Doe v. Arpaio – 1/23/2007
Arizona Court of Appeals Division One Holds That County Sheriff's Refusal to Transport Inmate Seeking Abortion Without a Court Order Is Not Reasonably Related to County's Stated Penological Interests.
Jane Doe was pregnant when she was taken into custody by the County. During her four-month stay in the County Jail, she repeated requested that she be permitted to terminate her pregnancy. Consistent with the County’s unwritten policy that prohibits the transportation of inmates off-site for elective medical procedures, Doe’s request was refused until she could secure a court order directing the County to transport her off-site for the procedure. It took Doe seven weeks to obtain the required court order. In conjunction with her request for an order, Doe filed a complaint seeking to have the county policy declared unconstitutional as violating her Fourteenth Amendment right to privacy and Eighth Amendment right to adequate medical care.
On cross-motions for summary judgment, the superior court ruled that the policy was unconstitutional because it constituted an “undue burden” on Doe’s right to have an abortion and because it found the policy served no legitimate penological purpose. On appeal, the appellate court first wrestled with which test to apply, concluding first that the undue burden test was inapplicable under the many cases in which appropriate prison restrictions on constitutionally protected rights are upheld. The appellate court next evaluated the policy under the four-part test developed in Turner v. Safley, 482 U.S. 78 (1987), concluding that the policy served no reasonable penological interest that might justify the burden on an inmate’s constitutional right. The court was troubled that (i) the policy did not further the County’s security concerns, given the numerous transports the County provides to inmates and its failure to object on security grounds to Doe’s request for transport; (ii) the policy did not conserve County resources, given that the County requires that inmates reimburse it for transportation and security costs incurred when an inmate seeks an elective medical procedure; (iii) County could identify no more than potential threats of vague or unknown liability that might justify its professed concern in avoiding liability; and (iv) the policy was not related to County’s objective of avoiding a violation of the Arizona law that prohibits the expenditure of state funds for an abortion because the County requires the inmate to pay for the procedure. In short, the Court found the policy represented an “exaggerated response” to the County’s proffered penological concerns.
Presiding Judge Irvine authored the opinion in which Judges Ehrlich and Downie concurred.