greatly appreciate those unsolicited testimonials, Willy and Aquaman, and thank you for responding to wes's concerns. 

Wes, if you have knowledge of 14 cameras inside bathrooms that is news to me.  Each of the two Waterfront bathrooms have two cameras in, one in 'plain' site up on the wall, and one inside the vents.  There is a potential for more discrete cameras on the ceiling but that accounts for four.  One discrete camera was found in each of the James Street bathrooms vents out of sight.  At the Stearn's north concession bathrooms, there were devices that looked to be cameras placed in the ceiling above the toilet stalls and weren't accounted for in the blueprints, but those turned out to be automatic controls for ventilation.

Chief Barnett made a public comment (on the State Police Report, I think) that they had not ever utilized any footage from the restroom cams for prosecution, so if you heard that these cameras helped nab some perverts, I would be interested in particulars.  I would not be surprised that officials would say they caught creeps with the cameras to those who ask them, but if they do so and I hear about it, they then have to back up that fact when they get that FOIA from me.

As always, I believe the City of Ludington has a poor moral compass when they permit these cameras in the public restrooms.  Perverts won't take their prey into these places to commit their villainy because anyone can walk in at any time.  There are plenty of other areas safer for them.  But the public still does not know where the recordings of these bathrooms end up, who sees them, and why they put them hidden in the vents, capable of viewing into the stalls.

[Willy]

My understanding is that the camera's were installed because of vandalism that had occurred not because of perverts searching for victims.

[XLFD]

Right they were installed in the James St. plaza area bathrooms for that purpose with former CM Jim Miller's approval back in the late 90s.  They were done as a 'preventative' at the Waterfront Park bathrooms, and they've worked.  According to the chief, they have only had to check the recordings a couple of times for non-crime issues (such as when someone turns up missing in the area-- or when those cub scouts had a cookout nearby).

Believe me, they'll continue to get flak from this venue as long as I can see those cameras in the vents and that camera lens pointed at me while I am sitting on the men's side bathroom.