IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
JANE DOE, individually and on behalf of all others similarly situated,Plaintiffs/Appellees,
vs.
JOSEPH ARPAIO, Maricopa County Sheriff, in his official capacity; MARICOPA COUNTY,
Defendants/Appellants. / )
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) / 1 CA-CV 05-0835
Maricopa County
Superior Court
No. CV 2004-009286
APPELLEES’ ANSWERING BRIEF
AMERICAN CIVIL LIBERTIES UNION FOUNDATIONSusan Talcott Camp**
Brigitte Adrienne Amiri*
Jennifer McAllister-Nevins*
Charu Chandrasekhar**
125 Broad Street, 18th Floor
New York, NY 10004
Attorneys for Plaintiff/Appellee
*admitted pro hac vice
**application for admission for pro hac vice in progress / LEWIS AND ROCA LLP (00030700)
Susan M. Freeman (004199)
Sonya K. Parrish-Boun (023396)
40 North Central Avenue
Phoenix, AZ 85004-4429
Cooperating Attorneys for
ACLU of Arizona
Attorneys for Plaintiff/Appellee
vi
1736194.1
TABLE OF CONTENTS
Page
table of authorities ii
INTRODUCTION 1
STATEMENT OF FACTS 4
I. The Policy And Jane Doe’s Efforts To Obtain An Abortion
While Incarcerated 4
II. The Increased Medical Risks From Delaying An Abortion 9
III. The Origin And Rationale Of The Policy 10
IV. Appellants’ Proffered Justifications For The Policy 11
V. Other Prisons Accommodate Abortions Without A Court Order 16
VI. The Ruling Below 17
ISSUES PRESENTED FOR REVIEW 18
ARGUMENT 19
I. The Trial Court Correctly Held The Policy Unconstitutional
Under The Fourteenth Amendment 19
A. The Policy Is Subject to the Undue Burden Standard 20
B. The Policy Imposes an Unconstitutional Undue
Burden on Prisoners Seeking Abortion 23
1. The Effect of the Policy Is to Grant Courts
Veto Power Over an Inmate’s Abortion
Decision 23
Page
2. The Policy Imposes Impermissible Delay
Because It Provides No Procedures for the
Inmate to Learn About or Invoke the Judicial
Process and No Time Limit for the Judge
to Rule 27
C. The Policy Fails Even Under a Turner v. Safley
Analysis Because It Serves No Legitimate
Penological Interest 32
1. The Policy Bears No Rational Relationship
to Legitimate Penological Interests 34
2. There Are No Alternative Means for an Inmate
to Obtain an Abortion 43
3. Accommodating an Inmate’s Constitutional Right to Choose Abortion, Without Requiring a Court
Order, Will Have De Minimus Impact on
Inmates, Staff, and Resources 44
4. There Are Ready Alternatives to the Policy for Accommodating Inmates’ Constitutional Right
to Choose an Abortion 45
5. Deference to Prison Authorities’ Policy Rationale
Is Unwarranted 46
II. The Policy Violates The Eighth Amendment 48
III. The Policy Violates The Arizona Constitution 50
A. The Policy Violates Arizona’s Constitutional Right
to Privacy 50
B. The Policy Violates Arizona’s Constitutional
Prohibition on Cruel and Unusual Punishment 54
Page
CONCLUSION 54
TABLE OF AUTHORITIES
Case Page
Akron v. Akron Ctr. for Reprod. Health,
462 U.S. 416 (1983),
overruled in part on other grounds by Casey,
505 U.S. 833 (1992) 26
Bellotti v. Baird,
443 U.S. 642 (1979) 22, 24, 28, 30
Bryant v. Maffucci,
923 F.2d 979 (2d Cir. 1991) 23
Doe v. Barron,
92 F. Supp. 2d 694 (S.D. Ohio 1999) 20, 33
Estelle v. Gamble,
429 U.S. 97 (1976) 22, 48
Farmer v. Brennan,
511 U.S. 825 (1994) 49
Helling v. McKinney,
509 U.S. 25 (1993) 22
Hudson v. Palmer,
468 U.S. 517 (1984) 22
Johnson v. California,
543 U.S. 499 (2005) 20, 21, 22
Monmouth County Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326 (3d Cir. 1987) passim
O'Lone v. Estate of Shabazz,
482 U.S. 342 (1987) 32
Case Page
Overton v. Bazzetta,
539 U.S. 126 (2003) 22
Planned Parenthood v. Casey,
