A Supreme Court Order Affords Some Insight Into The Roberts Court's View of Roe v. Wade: Must Prison Officials Transport an Inmate to an Abortion Clinic?

By MICHAEL C. DORF

Wednesday, Oct. 26, 2005

Last week, in a one-sentence order in the case of Crawford v. Roe, the U.S. Supreme Court reinstated an abortion rights ruling by U.S. District Judge Dean Whipple. Judge Whipple's decision required the Missouri Corrections Department to transport a pregnant prisoner to a clinic where she could (and eventually did) obtain an abortion.

The case made national news because only three days earlier, Justice Clarence Thomas had issued an order temporarily staying Judge Whipple's mandate, so that the full Court could consider the issue.

With the Justices' action in the case, they avoided, for the time being, the need to resolve a potentially divisive question: Where does the state's obligation to respect the individual right to abortion end, and the state's right not to fund abortion begin?

The Court's ultimate decision to let Judge Whipple's order stand--and thus to let the abortion go forward--disappointed some conservative commentators, who had hoped for a more aggressively anti-abortion approach under the leadership of new Chief Justice John Roberts.

These observers are not necessarily wrong to read the order as a setback. Although decoding the sounds of the Court's silence in such cases is more art than science, the case does provide hints about the way larger issues may play out in a Court under Roberts's stewardship. Specifically, it gives at least some clues about how the Roberts Court may eventually deal with Roe v. Wade.

The Facts and Legal Background in the Roe Prisoner Abortion Case

Let's begin with the facts of the case that gave rise to Judge Whipple's order. As of October 14, a Missouri inmate suing under the pseudonym Jane Roe was roughly 16-17 weeks pregnant and wanted an abortion. Had she been a free person, she would have had a constitutional right to obtain it from a willing provider. But seeking it from inside prison walls turned out to be a different story: Under a policy adopted last year, Missouri does not provide transportation for prisoners to abortion facilities unless the abortion is medically necessary--which, apparently, was not true here.

Roe sued the state authorities, claiming that the policy violated her right to abortion under Roe v. Wade, and her right against cruel and unusual punishment under the Eighth Amendment.

A slam-dunk for the incarcerated Jane Roe? Not necessarily.

For one thing, prisoners convicted of crimes have fewer rights than law-abiding citizens. Under the Supreme Court's 1987 decision in Turner v. Safley, a law that infringes a prisoner's constitutional rights is valid so long as it is "reasonably related to legitimate penological interests."

This test is much more deferential to state intrusions on the rights of prisoners than are the parallel tests applicable to the rest of us. For example, it allows prison officials to read prisoners' mail, even though the First and Fourth Amendments would not permit the government to read a law-abiding citizen's mail.

In addition, Missouri authorities argued that they were justified in refusing to transport Roe for an abortion on the ground that they are not required to subsidize the procedure, and such transportation, of course, costs money, as does guarding the prisoner while she is en route to and at the abortion provider.

Since the Supreme Court's 1977 decision in Maher v. Roe, the Constitution has been understood to protect a woman's right to choose an abortion without undue interference from the state, but the state has been permitted to deny financial or other assistance to women seeking abortions.

Providing transportation to an abortion clinic would have been affirmative assistance, the state argued, not mere non-interference. As such, it argued, transportation could be constitutionally withheld.

Why the District Court Sided with Prisoner Roe

So why did Judge Whipple rule for the prisoner, Jane Roe? His opinion granting the relief she requested is brief and somewhat opaque, but one can distill from it a fairly persuasive response to the state's arguments.

Legally, the state had to claim that denying Roe her abortion served a legitimate penological interest. The state had argued its interest was in making sure the prison was fully staffed with guards: It contended that providing guards to transport Roe to the abortion clinic would have left the prison with fewer guards available to keep the peace.

Judge Whipple didn't find this interest credible, however. He pointed out that the state routinely transports prisoners for other medical procedures, without worrying about a shortage of guards.

The state also claimed, more simply, that it had an interest in not funding abortions, based on its opposition to abortion, and on the fact that abortions cost money. Judge Whipple did not deny that this was a legitimate position under the rule of Maher. But he noted that the interest was somewhat attenuated in the particular case. Prisoner Roe did not seek state funding for the abortion itself, for which she was willing to pay from her own, and from borrowed, money. Accordingly, the only state outlays were for the cost of transportation, and those outlays were only made necessary by the fact that the state was holding Roe behind bars.

Having interfered with Roe's liberty by incarcerating her, Judge Whipple implied, the state could not fairly claim that its failure to bring her to an abortion clinic was a mere failure to subsidize. Instead, the totality of the state's action--incarcerating Roe and then refusing to transport her to the clinic--amounted to interference with her right to an abortion.

