On January 22, 2008—yes, on the 35th anniversary of Roe v. Wade—the Eighth Circuit handed down a decision that is disappointing on the one hand, yet encouraging on the other.
The case, Roe v. Crawford, was filed by a female inmate seeking to have an elective abortion. However, Larry Crawford, Director of the Missouri Department of Corrections, maintained a policy of not transporting female inmates for elective abortions (note: elective means that the woman is not in medical need, but simply wants to obtain an abortion).
Ms. Roe filed a claim under both the 14th and 8th Amendments. As to the 14th Amendment claim, the Circuit stated that the policy was valid only if it was “reasonably related to legitimate penological interests” such as cost and security. Unfortunately, the Circuit ruled it was not. In deciding so, the Circuit ignored the fact that the Supreme Court and other federal courts have told us time and time again that abortion is inherently different (because it involves human life) and should be treated differently.
But the 8th Amendment claim (the right to be free from cruel and unusual punishment) is a different story. Reversing the district court and adopting the reasoning argued by Americans United for Life in this case and in a case in Arizona, the Circuit stated that “[t]he Supreme Court has made it clear the state has no affirmative duty to provide, fund, or help procure an abortion for any member of the general population.”
Most importantly, the Circuit went on to conclude:
We hold [that] an elective, non-therapeutic abortion does not constitute a serious medical need, and a prison institution’s refusal to provide an inmate with access to an elective, non-therapeutic abortion does not rise to the level of deliberate indifference to constitute an Eighth Amendment violation.
This holding is significant, because it dictates in no uncertain terms that elective abortions cannot rise to the level of medical necessity.
AUL will keep you updated as to the progress of this case.