505 U.S. 833 (1992) passim
Planned Parenthood v. Danforth,
428 U.S. 52 (1976) 24
Planned Parenthood v. Lawall,
180 F.3d 1022 (9th Cir. 1999) 30
Reprod. Health Servs. v. Webster,
662 F. Supp. 407 (W.D. Mo. 1987) 49
Reprod. Health Servs. v. Webster,
851 F.2d 1071 (8th Cir. 1988),
rev'd on other grounds,
492 U.S. 490 (1989) 23, 39
Roe v. Crawford,
396 F. Supp. 2d 1041 (W.D. Mo. 2005) 23, 33, 49
Roe v. Wade,
410 U.S. 113 (1973) 2, 24
Turner v. Safley,
482 U.S. 78 (1987) passim
Victoria W. v. Larpenter,
369 F.3d 475 (5th Cir. 2004) 20, 23, 33, 41, 42, 43, 45
Webster v. Reprod. Health Servs.,
492 U.S. 490 (1989) 30
Case Page
Wood v. Housewright,
900 F.2d 1332 (9th Cir. 1990) 48
State Cases
Andrews v. Blake,
205 Ariz. 236, 69 P.3d 7 (2003) 19
Armstrong v. State,
989 P.2d 364 (Mont. 1999) 53
Big D Constr. Corp. v. Court of Appeals,
163 Ariz. 560, 789 P.2d 1061 (1990) 19
Comm. to Defend Reprod. Rights v. Myers,
625 P.2d 779 (Cal. 1981) 53
Crowe v. Hickman's Egg Ranch,
202 Ariz. 113, 41 P.3d 651 (App. 2002) 35
Baker v. Ariz. Dep't of Revenue,
209 Ariz. 561, 105 P.3d 1180 (App. 2005) 19
Derendal v. Griffith,
209 Ariz. 416, 104 P.3d 147 (2005) 52
Henderson v. Crosby,
883 So. 2d 847 (Fla. App. 2004) 54
Huggins v. Superior Court,
163 Ariz. 348, 788 P.2d 81 (1990) 51
Kenyon v. Hammer,
142 Ariz. 69, 688 P.2d 961 (1984) 53, 54
Case Page
Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n,
160 Ariz. 350, 773 P.3d 455 (1989) 52
N. Fla. Women's Health & Counseling Servs., Inc. v. State,
866 So. 2d 612 (Fla. 2003) 53
Pool v. Superior Court,
139 Ariz. 98, 677 P.2d 261 (1984) 50
Rasmussen v. Fleming,
154 Ariz. 207, 741 P.2d 647 (1987) 52
Roberts v. State,
179 Ariz. 613, 880 P.2d 1159 (App. 1994) 48
Sears v. Hull,
192 Ariz. 65, 961 P.2d 1013 (1998) 19
State v. Ault,
150 Ariz. 459, 724 P.2d 545 (1986) 51
State v. Baldwin,
184 Ariz. 267, 908 P.2d 483 (App. 1996) 51
State v. Bolt,
142 Ariz. 260, 689 P.2d 519 (1984) 51
State v. Davis,
206 Ariz. 377, 79 P.3d 64 (2003) 54
State v. Estrada,
209 Ariz. 287, 100 P.3d 452 (2004) 52
State v. Henderson,
210 Ariz. 561, 115 P.3d 601 (2005) 19
Case Page
State v. Martin,
139 Ariz. 466, 679 P.2d 489 (1984) 51
State v. Planned Parenthood of Alaska,
28 P.3d 904 (Alaska 2001) 53
State v. Watson,
198 Ariz. 48, 6 P.3d 752 (App. 2000) 19
State v. Zimmer,
178 Ariz. 407, 874 P.2d 964 (App. 1993) 54
Weller v. Ariz. Dep't of Econ. Sec.,
176 Ariz. 220, 860 P.2d 487 (App. 1993) 51
Docketed Cases
Roe v. Leis,
No. C-1-00-651, 2001 WL 1842459 (S.D. Ohio Jan. 10, 2001) 33
Rules, Regulations and Statutes
Arizona Constitution:
art. 2, § 8 50
art. 2, § 15 54
Arizona Revised Statutes:
§ 12-820.02(A)(2) 37
§ 35-196.02 38
Page
Arizona Rules of Civil Appellate Procedure:
Rule 13(b) 48
Code of Federal Regulations:
28 C.F.R. § 551.23 16, 46
Other Authorities
Tecla Morasca, Involuntary Childbirth and Prisoners’ Rights:
Court-Order Prison Policy Violates Fundamental Rights,
32 New Eng. J. on Crim. & Civ. Confinement 43, 66 (Winter 2006) 34
Ga. Att’y Gen. Op. No. 60 (1977) 46
S.C. Att’y Gen. Op. No. 27791 (1974) 46
vi
1736194.1
INTRODUCTION
This is an appeal from the Maricopa County Superior Court, which permanently enjoined and declared unconstitutional Appellants’ unwritten policy prohibiting the transportation of inmates for the purpose of obtaining non-therapeutic abortions (hereinafter the “Policy”). The only way an inmate can circumvent this prohibition is to seek and obtain a court order that lifts the ban in her case by directing Appellants to transport her to an abortion provider. This Policy violates both the federal and state constitutions.