The state's principal rejoinder to that argument was that Roe herself was responsible for her incarceration. After all, she, not the state, committed the crime that landed her in prison; why, the state asked, should taxpayers then bear the cost - in reduced prison security and money--of her transportation to her abortion provider? (We don't know what crime Roe committed because of her anonymity.)

However, the state's response is flawed. If it were really true that the inmate, rather than the state, bore all responsibility for her inability to travel on her own to an external medical facility, then that fact would justify the state in refusing to transport any prisoner to a hospital--even one in need of lifesaving treatment unavailable at the prison infirmary.

That can't be the law--and it isn't. Rather, the Eighth Amendment was construed in the 1976 case of Estelle v. Gamble to place upon prison authorities an affirmative "obligation to provide medical care for those whom it is punishing by incarceration." The argument in Crawford v. Roe that prisoner Roe's own criminal conduct made her alone responsible for the state's failure to transport her to a medical facility, directly contradicts the logic of Gamble.

How This Case Relates to the "Other"Roe

Judge Whipple seems to have made the right call in requiring Missouri to provide prisoner Roe with transportation to the clinic. The right call, that is, if one accepts the binding force of the far more famous Roe decision, Roe v. Wade. If, on the other hand, one thought that there was no constitutional right to abortion, then the state would be under no obligation to fund an inmate's transportation to a clinic. But for the Court to take that position would require Roe's overruling.

Abortion, if Roe were overruled, could be made a crime. Moreover, even if it were not a crime, the state would be free to treat an elective abortion no differently from other elective medical procedures, such as liposuction or a nose job. And surely the Gamble case does not go so far as to require the state to facilitate a prisoner's ability to undergo cosmetic surgery, even if she herself foots the bill.

Reading the Tea Leaves: Insight Into Whether the Court Will Overrule Roe?

In theory, the Roberts Court could have used this case as a vehicle to overrule or water down Roe v. Wade--for Judge Whipple's order is predicated in part upon that precedent. Is it significant that it did not do so?

Two of the current Justices--Antonin Scalia and Clarence Thomas--have stated forthrightly that they will vote to overrule Roe v. Wade whenever the opportunity presents itself. And, as noted above, it was Justice Thomas--acting in his capacity as the "Circuit Justice" for the Eighth Circuit Court of Appeals, which includes Missouri--who issued a temporary stay of Judge Whipple's decision pending the full Court's resolution of the issue.

It is possible that Justice Thomas stayed the transportation order because he disagreed with the analysis I have presented above. Perhaps he thought that saving the cost of transportation, or ensuring prison security, really were legitimate penological objectives in this instance. Or perhaps he thought that the state could treat a prisoner's commission of a crime as the true cause of her inability to obtain outside medical services on her own--at least for elective procedures. Or maybe Justice Thomas simply thought the case was sufficiently novel that the full Court ought to examine it. Because he did not give reasons for the temporary stay, we are left only to speculate.

But if we are speculating, it seems that one plausible account of Justice Thomas's decision to stay the lower court's order was his hope that the Court would, indeed, use the case as a vehicle to revisit--or at least chip away at--Roe v. Wade. If so, then we are left with an intriguing question: Why was there no published dissent from the Court's order dissolving Justice Thomas's stay?

One potential answer is obvious: The Court routinely issues this sort of order without explanation or a public account of the vote. Yet Justices Scalia and Thomas have not hesitated in the past to publish dissents from summary orders in abortion cases. Why did they not take the opportunity to launch another salvo in this case?

That question brings me to my most intriguing speculation: Perhaps Justices Scalia and Thomas stayed mum because they did not want to put Chief Justice Roberts to an early test on Roe. They might have feared that, so soon after Roberts told the Senate that he respected precedent, he would be unwilling to join a dissenting opinion calling for Roe's overruling.

Or, as long as we're speculating, perhaps the opposite is true. Perhaps Roberts would have been perfectly willing to go along with a dissent by Scalia or Thomas saying Roe should be overruled, but Roberts himself knew--or Scalia and Thomas sensed--that his doing so would make it that much harder for President Bush to have another pro-life nominee confirmed.

If a public dissent would have meant "outing" Roberts as anti-Roe, then the anti-Roe forces on the Court may have thought it better to sit on their hands.

Each of these hypotheses is, of course, pure speculation. Strategic considerations of the sort I have identified may well have played no role whatsoever in the Court's decision in Crawford v. Roe. But in an era of "stealth" Supreme Court appointments, at least the early years of a new Justice's tenure tend to encourage Court-watchers (such as myself) to act like Kremlinologists in the days of the Soviet Union--searching for clues of important policy decisions in the body language of tight-lipped officials. That is and should be a disturbing analogy for a democratic society.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law Versus Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.

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