Notwithstanding their attempt to portray the court order as an easily obtainable “rubber stamp” on the exercise of constitutional rights, Appellants concede that the Policy transfers from the woman to the court the power to decide whether an abortion is “necessary.” The Policy, that is, grants the court veto power over the woman’s abortion decision. Moreover, contrary to Appellants’ purported expectation, the “rubber stamp” is not always forthcoming or prompt. Under the Policy, Ms. Doe suffered seven weeks of delay in obtaining an abortion, subjecting her to increased medical risks and extreme emotional distress as she struggled to obtain a court order that was initially denied.
There are several hurdles that an inmate must negotiate in complying with Appellants’ Policy. An inmate must first learn of the Policy, find an abortion clinic on her own, arrange for the procedure, retain willing counsel, and file the necessary motion or lawsuit, which still may not be approved. With each week the procedure is delayed, the risks to the woman’s life and health increase significantly.
The Policy thus clearly violates the constitutional right to decide to end a pregnancy before fetal viability. The Supreme Court first articulated protection for this right over thirty years ago in Roe v. Wade,[1] and has repeatedly reaffirmed it, including in Planned Parenthood v. Casey.[2] Outside the prison context, there is no question that a ban on abortions for adult women absent a court order would constitute an unconstitutional “undue burden,” the test articulated in Casey. Because the right to reproductive choice is not inconsistent with incarceration, the test applicable here is the same undue burden test, which the Policy fails: the only avenue to circumvent it gives the court veto power over the woman’s decision, and it imposes delay of indeterminate, dangerous, and potentially prohibitive length.
But the Policy would fail even under the less stringent Turner v. Safley[3] test, which is reserved for prison regulations affecting rights that – unlike the right to choose abortion – are inconsistent with incarceration. The Policy fails this test because it serves no legitimate penological interest. If the court order did indeed amount to no more than a rubber stamp, it would, of course, serve no purpose, penological or otherwise. Moreover, there is no legal basis for Appellants’ assertion that, absent a court order, they might be liable to third parties interested in the life of the fetus; that a court order would immunize them from other liability arising from the transport or the abortion procedure; or that state law prohibits them from allocating resources for such transports. These purported security, liability, and resource concerns are also undermined by Appellants’ practice of transporting prisoners off-site frequently – with no court order – for medical and non-medical reasons, including routine transports to visit dying relatives and attend viewings of deceased relatives. The Policy simply serves no purpose except, as the trial court noted, “to deflect what may be politically unpopular decisions and put those decisions at the feet of the court.” (R 48.)[4]
The trial court therefore correctly ruled that the Policy violates female inmates’ federal constitutional right to privacy. This court should affirm.[5] Since the Policy also violates female inmates’ state constitutional right to privacy and evinces deliberate indifference to their serious medical needs in violation of the federal and state constitutions, this Court may affirm on these grounds as well.
STATEMENT OF FACTS
I. The Policy And Jane Doe’s Efforts To Obtain An Abortion While Incarcerated
Jane Doe discovered that she was pregnant on the eve of her sentencing in Maricopa County Superior Court for driving under the influence. (R 39 Ex. 1 at ¶5.) She was only 19 years old, unmarried, and facing months of jail time as well as two years of probation. (Id.) She felt unprepared to have a child and, consequently, decided to terminate her pregnancy. (Id.)
Ms. Doe asked the private attorney who represented her in the criminal proceeding to try to delay her sentencing hearing so she could obtain an abortion. (Id.) The prosecutor refused to agree to the extension, however, noting that Ms.Doe could obtain an abortion while on work furlough. (Id. at ¶ 6.) The sentencing went forward as scheduled on March 18, 2004, and Ms. Doe was immediately taken into custody. (Id.)
Ms. Doe’s pregnancy was confirmed during a medical exam performed at the end of her first week of incarceration, while she was housed at the Tent City Jail and awaiting transfer to the work furlough area. (Id. at ¶ 8.) She immediately told the examining nurse of her decision to terminate the pregnancy, and believed she would be able to obtain an abortion on her own because she had been cleared for work furlough. (Id at ¶¶ 2, 8.) Over the following week, as she was scheduled for an ultrasound and then referred to a counselor, she repeatedly told medical and other personnel that she wanted an abortion. (Id. at ¶¶ 9-10.)
However, when jail personnel learned of her pregnancy, she was quickly transferred out of the tents and into the dorms at the Estrella Jail, where inmates are not allowed to participate in work furlough, and where inmates in Ms. Doe’s dorm (the “J-dorm”) had particularly restricted telephone access. (Id. at ¶¶ 7-8, 10.) She was thus at the mercy of Appellants to obtain access to an abortion.
Maricopa County Correctional Health Services (CHS) provides pregnant inmates with prenatal care and delivery services, including off-site when necessary, but does not provide abortion services. (R 29 Ex. 11 at 28:8-15, 30:23-24, 36:3-25, 37:24-38:3; R 29 Exs. 14 & 15.) Although CHS staff discuss abortion with pregnant inmates (R 29 Ex. 11 at 28:8-15), provide counseling upon request (id. at 31:3-13, 35:19-36:2), and provide care before and after an abortion procedure (id. at 34:16-34:23; R 29 Ex. 2), it neither funds nor assists in arranging for the procedure. (R 29 Ex. 2; R 29 Ex. 11 at 31:3-13, 38:4-10.)
Pursuant to the unwritten Policy, Appellants prohibit inmates from obtaining non-therapeutic abortions by refusing to provide transportation off-site. The only way an inmate can obtain an abortion not necessary to save her health or her life is by seeking and obtaining a court order directing Appellants to transport her off-site for the procedure. (R 29 Ex. 7 at 35:2-12; R 29 Ex. 8 at 10:21-11:21, 52:21-53:2; R 29 Ex. 10 at 16:1-5, 19:5-8, 28:6-11.)
Nothing in posted jail rules informs inmates of the Policy. (R 29 Ex. 7 at 44:1-11.) The jail provides no assistance to inmates in finding an abortion clinic or in scheduling an appointment. (R 29 Ex. 2; R 29 Ex. 11 at 31:3-13, 38:4-10.) There is no provision in the Policy for ensuring that an inmate has legal counsel to assist with her motion for a court order. (R 29 Ex. 2.) Moreover, the Policy includes no rules or procedures for Appellants or the courts to ensure prompt resolution of an inmate’s request for an abortion and motion for a court order, and there are no standards that judges are to employ when considering the motion. (R 29 Ex. 10 at 27:8-11, 41:2-24.) Indeed, Sheriff Arpaio testified that he has “no idea” whether a court will grant an inmate’s request for an abortion and conceded that “[t]he gal may have the baby by the time it gets through the court system.” (Id. at 27:4-7, 33:8-22, 41:2-25.)